Professional Documents
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Criminal Procedure Outline
Criminal Procedure Outline
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Crim. Pro. Outline – Fall 2008
What is a "SEARCH"
Katz v. United States, 389 U.S. 347 (1967)
Harlan, J., also concurred, joining in and elaborating on the opinion of the court.
“trespass” doctrine. Under the trespass doctrine, the Fourth Amendment did not apply in the absence of a physical intrusion - a
trespass - into a “constitutionally protected area,” such as a house.
Pen Registers: Installation and use of a pen register by the telephone company, at the behest of the government, to record the
telephone numbers dialed from a private residence is not a search within the meaning of the Fourth Amendment.
o Smith v. Maryland, 442 U.S. 735 (1979) (concluding that the defendant did not likely have an
expectation of privacy in the numbers he dialed, but even if he did, such expectation was
unreasonable).
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recognize as reasonable, the suspect, by voluntarily turning over dialed information to the telephone company, having assumed the
risk that the company would reveal the information to the police, even though telephone companies normally do not record numbers
dialed for local calls.
Electronic Tracking Devices Surveillance of activities occurring in public falls outside the protections of the Fourth
Amendment.
• Thus, the use of an electronic tracking device attached to a suspect’s vehicle or object carried by the suspect does
not constitute a search to the extent that it provides the police with information that could have otherwise been secured by
visual surveillance from public places. United States v. Knotts, 460 U.S. 276 (1983).
• However, where such device allows the police to monitor activity inside a private place such as a home, a Fourth
Amendment search occurs. United States v. Karo, 468 U.S. 705 (1984).
Thermal Imagers The use of a thermal-imaging device aimed at a home from a public area to detect relative amounts of heat
within constitutes a search. Kyllo v. United States, 533 U.S. 27 (2001) (technology improperly used to confirm federal agent’s
suspicion that defendant was using high-intensity lamps to grow marijuana inside his home). Use of such technology constitutes a
search if it enables the government to gather evidence from a constitutionally protected area to which it would not otherwise have
access without a warrant.
Aerial Surveillance Aerial surveillance by the government of activities occurring within the curtilage of a house does not
constitute a search if the surveillance:
(1) occurs from public navigable airspace;
(2) is conducted in a physically non-intrusive manner; and
(3) does not reveal intimate activities traditionally connected with the use of a home or curtilage.
o California v. Ciraolo, 476 U.S. 207 (1986) (involving aerial surveillance of defendant’s backyard in which he was growing
marijuana)
Construction of a fence which blocks observations from ground-level and demonstrates the defendant’s desire to
maintain privacy does not necessarily equate to a reasonable expectation of privacy if there any modes of surveillance
possible under the circumstances, e.g., airplanes and helicopters flying above, observations from taller adjacent buildings, a
utility repair person on a pole overlooking the yard.
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• United States v. Jacobsen, 466 U.S. 109 (1984) (a chemical test that merely discloses whether a particular substance is
cocaine “does not compromise any legitimate interest in privacy,” and is, therefore, not a search).
• However, a test to determine personal use of contraband, such as a urine test to detect drug use, does qualify as a search.
Inspection of Garbage There is no reasonable expectation of privacy in garbage left for collection outside the curtilage of one’s
home. California v. Greenwood, 486 U.S. 35 (1988).
"Open Fields" Doctrine Entry into and exploration of so-called “open fields” does not constitute a search within the meaning of
the Fourth Amendment. The “open fields doctrine” is based on the theory that people do not have a legitimate expectation of privacy
in activities occurring in open fields, even if the activity could not be observed from the ground except by trespassing in violation of
civil or criminal law.
“Curtilage” The curtilage of the home, which is the land immediately surrounding and associated with the home, such as a
backyard. However, unoccupied and undeveloped property beyond the curtilage of a home (“open fields”) falls outside of the Fourth
Amendment.
Factors relevant to determining whether land falls within the cartilage are:
(1) the proximity of the land to the home;
(2) whether the area is included within enclosures surrounding the house;
(3) the nature of the use to which the area is put; and
(4) the steps taken by the resident to protect the land in question from observation.
United States v. Dunn, 480 U.S. 294 (1987).
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What is a “SEIZURE”
Seizure of Property In contrast to a search, which affects a person’s privacy interest, a seizure of property invades a person’s
possessory interest in that property.
Tangible property is seized in Fourth Amendment terms “when there is some meaningful interference with an individual’s
possessory interests in that property.”
Seizure of Persons A Fourth Amendment seizure of a person occurs when a police officer, by means of physical force or show of
authority, in some way restrains the liberty of a citizen, Terry v. Ohio, 392 U.S. 1 (1968), or put another way, when “in view of all of
the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v.
Mendenhall, 446 U.S. 544 (1980).
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California v. Hodari D., 499 U.S. 621 (1991)
It was held that even if, as conceded by the state, the officer's pursuit of the accused had not been based on reasonable suspicion, the
cocaine discarded by the accused was not the fruit of a "seizure" of his person within the meaning of the Fourth Amendment,
because
(1) an arrest--the quintessential seizure of the person under Fourth Amendment jurisprudence--requires either
(a) the application of physical force with lawful authority, or
(b) submission to the assertion of authority;
(2) the accused had not been touched by the officer at the time he discarded the cocaine; and
(3) assuming that the officer's pursuit of the accused constituted a show of authority enjoining the accused to halt, the accused did not
comply with that injunction and therefore was not seized until the officer tackled him.
***
Dissent expressing the view that under the Fourth Amendment,
(1) a "seizure" occurs whenever an objective evaluation of a police officer's show of force conveys the message that a citizen is not
entirely free to leave--in other words, that his or her liberty is being restrained in a significant way; and
(2) the character of a citizen's response, such as the taking of evasive action, should not govern the constitutionality of the officer's
conduct.
“Mere Evidence” Rule Under the “mere evidence” rule, only certain categories of evidence could be seized:
(1) a “fruit” of a crime (e.g., money obtained in a robbery);
(2) an instrumentality of a crime (e.g., the gun used to commit a robbery, or the car used in the get-away); or
(3) contraband (e.g., illegal narcotics).
• So-called “mere evidence,” items that have only evidentiary value in the apprehension or conviction of a person for an
offense, could not be seized.
• The Supreme Court abolished the mere evidence rule in Warden v. Hayden, 387 U.S. 294 (1967).
• Police officers may now seize any evidence that has a connection to the criminal activity under investigation.
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Probable Cause
Scope of “Probable Cause” Requirement
Probable cause is required as the basis for:
(1) arrest and search warrants; and
(2) all arrests (regardless of whether an arrest warrant is required)
Reasonable Suspicion
• A lesser standard – “reasonable suspicion” – may apply where the intrusion is minor, such as a pat-down for weapons.
• Furthermore, where the intrusion on a person’s privacy is especially slight and society’s interest in conducting the search or
seizure is significant, there may be no need for individualized suspicion, such as for society and border checkpoints and certain
administrative searches.
“Probable cause” exists when the facts and circumstances within an officer’s personal knowledge, and about which he has
reasonably trustworthy information, are sufficient to warrant a “person of reasonable caution” to believe that:
(1) in the case of an arrest, an offense has been committed and the person to be arrested committed it.
(2) in the case of a search, an item described with particularity will be found in the place to be searched.
• Probable cause is an objective concept. An officer’s subjective belief, no matter how sincere, does not in itself constitute
probable cause. However, in determining what a “person of reasonable caution” would believe, a court will take into account the
specific experiences and expertise of the officer whose actions are under scrutiny.
(1) Direct Information Unless a magistrate has reason to believe that an affiant has committed perjury or recklessly
misstated the truth, the magistrate may consider all direct information provided by the affiant. The affiant’s information is
considered reasonably trustworthy because it is provided under oath
(2) Hearsay (“Informant”) Information A magistrate may consider hearsay for purposes of determining probable cause, as
long as the information is reasonably trustworthy. The informant’s identity need not be disclosed to the magistrate unless the
magistrate doubts the affiant’s credibility regarding the hearsay.
• The Aguilar-Spinelli test for determining the reliability of informant tips controlled until 1983, when it was replaced
by the Gates “totality-of-the circumstances” test.
Aguilar-Spinelli Test Hearsay information had to satisfy both of the test’s prongs below in order to be deemed sufficiently
trustworthy to be included in the probable cause assessment: Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393
U.S. 410 (1969).
(1) the basis-of-knowledge prong; and
(2) the veracity prong, of which there are two alternative spurs:
(a) the “credibility-of-the-informant spur” and
(b) the “reliability-of-the-information spur.”
(1) The basis-of-knowledge prong is satisfied if the informant personally observed the reported facts. If the information was
second-hand, the magistrate would need to ascertain the reliability of that source. In some circumstances, the basis-of-knowledge
prong could be satisfied by “self-verifying detail,” where the information provided by the informant was so rich in detail that it
was reasonable to conclude that he had obtained it first hand.
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(2) To satisfy the veracity prong, evidence was required to demonstrate either
a. that the informant was a credible person (the credibility spur of the veracity prong) or,
b. if that could not be shown, that his information in the specific case was reliable (the relability spur).
• If one of the prongs was not satisfied, the hearsay evidence standing alone was deemed insufficiently trustworthy,
but its trustworthiness could be resuscitated by at least partial corroboration.
“Totality of the Circumstances” Test In Illinois v. Gates, 462 U.S. 213 (1983), the Court abandoned Aguilar and substituted the
totality-of-the-circumstances test for probable cause determinations, which requires the magistrate to balance
“the relative weights of all the various indicia of reliability (and unreliability) attending an informant’s tip.”
The factors enunciated in Aguilar - basis-of-knowledge and veracity - remain “highly relevant” in determining the value of an
informant’s tip but are no longer treated as separate, independent requirements.
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SEARCH WARRANTS
“Oath or Affirmation” The Fourth Amendment provides that warrants may not be issued unless they are “supported by Oath or
affirmation.”
• An affidavit supporting a search warrant is presumed valid. However, in limited circumstances, a defendant may challenge a
facially valid warrant, after the search is conducted, on the ground that the warrant would not have been issued but for the falsity
in the affidavit.
“Particularity” Requirement The Fourth Amendment provides that a warrant must describe with particularly “the place to be
searched, and the persons or things to be seized.”
• Knock-and-Announce Rule Generally, the police may not forcibly enter a home to execute a warrant, unless they first
(1) knock at the door (or ring the bell),
(2) identify themselves,
(3) state their purpose for seeking entry,
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(4) request admittance, and
(5) are refused admission. Wilson v. Arkansas, 514 U.S. 927 (1995).
Scope of the Search The police are authorized to search only for items specified in the warrant.
"Plainview Doctrine"_______________________________________________________________________________________
• They may open containers (e.g., drawers, closets, trunks) within the place specified in the warrant if the containers are large
enough to contain the object of the search.
• E.g., the police may open dresser drawers in a search for narcotics but not for a stolen television.
Nevertheless, the police are authorized to seize any item (whether or not it is described in the warrant) if:
(1) they discover the item while searching a place that they have the authority to search;
(2) the item is located in such area; and
(3) they have probable cause to believe the item is subject to seizure.
Public Places the police may not extend the search to persons not named in the warrant who happen to be present at the
premises identified in the warrant, unless they have reasonable suspicion that such other persons are armed and dangerous. In that
case, such other persons may be frisked according to Terry v. Ohio.
Ybarra v. Illinois, 444 U.S. 85 (1979) (police officers, with a warrant to search a tavern and a named bartender for heroin,
frisked each tavern customer for weapons, without reason to believe any were armed, and discovered heroin on the person of
one of the customers).
Ybarra Double Check case law
Detention of Persons During Searches During the execution of a search warrant for contraband, the police have limited authority
to detain all occupants of the premises to be searched. Michigan v. Summers, 452 U.S. 692 (1981). The Court has not addressed
whether this authority extends to search warrants for evidence other than contraband.
Private Homes The Supreme Court has not directly addressed the scope of a police officer’s authority to search a person during
execution of a search warrant to search a private residence. A few lower courts permit the police, while executing a search warrant of
a home for narcotics, automatically to frisk occupants for weapons. Other courts require particularized suspicion that the person
frisked is armed and dangerous.
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WARRANTLESS SEARCHES
“Reasonableness Balancing” Standard
Terry v. Ohio, 392 U.S. 1 (1968), made constitutionally permissible warrantless searches and seizures in limited circumstances. The
Supreme Court ruled that in determining whether the Warrant and Probable Cause clauses of the Fourth Amendment apply to a given
search and/or seizure, the “central inquiry” is the reasonableness of the government’s activity under the circumstances;
“reasonableness” is assessed by balancing the need to search or seize against the invasion the search or seizure entails. This is
known as the “reasonableness balancing” test.
“Reasonable Suspicion” Suspicion is “reasonable” if the officer can point to specific and articulable facts that, along with
reasonable inferences from those facts, justify the intrusion.
Reasonable suspicion that a crime has been or is being committed may be based on one or more of the following information:
(1) the police officer’s personal observations.
(2) reliable hearsay.
(3) criminal profiles.
(4) unprovoked flight.
Basis For "Reasonable Suspicion":
(1) Personal Observation Self Explanatory
(2) Hearsay Hearsay may support an officer’s reasonable suspicion of criminal activity where:
(1) the tip carries enough indicia of reliability to justify a Terry stop. Adams v. Williams, 407 U.S. 143 (1972). E.g., the
informant identifies himself or has provided reliable information to the police on a prior occasion.
(2) a tip lacking sufficient indicia of reliability is corroborated such that the totality of the circumstances justifies the Terry
stop. Alabama v. White, 496 U.S. 325 (1990). A tip lacks sufficient indicia of reliability where the informant is anonymous
and provides an insufficient basis for his statements from which the police may conclude that the informant is honest or his
information reliable.
o An uncorroborated anonymous tip can never serve as the sole basis for a Terry stop. Florida v. J. L., 529 U.S. 266
(2000) (reasonable suspicion not found where the police received an anonymous tip that a young black male wearing a
plaid shirt standing at a particular bus stop was carrying a gun and where the police observed a person matching the
informant’s description, but noted no suspicious conduct suggesting criminal activity was underfoot).
(3) Criminal Profiles An officer’s observations may properly be supplemented by consideration of the typical modes of behaviors
of certain kinds of criminals.
For example, in drug-trafficking cases, an officer’s suspicions can be buttressed by his awareness that the suspect’s conduct
or appearance conforms to a so-called “drug-courier profile,” which is a set of characteristics purportedly often associated
with drug traffickers, compiled by law enforcement agencies.
(4) Flight in “High-Crime Areas” Unprovoked flight, when coupled with other factors – such as the presence of the police in a
high-crime area – can constitute reasonable suspicion to justifying a search and/or seizure, at least in the absence of circumstances that
suggest the flight is motivated by a non-criminal purposes. Illinois v. Wardlow, 528 U.S. 119 (2000).
Suspect’s Race or Ethnicity Terry stops based solely on the race of a suspect are impermissible. However…
(1) race or ethnicity,
(2) when coupled with other factors, may give rise to reasonable suspicion.
For example, courts have sometimes treated “racial incongruity” – the presence of a person of a particular race or
ethnic group in a neighborhood where such group is not ordinarily found – as one legitimate factor in evaluating the
lawfulness of a stop.
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Weapons Searches
Holding of Terry v. Ohio pat-down of a suspect that the officer observed apparently “casing” a store. The Court found that the
brief restraint and pat-down did constitute a search and seizure.
• Next applying the reasonableness balancing test, the Court weighed society’s interest of effective crime prevention and detection
– which would be impaired if the police could not confront suspects for investigative purposes on less than probable cause – and
the police’s legitimate immediate interest in ensuring that the suspect is not armed, against the invasion of the suspect’s
personal liberty.
• The Court held that the police conduct was constitutional, stating that when an officer has reason to believe that the suspect is
armed and dangerous, the officer has the constitutional authority to conduct a search for weapons without probable cause or
a warrant.
While the appropriate manner of the protective search depends on the specific circumstances, generally, the proper technique, as
approved in Terry, is as follows:
(1) If an officer feels no object during a pat-down, or feels an object that does not appear to be a weapon, no further search is
justifiable.
(2) If the initial pat-down – with no further touching – provides the officer with probable cause for believing that an object felt is
contraband or other criminal evidence subject to seizure, he may pull out the object without a warrant, as part of the plain-touch
doctrine.
(3) If the officer feels an object that he reasonably believes is a weapon, the officer may conduct a search by removing the object
from the suspect.
(4) If the object he pulls out is a container, he may feel the container to see if it might contain a weapon inside.
(5) If his suspicions regarding the container are not reasonably dispelled by its size, weight, and feel, the officer may, at a minimum,
retain possession of the container.
(6) If the container could not reasonably contain a weapon, it may not be searched or seized.
Weapons Searches of Automobiles The police may search the passenger compartment of an automobile, limited to those areas in
which a weapon may be found, if the officer reasonably believes that the suspect is dangerous and may gain immediate control of a
weapon. Michigan v. Long, 463 U.S. 1032 (1983).
Temporary Seizures of Property (Luggage) Terry principles apply to seizures of property as well as to seizures of persons.
For example, police officers may, without a warrant, temporarily seize luggage on the basis of reasonable suspicion that it
contains narcotics, in order to investigate further, such as to conduct a dog-sniff test of the luggage. United States v. Place,
462 U.S. 696 (1983).
Searches and Seizures of the Body The taking of a blood, urine or breath sample, or subjecting the suspect to other intrusions of
the body (e.g., an x-ray) may be permissible without a warrant if:
(1) the police are justified in requiring the individual to submit to the test; and
(2) the means and procedures employed are reasonable.
• Schmerber v. California, 384 U.S. 757 (1966) (withdrawing a blood sample from the defendant without a warrant was found
justifiable on the ground that the evidence—the alcohol in the bloodstream—would have been lost if the police had been required
to obtain a warrant).
"Exigent Circumstances" Exigent circumstances can justify a warrantless entry of a home to make a felony arrest or to conduct
a search related to a serious offense under the following circumstances:
(1) hot pursuit of a fleeing felon;
(2) imminent destruction of evidence;
(3) the need to prevent a felon’s escape; or
(4) risk of harm to the police or others.
• The exigent-circumstances exception does not generally apply to cases involving minor offenses.
o Welsh v. Wisconsin, 466 U.S. 740 (1984) (warrantless entry of the defendant’s home in order to arrest him for drunk
driving was unconstitutional; the Court rejected the state’s argument that the entry was necessary in order to collect a
blood sample for testing before evidence of alcohol consumption was “destroyed”).
Warrantless entry of a home may also be permitted in order to respond to emergency situations,
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such as when the police reasonably believe that a person within is in need of immediate aid.
However, in such circumstances, the police are acting in a care-taker capacity, not an investigative capacity.
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(1) Arrestee’s Person The search of an arrestee may include pockets of his clothing, and any containers found therein, as
well as containers immediately associated with him, such as a briefcase or shoulder bag, that are large enough to conceal a
weapon or evidence of a crime.
(4) Arrests on the Road When an occupant (driver or passenger) of an automobile is arrested, the police may conduct a
warrantless search of the passenger compartment and all containers found therein, whether the containers are open or closed.
New York v. Belton, 453 U.S. 454 (1981).
• However, the trunk and engine compartment fall outside this rule as they are not within the immediate
“grabbing area” of the arrestee.?????
Immediately Adjoining Spaces If the arrest occurs in a home, “closets and other spaces immediately adjoining the place of
arrest from which an attack could be immediately launched” may be searched without a warrant. Maryland v. Buie, 494 U.S. 325,
334 (1990). This is known as a “protective search for dangerous persons” or a “protective sweep” of the residence.
"Protective Sweeps" are to be limited to
1. a cursory visual inspection of those places in which a person could be hiding, and
2.1. may last only as long as necessary to dispel the reasonable suspicion of damage, or
2.2. to complete the arrest and depart the premises.
Probable Cause to Seize A police officer may seize without a warrant any article found during the search upon probable cause
to believe that it is criminal evidence related to the immediate or another crime, even though probable cause is not necessary to
conduct the search.
Full Custodial Arrest The search-incident-to-lawful-arrest rule applies to arrests in which the officer takes the suspect into full
custody, which includes transporting him to the police station for booking. It does not apply, however, when an officer temporarily
detains a suspect. Knowles v. Iowa, 525 U.S. 113 (1998).
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Arrest Inventories The police may search an arrestee, as well as his personal effects – including containers, as part of a routine
inventory at a police station, incident to his booking and incarceration. Neither a search warrant nor probable cause is required for
an arrest inventory. Illinois v. Lafayette, 462 U.S. 640 (1983).
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Automobile Searches
(1) Searches at the Scene A police officer may conduct an immediate warrantless search of an automobile that the officer
has probable cause to believe contains contraband, fruits, instrumentalities, or evidence of a crime if:
(1) the officer stops the vehicle traveling on a public road; or
(2) the officer discovers the vehicle parked, but apparently capable of operation, in a non-residential location, such as a
public parking lot or gas station.
E.G., the Mobile Home Case
(2) Searches Away From the Scene A warrantless search of an automobile that would be valid if it were conducted at the
scene, is also permissible if it takes place shortly thereafter away from the scene, such as if the police impound the vehicle and
subsequently conduct the search. The Supreme Court has authorized delays of a few days, United States v. Johns, 469 U.S. 478
(1985), but found a year-long delay unreasonable, Coolidge v. New Hampshire, 403 U.S. 443 (1971).
(3) Searches of Containers Containers, even one belonging to a passenger who is not suspected of criminal activity, may be
searched without a warrant during an otherwise lawful automobile search provided the container is large enough to hold the
criminal evidence for which the police are searching.
a. Any container that constitutionally can be searched at the scene may also be seized and searched without a
warrant shortly thereafter, at the police station.
Automobile Inventory Searches Generally speaking, a routine inventory search of a lawfully impounded car is reasonable under
the Fourth Amendment even though it is conducted without a warrant and in the absence of probable cause to believe that evidence of
a crime will be discovered. Consequently, if police discover criminal evidence during an inventory, they may seize it pursuant to the
plain view doctrine, and introduce it in a criminal prosecution.
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requirement because it was readily mobile and was situated in a way or place which objectively indicated that it was being used for
transportation. The court further pointed out that the search was not unreasonable because the DEA agents had fresh, direct,
uncontradicted evidence that the defendant was distributing a controlled substance from the vehicle and the agents thus had
abundant probable cause to enter and search the vehicle for evidence of a crime notwithstanding its possible use as a dwelling
place.
***
Dissent expressed the view that warrantless searches of motor homes are only reasonable when the motor home is traveling on the
public streets or highways, or when exigent circumstances otherwise require an immediate search without the expenditures of time
necessary to obtain a warrant.
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Inadvertent Discovery If an officer anticipates discovery of a particular item, the plain view doctrine does not cure his failure to
obtain a warrant or to include it in a warrant to search for other items. In such cases, the warrantless search and seizure of such object
violates the Fourth Amendment. Coolidge v. New Hampshire, 403 U.S. 443 (1971).
“Plain Touch” The Supreme Court has recognized a “plain touch” or “plain feel” corollary to the plain view doctrine.
Minnesota v. Dickerson, 508 U.S. 366 (1993). Under this doctrine, the police may seize contraband detected solely through
an officer’s sense of touch if, comparable to plain view, the officer had a right to touch the object in question, and upon doing
so, its identity as contraband was immediately apparent.
However, if further probing is necessary to identify the nature of the object, the search falls outside the plain touch
doctrine, and a warrant is necessary to continue the search.
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Consent Searches
Validly Obtained Consent A validly obtained consent justifies an officer in conducting a warrantless search, with or without
probable cause. If the officer discovers evidence during a valid consent search, he may seize it without a warrant pursuant to the
"plain-view doctrine".
Scope of Search A warrantless consent search is invalid if the officer exceeds the scope of the consent granted.
Third-Party Consent Consent to a search by one who possesses common authority over property is valid against
another with whom the authority is shared. “Common authority” exists when there is “mutual use of the property by persons
generally having joint access or control for most purposes.” United States v. Matlock, 415 U.S. 164 (1974). However, if a
third party who lacks common authority of the property with the defendant in fact consents to a search of the defendant’s
property, such evidence cannot be admitted at trial against the defendant. Stoner v. California, 376 U.S. 483 (1964).
Apparent Authority A warrantless search of a residence is also constitutional when it is based on the consent of
a person whom the police, at the time of entry, reasonably believe has common authority over the premises, whether
or not that authority is valid. Illinois v. Rodriguez, 497 U.S. 177 (1990).
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ARRESTS
General Rules Upon probable cause that the suspect has committed or is committing a felony, a police officer:
(1) may arrest a person in a public place without a warrant, even if it is practicable to secure one;
(2) may not arrest a person in the person’s home without an arrest warrant, absent exigent circumstances or valid consent; and
(3) may not arrest a person in another person’s home without a search warrant, absent exigent circumstances or valid consent.
Arrest in the Home The Fourth Amendment prohibits the warrantless, nonconsensual entry into a suspect’s home in order to make
a “routine” (non-exigent) felony arrest. Payton v. New York, 445 U.S. 573 (1980).
• A warrant is not necessary to effectuate an arrest in the curtilage of the suspect’s home, however. Moreover, a suspect
standing in an open doorway of his home at the time the police arrive is treated as if he were in a public place, justifying a
warrantless arrest. United States v. Santana, 427 U.S. 38 (1976).
• Less clear is the situation where the suspect is inside the house until the police knock at the door, at which point the suspect
comes to the doorway.
Knock-and-Announce Rule An arrest warrant authorizes the police to enter a suspect’s home only if there is reason to believe the
suspect is within. As with search warrants, the knock-and-announce rule applies. Even if the police believe the suspect is at home,
they may not, absent special circumstances, forcibly enter a home to execute an arrest warrant unless they first knock, announce their
purpose for entering, request admittance, and are refused entry. Wilson v. Arkansas, 514 U.S. 927 (1995).
M*I*D*T*E*R*M
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Warrant Requirement Except in the case of emergency or consent, a warrant is required to enter a residential or commercial
building for the purpose of conducting administrative health and safety inspections therein.
However, such warrant is not based on probable cause to believe there is criminal activity underfoot. Camara v.
Municipal Court, 387 U.S. 523 (1967), and See v. City of Seattle, 387 U.S. 541 (1967).
Administrative Probable Cause Standard In Camara, the Supreme Court developed a special probable cause standard to apply
in administrative search cases. In such cases, probable cause exists to issue a warrant to inspect premises for administrative code
violations as long as there are “reasonable legislative or administrative standards” for conducting the inspection.
Administrative probable cause does not require individualized suspicion of wrongdoing and may be founded on the basis of general
factors such as:
• the passage of time since the last inspection.
• the nature of the building in question.
• the condition of the entire area to be searched.
“Special Needs” Searches Generally The “special needs” doctrine is another exception to the warrant and probable cause
requirements of the Fourth Amendment. Special needs cases generally arise from searches by government actors other than police
officers, such as school officials, public employers, and probation officers.
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• NEAR the Border The reasonableness of searches and seizures conducted near but not at the actual border depends in part
on whether they take place at a fixed checkpoint or as the result of a “roving” border patrol.
• Roving Border Patrols Traditional Fourth Amendment standards apply to searches and seizures conducted by roving border
patrol agents. Roving border patrol agents may not detain a person in a vehicle even briefly for questioning in the absence of
reasonable suspicion of illegal presence in the country or other illegal activity.
Factors that may justify a brief seizure to determine whether the occupants of a vehicle are illegal aliens include:
o information about recent illegal border crossings in the area;
o furtive behavior by the occupants of the vehicle; and
o evidence that the car has an “extraordinary number” of passengers.
Reasonable suspicion may not be based, however, exclusively on the fact that occupants of the vehicle appear to be
of foreign ancestry. United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (roving border patrol agents improperly
stopped a vehicle to question the occupants solely on the ground that they appeared to be of Mexican ancestry).
"Racial Profiling"?
• Fixed Interior Checkpoints Vehicles may be stopped and their occupants briefly detained for questioning at fixed
checkpoints, without individualized suspicion of wrongdoing. United States v. Martinez-Fuerte, 428 U.S. 543 (1976).
The Court distinguished fixed checkpoints from roving border patrols on two grounds:
(1) the lesser intrusion resulting from a fixed checkpoint than random stops on the highway; and
(2) the lesser discretion afforded officers maintaining the fixed checkpoints than the roving patrols.
Sobriety Checkpoints A highway sobriety checkpoint at which drivers were briefly detained (an average of 25 seconds) to search
for signs of intoxication was upheld despite the lack of individualized suspicion of driving under the influence. Michigan Department
of State Police v. Sitz, 496 U.S. 444 (1990).
o The interest in eradicating drunk driving was found to outweigh the “slight” intrusion on drivers.
Drug Interdiction Checkpoints A highway checkpoint established for the purpose of detecting possession and/or use of illegal
drugs has bee held to violate the Fourth Amendment. City of Indianapolis v. Edmond, 531 U.S. 32 (2000).
• As opposed to border and sobriety checkpoints, which are “designed primarily to serve purposes closely related to the problems
of policing the border or the necessity of ensuring roadway safety,” the drug interdiction checkpoint was aimed at detecting
evidence of ordinary criminal activity not related to the checkpoint.
• Thus, when non-specific crime control is its aim, a checkpoint must be based on individualized reasonable suspicion of
wrongdoing.
License and Vehicle Registration Inspections Stopping a vehicle solely for the purpose of checking driver’s license and
registration, without a reasonable suspicion that a motorist is unlicensed or the vehicle unregistered, is unreasonable under the Fourth
Amendment.” Delaware v. Prouse, 440 U.S. 648 (1979). However, the Court in Prouse indicated that a procedure to conduct
suspicionless license/ registration inspections that was less intrusive or did “not involve the unconstrained exercise of discretion”
might be permissible.
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“Legitimate Expectation of Privacy” Standard General Rule The modern test for determining whether a person has standing
to contest a search on Fourth Amendment grounds is “whether the person who claims the protection of the Amendment has a
legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128 (1978)
• Rakas (passenger in a car failed to prove that he had any legitimate expectation of privacy in the areas searched, namely, in
the locked glove compartment and the area under the front passenger seat, and therefore, could not successfully claim the
protections of the Fourth Amendment).
• Rakas rejected the notion of “target standing,” ruling that one does not possess standing to raise a Fourth Amendment claim
simply because he was the target of the search that resulted in the seizure of evidence against him.
(2) Merely Present: In contrast, one who is merely present in a residence, without further indicia of a reasonable expectation of
privacy, may not claim the protections of the Fourth Amendment. In Minnesota v. Carter, 525 U.S. 83 (1998), out-of-town
defendants came to another’s apartment for the sole purpose of packaging the cocaine, had never been to the apartment before and
were only in the apartment for approximately 2 1/2 hours.
The Court focused on three factors in finding that the defendants had no reasonable expectation of privacy in the
apartment searched:
(1) the purely commercial nature of the transaction engaged in there;
(2) the relatively short period of time in the apartment; and
(3) the lack of any previous connections between the two defendants and the occupant of the apartment.
Automobile Out of Owner’s Possession Courts are split on the issue of whether the owner of an automobile has standing to
challenge a search and seizure when the car is temporarily out of the owner’s possession at the time of the police conduct. Most
courts hold that when a car owner lends his/her vehicle to another, at least if for a short duration, the owner maintains a legitimate
expectation of privacy in it and, therefore, can challenge a search of the car that takes place in the owner’s absence.
• A few courts have held that possession, and not ownership of the car is the key. Therefore, an absent owner of an automobile
lacks standing to contest the search of his/her vehicle. More often, however, a court may rule that the owner lacks standing if the
owner gives another person complete control of the car and its contents for an extended period of time, especially if the vehicle
will be driven a considerable distance away from the owner.
Search of Another Person’s Automobile A non-owner occupant of an automobile may have standing to contest a search, under
the test set forth in Rakas [439 U.S. 128]. E.g., where the owner lends the car to the occupant for a period of time and the occupant
has complete dominion and control of the automobile at the time of the search, the occupant may be found to have had a reasonable
expectation of privacy in the automobile.
• Some courts have held that a passenger does not have standing to contest a search and seizure of a vehicle in
which the passenger is traveling.
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EXCLUSIONARY RULE
Exclusionary Rule General Rule Evidence gathered in violation of the Fourth Amendment is not admissible in a criminal
trial against the defendant.
1) The exclusionary rule was first stated in Weeks v. United States, 32 U.S. 383 (1914).
2) Thereafter, Fourth Amendment protection against unreasonable searches and seizures was held applicable to the states through
the Fourteenth Amendment's Due Process Clause in Wolf v. Colorado, 338 U.S. 25 (1949).
3) Later, the Court determined that the Fourth Amendment was enforceable against the states by the sanction of exclusion in
Mapp v. Ohio, 367 U.S. 643 (1961).
Circumstances Suggesting Invalidity of Warrant Circumstances which should suggest to a police officer that a search warrant is
not valid include:
1) the magistrate who issued the warrant relied on information supplied by an affiant who knew that the statements in the
document were false or who recklessly disregarded the truth;
2) the magistrate’s behavior was so lacking in neutrality that it would have been apparent to a reasonable officer, e.g., where
the magistrate acts as a rubber stamp for the police by signing the warrant without reading it, while in the presence of the
officer who later claims reliance;
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3) the warrant is based on an affidavit lacking sufficient indicia of reliability, e.g., if a warrant is issued based on a wholly
conclusory affidavit;
4) the warrant is facially deficient in that it fails to particularize the place to be searched or the things to be seized (Lo-Ji).
Improperly Executed Warrants The Leon [468 U.S. 897] “good faith” rule does not cure improperly executed warrants.
Extension of Good Faith Exception The good-faith exception has been extended to a non-warrant search based on an error
made by a court employee, rather than by a police officer. Arizona v. Evans, 514 U.S. 1 (1995) (a police officer relied on a clerical
error made by a court employee; because of the error, the patrol car computer showed that there was an outstanding misdemeanor
warrant for defendant’s arrest; a subsequent warrantless search of the defendant’s car incident to the arrest revealed marijuana).
“Fruit of the Poisonous Tree” Doctrine In general, the exclusionary rule extends not only to the direct products of an
unconstitutional search and seizure but also to ancillary evidence that results from the illegal search.
The fruit-of-the-poisonous-tree doctrine is subject to three qualifications:
(1) the independent source doctrine;
(2) the inevitable discovery rule; and
(3) the attenuated connection principle/"Dissipation-of-Taint".
(1) Independent Source Doctrine Evidence that is not causally linked to unconstitutional governmental activity is admissible
pursuant to the independent source doctrine.
The doctrine applies if the challenged evidence is:
1-first discovered during lawful police activity; or
2-initially discovered unlawfully, but is later obtained lawfully in a manner independent of the original discovery. Murray
v. United States, 487 U.S. 533 (1988).
(2) Inevitable Discovery Rule Evidence obtained illegally may be admissible in a criminal trial if the prosecutor proves by a
preponderance of the evidence that the challenged evidence “ultimately or inevitably would have been discovered by lawful means.”
Nix v. William, 467 U.S. 431 (1984).
(3) Attenuated Connection Principle Evidence that otherwise qualifies as fruit-of-the-poisonous-tree may be admissible if its
connection with the illegal police activity is so attenuated that it is purged of the taint. Nardone v. United States, 308 U.S. 338
(1939); Wong Sun v. United States, 371 U.S. 471 (1963).
Factors that may influence whether fruit of the poisonous tree evidence is purged of its taint include:
(1) Temporal Proximity The shorter the time lapse between the Fourth Amendment violation and the acquisition of the
challenged evidence, the more likely it is that a court will conclude that the evidence is tainted.
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a. For example, in Wong Sun [371 U.S. 471], the police obtained a statement from the defendant in his bedroom
immediately after his unlawful arrest.
b. The Court suppressed this evidence, “which derive[d] so immediately from the unlawful entry.”
(2) Intervening Events The more factors that intervene between the Fourth Amendment violation and the seizure of the
challenged evidence, the more likely it is that the evidence will be deemed to have lost its taint.
(3) Intervening Act of Free Will An intervening act of free will can remove the taint of an earlier Fourth Amendment
violation.
a. For example, in Wong Sun [371 U.S. 471], upon his release from jail after his unlawful arrest, the defendant later
voluntarily returned to the police station and provided a written statement.
i. The Court found that the voluntary nature of the defendant’s conduct removed from his statement any
statement from the initial violation.
b. However, the Court has warned that Miranda [Miranda v. Arizona, 384 U.S. 436 (1966)] warnings alone cannot
convert a confession following a Fourth Amendment violation into a product of free will, breaking the link between
the statement and the violation. Brown v. Illinois, 422 U.S. 59 (1975).
i. Therefore, if the police:
1. arrest a suspect on less than probable cause,
2. administer Miranda warnings,
3. obtain a waiver from the suspect, and
4. thereafter secure a confession,
ii. the question of whether the subsequent statement was the product of the suspect’s free will must be
determined based on the totality of the circumstances.
c. Payton violation Where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the
State’s use of a statement made by the defendant outside of his home, even when he was arrested in his home
without a warrant in violation of Payton. New York v. Harris, 495 U.S. 14 (1990).
d. Flagrancy of the Violation Fruit of the poisonous tree evidence is less likely to be free of taint if the Fourth
Amendment violation was flagrant rather than unintentional.
e. Nature of the Derivative Evidence Some evidence, by its nature, is more susceptible to dissipation of the taint
than other evidence, e.g., verbal evidence is more likely to be admissible than physical evidence.
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In Leon, the Supreme Court of the United States enunciated a good faith exception to the Fourth Amendment exclusionary rule, which
provided that evidence that was seized in violation of the Fourth Amendment by an officer who reasonably relied in good faith on a
warrant that was issued by a neutral magistrate would not be excluded from the case-in-chief. This was a clear statement by the
Court of a retreat from previous Court precedent that had indicated that the exclusionary rule was a constitutionally compelled
corollary of the Fourth Amendment.
The exclusionary rule was first stated in Weeks v. United States applicable to the states through the Fourteenth Amendment's Due
Process Clause in Wolf v. Colorado enforceable against the states by the sanction of exclusion in Mapp v. Ohio.
In the context of the exception to the Fourth Amendment's exclusionary rule, a court's "good-faith" inquiry is confined to the
objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite
the magistrate's authorization. In making this determination, all of the circumstances, including whether the warrant application had
previously been rejected by a different magistrate, may be considered.
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Hector (A Slave) v. State, 2 Mo. 166 (1829) Hypacritically Slaves were property yet they were provided with the rights of Criminal
Law, Pres. Lincoln stressed this.
Defendant sought review of the judgment of the trial court (Missouri), which convicted him of burglary. On appeal, the court held that
the trial court erred in not excluding the confession. The court determined that defendant's confession was made to gain a respite
from the pain of the flogging. The court stated that the trial court erred in instructing the jury that all confessions made freely and
voluntarily by defendant were evidence because the issue of whether a confession was made freely and voluntarily to be
competent testimony is/was a matter of law to be decided by the court and not by the jury. Reversed and new trial ordered.
****
As Justice Brandeis so wisely urged:
****
Voluntary Confessions A confession that is
freely and voluntarily made,
following proper Miranda [384 U.S. 436] warnings,
is admissible against the defendant at a criminal trial.
The voluntariness of a confession is to be assessed from the "totality-of-all-the-circumstances", taking into account both
the characteristics of the accused and
the details of the interrogation.
Involuntary Confessions A confession that results from police coercion violates the Fifth Amendment privilege against
compulsory self-incrimination.
The following factors may negate the voluntariness of a confession. Voluntariness is based on a fundamentally moral underpinning
against wrongs. Connection to moral underpinnings and the law:
(1) Actual or Threatened Physical Force A confession obtained by threatened or actual use of violence is inadmissible.
Confessions have also been invalidated when the police have “warned” a suspect that, unless he confesses, he may be the victim of
mob violence or deadly attacks from fellow prisoners.
(2) Deprivation Confessions have been suppressed in cases in which the police deprived a suspect of food, water, or sleep, for an
extended period of time.
(3) Psychological Pressures Among the relevant factors that determine whether undue psychological pressure (coercion) was
imposed on a suspect are:
• length of custodial detention.
• whether the interrogation was prolonged.
• whether the questioning occurred in the daytime or at night.
• whether the confession was given in narrative or question and answer format.
• whether the interrogation is conducted incommunicado.
• the venerability of the suspect in the setting (e.g., confession elicited by police officer while suspect was in hospital).
• the personal characteristics of the suspect (e.g., age, intelligence, level of education, psychological makeup, and prior
experience with the police).
(4) Promises of Leniency A confession is not necessarily a product of coercion where the police expressly or implicitly promise
leniency in exchange for the suspect’s cooperation. Arizona v. Fulminante, 499 U.S. 279 (1991) (repudiating Bram v. United States,
168 U.S. 532 (1897), which held that a confession was involuntary if it was obtained by any promise for leniency, “however slight”).
• Lower courts have determined that some types of promises of leniency will render a confession involuntary, such as assurances
that some of the charges will be dropped or that the defendant will receive a reduction in punishment.
• However, standing alone, courts rarely invalidate a confession based on a mere promise by the police to bring the defendant’s
cooperation to the prosecutor’s attention, or promise that a prosecutor will discuss leniency in exchange for a confession,
without in fact making any assurances as to results.
(5) Threat of Harsh Legal Treatment A confession procured by a threat of especially harsh treatment – directed at the suspect
himself or another – may be invalid. E.g., Rogers v. Richmond, 365 U.S. 534 (1961) (suppressing a confession as involuntary
because it was secured in response to a wrongful police threat to take the suspect’s wife into custody).
• Some lower courts have ruled that a confession is involuntary if the police threaten to inform the prosecutor of a suspect’s
refusal to cooperate, since this is a threat to penalize the suspect for asserting his privilege against compulsory self-
incrimination.
(6) Deception Deception about the strength of the case against the suspect – e.g., if the police falsely inform a suspect that an
accomplice has already confessed – without more, generally will not invalidate a confession, although it may be a factor weighed in
an assessment of the voluntariness of the confession.
Exclusionary Rule
Impeachment A coerced confession is inadmissible at the defendant’s criminal trial for all purposes, including impeachment.
Fruit-of-the-Poisonous-Tree Doctrine The Supreme Court has not expressly addressed whether the fruit-of-the-poisonous-tree
doctrine applies to coerced confessions, but it is generally assumed that the doctrine does apply in such circumstances.
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CUSTODIAL INTERROGATION
(BROYLES) -- MIRANDA ANALYSIS
I. CUSTODY II. INTERROGATION III. SUBSTANCE OF THE IV. WAIVER
MIRANDA WARNING
Was he "in-custody"? Did what they say or did, was it i. Right to remain silent Knowing and Voluntary
Duration? reasonable likely to cause him to ii. Anything said can be waiver Burden is on the
Armed? speak or confess? used against you prosecution.
Others present? Could the words or action have in court of law
been seen as to illicit a response? iii. You have the right to
Were the acts or statements an attorney
something that would be known -IN-CLASS EXAMPLE
likely to illicit a response? STOPPED HERE-
iv. If you cannot afford
one (indigents),
one will [may] be
appointed to you.
Yes/No Questions will they fall "Knowingly and Completely"
into the type discussed Hiiebel
Miranda v. Arizona The landmark case of Miranda v. Arizona, 384 U.S. 436 (1966), resulted from the consolidation of four cases
on appeal. In each case, the suspect was taken into custody, questioned in a police interrogation room in which the suspect was alone
with the interrogators, and never informed of his privilege against self-incrimination.
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• Miranda held that any statement, whether exculpatory or inculpatory, obtained as the result of custodial interrogation could not
be used against the suspect in a criminal trial unless the police provided procedural safeguards effective to secure the suspect’s
privilege against compulsory self-incrimination.
o “Custodial interrogation” is defined in Miranda as “questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in any significant way.”
“Custody” A person is deemed to be in custody if he is deprived of his freedom of action “in any significant way.” “Custody”
requires the existence of coercive conditions that would cause a reasonable person to believe, under all the circumstances
surrounding the interrogation, that he is not free to go.
• Not all coercive environments equate to “custody.”
o For example, a police interrogation room may be deemed a coercive environment but the totality of the circumstances
may indicate that a person is not in custody – e.g., he came to the police station voluntarily, was informed prior to
questioning that he was not under arrest, and he was free to leave the police station at any time. See Oregon v.
Mathiason, 429 U.S. 492 (1971); California v. Beheler, 463 U.S. 1121 (1983).
• Brief detention by the police likewise does not necessarily put one in custody, for example, brief questioning during a routine
traffic stop or roadblock. Berkemer v. McCarty, 468 U.S. 420 (1984).
“Interrogation” For purposes of Miranda [384 U.S. 436], “interrogation” refers to express questioning or its “functional
equivalent,” i.e., “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291
(1980).
• For example, if the police know the person in custody may be susceptible to certain forms of persuasion, any statements or
actions designed to play upon such susceptibilities may be deemed the functional equivalent of interrogation.
o In Innis, a murder suspect was being transported to the police station when the police commented that they hoped that
the murder weapon, which had not yet been located, would not be found by any children from a nearby school for the
handicapped. In response, the suspect, who had previously requested a lawyer, revealed the location of the gun.
The Court held that the comments were not the functional equivalent of interrogation because it found:
(1) the comments were brief;
(2) the comments were not particularly evocative;
(3) the suspect was not disoriented or upset when the comments were made;
(4) there was no evidence that the police should have known that the suspect would be susceptible to an appeal to his
conscience.
Procedural Safeguards: The “Miranda Warnings” ***Failure to administer Miranda warnings creates a presumption of
compulsion. Oregon v. Elstad
Content of Miranda Warnings The Court in Miranda [384 U.S. 436] noted that Congress and the states are free to develop
procedural safeguards for protecting a suspect’s Fifth Amendment rights during custodial interrogation. However, unless they are
“fully as effective” as those described in Miranda, the
police must apprise the suspect issue, prior to custodial interrogation, that:
(1) the suspect has a right to remain silent;
(2) anything said can and will be used against the suspect in court;
(3) the suspect has the right to consult with a lawyer and to have his lawyer present during interrogation;
(4) if the suspect is indigent a lawyer will be appointed to represent him.
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Right to Remain Silent Miranda [384 U.S. 436] states that, once warnings are given, if the suspect indicates that he wishes to
remain silent, the interrogation must cease. The police must honor a suspect’s right to silence after he asserts the privilege but are
not necessarily precluded from attempting to interrogate the suspect under different circumstances. See Michigan v. Mosley, 423 U.S.
96 (1975) (holding that the police did not violate the defendant’s Fifth Amendment rights when the interrogation ceased immediately
upon request; two hours elapsed; the subsequent questioning was by a different officer, in a different location, for a different crime;
and Miranda warnings were restated).
Fifth Amendment Right When a suspect in custody invokes his right under Miranda [384 U.S. 436] to consult with an attorney,
the police must cease the interrogation until the suspect’s attorney is present unless the suspect initiates further “communication,
exchanges, or conversations” with the police. Edwards v. Arizona, 451 U.S. 477 (1981). This rule is intended “to prevent police from
badgering a defendant into waiving his previously asserted Miranda rights” and applies to all interrogation, including questioning
about crimes other than the one for which the suspect is in custody. However, the Edwards rule does not apply unless a suspect
unambiguously asserts his right to counsel. Davis v. United States, 512 U.S. 452 (1994).
• Furthermore, once a suspect in custody invokes his Miranda [384 U.S. 436] right to counsel, the police may not re-initiate
interrogation at any time thereafter unless counsel is present. Minnick v. Mississippi, 498 U.S. 146 (1990).
• Where the suspect initiates communications with the police in the absence of counsel, the police may recommence interrogation
upon obtaining a valid waiver of his Fifth Amendment rights. A suspect initiates communications, exchanges or conversations
by any comment or inquiry that indicates his desire to engage in a discussion relating directly or indirectly to the investigation.
Comments or inquiries “relating to routine incidents of the custodial relationship,” such as a request for water or to use a
telephone, do not qualify as “communications, exchanges, or conversations” and thus do not properly trigger further police
interrogation. Oregon v. Bradshaw, 462 U.S. 1039 (1983).
Sixth Amendment Right The right to counsel guaranteed as a result of Miranda v. Arizona [384 U.S. 436] falls within the
protections of the Fifth Amendment and is available to a suspect upon being taken into custody. This right differs in various respects
from the right to counsel in the Sixth Amendment, which, with the exception of the ruling in Escobedo v. Illinois, 378 U.S. 478
(1964) (a pre-Miranda decision), has been held to attach only upon commencement of criminal proceedings, e.g., upon filing of an
indictment. [See Chapter 11, Sixth Amendment Right to Counsel: Interrogation.]
Elements of Valid Waiver Miranda [384 U.S. 436] states that a valid waiver of Fifth Amendment rights during interrogation
“could” be found when, after the reading of Miranda rights, a suspect expressly states a willingness to make a statement, without the
presence of an attorney, “followed closely” by such statement.
• The validity of the waiver must be based on an assessment of “ ‘the particular facts and circumstances surrounding that case,
including the background, experience, and conduct of the accused.’ ” Edwards v. Arizona, 451 U.S. at 482 (quoting Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)).
Voluntary, Knowing, and Intelligent Waiver In order to be valid, a waiver must have been given “voluntarily, knowingly, and
intelligently.” Colorado v. Connelly, 479 U.S. 157 (1986).
• A voluntary waiver is “the product of a free and deliberate choice rather than intimidation, coercion, or deception.”
• A knowing and intelligent waiver is made with “full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412 (1986).
• A waiver cannot be deemed “knowing and intelligent” unless the police issued proper Miranda [384 U.S. 436] warnings.
Express and Implied Waiver A valid waiver may not be presumed simply from the suspect’s silence following reading of the
Miranda [384 U.S. 436] warnings or from the fact that he confesses.
• Nevertheless, an express statement of waiver is not invariably necessary. North Carolina v. Butler, 441 U.S. 369 (1979).
• In some cases, waiver may be clearly inferred from the suspect’s words and actions that follow Miranda warnings, although the
Supreme Court has given little guidance on when such circumstances exist.
Inapplicability of Miranda
Interrogation by Undercover Police*** Miranda [384 U.S. 436] warnings are not required if the suspect being questioned is
unaware that the interrogator is a police officer. Illinois v. Perkins, 496 U.S. 292 (1990) (an undercover police agent, posing as a
criminal, was positioned in the defendant’s cellblock and engaged the defendant in a conversation designed to elicit details of the
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crime for which he was suspected; the Court held that such statements, although the result of interrogation while in custody, and in the
absence of Miranda warnings, were admissible).
Physical Evidence*** Since the privilege against compulsory self-incrimination applies only to testimonial or communicative
evidence, Miranda [384 U.S. 436] warnings are not required in order for the police to compel the production of physical or real
evidence, such as a blood, breath, or handwriting sample.
Exigent Circumstances A "public safety exception" to Miranda [384 U.S. 436] allows the police to interrogate a suspect prior
to Miranda warnings if an exigency exists that requires immediate police action to ensure public safety, e.g., to locate a loaded
weapon in a public place. The questions asked prior to issuance of the warnings must be directed at the exigent circumstances only.
New York v. Quarles, 467 U.S. 649 (1984) (observing that the defendant, who had just attacked a woman and then fled into a grocery
store, had an empty shoulder holster, an officer validly asked the defendant, without issuing Miranda warnings, where the gun was).
Test is enunciated in one of the footnotes (per Broyles in NY v. Quarles, pp. 589-97)
• Immediacy
• Investigatory nature
• Questions going to the public interest aspect of the nature
Impeachment Exception*** A statement obtained in violation of Miranda [384 U.S. 436] may be used to impeach a defendant at
trial. Harris v. New York, 401 U.S. 222 (1971).
Truly Coerced Statements*** New Jersey v. Portash, 440 U.S. 450 (1979) a "defendants compelled statements, as opposed to
statements taken in violation of Miranda, may not be put to any testimonial use against them in a criminal trial." Unlike statements
taken in violation if the Fourth Amendment, compelled confession cannot be used for any purpose.
Arrested Persons Silence*** Doyle v. Ohio, 426 U.S. 610 (1976) it would be "fundamentally unfair and a depravation of due
process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial."
"Fruit-of-the-Poisonous-Tree" Doctrine***
• The Supreme Court has interpreted Miranda [384 U.S. 436] to not support the “fruit-of-the-poisonous-tree” doctrine.
Michigan v. Tucker, 417 U.S. 433 (1974) (the government may call a witness to testify at trial, even if that witness’s
identity became known as a result of a statement by defendant secured in violation of Miranda); Oregon v. Elstad, 470
U.S. 298 (1985) (the government may introduce a defendant’s own voluntary, post-Miranda, admissions, even if they
were obtained as a result of an earlier Miranda violation).
o Elstad, so long as the second statement is voluntary, and the first statements is voluntary yet inadmissible, the
second is good.
• However, Tucker [417 U.S. 433] and Elstad [470 U.S. 298] were based on the premise that Miranda [384 U.S. 436] was a
“prophylactic” but not a constitutional rule.
• Subsequently, the Court in Dickerson v. United States, 530 U.S. 428 (2000), departed from the reasoning in Tucker and
stated that Miranda was in fact a constitutional decision.
• Nevertheless, the Court has not thus far reversed its position on the inapplicability of the fruit-of-the-poisonous-tree doctrine
to statements obtained in violation of Miranda.
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(b) deprive an accused of knowledge essential to the accused's ability to understand the
(i) nature of the accused's rights, and
(ii) consequences of abandoning them; and
(2) it ordinarily would be unrealistic to treat two spates of integrated and proximately-conducted questioning as independent
interrogations subject to independent evaluation simply because Miranda warnings had formally punctuated them in the middle.
***
Dissent reasoned:
(1) the officer's two-step interrogation procedure ought to have been analyzed under the voluntariness standards that were central to
the Fifth Amendment and had been reiterated in Oregon v Elstad (1985) 470 U.S. 298 (1985);
(2) Elstad commanded that if the accused's first statement was shown to have been involuntary, then the court was required to
examine whether the taint had dissipated through
(a) the passing of time, or
(b) a change in circumstance; …
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NOTES
United States v. Long Tong Kiam, 343 F. Supp. 2d 398, 407 (E.D. Pa. 2004)
In Seibert, the plurality contrasted Elstad by listing five factors that bear on whether courts should hold midstream Miranda warnings
effective:
(1) the completeness and detail of the questions and answers in the first round of interrogation,
(2) the overlapping content of the two statements,
(3) the timing and setting of the first and second,
(4) the continuity of police personnel, and
(5) the degree to which the interrogator's questions treated the second round as continuous with the first.
A court applying Seibert should follow three steps.
(1) First, the court should determine whether law enforcement personnel deliberately employed the two-round interrogation
strategy for the purpose of sidestepping Miranda.
(2) Then, to determine whether a given situation is more like that in Elstad or Seibert, the court should apply the five factors the
Seibert plurality enunciated. Finally, if after applying these factors, the court concludes that the facts are more like those in
Seibert than Elstad, it should follow a third, final step:
(3) determining whether the interrogator took any curative measures. Assuming that he or she did not, the confession is
inadmissible.
**************************
Text of Sixth Amendment The Sixth Amendment reads in relevant part: “In all criminal prosecutions, the accused shall . . .
have the Assistance of counsel for his defense.”
When the Right Attaches The Sixth Amendment right to counsel exists for “criminal prosecutions.” Thus, the right attaches
only upon commencement of adversary judicial proceedings, such as preliminary hearing, indictment, information, or arraignment.
Brewer v. Williams, 430 U.S. 387 (1977).
“Deliberate Elicitation” The Sixth Amendment has been interpreted to prohibit the government from deliberately eliciting
incriminating information from an accused, in the absence of defense counsel, once adversary judicial criminal proceedings have
commenced. Massiah v. United States, 377 U.S. 201 (1964).
An investigatory technique constitutes elicitation if it is “the equivalent of direct police interrogation.” Kuhlmann v. Wilson, 477 U.S.
436 (1986).
Deliberate elicitation occurs when the government through its overt or covert police agent:
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(1) acts with the purpose of eliciting incriminating information from the accused regarding the pending charges, without regard to the
likelihood that the elicitation will be successful; or
(2) creates an opportunity for the accused to make incriminating statements about the pending charges.
(1) Police Acts With Purpose Examples of purposeful police conduct that may elicit incriminating statements from the
accused include:
• an officer formally interrogates the accused.
• an undercover agent engages the accused in a conversation about the criminal activity.
• an officer makes statements that are designed to play on the conscience of the accused in order to induce
incriminating remarks.
(2) Police Create an Opportunity for Incriminating Statements
• Deliberate elicitation may be found where the government creates a situation likely to induce the defendant to make
incriminating statements. For example, in United States v. Henry, 47 U.S. 264 (1980), the FBI placed an informant
– who was to be paid on a contingent basis – in the defendant’s jail cell after he had been indicted. The FBI advised
the informant “to be alert to any statement” the defendant made, but not to initiate any conversations with the
defendant or ask him questions. Nevertheless, the informant engaged the defendant in conversation, during which
he made incriminating statements that the government sought to introduce at his trial. Focusing on several factors,
including that the paid informant had an incentive to elicit information from the defendant, the Court found that the
government had created an opportunity for the accused to incriminate himself, in the absence of counsel, thereby
violating his Sixth Amendment right.
• The government may be found to have unlawfully created an opportunity for the accused to incriminate himself in
violation of the Sixth Amendment even if the encounter with an informant or undercover agent is initiated by the
accused himself. In Maine v. Moulton, 474 U.S. 159 (1985), subsequent to the defendant’s indictment, the police
installed a recording device on an informant’s telephone. The defendant, unaware of such action, telephoned the
informant three times, during which he discussed the criminal charges against them. The Supreme Court again held
that the defendant’s Sixth Amendment right to counsel was violated by the government’s creation of an opportunity
for defendant to incriminate himself, irregardless of the fact that the defendant initiated the conversations.
• However, if a government agent does no more than listen, without proactively inducing the accused to make
incriminating statements – such as by placing an undercover agent or informant in an accused’s jail cell and merely
reporting the accused’s unsolicited incriminating statements – such action does not constitute deliberate elicitation.
(1) When the Accused Requests Counsel Once the Sixth Amendment right to counsel attaches, and the accused requests
counsel, the government may not initiate conversation with the accused relating to the crime at hand in the absence of
counsel, even if the accused waives the right in response to the police elicitation. However, if the accused initiates
conversation with the police, and waives his right to counsel, interrogation in the absence of counsel may proceed.
Michigan v. Jackson, 475 U.S. 625 (1986) (defendant was appointed counsel whom he had not yet met when the police
contacted the defendant, read him his Miranda [384 U.S. 436] rights, obtained a waiver, and questioned him, even though the
defendant had asked for his lawyer several times; the Court held that the waiver was invalid because the police initiated the
conversation after the defendant had requested counsel).
(2) When the Accused Does Not Request Counsel
a. Before Counsel is Appointed or Hired In the absence of a request for counsel after the right attaches, the
police are permitted to seek from the accused a waiver of his right to counsel. Patterson v. Illinois, 487 U.S. 285
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(1988) (upholding the admissibility of the post-indictment statements made after issuance of Miranda [384 U.S.
436] warnings and procurement of a waiver of the right to counsel, where at the time of the post-indictment
questioning, the defendant had not yet retained, or accepted by appointment, a lawyer to represent him).
b. After Counsel is Appointed or Hired The Supreme Court has not directly addressed the issue of whether a
waiver is valid where counsel has been appointed but the accused has not actually requested to meet with his lawyer.
However, in a footnote in Patterson [487 U.S. 285], the Court hinted that once counsel has been appointed or hired,
the police may not seek a waiver of the right to counsel from the defendant until he has had the opportunity to meet
with counsel (stating that it was “a matter of some significance” that the defendant, whose waiver of right to counsel
was found valid, had not yet retained or been appointed counsel). A footnote in Cobb [532 U.S. 162], however,
calls this position into question (stating “there is no ‘background principle’ of our Sixth Amendment jurisprudence
establishing that there may be no contact between a defendant and police without counsel present”), suggesting that
a waiver may be valid if the accused does not request assistance of counsel even if counsel has been appointed.
(3) Sufficiency of Waiver As with waiver of the right to counsel during custodial interrogation, a waiver of the right to
counsel prior to post-indictment interrogation must be voluntary and made “knowingly and intelligently.” [See Chapter 9,
Custodial Interrogation.]
Impeachment The Court has addressed whether a statement secured in violation of the Sixth Amendment may be used for
impeachment purposes in only a limited context. If the police initiate conversation with an accused who has requested counsel, in
violation of the rule in Michigan v. Jackson, incriminating statements may be used for impeachment if the accused subsequently
waived the right, despite the fact that the improper police conduct precludes admission of the statements as part of the prosecution’s
direct case. Michigan v. Harvey, 494 U.S. 344 (1990).
Fruit-of-the-Poisonous-Tree Doctrine The fruit-of-the-poisonous-tree doctrine applies to violations of the Sixth Amendment
right to counsel. See Nix v. Williams, 467 U.S. 431 (1984). [See Chapter 7, Exclusionary Rule.]
Comparison of Right to Counsel During Interrogations Under Sixth Amendment and Miranda
The right to counsel under the Sixth Amendment and the Fifth Amendment Miranda [384 U.S. 436] decision differ in the following
ways:
(1) Timing – The Sixth Amendment right applies only after adversary judicial criminal proceedings have been initiated against the
accused; the Fifth Amendment right attaches once the defendant is taken into custody.
(2) Custody – The Fifth Amendment right does not attach unless the suspect is in custody; the Sixth Amendment is not so limited,
e.g., it applies when the accused has been released from custody on bail or on his own recognizance.
(3) Nature of offense – The Sixth Amendment right is offense-specific; the Fifth Amendment right to counsel applies to any and all
offenses, once custodial interrogation commences.
(4) Focus of inquiry – The Fifth Amendment right to counsel applies when the custodial suspect is “interrogated,” and focuses on
the perceptions of the suspect (whether he believes he is in custody); the Sixth Amendment prohibits “deliberate elicitation,” and
focuses on the intentions of the police.
(5) Questioning by undercover agent or informant – The Fifth Amendment right to counsel is not invoked when the suspect is
questioned by an informant or undercover officer; the Sixth Amendment applies to deliberate elicitation by overt and covert
government agents.
(6) Fruit-of-the-poisonous-tree doctrine – The doctrine applies to Sixth Amendment violations; the doctrine does not apply to
violations of the Fifth Amendment right to counsel.
(7) Impeachment – Statements secured in violation of the Fifth Amendment right may be used for impeachment purposes;
statements secured in violation of the Sixth Amendment Jackson [475 U.S. 625] rule may be used for impeachment.
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• Two forms of immunity may be granted to a witness. “Transactional” immunity protects a witness from prosecution for any
offense that is the subject of the questioning. “Use” immunity permits prosecution of the witness regarding the matter on
which he is questioned but precludes admission of the compelled testimony at his criminal trial.
Exceptions to the Privilege Against Self-Incrimination
The privilege against self-incrimination applies to situations where the statements could be used in a criminal proceeding.
Thus, testimonial evidence, even if incriminating may be compelled in a variety of non-criminal contexts.
Required-Records Doctrine
Under the “required-records” doctrine, a party may be compelled to produce documents that it is required by law to
maintain. The doctrine applies where the statutory record-keeping requirement is:
(1) imposed in an essentially non-criminal and regulatory area;
(2) directed at the public at large, not at a select group inherently suspect of criminal activities; and
(3) rationally related to the regulatory purpose.
See, e.g., Shapiro v. United States, 335 U.S. 1 (1948) (upholding the constitutionality of federal regulations issued
under the Emergency Price Control Act, which required certain licensed businesses to maintain records of their
business activities and to make them available for inspection by the government upon request); California v. Byers,
402 U.S. 424 (1971) (upholding a state hit-and-run statute that required drivers involved in a vehicular accident to
stop at the scene and report name and address).
Object of Regulatory Interest
The ability to invoke the privilege against self-incrimination is limited when a person assumes control over items or
persons that are the legitimate object of the government’s non-criminal regulatory authority. In Baltimore City
Department of Social Services v. Bouknight, 493 U.S. 549 (1990), the Supreme Court ruled that a mother who had
previously lost custody of her child because of suspected child abuse, but was permitted temporary custody of the
child subject to various court conditions, could not assert the privilege against self-incrimination to resist
compliance with a subsequent court order that she produce the child or otherwise reveal his whereabouts. Because
the child’s care and safety had become an object of the state’s regulatory concern, the mother, upon accepting
temporary custody of the child, became subject “to the routine operation of the regulatory system” and thus was
required to comply with its requirements.
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Crim Pro Midterm Model Answer
Rule: Aerial viewing from navigable airspace is not a 4th A search, if the search: 1) occurs from publically nav.
Airspace; 2) is conducted in a physically nonintrusive manner; and 3) does not reveal intimate activities traditionally
associated with the use of a home or cartilage.
Rules: (1) No SW required when a Party Consents to Entry or Search of his/her property.
(2) Pros. has burden of proving Consent was Voluntarily given (though need not be knowing).
--Totality of the Circumstances test (e.g., (1) show of force; (2) Large # of Officers; (3) Repeat requests after initial
refusal; (4) subject’s personal characteristics.
Analysis:
Rules:
(1) “Open fields” Doctrine : Entry onto an open field does not constitute a 4th A “search”, as it does not provide the
setting for those Intimate Activities the 4th A intended to protect
(2) “Curtilages” are areas where people reasonably expect to be the scene of those Intimate Activities that are tied to the
privacy of the home. ---Factors:
i. The Proximity of the area in q. to the home
ii. Whether the area is included w/in an enclosure surrounding the home
iii. The nature of the uses to which the area is put, and
iv. The steps taken by the resident to protect the area from observation by people passing by
Analysis:
Rule: Objects may be seized w/out a Warrant if they are in “plain view” of an officer lawfully on the scene.
Elements:
1. Officer observes the article from a Lawful Vantage Point (e.g., SW; C w/ Exigent Circs.)
2. O. has a right of Physical Access to the article (i.e., scope issues)
3. Article’s nature as contraband is Immediately Apparent when O. seizes it (i.e., has PC to seize it)
Analysis:
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