Professor Vanlandingham.

Constitutional Criminal Procedure

Spring 2016

SEARCH

KATZ test: (1) Does D expect privacy? (2) Is his expectation of privacy objectively
reasonable?

Harlans concurrence: reasonable expectation of privacy subjectively held

1. Site or nature of property/data/activity inspected (open fields vs curtilage,
contraband vs non-contraband, content vs non-content)
2. Extent a person has taken measures to keep info/property private: two rules of (1)
knowing exposure to public or otherwise in open view & (2) Whites revelation to a
friend (assumption of risk)
3. Degree of intrusion experienced: How low is that helicopter hovering? Dog alerts on
closed suitcase versus open rummaging through it. Knowingly exposed to the public
vs. police using a peep hole to look.

Knowingly exposing to the public? (Exposing to 1 exposing to all)

o (Objective REP) Steps taken to protect ones privacy (Katz closed the door,
Riley did not conceal well his greenhouse).
Voluntary Relinquishment (VR) to a 3rd party
o U.S. v. White false friends, govt informant had a listening device on him.
Voluntary relinquishing to a 3rd party. No REP.
ANALOGY: is this more like a friend who cant keep a secret, or more
like the secret recording device in Katz?
o Smith v. Maryland no REP in numbers dialed, exposing them to a 3rd party
(Phone Company). Knowing exposure of non-content (metadata) to the public
(even just to a bank, phone company, or e-mail server) is not protected.
Privacy is all or nothing: transmitting addresses to email server, one entity,
= exposure to all!
Assumption of risk approach
Dog sniff is not a search. Just like a pen register, it does not get or expose private
information. Less intrusive. Limited information. Luggage was not open. (U.S. v. Place)
Open Fields no 4th Amendment protection: undeveloped / unoccupied land outside
curtilage: cant be a search even if police criminally trespass.

Curtilage 4th Amendment protection. Test: (1) the proximity of the area claimed to be
curtilage to the home, (2) whether the area is included within an enclosure surrounding
the home. (3) the nature of the uses to which the area is put, and (4) the steps taken by the
resident to protect the area from observation by people passing by.
o Because area is within a curtilage DOES NOT by itself bar police observation
(Police doesnt have to close their eyes). One could fly above like in Ciraolo or
Riley, or climb on top of a truck/bus, or use a double-decker bus, to see above the
fence (anything that anyone can do).
Aerial Surveillance of a Home surveillance conducted from a
navigable airspace from which anyone could fly and observe what is going
on within curtilage, is not a search. (Ciraolo/Riley cases).
If Cops flew too low, not in navigable space and violating FAA
standards, then it would be like a search.
Use of Technology (is it in general public use?)
o Kyllo v. United States Cops used thermal sensors to detect heat lamps used for
weed growing. Court use of sense-enhancing technologies constitutes search;
such technology was not in general public use; and home enjoys protection under
4th Amendment. Right of a man to retreat in his own home and be free from
unreasonable government intrusion. Thermal imaging was aimed at a home by the
government. Heatwaves were not a Knowing Exposure to the public. Public
cannot see heatwaves.
o US v. Knotts Cops placed a beeper into a barrel of chemical used for meth
production. Followed as it was transported on public roads, then briefly lost a
signal and used beeper to pinpoint Knotts cabin. Court: They used public roads
for the most of the time to track Knotts. Beeper also did not gather any
information from Knotts cabin. Canister was sitting in an open field? So court
ruled: Beeper did not reveal information that could not have been obtained from a
visual surveillance.
Remember: Intrusiveness. If they followed him for months, knowing
everywhere he goes, could have been a different question.

SEARCH and SEIZURE

Seizure is
o Property: Meaningful interference with ones possessory interest in that property.
Cannot be land. Land is Real Property.
o Person: When physical force is applied (or threat to use physical force) or if the
person submits to an official show of authority (Stop, Police!)

U.S. v. Jones Police placed GPS tracker in Jones car. Court: placing of GPS tracker
was not Seizure no meaningful interference of possessory interest. However, it was a
search because of governments physical trespass onto Jones car in order to obtain
information.
U.S. v. KARO Beeper installed in a can of ether. Cops followed it, had also a lot of
other info in the warrant affidavit. Court: placing of beeper and tracking it was not
SEARCH. Majority: It was not seizure! No meaningful interference with possessory
interest. Dissent: government asserted dominion and control over can of ether it is
seizure in the basic sense. Possessory interest right to exclude.
Florida v. Jardines Police brought dog to sniff Jardines door. Court: girlscouts have a
license to approach the door and knock, police too when they want to ask a question
But bringing a dog is SEARCH! They do not have implied license to come with a dog.

PROBABLE CAUSE (Fair Probability standard?)

When the facts and circumstances within the officers knowledge and which they have
reasonably trustworthy information are sufficient in themselves to warrant a man of
reasonable caution to believe that an offense has been or is being committed or evidence
subject to seizure will be found in place to be searches
Magistrate issues warrants based on Probable Cause (PC)

Following cases are about Informants:

SPINELLI v. U.S. D was going across state line and to certain residences (observed by
FBI). They also got an informant tip that D was accepting illegal wagers and had two
phone lines. Court not enough for PC, corroborated only on 1 fact two phone lines.

Aguilar-Spinelli Test (not totality of circumstances test):

(1) Basis of knowledge [how did the person get info]
How did the informant get to know what he claims to know
(personal observation, demonstration of lots of detail)?
If the informant did not personally observe, the magistrate
would look for some evidence that the individuals the
informant relied on for his information are in themselves
reliable
(2) Veracity [(a) credibility of confidential information and (b) reliability of information]
Past or repeated credibility (track record)
Usually detail and corroboration enhances the veracity
prong, but can also enhance the basis of knowledge

prong if the detail goes to the informants intimate

involvement in the crime or with the defendant

SPINELLI vs. DRAPER In Spinelli, corroborated only on 1 fact phone line. In

Draper, corroborated on many facts clothes, suitcase, time, etc., so maybe he has drugs
too!
ILLINOIS v. GATES Rejects Aguilar-Spinelli and adopts Totality of Circumstances.
o Anonymous tip about Gates family. Where they lived, how they made money on
drugs. Tip also had procedure of moving drugs from Florida and next trip/date.
Police corroborated on many facts like airplane tickets, car, etc. (although some
facts did not match it is ok if other do). Court said corroboration was good,
Totality of Circumstances test:

Illinois v. Gates: Court rejects Aguilar-Spinelli test and returns to totality of the
circumstances test (less demanding on government)
o A weak showing under either the knowledge or veracity prong can
be made up by a strong showing in the other
Majority: police corroboration goes to support either prong
Dissent: corroboration only goes to veracity prong
o The Court even seems to suggest that the government may not
need either prong if the totality of the circumstances supports
probable cause
Aguilar-Spinelli too difficult to apply for magistrates
(should have greater discretion)
Probable cause evaluation should be practical, fluid, and
based on common sense
PC = Fair Probability

Probable cause is a fair probability based on (OV) facts and circumstances

By establishing PC, police are ensuring that:
a. A search or a seizure is based on individualized suspicion
b. The search or seizure is justified based on objective facts/circumstances
Magistrates two-level analysis:
1. Is the information being offered sufficiently trustworthy?
2. Is the quantum of evidence offered enough to constitute PC?
When mag makes PC determination based on informant HEARSAY, Gates methodology
used to determine trustworthiness of hearsay information

1. Totality of circumstances using two-part test of veracity & BOK

WARRANTS
4th amendment warrant requirements
PROBABLE CASUE
Oath/Affirmation
Neutral and Detached Magistrate
Particular (SPECIFIC).

ARREST WARRANTS
Arrest in a home

PAYTON v. NEW YORK Entered Ds home without Arrest Warrant, seized evidence
linking D to a homicide. Police had PC about D.
o Court: Absent exigent circumstances, NEED Arrest Warrant to enter
suspects home to arrest him.
Steagald v. U.S. RULE: If suspect is in someone elses home need Search Warrant to
look for suspect in that home + arrest warrant for suspect.

If in home, arrest warrant based on probable case is required. Payton v. New York
Arrest of an individual in anothers home. Steagald
Valid search warrant to enter the non-suspects home is required in addition to a valid
arrest warrant for the suspect (unless the suspect spends a sufficient amount of time in the
house so that it can also be considered his home)
The non-suspect homeowner has recourse through the exclusionary rule if criminal
evidence is seized from his home during the arrest
The suspect cannot raise a Fourth Amendment claim on the homeowners behalf (no
privacy interest in the home)
Exceptions
Consent to entrance
Exigent circumstances
Arrest in public without a warrant

U.S. v. WATSON arrested Watson in public place without a warrant based on Probable
Cause. Court: O.K. to do it so long as there is Probable Cause that suspect is a felon! But
must hold PC hearing within 48 hours. (Seems O.K. for misdemeanor too).

Excessive Force
Unreasonable force constitutes unreasonable seizure (illegal seizure under 4th
Amendment), even if with warrant!
Example: shooting unarmed running suspect.
Not excessive force: high speed chase, suspect running traffic lights, crosswalks.
PO hit his car, causing suspects car overturn. Not excessive because suspect was
dangerous to others!
If someone makes a threat to kill cops cant go right away and shoot him. They
can use deadly force is a suspect can kill someone.

SEARCH WARRANTS
Requirements for a valid warrant
Probable cause (to arrest versus to search)
Oath or affirmation
Particularity in location and evidence to be seized

o To limit scope
o To prevent exploratory searches
Issued by neutral and detached magistrate (not neutral if magistrate is involved in the
search or receives a fee for issuing each warrant)

Executing Search Warrant

Neutral Magistrate and Particularity

o Lo-Ji Sales Inc v. New York No Particularity in the warrant what needs to be
looked for/seized. Magistrate WENT with the COPS!!!! This is not Magistrates
job!
Particularity if going to search in a warehouse of stockings, cannot be
box of stockings. Got to say what you are looking for exactly.
Knock and announce rule (common law requirement)
o Richards v. Wisconsin PO knocked / lied they were housekeepers and broke the
door as D tried to slam it seeing they were cops.
Holding:
a
no-knock
entry must be based on reasonable
WHEN POLICE CAN ENTER WITHOUT
KNOCKING AND ANNOUNCING:
suspicion that knocking and announcing would be
Reasonable belief (One objectively verifiable
dangerous (threat of physical violence) or futile or would
fact)
allow for the destruction of evidence (case-by-case
1. Futile
2. Imminent destruction of evidence
evaluation); Court rejects categorical exceptions to the
3. Increased risk of harm to Police
knock and announce rule as was in case of Wisconsin law.
or others.

WARRANT EXCEPTIONS
1. Exigent Circumstance
1. In hot pursuit of a fleeing felon
2. Imminent Destruction of Evidence
3. Imminent flight of suspect
4. Imminent danger to officer or those in proximity (danger doesn't have to be caused
by suspect

5. Community Caretaker (need PC too). Someone has a heart attack, cop sees it
If police create exigency trough their own conduct, key becomes whether they were acting

lawfully

Lawful conduct that creates an exigency doesn't limit exception

Unlawful conduct that creates an exigency will bar application of the exception

Look for trigger - Did cop act lawfully?

If cop enters home under exigent circumstances - he can search any place warrant would
allow!

Standard for justifying Exigent Circumstance:

o PC: Objectively reasonable basis (lesser than fair probability standard)
Police officers HUNCH + at least one objectively verifiable fact.
Reasonableness found out from Totality of Circumstances.
KENTUCKY v. KING Following one suspect, smelled marijuana from another
apartment. Knocked Police! Open Up! and heard movement inside. Thought evidence
was being destroyed, broke the door and went in.
They need a warrant to come in or Exigent Circumstance!
Prof: Doesnt people need to move in order to open the DOOR?
Open the door or Ill
Here was more than just movement?
break it! will not get
Court: Police created exigent circumstance by knocking loud on
exception, evidence
the door, but Police allowed to do so! Their EC was created
wont come in! Threat!
lawfully. No problem!

Hot Pursuit Hypo: Chasing suspect to a house, break in saw evidence in plain view it
will come in! But if purposefully searched for it wont come in.

2. SEARCH INCIDENT TO LAWFUL ARREST (SITLA)

SITLA - Search Incident to Lawful Arrest
Trigger: lawful (officer had probable cause to believe that suspect committed a
crime) arrest (suspect must be taken into custody)
If officer was mistaken, SITLA still applies
SITLA is automatic once suspect is under arrest - no further justification is needed
Key to SITLA Scope: can search person of arrestee and anything within his wingspan

SITLA requirements

No PC really needed.
Valid custodial arrest!
o Probable cause
1. Reasonable belief that (a) the crime has been committed and (b) this
person committed the crime
2. Arrest warrant (if arresting in home)
3. Search warrant (if arrest executed in third-partys home)
Arrest must be substantially contemporaneous with the search
o Search may occur first
1. Police must already have probable cause for the arrest
2. Arrest must follow quickly on the heels of the search (Rawlings v.
Kentucky)
If the search incident to arrest is of the home, the suspect must be arrested within the
house in order for the search to become subject to the exception. Vale v. Louisiana
(police were conducting surveillance on Vales home; they saw him conduction a drug
transaction outside; they arrested him outside and then searched his home)
o There was no exigent circumstances exception because one officer could have
guarded Vales family members while the other officer got a warrant (see p 188
note b). Segura v. United States; United States v. McArthur
Permissible scope
1. Arrestees person. United States v. Robinson (police arrested Robinson for
driving without a license; a search of his person found a crumpled cigarette
package containing heroine; valid search and seizure of evidence?)
Holding: an officer may make a full search, Including inside the
Cigarette BOX! (not just Terry pat-down) of a person incident to a
valid arrest. Even if violation is a traffic one! Got to have an arrest!
Police need clear, bright-line rules for quick application in
the field
No particular justification requirement (cf. wingspan search)
Robinson Dissent (Marshall): container doctrine should have been
applied to the cigarette package (the officer knew it was not a weapon
and it was out of the suspects control)
2. Arrestees wingspan only (rationales: (a) safety of officers/prevent access to
weapon and (b) preservation of evidence). Chimel v. California (police went
to Chimels home to arrest him for burglary; could they search the entire
house incident to arrest?)
Holding: the existence of probable cause required the police to get a
warrant to search the rest of the house (warrant preference view); the
burden of showing an exception to the warrant requirement rests on
those seeking it

Particular Justification requirement: search of wingspan must be

strictly tied to and justified by the circumstances

Note: the intensity of the search does not vary with the
gravity of the crime

Extension of Chimel WINGSPAN rule

Maryland v. Buie Closets and spaces immediately adjoining the place of
arrest from which an attack can launch (no further justification required)
Protective sweep: cursory inspection of spaces where a person could be
found
o Limited in intensity, but not space (entire house subject to
cursory inspection)
o Requires only reasonable suspicion of danger based on specific
and articulable facts
Passenger compartment of the car. New York v. Belton (police pulled over
speeding car and arrested passengers when he smelled marijuana; police searched
car and found marijuana and cocaine in a jacket in the backseat)
Holding: when an officer makes a lawful custodial arrest of the occupant
of an automobile, the officer may search the passenger compartment of
the car (excluding the trunk, but can look inside hatchback because it
is not a trunk) (Court seeks to create a bright-line rule for easy
application in the field)
Police may examine the contents of any containers found within the
passenger compartment (containers: glove compartment, consoles, other
receptacles, luggage, boxes, bags, clothing, etc.) (note: this seems to be a
nod to the limited rationale of Chimel, but the holding undermines
Chimel so much, why bother?)
Belton clarifications
Arrestee must be occupant or recent occupant of the car. Thornton
v. United States (police arrested suspect after he left the car)
o Thornton Concurrence (Scalia): proposes limited Belton to
situations where it is reasonable to believe evidence relevant to the
crime of the arrest might be found (but this undermines Robinsons
lack of a justification requirement)
o This case still leaves open the question of how recent is recent
occupant and how close is close proximity.
A citation (rather than arrest) is insufficient to invoke a
Belton/Robinson search incident to arrest. Knowles v. Iowa (does a
citation authorize the officer to conduct a full search of the car?)
Addition to Belton: Arizona v. Gant Police may search a vehicle after a recent
occupants arrest ONLY if the arrestee is within reaching distance of the

passenger compartment at the time of the search or it is reasonable to believe that

crime-related evidence is located in the vehicle.

SITLA and Cell Phone

United States v. Riley Police seized a phone and searched inside for evidence.
Court: SITLA does not cover phones data. Police may inspect the phone to see if
there are any razor blades attached, but no more. As for evidence, even though it
can be remotely wiped, it does not change anything. It can be wiped before search
and during. Phones have so much private information of our lives in it and must
be protected!
It goes for computers seized as part of SITLA too. Remove batter from
phone/computer to prevent wiping. Turn it off!

3. Automobile Exception

Pretext to a stop any traffic offense committed by a driver is a legitimate legal basis
for a stop (Whren v. U.S.). Police, after a stop, can have PC to arrest occupants if they
find them doing something illegal (Pull over for running a stop sign, smell weed in the
car, arrest occupants and search (without a warrant!)).
Carroll v. United States Automobile exception allows an officer to search a vehicle
without a search warrant as long as he or she has probable cause to believe that evidence
or contraband is located in the vehicle.
o The exception is based on the idea that there is a lower expectation of privacy in
motor vehicles due to the regulations under which they operate. Passenger
compartment also is in a plaint view!
o Additionally, the ease of mobility creates an inherent exigency to prevent the
removal of evidence and contraband.
Chambers v. Maroney PO stopped a car similar to one used in gas station robbery.
People inside were dressed and looked similar to those reported. Police arrested them,
impounded their car and searched the car at the station, finding evidence.
o Court: The mobility of the vehicle alone can easily defeat the warrant
requirement.
If there is probable cause to believe the vehicle contains criminal evidence
and there exist exigent circumstances where the vehicle can be removed
from the jurisdiction, a warrantless search would be reasonable. It made
no constitutional difference here that the search followed the seizure
because the probable cause which developed on the street still existed at
the station house (where the vehicle was impounded).
Coolidge v. New Hampshire Car searched a year and two years after arrest (suspect
was arrested and cars where in Police custody for all that time). Court: Not cool to have a
warrantless search so much time after! (Seems to be later ignored!)

TRUNK - Applies to trunk of car as long as officer has probable cause to believe that
evidence of criminal activity is located there.

Inventory Search:
Not a search for evidence
One intended to protect the owners property and the police from
false claims of loss
Legality of inventory contingent on lawful impoundment. Police,
generally, may impound:
When car is evidence of a crime
When car is abandoned
When driver has been arrested and there would be a traffic
hazard if car left where the arrest occurred

California v. Carney police had probable cause to believe sex was being exchanged for
drugs in mobile home (RV); mobile home was subject to automobile exception because
objectively seen to be used as a vehicle.
CONTAINER DOCTRINE
o U.S. v. CHADWICK double-locked footlocker seized from D to the station.
Overturned now by Acevedo: If police have probable cause to believe
evidence of a crime is in a container, they must get a warrant to search that
container
Still good law: Once law enforcement has reduced luggage or other
personal property not immediately associated with the person of the
arrestee to their exclusive control, and there is no longer any danger that
the arrestee might gain access to the property to seize a weapon or destroy
evidence, a search of the property is no longer an incident of the arrest.
o CALIFORNIA v. ACEVEDO Stopped D and searched for package in Ds car.
Had PC to search package, but no PC to search Ds car.
The Fourth Amendment of the Constitution does not require a warrant to
search a container in a vehicle if there is probable cause to search the
container. This holding applies even if there is no probable cause to search
the entire vehicle. This holding clearly negates any former rulings that
would give separate treatment to searches specifically for containers in a
vehicle.
Hypo: if PO began to search Acevedos car: they must get only the
package, unless they arrest D and use SITLA.
Police search of personal property (e.g. purse) located within an automobile falls
within the automobile exception so long as that exception is satisfied

PLAIN VIEW

Horton v. California Cop wanted warrant to search for stolen goods/weapons.

Magistrate gave warrant only for stolen goods. Cop did not hide that he wanted to find
anything linking suspect to the crime. Found weapons! Court: its ok, he was there
lawfully and was looking where he was allowed to look!
The police may seize evidence (without a warrant) under the plain view
doctrine if:
(1) They had the right to be where they are [warrant/exigency];
(2) See the incriminating in plain view; and
(3) The incriminating evidence is immediately apparent to them.
Arizona v. Hicks Cops entered Ds apartment to look for a shooter, who shot through
the floor and injured a neighbor. While there, officer saw an expansive stereo (in a crappy
apartment). He moved it to record a serial number, suspecting it to be stolen.
o Court: Officer had reasonable suspicion, and not probable cause, that the stereo
was stolen. Besides, he had to run the serial number through the Police Station.
His actions were not justified by Plain View doctrine. It has to be apparent right
away that the item is contraband.

Plain View test once again:

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Incriminating nature of the item must be immediately apparent to the officer (anything less would require
a search).
Officer must have probable cause to believe the item observed constitutes contraband or evidence of a
crime. Arizona v. Hicks (moving the stereo equipment to see serial numbers constituted a search within
the meaning of the Fourth Amendment)
Rational for plain view doctrine:
Search/entry into home is already lawful, so there is only a question of the expectation of privacy in the
item; but there is a lesser expectation of privacy because the suspect has placed the item in plain view
Warrant not required because of exigent circumstances: it is not practicable for police to stop the search
and leave to get a warrant; the plain view evidence will be destroyed

CONSENT

What must the state prove in order to demonstrate that consent was voluntarily given? Consent does not have
to be knowing and intelligent like a normal waiver
Test: voluntariness of a suspects consent must be determined by a review of the totality of the
circumstances.
Factors:

State of mind (under the influence/injured/disoriented/mentally ill?)

Level of sophistication

Knowledge of right to refuse consent

Age

Intelligence

Number of officers present

Location

Use of threat/force

Physical proximity/intimidation

Nature of offense charged

SCHNECKLOTH v. BUSTAMONTE PO pulled over car for burned out bulbs, asked
for DL. Only 1 person in a car had DL. PO asked if he can search the car, D said OK!
o The court held that consent searches are constitutional, and that the government
must show that consent existed. However, a defendant under the Fifth
Amendment need not necessarily know of his right to object to a consent search!
o
Third Party Consent: Illinois v Rodriguez Ms. called police, stated that she got beaten
up by D. When cops arrived, she said that apartment was theirs, and that she had
clothes there. She unlocked the door with a key (that was never given to her by D!).
Police entered and found drug related things. Ms. never had common authority of the
apartment.
o Court held that such searches are valid if, at the time of the search, the authorities
"reasonably believe" the third party possesses common authority over the
premises. Whether their belief that consent was granted is reasonable.
Co-Tenant Rule
o A present and objecting co-tenant trumps the consent granted by the other cotenant
o Co-owner/husband says do not enter it trumps wifes consent. But if they take
husband away and wife grants again OK for cops to come in.

TERRY STOP and TERRY FRISK

Seizures of the Person vs. Terry Stop

Definition of seizure within meaning of Fourth Amendment

When a police officer, by physical force or show of authority, restrains
liberty of citizen (restrains freedom to walk away). Terry v. Ohio

Traditional objective test: whether a reasonable innocent person

would feel free to leave and continue on with his business.

United States v. Drayton long-distance bus stopped to refuel; drive got

off the bus and allowed officers to board for routine drug search; people
volunteered and were informed that they dont need to comply; was
Drayton seized within the meaning of the Fourth Amendment?)
Bostick test: a person is seized if a reasonable innocent person in
his shoes would not feel free to decline the officers requests or
otherwise terminate the encounter
Holding: no seizure under the Bostick test because no weapon
used, open aisle, officers spoke to passengers individually and
quietly, and no application of force or intimidating movement

The assertion of authority alone is not a seizure, and request to

stop. Has to be restraint!
California v. Hodari D. Seizure (or arrest) requires:
1. Application of physical force (laying of hands), even if the
officer is ultimately unsuccessful, OR
2. Submission to an assertion of authority!
Automobile passengers are seized within the meaning of the Fourth
Amendment during a traffic stop. Brendlin v. California (police
pulled car over and discovered outstanding warrant for Brendlin, a
passenger; he was arrested and drugs were found on his person)
o Test: would a reasonable person feel free to leave?

Valid seizure of a person

Based on reasonable suspicion. Terry v. Ohio
o Specific and articulable facts that a crime has occurred or is
occurring
o Reasonable Suspicion police hunch and at least 1
objectively verifiable fact.
o Police officers can also conduct a Terry stop based on
reasonable suspicion of past criminal activity. United States v.
Hensley

o Investigative only: if probable cause is not established by the

stop, the suspect must be released; this prompts the right to
frisk because release can allow the suspect to retrieve a weapon
Degrees of stops (reasonable suspicion)
o Consensual encounters: a police officer may approach an
individual on the street and ask him questions without any
justification. The individual, however, has the right to decline
answering the questions
1. Refusal to cooperate alone, without more, does not
justify detention or seizure; however, the officer could
point to other facts that provide the officer with
justification to stop. Florida v. Royer
2. Flight may be considered as a factor providing officers
with reasonable suspicion (but there is no bright-line
rule that flight, by itself, does or does not justify a Terry
stop). Illinois v. Wardlow (patrolling officers in a highcrime area saw individual standing next to building
holding an opaque bag)
o Seizure: individual is not free to walk away or terminate
the encounter (liberty is restrained)
1. If it is a stop, the officer needs reasonable suspicion
2. If it is an arrest, the officer needs probable cause
o When does a stop requiring reasonable suspicion become
an arrest requiring probable cause? Florida v. Royer In
the absence of PC, police may not forcibly take a person from
their home or any other place where he has a right to be to a
police-dominated site for interrogation or search! Duration,
interrogation, etc.
Factors to consider
Duration of detention
Investigative detention must be
temporary and no longer than necessary
to effectuate the stop
Investigative methods employed
Should be least intrusive means
reasonably available to verify or dispel
the officers suspicion
Existence of less intrusive alternatives
does not make the officers means per se
unreasonable

Manner of detention (i.e., physical force,

handcuffs, location)

Terry frisk
o Terry Concurrence (Harlan): (1) officer must first have the right to
stop an individual if he has reasonable suspicion to believe that
criminal activity is afoot; (2) officer can frisk suspect only if he has
reasonable suspicion that the suspect is armed and dangerous.
If there is reason to believe there is a crime of violence
involved, then the right to frisk flows directly from the
right to stop (no longer two evaluations)
Reasonable suspicion must be based on specific and
articulable facts (more than a hunch)
o Definition: limited pat down of the outer layers of clothing in search
of weapons
o Level of justification: reasonable suspicion that the suspect is still
armed and presently dangerous
o Rationale: officer safety (Fourth Amendment never forces law
enforcement officers to put their safety at risk)
o Scope: limited to search for weapons (but if the officer feels the
weapon, he can go beneath the outer layers of clothes to get it)
Drugs found during a Terry weapons search are admissible if
the drugs are immediately identifiable
CAR FRISK: The search of a passenger compartment is permissible if the
police officer has reasonable belief, based on specific and articulable facts,
which, taken together with the rational inference from those facts, reasonably
warrant the officers in believe that the suspect is dangerous and the suspect
may gain immediate control of weapons. Michigan v. Long
o Limited to spaces where the suspect could have access to the weapon
o The same rationale that allows a frisk to flow from a Terry stop allows
an officer to search the vehicle for weapons
An anonymous tip alone is not sufficient to justify a Terry stop and frisk.
o Florida v. J.L. police received anonymous tip that the suspect was
carrying a gun, without more information.
An anonymous tip must be reliable in its assertion of illegality,
not just its tendency to identify a determinate person
In this case, police did not have reasonable suspicion to justify
the stop and frisk (no basis of knowledge and no veracity to the
tip)
o Alabama v White anonymous tip, predicted well behavior of the
suspect. When the officers stopped respondent, the anonymous tip
from the informant had been sufficiently corroborated to furnish
reasonable suspicion that respondent was engaged in criminal activity.
The investigative stop did not violate the Fourth Amendment.
Police may seize personal luggage for brief, investigative searches under
Terry (less than probable cause) based on specific, articulable facts that the

luggage contains contraband or evidence of a crime; there are degrees of

intrusion with respect to property. United States v. Place (agents approached
Place in Miami airport; he was approached in NY again; refused to have
luggage searched; police seized and searched anyway)
In this case, Court applied Royer factors (detention, means,
and manner) to hold that the seizure of Places bags was
impermissible (but there was reasonable suspicion
sufficient for a brief stop and search under Terry)

Protective sweep: Maryland v. Buie Closets and spaces immediately adjoining the
place of arrest from which an attack can launch (no further justification required)
Protective sweep: cursory inspection of spaces where a person could be
found
o Limited in intensity, but not space (entire house subject to
cursory inspection)
o Requires only reasonable suspicion of danger based on specific
and articulable facts
o ASK what level of suspicion needed for closets and adjoining
places? NONE!

BORDER SEARCH
No individualized suspicion required!
Except if search is highly intrusive then RS required!
To determine the reasonableness of a border search, or of any search for that
matter, we weigh "its intrusion on [an] individual's Fourth Amendment interests
against its promotion of legitimate governmental interests."
To protect borders! Routine inspections are OK, but RS needed for highly
intrusive ones!

SPECIAL NEEDS DOCTRINE

Court has relaxed normal warrant & PC requirements to respond to special government needs - sometimes
individualized suspicion is not required
Special Need is triggered by the government's obligation to protect the public from an imminent threat or
danger
Key - programmatic primary purpose is objectively distinguishable from general crime control
Three Factors
Compelling government interest
Low level of intrusion on individual liberty
Effectiveness of the program - doesn't have to be the best, just reasonably effective
Common Special Needs Programs - Counterterrorism Bag Checks, Purses and backpacks in public schools,
drug testing of airline pilots and railroad engineers, drug testing school athletes (because they could get hurt
if high), checkpoints for recently escaped violent convicts

New Jersey v TLO Caught smoking on school grounds, denied. Confronted, purse
search. Found joint rolling paper and cigarettes.

Court: Reasonable grounds for suspecting search will yield evidence that student
has violated either the law or the rules of the school

Not excessively intrusive in light of age & sex of student and nature of the
infraction

No need for PC or warrant here!

MICHIGAN Department of State police v. SITZ

DUI Checkpoints.
Are these Searches? Seizures?
4th amendment apply?
State Interest? Yes.
Preventing drunk driving.
For Safety reasons
SITZ test: balance of states interest (in preventing drunken driving),
effectiveness (some empirical evidence), and degree of intrusion (duration of
seizure & intensity of investigation)
City of Indianapolis v. Edmond dog sniff checkpoint to find ordinary wrongdoing.

Searches
For protection, for safety, and for security.
Level of intrusion without individualized suspicion quick one, let them go fast in SITZ at DUI
checkpoints.
No individualized suspicion needed:
International borders.
De-minimus intrusion in DUI checkpoints.
Special needs police can stop and search you without particularized suspicion.
Checkpoints leading to and from borders are OK and not violating 4th Amendment.
50 miles outside the border cannot use Special Needs.
No 4th Amendment right in the airport.

Court limited the power of law enforcement to conduct suspicionless searches,

specifically, using drug-sniffing dogs at roadblocks. Previous Supreme Court
decisions had given the police power to create roadblocks for the purposes of
border security (United States v. Martinez-Fuerte), and removing drunk drivers
from the road (Michigan Dept. of State Police v. Sitz). This decision stated that
the power was limited to situations in which the search was "designed to serve
special needs, beyond the normal need for law enforcement."
The Court drew a line on check point programs: "whose primary purpose" is "to
detect evidence of ordinary criminal wrongdoing" are NOT OK! The Court

refused to "credit the 'general interest in crime control' as justification for a

regime of suspicionless stops."

STANDING

No vicarious invocation of someone else's constitutional rights is allowed to exclude evidence

To have standing to invoke the exclusionary rule - Defendant must prove how government
conduct intruded upon her constitutional rights
No standing to complain about search when a passenger in someone else's car - do have
standing to complain about seizure of car, since seizure of car is seizure of occupants
Individual's share standing in another's home when they are social overnight guests
The Defendant bears the burden of proving standing.

Jones v. U.S. Had permission to stay, had a key, and slept in that apartment. Was
present at the premises. FACTS MATTER! Has standing to challenge a search!

RAKAS v. ILLINOIS Court ruled that vehicular passengers in a car they did not own
had no legitimate reasonable expectation of privacy. So if car is searched and
evidence found against them, they may not challenge car search!

Minnesota v. Olson Overnight guests in a dwelling have REP under 4th Amendment!
Ability to exclude, dominion and control!

Minnesota v. Carter overnight guest in a home could claim the protection of U.S.
Constitutional Amendment IV, but one who was merely present with the consent of
the householder could not. In addition, property used for commercial purposes was
treated differently for U.S. Constitutional Amendment IV purposes than residential
property.

Exclusionary Rule
1.
2.
3.
4.

Purpose - to deter police misconduct

Matt v. Ohio - extended exclusionary rule to states
If exclusion does not contribute to police deterrence, rule won't apply
Good Faith Exception - where police violate Fourth Amendment but act in objective good
faith reliance on
A facially valid warrant;
A mistaken indication of an arrest warrant in a judicial database; or
Mistaken indication of an arrest warrant in the police database
In these cases the evidence they seize will not be excluded
5.
Exceptions to Good Faith Exception
Affidavit which supported the warrant was false or misleading (lie by one officer
is imparted to all)

Magistrate is not neutral or detached

Information supporting the warrant is so vague or stale that no reasonable office
would have relied on it
The warrant is so facially defective that no reasonable officer would rely on it.
BUT if magistrate reassures officer it's valid, then reliance is in good faith

Exclusionary Rule: Fruit of the Poison Tree Doctrine

1. Evidence derived from a predicate constitutional violation is tainted by that violation
and presumptively inadmissible.
2. The evidence will be admitted if the prosecution can rebut presumption with one of
three exceptions:

Attenuation Doctrine if the taint from the original constitutional violation is

sufficiently attenuated or weakened, the evidence can be admitted (e.g. long passage of
time, intervening events like Miranda warnings, or voluntary human intervention)
(normally in a confession).
o Factors in attenuation analysis:
Temporal
How much time lapsed before fruit was taken?
Flagrancy
Cop discretion. Bad faith violation? Beat up and then gave
Miranda?
Intervening causes
In Wong Sun went to police next day and confessed! Will
intervene poisonous fruit.
Free will
Wong Sun again went voluntarily.

Wong Sun v. U.S. Narcotics agents unlawfully entered Toy's laundry at which
point Toy indicated that Jonny was selling narcotics. The drug agents then went to
Jonny and found the narcotics. Jonny made a deal to give up his supplier, Wong
Sun. The agents then arrested Wong Sun. All were arraigned and released on their
own recognizance. Several days later, Wong Sun voluntarily returned to the police
station to make a statement, during the process of which he confessed but refused
to sign his statements.
The Supreme Court held that Toy's statements and the discovered drugs
at Jonny's should both be excluded as fruit of the poisonous tree because
the search was done without a warrant. Wong Sun's lawyer argued that
Wong Sun's confession should also be excluded as fruit of the poisonous
tree. Wong Sun's statement was ruled admissible because he had no
standing to move to suppress the evidence found in Jonny's apartment.
Wong Sun was granted a new trial, but his confession was admissible.
Examples: Outstanding warrant found during tainted stop can be intervening
cause.

 Arrested without PC, then Miranda-ed and confessed. Confession will be

excluded because 4th Amendment Violation.

Independent Source Doctrine - no connection between the constitutional violation and

the discovery of the evidence

Murray v. U.S. Police followed a truck to a warehouse. When it was leaving,

they lawfully seized it and found weed in it. Then they illegally entered
warehouse and saw a lot of burlap bales. They left and applied for a warrant.
In the warrant, they did not tell about entry and did not base the
warrant on what they saw. With a warrant, they entered and seized 270
bales of weed.
Court: when officers conduct two searches, the first unlawful and the
second lawful, evidence seized during the second search is admissible if
the second search is genuinely independent of the earlier one.
o "The independent source doctrine applies to evidence initially
discovered during, or as a consequence of, an unlawful search but
later obtained independently from activities untainted by the initial
legality." [3] The Court found that a search pursuant to a warrant is
not genuinely independent of evidence if (1) the agents' decision
to seek the warrant was prompted by what they had seen
during the initial [illegal] entry or (2) if information obtained
during that entry was presented to the Magistrate and affected
his decision to issue the warrant.

Inevitable Discovery Doctrine - the evidence would have inevitably discovered

through lawful means and separate from the constitutional violation

Nix v. Williams Williams murdered a girl and surrendered. He invoked his right
to counsel and not to be interrogated. But police elicited an answer from him.
While neither Williams incriminating statements themselves nor any
testimony describing his having led the police to the victims body can
constitutionally be admitted into evidence, evidence of where the body
was found and of its condition might well be admissible on the theory
that the body would have been discovered in any event, even had
incriminating statements not been elicited from Williams.
Burden on government to prove Inevitable Discovery.
Burden of Proof for Exception - State must prove exception
Example 1: Violation of Miranda violation fruit of poisonous tree would be a confession
and will not come in the court! But a gun still comes in, or a body!

Example 2: Police arrests you without PC! You tell them where you hid the gun and that
you killed someone. THE GUN WILL BE EXCLUDED! Because 4th amendment tree has
more fruit!

ER: GOOD FAITH EXCEPTION

Leon Good Faith Exception - where police violate Fourth Amendment but act in
objective good faith reliance on
A facially valid warrant;
Reasonable reliance on a statute later found to be unconstitutional.
Davis v. U.S law allowed search of vehicle compartment even if
occupant was already arrested. PO acted on this rule and searched the
vehicle, finding evidence. Rule was later found unconstitutional. Court:
Evidence still comes in!
Reasonable reliance on a non-existent warrant.
Herring v. U.S. PO called in to check if there was a warrant for
Herring. Clerk said YES! PO arrested and searched Herring, discovering
firearms and meth! Clerk called back but it was too late Warrant was
recalled 5 months ago clerical error!
o Court: PO relied in good faith on non-existent warrant. Evidence
not excluded!
(New case, Hein, allows for reasonable good faith mistake of a law)

Exceptions to Good Faith Exception

If police knowingly or recklessly make false or misleading statements in the
affidavit
If the issuing magistrate wholly abandons his judicial role as neutral arbiter
Information supporting the warrant is so vague or stale that no reasonable office
would have relied on it
The warrant is so facially defective that no reasonable officer would rely on it.
BUT if magistrate reassures officer it's valid, then reliance is in good faith

Knock and Announce Rule Violation

Hudson v. Michigan cops didnt knock and announce. Court: Violation of knock and
announce rule does not get Exclusionary Rule! Plus Inevitable Discovery evidence
would have still been discovered!

Due Process Voluntariness Test

Why Suppress Involuntary Confessions:
To prevent unreliable evidence
To use only statements taken without overbearing police pressure
To prove guilt only with statements that manifest a minimal level of mental freedom,
whether or not police applied overbearing pressure

Test: totality of the

circumstances (there
must be some sort of
police overreaching or

conduct). Was Ds will overborne?

Factors to consider in evaluating voluntariness: Ashcraft v. Tennessee
(confession in that case not voluntary because police procedures were
inherently coercive)
o State of mind (level of sophistication, age)
Confession is voluntary even with evidence of mental
infirmity so long as there is no police coercion
o Physical abuse by police (always prohibited)
o Psychological abuse by police (including length
Duration of interrogation.
of interrogation)
o Knowledge of right to counsel
Characteristics of the suspect
o Threats/statements by police
including fatigue, hunger.
o Specific coercive statements by police. Watts v.
Indiana (J. Jackson the dilemma of a free society is the balance
of the rights of the individual against the needs of society)
False promises of leniency
Torture
Deception (the court has distinguished between verbal
misrepresentations and the manufacturing of evidence used
to deceive latter prohibited)
Values/objectives served by Due Process Voluntariness Approach
o Ensuring trustworthiness or reliability of confessions
o Deterring police misconduct
o Ensuring that confessions are the production of free will
o Protection of defendant/safeguards of defendants rights
o Maintenance of integrity of criminal justice system

Spano v. New York denied him attorney presence all the time. Continuously
interrogated him. Used his friend, Bruno, to manipulate him. Took him to a crime
scene. His will was overborne, his confession was not voluntary.
Arizona v. Fulminante Fellow inmate, by threat of violence, coerced D to confess to
a crime. D confessed in return for protection. Court threat of violence is coercion!

MIRANDA (5th Amendment protection)

Making 11 year old put hand on bible and say he didnt burn the church not coercive. Good to go.
5th amendment right:

Blood/Hair sample for testing for drugs. It is NOT testimonial. Not protected. You have to say/reframe from saying
something.

Government may produce document that they will not use anything in that testimony against testifying person. If that person
refuses still under 5th amendment they can go to jail for contempt of court.

5th amendment can easily be overcome by this and you can be forced to testify. It does not consider due process
violation. Civic duty as a witness on the stand.

Statements stemming from custodial interrogation (or deprivation of freedom of action

in any significant way) are inadmissible at trial unless (1) the Miranda warnings
were given prior to custodial interrogation, and (2) the defendant has waived his
rights. Miranda v. Arizona (warnings must be given prior to custodial interrogation;
assuming that all custodial interrogation is inherently coercive)
Miranda Warnings (bright-line rule requiring warnings avoids judicial
inefficiency):
(1) You have the right to remain silent
(2) Anything you say can and will be used against you
o Warns suspect that the system is adversarial and even seemingly
exculpatory statements may be used against him
(3) You have the right to consult with a lawyer and have a lawyer
present with you during custodial interrogation
o No right to counsel in Fifth Amendment, but counsel is necessary
to prevent self-incrimination prior to trial
o Presence of counsel also prevents police from using coercive
techniques during interrogation and ensures that entire statement is
disclosed at trial
(4) If you cant afford an attorney, one will be appointed to represent
you
o Notifies suspect that the right to counsel exists regardless of ability
to pay

Custody or custodial interrogation for the purposes of Miranda

o Test: whether a reasonable person in the suspects shoes would have thought
that his freedom of action was curtailed to a degree associated with formal
arrest.
(1) Arrest or (2) Functional equivalent of arrest (functional arrest)
Berkemer v. McCarty Stopped D for swerving on the road. He seemed
intoxicated, failed balancing test. Took him to the station, tests came negative.
Officer resumed questioning D.
Court: A motorist temporarily detained pursuant to an ordinary traffic stop
is not in custody for purposes of Miranda; suspect not in custody
because traffic stops are brief (public) and circumstances are usually not
coercive.
If suspect is detained and in custody pursuant to a traffic stop (like in this
case!), he will be entitled to full protections prescribed by Miranda (Terry
seizure is not an arrest)
o Police officers intention has no bearing on question of whether suspect was in
custody at a particular time
o

RULE:

Decision in Miranda v. Arizona only required law enforcement officials to recite a

suspect's rights when suspect had been "deprived of his freedom of action in any
significant way.
Miranda applies to custodial interrogations involving minor traffic offenses.
Routine questioning of motorists detained pursuant to traffic stops is not custodial
interrogation under Miranda.
Miranda warning apply when you are arrested/stopped for a misdemeanor.
o Misdemeanor: minor wrongdoing.
TERRY STOP when police pulls you over. You are not in custody no Miranda warning
needed.
o Even though you may feel coercive pressure (stopped at night on a lone road).
(1) Brief + (2) Public.

Interrogation for the purposes of Miranda

o Test: Rhode Island v. Innis during ride to the police station with suspect in
back seat, officers talked about danger of handicapped children finding the
missing murder weapon; suspect offered to show police where he threw the gun.
Express questioning or its functional equivalent

Functional equivalent: any words or actions on the part of the police

that police should have known were reasonably likely to elicit an
incriminating response from the suspect (objective test).
If police action is designed, with intent, to elicit an incriminating
response, it will also be action which police should have known
would elicit an incriminating response
Any knowledge police should have about a suspects particular
susceptibility may serve as an important factor in the interrogation
determination
Perceptions of the suspect may be taken into account
Oregon v. Mathiason Police asked if they could talk to M. M said sure.
PO asked where he can meet him, M said doesnt matter and he came to
the police station. PO told M that he is not under arrest and then lied that
he found his fingerprints at a burglary crime scene. M confessed.
Court: Even though they questioned M, the setting was not
custodial M could freely leave, no evidence of restriction on his
freedom.
(Booking) Questions normally attendant to arrest and custody do not
constitute interrogation within the meaning of Miranda.

WAIVER of rights must be unambiguous (no waiver presumed from silence).

o Requirements:
Voluntary (free will, and not police coercion)
Knowing and intelligent (understanding of rights and the consequences
of waiving them)
Not a kid! Must have capacity to understand.
Implied waivers OK: by speaking after Miranda you waive.
o North Carolina v. Butler Defendant was convicted of kidnapping, armed
robbery, and felonious assault. In reversing the convictions, the state court found
that defendant's incriminating statements had been admitted in violation of
Miranda requirements because defendant had refused to waive in writing his right
to have counsel present and there had not been a specific oral waiver.
Court: Butler had 11 grade education, literate, understood his rights. He
was silent but then he made a statement! As long as knowing,
intelligent, the waiver good enough. No sign of his will overborne.
INVOCATION
o Right to remain silent: Interrogation must cease immediately if suspect asserts
his right to remain silent (further questioning may be permissible in certain
circumstances if lawyer is present time (2 hrs) + rereading of Miranda
warnings).
When a suspect invokes his Miranda right to remain silent, police may
resume interrogation at a later time so long as they scrupulously honored

his right to cut off questioning. Only invoking right to an attorney shuts
police up and make you UNAPPROACHABLE!
Remaining silent is not invocation.
Miranda violation

o Right to an attorney (UNAPPROACHABLE): Interrogation must cease is not poisonous

tree the tools come
once a suspect requests counsel and police may not reinitiate questioning
in, but his statements
unless counsel is present or the suspect initiates a conversation with the
DO NOT.
authorities, whether or not the accused has consulted with an attorney
During trial if John
(bright-line rule). Has to be Explicit and Unambiguous I want my
takes stand and says
anything other than
LAWYER! Something like maybe I need to speak to a lawyer will not
what he said on that
work!
invalid waiver
o Initiation after invoking stating that you would like to speak! Has to be
Cops can bring his
old statements!
unambiguous.
Miranda violation is
Edwards v. Arizona After being arrested, Edwards said to his
not constitutional
interrogator "I want an attorney before making a deal." Immediately, the
Get
the fuck out
safeguard!
questioning ceased and Edwards was taken to county jail. The following
of my face and
morning, two detectives came to see him stating that they wanted to talk
refusal to sign a
to him (they initiated it!). At first Edwards resisted, but he was told he
waiver NOT
had to talk to the detectives. The officers informed him of his Miranda
AN
rights, and obtained a confession from him.
INVOCATION!
Court: After invoking your right to attorney, you are
unapproachable until lawyer is present. Doesnt matter if they
read you Miranda rights again! Also, accused has to understand
his right to counsel!
Initiation has to expressly say that! Cannot be any other conversation
with Police like can I get some water?
Berghuis v. Thompkins (not invocation) Thompkins, a suspect of fatal
shooting, was read his Miranda rights. Cops interrogated him for 3 hours. He
mostly said nothing. Then police decided to use religion and God to get an
answer from him. Tompkins answered!
o Court: Tompkinss silence did not invoke his right to remain silent!
UNTIL YOU INVOKE police can question you as much as
they want. CLEAR and Unambiguous.
Remaining silent is not invocation. You have to speak.
Davis v. U.S. Navy guy killed a fellow. Arrested, interrogated. Said Maybe
I need to talk to a lawyer. When asked if he wanted a lawyer, he said no.
o Court: AMBIGUOUS!
EXCEPTIONS to MIRANDA
Harris v. U.S. D took stand and said something other than when he said after
INVALID WAIVER.
o Court: OK to use it for impeachment, so long as statements were
UNCOERCED.
New York v. Quarles PUBLIC Safety exception

o Police arrested rape suspect in a grocery store. He had an empty gun strap.
Police, without reading him his Miranda rights, began to question about the
gun.
Court: need for public safety! The immediate necessity of
ascertaining the whereabouts of a gun which.discarded in
supermarket. No need for procedural steps if public safety is at risk.
Oregon v. ELSTAD Cops came to Ds house suspecting him of a burglary. They
had a warrant. They questioned D, alone, in the living room without reading him
Miranda rights. After D confessed, they took him to the station, read Finally him his
rights and got a confession written and oral. D tries to suppress the latter as FRUIT
OF THE POISONOUS TREE.
o Court: rejected application of FPT Doctrine for second set of statements;
second warned statement is admissible as long as both the first unwarned
statement and the second warned statement were voluntary (FPT Doctrine
would apply if the first statement was involuntary because it would be a
violation of due process)
o Valid waiver cures earlier Miranda violation (or, no fruit of Miranda violation
except immediate statement)
Missouri v. Seibert suspect was questioned without Miranda warnings and gave
incriminating statements; after twenty minute break, same officer gave Miranda
warnings and suspect repeated statements.
o Court: If warnings were effective second time, it cures Miranda violation.
Could the warnings effectively advise the suspect that he had a real choice
about giving an admissible statement at that juncture? Could they reasonably
convey that he could choose to stop talking even if he had talked earlier?

6th Amendment Right to Counsel

Massiah (Sixth Amendment)
Attaches at onset of formal adversarial
proceedings
Offense-specific (Sixth Amendment only
applies to deliberate elicitation about the
charged offenses). If you open your mouth
your problem!
Fruit of the Poisonous Tree Doctrine applies
(statement and evidence in violation of Sixth
Amendment are excludable)
Deliberate elicitation (subjective test intent
of the officer)
No undercover officer/informant exception
(situation likely to induce the defendant to
make incrimination statements)

Miranda
Attaches prior to custodial interrogation
Not offense-specific (all incriminating
statements are excludable)
FPT Doctrine does not apply (statement is
excludable, but evidence is admissible)
Interrogation (objective test) Rhode Island v.
Innis
Public safety exception
Undercover officer exception

Statements violating the Sixth Amendment

cannot be used for impeachment (~involuntary
statements/coerced confessions cannot be used
for impeachment)
If formal adversary proceedings have
commenced, interference with attorney contact
violates the Sixth Amendment

Statements violating Miranda can be used for

impeachment
Interference with attorney contact does not
affect waiver of Miranda right to counsel

Massiah v. United States M had a lawyer. Pled not guilty. His co-defendant decided to
cooperate, invited M to his car and talked. M made incriminating statements. SCOTUS
these statements were made without attorney present. SUPPRESS!!! Deliberate
Elicitation!
o Counsel not just at trial. Before too/after too.
o 6th Amendment attaches when you are charged!
o Indicted. Arraigned. Preliminary hearing. Charging
START of ADVERSARIAL JUDICIAL PROCEDING! Goes for all
above!
US. v. Henry Deliberately put an agent in a situation where it is likely that he will hear
incriminating statements. Basically, they created a situation where D could talk. NOT
OK! Even if agent did not ask any questions. Violates 6th Amendment!
Kuhlmann v. Wilson Need more than merely listening! Police put an agent with
Wilson in the same cell. Agent did not ask any questions. Wilson confessed to the agent.
o Court: For violation of 6th Amendment, there must be more than just listening.
Statements were admitted.

Waiver of Counsel: A defendant may waive their 6th Amendment right to counsel if it is
knowingly and intelligently done. However, the government must prove this occurred by
preponderance of the evidence.

Miranda Warnings may suffice as evidence of a valid waiver of the 6th Amendment
right to counsel if after being given, the defendant does not request for counsel.

If not in custody, the police may reinitiate conversation, however, the police may not
reinitiate conversation without a waiver, once you invoke your 5th Amendment rights.
o Montejo Overrules Mi v. Jackson. Theres no 2-week waiting period here.
Guy was in custody, then waived his rights, confessed, and had a preliminary
hearing. Later, the cops re-mirandized him and asked him to show them where
the murder weapon was. He did it.

Difference with Miranda Rights: After the defendant invokes the right to counsel, the police
cannot question or initiate conversation until 1) lawyer is present or 2) defendant initiates

conversation. However, with 6th amendment rights, the police are free (if youre not in
interrogation) to reinitiate conversation. A defendant who does not invoke to have his or her
counsel present creates the presumption that the suspect had a willingness and intelligence to
waive his 6th amendment rights.

Case names to know:

Katz,
Kyllo,
Md v Smith,
Jardines,
Riley,
Hicks,
Ill v Gates,
Payton,
Watson,
Chimel,
AZ v Gant,
Carroll-Chambers-Carney,
Chadwick,
Acevedo,
Terry v Oh,
Rakas,
Miranda,
Berkemer,
Innis,
Butler,

Edwards,
Oregon v Elstad,
Mo v Seibert,
Wong Sun,
Quarles,
Berghuis,
Schnecklother,
Massiah