Criminal Procedure Outline (Welling Spring 2016)

Steps in the Criminal Justice Process

Class deals with the minimum amount of protection a state has to provide the D in order for the
process to be deemed constitutional; the state is always a party
1. Pre-arrest investigation
a. Crime comes to the police (reactionary)
b. Proactive- stings or CIs
2. Arrest taking into custody ok with probable cause (4th am)
3. Booking clerical process when booked at Police Station
4. Post-Arrest Investigation cops need beyond reasonable doubt to get a conviction (not just P.C.) so they
can now talk do D, do lineups, take DNA/hair/blood/fingerprints.
5. State makes charging decision based on: amount of evidence, witnesses, importance of deterrence, etc.
If Charged
6. Filing the complaint First charging document by the prosecutor, complainant swears that the facts
listed that led to the crime are true.
7. Magistrate Review of the Arrest while D is being held, a neutral officer reviews the case to ensure
there was probable cause if there was no arrest warrant issued.
a. Must happen promptly after Ds arrest. Just prosecutor is present.
8. First Appearance Ds body promptly appears before magistrate within 24-48 hours. Magistrate informs
D of charge, Ds rights and checks for Ds lawyer. Judge sets bail. Prosecutor and defendant are present.
9. Preliminary hearing Both sides are present and its adversarial, often waived. Judge makes PC
determination
a. D rarely puts their cards on the table, want to hear the governments case. [some jurisdictions
use PH or GJ, some jurisdictions use both].
10. Grand Jury another check for probable cause but this is asked to a jury. Only the prosecution presents
evidence; can be done along with the preliminary hearing or instead of it.
11. Indictment product of grand jury review; this is the charging document and it supersedes the
complaint.
a. If a Grand Jury is not required, the charging product is called an information.
12. Arraignment Ds attorney must be present and D enters a plea.
a. Main function D pleads guilty or not guilty
b. Most Ds waive formal arraignment and plead not guilty. Then we have trial or a plea
agreement.
13. Pre-trial motions: such as motion to suppress
14. Guilty plea negotiations and acceptance
15. Trial acquittal or guilty
16. Sentencing- if guilty
17. Appeal
18. Collateral Remedies

4th Amendment -Arrest, Search and Seizure

1. KEY AMENDMENTS: in the Investigative Stage of Criminal Procedure
a. 4th AMENDMENT, its all relevant:

i. The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
b. 5th AMENDMENT just know privilege against self-incrimination and due process
i. No person . . . shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process of law.
c. 6th AMENDMENT enjoy the right to assistance of Counsel
i. In all criminal prosecutions, the accused shall enjoy the rightto have the
Assistance of Counsel for his defense.
2. INCORPORATION (Zero? Total? Selective?) For our purposes, the Bill of Rights applies to both
feds and states, and in the exact same way. Identical application to states and feds.
a. DC v. Heller: Selective incorporation theory has been used to fully incorporate particular
rights contained in the Bill of Rights to the states through the 14 th Amendment Due Process
Clause, based on the idea that those rights are fundamental to the American scheme of ordered
liberty and justice.
i. Continuum: Ordered Liberty/Fundamental Fairness Selective Incorporation
Total Incorporation.
1. Weve never been at total incorporation (Bill of Rights all apply to states
through 14th Amendment), but started at ordered liberty/fundamental fairness
and ended up at selective incorporation. 3A regarding quartering and 5A
regarding GJ have never been applied to the states, so most judges fall
somewhere in the selective incorporation realm.

The Exclusionary Rule Remedy

2 things the ER and 4A dont apply to:
Private persons :
AND Foreign Nationals: US v. Verdego Urquidezessentially the people that the 4A protects
doesnt include foreign nationals.
1. EXCLUSIONARY RULE - If theres a 4th am violation, the remedy is the exclusionary rule. Any
evidence that is the fruit of a 4th Amendment violation is excluded from evidence and CANNOT be
used in court.
a. Exclusionary rule is the same remedy for 5th & 6th am violations.
b. Timeline:
i. 1914 Weeks said in all Federal cases, the remedy for a 4th am violation is the
exclusionary rule.
ii. 1949 Wolf said states dont have to use exclusionary rule.
iii. 1961 Mapp v. Ohio Exclusionary rule applies to the states as well as the federal
government.
1. Facts: Ms. Mapp refused to let officers in her house without a warrant, they
forcibly entered and found obscene materials.
2. Holding: All evidence obtained by searches and seizures in violation of the
Constitution is inadmissible in a state court. Obscene materials were excluded
from evidence because they were the fruit of an unlawful search and seizure

that violated the basic right of privacy to be free from unreasonable state
intrusion.
3. Reasons: Federal government has been doing this since 1914 so its not going
to practically fetter law enforcement too much, other remedies have failed, and
the right to privacy is basic.
iv. 1984 US v. Leon good faith exception to exclusionary rule.
1. GOOD FAITH EXCEPTION: Evidence obtained by an officer in a good
faith but mistaken belief that a warrant is based on sufficient probable
cause will NOT be excluded.
a. This is a judicially created doctrine.
2. This exception limits the exclusion remedy to situations where the search
warrant is so facially deficient in failing to particularize the place to be
searched or the things to be seized that the executing officer cannot
reasonably presume it to be valid.
a. Exclusionary remedy is not based on deterring magistrates or judges
who make mistakes, but on deterring PO misconduct. PO cannot be
deterred if they relied in good faith on the warrant that was invalid.
Search Warrant Process:
Cops present facts to Magistrate

Police execute warrant

Magis determines P.C. and issues warrant

Trial judge examines P.C.

determination, trumps magistrate

If warrant is OK, evidence admitted

Bad warrant without PC, inadmissible

(Leon)

v. Facts: Cops gathered evidence by acting in reasonable reliance upon a warrant issued
by a magistrate, thats later found to be unsupported by probable cause.
vi. Holding: Evidence is admissible because the Police had objectively reasonable reliance
upon a warrant issued by a judge.
1. Significance - evidence obtained in good faith by police relying upon a search
warrant that subsequently is found to be deficient may be used in a criminal
trial.
vii. Rationale: the purpose of the Exclusionary Rule is to deter police misconduct.
Judicial deterrence is NOT a goal. Penalizing an officer for the magistrates error
doesnt deter police misconduct. The cost of letting criminals go free is greater than the
benefit of deterring police misconduct, so the exclusionary rule shouldnt apply.
viii. RULE If the affidavit is written in good faith, then the magistrate messes up, its still
admissible because there is no need to deter magistrates who are judicial officers. If the
affidavit was written in bad faith by the police, evidence is inadmissible.
1. Final rule coming in Hudson and Herring.
2. Objectively reasonable reliance by police = admissible.
c. Drawing the contours of the Good Faith Exception (Brennan Dissent says honoring warrants
made w/o P/C on this GF exception only lets guilty criminals walk free).
i. Exception to the Exception: The Good Faith exception goes away and evidence is still
suppressed if:
1. (1) Affidavit knowingly gives false info by PO who is reckless (PO lied),
2. (2) Judge wholly abandons his role (rubber stamp),
3. (3) If PO goes too far beyond search warrants face (not in good faith), or
4. (4) Warrant is facially deficient

4th Am Violation No Evidence

Evidence is suppressed (Mapp)

Leon G/F
Exception, no
suppression

2. THE EFFECT OF LEONS GOOD FAITH EXCEPTION

a. Groh v. Ramirez (2004)
i. Facts: Cop had the correct facts for the search warrant, but switched the place to
searched with items to be seized.
ii. Holding: This warrant is not valid b/c its facially deficient. Thus, you lose the Leon
Good Faith exception because theres no reasonable reliance. Facial deficiency is an
exception to the good faith exception.
iii. RULE: The boundaries of the Good Faith Exception do NOT include facially
invalid warrants.
1. Violates the particularity requirement in the 4th Amendment.
b. Illinois v. Krull (1987)
i. Facts: Statute enacted that said PO didnt need warrant to inspect chop-shop records, for
3 years police use it and rely upon it, statute is then ruled unconstitutional.
ii. RULE: Leon Good Faith exception is expanded to cover searches conducted in
good-faith reliance upon a state statute that is later determined to be invalid.
Executing a statute in good faith falls under the Good Faith exception.
1. For those 3 years, PO who relied on statute are within the good faith exception.
2. Excluding this evidence would not deter the police from violating the 4 th
Amendment because they were following state law. Legislature cant be
deterred, so exclusionary rule does not apply.
c. Davis v. US (2011)
i. Timeline: Belton (1981) says car searches are fine Davis facts (2007) Gant (2009)
said car search is bad and narrowed PO authority Davis appeal (now search is
unconstitutional).
ii. RULE: Searches conducted in objectively reasonable reliance on binding appellate
precedent that is later overruled are not subject to the exclusionary rule.
1. Good faith exception applies because this wouldnt deter law enforcement who
are relying on binding appellate precedent.
2. Non-culpable and innocent POs cant be deterred.
3. Were looking at the mens rea of POs now to determine whether the good
faith exception should apply. A subjective view, rather than objective.
d. Arizona v. Evans (1995)
i. Facts: Cop stops Evans for a traffic violation, then arrests him based on a bad
outstanding arrest warrant that the court clerk had failed to record as quashed.
ii. RULE: Evidence obtained through the error of a non-police government employee
does NOT have to be suppressed. This is a categorical exception to the
exclusionary rule for clerical errors of court employees.
1. ONLY PO deterrence matters, not court officials.
iii. Holding: Good Faith exception still applies because no deterrence of POs here. Cant
deter court employeesmost of this regarding who actually made the mistake

3. ADDITIONAL CIVIL REMEDIES FOR DAMAGES: because exclusionary rule has its drawbacks
a. Bivens action cause of action to bring a tort claim against the Federal Gov
b. 1983 action cause of action against the state.
c. **Note 1983, Bivens and motion to suppress all depend upon on finding a 4 th am violation (or
any rights, privileges or immunities secured by the C)
4. EVIDENCE OBTAINED BY PRIVATE PARTIES NOT COVERED BY 4th AM:
a. ASK: IS THIS GOVERNMENT ACTIVITY?
b. Jacobsen
i. RULE: 4th Amendment does NOT apply to private individuals, it only applies to
limiting searches by the government and government agents.
ii. Facts: Fed Ex (private) opened package, the DEA reopened it. Evidence is not
suppressed because it was discovered by a private party, so no 4 th Amendment violation
occurred.
iii. Because the 4th Amendment doesnt apply, we dont even ask whether the exclusionary
rule should apply.
c. EXCEPTION: 4th Amendment DOES apply if the private party acts as an agent or
instrument at the direction of the government (Burdeau).
i. E.g., undercover agents or confidential informants acting on behalf of the government.
5. CURRENT LAW ON THE EXCLUSIONARY RULE (the remedy for 4th am violation)
a. Mapp said the exclusionary rule is broad, and other cases limited the scope of Mapp.
b. Hudson v. Michigan (2006) distinguishes remedy from violation
i. Holding: A violation of the "knock-and-announce" rule (which states, Fourth
Amendment requirement that police officers knock, announce their presence, and wait a
Hudson and
reasonable amount of time before entering a private residence) by police does not
Herring
require the suppression of the evidence found during a search.
resolve
ii. RULE: Categorically, knock and announce violations will NEVER be grounds for
Exclusionary
suppression/use of the exclusionary remedy.
Rule law
1. Civil rights remedies are good enough to cover knock and announce violations.
2. Suppression is such an extreme remedy.
3. Also, suppression is a deterrent. We dont need to deter POs from not knocking
and announcing minor issue compared to gravity of suppression.
4. Whether the exclusionary rule applies is a SEPARATE QUESTION than
whether the individuals 4A rights were violated.
c. Herring v. US (2009) Expands good faith exception by requiring mens rea (or police
culpability) along with deterrence (think about it you cant deter someone who didnt know
they were doing anything wrong in the first place)
i. Facts: Cops arrest D after finding arrest warrant on a database. Cops then find drugs and
a gun. Minutes after the search, the police discover that a police clerk had negligently
failed to recall the arrest warrant (which was no longer valid).
ii. Holding: This is still admissible, even though it was police misconduct it cannot be
deterred because there was no police culpability above mere negligence.
iii. RULE: Suppression turns on the culpability of the police (mens rea) and the
potential of exclusion to deter wrongful police conduct.
1. Requirements for the Exclusionary Rule to Apply:
a. (1) Deterrence (only deterrence if PO has mens rea > negligence)
b. (2) Deterrence outweighs costs

i. Its rare to get to (2) if (1) is not met because no costs are
known to outweigh deterrence.
2. Suppression through the exclusionary rule is no longer an automatic
consequence of a 4th am violation. The police must have the appropriate mens
rea above mere negligence to trigger the exclusionary rule.
a. The 4th Amendment violation and the exclusionary rule are two
separate questions.
3. Appreciable Deterrence (benefit/cost balancing to ensure PO conduct is
sufficiently culpable that deterrence is worth the costs) and Culpability of
Police (new factor that requires PO conduct to be sufficiently deliberate that it
can be meaningfully deterred)
a. Why mens rea? Only get deterrence benefits with bad conduct, thus
there needs to be a mens rea requirement.
4. Culpability required to trigger exclusion: intentional, knowingly, reckless,
or grossly negligent (recurring or systematic negligence likely enough for sup)
a. Negligence alone is not enough unless systemic/recurring.
b. Deterrence and culpability are objective questions.
c. Do not apply good faith anymore; ask whether the proper mens rea was
met. If yes, suppression is the remedy.
5. To trigger the exclusionary rule, police conduct must be sufficiently deliberate
that exclusion can deter it and sufficiently culpable.
6. Other 4th Am thoughts:
a. Dismissal of crime has never been an appropriate remedy (think of Cardozos critique why
should D walk for a constables error?) only exclusion of evidence.
b. Other crimes/charges for violation of 4th:
i. Bivens, 1983, and Federal prosecution of fed civil rights crime.
c. Remember, 3 ways of limiting suppression of E
i. Good Faith Exception
ii. Some type of 4A violationKnock and announce
iii. Requisite culpability requirement

The Definition of Search Protected Areas and Interests

ASK:
(1) WAS THIS GOVERNMENT ACTIVITY?
(2) WAS THIS A SEARCH OR SEIZURE?
FOR SEARCH, WAS THERE A REASONABLE EXPECATION OF PRIVACY?
ESSENTIALLY, IF A COP PERCEIVES SOMETHING WITH A SENSE, AND THE PO IS WHERE
THEY HAVE THE RIGHT TO BE, THERE IS NO SEARCH
1. REASONABLE EXPECTATION OF PRIVACY: Katz v. United States (1967)
a. Facts: Wagering information was heard after FBI attached listening device to outside of public
phone booth.
b. Holding: This was a search. Police needed probable cause and a warrant.
c. The 4th Amendment doesnt protect places, it protects people. - Search cant turn solely on
whether a physical intrusion occurred (old rule was based on property law and trespass/penetration
of private space).

d. NEW RULE: The new test of defining a search and seizure is whether there is a
REASONABLE EXPECTATION OF PRIVACY.
i. 2 Requirements for the 4th Amendment to Apply:
1. (1) Person exhibited actual, subjective expectation of privacy and
2. (2) That the expectation of privacy is objectively reasonable in society.
a. (2) is most important as the court decides reasonableness because defendant
can completely control (1), so (1) has basically gone away.
b. Ex: D thinking he is acting in private is not enough, that belief must be
objectively reasonable. Obviously cant reasonably expect people wont
believe D is on the phone, as hes in the glass boothcan reasonably
expect that he wont be heard
ii. PUBLIC EXPOSURE/ASSUMPTION OF THE RISK EXCEPTION: What a person
knowing exposes to the public, even in his own home or office, is not protected by the
4th Amendment because there is no REP. But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected.
1. PO arent expected to avert their eyes.
2. Think about Hoffa and White (if one party consents to taping, there is no 4th
Amendment violation).
3. Think about bank records (Miller public exposure), pen registers/mail covers
(Smith v. Maryland), and garbage (CA v. Greenwood).
2. DEFINING REP AND APPLYING KATZ How do we define reasonable expectation of privacy?
a. PUBLIC EXPOSURE CA v. Greenwood (1988)
i. Facts: Police examined Ds trash which had been left on his curb. Cops find narcotics.
ii. Holding: This is NOT a search because there is no REP in your trash because it was given to
a third party and was readily accessible to the public.
1. Public exposure of trash forfeits any REP in the bags, and once the trash is
conveyed to a third party, the homeowner assumes the risk that they will turn the
bags over to police.
a. Counterargument: But trash was sealed in opaque bags, no expectation that
police will go through it.
b. CURTILAGE v. OPEN FIELDS Oliver v. US (1984)
i. The physical setting is important in determining whether the 4 th Amendment is violated.
1. Home Strong 4th Amendment Protection
2. Curtilage Moderate 4th Amendment Protection
3. Open Fields NO 4th Amendment Protection
ii. A person enjoys the highest expectation of privacy in their home.
iii. Curtilage is a protected area and is a search, open fields are not because:
1. Not explicitly in 4th Am (literal language argument)
a. Not a person, house, paper, or effect - 4th am is meant to only protect
intimate activities and open fields dont provide that setting.
2. No REP because lands are accessible by public; court doesnt care that the
Legislature believes there is REP by making trespass a crime.
a. **Note 2 different tests means trouble in future. Property law does not
matter here at all.
iv. Curtilage: land immediately surrounding and associated with the house is protected by the
4th Amendment.
1. Curtilage factors: proximity to house, does an enclosure surround the area, use of
the area, and steps taken to protect the area from public observation.
v. Open fields: land is accessible by public and is unoccupied and undeveloped

1. Police can walk through open fields, woods, etc and it is not a search because the
setting is not intimate and private.
c. AERIAL SURVEILLANCE Florida v. Riley (1989)
i. Helicopter viewing marijuana with naked-eye in partially covered greenhouse from
400 ft. above is NOT a search b/c no REP:
1. Vantage point, as well as physical setting, matter in the REP analysis.
2. Its probable for a helicopter to view your property
a. Probable means happens routinely, this is an important distinction from
possible (dissent argues that its possible the government will do anything.
Saying the public could do something is different from saying they would.)
3. No intimate detail revealed, no interference with the use and enjoyment of your
land (no dust, no wind, etc)
4. 400ft elevation was lawful under FAA regulations.
a. The fact that it was lawful is important.
b. Inapposite to Oliver which ignored trespass laws. Here they care about
compliance with the law (of obvious importance)
i. Cynically if local laws help the case, they use it.
5. Court also points out that helicopters hovering 400 ft over your property are not all
that rare.
d. SENSE ENHANCING DEVICES Dow Chemical aerial photo of complex used to reveal
pollution not a search because
i. Where a device merely enhances the sensory perception and facilitates surveillance
that otherwise would be possible without the enhancement, the 4 th Amendment is NOT
implicated.
1. Flashlights, aerial cameral, photo/video recording, and drug-detection dogs do not
implicate the 4th Amendment.
ii. This was a plain view of the plant, lawful fly over, analogous to open field
iii. Court says (inapposite to Kyllo) that super details dont matter because not intimate.
iv. Court also ignores the fact that this was a $22K camera, which would not be in public use.
Generally available to the public is an important factor, according to Kyllo.
1. Knotts: Attaching electronic tracking device to a car and monitoring it on a public
road is NOT a 4th Amendment violation because the movements of the car could
have been observed by the naked eye.
e. BUSINESSES Have a REP and are covered by the 4th Amendment.
f. DETENTION FACILITIES
i. Hudson v. Palmer: No REP that you will be free from intrustion your prison cell, no search
and seizure because of security concerns.
ii. The nature of the place can dictate whether a REP exists.
g. VEHICLES
i. There is a general expectation of privacy in cars, but its reduced by the extensive
motor vehicle regulations.
1. Cardwell v. Lewis: Take picture/print of tire tread not a search b/c public can do
it, its knowingly conveyed to whole world. Public exposure argument.
2. Paint chip off car not a search, whole world can see it (might still be a seizure)
3. New York v. Class: VIN requirement no REP w/ VIN and the Cops get to view it.
But thats it. Only get to eyeball vehicle, if they move papers its a search because a
cars interior is subject to 4th Amendment protection.

Open fields & prisons (0%)

Businesses (medium) Curtilage

Homes (100%)

h. EFFECTS Cars and luggage

i. Bond v. US (2000) Luggage is an effect (within the 4th am) [meth in a bag on a
greyhound; Agents manipulated bag to feel meth].
1. Everyone clearly expects their bag to be viewed and handled, but NOT squeezed or
feel in an exploratory, examining manner. This was a search.
2. Once a search, the Ds consent is probably a bad fruit.
i.

OFFICER SENSES
i. Idea starts with the Plain View (knowingly placed in public)
ii. Cops who are lawfully present in a certain place can use their senses to detect
something without it being a search.
iii. But how much can they enhance their senses?
1. OK if the device merely enhances sensory perception and facilitates surveillance
that otherwise would be possible without the enhancement flashlight, binoculars,
telescope, drug dogs, aerial cameras, etc.
2. THERMAL IMAGERS: Kyllo (2001) thermal imagers to detect heat emanating
from a house, Court said its a search because:
a. No outside observer could have gathered this information without
physical intrusion, the device was not in general public use, and the
information came from our most sacred, intimate place the interior of
our homes. This is presumptively unreasonable without a warrant and
is a 4A violation.
i. All details of home are considered intimate. There is a firm line
drawn at the entrance to the house for 4A purposes.
b. Tech is not in general public use (open question)Big points are
technology is not in general use and this is the inside of our homes
interior of the house always protected under Katz std.

DRUG DOGS US v. Place - dog sniff of luggage at airport after temporary seizure is not a
search!
i. The use of a drug-detection dog at a public airport to determine the presence of
contraband does not trigger 4th Amendment protections.
Binary result
1. REP is lower because this was a sniff of the luggage, not of the Ds body (higher
is relevant in
REP).
determining if
ii. RS that a package or piece of luggage contains contraband or evidence of a crime
there is a
justifies a temporary seizure of it.
1. Seizure must be limited in (1) time and (2) scope.
search
a. 90 minutes was too long here, it was excessive and unreasonable.
iii. Not a search because:
1. This is a very limited intrusion its only a binary result, either yes or no; so no
intimate details; AND
2. The smell is outside the luggage, already wafted out.
iv. Extension of binary reasoning
1. On the spot test to yield binary result of whether white powder is cocaine, is not a
search because very limited results.
v. Government interest in briefly detaining personal effects outweighs the minimal intrusion to
the owner.
j.

vi. Fla. v. Jardines; court held that a dog sniff at the houses door IS a search because of the
private nature of our house. This literally violated the 4 th Amendments persons, houses,
papers, or effects language.
1. Police were gathering information in the curtilage of the home, which is protected
(on front stoop).
2. Curtilage is part of the home itself for 4th Amendment purposes.
3. There was no implied license from the homeowner to bring the dogs, but police
themselves could knock like any other private citizen because there is an implied
license for that purpose. pushes the physical tresass thought process too
3. PHYSICAL INTRUSION MODERN DEFINITION OF SEARCH:
a. US v. Jones (2012) - importance of this case is probably diminished by growing technology and cell
phones (Government doesnt need a physical trespass of our property to monitor us).
i. Facts: Cops installed a GPS tracking device on undercarriage of Ds car, and tracked its
movements for 28 days without probable cause.
ii. Holding: GPS on car and tracking is a search b/c:
1. Physically occupied/trespassed private property
2. Framers wouldve seen this as a search (original intent)
3. This violates the literal language b/c this is an effect
a. This holding depends on the fact that a car (and luggage) is an effect. If
NOT a person, house, paper and effects, then stay with Katz progeny!!
4. This holding is diminished by the fact that a physical trespass of property is
meaningless b/c the government no longer needs GPSs on cars. They can just track
us via our phones, data aggregation/mining, cell site location info (which tracks
every move), etc.
a. The kind of offense (terrorism or DUI) does NOT matter when determining
if it was a search.
iii. There are TWO WAYS to define a search: (1) Katzs REASONABLE EXPECTATION
OF PRIVACY test added to, and did not substitute (2) the common law TRESPASS/
PHYSICAL INTRUSION TEST from Jones and Jardines.
1. Physical Intrusion Test: (a) Unlicensed (b) physical intruded on (c) private
property by the government and its (d) an enumerated property (person,
house, effect, papers) then its a search.
2. Either is enough to be a search. Jones & Jardines dont address REP at all, so they
dont change the REP standard. Physical trespass is so specific that it wont cover a
lot of police action.
b. Jardines
i. Search requires (1) constitutionally protected area and (2) unlicensed physical trespass.
ii. Dog alerted on front porch. PO stayed too long beyond implicit license for people to knock
on your door and wait. Having the dog at the door was unreasonable and beyond this
implicit license. The dog alert was the PC for the warrant. Alert was obtained through a 4 th
Amendment violation, so the search is unconstitutional.

Probable Cause
4th Amendment Right of the people to be free of unreasonable searches and seizures and no Warrants
shall issue, but upon probable cause.

10

Initial PC determination made by: (1) Magistrate when seeking warrant or (2) PO if they act
without a warrant
Police must have justification BEFORE they conduct a search or seizure. The required level of
justification will depend on the scope and degree of the intrusion.
o PC Needed for arrest/search
o RS Needed for stop/frisk
o Balance importance of societal interest and individual privacy Needed for
administrative search
o No grounds Subject confronted but free to leave

1. PC STANDARD: Probable cause is the level of proof the government must show for searches and seizures
(arrests).
a. PC is the quantity of facts and circumstances within the POs knowledge that would warrant a
reasonable person to conclude that the individual in question has committed a crime (arrest)
or that specific items related to criminal activity will be found at the particular place (search).
i. PC is just a standard somewhere more than scintilla/hunch but less than prep of
evidence (51%), clear and convincing ~75% and beyond a reasonable doubt ~90%.
ii. Must include specific, concrete facts and not merely conclusory speculations.
b. A POs ulterior reasons are irrelevant if there is PC justifying a particular intrusion. (Whren)
2. RELIABILITY OF ANONYMOUS TIPS Illinois v. Gates (1983)
a. If the information is based on a POs own observations, credibility is usually presumed.
b. Anonymous Tip Process:
i. Informant (tipster or CI; tipster unknown to PO, both unknown to magistrate) Cops
(make an affidavit) Magistrate (never knows informants identity, making the reliability
of the tip hard to determine) Court
c. Old case law required both spurs of the Spinelli test to be met to allow in an affidavit from an
unknown informant. Spinelli test:
i. Basis of informants knowledge (how does the informant know what she claims to know),
and
ii. Reliable/Credibility of information (why should we believe this person)
1. Both prongs are aided by corroboration.
d. Holding:
i. To determine probable cause just apply a totality of the circumstances test to look at the
overall reliability of the tip, the Spinelli test is rejected.
1. Consider everything, including the two fundamental factors from Spinelli, but PC is
Look at ToC
a non-technical, common sense, practical, and fluid approach.
to determine
a. There is no neat set of legal rules for PC determinations.
PC, must find
2. If person IDs themselves AND the location of crime, PC is automatic (phone call
reliability!
after potential car wreck for swerving).
ii. Gates definition of probable cause fair probability, substantial chance of criminal
activity (Pringle adds reasonable ground)
1. **Note the standard of PC is the same for Cops (w/o warrant) and magistrate
e. Gates Inquiry by magistrate - Is there a fair probability or substantial chance that contraband
or evidence of a crime will be found in a particular place? If yes, PC is established.
i. A deficiency on one of the Spinelli prongs can now be compensated for by a strong showing
on the other prong, or by some other indicia of reliability. INDEPENDENT POLICE
CORROBORATION GOES A VERY LONG WAY IN THE PC ANALYSIS

11

f.

Appellate review standard Did the Magistrate have a substantial basis for concluding that a
search would uncover evidence of wrongdoing? The 4th Amendment requires no more.
i. Very deferential to magistrate decision, examine the legitimacy of warrant at the time it was
issued (freeze the situation when the warrant was issued).
ii. Must look at all of persons places separately (car and house)Magistrates warrant must
remain location specific.

3. PC FROM DOG ALERTS

a. Florida v. Harris: Rigid rules are not required because they are inconsistent with Gates totality of
the circumstances rule.
i. If dog is trained, thats enough. There is no rigid requirement for POs to show
evidence of dogs reliability in the field.
ii. A couple false positives do not negate dogs value as probable cause indicator. There was
PC because if dog alerts and no drugs found they could have been moved so dog isnt
necessarily wrong.
4. PC TO ARREST v. PC TO SEARCH The same quantum of evidence is required for P.C. to arrest and
P.C. to search. However, the questions are different:
a. For arrest (arrest warrants never get stale) there must be probable cause that
i. Substantial probability that a crime has been committed, and
MEMORIZE!!
ii. That the person to be arrested committed it.
b. For search (search warrants can get stale) there must be probable cause that
i. Certain items are the fruit, instrumentalities, or evidence of crime and
ii. These items are to be presently found
iii. At a certain place.
1. Grubbs: Anticipatory search warrant after indication that controlled delivery of
package containing child porn video would be made to Ds residence.
a. ANTICIPATORY SEARCH WARRANTS are ok if you have additional
PC that the triggering event (condition) will actually occur.
i. 2 factors:
1. Likely triggering event will occur AND
2. When triggering event does occur, contraband/E if a
crime will be on a specifically described premises
b. Anticipatory search warrants require magistrate to determine that it is
NOW probable that evidence of a crime WILL BE at a particular place
in the very near future. The evidence is not presently there.
5. RELEVANT FACTORS FOR PROBABLE CAUSE: (all can be innocent)
a. Can find PC based on all innocent facts, not every fact has to be a crime. An innocent explanation
for activity does not defeat PC.
b. Court indicates that you examine all the facts through the eyes of a police officer. Use police
expertise, doesnt have to be suspicious to regular citizen.
c. The fact that a victim reports a crime is usually PC if cops know the victim (think about difference
w/ anonymous tipster)
d. When Cops form PC in their minds, relevant P.C. factors:
i. Flight
ii. Suspicious behavior
iii. Perspective of what police know, facts can be innocent
iv. Police can take into account the neighborhood/location (high crime?).
e. Example US v. Hill (2 ppl in gov bathroom)

12

i. No expectation of privacy b/c suspicious behavior, 2 ppl of opposite genders in single

public bathroom, in there for long time (> 4 min) and occupants didnt respond to knocking.
6. Apply 4th Am test to problem 40:

a. Gov Action? hospital employee drew blood; 2 theories:

i. Government Agent private person temporarily acting as government agent at police
discretion or
ii. Government Employee State hospital, i.e. UK?
1. Recall 4th am is not just cops but government agents/employees
b. Search? Of blood samples?
i. Yes, there is a reasonable expectation of privacy in our blood. Unlike fingerprints, hair, spit
(which go everywhere), we dont bleed everywhere.
ii. Yes, physical intrusion that is not licensed.
iii. Sample of blood for alcohol is a search.
c. Probable Cause? Evidence of a crime currently located at a particular place (Ds blood)?
Staleness issue because BAC reduces by the minute, too long to wait for a warrant. Look at
elements of crime and examine facts to find PC. Drunk driving elements:
i. Drunk smelled like alcohol and acting belligerent = P.C.
ii. Driving car was his, 5 injured parties requires 2 drivers (40% chance)
d. Answer 40% chance is probable enough P.C. that Filmon did DUI.
7. TIMING OF WARRANTS searches require that the evidence is currently located somewhere.
a. Problems:
i. Staleness
1. PC to search can go stale, warrant can become invalid if PO waits too long to
execute it because location where the specific items related to criminal activity are
presently located can change (think about drugs being used up/sold vs. porn on
computer).
2. PC to arrest will never go stale (they did it or they didnt do it).
ii. Anticipatory Warrants Magistrate must find PC that the evidence will be on the
premises; found OK in Grubbs.
1. Inquiry = Must have P.C. that the triggering condition will occur
2. Ex: In controlled drug sales
3. Item related to thec rim is not presently at the place to be searched, but will be in
the very near future.
8. Challenging the Affidavit
a. Ds can do thislook back at affidavit and cts will delete all statements where PO either lied or
had reckless disregard for the truth in the affidavit that led to PCafter deletion, cts
reexamine affidavit w/o those statements for PCif PC still there, everything ok; if no P/C
without faulty statements, cause should be dropped.
9. WHERE IS PC ON THE CONTINUUM? Maryland v. Pringle (2003)

13

a. Drugs and money found in car, PO arrested all 3 passengers. Not a search of the glove box cause it
was in plain view so PO was where he had a right to be.
b. If a reasonable inference could be made that any or all of the three people had knowledge of
and control over the cocaine, there is PC. PC does not go away by pointing to the fact that
there exists PC to search or seize another person.
c. Do police have P.C. with 33% chance? Yes, but this is a flawed analysis because this possession
crime can be committed by all 3 or 1.
i. Another synonym for P.C. reasonable ground for belief of guilt. This belief of guilt must
be particularized to the person to be searched/seized.
d. But the 9th Circ (Gourd) said that P.C. does not require preponderance
i. 50% is enough under P.C.

Search Warrants- Protect against unilateral action of overly zealous POs

1. STAGES OF A SEARCH WARRANT:
a. Issuance by magistrate, then
b. Execution by cops
2. WARRANT REQUIREMENTS:
a. Issued by a neutral and detached magistrate (someone in the judicial branch)
b. Presented to magistrate with an adequate showing of probable cause.
i. Normally a PO affidavit
c. Must describe with particularity the place to be searched and the items or persons to be seized.
3. ISSUANCE commonsense, non-technical judgement: does this affidavit provide proof to the level of
probable cause?
a. Magistrate doesnt have to be a lawyer, but does have to be (1) neutral and (2) detached and (3)
capable of making PC determination based on training and experience (cannot be paid per
search warrant, AG cannot be magistrate, etc).
b. 4th Am Particularity Requirement no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
i. Response to British tyranny, no general searches the Warrant must particularly
describe the things to be seized and the place to be searched.
ii. Recall Groh no good faith exception when warrant was facially invalid (switched
place and items), although affidavit was correct because it was not attached. Direct
violation of the 4th Amendment particularity requirement.
1. POs should review search warrants to ensure they are not facially invalid
(a 4th Amendment violation).
c. Conditions to leave search warrant blank and to save a warrant by reference to other documents:
i. Affidavit must be attached (accompany)
ii. Warrant must refer to the affidavit language of incorporation
4. EXECUTION Cops must (1) swear and (2) particularly describe the place to be search and things to
be seized.
a. A long delay could result in the dissipation of PC in a search warrant (not still presently located)
but will not for an arrest warrant (they did it regardless of when).
b. Knock and Announce Default Rule is that its required based on reasonableness
i. Wilson (1995) Default Rule There needs to be a knock and announce, but
there is no rigid rule; in some exigent circumstances (like when there is a
countervailing law enforcement interest) we leave it to the officers judgment.
1. All a part of the reasonableness 4th Amendment inquiry.
ii. Richards (1997)

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1. In some circumstances, drug search warrants can be an exception to the knock

and announce rule but there is NO categorical exclusion.
2. Inquiry for No-Knock Cops need REASONABLE SUSPICION (less than
PC) that K & A, under the circumstances, would be dangerous, futile, or
inhibit the investigationi.e. exigencies
a. Officers hurt, physical violence, escape, or evidence destroyed? Must
have reasonable suspicion to skip K&A, otherwise its required.here,
drugs/E being destroyed was reason enough to skip K and A
iii. Ramirez
1. Cops have to be reasonable in the manner in which they execute a search.
a. Cops cannot be overly violent or destructive; part of reasonableness.
iv. Banks - Wait Time of K & A
1. Length of time that is reasonable to wait depends on Cops knowledge
(subjective mens rea) on how long it would take for the occupants to dispose of
the evidence sought.
2. No bright line rule for wait time varies with the facts and exigencies (drugs
being flushed). 15-20 seconds here was reasonable due to possible destruction
of evidence.
a. This is a reasonableness inquiry.
c. Search of Persons on the Premises Search warrant for public place doesnt let you search the
patrons, may be different for a home.
i. Ybarra (1979)
1. Individualized Suspicion Standard: Search warrant with PC to search a
public place cannot be used to search everyone there without violating the
particularity requirement.
2. Holding: No, mere close proximity to a crime is not enough. People are
separate entities than the place (patrons are different than the bar).
3. A search warrant could authorize search of people there, but must have PC for
the patrons.
ii. Retelle
1. Police needed to protect themselves, so not allowing people to cover up when
found white people in bed when looking for 4 black men was reasonable.
d. Detention of Persons on Premises
i. Michigan v. Summers (1981)
1. Reasonable detention of an occupant on the premises being searched for
contraband pursuant to a valid warrant is allowed. To detain, PO must
have an articulable basis for suspecting criminal activity (aka reasonable
suspicion).
2. Yes, under Terry balancing (gov interests in executing search > marginal
intrusion of detention on owner) b/c:
a. It prevents flight (if you find drugs in house, have P.C. 4 LO)
b. Minimize risk of harm to officers and occupants and
c. Not very intrusive
3. Detention was okay, so drugs found in his pocket were admissible.
ii. Mueller v. Mena (2005)
1. Handcuffs are OK w/ detention during a search warrant execution.
2. 2-3 hr detention wherein the 2-3 people are placed in handcuffs were occupants
(important b/c more intrusive than Summers) was okay.
iii. US v. Bailey (2013)

15

1. Summers detainment while executing a search warrant is limited to the

immediate vicinity of the premiseslimits spatially
2. Facts: Warrant based on drugs and guns from CI. 2 guys leave residence and
Cops follow them 1 mile away. Guys were detained 1 mile from warrant, and
soon as possible.
3. Holding: No, the Summers rule that that officers executing a search warrant
are permitted to detain the occupants of the premises while a proper search is
conducted, is limited to the immediate vicinity of the premises to be searched
and does not apply when a recent occupant of the premises was detained at a
point beyond any reasonable understanding of the immediate vicinity of the
premises in question. This was too intrusive, looked like a full custody arrest.
5. INTENSITY & DURATION OF THE SEARCH
a. Intensity & Duration
i. Intensity Cops can only look where the items described may be (ex: cannot look for
drugs on computer)
ii. Duration once items named in warrant are found, the search must end.
b. Seizure of Items Not Named in the Warrant must be obvious evidence
i. Plain View Doctrine (Horton v. California (1990)) If cops have a right to be there
(i.e. have a S/W) and they perceive evidence with their senses, the Cops get to seize it
too.
1. This makes the language of the warrant important.
2. Plain view requires: (1) items must be in plain view while the officers are
within the confines of the originally authorized search and (2) items must
be immediately apparent as contraband or evidence of crime, and not
requiring any further search or analysis.
a. Plain view doctrine permits seizure of items during an already lawful
search, but doesnt authorize any additional search beyond the scope of
the original search described in the warrant.
ii. Others cops may seize the gun if its obviously evidence (immediately apparent to
the police that they have evidence before them)
1. Ex: In Bailey the S/W is only for gun but they see drugs which are easily
evidence of crime.
2. Hicks:
a. D lived above V and bullets came through Vs ceiling. PO had PC to
enter Ds apartment based on Vs complaint. Two new stereos were
found.
b. OK to be in apartment, but moving stereo was an unreasonable
warrantless search. NOT plain view.
c. (1) PO was where he had a right to be, but (2) he didnt suspect
evidence of a crime with his senses.
i. He had to move stereo, call in numbers, which is beyond plain
view authority.
3. TAKEAWAY: Cops only get stuff that is obviously evidence.
c. Delivery of warrant Cops are not constitutionally required to show the warrant to the
resident.
d. Purpose of warrant Prior judicial approval adds neutral check
i. Generally, warrants are required (or strongly preferred) for a search [warrantless arrests
and searches are coming next].

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6. 4th AMENDMENT ANALYSIS ON EXAM:

a. Gov Action? must be yes for 4th Amendment to apply
b. Has a REP been violated? must be yes for 4th Amendment to apply
c. Was the conduct justified?
i. Search/Stop or Seizure/Frisk? ID the 4th am activity
ii. What level of justification is required?
1. Probable Cause Arrest, Search
2. Reasonable Suspicion Stop, Frisk
d. Was a warrant required?
i. Search Warrant required unless falls under an exception below
ii. Arrest Arrest in home or public place? If home, warrant is required.
e. If warrant was required, were the prerequisites for a valid warrant complied with?
i. Neutral/detached magistrate? PC supported by oath/affirmation?
ii. Warrant particularly describe place to search and things to seize?
f. If warrant was NOT required, were the prerequisites for warrantless search/seizure met?
i. Emergency exception? Exigency & PC required
ii. SITA?
1. Lawful arrest w/ PC & limited to Ds grab area
iii. Vehicle Exception?
1. Mobile vehicle & PC
iv. Stop & Frisk?
1. Stop: RS to believe criminal activity is afoot
2. Frisk: RS to believe subject is armed and dangerous
v. Administrative Search?
1. Non-criminal purposes & Limits on police discretion & Part of larger
regulatory scheme
vi. Inventory Search?
1. Non-criminal purpose, after valid seizure of vehicle, following procedures
vii. Consent?
1. Voluntary
2. If 3P must have proper authority (actual or apparent w/ good faith exception)
3. Was the target of the search present?
viii. Plain View?
1. Lawful intrusion and within scope of original search
2. Item immediately apparent as contraband or evidence
g. If 4A violation occurred, does exclusionary rule apply?
i. Does suspect have standing? Were specific Ds 4A rights violated?
ii. Good Faith Exception?
1. Did PO act in reasonable reliance on a warrant, or otherwise act in good faith
iii. Is the evidence offered solely for impeachment? If yes, admissible.
h. Fruits Doctrine
i. Is the item the fruit of a poisonous tree? (But-for causation)
ii. If so, does one of the exceptions apply?
1. Did the taint become attenuated?
2. Was there an independent source?
3. Would evidence have been inevitably discovered by other lawful means?
7. GOOD FAITH EXCEPTION & PARTICULARITY COMBINED:
i. Read together, the good faith exception and particularity requirement mandates that
either (1) the place searched and the items seized be specifically and accurately
described in the warrant, or (2) if not correctly described, the mistake is deemed to have
been objectively reasonable to qualify for the good faith exception.

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1. If neither warrant is invalid, 4th Amendment violation.

Warrantless Arrests & Searches of a Person

Generally, arrest warrants are not required as long as the arrest occurs in public and there is probable cause to
believe the subject has committed a crime.
1. WARRANTLESS PUBLIC ARRESTS: US v. Watson (1976)
a. Facts: CI established PC related to stolen credit cards, arrested D without warrant.
b. RULE: For any crime, committed in public, for which the police have PC, they can arrest
without a warrant.
i. No warrant needed even if there is sufficient time to get one and no practical
impediment to doing so.
ii. But need a warrant to go into someones home
c. How to get PC? Depends on the type of crime:
i. Felony Cops can arrest if
1. In presence (Cops see it) or
2. P/C from other if reasonable grounds for making the arrest (i.e. call from
witness)
ii. Misdemeanor Cops can ONLY arrest if
1. In presence (Cops must see it)
2. Must be a breach of the peace (this goes away in Atwater).
iii. Another way to put it
1. If in their presence, Cops can arrest for both felony and misdemeanor.
2. If P/C otherwise, Cops can only arrest for felony.
2. MISDEMEANOR WARRANTLESS ARREST: Atwater (2001)
a. There is no requirement for a breach of peace (a violent mind) for a Cop to make a
misdemeanor arrest when Cops observe it.
b. Misdemeanor in officers presence is enough for a common law warrantless arrest and
subsequent vehicle search incident to arrest.
i. In Atwater, D was NOT wearing a seatbelt and cop could arrest b/c observed even
though failure to wear a seatbelt is not a breach of the peace.
3. REASONABLENESS APPLIES TO MANNER OF ARREST: Garner (1985)
a. Reasonableness applies to the manner in which an arrest is made, an excessively violent
arrest can be a 4th Amendment violation.
i. Use of deadly force is not justified if the subject poses no immediate threat to the
officers or others in the public. Police may not seize an unarmed, non-dangerous
suspect by shooting him.Garner says P.O must have continuing threat of harm
to other people to use deadly force
ii. ASK: Whether POs actions are objectively reasonable in light of the facts and
circumstances without regard to POs underlying subjective intent or motivation.
iii. Graham v. Connorapplies a reasonableness standard to all types of force in relation to
warrantless arrests, not just in regard to those involving deadly force.
b. Ex: In Scott v. Harris (2007), a high speed chase ended with the cops spinning out the Ds car
causing him to become paralyzed.
i. This was reasonable b/c high threat of danger to the public (bystanders) at the time and
the D was highly culpable.

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4. TIMING OF PC DETERMINATION AFTER A WARRANTLESS ARREST/JUDICIAL

REVIEW
a. PC must be reviewed promptly by a magistrate before extended restraint on liberty is
allowed. Gerstein v. Pugh
i. During a Magistrate Review of Arrest (Gerstein Review) the sole issues is whether
there was P.C. to believe the suspect has committed a crime.
b. Review within 48hrs after arrest is presumptively okay. McLaughlin
i. This is a general rule, not hard line; but this does work as a burden shifting device)
ii. Before 48 hrs, Burden of P is on D to prove unreasonable (its presumptively okay).
iii. After 48 hrs, presumptively too long. Burden flips to government to show emergency or
extraordinary circumstance.

Warrantless Searches of the Body

1. ROBINSON SEARCH INCIDENT TO ARREST: U.S. v. Robinson (1973)
a. Incidental powers of police custodial arrest allows for full search of the body without further PC,
even with traffic stops.
b. RULE Regardless of crime, PO get to search your person incident to a full custodial arrest
without a warrant or PC for searchjust need support of P/C that D committed crimeeasy
in traffic stop
i. REASONS: (1) Disarm suspect, (2) Preserve evidence for use at trial
ii. This is a bright line rule the crime doesnt matter.
c. Found heroine in his pocket during body search at station.
d. Recall Atwater full custodial arrest and search for a seatbelt violation. This is ok and considered
reasonable. You can arrest even for a conviction that does not carry any jail time.
e. Riley v. CaliforniaP.O searching data on a cell phone is not okay incident to warrantless search of
the body; okay to look at physical phone and open it up, but cant look at data unless reason to
believe exigency may exist (remote wiping of data, for example). Robinson doesnt say you can
search data b/c arrestee has no reduced privacy interestReasons 1 or 2 above not implicated with
cellphone data
2. ROBINSON SEARCH AFTER ARREST FOR TRAFFIC VIOL.: VA v. Moore (2008) the VA law said
that you have to give a ticket for a seat belt violation, but the VA cops just went ahead and arrested/searched
him. LOCAL LAWS DONT MATTER.
a. The arrest is valid; it may violate VA state law but the Court doesnt care because there was PC for
the arrestarrest not unconstitutional just b/c violates VA lawconstitutional custodial arrest far
broader than lawful custodial arrest
b. RULE Cops can do full arrest and search incident to arrest for ANY traffic violation
(Robinson) so its good to know the traffic laws!!
i. Also, fact that the VA cop didnt use the least restrictive means is not conclusive. Just a
factor in reasonableness inquiry.
3. SUBJECTIVE INTENT OF PO IRRELEVANT: Whren v. US (1996)
a. Undercover cops observed traffic violation but really suspected drugs, observed drugs in plain view
w/in the car, Ds were arrested.
b. Fruits analysis First, identify the fruits to be suppressed than move backwards chronologically
i. How did they get drugs? Searched car
1. Search incident to Arrest

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ii. Was the arrest good? Yes, P.C. to arrest b/c of bag of crack in plain view.
iii. Did cops have the right to be there? Was the traffic stop lawful? Was initial stop valid?
Good
1. Yes, Ds conceded there was P.C. for bad driving (P.C. because Cops observed the
Fruits
traffic crime and Ds did it) so drugs in plain view are admissible because PO was
Exampl
where he had a right to be.
c. RULE Once you find PC to believe that a traffic violation occurred, PO are where they have
a right to be, so the plain view search and seizure is reasonable (no balancing).
i. Subjective motives of PO to stop a car for a traffic violation NEVER matters. If there
is PC for the traffic violation, actual motivation of PO doesnt matter.
ii. Race cannot be used to find P.C. under Totality of Circumstances, but Pretext arrest? Racial
profiling?
d. Whren is limited by Terry In Whren, Cops had P.C. that a traffic violation occurred. But to make a
car stop, you ONLY need reasonable suspicion (Terry).
4. DRAWING BLOOD IS A SEARCH: Schmerber v. CA drawing blood for DUI
a. RULE Generally, need search warrant to draw blood (physical intrusion of the human body
and REP), UNLESS there is an emergency/ special facts/exigencies.
i. Schmerber Special Facts The officer did not have time to get a warrant because he had
to take the suspect to a hospital to be treated for injuries and had to investigate the scene of
the accident. Thus, no time to seek out a magistrate and secure a warrant. This was an
emergency exceptionalso DUI case, exigency for alcohol level lowering over time
1. But Schmerber was in 1960s. It no longer takes this long to get a warrant.
ii. McNeely No bright line rule that alcohol dissipation is a per se exception to warrant
requirement to get blood in drunk driving situation.
a. Dissent: only need warrant if time to get warrant makes it practicable to do
so before evidence in blood is destroyed, otherwise per se kicks in.
2. This one fact alone is not an exigent circumstance exception. Need more special
facts in a case-by-case, fact specific analysis. court says if PO can get a warrant,
he still should; no bright line exigency.
iii. This physical evidence does NOT implicate the 5th Amendment because its physical so
its never excluded under the 5th Amendment because it doesnt meet the testimonial
requirement.
5. STRIP SEARCH AFTER ARREST - Florence (2012)
a. Warrant is NOT required for a strip search because PO gets automatic right to search you
after a full custodial arrest unless there is substantial evidence that POs response was
exaggerated. this is okay even though warrant was for failure to appear (not violent)
b. Close visual inspection of body is okay when:
i. Arrest based on warrant (he was arrested with a warrant)
ii. Going to general jail population, and
iii. No touching guards werent touching him and no intl humiliation.
6. NO SEARCH INCIDENT TO CITATIONS: Knowles - A Limit on Warrantless Searches (finally)
a. Speeding citation, then searched the car and found weed.
b. If cops issue a citation, they do NOT get to search the body because there is no arrest.
A Limit!
i. Because there is less PO danger and no need for evidence of a traffic offense (cant find
No
further evidence of speeding) the Chimel rationales dont support a warrantless search.
ii. But cop CAN order driver out of the car during traffic stop with RS (Mimms) and
Search
passengers (Wilson).
incident
1. This is a minimal intrusion beyond the stop itself and is justified by safety concerns.

to citation

20

c. Remember, if full custodial arrest they can search you and there are few limits (can be done
for any crime, regardless of state laws).
7. CHEEK SWAB IS SPECIAL NEEDS SEARCH, NO PC/WARRANT REQD: Maryland v. King
a. DNA evidence obtained from cheek swab after assault arrest was matched to prior rape and D was
convicted.
b. When an arrest is made and supported by PC, taking and analyzing a cheek swab to test DNA
is a legitimate police booking procedure that is reasonable under the 4th Amendment although
it is a search.
i. Even if there is no PC and a search occurred, no warrant is required because a cheek swab is
less intrusive than needle stick for blood. Balance government need with intrusiveness on
individual.
ii. This is the first time PC/RS is not required for a search. This is a special needs case
No warrant and No PC required for the search.
1. For Special Needs, do the balancing test.
iii. What is a search?Generally, when you have to take something from a body, it is a search
(ie drawing blood, DNA, scraping nails, breatholyzer)finger prints probably arent but
who knows anymore.

Warrantless Entries and Searches of Places

Amendment Inquiry:
1. Government Action?
2. 4th Am Activity?
a. Search?
i. REP or
ii. Physical Trespass
b. Seizure?
3. PC?
4. Warrant?
a. Was it required?
i. Search? generally yes
ii. Arrest in home/home entry? yes (equivalent to search, Payton)
iii. Arrest in public? no (Watson)
b. If warrant is required, is there an exception? (these apply equally to searches and arrests):
i. Robinson, Chimel Search incident to valid custodial arrest, dont need warrant for
body search and immediate control area search.
ii. Buie Sweep cursory sweep
iii. Plain view Chrisman & Hicks Cops (follow arrested person wherever they go, must
be where they have a right to be and using senses)
iv. Exigent Circumstances (3):
1. Destruction of evidence (KY v. King)
2. Danger to Anyone (Victim, Cops, D, public) Emergency Aid Doctrine
(Brigham City)
3. Hot Pursuit in hot pursuit, no warrant need to enter the house. This applies
only to arrest warrants.
v. Jails Strip search after arrest ok without warrant. (Florence)
vi. DNA of Arrestees PO can take DNA sample, no PC or warrant needed if arrested. It
is a search, though. (King v. Maryland)
vii. Vehicles: 3 vehicle exceptions to warrant requirement

21

1. Vehicle exception generally no warrant required for cars if you have P.C.
(including containers)
2. Belton/Thornton/Gant SITA search a vehicle incident to an occupants arrest
if arrestee is w/in reaching distance of passenger compartment at the time of
search OR its reasonable to believe the vehicle contains evidence of the
offense of the arrest.
3. Bertine Inventory Search Inventory search after seizure of car.

Exceptions to Warrant Requirement for Home Searches

Remember Robinsons bright line rule that search of a person incident to arrest is constitutional.
Exceptions to the warrant requirement are either (1) because its impractical to get a warrant in the situation
(exigencies) or (2) there is a diminished expectation of privacy in the area to be searched.
1. CHIMEL EXCEPTION FOR AREA IN IMMEDIATE CONTROL : Chimel v. California
a. PO do not need a search warrant (after a valid arrest) to search Ds person AND the area
within Ds immediate control. This is a search incident to arrestIf PO has PC and
warrant to arrest, can look for E within Ds immediate control.
i. This means the Ds person (including pockets) and area from within which the D may
gain possession of a weapon or destructible evidence; within the arrestees grab area.
1. Rationale officer safety and destruction of evidence, impractical to get
warrant in the heat of an arrest
ii. Broader searches of the entire room or the entire house require a search warrant.
iii. Bright Line Rule: Once a valid, lawful arrest has occurred, PO get to search the area
within Ds immediate control w/o P.C. or reasonable suspicion.
iv. However, even if PO certain E is in next room, should still obtain warrantdefault is
P/C and warrant are required.
2. BUIE PROTECTIVE SWEEP EXCEPTION: Buie
a. Beyond Chimel area of immediate control, PO are allowed to do a protective and cursory
sweep (only for officer safety) to look for a person that poses danger to those on the arrest
scene without a warrant and without probable cause. This applies to in-home arrests.
i. Beyond Buie sweep, any broader cursory inspection requires reasonable suspicion
that the area to be swept harbors an individual posing a danger to those on the
arrest scene.
ii. Cursory Inspection = plain view search for people in places where a person could
hide and launch an attack from.
1. The sweep lasts no longer than necessary to dispel reasonable suspicion of
danger and no longer than it takes to complete arrest and depart.
2. Can look in closets and areas immediately adjoining the place of arrest from
which an attack could be launched.
3. This expands Robinson (arrestees body after arrest) to area around body.
b. Note:
i. Chimel area Cops have lots of power b/c of officer safety and evidence destruction
ii. Buie area less power b/c only officer safety
iii. Outside of Buie? Regular Probable cause requirement (I would draw the rings here)
iv. Cell Phones: Riley says generally needs a warrant for cell phone SITA. No blanket
authorization, except for checking for weapons in phone case.

22

3. EXCEPTION FOR FOLLOWING AN ARRESTEE & PLAIN VIEW: Chrisman

a. Bright line rule Warrantless entry of premises is permissible incident to and following an
arrest, when arrestee allows Cop to follow (cannot be forced). Its not unreasonable to
monitor the movements of an arrested person following arrest.
i. Once a lawful arrest has been made, the Cops can monitor the arrestees movements
even if it leads to warrantless entry of premises
ii. Illegal items in plain view when following arrestee are admissible.
b. PLAIN VIEW: All S/W exceptions give the officers plain view authority.
i. Must be: (1) in plain view while the officers are within the confines of the originally
authorized search, and (2) must be immediately apparent as contraband or evidence of a
crime, and not requiring any further search or analysis.
1. This doctrine permits seizure of an item the PO views during a lawful search,
but does not authorize any additional search beyond that described in the
existing warrant.
2. Arizona v. HicksBullets coming through the floor(1) police are where they
have a right to be and (2) evidence of the crime is perceived w PO sensesb/c
police picked up stereo to read serial # to see if stolen, 2 is not met, and E not
coming in, even though 1 is met.
4. EXIGENT CIRCUMSTANCES EXCEPTIONS TO WARRANT REQUIREMENT KY v. King
a. 2 EMERGENCY EXEGENCIES: create an exception to the warrant requirement
i. Destruction of evidence (Vale, King)
ii. Danger to anyone (police or others)
1. Escape of a Suspect - Hot pursuit
a. **NOTE: Emergency exception has been strictly contained to prevent
the exception from swallowing the warrant requirement.
B. NO EXCEPTION IF POLICE CREATE THE EXIGENCY - KY v. King (2011)
i. RULE: Warrantless searches conducted in exigent circumstances violate the 4 th
Amendment if PO gain entry to premises by means of an actual or threatened
violation of the 4th Amendment.
1. This exception to the exception is very small.
ii. RULE: There is NO exigency exception if police conduct creates the
exigency/danger/destruction of evidence, warrant is required.
1. If police create the exigency, they cannot benefit from it.
a. Police cant rely on the need to prevent destruction of evidence when
the exigency was created or manufactured by police conduct.
2. PO knocked and entered wrong door or two suspect potentially ran into, and
found drugsie cant threaten to come in no matter what if not admitted
exigency created by the POPO cant threaten to violate 4A
3. Additionally, occupant turning down PO request for admission cannot factor
into PO analysis of exigencycant generate PC or RS
C. DESTRUCTION OF EVIDENCE - Vale
i. If PO believes evidence is being destroyed, PO can enter a house without a warrant
as long as there is PC and urgency.

23

ii. To meet exigency of destroying evidence to break into a dwelling, the Cops must hear
specific sounds of destroying evidence. Arrest on street does not create an exigency on
its own to enter the house without a warrant.
1. Regular sounds like scuffling, or the fact that it is drugs are NOT enough.
iii. What should have Vale cops done? Freeze the scene!!Burden of Proof on State to
prove exigency existed
d. TEMPORARY SEIZURE OF PLACE: PO authority while they get warrant
i. Segura (seize by inside)
1. PO have authority to temporarily seize a place while procuring a warrant
if there is PC to arrest occupants.
2. Police have PC, make warrantless entry and seize the apartment (sit there for 19
hrs), until they get a S/W to prevent destruction of evidence.
ii. McArthur (seize by outside) Cops can prevent anyone from entering unless they are
monitored. Reasonable.
1. There was PC to search the home, the restriction was limited to two house,
and PO had good reason to believe he would destroy the weed before they
returned with a warrant.
2. This was reasonable because it was the least restrictive alternative (not a factor,
but an aside).held D on porch while warrant procuredthis is OK
e. NO HOMICIDE SCENE EXCEPTION TO S/W REQUIREMENT: still need a warrant.
i. Seriousness of crime is NOT an element that creates S/W exception.
ii. Initial entry is ok to check dangerous situation, but Cops cannot then comb the
scene.
1. They should freeze scene, then get S/W.
f.

DANGER EXIGENCY & THE EMERGENCY AID DOCTRINE:

i. Danger to a person (victim, PO, public, any person) is an exception to the warrant
requirement to enter a home. Brigham City v. Stuart
1. If Police are administering emergency aid, they may enter a home without a
search warrant. Must believe an occupant is seriously injured or in imminent
danger.
ii. Includes HOT PURSUIT
1. If police are in hot pursuit of someone who leaves the scene of a crime and
then goes into home, no arrest warrant or search warrant is needed to
chase suspect into a home or building. Santana
a. PO observed D in doorway of her home and she retreated inside, no
warrant needed to enter home to arrest her because the arrest began in a
public place.
b. Goal is to prevent the suspect from escaping.
c. Once inside, PO can lawfully search for him and seize evidence and
weapons in plain view (are where they have a right to be, even without
a warrant).No hot pursuit exception just for searching for E, have to
be chasing to arrest
iii. Welsh
1. Hot pursuit exception does NOT apply to minor offenses.

24

2. NO hot pursuit once guy DUId, then went home and PO showed up hours
later. Theres no public safety threat. Need to preserve BAC evidence is the
only valid justification, but entry was invalid. Needed warrant to enter home.
3. Case is an outlier b/c court looks at the gravity of the offense (which in
Wisconsin is only a misdemeanor) and generally seriousness of the crime is not
a factor. Extreme outlier here.
g. NEED WARRANT TO ENTER A HOME TO MAKE AN ARREST - Payton v. NY
i. An arrest warrant founded on PC implicitly carries with it the limited authority to
enter a dwelling where the suspect lives when there is reason to believe the suspect
is within.
1. ARREST WARRANT NEEDED FOR ARREST IN OWN HOME: Without
an arrest warrant, the home is a sanctuary so an arrest warrant is required
to enter and effect a non-exigent arrest of the subject in his own home.
a. While PO needs warrant to search or arrest in a home, there is no
warrant requirement for arrests made in public.
b. There is a firm line drawn at the doorway of the home, and absent
exigent circumstances that line cannot be crossed without a warrant.
c. Search or seizure inside a home without a warrant is presumptively
unreasonable.
d. You must have a warrant to enter the home, but it doesnt have to be a
search warrant (can be an arrest warrant for occupant).
e. Ex: Arrest Warrant for A, Cops can enter ONLY As house b/c the arrest
warrant gives them implicit authority to enter As home.--also, hearing
music and lights from house okay to believe suspect is within his own
homecant enter abandoned house under same pretext.
2. But, in Steagald, this implicit authority only allows the Police to search in Ds
home, not his buddies. Must have S/W for other homes.
a. SEARCH WARRANT NEEDED FOR ARREST IN 3Ps HOME:
Cant search the home of a third party armed solely with the arrest
warrant for a non-resident. PO would need search warrant for
third-partys house.
i. Must have PC to believe the suspect is on the 3Ps property.
ii. This is a limit on Peyton.

Vehicle Exceptions to Warrant Requirement

3 VEHICLE-BASED WARRANT EXCEPTIONS
a) Vehicle exception w/ PC
b) Gant SITA law PC to arrest
c) Bertine Inventory Search
* Burden of proof that one of the three vehicle exceptions apply is on the government if there was no
warrant and a vehicle was searched.
1. PC EXCEPTION TO VEHICLE SEARCHES: CA v. Carney (1985)
a. RULE If you have PC to believe contraband or evidence of a crime will be found within, you
dont need a warrant for car searches including searches of containers and trunks.

25

i. Rationale:
1. Ready Mobility of Car they may leave while you get a S/W
a. Theoretical idea, can still search cars that arent mobile (motor homes)
2. Reduced expectation of privacy b/c cars are highly regulated
a. Pervasive regulations lead to reduced EP (more important rationale than
mobility)
ii. Juvenile created PC by saying he had drugs, government action, so warrant not needed because
its a vehicle.
iii. Dyson says that Carney is a bright-line rule.
1. There is no separate exigent circumstances requirement to search a car, including
containers, without a warrant as long as there is PC to search the vehicle.
a. PC is the ONLY requirement.
b. How to determine a motor home meets vehicle exception:
i. Being used on the highway meets exception
ii. Readily capable and found stationary in a place not used for residential purposes- meets
exception (on blocks, location, vehicle license plate, connected to utilities, presence in a setting
that objectively indicates that vehicle is being used for transportation)
1. If motor home meets either of the 2, vehicle exception applies.
2. EXAM: Think about a campground and argue both ways. More like a car or a house?
2. CONTAINERS IN CARS
a. Weird law dude with a briefcase on street, needs a S/W. But the moment you place the briefcase in
a car, you lose this expectation.
b. Background to Acevedo (briefcase in car theory).
i. Chadwick and Sanders (1977-1979) PC that theres a crime in the luggage. D puts luggage
in the car and the cops seize it.
1. Holding: Warrant required, fact that its in a car changes nothing. Rule should be the
same as if he had luggage on the street.
a. This was reversed by Acevedo.
ii. Ross (1982) Maybe need a warrant.
1. If there is PC to search a stopped vehicle, the search can extend to any part of the car
(including containers) that might contain the object of the search.
a. Search for illegal aliens would not cover containers, but search for drugs would.
2. If PC to search entire car, but no specific PC for container, broad PC for entire car is
enough to search containers. But if PC only for container, cant search whole car.
iii. Acevedo (1991) rejects and overrules Chadwick/Sanders.
1. PO may search an automobile AND any containers within it when they have PC to
believe contraband or evidence of crime is present anywhere inside.
2. RULE: When Cops only have PC to a container in a car (i.e. holds contraband or
evidence), there is no warrant required to look at the container.
a. If you find something in the container, it can give you PC to search the rest
of the car, but if you find nothing in container there is NO PC to search the
rest of the car.
b. Protected on the street, but not in a car. Putting bag of weed in truck was PC to
search the container, no warrant was required.
c. No Ownership Requirements to Car Search Wyoming v. Houghton (1999)
i. Facts: P.C. that the driver (male) is doing drugs, Cops search in the back seat and find drugs in
a womans purse (passenger).

26

ii. Holding: Search is ok. Once you have PC to search the entire car, you get to search
everything (all containers in it) that is capable of concealing the object of the search.
There is no individualized PC requirement.
1. Ownership is irrelevant, can search everything that can hold object youre searching for
2. Rationale passengers have reduced expectation of privacy, outweighed by substantial
government interest in searching for evidence.
3. No passenger property exception too confusing.
3. PASSENGER COMPARTMENT - AZ v. Gant (2009) case limits law enforcement for SITA
a. Law before this case: Police get to categorically search passenger compartment for any traffic
violation if (1) arrest that is (2) custodial and (3) valid. (Belton searches- not specifically overruled
here but basically not viable anymore under Gant.)
i. But NOT the trunk because weapons cant be accessed there.
b. Assuming lawful custodial arrest of occupant of car, can law enforcement search the passenger
compartment without a warrant?
c. RULE: There is NO automatic free search of passenger compartments incident to arrest
unless either of the 2 Gant conditions are met (reason to believe):
i. Access - Arrestee is unsecured AND within reaching distance of passenger compartment
at time of the search, OR
1. This steps from Chimel area of immediate control doctrine.
ii. Evidence Reasonable to believe the vehicle contains evidence of the crime of arrest.
1. Must be evidence of crime of arrest, so for traffic violation there is no reasonable basis
to believe the vehicle contains relevant evidence.
2. Rule Cops only need reason to believe either of these conditions are met, then no S/W
needed to search interior of car and containers.
a. Can search containers if there is reason to believe evidence of the crime of
arrest can be found in the containers.
3. There is NO search of the trunk that comes with a SITA in the vehicle context.
d. Impact quite small with all the other car exception. Gant is only important with tiny traffic
violations, Cops no longer get the free search of a passenger compartment unless the Gant
conditions are met.
4. CELL PHONE SEARCH INCIDENT TO ARREST: Riley
a. No blanket authorization to search cell phones incident to arrest, but could maybe use the
exigent circumstances exception to check for weapons, etc.
i. Generally, a warrant is required for phone searchesno blanket excuse for look @ cellphone
data in SITA
1. This is really a Robinson/Chimel case.
5. INVENTORY SEARCH - Bertine
a. When Cops lawfully take your car, they get to search the car and containers without a
warrant when making an inventory list (for safety).
b. Requirements:
i. Government seizure of car that is valid.
ii. Standardized police procedures to search impounded car to limit PO discretion
1. Florida v. Wells pushes this
iii. Not acting in bad faith or for the sole purpose of investigation.
6. VEHICLE REVIEW: To keep car exceptions separate, think about the Scope of each search

27

a. Vehicle exception get to search wherever they have PC, including passenger compartment,
containers, and trunk if there is PC to believe contraband or evidence of crime will be found within.
(Carney)
b. Gant SITA lawful custodial arrest, only get to search the passenger compartment (and nowhere
else, i.e. trunk) if Gant conditions are met. If contraband is found in passenger compartment, trunk
can then be searched.
c. RS and fear for safety Can search interior of car, but limited to search for weapons.
d. Terry Stop in Vehicle Can order passengers and driver out of the car.
e. Bertine Inventory Inventory search is ok w/ no PC, this includes the trunk.

Stop & Frisk Terry Progeny

**RS is essentially a balancing test between PO interests and level of intrusiveness on Ds rights **
Post-Terry continuums:

SEIZURE

Stop

Nothing
Would RP feel
free to terminate
the encounter/
walk away?

Nothing

Would it violate
REP?

Arrest

Need R.S that

criminal
activity is
afoot

De facto

formal

Need P.C

SEARCH

Frisk
Need R.S that
D is armed
and dangerous

Full Search
Need P.C

1. STOP & FRISK: Terry v. Ohio (1968) created reasonable suspicion standard
a. In appropriate circumstances and in an appropriate manner, officers may briefly detain a
person to investigate possible criminal activity.
b. Officers must meet two requirements for a valid Terry Stop and Frisk to be considered
reasonable
i. The stop has to be justified at its inception
ii. The stop has to be reasonable in its scope
c. Facts: Two men casing a building on street, officer approached and patted them down, found
weapons.
d. When does a stop occur? How do we define the line between nothing & stop?
i. A STOP occurs when PO accost an individual and restrain his freedom to walk
away a stop is a seizure and requires RS
1. Only when the officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen.
2. This means there is a category of nothing that requires no suspicion/
justification at all; not all interactions are seizure.
ii. RS STANDARD for STOP (on the street): Would a RPP feel free to walk away? If
no, this is a stop and the PO must have RS b/c 4th Am is triggered.
1. Factors: threatening presence of several police officers, display of weapons,
physical touching, tone/language indicating compliance is required.
(Mendenhall)
2. RPP to walk away standard doesnt work well off the street, b/c no one feels
free to leave when you are on a plane, bus, etc. Newer rule is.

28

iii. RS STANDARD for STOP (off the street): Would a reasonable person feel free to
terminate the encounter? If not, this is a stop and the PO must have RS b/c 4th Am is
triggered.
1. Drayton: This was NOT a seizure because man on bus should have known he
was free to terminate the encounter although he was not advise of his right to
refuse. There were no threats, intimidation, show of force, or blocked exits.
a. Dissent: But he was confined to the quarters of the bus with PO at both
ends.?
iv. A FRISK occurs when there is a careful exploration of the outer surfaces of a
persons clothing all of his or her body in an attempt to find weapons. Reaching
into pockets or hidden areas ONLY if the pat-down reveals the likely presence of a
weapon a frisk is a search and requires RS
1. Need additional justification for a frisk, there must a reasonable suspicion
that the suspect may be armed and dangerous.
2. PHYSICAL FORCE OR SUBMISSION IS REQUIRED Hodari (1991) Police pursuit in
attempting to seize a person does not = seizure.
a. A seizure/stop requires either physical force (laying on of hands or application of physical
force) or submission to the assertion of police authority that has in some way restrained
the liberty of the subject.
i. Running after a suspect or yelling stop is not a seizure that falls in the nothing
category.
ii. Force, touch, intimidating movements, brandishing a weapon, blocking an exit, threats,
commands, and tone of voice can make it a seizure.
b. Show of authority w/o submission is not a seizure.
3. STANDARD FOR SEIZURE Brendlin
a. A traffic stop is a seizure of both the driver and the passengers. No RPP passenger would feel
free to depart w/o police permission.
Definition
i. This case gives passengers 4th am rights to challenge traffic stops.
b. Standard for Stop: Would a RPP feel free to terminate the encounter?
of seizure
i. Seizure requires physical force or submission to authority
summarized
ii. A traffic stop seizes everyone
c. Facts: Car was stopped for no grounds, so seizure of passenger was bad, so arrest for
outstanding warrant was bad (PO was not where he had a right to be).
4. GROUNDS FOR A STOP = REASONABLE SUSPICION
a. RS = For a stop, there must be reasonable suspicion that criminal activity may have been
afoot.
i. More than a hunch or un-particularized suspicion.
ii. RS can arise with a different quantity and from information that is less reliable than
needed for PC to arise.
b. Remember for arrest need PC.
c. Two part Inquiry to determine if police could stop a person:
i. Totality of Circumstances Police can use expertise (Sokolow), and
ii. Particularized Suspicion The TOC assessment must yield a particularized suspicion
that the particular individual being stopped is engaged in wrongdoing, objective basis.
Cortez
1. As grounds for a stop, RS should be individualized and more than a hunch!

29

2. Articulable suspicion, specific reasonable and articulable facts together with

rational inferences from those facts, that reasonably warrant that intrusion.
a. (1) Paying cash for ticket, (2) traveling under fake name, (3) not
checking luggage, (4) traveling to/from narcotics source city, (5)
staying a brief time, and (6) appearing nervous can be used, in
combination, to amount to RS.
d. PAST CRIMES Terry stops can apply to past crimes (not just ongoing) but the crime must
be a felony. Hensley
i. RULE If police have a reasonable suspicion, grounded in specific and articulable
facts, that a person they encounter was involved in a completed felony, a Terry stop may
be made.character and severity of crime generally not to be analyzed
1. RS that a person was involved in a felony ok the Terry stop.
2. This means RS can dissipate, unless its a felony. Cant stop for a past
misdemeanor.
e. ESTABLISHING REASONABLE SUSPICION F
i. Illinois v. Wardlow (2000)
1. Relevant RS factors: unprovoked flight (more than mere non-cooperation),
location in a high crime area, nervous evasive behavior
a. None of these factors alone are enough, but can created RS in
combination.
b. *Note these factors are the same for RS of stop and PC for arrest,
but the quantum of evidence differs.
2. Refusal to cooperate alone is not a R.S. factor, nor can race.
a. Looking at police car and running in high crime neighborhood was
enough for RS.
ii. Traffic stops are considered Terry stops, Cops need only R.S.
iii. ANONYMOUS TIPS FOR RS: Florida v. JL (2000)
1. Need Anonymous Tip + something else to get to RS standard.
a. Anonymous tip law transfers to RS from PC. Need some indication of
basis of knowledge but doesnt need to carry all of the indicia of
reliability required for PC.
2. Anonymous tip with the only corroboration that dude with plaid shirt is on a
corner is not RS. Anonymous tip alone is not enough to meet the RS
standard.
a. RS is based on what PO knew before they conducted the search/stop.
iv. NON-ANONYMOUS TIPS FOR RS: Navarette v California
1. Non-anonymous 911 call is enough for RS to make a stop.
2. Contemporaneous reports are treated as especially reliable.
a. 911 call that truck ran her off the road was enough for RS.
v. POLICE MISTAKE
1. Hein v. N.C. (2014)- PO pulls D over for lack of taillight (1 on and 1 off); law
actually only requires that 1 be on, so PO mistaken about the law regarding
traffic stopHere, PO mistake of law or fact doesnt eliminate RS as long as
the mistake is reasonable (how PO looks at facts at time PO perceives them)
Mistake is reasonable so RS still good and seizure is okay for this stop here.

The Line Between Stop & Arrest - Seizures

30

Deviations from 4th Am Analysis

I.
Gov Action
II.
Search and Seizure (3 different tracks)
III.
IV.

Terry (R.S. for stop)

Administrative/Special Needs
Consent

P.C.
Warrant

**Nothing becomes a stop when RPP doesnt feel free to terminate the encounter; to have an okay stop, PO
must have RSIf line crossed to arrest, PO must have P/C to constitute a valid arrest. Still questions remain
when a PO has RS, but not PC, but essentially, without announcing, performs a de facto arrest on D**
1. THE SCOPE OF A SEIZURE: When to police move from a stop (RS) into arrest (need PC)? No overall
standard, just lots of factors. Its a blurry line!!
a. SCOTUS has no standard for this line. Instead its lots of individual factors for crossing the line
from stop to arrest:
i. Time/length/duration of detention
ii. Degree of intrusiveness
iii. Amount of force
1. Factors that generally indicate an arrest occurred (more than a stop):
Factors
a. Movement between 2 places (like the police station, small private room,
Indicia of
etc),
b.
Drawing weapons
an arrest
c. Handcuffing defendant
d. Placing defendant in squad car
iv. No clear standard, just a few cases to examine.
b. FL v. Royer; this was the functional equivalent of an arrest, not a stop.
i. Government lacks P.C (only had RS to stop him) so the evidence suppressed
ii. Length 15 min detainment at airport interrogation room without consent was too long
iii. Intrusiveness movement to smaller private room out of public view more like an arrest.
iv. An investigative detention must be temporary and last no longer than is necessary to
effectuate the original purpose of the stop. The investigative methods employed should
be the least intrusive means reasonably available to verify or dispel the officers
suspicion in a short period of time.
1. This was a more serious intrusion than an investigative stop, so more than RS was
needed to detain him further.
c. Sharpe 20 min detainment was not an arrest b/c the D helped cause the delay by running from the
Cops (evasive actions of first vehicle) and trying to get extra PO assistance.
i. 15 minutes in Royer was not a bright line ruletime is only a factor
ii. Left car to walk up to camper after 20 minutesthis is a stop, not arrest
iii. Look at the degree of intrusion and the amount of force used to determine if a stop has
become the equivalent of an arrest.
d. Caballes D was stopped for speeding and during the encounter a drug dog sniffed the car. Arrest?
i. A dog sniff of the exterior of the car is permitted as long as getting the dog to the scene
does not prolong the otherwise justifiable stop.
1. New SCOTUS case supports this, too.
ii. Default rule A traffic stop is a stop and not an arrest. Only RS needed for a traffic
stop, but need PC to arrest you for a traffic crime.

31

1. A lawful seizure can violate the 4th Amendment if its execution infringes
interests protected by 4th Amendment.
iii. Holding: This is not an arrest b/c the stop was lawful at its inception and it was done in a
reasonable manner (there was no delay by the dog sniffing the outside of the car).
e. Arizona v. JohnsonQs by a PO not considered prolongation to make something an arrest
f. Rodriguez v. US (2015 supp case)In Caballes, above, dog sniffed car while PO writing D a ticket
no prolongation so everything okay; here, PO prolongs stop by waiting 7 or 8 minutes until dog
arrives after the warning has been issued to D;
i. Dog sniffs are okay ONLY if it doesnt prolong the stop; dog search not within scope of
traffic stop but only unconstitutional if dog search prolongs the traffic stop, which it did
here.
g. Robinette
i. A warning that the person is free to go is not a prerequisite to a voluntary consensual
interrogation/search.
1. Failure to warn that a person can leave does not make the stop into an arrest.
a. PO does not have duty to tell D the exact termination point of the encounter
2. But if the officer DOES tell D hes free to go and THEN D consents to a search, it
cuts toward voluntary consent.
3. However, if a PO classifies something as an arrest, it will almost certainly be held
to be an arrest, even if PO didnt mean for it to beanother factor to consider when
deciding whether something is a stop or arrest.
h. Factors a PO cant consider in Totality of Circumstances Question:
i. Can consider the flight of the D, but cannot consider Ds refusal to cooperate/consent as a
factor playing into RS/PC analysis
ii. Racebeing Hispanic doesnt give rise to PC or RS belief that you may be an illegal.
i.

DE FACTO SEIZURES The Cops classification is irrelevant unless they call it an arrest.
i. Davis: Taking 24 black boys to police station for fingerprinting was involuntary detention.
More like an arrest than a stop because they were moved.
1. This is a de-facto arrest and is an unconstitutional seizure without PC.
2. Involuntary detention during investigatory stage is not okay without PC.
3. The question may come out differently if POs had fingerprinted in the field
ii. Dunaway: Transported to police station, not arrested, not booked, not told he could leave,
took too longafter saying youre not under arrest
1. De-facto arrests require PC, RS will no longer suffice when brought to the
police station and detained for questioning.
2. This was a de-facto arrest. Need PC for this type of seizure.
3. Moving people to station for even questioning tends to cut for the arrest side

j.

TEMPORARY SEIZURE OF EFFECTS

i. Seizures of people analysis applies equally to stuff
ii. Ex: US v. Place
1. Facts: Cops had luggage for 4 days at airport (drug dog alerted after 90 minutes of
holding luggage).
a. Time: Time alone was too long for RS, needed PC to hold luggage 90
minutes.
b. Scope: Too intrusive they never told him how to pick up his luggage, this
would delay his trip

Frisk
32

Search Spectrum:
REP Pat Down/Frisk

Full formal search

P.C.
RS that D is Armed and
Dangerous (associated w/
criminal activity is not enough)

1. PREREQUISITES FOR A FRISK

a. (1) A lawful stop, with RS of criminal activity
i. must articulate specific facts give rise to RS that criminal activity is afoot
b. (2) Grounds for a frisk
i. RS that the person is ARMED & DANGEROUS
1. Ex: Possession is not enough for a frisk, but $1 mil in drugs might suggest A & D (drug
operation/guns)
2. Arizona v. Johnson
a. A & D determination has nothing to do with crime (unlike seizure RS)
b. Cops may only frisk you if they have R.S. that D is armed and dangerous (NOT that the D is
associated with criminal activity).
c. Purpose of frisk only officer safety
i. Found gun on passengers waist after traffic stop for expired tags.
d. For a FRISK at a traffic STOP, (1) detention must be lawful and (2) PO must reasonably
suspect that D is armed and dangerous.
3. SCOPE OF FRISK
a. A quick pat down only for weapons on outer clothing, a reach into pockets or hidden areas is
permitted ONLY if the pat-down reveals the likely presence of a weapon.
i. Plain feel idea if they feel something that feels like a weapon, they get to grab it (its then
admitted if drugs or weapon, but it must legitimately feel like a weapon).
ii. Cant open small containers or squeeze/manipulate pockets.
iii. Armed and Dangerous is the standardSibron v. NY
b. Minnesota v. Dickerson (1993) Cops felt up dude and it felt like cocaine. This is not admissible b/c
not a weapon.
i. Only get a search for weapons, cant manipulate/ squeeze pockets to find evidence.
1. Focus is on PO safety by finding weapons.
2. IF PO have grounds for Frisk and find gun, it can be taken immediately and used as basis
for a prosecution.
c. Michigan v. Long (1983) If cops believe D is A & D and can get a hold of weapons within the car,
they can search the car for weapons even if D is outside the car and hunting knife was in floorboard.
i. A frisk and a limited search of the interior of a car are permissible for areas where a weapon
can be hidden if PO has individualized suspicion that suspect is armed & dangerous and can
gain immediate control of the weapons.
1. Search of passenger compartment and frisk were justified b/c PO believed suspect was
dangerous and may gain immediate control of weapons if he broke away from their control
outside the carcase allows, essentially, a frisk of a car

Administrative/ Special Needs Exception to Warrant Req.

1. FACTORS TO CONSIDER FOR SPECIAL NEEDS EXCEPTION:
a. REASONABLENESS STANDARD: Special Needs cases dilute either the PC or warrant
requirement. Instead of requiring individualize suspicion, a relaxed reasonableness standard
applies.

33

i. We balance the importance of the administrative objective/public interest in enforcing

safety codes against the scope/degree of the intrusion, degree of discretion the official
has, and the expectation of privacy.
1. This is a relatively limited invasion of the citizens privacy because they arent
personal in nature or aimed at discovering evidence of a crime.
b. Camera: Original administrative needs case
i. Local government can enter home to inspect for housing code without normal PC, but
the inspector needs a warrant.
1. Warrant can be based on passage of time, nature of building, and condition of
entire area.
2. Dont need individualized suspicion for the specific dwelling. Showing that
location to be inspected was chosen according to a proscribed, neutral plan is
required to obtain a warrant.
ii. No PC needed for administrative search as long as reasonable legislative or
administrative standards for the inspection are satisfied with respect to a
particular dwelling.
1. Look for neutral criteria to prevent the administrative search from
becoming a pretext for an investigative attack.
2. NO individualized suspicion is needed, but look at the entire program
broadly.
c. No single theory/standard for special needs
d. Factors to consider:
i. What is the purpose of the search? General societal benefit? Is there a special need
apart from general police activity?
1. Warrantless searches of licensed or closely regulated businesses are okay
(liquor, guns).
2. Factory, safety, OSHA, etc
3. Safety (an important one)
ii. Extent of police discretion
1. I.e. checkpoint v. roving checkpoints
2. Neutral, standardized criteria?
a. Terry used RS, special needs require the search/seizure to be conducted
pursuant to neutral criteria which guards against arbitrary and
selective enforcement.
iii. Intrusiveness of police activity
2. TYPES OF ADMINISTRATIVE/ SPECIAL NEEDS Individualized suspicion NOT required
a. 3 factors that may cause something to fall into inspection/administrative category
i. Law enforcement activitysearch? Stop? How intrusive is it?
ii. Purpose of the law enforcement activity?
iii. PO activity roving? Or is it a checkpoint?
b. Safety Inspections There still needs to be a warrant but PC is relaxed if there are
administrative standards
i. Ok if no individual suspicion, area wide inspection, limited invasion
ii. City of LA v. PatelRecords of guests from hotel owners turning these over to the
policethis administrative search where a warrant is not necessarily required needs to
be very narrow-court admits that here, hotel owners do get to challenge the PO demand
for information on hotel guests.
c. Border Searches Routine border inspections are fine w/o PC or warrant to detect for illegal
aliens.

34

i. Presumptively ok for routine border inspections (going in or out) for safety purposes.
Mere crossing the border is enough, no PC or warrant required. US v. Ramsey
ii. For non-routine personal searches (strip/cavity searches) you need R.S. But not R.S. for
things (like cars)if typical search, PO literally need no grounds.
d. Vehicle Checkpoints (not on the border) [checkpoint ok, roving need R.S.]
i. Fixed checkpoints generally ok w/ no grounds or warrant, but there must be neutral
criteria [which is that they can only search people moving through the checkpoint,
roadblock limits Cop discretion]
1. For roving checkpoints, there must be R.S. b/c w/o this there is no limit on
discretion.
ii. DUI Checkpoint v. Drug Checkpoint
1. Checkpoint for DUI ok b/c special needs beyond traditional law enforcement
(drivers dying, DUI is a serious social problem), limited intrusion, and no
discretion at a checkpoint.
2. Drug roadblock no special need, only traditional police work so checkpoints
arent okay, this is ordinary criminal wrongdoing.
iii. Suspicion-less Stops for Investigation of Past Crimes: (Lidster)
1. Checkpoints are also okay to ask public for help/witnesses in another case if
not for investigating the crime of the driver.
2. Even where the original purpose is administrative, contraband or
incriminating evidence obtained may be admitted in a criminal
prosecution.
a. His DUI was admissible, although the checkpoint was for help with a
past crime.
e. Terrorist Checkpoints ok (McWade v. Kelley)
i. Searches in NYC subways and ferries are ok b/c there was some neutral criteria
(everyone was searched, random searches which limits police discretion, government
interest is high).
f. Search of Students (this is a special need)
i. Public school activity is government action.
ii. No warrant need for school official to search student, but need R.S. at inception for a
full search and the scope must be reasonable.
1. Must have reasonable grounds for suspecting that the search will turn up
evidence that the student is in violation of either school rules or the law
(searching purse for cigarettes, found weed)can do it on diluted grounds of
RS, no PC requiredbalance the schools interest in safe and good learning
environment with students privacy needs
2. Strip search needs higher justification PC is required
a. United School District #1 v. Reddingstrip searching teens for
possession for advil needs higher grounds
g. Drug Testing
i. Safety and security employees (who carry a gun/ employees on front line of drug war)
are in such dangerous positions that drug tests w/o any suspicion or warrant are ok
(government need > individual privacy).
1. But mandatory drug screening not okay for public office candidates (not highrisk, safety-sensitive tasks).
ii. RR employees urine take after a wreck are ok
1. Special needs special danger of this position
iii. Schools can get urine of students in competitive activities. (Acton)

35

1. Method is not intrusive, need to detect drug use is high.

h. Probationers (never sentenced to prison) and Parolees (sentenced to prison but released on
good behavior) can be searched without a warrant unless it is arbitrary, capricious, or harassing.
i. Probation (Knights) blanket consent w/ RS, search is ok
ii. Parole (Samson) blanket consent with nothing (no grounds), search is ok b/c
there are special needs. He had reduced REP for being on parole versus in jail, no
individualized suspicion is necessary.
1. Rationale:
a. Parole is much closer to prison than probation
b. Parolees have several diminished expectation of privacy
c. Huge government interests in reducing recidivism and promoting
reintegration, maintaining supervision and discipline.

Consent Searches Must be Voluntary

If there is NO 4th Amendment activity (no search or seizure), is it a Terry or Special Needs case?
If it was 4th Amendment activity, was there consent? If consent, this is an exception to the warrant and PC
requirements, so search/seizure can be ok with NO justification.
Officers can properly seize any contraband or evidence observed in plain view while within the proper
scope of the consent search.
1. STANDARD: CONSENT MUST BE VOLUNTARILY GIVEN BASED ON THE TOTALITY OF
THE CIRCUMSTANCES
a. Schneckloth v. Bustamonte
i. Brother of car owner (driver) consented to search, stolen checks found and passenger
charged.
ii. Consent must be: [4A WAIVER STANDARD IS LOW]
1. Voluntarily, under the totality of the circumstances.
2. Not the result of duress or coercion, by either implied threat or covert
force.
iii. D does not have to know they can refuse a voluntary search like this, so valid waiver is
easier for the government to get.
1. Rights can be waived w/o knowledge. Dont have to know of your right to
refusePO doesnt have to inform D he has right to refuse
2. 4th Amendment: You dont have to know you have this right to give it up.
3. 5th & 6th Amendments: Must know you have the rights to give them up.
b. Important voluntary factors:
i. Ds subjective knowledge of right to refuse consent (a factor, but not determinative),
ii. Subtly coercive police tactics (confined to a small area, drawn guns, etc),
iii. If in custody (closer to involuntary),
iv. Vulnerability of D (age, intelligence, education level, emotional state),
v. Unconstitutional seizure (presumptively bad consent, becomes a fruit)
c. The Role of Custody:
i. If D is in Custody, custody is unconstitutional (No PC); If bad custody, fruit of consent
is tainted/invalid;
ii. If custody is good, have grounds for the stop; weighs heavily toward consent being
involuntarybeing in good custody seems to cut against voluntary consent.
2. INVOLUNTARY CONSENT:

36

a. Where there is coercion there cannot be consent. Bumper

i. Bad consent if police allege to have a warrant that they dont have, this is NOT
voluntary consent (claim to have authority that PO doesnt actually have) No answer
yet about consent in relation to PO threatening jail
b. Consent by deception (by an undercover agent) is fine (Krause; Lewis)
i. You cant trust everyone. If undercover cop acts as a friend and you give consent its
NOT an illegal search.
ii. However, if PO hiding purpose instead of identity, consent isnt voluntary
c. Implied consentall 50 states have consent laws if you want a DL; if you get DL, youre
consenting to breathalyzers in most places now.
3. WHO GETS TO CONSENT?
a. 3RD PARTIES: People who can consent to a search are those with common authority
which is mutual use of the property by persons generally having joint access or control
for most purposes.
i. Ex: hotel clerks cannot consent b/c they lack joint access and control for most purposes.
b. Illinois v. Rodriguez
i. Facts: Woman had apparent authority and consent to search, but she had no actual
common authority (it was her boyfriends house)
ii. Common authority doesnt have to be actual, it can be apparent if reasonable.
1. She had a key. It was reasonable for PO to think she had authority. This conduct
falls within the good faith exception to the exclusionary rule.
2. If person appears to have common authority and its reasonable, the search is
good.
c. GA v. Randolph (2006) i. With a no and yes given by 2 people in the doorway who both have common authority,
the No wins; Court says that under widely shared expectations no one would enter.
d. Fernandez:
i. Randolph is limited and only applies if both co-occupants are physically present.
1. If PO take away one occupant wrongfully, that invalidates the other occupants
consent. But if occupant is taken away rightfully, remaining occupant can give
consent.
4. UNDERCOVER AGENTS
a. 2 Kinds: Undercover Agents and Confidential Informants
i. Both are state actors, but CIs are not police employees.
b. To the extent one person in the conversation agrees to be taped/transmitted, that kills 4 th
Amendment claims for any others in the conversation.
i. Gouled: Only applies to people known to be in the room
1. Hiding in the closet and recording is a 4th Amendment violation, REP that
government agents arent hiding in closets.
2. You cant consent unless you know someone else is in the room, but dont have
to know its a CI or undercover agent or that its being taped/transmitted.
a. CI taking papers from friends office was a 4th Amendment violation,
exceeded scope of consent he had been given to be in the office.
b. Cant rummage through someones desk when they go to the BR
ii. Government Agent? Yes
iii. Search? No REP was violated if you know person was there and you voluntarily talked
to them. Must expect taking or transmitting or CI.
c. Hoffa v. US (1966)

37

i. CI becomes Hoffas confidant, and hands over this info to the gov.
ii. There is no expectation of privacy and thus no search when one person in the
conversation consents to it being listened to.
1. PUBLIC EXPOSURE/ASSUMPTION OF THE RISK EXCEPTION:
What a person knowing exposes to the public, even in his own home or
office, is not protected by the 4th Amendment.
2. We all assume the risk that there are CIs in our midst and that they are
transmitting our conversation. There is no 4th Am right in a wrongdoers
misplaced belief that a person to whom he voluntary confides his wrongdoing
will not reveal it.
iii. Consent is valid and this isnt a search. Misplaces confidence is not a 4 th Amendment
violation.
Law Enforcement Activity
1 usual, D talks to known gov agent
2- D talks to known gov agent but its taped
(Lopez)
3 D talks to unknown gov agent/ CI (Hoffa)
4 D talks to unknown agent/ CI whos taping &
transmitting (via wire) to 3P PO (White)

Form of Evidence at Trial

1 agents gets to recount thru testimony, OK
2- Agent gets to play the tape recording - OK
3 CI testifies (or undercover agent), OK
4- Only gov agent who heard transmission testifies
and uses recording- ok

d. The electronics used do not affect whether a search has occurred.

i. Also, White says the Katz REP doesnt change the Hoffa analysis b/c we assume the
risk. CIs dont violate a REPtechnology doesnt change anything
e. #4 is okay above so we have to be wary!!
i. B/c the unsavory CI doesnt testify, hes not subject to cross. Thus, cannot use bias
impeachment on 4. Thats a problem.

Network Surveillance
1. MAJOR TOPICS:
a. 3rd Party Doctrine once you voluntarily convey info to a 3rd party, you assume the risk they
will give it to the government
i. Ex: Miller (banking records) and Smith (pen register case)
b. 1 Party consent If 1 person in conversation consents to giving it to the government, its not
considered a search (Hoffa)
c. Content/Non-Content distinctions
2. CONTENT INFORMATION IS PROTECTED:
a. Ex: text of emails, content of packages, content of phone calls.
b. EMAILS: US v. Warshak (2010)
i. 6th Circuit says that we have a REP in our emails, and that the government needs a
warrant to acquire them.
1. REP Analysis:
a. (1) Subjective expectation of privacy?
b. (2) Society objectively accepts this as a REP? (this is most important)
ii. Facts: Government asked ISP to start saving his emails, which violated his REP. Giving
emails to 3rd party doesnt change your REP in their contents.
iii. Analogize to:
1. Phone calls cannot listen to and intercept them

38

2. Letters (ex parte Jackson) cannot open sealed packages

iv. Circuit Split: The 11th Cir (Rehberg v. Polk) said emails have no REP. Treated emails
like bank records using 3P doctrine. No opinion by SCOTUS.
c. POSTAL MAIL: (ex parte Jackson)
i. The content of mail is protected (they cannot open it), but the outside is not (mail
cover) under the 4th Amendment b/c voluntarily conveyed to 3rd party.
1. Government can keep mail cover records of who you send/receive mail from,
this is NOT a search.
ii. Giving letters to post office doesnt waive right to privacy in the contents.
iii. 1st class mail cannot be opened but, on occasion, lesser classes can be.
d. PHONE CALLS
i. Warrantless interception of phone calls will violate the 4th Amendment.
1. If 1 person agrees to let third parties listen, its like Hoffa and not a search, but
bugging a phone without permission is a search. Need a warrant unless there is
consent.
2. Private hackers are not government actors. If they hack you and post it online,
this is not a 4th am violation, no search.
e. Materials posted on web w/ no passwords or securities are not Searches, no REP.
3. NON-CONTENT INFORMATION No REP, not a search
a. There is no REP in non-content information, not protected by the 4th Amendment because
there is no reasonable expectation of privacy.
i. Ex: addresses, email addresses, phone numbers (mail covers and pen registers)
b. Smith v. Maryland
i. The phone numbers we dial and length of time on the call are not protected b/c
voluntarily conveyed doctrine, no REP because we assume the risk they will be
disclosed (like an operator).
1. Third Party Doctrine: No REP in information you voluntarily convey to
third parties. Hoffa and Miller
a. Think about Jones and Jardines: There would be no search in any of
these situations because there is no physical trespass (email, ISP,
phone, postal mail).
ii. Pen register is like a mail cover. Phone company began keeping records and found he
dialed robbery victim.
c. Miller All banking records and financial records are voluntarily conveyed to 3rd party, no
REP.
i. Congress responds with Right to Banking Privacy Act, look under statutory right to
privacy.
ii. Welling says this should be a content case, but court said its non-content.
d. Mail covers (everything on the outside of an envelope (address, recip, weight, etc)) not a
searchonly if USPS opens it is it a search
e. BULK SURVEILLANCE
i. Get tons of info on lots of people and map movements, etcnon-content
f. CLSI
i. Call site location infocircuit splitnot govt search when collect cell site info v. was
a search to collect cell site location infono SCOTUS case on it just yet
1. Reynolds
a. Real time location of suspect; here, cops use historical record of cell
phone location to say D was @ home when porn was downloaded and
used other members location devices to prove they werent at home
Judge questions reliability but ultimately okays this practice this time

39

b/c records used to show less that D @ home and more that other
members of the household were not.
g. CASES FROM LOWER COURTS (NOT SCOTUS): These new cases make
Jones/Jardines seem very unimportant.
i. Skinner:
1. There is no search when the government pings a cell phones location.
a. Voluntary use of phone and communicated with 3rd party tower. No
physical trespass because its done at cell companys office
(Jones/Jardines).
In Crim pro, we only care about police activity that yields evidence, b/c it can result in a motion to
suppress and the 4th am can apply. If police activity yields no evidence, we dont care.
4TH AMENDMENT ANALYSIS:
o (1) Identify evidence to
be suppressed
o (2) - Look at Police
activity that created the
evidence, then work
backwards to ensure the
police activity was valid.
(1) Evidence to be suppressed?
Cocaine
(2) Cocaine came from frisk, was
the frisk good (at Inception and its
Scope?)
o Search/Frisk Analysis
Inception R.S.
that D is armed and
dangerous
Inception
Answer porn investigation and drugs do NOT get you to Armed and
Dangerous (remember crime alone doesnt matter). An anonymous tipster thats
scared of D is not enough.
Scope quick pat down for weapons,
Cop exceeded the law here. Hard to argue that a vial is a weapon.
o Seizure:
Stop Standard Would a reasonable person feel free to terminate the encounter?
No, guns are drawn and this is clearly a stop.
Arrest intensity and duration (answer maybe an arrest)
Guns cut for arrest, but he wasnt moved and it was quick.
Probable Cause Required - If arrest is good, cops get a broader scope at
inception; like Chimel SITA.
o Inception P.C. = fair probability or substantial chance.
o Anonymous tip (Totality of Circumstances w/ these 3)
Reliability none

40

Basis of knowledge no
Corroboration yes (from Georgia, assumed non at Best
Western)
(1) Evidence to be suppressed? Other stolen items in search of their persons
(2) Is that search ok? From formal arrest so this is a SITA
o SITA Scope area immediately w/in Ds control fine here
o Inception need a good arrest then
No warrant, this is in a public place
A good arrest requires probable cause fail probability or subl chance, examining the
ToC
Facts for P.C.:
(1) Ds told a false story (from police station)
(2) Proximity of Ds to Crime (facts from police station)
(3) Police Expertise
(4) Screwdriver which he denies owning
(5) Walking down street w/ TV
o First 2 facts came from placing them in an unlocked room. If invalid, strike them from P.C.
determination because they are probably fruits of an unCl seizure.
o When they took Ds downtown, this became a de facto arrest:
Moved to police station, 1 hr (length), ignore police categorization
Warrant not needed public arrest
o P.C. based on 3-5? Close call; other cannot be used because they are bad fruits.

41

5th Amendment- Interrogations & Confessions

No person shall be compelled in any criminal prosecution to be a witness against himself.
The 5th Amendment protects against self-incrimination.
1. WHEN DOES 5th AMENDMENT APPLY?
a. 3 types of law for interrogation and confession:
i. Privilege against self-incrimination
ii. DP clause
iii. 6A right to counsel
b. Investigation D is Arrested: 4th Am
c. After arrest, Interrogation and Confessions 5th Am
i. 5th When police interrogate you and you confess, what are the procedural safeguards?
Whats the range of acceptable police conduct?
ii. Police must (1) give Miranda warnings, (2) honor invocations of the right to
counsel, and (3) obtain a valid waiver of 5A rights before getting a confession
2. BACKGROUND TO MIRANDA:
a. Until 1966, the Due Process Clause was the only limit on police behavior during interrogation.
i. Due Process Inquiry: Voluntary confession under the Totality of the Circumstances?
1. DP test was not a bright line rule, hard to administer by PO.
2. Focus was on the reliability of the interrogation, methods are now the focus.
b. Case Timeline
Old law 5th only

crime

Miranda moves back

5th to Custody and
Interrogation

custody & interrogation

applied in criminal trials

trial

conviction

3. 5th AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION:

a. No person shall be compelled in any criminal prosecution to be a witness against himself.
i. This is the only portion we care about.
b. Pre-Miranda, this meant D doesnt have to take the stand to avoid the cruel trilemma:
i. Contempt refuse to take stand
ii. Perjury asked and say no (lie)
iii. Confess say yes
c. The Miranda Court finds compelling pressures in custody and interrogation, before the criminal
trial. Court redefines compulsion.
4. Miranda v. Arizona (1966)
a. RULE When the state has a D in a custodial interrogation, D MUST be advised of the
following rights before questioning begins (bright line rule):
i. Right to remain silent
ii. Any statement he does make may be used as evidence against him,
iii. Right to an attorney
iv. If cannot afford one, an attorney will be provided for you
1. Must be both (1) D in custody (2) D being interrogated
a. This creates the compelling atmosphere and triggers Miranda warning
requirement.
2. Bright line rule it must be articulated (even if D knows the Miranda
warnings), or the statements stemming from custodial interrogation, whether
exculpatory or inculpatory, are inadmissible.
b. EXCLUSION REMEDY If the state doesnt give the Miranda warnings, subsequent
statements are all suppressed, whether exculpatory or inculpatory.

42

i. Same remedy as 4th Amendment

c. INVOCATION Once warning is given and right to remain silent/right to an attorney is
invoked, it must be obeyed.
i. If the right to remain silent is invoked, the interrogation must stop immediately.
ii. If the right to counsel is invoked, the interrogation must stop until an attorney is
present.
d. WAIVER Valid waiver is NOT presumed from Ds silence after warnings, must show it was
voluntary, knowing, and intelligent.
i. Still must give warning even if D says he knows Miranda rights (NO subjective
inquiry).
ii. But this knowing waiver doesnt require it to be wise. A stupid waiver can still be
knowing. Cops can prey on stupidity.
iii. Wavier is a heavy burden for the prosecutor to show.
5. CLARITY/ADEQUACY OF WARNINGS - Duckworth
a. The warnings do not have to be given exactly, there is no rigid rule of an exact formulation. There
are no magic words from the Miranda decision, but Welling is suspicious of POs changing the
language.
b. ASK: Whether the warnings reasonably convey to a suspect his rights as required by
Miranda. Exact language is not required.
6. NO ADDITIONAL WARNINGS ARE REQUIRED: There is nothing else required than the 4
Miranda warnings
a. No Right to be made aware of the subject matter of the questioning. A valid waiver can occur
when D is not informed of all the information that would be useful in making his decision to
waive his 5A rights.
i. Colorado v. Spring Cops asked about guns, get waiver, then ask about homicide; Ds
Attorney said it was ineffective waiver by bait and switch? Wrong!
1. Miranda doesnt require the topics of the interrogation to be revealed to
you.
2. Anything you say or do can be used against you
a. 5th Am advice is NOT crime by crime advice, differs from 6th Am right
to counsel which is crime by crime
7. MIRANDA PREREQUISITES:
(1) CUSTODY
(2) INTERROGATION
(3) TESTIMONIAL EVIDENCE admitted at trial
(need all three for 5th am privilege against self-incrimination to attach)
a. CUSTODY: (memorize) Would a reasonable person in the suspects position understand his
freedom to terminate questioning and leave? If yes, no custody.
i. A formal arrest is clearly custody.
ii. Objective test We dont care about subjective thoughts of D or Police; how would a
Memorize the
reasonable person think?
1. Important objective factors (looking for compulsion):
definitions of
a. Length of time of the interrogation
custody and
b. Location of the interrogation, place take to (secluded, transported to
interrogation
stationhouse cut towards custody) (public place less likely custody)

43

c. Police- dominated environment, number of cops present, show of

authority (more cops cuts toward custody)
2. Not a factor
a. D can never use the fact that a Miranda warning is given to cut towards
custody (announcement does not = compelling atmosphere)
b. Unarticulated PO intent (subjective intent) is NOT a factor.
c. Ds personal characteristics, unless the PO knows about them and
exploits them to get a confession.
iii. JDB v. North Carolina:
1. Age impacts reasonable person standard in the custody analysis.
a. Reasonable child might feel pressured to submit to PO questioning
when a reasonable adult would feel free to go.
iv. Howes v. Fields:
1. Prisoner taken from cell was being interrogated, but not in custody because he
could have asked to go back to his cell. No Miranda warning is required.
2. Imprisonment alone is not enough to create custodial situation.
v. **Note this custody analysis is very similar to the 4th am arrest analysis, but the court
doesnt care.
1. The 5th am custody test is entirely different from the 4th am
2. Do not cross site them!!! But if you were.
a. Stops would not be custody, formal arrest would be in custody and who
knows with de facto arrest (24 fingerprinted kids in custody?). Dont do
this though.
3. **A traffic stop is not custody, Cops dont have to Mirandize with traffic stops
because its short, in public, and usually one officer so its not police-dominated
b. INTERROGATION (Rhode Island v. Innis) (memorize) Express question or its functional
equivalent, which is any words or actions on the part of police (other than those normally
attendant to arrest and custody) that the police should know (this is police mens rea, negligent
too) are reasonably likely to elicit an incriminating response.
i. Break it up: (1) Police words/actions that (2) the police should know (3) are
reasonably likely to elicit an incriminating response.
ii. A practice that the police should know is reasonably likely to evoke an incriminating
response is interrogation.
1. Focus more on suspects susceptibilities and the knowledge officers had at the
time.
iii. Facts: D speaks up after overhearing the Cops discussions about handicapped children
getting a hold of the gun.
iv. Holding: No interrogation b/c Cops could not have known that convo about
handicapped children was reasonably likely to elicit an incriminating response from D.
1. NOT (2) an interrogation even though he was (1) in custody. NEED BOTH!!!
2. Subtle compulsion is not reasonably likely, thus not interrogation
v. However, if you have both interrogation and custody, we assume PO must advise D of
his rights.
c. INNIS APPLIED Arizona v. Mauro (1987)
i. For investigation the POs purpose/subjective intent matters (should know).
1. Unlike custody where it doesnt matter.
ii. Facts: Police let in Ds wife to see D in custody, it was plainly recorded and
incriminating statements are made.
iii. Holding: Not interrogation b/c wife insisted and this wasnt coercive.

44

1. Dont worry about this case, it doesnt add any law. PO actually knew it was
likely to be coercive, hence the tape recorder. Court gets it wrong.
2. Officers were aware of possibility of incriminating statement, but it wasnt their
purpose in letting her in the room. Court says being aware of the possibility is
NOT should know.
iv. Class Example: D steals furs, Cops dump the furs by the Ds cell; this is interrogation
b/c there is an assumption of guilt.
d. BOOKING QUESTIONS EXCEPTION TO INNIS: Innis
i. Questions normally attendant to arrest and custody are NOT interrogation
1. Name, address, and related matters are not investigatory, so not a violation of
5A Miranda.
e. UNDERCOVER EXCEPTION TO MIRANDA (Illinois v. Perkins)
i. Miranda warnings are not required when the suspect is unaware that he is
speaking to a PO and gives a voluntary confession.
1. Police dominated atmosphere and compulsion are not present in this situation
ii. PO poses as fellow prisoner and asks suspect about the crime.
1. Because not PO dominated environment, court finds no compulsion, and
therefore, no interrogationokay that fellow inmate AKA undercover agent
didnt mirandize D before he asked D if hed ever done anyone
iii. Definitely in custody and in interrogation b/c they ask Have you ever done anyone?
Too bad.
f.

PUBLIC SAFETY EXCEPTION: NY v. Quarles (1984)

i. PO chase dude into supermarket, he hides the gun somewhere, not mirandized when 4
officers surround him and ask where gun is.
ii. Pieces of Evidence (Start analysis here):
1. Gun is over there testimonialreasonably prompted by police concern for
public safety
2. Gun not testimonial; its a physical object and admissible (Patane Court
doesnt care that its from bad fruit, only about testimonial)5A doesnt really
apply to physical E
iii. Holdings:
1. All 3 pre-requisites are met w/ statement, but it comes in b/c theres a public
safety exception; which is reasonably prompted by concern for public safety.
2. Overriding considerations for public safety justify an officers failure to
provide Miranda warnings before asking non-coercive questions about an
abandoned weapon.
a. Doesnt depend on motivation of individual officers, but they must
be reasonably prompted by a concern for public safety.
i. Contradictory?
b. Hes in custody and being interrogated, but no need to exclude this
evidence and penalize officers for asking questions to protect
themselves and the public.
c. BUT if the statements are coerced or involuntary in this situation,
the DP clause will still exclude them!
iv. Innis would have probably used this exception (handicapped children) but it was before
Quarles.

45

g. TESTIMONIAL EVIDENCE PA v. Muniz (1990)

i. Slurred speech, failing field sobriety test, BAC, physical evidence are non-testimonial
and can be used as evidence even though he was not given Miranda warnings.
ii. Only words coming out of your mouth in which you are communicating content
are excluded if Miranda warnings are not given. Non-testimonial evidence can still
be admitted without Miranda warning.
1. Ds slurred speech admissible b/c the 5th Am only excludes testimonial
evidence.
2. Booking questions are not excluded under the booking questions exception.
3. 6th birthday question was excluded as interrogation b/c the answer actually
communicates whether he can calculate it
iii. Hiibel
1. Stop & Identify law is okay because it is non-testimonial.
2. Your name does not create a reasonable danger of incrimination, NOT
testimonial.
a. Welling says most people tend to ignore this case
8. 5th AMENDMENT DECISION TREE:
a. Custody? Would reasonable person feel free to terminate questioning & leave?
b. Interrogation? memorize from Innis
i. Express question or its functional equivalent, which is any words or actions on the part
of police that the police should know are reasonably likely to elicit an incriminating
response.
c. Testimonial? Words coming out of your mouth where it communicates content
i. Based on 5A, cannot be forced to testify.
ii. This excludes non-testimonial evidence, makes them admissible. Ex:
1. Ds Conduct
2. Slurring of Ds words (dont care about what hes saying)
3. Blood alcohol level
4. Physical evidence
d. Exceptions to Advice requirement:
i. Public Safety Quarles
ii. Booking Questions Innis and Muniz
iii. Undercover where D doesnt know - Perkins jail plant
e. Is the advice sufficient?
i. Doesnt need to be precisely given, it just must reasonably convey the Miranda
warnings.
f. Was there a valid waiver?
i. Knowing, intelligent, and voluntary
g. Did suspect invoke the right to silent or to counsel?
i. If silence, was right scrupulously honored?
ii. If Counsel, did suspect initiate further communication?
h. Is the statement being used for impeachment?
i. If D testified against himself, statement can be used for impeachment only.
i. Is the evidence a fruit of the 5A violation?
i. If yes, it should be excluded if not too attenuated.
j. Even if no 5A violation, was the confession voluntary under the DP ToC test?

Invocation or Waiver
46

The voluntariness of a waiver of Miranda rights it separate and distinct from the determination of the
voluntariness of the confession under the Due Process Clause.
1. INVOKING THE RIGHT TO COUNSEL:
a. CAN ONLY ASK FOR COUNSEL: Fare v. Michael C
i. D can only invoke your right to an attorney, you cannot invoke your right to other people.
1. No right to see probation officer, saying probation officer doesnt per se invoke
right to counsel. Or wife.
b. D MUST INVOKE RIGHT HIMSELF: Moran v. Burbine
i. Ds sister gets D an attorney, but Cops dont tell the D that lawyer called.
ii. ONLY the defendant can invoke his right to counsel. Things the D doesnt know does
NOT affect validity of his waiver.
1. Attorney or sister cannot invoke for him.
iii. Police lying to this attorney doesnt affect Ds waiver
1. The D must know! D needs actual knowledge for this to affect his knowing waiver.
iv. Waiver: knowing, intelligent and voluntary.
c. RIGHT TO COUSEL CANNOT BE DIVIDED UP: Connecticut v. Barrett
i. There is no qualified or conditional waiver.
ii. Ill talk, but wont give a written statement without lawyer.
1. This was a waiver of his entire right to counsel, cant chop up the right into smaller
pieces (talking/signing).
d. HOW TO INVOKE THE RIGHT TO COUNSEL: Davis
i. Must invoke the right to counsel clearly and unambiguously!!!
ii. D said maybe I should talk to a lawyer. This isnt an invocation.
1. D bears burden of invoking right to attorney must unambiguously request atty,
clarity is required
iii. Cops dont have to stop questioning after ambiguous attorney reference.
2. INVOKING THE RIGHT TO SILENCE:
a. Berghuis (2010)
i. The right to silence must also be clearly and unambiguously invoked.
1. The right to silence and right to counsel are SEPARATE QUESTIONS, but
invocation of both must be unambiguous.
ii. Remained silent 3 hours, but cannot infer invocations from conduct, must be express!
3. WAIVER OF THE RIGHT TO SILENCE:
a. REMEMBER: Invocation? Hard to get, need clarity!! Waiver? Easy to get, dont need clarity.
b. Waiver must be voluntary, and made with full awareness of the right being abandoned
(knowingly, intelligent).
i. Miranda says knowing and intelligent, Berghuis says knowing, intelligent, and voluntary
(know this definition).
ii. 5th Amendment rights are harder to waive than 4th Amendment rights.
iii. IMPLIED WAIVER: (NC v. Butler)
1. Berguis waived his right to silence here, it was inferred when he started talking. A
few Yess after 2.75 hours is waiver.
a. You cannot infer invocation, but you CAN infer waiver.
2. In some cases waiver can be clearly inferred from the actions and words of the
person interrogated, express waiver is NOT required.
a. Ex: silence, understanding of rights than a course of conduct indicating
waiver

47

i. But presume the D did not waive, the prosecutions burden is high.
b. Saying he would talk but not sign was an implied waiver of rights.
c. Almost nothing left of waiver; Court is very willing to find waiver and its
easy to prove
iv. Process: Miranda given (knowing) Understood Uncoerced statement = waiver
c. IS SILENCE ON SOME QUESTIONS A WAIVER? Salinas: Plurality Opinion
i. Facts: D came to station to clear himself of murder. Remained silent on shotgun questions,
answered others. Prosecutor used silence at trial.
ii. 3 Groups of Judges:
1. 3 said NO 5th Amendment because privilege is invoked by remaining silent
2. 2 said No 5th Amendment because even if he tried to invoke there is no 5th
Amendment right to silence before custody, and there was no custody here.
3. 3 said 5th Amendment violation because shuffling and silence should be inferred as
an invocation of the right to remain silent.
4. Plurality Rule: Welling thinks (2) No 5th Amendment right to remain silent
unless Miranda prerequisites are met, including custody.

D has Invoked, Can the Interrogation Resume?

Custody + Interrogation + Testimonial Evidence
Miranda advice is required
Is there are exception? Public safety, undercover agent, booking questions
Was advice given? Was is sufficient?
Did D invoke rights?

YES
Which Right?
Rt to Silence

Rt. To Counsel

Interr. Ceases

Interr. Ceases

Can be resumed?
(Mosley)

Can be resumed?
No, except..

Can resume if
Mosley factors met

Right is satisfied
(atty present at interr.)

NO
D waived rights? (Vol., knowingly, intelligent)

If yes, admit statements.

If no, in limbo bc waiver is easy and
invocation is hard.

14 day break
in custody (Shatzer)

48

D waived right to
counsel (Edwards)
(D initiates + V/K/I)

1. RE-INTERROGATION AFTER AN INVOCATION OF RIGHT TO SILENCE (much easier to give

up than your invocation to see an attorney): Michigan v. Mosley
a. Whether questioning can be resumed after rights (either counsel or silence) are invoked
depends on whether the Ds right to cut off questioning was scrupulously honored.
b. This means:
i. When suspect invokes right to silence the interrogation immediately ceases
ii. Suspended questioning entirely for a significant period of time,
iii. Ask about a different crime upon resumption, and
iv. Need a new set of Miranda warnings.
c. When silence is invoked, Cops can only being questioning again if the above Mosley factors are
satisfied.
d. In Mosley, the incriminating statements were admissible, here are the facts:
i. Mirandized Clearly invokes right to silence about robbery Cops wait 2 hrs
reapproach and give new Miranda warnings waiver, incriminating statements about
unrelated murder.
ii. Second statements were admissible, scrupulously honored.
2. RE-INTERROGATION AFTER INVOKING RIGHT TO COUNSEL: Edwards v. AZ
a. Once the suspect invokes right to counsel he may not be subjected to further interrogation
until counsel is made available to him, unless the suspect himself initiates further
communication and a knowing, intelligent, and voluntary waiver subsequently occurred.
i. This is a strict rule that prevents badgering.
ii. What constitutes initiation under Edwards?
1. Oregon v. Bradshaw Initiation means a general willingness or desire to
discuss the subject matter of the investigation.
a. Court said that Ds statement Whats going to happen to me now? was an
initiation, and waived Ds right.
b. However, D asking where the drinking fountain is at the station house is not
a desire to re-initiate contact under this doctrine.
b. Satisfying the Right to Counsel after D Invokes:
i. D gets to see Counsel (satisfaction of right if Counsel is present during interrogation) or
ii. Waiver requires D to initiate contact with police.
iii. Break in Custody for 14 days (see Shatzer)
1. If right to counsel is invoked, it expires in 14 days and D can be re-interrogated. Jail
time doesnt count as Miranda custody
c. Robinson if D is Mirandized and D asserts right to counsel, the Police cannot initiate interrogation
about crimes other than the one for which the suspect has invoked right to counsel.
i. Invocation of right to counsel is for all crimes.
ii. Mosley says right to silence is different.
d. Minnick Consultation with an attorney is NOT enough.
i. Right to counsel is ONLY satisfied if Counsel is present with D during interrogation.
3. CONSTITUTIONALITY OF MIRANDA
a. After Miranda, Congress tried to overrule SCOTUS w/ 3501, which tried to codify the due process
voluntariness (totality of the circumstances test)and the statute essentially puts forth that
Mirandizing is not required by the constitution.
b. Dickerson says that Miranda wins b/c the Court gets to decide constitutional matters, not Congress.
i. Lack of Miranda warnings can be dispositive, not a totality of the circumstances
approach.

49

ii. Miranda is the prevailing constitutional doctrine, and where it conflicts with 3501,
Miranda is the winnerCourt here says that Miranda is based in the US Constitution
c. **Note Miranda didnt repeal the Due Process/Coercion doctrine. It just added to it.
i. Two Constutional Protections for Confessions:
1. Due Process Voluntariness (totality)
2. 5th Amendment

5th Am Violation Occurs Only when Evidence is Admitted at Trial

4. Chavez v. Martinez (2003)
a. Facts: dude gets shot 5 times and is taken to the hospital, hes in custody and interrogated but no
Miranda. Cop asks him if hes going to die.
b. Can the D bring a 1983 claim for violating the privilege against self-incrimination (no) and due
process (yes)?
c. RULE For a Miranda 5th Amendment violation to occur, the evidence must be used at a
criminal trial!!
i. It is not until use of evidence in a criminal prosecution that a violation of the SelfIncrimination Clause occurs because until then D is not being compelled to be a witness
against himself.
1. Court says a criminal case at the very least requires the initiation of legal
proceedings.
2. If D is not prosecuted, theres no Miranda violation even if he was (1) in
custody (2) being interrogated (3) and gave testimonial evidence.
d. Pure Civil Rights Ps are screwed (b/c no use of evidence at criminal trial), but the P still has his DP
claim left.
i. DPC and 5th Am are independent checks on police conduct.
e. This case establishes no new 5A lawNo real answer as to when 5A occurs? (3 possibilities)
i. Custody + Interrogation + No Advice
ii. Custody + Interrogation + No Advice + Coercive Questioning
iii. Custody + Interrogation + No Advice + E introduced against D at trial
f. Some justices believe that no 5A until iii above. Some disagree, but its why Chavez establishes no
new, real 5A law

Patane & Seibert Important for Admissibility of Fruits of 5A violation

1. Oregon v. Elstad (1985)
a. Ways to challenge the statements: DPC and Miranda 5A
Statement 1
Statement 2 (Mirandized before)
(1) Miranda violation b/c unwarned statements in
(1) At police station, Mirandized, then waived
his home (although D in Custody & Interrogation)- rights admit statements
exclude
(2) DPC ok, not coerced
(2) DPC ok, not coerced
b. D said his second statement is a fruit of statement 1 which was the fruit of a 5A violation; the
cat is out of the bag and the Miranda warnings given before the 2nd statement is meaningless.
c. Fruits of the poisonous tree doctrine doesnt apply to the 5th Amendment.
i. 2nd statement is not a fruit of the 1st statement!
ii. Court declined to apply the poisoned fruit doctrine to a second confession following a
confession obtained w/o giving the D the Miranda warnings.
1. Rationale Court seems to be saying that because a violation of Miranda is not
a violation of a real constitutional right (just a judicially created one to protect

50

privilege against self-incrimination), it is not entitled to the fruit of the

poisonous tree doctrine.
iii. Secondary evidence derived from a Miranda violation should not be suppressed as
a tainted fruitcourt says that Statement #1 is already excluded due to a small
mistake, and not going to let a small mistake produce fruit/issues forever
2. US v. Patane (2004) Physical evidence can never be fruit of a 5A violation
(1) Statement
(2) Physical Evidence
th
5 Am Violation unwarned
Gun it comes in!!
5th Am
a. Is the gun a fruit of the 5th am violation (when Cops asked where the gun was w/o giving full
Doesnt
Miranda, thus unwarned)?
b. No, b/c 5th Am doesnt apply AT ALL to physical evidence.
affect
c. Anytime you see physical evidence, it comes in!! No matter what, even after a 5 th am
physical
violation. 5th Amendment violation excludes the testimonial evidence.
evidence,
i. This suggests that Quarles is still good law, public safety exception to Miranda
but DPC
warnings still forgive the failure to warn NOT a 5A violation so the fruits can come
does
in.
ii. But (and this is important), if its DP violation, physical evidence may be excluded.
iii. REMEMBER: Testimonial is a requirement like custody and interrogation.
Statement
Physical Evidence
5th Am violation
Comes In
DP Violation
Stays Out
3. Missouri v. Seibert (2004) Deliberate 2 step makes Miranda ineffective and a bad fruit
a. Facts: Cops deliberately manipulated Elstad to get an incriminating statement. First, cops
deliberately did not advise D of Miranda, then acquired the statement. They then gave Miranda,
and got another incriminating statement.
i. Stmt 1 unwarned; Stmt 2 - warned
b. Deliberate 2 step warning process makes Miranda not reasonably effective!
i. Court distinguishes Elstad as a good faith Miranda mistake
Miranda violation
ii. Court is looking at Police Mens Rea if on purpose (Deliberately unwarned), the
will be a fruit if
2nd statement stays out (exclusionary rule applies).
deliberately
1. Basically first failure to give Miranda must be a negligent mess-up and not a
unwarned
failure in bad faith if the evidence is admitted.
4. SUMMARY OF MIRANDA FRUITS:
a. A statement obtained in violation of 5A cannot be admitted at trial against D unless:
i. A voluntary statement that was obtained within the Quarles exception for a public
safety interrogation OR
ii. A voluntary statement and the statement is used to impeach Ds testimony at trial, but
not for the case-in-chief.
1. Miranda can be violated by (1) failure to give warnings, (2) failure to get a
valid waiver, or (3) failure to honor the invocation of the right to counsel
b. Evidence that is the fruit of the 5A violation can be admissible (either physical or
testimonial) as long as the statement was not coerced and GF PO mistake on no advice
c. If coerced, the involuntary statement is inadmissible under the DP test.

5A/14A Due Process Revisited Voluntary Confession under

ToC
1. Why is the DP law still important after Miranda? Its broader!
a. DP IS MORE BROAD THAN 5A: It applies to confessions AND interrogations.

51

i. DPC has a broader protection than Miranda (ex: questioning when suspect is NOT in
custody, questioning by private citizens). DPC always applies even when Miranda
does not (which requires custody, interrogation, testimonial evidence).
1. Ex: Fulimente when undercover cop deliberately elicited. No Miranda required,
but DP would apply.
b. IMPEACHMENT PURPOSES: If a confession is invalid under DPC b/c its involuntary, it
cannot be used for ANY purposes; statements obtained in violation of Miranda can be used to
impeach if D takes the stand.
c. PHYSICAL EVIDENCE FRUITS INADMISSIBLE IF DP VIOLATION: Fruits of an
invalid, involuntary confession (DP violation) are ALL inadmissible, even physical evidence
(differs from Miranda and 5A which never apply to physical evidence).
2. Miller v. Fenton Due Process Standard is voluntary (not coerced, product of free choice) based on the
totality of the circumstances
A. DUE PROCESS VOLUNTARY CONFESSION REQUIREMENTS:
i. Voluntary, based on the Totality of Circumstances (all factors),
Due Process
ii. Police subjected the suspect to coercive conduct
Requirements
iii. Ds will was not overborne- Confession was the product of free choice, not coercion
iv. Not extracted by any threats or implied promises, however slight (this factor is very
diluted)
b. Millers important factors under ToC (what do we look for?):
i. BALANCE DS CHARACTERISTICS & POLICE CONDUCT FOR ToC:
Balance and compare the Ds personal characteristics with the Police conduct to find
voluntariness/ free choice.
ii. Ds Personal Characteristics: Irrelevant unless there is police action/coercion
1. Age (32), Education, Mental stability, Sobriety, Experience with justice system
(Jail time?)
a. Preston: 18 and intellectually disabled can make it involuntary. PO
knew he was disabled.
2. Considerable pain/injury, mental & physical illness
3. Its implied that b/c D is not young and not mentally disabled that this is ok
iii. Police Conduct: Must amount to coercive police activity
1. Length of interview and intensity of questioning BIG factor (only 53 minutes)
2. Miranda warnings given, and were they waived
3. Threats
4. PO sort of implied promises (court really doesnt care about these)
5. Lying about factual information (V is still alive, V just died)
iv. This is voluntary under the DPC; the police actions did not produce psychological
pressure strong enough to overbear the will of a mature, experienced man, who was
suffering from no mental or physical illness and was interrogated for less than an hour
at a police station close to his home.
3. US v. LeBrun (2004) Court ignores the promise not to prosecute based on ToC
a. Confession was still admissible despite fairly explicit police promise.
i. Courts used to admit almost anything bc they didnt believe people falsely confessed,
but this is changing now.
b. Facts: cops promise D that if you confess, no prosecution.
c. Holding: this is still voluntary due to lots of other factors:
i. D is highly educated (went to 1 yr of law school)
ii. Length was only 33 minutes
iii. D testified that he had a subjective understanding of his Miranda rights.
d. Case shows that the promise portion of Bram standard is almost meaningless

52

4. AZ v. Fulminanteinvoluntary confessions are possible

a. Facts: Undercover cop in jail promises protection (from threats from his fellow inmates) to D in
exchange for a confession
b. Holding: This is involuntary b/c there was a credible threat of violence.
i. A finding of coercion need not depend upon actual physical violence by a
government agent; a credible threat is sufficient.
c. Significance:
i. Physical violence (including credible threats) will make a confession involuntary
(thus inadmissible) and Court is aware of DPC.
ii. **Note this confession would be admissible under the 5th Am (no Miranda required),
Perkins jail plant idea. This is why DPC matters; the 5th and DPC protect different
things.
5. COERCIVE POLICE ACTIVITY NECESSARY FOR DP VIOLATION: CO v. Connelly State
action requirement
a. Facts: Mentally ill person flies from Boston to Denver to confess to a murder b/c of the voice in
his head (which ordered him to do it). Voluntary? No, but still admissible bc no state action.
b.
RULE Coercive police activity is a necessary predicate to finding that a confession is
Voluntariness
involuntary under the Due Process ToC test.
under ToC +
i. Standard is voluntary under ToC with some level of police action, so there must be
Coercive State
coercive police conduct related to the confession before exclusionary rule applies.
Action
ii. Holding: There is no DP claim b/c no state action, it was strictly from the Ds own head.
Court only cares about police deterrence for the exclusionary rule sanction.
iii. Absent evidence of police coercion, waiver of 5A rights will be considered
voluntary regardless of Ds characteristics.
c. *Note even if the evidence (confession) is not excluded pre-trial, the D may still argue to the
jury that the confession is unreliable at trial.
i. This is a second remedy for a DP violation other than suppression.
ii. D may lose DPC, but can try to win over the jury.

6th Amendment Right to Counsel

PROCESS FOR 6A ON EXAM:
a. (1) Identify the evidence statements? Or physical evidence?
b. (2) Will use of the statements violate a constitutional right?
i. 4th Am? No, b/c of one party consent (White)
ii. 5th Am? No b/c not in custody or interrogation
iii. 6th Am? Says criminal D has right to counsel at critical stages of criminal proceedings.
1. Has 6A right attached? Rothgary
a. Initiation of a formal, adversary judicial proceeding
2. What state activity is prohibited if 6A right attaches?
a. PO cannot deliberately elicit incriminating statement without lawyer
present to be used at trial.
i. Undercover cops cannot deliberately elicit, but can stay silent
without violating 6A.
3. Waiver of 6A right to counsel?
a. Generally, not unless its very clear and explicit (same standard as 5A but
treated more strict in 6A analysis). Must be an intentional relinquishment of
a known right, waiver cannot be inferred under 6A.

53

i. But Miranda waiver can count as 6A waiver if 6A attached before

Miranda waiver occurred.
1. 6th Am says, In all criminal prosecutions, the accused shall enjoy the right to have the Assistance
of Counsel for his defense.
a. EXCULSIONARY RULE: Suppression is the remedy for 4th 5th or 6th am violations!!
2. Massiah (1964) irrelevant if Cop is undercover with the 6th Am
a. Facts: D was indicted, released on bail, and an undercover agent secretly listened in to his
conversation through a car bug.
b. Holding: 6th Am violation when incriminating statements were admitted against the D after
indictment and in absence of Counsel
i. Evidence of his own incriminating statements cannot be used against him if (1)
deliberately elicited by the government without his lawyer present (2) AFTER the
initiation of criminal proceedings against him.
1. Doesnt matter if there was coercive PO action as long as it was deliberately
elicited (this differs from the DP standard).
2. This looks at the state of mind of the officer, not the
perceptions/susceptibilities of D.
c. CRIMINAL PROSECUTION is a requirement for a 6A violation!
i. We hold that the petitioner was denied the basic protections of that
guarantee when there was used against him at his trial evidence of
his own incriminating words, which federal agents had deliberately
elicited from him after he had been indicted and in the absence of his
counsel.
1. Remember: No 4A issue because Hoffa says one person consenting makes it not
a search. No 5A issue because hes a CI and Perkins says D cant feel coerced
and is NOT in custody.
3. Brewer v. Williams (Williams I) Massiah revived for first time after Miranda
a. Facts: mental escapee kills girl, gets transferred by car with Cops after an arraignment, he then
makes incriminating statements after they give him the Christian burial speech.
b. Inquiry
i. Evidence? Statements and the body
ii. Constitutional Violations? Yes the 6th am.
c. 4 factors for 6A violation:
i. Has Criminal prosecution began?here, yes D arraigned
ii. Deliberately elicited by PO? Here, yes Christian burial speech
iii. W/o Counsel?-Obviously
iv. No waiver? Obviously
d. Once adversary proceedings have commenced against an individual, he has a right to have
legal counsel present when the government deliberately elicits statements from him.
i. TIMING: When does the 6th am kick in? With the initiation of criminal proceedings.
The D met this when arraigned, but final law coming in TX v. Cobb.
e. 6A WAIVER (Zerbst): requires an intentional relinquishment or abandonment of a known
right or privilege.
i. Court finds no waiver with this conduct because he consistently mentioned his right to
an attorney. This is weird and waiver was probably was met here because he spoke
voluntarily.
ii. REMEMBER other waiver standards:
1. 4th does not require a knowing waiver, only voluntary. The person does not
need actual knowledge to consent to a 4th am search.

54

2. 5th and 6th these rights must be known to be waived.

a. Voluntary, knowing, and intelligent waiver required
b. Same waiver standard for both, from Zerbst.
f. Holding: 6th Am kicked in on arraignment, detective deliberately elicited incriminating
statements from D (thus bad conduct), and no waiverwhile 5A cases making it easier to infer
waiver from conduct, here the court is not open to infer waiver.
4. Fellars Dont have to be aware of deliberate elicitation for 6A to be implicated.
a. Dont cross cite!!!
i. 5A has requirement of interrogation, which cannot be satisfied by undercover agents
ii. 6A has requirement of deliberate elictiation, which can be satisfied by undercover
agents
1. While there is no practical difference in these two standards, they are different
in the eyes of the court.
5. Patterson D has 5th Am rights (b/c been Mirandized) and 6th Am b/c hes been indicted (this is an
initiation of criminal proceedings).
a. Did D waive 6th am rights along with 5th Am rights? Yes
b. Timeline:
Arrest
Miranda
Waiver
This waiver is NOT sufficient to waive 6th Am b/c its BEFORE
the initiation of criminal proceedings. Cannot waive a right
until it has attached
Indictment
Now 6th Am right attaches
nd
Miranda (2 )
Waiver
This is an adequate waiver of 6A rights b/c its after indictment.
D has the right and can waive it.
i. Cant waive 6A right to counsel until it attaches.
1. This is at indictment, or when you appear before a court.
ii. RULE If all rights are in play (in custody, interrogation, legal proceedings have
begun) one waiver suffices for all rights.
1. The 5th and 6th Amendments rarely overlap, but they do here. Waiver of the 5 th
Am Right to Counsel waives the 6th Am right to counsel (under Zerbst) if the 6th
right has already attached. If 6A right to counsel has yet to attach (legal
proceedings havent begun), and you waive Miranda rights, that is NOT
sufficient to waive your 6A right to counsel. Can only waive whats attached
6. 6A IS OFFENSE-SPECIFIC:
a. Maine v. Moulton:
i. Indicted for crime A 6A attaches
ii. NOT indicted for crime B 6A does NOT attach, no right to have counsel present
because NOT a criminal prosecution if not charged yet so this crime B evidence can
be used against him.
1. The 5th Amendment and Miranda are NOT crime specific, ANYTHING you say
will be used against you and court will not look crime by crime.
b. 6A applies only to the specific crime in which the legal proceedings have begun.
i. The government may still investigate for any crime D has not been indicted on and use
that evidence at trial.
ii. If NOT the same offense, PO can deliberately elicit incriminating responses about crime
2 because there is no 6A right until its a criminal prosecution for crime 2.

55

iii. 6A right attaches ONLY at the beginning of proceedings for EACH crimeMuch
different than 5A attachment, which not offense specific
7. WHAT IS CONSIDERED AN OFFENSE We must parse apart closely related charges Texas v.
Cobb
a. Blockburger Test: To be separate offenses, EACH offense requires proof of an element the
other does not. (BOTH must require a different element)
Blockburger is
i. If yes these are separate offenses for 6th Am purposes
pretty narrow,
1. Different crimes means you may use their statements about the unindicted
basically just lesser
crime b/c the 6th hasnt attached.
included offenses
ii. If no same offense, term of art that basically includes lesser included offense
are considered the
1. Cannot deliberately elicit statements about 1 OR 2 under 6A.If seen as lesser
same offense.
included offense of the same crime under Blockburger test, considered the same
crime for 6A violations and waiverIf 6A attaches for 1 crime, attaches for
LIO
2. I.eIf I have been indicted on a murder charge and waive 6A right to counsel, I
have also waived 6A right to counsel regarding PO Qs about manslaughter
charge
b. Example 1:
Different offense. If indicted for crime 1, and makes
1. Crime 1: A B C
statements about 2, 2 comes in. BOTH require proof of
2. Crime 2: A B D
different elements.
c. Example 2:
Same offense: Only 1 requires proof of a different
1. Crime 1: A B C
element. #2 is lesser included of #1.
2. Crime 2: A B
d. Food for thought on the 6A:
i. No 6th Am law on invocation assumed you have it, but 6A can be waived
ii. 5th Am doesnt apply when police are undercover (Miranda not necessary because you
assume the risk that you are talking to the police).
1. 6th Am does cover undercovers, see Active v. Passive (cant deliberately elicit if
undercover, but can be silent)
iii. Waiver of 5th and 6th is the same, but applied more strictly in 6A, must be clear.
8. DELIBERATE ELICITATION & UNDERCOVER AGENTS:
a. ACTIVE & PASSIVE AGENTS To find a 6th Am Violation with an undercover agent
there must be state action. The agent must deliberately elicit the statements.
i. Undercover agent just sitting there is NOT a 6A violation.
b. Pseudo state action requirement the agent must do something to get the words
i. Line if government deliberately elicits thats a violation. No violation if the agent just
sits there and listens. Undercover must do something to get the remarks (thats the state
action).
c. US v. Henry Agent had some conversations with D as undercover cellmate
i. This violates 6A b/c agent deliberately elicited by doing some behavior to make the
incriminating statements happen.
ii. Active listener case and comes to question the deliberately eliciting behavior of the
government agentEven though FBI informant didnt intentionally ask D Qs and elicit
info through Qs, ct holds FBI could be reasonably sure that D wouldve given answers
enough for deliberate elicitation for 6A violation.
d. Kuhlman - Agent just kept his ears open and only said didnt sound too good. Court says that
this is ok and NOT a 6A violationlimits Henry above and keeps listening posts from violating
6A

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9. WHEN DOES 6A ATTACH? Formal, adversary judicial proceeding

a. Rothgery v. Gillespie
i. FORMAL ADVERSARY JUDICIAL PROCEEDING: Right to Counsel attaches
with the commencement of FAJP:
1. This includes a: formal charge, information, preliminary hearing,
indictment, arraignment, and now an appearance before a judicial officer
a. A criminal Ds initial appearance before a judicial officer, where he
learns the charge against him and his liberty is subject to restriction =
FAJP
2. NO 6A rights for: arrest, search with a warrant, warrant issued against
you, booking.
10. CRITICAL STAGES & LINEUPS:
a. Wade: 6A provides right to have counsel present ONLY at critical stages of the
prosecution.
i. There is no right to have your lawyer present at all times.
b. What counts as critical states? Deliberately eliciting after FAJP and Lineups
i. If no lawyer at pre-trial lineup and 6A was not waived, lineup is suppressed under the
exclusionary rule.

4A Standing & the Scope of the Exclusionary

Rule
Who can object to the Admission of Evidence?
1. 4A ONLY FOR STANDING: Of the amendments we have studied (4, 5, 6 and DPC), standing only
applies to the 4th Am.
a. Standing is now evaluated based on substantive 4A doctrine, rather than property laws.
i. ASK: Was this particular Ds REP intruded on by the 4A violation?
2. LIMITATION ON SUPPRESSION: The standing doctrine is a limitation on the suppression remedy
under the exclusionary rule. If you dont have standing, the evidence will not be suppressed.
3. STANDING RULE Was the DEFENDANTs REP in thing seized or in the place searched
violated?
a. Ways to get standing:
i. REP in the thing seized? Loser Argument- CANT have standing here bc almost always
illegal things being seized, so no REP
1. Ownership not sufficient to give REP (Rakas, Rawlings)
2. Basically there are no REP in contraband. May still be open for other property.
ii. REP in place searched? Can have standing here if there is a REP. (Minn v. Carter)
Look at the relationship between D and the place searched:
1. Absent landlord REP maybe?
2. Tenants/Residents REP yes
3. Overnight social guest REP (Olsen) yes
4. Person present to bag dope for 2.5 hours REP (Minn. v. Carter) NO!
a. What about pizza guy? Etc.

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b. Particularity Requirement there must be a 4A violation of the particular Ds REP (under

the Katz REP rationale). D must prove that their own REP was violated
i. Ex: Unconstitutional search of As house led to evidence of Bs gun possession. B does
not have standing to challenge the 4A violation because it was NOT his house, it was
As, so B has no REP. Government didnt violate 4A rights of the particular D being
prosecuted.
4. REP IN PROPERTY SEIZED? No, loser argument b/c no REP in drugs/illegal guns.
a. Rawlings D had no REP b/c he had no relationship to girlfriends purse (place searched) and
he had no REP in the illegal drugs (item seized).
i. Having an interest in the item seized is not enough to produce 4A standing
ii. PO have warrant to search Xs house; D sees PO, throws drugs in GFs purse, and then,
when purse searched, claimed the drugs (not enough to ask for suppression in this case)
5. REP IN PLACE SEARCHED? Standing appears limited to persons who either own or have some
close connection to the place searched.
a. Rakas 4A violation in car search. D (passenger) had little relationship with the seized car, he
neither owned nor leased it.
i. 4A violation violated REP of owner/driver, but NOT of passenger.Gun and ammo
found implicating robbery by passengers, but no 4A standing for passengers b/c no REP
in car.
b. Brendlin v. CA i. Passengers, as well as the driver, are seized during a traffic stop so passengers have
standing to challenge unconstitutional stop.
1. Court applies Mendenhall seizure test no reasonable passenger would feel
free to decline the officers requests or terminate the encounter.
ii. Facts: car was seized w/ no grounds, Cops see this repeat offender in back seat and
arrest him
iii. Holding: He can challenge b/c he was seized in addition to the driver. Ds 4A rights
were violated, too.
c. Olsen
i. Overnight guests have a REP in other persons house. If PO break in without PC,
guests 4A rights are violated as well as the owner/occupant.
1. Society recognizes a guests expectation of privacy in the hosts home in this
situation.
d. Minnesota v. Carter Limiting the Olsen rule
i. You must have a substantial relationship with a place to have a REP there.
1. Visitors (Ds) who were bagging cocaine for 2.5 hours at another persons
house have no REP in the place searched (under Katz).
ii. Rationale for lack of REP:
1. Purely commercial transaction, not an overnight social guest.
2. Short period of time on premises (2.5 hours), and
3. Lack of previous connection/ social friendship of Ds with house ownerno
real substantial relationship with the actual location, so possibility of REP
diminished
a. We dont know the line between overnight guest and 2.5 hrs of cocaine
bagging. The law is unclear.

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Fruits Doctrine
1. FRUITS DOCTRINE: Evidence must be a fruit of a constitutional violation to be excluded
under the exclusionary rule.
a. This limits the impact of the exclusionary sanction.
i. REMEMBER: Rationale for the exclusionary rule is to deter police misconduct.
b. (1) BUT-FOR CAUSATION REQUIREMENT: For there to be a fruit, the constitutional
violation must be a but-for cause of finding the evidence seeking to be excluded.
i. But-for cause is necessary, but not sufficient for evidence to be considered a fruit.
c. (2) COME AT CAUSATION: Can we be sure this evidence was come at by the
exploitation of that constitutional violation?
i. Cannot be attenuated, and must meet the public policy needs.
2. PROCESS FOR FRUITS DOCTRINE:
a. Identify the evidence
b. Trace backwards to see if its a result of a constitutional violation to see if exclusion remedy
should apply:
i. Default fruits applies to all amendment; 4, 5, 6, or Due Process
ii. Causation: The violation is but-for cause of evidence AND was come at by the
exploitation of that illegality.
1. Exceptions: too attenuated, independent source, and inevitable discovery (these
are limits on the fruits doctrine).
3. BACKGROUND CASES:
a. Wong Sun v. US (1963)
i. Fruits doctrine applies to statements (testimonial evidence) AND physical
evidence. BOTH can be suppressed.
1. STANDARD: Whether, granting establishment of the primary illegality
(the evidence) has been come at by exploitation of that initial illegality or
instead by means sufficiently distinguishable to be purged of the primary
taint.
a. If secondary evidence was discovered by exploitation of the initial
illegality, it must be suppressed.
b. If it is obtained by means sufficiently removed from the initial
illegality, it is admissible.
ii. Causation = But-for and Come at by exploitation of that illegality
iii. Attenuation = passage of time between illegality and evidence can dissipate the taint
1. If attenuated, the evidence is NOT suppressed as a fruit because the causal
connection is remote.
b. EXCEPTIONS TO FRUITS WHERE SUPPRESSION WILL NOT APPLY:
i. Independent Source Exception If government finds evidence not through the
violation, but through a different clean source then it is not a fruit b/c no causation
1. Murray v. US
a. Marijuana wearhouse break in casePO go into wearhouse early,
discover marijuana, then obtain search warrant but not on grounds of
seeing marijuana earlier; marijuana is admissible because S/W obtained
on independent grounds of initial marijuana sightingMarijuana not
suppressed as a fruit
ii. Inevitable Discovery/Hypothetical Discovery Exception If police would have
found this evidence anyway and it was just a matter of time it is not a fruit (e.g. dead
bodies). Nix v. Williams (Williams II)

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c. **Note Apply the Suppression Remedy narrowly, its the last resort b/c costs are so high.
Fruits are limited by the type of evidence and type of violation.
Chart of violations, is the evidence suppressed?
Constitutional Violation (tree)
4A Illegal Search (Brown)
4A Payton (Harris)
4A Knock and Announce (Hudson)
4A Illegal Entry (Segura and Murray)
5A violation for statements without Miranda
warnings (Patane)
6A Violation (Nix)

Evidence (fruit)
Confession suppressed, subsequent Miranda doesnt
purge taint of illegal search
No suppression for statements outside the house (for a
Payton violation), suppress statements in the house
No suppression at all, EVER for K&A violation
No suppression of stuff seen and stuff not seen b/c of
the Independent Source of the warrant
5th NEVER suppresses physical evidence b/c of the
text (must be testimonial to be suppressed)
Court assumes fruits apply to the 6th

4. Brown v. Illinois You must examine whether statements are violations of the 4A, too, not just 5A and
6A.
a. Subsequent Miranda warnings after a 4A violation do not purge a taint.
b. Facts: Illegal 4A arrest Miranda warnings Confession
c. Holding: Miranda doesnt purge the taint of the 4th Amendment violation
i. **Note w/ confessions, look at all amendments 4,5,6 and DPC
d. Factors to determine if that taint is purged:
i. Miranda warnings given (cuts for confession NOT being a fruit)
ii. Totality of circumstances
iii. Length of time between constitutional violation and evidence (long time can make taint
attenuate)
iv. Presence of intervening circumstances (more links in the chain look like attenuation)
v. Purpose/flagrancy of official misconduct (more deliberate should suppress more links to
deter future PO misconduct)
5. PAYTON IN-HOME ARREST VIOLATION: NY v. Harris no suppression for fruits outside of
home from a Payton violation
a. Facts: Payton violation b/c Cops are in a house w/o a warrant (need warrant for in-home arrest).
The D makes statements in the house and outside of house.
b. Holding: A Payton violation is not a continuing violation. The statements in the house are
fruits, but statements outside the house are not. Payton only covers the bad entry to the
home, not the subsequent statements at the police station.
c. 4A violation dissipated when PO took D outside his home to the police stationconfession
outside home admissible and not a fruit of the illegal Payton 4A violation of entering home
without a warrant.
i. Significance: now we ask what kind of constitutional violation?
6. K&A VIOLATION HAS NO FRUITS: Hudson
a. If constitutional violation (tree) is a K&A violation that will NEVER support the
exclusionary remedy, that tree NEVER bears fruit. Any subsequent evidence is admissible
i. Nothing is EVER the fruit of a knock and announce violation.
ii. No suppression this is a bright-line rule because there is no deterrent effect.
iii. Whole category of 4A violation off the table as fruit-bearing here because violation not
serious enough to produce fruit.
7. INDEPENDENT SOURCE EXCEPTION:

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a. Segura & Murray In both cases, the cops illegally entered a house and may or may not see
evidence, but later acquired a search warrant not using information gained for the search.
i. Was the warrant a genuine independent source of the information to remove the
taint of the prior bad entry?
ii. Segura: Bad entry/no warrant see evidence go get warrant re-enter house
1. Can admit evidence NOT seen in original entry, evidence seen originally is
suppressed as a fruit.
iii. Murray: Expands Segura by saying the evidence seen originally CAN be admitted b/c
the warrant is an independent source.
b. Holding: Evidence is admissible b/c the warrant was based on independent sources that were
sufficiently distinguishable to purge the evidence of any taint.
c. RULE Subsequent evidence after a bad search is not a fruit if PO can find different
means (independent sources) for PC for the warrant.
8. INEVITABLE DISCOVERY EXCEPTION: Nix v. Williams (Williams II)
a. Facts: Christian burial speech case
i. 6A violation Statements (found a fruit in Brewer) excluded can body be admitted
at trial?
b. If PO would (not could) have found evidence anyway by another lawful means other than
the constitutional violation, the evidence is NOT a fruit and should NOT be suppressed.
i. MUST establish by POE that the evidence inevitably would have been discovered by
lawful means.
ii. Holding: Body should not be suppressed, b/c court creates inevitable discovery
doctrine. It was just a matter of time before dead body was found, inevitable.
c. Suppression remedy applies to 6A, just like it does to 4A and 5A.
i. This case is the first time a 6A violation is a tree with fruit. Past cases were all 4A
violations.
9. CAUSATION- Hudson How to prove causation for fruits?
a. BOTH but-for AND come at by exploitation of illegality causation are required.
i. But-for alone is not enoughneed extra
10. 5A BAD CONFESSION NOT A POISONOUS TREE FOR PHYSICAL EVIDENCE -Patane
a. 5A is NEVER a poisonous tree for physical evidence. Physical evidence obtained after a 5A
violation is admissible, but testimonial evidence obtained after a 5A violation are NOT
admissible (4A, 6A, & DP apply to physical evidence)
i. 5A violation Physical evidence, no suppression
1. 5A cant be violated by introduction of non-testimonial physical evidence
ii. 5A violation Testimonial evidence, suppressed at trial
1. 5A only violated by introduction of statements at trial.
11. DP, 4A, 6A VIOLATIONS CAN BE POISONOUS TREE FOR PHYSICAL EVIDENCE Seibert
a. Physical evidence can be an excluded fruit of a DP violation (and 4A & 6A violations).
b. Really bad faith 5A violation in sequential confession case will keep out statement 2.
c. Recall, Elstad held that in sequential confession cases, the 2nd statement is NOT a fruit of the 1st
statement if negligent/good faith failure to give Miranda warnings.
d. But Seibert held that the statement CAN be a fruit of 1st violation if it is really bad faith,
reckless, or purposeful failure to give Miranda warnings.
i. ASK: Whether Miranda warnings can reasonably be found effective in these
circumstances? See below:
Physical comes in b/c text of 5th says only testimonial
is excluded (excluding physical evidence wont deter
police)
5A Violation
Statement 1

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Statement 2 may be suppressed if previous 5A

violation is in bad faith, reckless, or purposeful
12. ILLEGAL FRUITS FOR IMPEACHMENT PURPOSES Harris
a. If a 5A violation, statements cannot be admitted for case in chief, but CAN be admitted for
impeaching Ds credibility as a witness if D testifies at trial.
i. If D takes stand, he opens the door to allow government to use statements from
constitutional violation against him as a prior inconsistent statement.
ii. Rationale: Impeachment use only marginally deters police misconduct, and it prevents
perjury.
b. DP involuntary confessions can NEVER be used against D, not even for impeachment.
i. Overbearing Ds will is more egregious because its coercion.
13. Herring
a. Suppression is not automatic, need a deterrent effect on PO conduct (PO must have a mens rea
that is sufficiently culpable via gross/systematic negligence and not plain negligence).
i. This is a 4A case, but Herring limitations on the exclusionary sanction applies to
5A & 6A poisonous trees, too.

Lineups, Showups and other Pre-Trial Identification

Procedures
1. TWO TYPES OF ID PROCEDURES:
a. Pre-trial identifications:
i. Line-up (multiple people line up for V to identify which one is D)
ii. Show-up (just V identifying one D one choice)
iii. Photo array multiple photos to pick from
iv. Photo show-up one photo, binary answer
b. Identifications at trial
2. CRITICAL STAGES FOR 6A TO APPLY - US v. Wade
a. D is arrested and indicted (6A attached), then in a line up w/o counsel.
b. D has a 6A right that applies at a lineup
c. Pre-Trial ID:
i. 6A right only applies to critical stages of the prosecution. Pre-trial lineups are a
critical stage and the lawyer must be present.
1. If not given the right to have attorney present at lineup, then lineup must be
6A
suppressed.
2. Critical Stages: Right to have counsel present
a. Formal, adversarial judicial proceedings
Lineup
b. Deliberately eliciting incriminating responses Massiah
c. Lineup- Wade
Courtroom ID
d. Trial
3. NON-Critical Stages: NO right to have counsel present
a. Showups before formal, adversarial judicial proceedings- Kirby
b. Collecting handwriting sample Gilbert
c. Photo array (Ash)
d. In-court ID?
i. No per se rule that courtroom IDs are the fruit of a bad pre-trial ID procedure,
just apply Wong Sun fruits doctrine.
1. Burden on the state to prove the courtroom ID is from an independent source
(Vs original perception at time of crime, not the unconstitutional lineup).

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3.

4.

5.

6.

2. If the tree is the 6A violation at line-up, the testimony at trial should be

excluded.
3. Wong Sun Factors
a. Prior opportunity to observe the alleged criminal act
b. Existence of any discrepancy between any pre-lineup description and
the Ds actual description
c. Any ID prior to the lineup of another person
d. ID by picture of D prior to lineup
e. Failure to ID D on a prior occasion
f. Lapse of time between alleged act and lineup ID
PRE-TRIAL ID & 5A:
a. NEVER a 5th Amendment argument w/ a lineup, voice sample, handwriting sample,
fingerprints nor blood samples; b/c these are all physical NOT testimonial so theres no 5 th Am
issue because D is not compelled to incriminate himself.
PRE-TRIAL ID & 4A:
a. 4th Amendment is not violated by fingerprinting as pre-trial ID procedure (not a search).
i. BUT fingerprints CAN be suppressed as the fruit of a bad seizure (Davis- 24 youth
transported to police station for fingerprinting was a seizure).
1. Taking down to station (changing location) made if a bad seizure/arrest without
PC
2. On-site fingerprinting could be ok on RS (dicta) and not be the fruit of a bad
seizure.
PRE-TRIAL ID & 6A: Kirby and Ash
a. Even AFTER 6A right attaches, lawyer doesnt have to be present for non-critical stages
i. There are definitely NO 6A rights pre-indictment.
ii. A lawyer does not need to be there for a photo array or photo show-up
PRE-TRIAL ID & DUE PROCESS: Manson v Brathwaite
a. DP applies to ID procedures, but its rare to find a violation of DP because the totality of the
circumstances normally result in admitting the identification evidence.
b. Were looking at reliability here.
i. Factors:
1. Opportunity to view
2. Degree of attention
3. Accuracy of description
4. Witness level of certainty
5. Time between crime + confrontation
c. STANDARD: Whether ID procedure was so impermissively suggestive as to give rise to a
very substantial likelihood of irreparable misidentification (unreliable).
i. Must show: (1) unnecessarily suggestive and (2) unreliable.
ii. DP violation must be very egregious to preclude a lineup from being permitted into
evidence on these grounds.
iii. Perry: NO DP violation when lineup is suggestive unless police acted to arrange the
lineup. This is a state action requirement similar to CO v. Connelly
1. No suppression because D did not set up lineup, witness just looked out
window and said thats the guy who stole my stuff.
2. REMEMBER: Deterrence of PO misconduct is the goal of the exclusionary
remedy, so if PO didnt act there is NO suppression.

Big Overview of the Class

(1) Take each piece of evidence individually what do you want/not want to be suppressed?

63

(2) Trace it back to one of the 4 Laws:

o 4A - Search and Seizure
o 5A Custodial Interrogation does not apply if evidence is physical
o 6A Look for commencement of a formal adversary judicial proceeding
o Due process only applies to confessions and ID procedures, that we know of
SCOTUS has limited the exclusionary rule by:
o (4) Standing specific Ds constitutional rights must have been violated to challenge
o (5) Fruits- evidence must be a fruit of the poisonous violation to be excluded
o (6) Impeachment illegally obtained evidence may be used for impeachment purposes unless a
DP violation
Motion to Suppress means the P may not use the evidence substantively to prove guilt
in the case in chief
But if the D takes the stand and contradicts himself, this evidence may come in for
impeachment.
o (7) Herring says PO must have mens rea above simple negligence.
Look at PO level of culpability.

64