1-Legal Principles and Requirements

Study Unit
Legal Principles
and Requirements
By
Brian K. Buggé, CPP
Contributing Reviewer
Leroy E. Cook
About the Author
Brian K. Buggé’s career in law enforcement spans several decades.
He began as a young investigative aide with the U.S. Secret Service.
Working his way through college, he became a New York City cor-
rection officer in 1972, and in 1979, a police officer with the Suffolk
County Police Department in Long Island, New York, earning a pro-
motion to sergeant in 1987.
Mr. Buggé is a New York State certified crime prevention officer,
criminal investigator, police instructor, and security guard instruc-
tor. He also holds the distinguished Certified Protection Professional
(CPP) designation bestowed by the American Society for Industrial
Security (ASIS).
Mr. Buggé holds a bachelor’s degree in Police Science and a master’s
degree in Criminal Justice from John Jay College of Criminal Justice
(CUNY). He is an adjunct assistant professor of criminal justice at
Suffolk County Community College. He is also a professionally pub-
lished writer and active member of the Authors’ Guild, Inc.
About the Contributing Reviewer

Leroy E. Cook is the founder and president of ION Incorporated. Prior
to founding ION in 1987 he operated his own investigation agency
for 15 years, served 8½ years as an all-lines adjuster and branch
manager with the General Adjustment Bureau, and spent 3 years as
a sales trainer for Field Enterprises Educational Corp. He has been
awarded numerous investigative industry certifications, including CLI
(Certified Legal Investigator), CII (Certified International Investigator),
CFE (Certified Fraud Examiner), and CPP (Certified Protection
Professional). He has lectured at conferences of the World Association
of Detectives, National Council of Investigative and Security Services,
and the American Society of Industrial Security. He served as a
check pilot and provided flight instruction in Alaska for 12 years.
All terms mentioned in this text that are known to be trademarks or service
marks have been appropriately capitalized. Use of a term in this text should not
be regarded as affecting the validity of any trademark or service mark.
Copyright © 2003 by Penn Foster, Inc.
All rights reserved. No part of the material protected by this copyright
may be reproduced or utilized in any form or by any means, electronic
or mechanical, including photocopying, recording, or by any information
storage and retrieval system, without permission in writing from the copy-
right owner.
Requests for permission to make copies of any part of the work should
be mailed to Copyright Permissions, Penn Foster, 925 Oak Street, Scranton,
Pennsylvania 18515.
Printed in the United States of America

Legal Principles and Requirements will
introduce you to the most important
principles of law related to private
investigations. A career in private inves-
tigation should be firmly grounded in
an understanding of a few basic legal
Preview
principles. This study unit will intro-
duce you to enough of the basics of the
legal system to serve as a starting point
for the ongoing learning that makes private investigation an
exciting career. You’ll be introduced to several Supreme Court
cases and c ertain Constitutional amendments. Various local,
state, and federal laws that directly affect your work as a pri-
vate investigator must be understood, and, because laws differ
in d
ifferent states, you’ll need to do some research on your
own. You’ll be given guidance in this unit on how to do the
needed research.
Knowledge of the legal principles discussed in this study
unit is indispensable. Some of these principles will help you
understand what your clients need. Others deal with what
conduct is proper, and what you can and can’t legally do as
a private investigator. Everything else you learn about pri-
vate investigation should build on and be weighed against the
information in this unit as a point of reference.
When you complete this study unit, you’ll be able to

• Know and differentiate between civil law, equity, and
criminal law
• Name and explain the basic steps of the legal system for
dealing with civil matters
• Name and explain the basic steps of the legal system for
dealing with criminal matters
• Compare and contrast the laws regulating arrests in terms
of how these laws apply to both public law enforcement and
private security
• Describe those amendments to the U.S. Constitution that
will affect your work as a private investigator
• Discuss some of the famous decisions of the U.S. Supreme
Court involving law enforcement and private investigations
iii
INTRODUCTION 1
Legal Terminology 1
Three Areas of the Law 4
Contents
CIVIL LAW 6
Litigation 7
Negligence 7
Overlap of Civil and Criminal Issues 8
Contributory Negligence 9
IMPORTANT LAWS AND DECISIONS, CIVIL 11

The Fair Credit Reporting Act 11
Gramm-Leach-Bliley 12
Burdeau v. McDowell (1921) 13
People v. Zelinski (1979) 13
Daubert 15
Kumho Tire 20
EQUITY 22
CRIMINAL LAW 22
Merchant Privilege Laws 23
Probable Cause 24
Felonies and Misdemeanors 25
Other Classifications of Criminal Law 26
Mens Rea 26
Culpable Mental States 27
IMPORTANT LAWS AND DECISIONS, CRIMINAL 28

Mapp v. Ohio (1961) 28
Gideon v. Wainwright (1963) 30
Miranda v. Arizona (1966) 31
THE UNITED STATES CONSTITUTION 33

Relevant Constitutional Amendments 33
The Fourth Amendment (1791) 35
The Fifth Amendment (1791) 36
The Sixth Amendment (1791) 38
The Fourteenth Amendment, Section 1 (1868) 38
v
LEGAL CONSIDERATIONS FOR
PRIVATE INVESTIGATORS 42
Criminal and Civil Complaints 42
Local and State Laws 43
Case Law 44
Procedural and Statutory Law 45
Special Legal Considerations for
Private Investigators 46
Interviewing 47
Use of Force 49
Privacy Issues 51
Evidence 52
Surveillance 53
“Dumpster Diving” 55
SUMMARY 58
PRACTICAL EXERCISES 58
Exercise 1 59
Exercise 2 60
APPENDIX A—FCRA 63
The Fair Credit Reporting Act 63
Civil Rights and Employee Investigation
Clarification Act 65
APPENDIX B—GLBA 67
The Gramm-Leach-Bliley Act, Its Privacy
Regulations, and Financial Institutions 67
Results of a Gramm-Leach-Bliley Sting 68
APPENDIX C—IMPORTANT COURT CASES 70

Mapp v. Ohio 70
Gideon v. Wainwright 76
Miranda v. Arizona 79
Burdeau v. McDowell 100
People v. Zelinski 105
SELF-CHECK ANSWERS 113
EXAMINATION 115
vi Contents
Legal Principles
and Requirements
INTRODUCTION
Legal Terminology
Following are some terms you should become familiar with.
These terms will appear throughout this program.
Action A judicial or administrative proceeding for the
protection of a right; a lawsuit
Actionable Furnishing a ground for legal action
BAC Stands for blood alcohol concentration
Breach A break (as in break of a promise); violation of an
obligation
Capital punishment The death penalty as punishment for
crime
Civil action A lawsuit or action in civil (as opposed to
criminal) court, brought to enforce a private right
Civil law A branch of the law dealing with private rights,
and offenses against individuals for which restitution
can be sought
Common law A set of laws, originally developed (most in
unwritten form) in England, and adopted in colonial
times, upon which civil law is based. Common law
comes about at the level of the “common people”
(hence the name), as a result of private disputes, and
isn’t imposed by some authority. The development of
common law took place over centuries.
Complaint The initial pleading that starts a civil lawsuit,
setting forth the allegations of the plaintiff, and asking
that the court remedy the wrong
1
Criminal law The branch of the law dealing with offenses
against the state (crimes) for which punishment can be
imposed by the court
Culpable Deserving blame; at fault
Damages The monetary restitution for a civil wrong
Defendant The person or party being sued in civil court or
charged in criminal court
Discovery A formal system where the court enforces the
exchange of information and documents between parties
involved in litigation
Equity A system for ensuring justice in cases where the
usually available remedies are inadequate, to better
ensure a fair result
Evidence Something used to prove or disprove a claim or
allegation, including testimony, documents, and physical
objects
Foreseeable Something that can be anticipated, that a
person should have known. It’s an important element in
establishing negligence.
Hearsay Evidence offered by a witness based on other than
firsthand experience (usually based on what someone
said to the witness). This kind of evidence is usually not
admissible in court (the hearsay rule).
Injury The invasion of a legal right; an actionable wrong
done to a person or the person’s property or reputation
Jurisdiction There are several meanings, depending on
context:
1. The right of a court to decide lawsuits of a certain
kind (i.e., civil jurisdiction vs. criminal jurisdiction)
2. Territory presided over by a court (state, county, fed-
eral, etc.)
3. Authority
Litigation A lawsuit
2 Legal Principles and Requirements

Negligence A legal concept at the base of civil and tort law
involving several elements, generally characterized by
carelessness or inattention rather than intent. Failure to
do what a reasonable person would do, or doing some-
thing a reasonable person would not do.
Plaintiff The one who sues another in a lawsuit
Prayer The portion of a plaintiff’s pleading in a lawsuit that
specifies the damages sought
Precedent Previous legal decisions on similar situations
that a court must follow
Probable cause A concept necessary for a police arrest—a
reasonable amount of suspicion, supported by circum-
stances, sufficient to cause a belief that alleged facts are
probably true. There are volumes of case law and legal
arguments on the subject.
Proximate cause A legal concept required to establish
liability in a tort case—the primary cause of the plain-
tiff’s injury, and without which the injury wouldn’t have
happened. Doesn’t necessarily have to immediately
precede the injury.
Reasonable Different meanings depending on context—fair,
equitable; rational, not arbitrary; appropriate, suitable
Replevin A procedure allowing the plaintiff, who is the
owner of personal property taken by another (defendant),
to provisionally take possession of the property before
the case is decided—the plaintiff is usually required
to give a bond of replevin, which guarantees that if the
defendant wins the case, the plaintiff will return the
property in the same condition in which it was originally
taken.
Res gestae A spontaneous act or declaration through which
an event “speaks.” It’s an exception to the hearsay rule,
in that it tends to be believable because it’s spontaneous
Coerce means to dom-
(not coerced). inate, restrain, or con-
Res ipsa loquitur A Latin phrase for “the thing speaks trol a person forcibly; to
bring about a result by
for itself”—when a thing causes injury and was under
force or threat.
the defendant’s control, and the injury couldn’t have
happened if the defendant was exercising care, the
presumption is that the defendant caused the injury.
Legal Principles and Requirements 3

Respondeat superior Latin for “Let the master answer”—
the doctrine under which an employer is responsible for
the acts of its employees committed in the scope of their
employment
Spoliation Destruction of evidence by improper handling;
can also mean alteration of a legal document by some-
one who’s not a party to it
Subpoena A legal order to appear in court or to produce
evidence
Summons In a civil case, the process by which an action is
begun and the defendant is brought under the court’s
jurisdiction; in a criminal case (involving a petty offense),
a written notification compelling the defendant to appear
in court
Tort A wrong involving a breach of duty and causing injury
to an individual
Tortfeasor The person who commits a tort
The terms defined in this section represent a sampling of legal
words and concepts you could encounter working as a private
investigator. They’re a good guide for independent study.
Three Areas of the Law

The three areas of the law a private investigator is most likely
to encounter are civil law, equity, and criminal law, in that
order. Private investigators rarely investigate crimes, because
the police are already paid by the government to take care of
that job. In rare cases private investigators are hired to inves-
tigate a crime, but it’s usually after the police have already
investigated it. When an investigator is working for a defen-
dant or the defendant’s attorney in a criminal defense case,
it’s usually not the crime that’s being investigated as much
as the way the police investigated the crime.
Before learning about civil law, take some time to complete
Self-Check 1.

Self-Check 1
At the end of each section of Legal Principles and Requirements, you’ll be asked to pause and
check your understanding of what you have just read by completing a “Self-Check” exercise.
Answering these questions will help you review what you’ve studied so far. Please complete
Self-Check 1 now.
Indicate whether the following statements are True or False.
_____ 1. Culpable means deserving blame.
_____ 2. A plaintiff is the one being sued.
_____ 3. Private investigators are seldom called upon to investigate crimes.
_____ 4. An injury, in legal terms, simply means physical harm.
Check your answers with those on page 113.

CIVIL LAW
Civil law (sometimes called negligence law or tort law) deals
with injuries done to individuals, also known as torts, and
Damages means the breaches of obligations (like contracts or trust relationships).
monetary restitution The result of a successful tort lawsuit is restitution in the
for a wrong done to an
form of damages ordered to be paid to the plaintiff by the
individual.
defendant. The difference between a tort and a breach of con-
tract is that a tort is a violation of a duty established by law
(like the duty not to hit someone with a car), while a breach
of contract is a violation of an agreement between two or
more people. A breach of trust is a violation of an obligation
based on a trust relationship, such as that between a banker
or attorney and client.
In the United States, civil law is based on common law
An injury, in the legal and precedent (previous legal decisions on similar situa-
sense, means a wrong tions), except in the state of Louisiana. Louisiana law is
done to a person (a
based on the Napoleonic Code, which doesn’t derive from
physical injury) or to
the person’s property or English common law. For all intents and purposes, near-
reputation. ly all the same rules for negligence actions used in the rest
of the United States have been established by statute in
Louisiana, so it’s not necessary for most investigators outside
of Louisiana to study the Napoleonic Code at length. If you
expect to work in Louisiana, you’ll need to find out how this
difference in their legal system affects private investigations.
Although you don’t need to know the history of common law
to work as a private investigator, it’s one of the things worth
looking up and learning about.
Explaining the technical aspects of the law is beyond the
scope of this program. There are two important reasons, how-
ever, why a private investigator does need to know about the
basics of both civil and criminal law. The first is to be able
to discuss the theory of civil cases with clients, and to know
what to look for in an investigation (Figure 1). The s econd is
to be able to avoid getting in trouble while investigating by
inadvertently breaking criminal laws.

FIGURE 1—It’s important to
know enough about the law
to be able to discuss it with
your clients.
Litigation
When a private investigator is hired by an attorney for litiga-
tion preparation, someone (the plaintiff) is most likely suing Litigation is another
someone else (the defendant) for doing something. Anyone can word for a lawsuit.
sue anyone else for just about anything as long as they can Discovery is the process
find an attorney to take the case. But, for them to win, certain of getting information
about the case from the
things must be proven. Many attorneys attempt to do all their opposing side.
proving or disproving by the use of discovery; but, especially
in cases involving serious injuries, private investigators are
sometimes used to help find the needed proof.
When investigating personal injury cases, the private inves-
tigator’s role is to find potential evidence or witnesses with
evidence to either prove the allegations in the suit for the
plaintiff or disprove them for the defendant. The client’s
attorney then uses what the investigator found to negotiate
a settlement, or attempts to turn it into evidence that can be
used in court, through the use of discovery.
Negligence
The majority of civil actions where private investigators are
hired result from claims for negligence. To win a lawsuit
based on negligence, a form of tort, the plaintiff needs to
prove several things (Figure 2).

To succeed with a tort claim, it must be proven that
• The defendant had a duty to the plaintiff
FIGURE 2—The Necessary
Elements of a Tort Claim • The duty was breached (broken)
• The breach of duty was the proximate cause of the damages
• The plaintiff suffered damages (was injured physically,
financially, or emotionally)
Numerous law school courses are taught on the subject of

negligence law, so this program won’t attempt to do more
than make you aware of its importance. Issues such as
foreseeability and reasonableness should be on your “to be
studied and learned about further” list after you finish this
program.
What makes a case negligence is a question of the sec-
ond element, duty. The defendant in a negligence matter
must have had a duty to exercise reasonable care to avoid
a forseeable risk of harm to the plaintiff. The defense of
contributory negligence is discussed below. There are other
kinds of negligence, which should be on your “to be studied
and learned about further” list after you finish this program.
Overlap of Civil and Criminal Issues

It’s possible for one action to trigger both civil and criminal
legal activity. The most common example is an automobile
accident. A driver becomes a tortfeasor and criminal by run-
A tortfeasor is a person ning a red light (a crime) and injuring someone (a tort) who
who commits a tort.
was going through the intersection legally. The other driver,
who is injured, will be the plaintiff civilly and is the victim in
the criminal matter.
By running a red light, the first driver broke the law. The
police handle the criminal investigation to determine whether
or not to issue a ticket or make an arrest. The investigation
done by the police will be for the purpose of proving a crimi-
nal case—it won’t necessarily develop all the evidence need-
ed for a civil case. Even though a private investigator might
investigate the same accident, it will usually be because of
the civil litigation. An exception, as mentioned before, would

be when the driver being charged with a crime or his or her
attorney hires a private investigator to look for something the
police did wrong or missed.
The police would note on the police report whether or not
any injuries were reported or observed, but that would typi-
cally be the end of their interest in the injury issue. For the
civil case, the existence and degree of the injury is crucial to
the possible recovery by the plaintiff, so a private investigator
would go much further than the police. The details of such
an investigation will be covered in later units in this program.
Contributory negligence
Contributory Negligence is a failure on the part
of the plaintiff to exer-
When working a civil case, you must always be on the look- cise reasonable care to
out for evidence of possible contributory negligence. If, in the prevent an injury.
intersection accident mentioned earlier, you were working for
the driver who ran the red light and you discovered the other
driver was looking on the floor for a dropped cigarette when
the collision occurred, that might be contributory negligence
on the other driver’s part. It probably wouldn’t help your cli-
ent’s criminal defense, but it might help to mitigate (decrease)
the amount of damages owed from the civil case. The theo-
ry is that the defendant’s negligence may not have been the
only cause of the accident. If the plaintiff had been paying
attention, he might have been able to swerve and prevent the
accident (and thus the injury to himself).
Before going on to the next section, take some time to
complete Self-Check 2.

Self-Check 2
Questions 1–3: Indicate whether the following statements are True or False.
_____ 1. An accident never involves both criminal acts and the basis for a civil lawsuit.
_____ 2. A duty doesn’t always have to be proven to win a tort case.
_____ 3. Negligence is not a crime, but it is a tort.
4. What is the basis of law in Louisiana?

___________________________________________________________________________
5. What are the necessary elements of a tort claim?

___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

IMPORTANT LAWS AND
DECISIONS, CIVIL
Some of these cases are reproduced for you, in abridged
form, in Appendix C. Take a few minutes to study them.
The Fair Credit Reporting Act

The Fair Credit Reporting Act (FCRA) is meant to control how
the credit information of individuals in the United States is
handled. It not only applies to and controls the actions of
credit bureaus, it applies to and controls the actions of any-
one who handles the personal credit information of others.
The law has been in effect for many years, but for a long
time it was largely ignored by private investigators. One of
the permissive uses for credit reports under the FCRA is “a
legitimate business need.” It was common for private inves-
tigators to buy a credit report on a person from one or more
of the major credit bureaus to develop investigative leads
on the subject. They were prepared to argue that they had
“a legitimate business need” if ever challenged. They usual-
ly weren’t challenged. Through FTC and court rulings, it’s
now very clear that investigating someone doesn’t qualify as
a “legitimate business need” for purposes of pulling a credit
report. Investigators used to refer to this practice as “gray
area” investigative action. It’s now known to be an illegal
action.
The FCRA has been amended by several newer laws, includ-
ing the Consumer Credit Reporting Reform Act of 1996. In
the interest of protecting the privacy of individuals, new laws
affecting how the FCRA is applied and enforced are c onstantly
being introduced in Congress.
The FCRA and subsequent laws also address the rights
of employees against employers who are investigating the
employees’ activities. At the time of this writing, the exact
impact of all these laws on preemployment and workplace
investigations was still being debated. The laws basically
state that an employee must give written permission before
he or she can be investigated, and then must be provid-
ed with a copy of the investigative report (Figure 3). Since

the laws are constantly evolving, it would be a good idea to
consult a lawyer, or the Federal Trade Commission, before
taking on any cases involving employee/employer relation-
ships. See the further information on the FCRA in Appendix A.
FIGURE 3—An unintended consequence

of the FCRA and the 1996 amendments
is that an employee accused of sexual
harassment must be informed of the
nature of the investigation and the name
of the accuser(s).
Gramm-Leach-Bliley
The Gramm-Leach-Bliley Act, also called the Financial
Modernization Act, was passed by Congress in 1999. One of
its goals was to clarify how banks and other financial insti-
tutions could and couldn’t share the private information
they had about individual customers. This law put an end to
the ability to get information from a financial institution by
pretending to be the customer and asking a bank employee
questions. This was known as pretexting or scamming the
financial institution, and was done regularly by some investi-
gators who felt it wasn’t illegal. It could well be argued that it
was unethical, even before the passage of the Gramm-Leach-
Bliley Act. Pretexting will be discussed in more detail in a
later unit.

Burdeau v. McDowell (1921)
This is an important case that affects private investigators.
J. C. McDowell of Pittsburgh, Pennsylvania, was an officer
in a company dealing with, among other things, natural-gas
contracts. He was fired by the operating managers of his
company for various acts of fraud. During the spring and
summer of 1920, his offices were searched by employees
of Henry L. Doherty & Company (the operating managers).
Mr. McDowell claimed that certain of his private papers were
stolen during this search (which was done without a warrant),
and should be returned to him. Instead, these papers had been
turned over to Joseph A. Burdeau, Special Assistant to the
U.S. Attorney General (Department of Justice). These incrim-
inating personal papers were used to indict Mr. McDowell for
various federal crimes involving the illegal and fraudulent
use of the U.S. Postal Service.
The U.S. Supreme Court allowed the use of Mr. McDowell’s
papers and effects at trial, even though they were stolen by
The U.S. Supreme
private citizens. This Supreme Court case was very important, Court is often simply
because through it the Court established that Constitutional called the Supreme
restrictions are intended to be applied against government Court, or the Court.
State supreme courts
actions, not against actions by private citizens. Had the aren’t capitalized in
government taken any part in this conduct, the papers would this way unless the
have been excluded as evidence. Through Burdeau, private whole name is given
(i.e., Ohio Supreme
investigators can thus get relief from certain restrictions that
Court). Similarly, the
are placed on police. U.S. Constitution is
often simply called the
Constitution.
People v. Zelinski (1979)
This case was decided not by the U.S. Supreme Court but
by the supreme court of the state of California. As such, the
decision technically applies only to the state of California.
However, attorneys use supreme court decisions from other
states when attempting to create new law in their own
jurisdictions.
On March 21, 1976, Bruce Moore, a store detective employed
by Zody’s department store in Los Angeles County, observed
Virginia Zelinski place a blouse into her purse. Two other
store detectives were summoned. Miss Zelinski was arrested,
brought to an office in the store, and the police were called to

the scene. Meanwhile, Miss Zelinski was searched for weap-
ons. Her purse was searched and the blouse was retrieved.
Inside her purse, a vial containing heroin was d iscovered. At
her criminal trial, Miss Zelinski tried to have the evidence
found during the search excluded. She tried to invoke her
Fourth Amendment rights that guaranteed her protection
from illegal searches. The lower trial court, however, cited the
Burdeau decision and accepted the evidence. Miss Zelinski
then pleaded guilty.
Upon Miss Zelinski’s appeal to the California Supreme Court,
the case was reversed. The California Supreme Court recog-
nized that private security is a growing industry, outpacing
Seizure can mean either
even public law enforcement. The court felt compelled to
taking property away
from someone (usually place controls on private security similar to those placed
a law enforcer seizing on public law enforcement. It used the California state
evidence), or placing constitution’s fourth amendment, which mirrors the federal
someone under arrest.
Constitution in wording, to impose restrictions on the use of
evidence obtained through an unlawful search and seizure.
The court decided that such evidence wouldn’t be admissible
at trial in the state of California.
California is the only state to disagree with the logic laid
out in the Burdeau decision. If other states begin a trend of
following California, private investigators may become subject
to the same legal restrictions that currently apply to gov-
ernment law enforcement officers. So far, however, all other
states have continued to embrace the Burdeau decision as
a guide.
The Fourth Amendment

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

Daubert
Daubert v. Merrell Dow Pharmaceuticals, Inc. was a 1993
Supreme Court decision that made a distinction between
knowledge and scientific knowledge when a court is deciding
whether or not to allow the testimony of an expert to be admit-
ted. For a scientific discipline to be eligible for use in court, it
must be generally accepted in the scientific community, must
use the scientific method, and must not be subject to many
errors. The Daubert Court articulated a four-part test for the
admissibility of expert testimony:
1. Hypothesis testing—using the scientific method to test
ideas
2. The known or potential error rate
3. Peer review and publication
4. General acceptance
Previous Supreme Court decisions had deferred to the gener-
al acceptance of the scientific community in deciding what
expert evidence should be admitted. Daubert still looks to
the scientific community for its general acceptance as an
indicator of evidentiary reliability, but it goes further and
defines that acceptance in two ways. First, it addresses the
characteristics of the scientific community whose general
acceptance it will accept as a consideration in determining
evidentiary reliability. Second, it recognizes that there’s a
basic structure of inquiry known as the scientific method
that’s the standard used across different branches of sci-
ence for their scientific investigations, and it requires that
the science proffered to the federal courts be grounded in
that basic structure (Figure 4). This requires posing and
testing hypotheses and, among other considerations, spec-
ifying the rates of error for those hypothesis tests. Daubert
first specified these criteria indirectly by requiring that expert
testimony adhere to the scientific method, and then sub-
sequently posed them explicitly as the first two of its four
admissibility factors.

FIGURE 4—The Daubert decision
required that expert opinions be
grounded in the scientific method.
Hypothesis Testing
Hypothesis testing is the process of formulating a hypothesis
(idea) about an observable group of events based on accept-
ed scientific principles, and then investigating whether,
upon observation of data regarding that group of events, the
hypothesis seems true. Because it’s hypothesis testing that
distinguishes the scientific method of inquiry from nonscien-
tific methods, and because the scientific method of inquiry is
required for the resulting inferences to be the basis of admis-
sible expert testimony, hypothesis testing would be deserving
of careful consideration even if it weren’t one of the Court’s
four enumerated factors. The basic technique of hypothe-
sis testing has been well settled for decades. The following
example demonstrates the technique.
A simple example of hypothesis testing: Looking at a
single six-sided die might lead one to form the hypothesis
that each of the six numbers is equally likely to land face up
on each roll of the die. This hypothesis is tested scientifically
by then rolling the die (say) 600 times and recording the
number of times that each number is actually found face up.

If this hypothesis has been tested and found to be consistent
with reality, it will be generally accepted as correct.
Now, let’s say a gambler files a lawsuit against a casino,
alleging the dice are unfair. A scientific expert is called in to
test one of the dice using the test from the previous para-
graph. If the die is rolled 600 times, and each number occurs
about 100 times, the statistical test will be unable to reject
the hypothesis of equal probabilities, and the scientist will
be left with the likelihood that the die is fair. However, if the
number three occurs a disproportionate number of times,
say 200 times out of 600 rolls, then the statistical test will be
likely to reject the hypothesis of equal probabilities, and the
scientist will interpret this as evidence that the die is loaded.
Examples of hypothesis testing and, therefore, the scientific
method alluded to by the Court in Daubert are plentiful in all
of the most highly regarded professional journals that publish
empirical research.
The Known or Potential Error Rate

The second parameter that Daubert suggests that trial judges
use in evaluating the scientific validity and, therefore, evi-
dentiary reliability of scientific testimony, is the “known or
potential rate of error” associated with using the particular
scientific technique. In plain language, this is the likelihood
of the scientist being wrong in asserting that an alleged
cause has a particular effect. Most scientists routinely
require that this error rate be very small, usually between
one and five percent.
There are two types of error rates in testing hypotheses,
denoted as Type I error and Type II error. Type I error is the
test’s propensity for false positives, while Type II error is the
test’s propensity for false negatives. For example, if a drug
test for a substance comes back positive, but the tested indi-
vidual hasn’t actually used the drug, a layperson would call
that a false positive, while a scientist would call it a Type I
error. This Type I error is the most commonly cited compo-
nent of the “error rate” in hypothesis testing, although Type II
error is also used. This error rate is also known both as the
level of confidence of the hypothesis test and as the level of
statistical significance of the test’s result.

Determining this error rate is actually part of conducting a
hypothesis test. A common assertion in scientific research
is that “the hypothesis is rejected at the 1% level,” or equiv-
alently “the result is statistically significant at the 1% level,”
which means that the statistical technique used to test the
hypothesis, if applied to data where the hypothesis is true,
would incorrectly reject the hypothesis only 1% of the time. If
such a statement were made about the example of the single
die above, it would mean that if the die is in fact not loaded,
and the experiment of rolling it 600 times to test the hypo
thesis that the die was fair were done 100 times (totaling
60,000 rolls), 99 of those tests would correctly show the die
to be fair, while 1 of those tests would incorrectly show the
die to be loaded.
The relationship between the Court’s first two criteria, the
hypothesis test and the error rate, is so close that it’s virtu-
ally unheard of for a scientist to report that a hypothesis
was rejected without stating the level of confidence at which
it was rejected. Indeed, such a report would be completely
meaningless.
Peer Review and Publication

The third criterion that the Supreme Court suggested for
determining whether to allow expert testimony is “whether
the theory or technique has been subjected to peer review
and publication.” Publication is typically the purpose for
which research is offered up for peer review, and passing
the peer review is required for publication. “Peer review and
publication” of a scientist’s work is largely a term of art that
means that the scientist’s peers (other scientists) have sanc-
tioned the work as credible and accepted it for publication.
Publication then exposes the work to further review by other
scientists, whose responses to the research indicate their
agreement or disagreement with the methods and results of
the work. Scientists’ peers often express agreement with the
work of a particular scientist by citing the work with approval
or as authority, or by extending the work. Properly executed
hypothesis tests with their attendant error rates are the
essence of scientific method, and are necessary conditions for
peer review to result in publication.

General Acceptance
Like the Court’s third criterion, this is a summary measure
of the extent to which the expert’s methods produce informa-
tion that qualifies as scientific knowledge. Scientific methods Citing another’s work
means to refer to it in
begin the process of becoming generally accepted in the sci- your own publications;
entific community by bringing appropriate hypothesis testing for example, in a foot-
techniques to bear on questions (or hypotheses) of interest to note or bibliography.
the scientific community in a fashion that results in the peer
approval required for publication. They move toward general
acceptance by then withstanding the scrutiny of the broader
scientific community which reads the publication.
Of course, there are numerous odd propositions for which
there exists some collection of individuals who will assert
that they comprise a relevant scientific community, and that
the proposition is generally accepted within their communi-
ty. An example might be people who claim to have had alien
encounters.
The Court discussed briefly the characteristics of a “relevant
scientific community,” citing the analysis of United States v.
Downing, which says that that the inquiry should focus on
“the non-judicial uses to which the scientific techniques are
put.” The Downing Court’s elaboration of that point noted
that the absence of non-litigation uses for a scientific tech-
nique is taken as evidence of a lack of reliability, while the
existence of non-litigation uses for a technique is taken as
evidence of the reliability of the technique. In other words,
if no one uses this “scientific” technique except to prove or
disprove claims in lawsuits, then it’s probably not a real
technique.
The inescapable conclusion is that the relevant scientific
community within which the technique finds acceptance
must be the community of real-world scientists who pursue
science for non-litigation purposes, and that finding general
acceptance only within the community of forensic scientists Forensic means having to
do with the courts.
doesn’t constitute “general acceptance in the relevant scientific
community.” Of course, this must be the rule, for were it
otherwise, defendants’ hired experts could generally accept
one sham technique that serves their purposes, while plaintiffs’
hired experts could generally accept another sham technique

that serves their purposes, and both would be supported for
admissibility by the general acceptance criteria despite the
fact that they were both sham techniques.
Kumho Tire
Under a more recent ruling, Kumho Tire Company, Ltd. v.
Carmichael 1999, Daubert’s general principles are to be
applied flexibly to the evaluation of all expert testimony
proffered in federal courts.
This decision is included here for two reasons. Private inves-
tigators sometimes feel they should be able to testify as
experts on something they’ve investigated. Under the stan-
dards of Daubert and Kumho Tire, only a small number of
professional investigators would even be able to testify as
experts on the subject of investigation. An expert witness is
a very specialized person, and a private investigator needs to
encourage attorney clients to consider hiring an expert when
an investigation reveals information that needs to be turned
into evidence by expert testimony. Investigators can’t do it
themselves. The second reason these decisions are important
to a private investigator is because it’s a good idea to investi-
gate the qualifications of witnesses who claim to be experts.
Did they really write those articles? Did they really use the
scientific method in their research? Are those they claim to
have provided peer review really experts?

Self-Check 3
_____ 1. FCRA stands for Fair Credit Reporting Act.
_____ 2. The Constitution prohibits private investigators from seizing evidence without a search
warrant.
_____ 3. It’s OK to call a bank and pretend to be an account holder in order to get information
about someone’s finances.
4. What is the official name of the Financial Modernization Act?

___________________________________________________________________________
5. Name at least one of the Supreme Court decisions dealing with how an expert witness is
qualified by the court.
___________________________________________________________________________

EQUITY
Whereas civil law is based on common law and deals with
claims of injury and seeks payment of damages, equity law is
less structured. There used to be separate equity courts, but
these have now been merged into the civil courts. The equity
powers of civil courts are considered separate from their
common law powers. Equity actions include
1. Divorces
2. Property condemnations
3. Injunction suits
4. Contractual disputes
5. Probate
It isn’t important for a private investigator to know which
court a matter is being heard in when hired by an attorney.
The main reason for having a basic understanding is to be
able to understand the concepts an attorney client might
discuss about the case. Court decisions in civil law generally
follow decisions that have been made in earlier cases (prece-
dent), but the equity court isn’t subject to the same limitation.
For example, divorce courts are much less bound by decisions
of other judges in evaluating evidence than a court hearing a
personal injury case. Since divorces are confidential, there’s
much less opportunity in particular for judges to pay atten-
tion to what other judges have ruled in similar divorce cases.
Even when previous cases are available for reference, however,
the judge isn’t bound by those previous decisions. In divorce
cases as well as other equitable matters, the purpose of
courts hearing matters equitably is to render as much
justice as possible.
CRIMINAL LAW
Although private investigators only rarely investigate crimes,
it’s important to understand both police procedures and the
basics of criminal law. Some of the most important cases
worked by private investigators involve defending someone
accused of a crime or investigating the activities of public

officials and police officers. To know whether a police officer
has done something wrong or not, the investigator must
know the procedures and rules the officer is supposed to fol-
low. Also, everyone knows the old saying, “Ignorance of the
law is no excuse.” For a professional private investigator this
saying is particularly relevant. You’ll need to know some of
the basics of the law, and you’ll need to know what powers
and what limitations the law gives you as a non–police officer.
The Constitution and the laws of the United States safeguard
U.S. citizens from the unlawful conduct of all individuals,
including the police and private investigators. As a private
investigator, you’ll have no more authority to make arrests,
to use force, or to search for and seize evidence than any
other private citizen. The only obvious times a private inves-
tigator might have occasion to attempt an arrest would be
while working as a retail security officer or some other type
of security duty. Even in those situations, any arrests you
might make would be citizen’s arrests, and you would be
subject to many potential liabilities. When making arrests,
the police can defend their actions using a concept known
as probable cause.
Probable cause is a reasonable amount of suspicion, supported
by circumstances, sufficient to cause a belief that alleged
facts are probably true.
Merchant Privilege Laws

False arrest or imprisonment is one of the torts most frequently
the focus of lawsuits involving the conduct of security person
nel, especially in the retail sector. Many states have statutes
protecting the proprietor of a business or store who may have
wrongly detained a shopper under suspicion. These statutes
are known as merchant privilege laws.
Often, a customer who was wrongly detained will sue the
merchant or proprietor of a store for false arrest or imprison-
ment. A merchant privilege law is usually designed to prevent
the plaintiff from collecting damages from the merchant if
certain conditions are established. If it’s shown to the court
that the customer had appeared and behaved in a way that
would cause a person of reasonable prudence to believe that

the customer was engaging in retail theft, the proprietor can
Prudent means sensible,
be spared having to pay damages (Figure 5). Qualifying words
cautious, and exer-
cising good judgment. like prudence, reasonable, and honest belief show that legis-
Reasonable means lators want business owners to receive some protection from
rational and sensible. illegitimate claims of false arrest and imprisonment. Especially
In general, these terms
mean that so long as a if you plan on working in the retail sector, you should find out
person isn’t behaving if your state has such protections built into its laws.
capriciously or arbi
trarily, he or she will be
given the benefit of the
doubt that there was
good reason for doing
what the person did.
FIGURE 5—Merchant
privilege laws are intended
to protect a retailer from
civil lawsuits for detaining
a customer suspected of
shoplifting, when that
suspicion is reasonable.
Probable Cause
Probable cause means any reasonable person—given the
same circumstances or set of facts—would probably con-
clude, along with the police officer, that a certain person had
committed an offense. A sworn statement from a credible
witness, stolen property found on a person, or an admission
or confession can all give rise to probable cause. The police
officer can then use the probable cause in court to justify an
arrest. As long as the police had acted with probable cause, a
person can’t successfully sue for being arrested even if he or
she is found not guilty.

A private investigator, on the other hand, is much more
restricted in making an arrest. A real crime must be witnessed
by any private investigator or other citizen in order to justify a
citizen’s arrest. If someone is arrested by a non-police citizen
for committing an act that turns out not to be a crime—or,
even if it was clearly a crime but the person is found not
guilty—the consequences can be severe. The best way to avoid
damaging lawsuits is to know the law relevant to whatever
you’re involved with, and rely on police officers for making
arrests whenever possible.
Felonies and Misdemeanors

In most states, crimes are grouped into different levels
according to how serious they are. Crimes punishable by
more than a year in prison are called felonies (Figure 6).
If the crimes are punishable by less than a year in prison,
they’re called misdemeanors.
FIGURE 6—A felony could land
a person behind bars for more
than a year.
Crimes are further subdivided within each level into classes

or into degrees. For example, felonies can range in serious-
ness from class A to class D or E. Punishment for a class A
felony—murder, for instance—would usually be severe. The
penalty may be life in prison or, in some states, the death
penalty. A class D or E felony—grand larceny, for instance—
may carry a much less severe penalty. The penalty may be,
for example, one to three years in prison. Misdemeanors are

often subdivided in the same way, but usually into only two
or three classes, such as an A or B misdemeanor.
Other Classifications of Criminal Law

In addition to subdividing felonies and misdemeanors, some
states recognize additional classifications of crimes. New
York, for example, has a classification called a violation that’s
punishable by up to 15 days in jail. Disorderly conduct,
harassment, and loitering are examples of crimes recognized
in New York as violations. Most traffic infractions are punish-
able only by fines. However, some can be violations or even
misdemeanors, often depending on the driver’s blood alcohol
content (BAC).
Mens Rea
Mens rea is Latin for “guilty mind.” Understanding the concept
of mens rea is important for an investigator working on a
criminal defense case. The mens rea, or criminal intent, is
the state of mind accompanying the particular criminal act.
The mens rea associated with any specific crime will thus be
unique to that crime. In the crime of receiving stolen goods,
for example, the mens rea is the knowledge that the goods
were stolen. In contrast, in the crime of theft, the mens rea
is an intention to steal.
As a private investigator, you need to gather clues showing
criminal intent—if any clues exist—and document them in
your reports. If someone you’re dealing with tries to hide
something or cover something up, that could indicate crimi-
nal intent. A record of someone lying to you could possibly
be used to demonstrate criminal intent in a court proceeding.
The exact degree of criminal intent can be determined only
after an investigation. Your investigation might provide the
basis for a different conclusion about the intent of your client
or others, and change the outcome of an entire case.

Culpable Mental States
Mental culpability is a person’s blameworthiness. Identifying
mental culpability is essential in determining criminal
responsibility. When assessing criminal responsibility, courts
in most states recognize the following four distinct culpable
mental states. Some states in the nation may have slightly
different definitions of these mental states. The definitions
used here apply in New York State.
Intentional. A person acts intentionally when his or her
conscious objective is to cause a result or to engage in con-
duct described by a statute as an offense. For example, a
drug dealer sells drugs with the intention of breaking the
drug laws.
Knowing. A person acts knowingly with respect to conduct
or to a circumstance described by a statute as an offense
when he or she is aware that the conduct or circumstance
is an offense. Oftentimes, we hear the phrase, “knowing-
ly and willfully.” For example, someone could make a false
statement, knowing it to be false, but without any intent to
defraud.
Reckless. A person acts recklessly when he or she is aware
of and consciously disregards a substantial and unjustifiable
risk that a result or circumstance described by a statute as
an offense will occur because of his or her action. The risk
must be of such nature and degree that disregard thereof
constitutes a gross deviation from the standard of conduct
that a reasonable person would observe in the situation. A
person who creates such a risk but is unaware of it solely
because of voluntary intoxication also acts recklessly. In
other words, being drunk and thus showing poor judgment
isn’t an excuse. For example, driving in the center of a two-
lane road, despite the knowledge that a car might come
around the bend in the opposite direction, causing an
accident, is reckless.
Criminally negligent. A person acts with criminal negligence
when he or she fails to perceive a substantial and unjustifiable
risk that a result or circumstance described by a statute as
an offense will occur. The risk must be of such nature and
degree that the failure to perceive it constitutes a gross

deviation from the standard of care that a reasonable person
would observe in the situation. For example, someone dropping
snowballs off a high-rise building, without taking into account
that the height of the drop renders them highly dangerous to
people walking underneath, is being criminally negligent.
IMPORTANT LAWS AND

DECISIONS, CRIMINAL
The full cases are reproduced for you, in abridged form, in
Appendix C. Take a few minutes to study them.
Mapp v. Ohio (1961)

The incident that sparked this landmark case began when
three Cleveland, Ohio, police officers went to the home of
Miss Dolree Mapp on May 23, 1957. The officers were look-
ing for a fugitive wanted in connection with a recent bomb-
ing. The police believed that the fugitive was hiding in Miss
Mapp’s home. However, Miss Mapp refused to admit the
police without a search warrant. Eventually, officers forced
their way into the home after making a second request to be
allowed to enter. Miss Mapp was physically restrained and
handcuffed when she grabbed a piece of paper that the offi-
cers had claimed was their warrant.
Upon a search of the entire house, the officers discovered
some obscene materials. Miss Mapp was later convicted for
possessing these materials. She appealed to the Supreme
Court, claiming that the evidence used against her was
seized illegally, violating her Fourth Amendment rights. The
Supreme Court agreed, and her conviction was reversed.
This case was extremely important, because it was the first
time that the exclusionary rule was applied to local or state
law enforcement officers (Figure 7). Before Mapp, illegally
seized evidence was excluded only at federal trials. Federal
agents, however, soon learned how to dodge the exclusionary
rule by handing their cases over to state authorities for pros-
ecution at the state level. This habit came to be known as the
silver platter doctrine.

FIGURE 7—All law enforcement
officers must respect citizens’
Constitutional rights when
searching for and seizing evi-
dence.
The Justices on the Supreme Court believed that blatant

The exclusionary rule is
Constitutional violations on the state level weren’t being
the rule of Constitutional
remedied by the states. The Mapp case allowed the Justices law that evidence taken
to apply Fourth Amendment restrictions to the states using by the police during
the due process incorporation clause of the Fourteenth a search and seizure
that violates the Fourth
Amendment. After the Mapp decision, any evidence deemed Amendment can’t be
to have been seized illegally could be excluded from a trial. used against the defen-
dant in a criminal trial.
Fourteenth Amendment—Rights Guaranteed,

Privileges and Immunities of Citizenship, Due
Process, and Equal Protection
Section. 1. All persons born or naturalized in the United States
and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make
or enforce any law which shall abridge the privileges or immuni-
ties of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection
of the laws.

Gideon v. Wainwright (1963)
Clarence Gideon was charged in a Florida state court with
“breaking and entering into a poolroom with the intent to
commit a crime.” Such an offense is frequently classified as
burglary in most states. Mr. Gideon appeared in court as
indigent (poor and without money), and he requested that the
court appoint a lawyer to represent him. The court, however,
denied his request. The court was required to appoint counsel
only in capital cases (that is, murder and other serious cases
where the defendant could be sentenced to death).
Mr. Gideon defended himself at trial, was found guilty, and
was sentenced to five years in prison. He appealed to the
Supreme Court, and the decision was reversed. The case
was sent back for a new trial, this time with an appointed
defense counsel. Clarence Gideon was found not guilty at
his second trial.
This landmark case was extremely important because the
Supreme Court established that all defendants in any criminal
proceeding have a Constitutional right to be represented by
counsel. If a defendant is poor and can’t afford a lawyer, the
court has to appoint one to represent the defendant. After
Gideon, anything less would risk violating a defendant’s Sixth
Amendment right to counsel.
Sixth Amendment—Rights of Accused in Criminal

Prosecutions
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and dis-
trict wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed
of the nature and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory process for obtain-
ing witnesses in his favor, and to have the Assistance of Counsel
for his defence.

Miranda v. Arizona (1966)
On March 3, 1963, an 18-year-old girl was kidnapped and
raped near Phoenix, Arizona. Ten days later, Ernesto Miranda
was arrested for the crime and interrogated at a police station.
Mr. Miranda was 23 years old, poor, had a ninth-grade edu-
cation, and was emotionally ill. At the police station, the vic-
tim picked Mr. Miranda out of a lineup. After several hours of
questioning, he made a very detailed oral confession. He then
wrote a brief confession describing the crime and admitting to
it. At the state trial, the confession was admitted into evidence
over the objections of Mr. Miranda’s lawyer.
Acting on an appeal, the Supreme Court overturned the
conviction and reversed the state court’s decision.
This case is extremely important because it established that
the police must advise a defendant of his or her Constitutional
rights before beginning an interrogation. It places police offi-
cers in a very unusual dual role with regard to interrogat-
ing a suspect. At the same time that the police are trying to
gain incriminating evidence by questioning a suspect, they’re
forced to caution the suspect about responding without a
lawyer present. Of course, any lawyer will advise the client
to remain silent. In a way, the police are thus recommending
that the suspect say nothing in response to their questions!
The Court’s recommended Miranda warning is included in
the text of the case, which is in Appendix C. By the time you
read this, the Supreme Court may have changed the rules
again, since many rules that are interpreted as friendly to
criminal suspects are being revised in light of September 11,
2001. It’s important to remember, though, that in the United
States everyone is considered to be innocent until proven
guilty. The police do make mistakes, and changing the rules
because there were terrorist attacks, so people have to prove
their innocence, is a very dire step. Imagine how you’d feel if
you were arrested for a crime you didn’t commit! In any case,
always check the current status of a crucial law or Supreme
Court decision before conducting an interview that might be
affected by it.
Please complete Self-Check 4 now.

Self-Check 4
_____ 1. The police will excuse you for breaking a law if you didn’t know about the law.
_____ 2. Probable cause means “He probably did it.”
_____ 3. A felony is more serious than a misdemeanor.
_____ 4. The defendant’s right to counsel is found in the Sixth Amendment to the Constitution.
5. For a crime to be a felony, how much jail time must come with conviction?
___________________________________________________________________________
6. What does mental culpability mean?

___________________________________________________________________________

THE UNITED STATES
CONSTITUTION
The Constitution establishes the basic rights of all citizens,
and places limits on the conduct of government officers.
These limits don’t usually apply to private citizens, but they
could apply to a private investigator under certain circum-
stances. If a government agency commissions you as a private
investigator and entrusts you with authority similar to that
possessed by a police officer, or if you’re working as a private
investigator under the direction of the police, your actions
could come under the same Constitutional restrictions that
would normally apply to government officers. The mere
licensing of a private investigator by a state regulatory agen-
cy isn’t necessarily considered a state action, but the inter-
pretation of the law keeps changing.
It can still be said that the acts of a private investigator
aren’t limited by the Constitution in the same way as they
would be for a government officer, but extreme caution must
be exercised whenever a private investigator attempts to use
any kind of authority. Figure 8 shows the first 10 amendments

(formal changes) to the Constitution. These 10 amendments,
called the Bill of Rights, guarantee specific rights to every
U.S. citizen.
Relevant Constitutional Amendments

The following four amendments to the Constitution include
some of the provisions from the Bill of Rights. These amend-
ments are particularly relevant in limiting the conduct of
police officers and therefore are important when investigating
a police investigation. We’ll take an in-depth look at each
of these amendments to see just how they apply to law
enforcement.

FIGURE 8—As you’ll soon learn, legislation eventually extended certain provisions from the Bill of Rights to include the
conduct of state as well as federal officials.

The Fourth Amendment (1791)
“The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.”
The Fourth Amendment to the Constitution concerns the
much-debated issue of searches and seizures. A mountain
of case law has developed over this area of law enforcement,
but only three basic concepts are at the heart of the Fourth
Amendment:
• First, searches and seizures have to be reasonable.
• Second, searches and seizures must be authorized

through a warrant (an arrest warrant or search warrant).
• Third, law enforcement officers must have probable

cause to conduct a search and seize evidence.
You can’t apply for a warrant as a private investigator. You

can, however, give sworn testimony or provide a sworn affi- An affidavit is a volun-
davit or other evidence that the police can use as probable tary statement that’s
been written down and
cause for a warrant that would allow a reasonable search. sworn to in front of a
Over the years, the Supreme Court has worked to define person legally authorized
what’s meant by reasonable search. The Supreme Court has to administer an oath
(like a notary public).
also described in detail the meaning of probable cause, and
has broadened the scope of the original meaning, so that law
enforcement officers can make searches and seizures with-
out warrants under certain conditions. Some of these special
searches and seizures that don’t need warrants are as follows:
• Consent searches—searches conducted with the consent
of the person being searched
• Searches incident to a lawful arrest
• Seizures of evidence in the open or in plain view—that is,

if the officer doesn’t need to search to see the evidence
(it’s sitting on the dashboard of a car, for example)

Also, an officer may be able to legally conduct searches and
seizures without a warrant during exigent (emergency-like)
circumstances. Exigent circumstances exist when the delay
in obtaining a warrant may jeopardize the officer’s safety or
may result in a suspect’s escape or the destruction of evidence.
Stop-and-frisk searches are allowed without a warrant so that
an officer may pat down the outer clothing of a suspicious
person just to see if the person has weapons. This is, again,
to protect the officer’s safety.
Citizens driving automobiles have come to enjoy less protection
against searches and seizures conducted without warrants.
Automobiles are mobile and, considering the threat to officer
safety and the possibility of escape or destruction of evidence,
officers may not have the time to obtain warrants. Courts
have been more willing to allow warrantless vehicle searches
because driving is a highly regulated activity, and isn’t
considered to be an inalienable right.
Despite those exceptions, law enforcement officers are taught
that their case will usually be strongest under judicial scrutiny
if they get a warrant before conducting a search or seizure.
When working for a client accused of a crime, investigating
the basis for a search warrant can be very important.
The Fifth Amendment (1791)

“No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the Militia, when in
actual service in time of war or public danger; nor
shall any person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall be com-
pelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property
be taken for public use, without just compensation.”

Contained within the Fifth Amendment is the famous priv-
ilege against self-incrimination. The renowned Miranda
rule has descended from the Fifth Amendment through the
Supreme Court case of Miranda v. Arizona (1966). See the
exact Miranda warning in the insert box. According to this
rule, accused individuals must be advised of their rights
before the police can talk to them about the crime they’re
accused of committing. Two important elements have to be
present for the Miranda rule to apply:
1. The accused must be in custody (this means under the
control of police officers, whether in the station house or
on the street; the accused must feel that he or she is not
free to walk away).
2. The accused must be interrogated (questioned) about the
crime by law enforcement officials.
The Miranda rule was intended for police interrogations, not
for interviews conducted by private investigators. A private
citizen doesn’t have to read a suspect his or her rights before
talking to that person about a crime. As you’ll learn in a later
unit of this program, private investigators, lacking police
authority, only rarely interrogate anyone.
Miranda Warnings
1. You have the right to remain silent.
2. Anything you say can be used against you in a court of law.
3. You have the right to talk to a lawyer and to have a lawyer present while you’re being
questioned.
4. If you want a lawyer before or during questioning but can’t afford to hire a lawyer, one will
be appointed to represent you at no cost before any questioning.
5. If you answer questions now without a lawyer here, you still have the right to stop answer-
ing questions at any time.
Waiver of Rights
1. Do you understand each of these rights I have explained to you? (Answer must be YES)
2. Having these rights in mind, do you now wish to answer questions? (Answer must be YES)
3. Do you now wish to answer questions without a lawyer present? (Answer must be YES)

The Sixth Amendment (1791)
“In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall
have been committed, which district shall have been
previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be confront-
ed with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defence [sic].”
Those last few words of the Sixth Amendment—“and to have
the Assistance of Counsel”—set in motion an issue that
was to be resolved in Gideon v. Wainwright (1963), a highly
important and controversial Supreme Court decision. The
Supreme Court decided that a defendant has a right to an
attorney in all criminal trials, and that if the defendant can’t
afford an attorney, one has to be appointed for the defendant
by the court. Obviously, this decision concerns only state
criminal justice officials and not private investigators.
The Fourteenth Amendment, Section 1

(1868)
“All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they
reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive
any person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
Closely linked with both criminal and civil investigations
and—at least for our purposes—one of the most important
amendments to the Constitution is the Fourteenth Amend-
ment. This is the amendment used by the Supreme Court
when making decisions binding on the states (Figure 9).

Before this incorporation clause was used to include various
rights, Supreme Court decisions applied only to the federal
government. Prior to the Civil War (1861–65), the Constitution
and the Bill of Rights protected individuals only against fed-
eral actions. With the adoption of the Thirteenth, Fourteenth,
and Fifteenth Amendments, a change occurred, because
these amendments contained the potential for limiting the
states’ power over the individual.
FIGURE 9—Over the years, the Supreme Court has made several decisions that directly concern the rights of all U.S.
citizens. Understanding these decisions can improve your ability to function as a private investigator.
The Fourteenth Amendment has been used increasingly

to prohibit the states from denying to the individual priv-
ileges and immunities of United States citizenship, due
process of the law, and equal protection of the law. The
Fourteenth Amendment has dramatically changed individual
rights in states by including selected provisions of the Bill
of Rights. Some early Supreme Court decisions interpret-
ed the Fourteenth Amendment narrowly, by asserting that
the amendment was meant only to protect the rights of for-
mer slaves. Gradually, however, the guarantees in the Bill
of Rights against federal intrusion on individual rights have
been incorporated into the Fourteenth Amendment’s due

process clause to make the guarantees applicable also to the
states. This is why Supreme Court decisions in the area of
law enforcement affect police officers throughout the entire
country, and not just in the state where the case originated.
The events of September 11, 2001, have influenced many
areas of the law, and especially the interpretation of the
above Constitutional amendments, substantially. You’ll need
to ask about the current state of the issues mentioned here
and any other new legal developments important to a private
investigator on your own as you move into working actively
in the field.
Before continuing, take some time to complete Self-Check 5.

Self-Check 5
_____ 1. Local laws establish the basic rights of all citizens and set limits on the conduct of
government officers.
_____ 2. The famous case, Miranda v. Arizona, established that the police have to be right to
legally arrest a suspect.
_____ 3. The Fifth Amendment is part of the Bill of Rights.
4. The _______ Amendment to the Constitution limits the right of the police to conduct searches.
5. List three of the most common exigent circumstances that may allow police to take some
action without a warrant.
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

LEGAL CONSIDERATIONS FOR
PRIVATE INVESTIGATORS
Criminal and Civil Complaints

While Constitutional restrictions don’t yet apply in the pri-
vate security arena, remedies are available to those who have
been wrongly accused, arrested, or searched; who have had
their privacy invaded; or whose personal papers, effects, or
property have been unjustly seized by private citizens. These
remedies include filing a criminal complaint or a civil lawsuit.
A private investigator who isn’t always professional is at risk
of being accused of many things, including, but not limited
to, the following:
• Invasion of privacy
• Assault and battery
• Trespassing
• Stalking
• Theft
• False arrest or imprisonment
• Malicious prosecution
Whether a defendant is found guilty of any crime or liable

in court, the cost of defending oneself would financially
ruin most private investigators. The decision in Burdeau v.
McDowell has been continuously upheld in a long sequence
of cases, and is considered an extremely strong precedent.
However, you must think ahead and always make decisions
to protect yourself from potential civil liabilities or criminal
charges.
If you’re considering searching something belonging to a
subject and you believe the subject probably has an expecta-
tion of privacy, you should conduct the search only with that
person’s written consent. If the property to be searched is
owned by an employer and there’s no expectation of privacy
on the part of the employee, you would be on safer grounds,

but still need to proceed carefully. If you’re conducting a sur-
veillance, avoid anything that could be considered obtrusive
or malicious, or you might be successfully sued for invasion
of privacy. Videotaping people in bathrooms might be consid-
ered an invasion of their privacy, for example.
Expectation of privacy is a term that’s evolved in court cases involv-

ing privacy and searches. It’s a concept used to determine when a
search is an invasion of privacy. There can be an invasion of priva-
cy only when a person had a reasonable expectation that a thing
would remain private. A person has more expectation of privacy in
his or her diary, for example, than in an unlocked trash bin located
outside the home.
Local and State Laws

The Bill of Rights originally applied only to actions of the
federal government. Over the years, however, law enforcement–
related decisions by the Supreme Court came to affect both
state and federal law enforcement. New amendments were
added to the Constitution by Congress. Also, the Supreme
Court has further interpreted the Constitution. The interpre-
tations regarding the due process clause of the Fourteenth
Amendment were particularly important in extending the
influence of the Supreme Court over the separate states.
Supreme Court decisions have become the law of the land.
State courts don’t have the Constitutional authority to override
a Supreme Court decision. Also, the state courts can’t make
laws that are broader in scope, or allow state law enforcement
officers greater leeway, than would be allowed
in the federal system. However, the state courts can—and
sometimes do—make their own state laws stricter than the
Supreme Court requires. Every state has its own state consti-
tution that closely mirrors the federal Constitution in wording.
The state courts can restrict their state law enforcement offi-
cers from doing things the Supreme Court has allowed under
its interpretation of the Constitution. Therefore, local and state
law enforcement officers, and private investigators who might
investigate their actions, must know relevant state laws and
court decisions as well as they know the Supreme Court
decisions.

Federal laws override local laws through the doctrine of
Although only the legislative preemption. Preemption means that once Congress has
branch of the government— enacted a law in a given field, no state may enact a law that’s
Congress and the state leg-
inconsistent with that federal law. Preemption sometimes
islatures—can pass laws, it’s
the job of the court system means that strict state laws are replaced by more lenient
to interpret those laws. In federal laws. For example, the California legislature passed a
interpreting laws, they can law preventing banks from charging ATM fees over a certain
apply the laws to new areas
or situations not specified by amount. However, the banks successfully disputed the law
the legislature. In this way, in federal court, claiming the more lenient federal banking
courts are said to “make laws preempted the California law. The California law was
laws.”
struck down.
Case Law
Court decisions are called case law. Private investigators
aren’t expected to know the law and the status of case law
like an attorney, but they should know how to look something
up if needed. An example might be where a particular case
has circumstances very similar to one you’re working on, and
your attorney client says that the way a witness you’re going
to interview describes something will be critical. You might
want to read the most recent interpretations of the case to
know how to ask the crucial questions in your interview.
To look up a published court
case, the logical place to
go would be a law library
(Figure 10). Most law libraries
are open to the public, and
the librarians are usually very
accommodating at helping a
novice find what he or she is
looking for. The key to getting
information from almost any
source that depends on help
from others is to be polite, and
not to abuse the helpfulness of
those who work there.
FIGURE 10—The more you learn about the

laws and decisions concerning your case,
the more prepared you’ll be to conduct a
thorough private investigation.

It’s not necessary to be an attorney to learn about court
decisions related to a particular case. For example, the way
your client’s premises were searched might have been consti-
tutional in one state, but wouldn’t be permissible in the state
where it occurred. The search and seizure might be dismissed
in that state court as unreasonable. Researching the law is
usually the work of the attorney involved, but sometimes,
attorneys need all the help they can get. Knowing the rele-
vant case law can also help a private investigator to know
what sort of evidence to look for in the investigation.
Procedural and Statutory Law

The opposite of case law is statutory law. Statutory law is
the laws that are set forth in statutes by the legislature. This
kind of law can include procedural law as well as penal law—
any law that’s enacted by legislation.
States have unique laws, procedures, and regulations that
control how a search warrant must be applied for, what kind
of sentencing authority a judge will have, what kind of time
limit will be imposed on a prosecutor to bring a case to trial,
and so forth. You should become familiar with these laws,
which collectively are known as your jurisdiction’s procedural
law.
You should also become familiar with state and local
substantive law. A state’s substantive law is commonly
referred to as the criminal law or penal law. These are the
statutes that define right and wrong conduct, and the pun-
ishment for committing crimes. Your state will have a penal
law or a code of criminal procedure or both. As you gain
experience, you’ll want to learn about your state’s vehicle
and traffic laws, and miscellaneous other laws.
At some point in your career as a private investigator you’ll
probably investigate or come in contact with criminal cases,
even if it’s not your specialty. Eventually, you may even
specialize in criminal defense investigations. You’ll need to
know local and state law to recognize when someone is vio-
lating it. You’ll also have to know the law to make sure that
the person violating a law isn’t you!

Special Legal Considerations
for Private Investigators
Work Product (Attorney-Client Privilege)

The law doesn’t allow adverse parties to use discovery to get
materials produced by an attorney in preparation for litiga-
Attorney work product tion (work product). This is referred to as the attorney-client
is the notes, ideas, privilege or the work product rule. Attorney-client privilege
strategies, etc., that the also means that an attorney can’t disclose things the client
attorney prepares while
working on a case for a
has said in the process of preparing for the case. There are
client. hardly any exceptions to this rule—unless the client has told
the attorney of plans to murder someone, the attorney must
not disclose anything the client has said, even admissions of
past murders. This privilege extends to the attorney’s staff—
the secretary can’t be made to disclose confidential client
information just because he or she isn’t an attorney.
When working for a non-attorney client, the results of your
investigation aren’t protected in any way from discovery
through the legal system. What this means is, if you uncover
information adverse to the interest of your client, the govern-
ment or someone who is in litigation against your client can
force you to turn over your investigative report and use it
against your client. When you’re working under the direction
of an attorney, even if the client is ultimately paying for your
services, the results of your investigation are protected from
discovery as “attorney work product.”
Law Enforcement by Private Investigators

If, in the course of watching an insurance claimant who
claims total disability, you take video of him or her building
a house, what should you do? Since this might be a fraud-
ulent claim, and because large enough amounts of money
are involved to make the fraud a felony, should you contact
the police? The answer to this hypothetical question is an
emphatic “No! Absolutely not.” The role of a private investiga-
tor is to investigate and to gather information as instructed
by the client. A private investigator reports to the client and
no one else, unless someone’s life is at stake. Involvement
of the police or other authorities is an issue for the client to

deal with. A professional private investigator never implies
or says that someone is a criminal, verbally or in a report, to
anyone else.
Private investigators don’t decide whether or not something
is a crime. The court determines guilt and innocence. In civil
disputes the court decides who wins and who loses a lawsuit.
Everything else done in preparation for the court to make
these decisions is only preparation.
When you suspect your investigation is revealing evidence of
possible fraud or some other crime, always check with your
client for instructions. If the client’s goal is to win a civil
lawsuit, he or she might not care about other factors, such
as intent, which must be established to prove fraud. If you
pursue areas of investigation the client hasn’t requested or
authorized, you might not get paid for the work.
After watching mysteries solved and complex cases worked
in less than two hours on the big screen and TV, it’s a dis-
appointment to most new private investigators to learn they
hardly ever find out who won and who lost the civil cases
they help prepare. If you feel you couldn’t stand to keep
working day after day without pursuing things to the end
or knowing if your client won or lost, you should consider
doing additional studying after this program, and specializing
in criminal defense or plaintiff tort cases. Criminal defense
and plaintiff investigators work with attorney clients all the
way through to the end of the trial more frequently than do
investigators doing other kinds of work.
Interviewing
As a private investigator, much of your livelihood will derive
from talking with and interviewing people (Figure 11). Unlike
your counterparts in the police, you’ll rarely “interrogate”
anyone. The Supreme Court case of Miranda v. Arizona
(1966) dealt with a suspect’s Fifth Amendment privilege
against self-incrimination. The Court found the privilege
applied only when being interrogated by public police. If you
ever are acting in concert with, under the authority of, or
at the encouragement or enticement of the police, a bond
could be considered formed that would compel you to give

the Miranda warnings to someone you’ve taken into custody.
Interrogation is a You typically won’t have the authority needed to interrogate
confrontational form of and you’re not required by law to give anyone the famous
questioning.
Miranda warnings before asking questions.
Interviewing is a
conversational style
of questioning that’s
not accusatory. Just
bear in mind that, if
you’re associated with
the police in a criminal
case, even interviewing
might be considered a
form of interrogation.
FIGURE 11—Private investigators spend a lot of their time interviewing

people.
The Right to Counsel

In Gideon v. Wainwright (1963), the Sixth Amendment’s right
to counsel was the issue. This famous Supreme Court deci-
sion concluded that the right to counsel was guaranteed only
in matters concerning the police. Knowing the rules that
must be followed by government enforcement agents, though,
can give you insight into the Court’s idea of fair play. You’ll
be better prepared for labor-board or arbitration cases, in
which tests established by the criminal courts may set the
standards by which reasonableness is defined.
Although the Gideon decision doesn’t apply to private inves-
tigation work, there are situations where you might not be
legally allowed to contact someone for an interview. If you’re
investigating a civil matter for an attorney or someone who
has an attorney, you’re prohibited from contacting certain
people by the concepts of respondeat superior and the legal

canons of ethics that attorneys are supposed to follow.
Attorneys aren’t allowed to contact a represented opposing
party and discuss the issues of a matter in litigation. All
correspondence must take place between the attorneys, or
at least with both attorneys present. Respondeat superior
means you (the “servant”) are bound by the same rules your
“master” (the attorney client) must follow, and your client (the
master) is responsible for whatever you do as the servant.
Attorney clients would be held responsible for any violations
of the canons of ethics by anyone working on their behalf.
For example: suppose John sues Sally for damaging his car
in an accident. Sally says the accident was John’s fault. They
both retain lawyers for the litigation. Sally’s lawyer hires you
to investigate the accident. Because Sally’s lawyer wouldn’t
be allowed to contact John directly, neither are you. If you
want to interview John, you’d have to have your attorney
client contact John’s lawyer, who would likely demand that
both lawyers be present for the interview (if she even allowed
the interview to take place).
Interviewing Union Members

In a union environment, the employee has the right, upon
his or her request, to have a union representative present
during an investigatory interview. It doesn’t matter if the
employee is suspected of stealing or committing some other
crime, or whether or not you discuss union matters—this
rule still applies. The rule is enforced by the National Labor
Relations Board (NLRB), and it’s not their job to care about
the employer’s need to protect its property from dishonest
employees.
Use of Force
A private investigator providing executive security must
consider the ramifications of all possible scenarios before
they come up. The possible need to use force is an important
issue to be considered ahead of time for bodyguards or
anyone working in a security role. Police have some protection
against liability when they use force, but a private investigator
has none. Your authority to use force in any way while working
as a private investigator is the same as that of any private
citizen.

If the person against whom you’ve used force didn’t commit
any crime, or even if they did and you can’t prove it, you’ll
probably be sued in civil court, and might be charged with
Assault is an act or the crimes of assault and battery. Even without touching
threat of force intended someone, you could be sued for or charged with assault if
to inflict harm or fear
you use too much verbal “force” or any threatening actions.
of harm. The person
must have at least the A threat or a gesture could be construed as an assault.
appearance of being able
The element of physical contact during an assault is called
to carry out the threat.
Battery is the touching battery. For contact to be considered battery, it must be
or hitting of someone unwanted, and harmful or offensive. There doesn’t neces
without the person’s sarily need to be a physical injury as a result of a battery—
consent. They both can
be either a crime or a grabbing a woman’s purse or pinching her behind can both
tort. be considered battery.
Assault is somewhat subjective, in that a court will consider
whether it was reasonable for the victim to feel threatened.
For example, a weightlifter who claims to feel threatened by
someone approaching him in a certain way will have a hard-
er time proving assault than a slender teenage girl in the
same situation. Add a gun to the scenario, even if it’s fake,
and they both can easily prove assault. Words alone usual-
ly aren’t enough to bring a case for assault. However, sim-
ply jumping up out of a chair during an argument might be
enough.
For an assault claim to be successful, the victim must know
that an assault is occurring at the time it takes place. This
isn’t necessary in battery cases, however. For example, a
person can be a victim of battery while unconscious, and
learn of the attack upon waking up with injuries. This person
wasn’t assaulted, however, because at the time of the attack,
he or she wasn’t subjected to fear of harm (because of being
unconscious).
As a private investigator, you must carefully consider three
questions if you ever contemplate using force:
1. Is there any other way to accomplish the goal without
using force?
2. Is it reasonable force?
3. Are you authorized by law to use force in this situation?

Reasonable force is the minimal restraining force necessary
under the circumstances. For example, holding someone’s
arms to keep him from pushing your client during an argu-
ment might be considered reasonable force. However, beating
him until he collapses would not be considered reasonable. It
all depends on the situation, and ultimately, on what a jury
will think of the situation.
Be aware of what you’re trying to defend through the use of
force. You may not be able to justify to the court knocking
someone unconscious with a flashlight in defense of some
property. When defending a person’s safety, minimal restraining
force is usually authorized by law, and even deadly force has
been warranted in certain acts of self-defense. You, as a
private citizen, can use deadly force only if you reasonably
believe deadly force is being used against you or a third person.
For a professional private investigator, with the possible
exception of executive protection, a situation in which you
need to use any type of force should never occur. The more
businesslike, discreet, and confidential you are, the less likely
it will be that your investigation will deteriorate to a point that
physical force becomes necessary. The best weapons private
investigators can have with them at all times are fast shoes.
If a situation becomes threatening or violent, leave. After
consulting with your client, come back with a police officer
to finish whatever is needed.
Privacy Issues
In the United States, the National Privacy Act of 1974 dealt
mostly with the rights of citizens to inspect the records
maintained about them by the federal government. It also
restricted the amount of information third parties could
obtain from government records without the written permission
of the subject being investigated. Since the mid-1990s, an
increasing number of privacy-related laws have been introduced
in Congress to augment the National Privacy Act, including
the Fair Credit Reporting Act and others. Several privacy
protection laws were being considered on September 11, 2001,
but because of the increased emphasis on anti-terrorism and
homeland security, they lost their momentum.

By the time you read this unit, there will probably be new
privacy laws in force. It will be important for you to ask
whoever you’re working for—your employer or attorney
client—to bring you up to date on any recent privacy protec-
tion developments. If you set out to be a private investigator
on your own and work for private individuals, you’ll need to
research the recent developments in privacy protection, or
hire an attorney to do it for you, before starting to do field
work.
Evidence
Because so much hinges on evidence in a legal proceeding, a
whole body of law has developed around what can and can’t
be used as evidence in court. It’s referred to as the Rules of
Evidence. The following boxed item lists the main sections, or
articles, of the Federal Rules of Evidence. Each article of the
Federal Rules of Evidence is many pages long. Most states
have their own rules of evidence in addition to the federal
rules.
Federal Rules of Evidence (2001)

ARTICLE I. GENERAL PROVISIONS
ARTICLE II. JUDICIAL NOTICE
ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS
ARTICLE IV. RELEVANCY AND ITS LIMITS
ARTICLE V. PRIVILEGES
ARTICLE VI. WITNESSES
ARTICLE VII. OPINIONS AND EXPERT TESTIMONY
ARTICLE VIII. HEARSAY
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
ARTICLE XI. MISCELLANEOUS RULES

The exceptions to the Rules of Evidence, for example the
hearsay rules, are as important as the Rules themselves.
Rule 804 of the Federal Rules of Evidence provides several
exceptions to the hearsay rule, as follows:
Hearsay Exceptions; Declarant Unavailable
The declarant is the
(a) Definition of unavailability. “Unavailability as a witness” person who made the
witness statement.
includes situations in which the declarant—
(1) Is exempted by ruling of the court on the ground
of privilege from testifying concerning the subject
matter of [his or her] statement; or
(2) Persists in refusing to testify concerning the sub-
ject matter of [his or her] statement despite an order
of the court to do so; or
(3) Testifies to a lack of memory of the subject matter
of [his or her] statement; or
(4) Is unable to be present or to testify at the hearing
because of death or then-existing physical or mental
illness or infirmity; or
(5) Is absent from the hearing and the proponent of a
statement has been unable to procure the declarant’s
attendance (or in the case of a hearsay exception under
subdivision (b)(2), (3), or (4), the declarant’s attendance
or testimony) by process or other reasonable means.
For example: If an investigator was told something crucial to
a case by a witness, the investigator could normally not testify
to what was said because of the hearsay rule. If, however,
the witness died before trial or refused to show up, the inves-
tigator might be able to testify as to what was said under an
exception to the hearsay rule.
Surveillance
Given concerns about privacy and stalking, it’s reasonable to
ask whether or not surveillance poses a danger of any legal Surveillance simply
problems. Surveillance is a legitimate technique as long as means watching
someone’s activities.
it’s done properly (Figure 12). Harassing or stalking the per-
son under surveillance will get you sued, and in some states
might be a crime.

FIGURE 12—Watching people
in a public place is usually
legitimate, as long as they
don’t feel threatened.
Watching them through the
curtains in their home may
be an invasion of privacy.
Always be very careful if using any kind of high-tech equip-

ment for surveillance. Using sophisticated listening devices to
overhear conversations from a distance is eavesdropping, and
is a violation of federal and state law. Using a high-powered
lens to take video or photographs still seems to be allowable
at the time of this writing, but only if the images are taken
from a publicly accessible location. Even so, you should be
careful not to invade anyone’s privacy. Even if you’re stand-
ing on a public sidewalk, using a long lens to photograph
someone through the blinds in the person’s apartment is
probably an invasion of privacy.
Photographing or taking video of a subject from the person’s
own property isn’t advisable unless you’ve determined that
the trespass laws in the jurisdiction where you’re doing the
work allow you to be there without trespassing. For exam-
ple: if a subject owns a large area of land, and it’s common
for others to walk on trails on the land, and there are no “No
Trespassing” signs, the person might not be able to prove
you trespassed, violated an expectation of privacy, or invaded
his or her privacy. Still, the best rule is to do all surveillance
from public property, unless you’re sure of your rights vis-à-
vis the rights of the subject.

“Dumpster Diving”
Looking through someone’s trash may provide an investigator
with good leads for developing valuable evidence in a case
(Figure 13). For example, a subject who claims to be phys-
ically disabled might have discarded some bills showing a
recent membership in a gym or karate class.
FIGURE 13—As you conduct

an investigation, consider your
conduct in regards to laws pro-
tecting the privacy of
others. What issue could
arise from searching through
someone’s discarded trash?
Two issues that could arise from searching through some-

one’s trash are theft of the property of another and trespass-
ing. As of this writing, the generally accepted rules for trash
pickups by private investigators are as follows:
1. If the trash is still on the property of the subject when
you take it, you could be charged with both theft and
trespassing.
2. If the trash has been put onto the public right of way,
such as the edge of the street, in most jurisdictions it’s
considered to be abandoned by the subject, and taking it Standing on a public
would no longer make you vulnerable to a theft charge. right of way and lean-
Also, if it’s in the street, you obviously don’t have to ing over onto someone’s
property to remove trash
trespass to get it. In some jurisdictions, trash might still
located on the property
be considered personal property, even after being placed isn’t a good way to “get
out on the curb. Stepping one step onto the subject’s around” trespassing
property could cost you a great deal, so always know the laws.
applicable laws and follow them.

These two rules are provided for illustrative purposes only,
and shouldn’t be considered as saying it’s okay for you to
pick up someone’s garbage. You must determine the laws in
your area before doing something like a trash pickup. Laws
and interpretations of laws differ from jurisdiction to jurisdic-
tion, and ignorance of the law is a poor—and legally useless—
excuse. Don’t take chances on being caught doing something
even arguably wrong.
Before continuing to the next section, take some time to
complete Self-Check 6.

Self-Check 6
_____ 1. Federal laws are more powerful than local laws.
_____ 2. Union members have special privileges when an employer wants them interviewed.
_____ 3. A private investigator who is legally licensed by a state can get an arrest warrant for
someone who the investigator believes has committed a crime.
_____ 4. Private investigators often interrogate witnesses.
5. Under what circumstances should a private investigator not interview a crucial witness?
___________________________________________________________________________
6. Case law is just one form the law may take. List two other forms the law may take that are
as binding as case law.
___________________________________________________________________________

SUMMARY
The sampling of court decisions and laws included in this
unit were selected based on the importance each decision
has to private investigations. Some of the actual records of
the court proceedings are reproduced in Appendix C for you
to review. After you read the summary or comments abut
each case, you can turn to the Appendix and read the addi-
tional material provided. It’s important for you to get a feel
for reading court cases, as it will be a part of your research
as an investigator. You’ll find other interesting cases to read
in the reference books section of your local library.
Supreme Court decisions have a far-reaching and lasting
impact. Equally important for you to know as a private inves-
tigator are your legal rights and obligations. You need to be
acquainted with the law, civil and criminal, federal and state.
To avoid lawsuits, never act in a malicious, unprofessional,
or unreasonable fashion when conducting your investigations.
Just as police actions are regulated by the courts, your actions
are also. If you develop and maintain a professional bearing,
you can have an exciting, interesting, and lucrative career in
private investigations.
As you advance through your remaining study units, recall
the lessons you’ve learned in Legal Principles and Requirements.
With the right sense of ethics and professionalism, combined
with an understanding of appropriate laws and legal issues,
almost every conceivable private investigation can be conducted
without fear of violating laws or incurring liability.
PRACTICAL EXERCISES
At the end of most of your Private Investigator study units,
you’ll work through some practical exercises, which will give
you experience performing some of the duties of a private
investigator. The exercises are for your enrichment—don’t
submit your results to the school for grading.

Exercise 1
Contact a police department and learn about the role of the
private investigator.
Objectives
• Gain experience making inquiries in the manner of a
private investigator
• Learn about the relationship between the local police

department and private investigators in general
• Make the acquaintance of a local police officer in a

nonconfrontational way
Contact the information officer in one or more of your local

police departments. It can be a city, county, or state agency.
Let him or her know you’re doing some research for a course
you’re taking, and would like to determine the degree of
interaction and relationship between the officer’s department
and private investigators in general.
Following are some suggestions for questions you might ask.
You can use these questions or use your own.
• Does the department ever use private investigators in
any way? (The answer will probably be no.)
• Do any commissioned police officers work on their own,

on their own time, as private investigators?
• Does the department allow uniformed officers to work for

private businesses as security guards in their off-duty
hours? If so, what rules must they follow to do so?
• Has the department had any complaints about the

activities of private investigators?

Exercise 2
Prepare for a hypothetical trash pickup.
Objectives
• Gain experience in preparation for investigative activity
(which is as important as, and frequently more import-
ant than, the activity itself)
• Continue to gain experience making inquiries as a
private investigator
• Learn the difference between an open inquiry and a
Sub rosa means sub rosa one, and understand that investigations can
secret or private.
frequently be done either way
• Practice using the telephone for investigative inquiries
One of the less glamorous, but very effective, investigative
procedures is a trash pickup (also called dumpster diving).
When information is being gathered about someone, a good
place to look is in the things the person throws out. If a per-
son lives in a house or apartment, where garbage or refuse
collection is provided by a public or private service, there
might be a way to collect the trash of the subject legally. If
the subject’s trash is placed onto public property for collec-
tion, a hard-working private investigator might choose to pick
it up before the truck gets there, to sift through it (wearing
rubber gloves!). This exercise doesn’t involve picking up or
sorting anyone’s garbage. It’s intended to give you experience
preparing to perform an investigative operation.
Your task in this exercise will only be to prepare for a trash
pickup.
1. Select an address in a residential neighborhood a few
miles from your home, where you don’t know anyone.
2. Determine what company or government agency provides
trash collection for the selected address.
3. Contact the trash pickup company and find out
• What day of the week trash is picked up
• What time of day the pickup is made

• What type of container is used
• Where the container has to be placed to be collected
This exercise can be done openly, by calling and asking

people questions, and if they ask, telling them why you’re
asking, or it can be done sub rosa (secretly). If it’s done sub
rosa, if anyone you call asks why you want to know, you
could tell them you expect to move into the neighborhood
and are working out your schedules ahead of time. It’s very
unlikely anyone will even care why you’re calling, but think-
ing the project through, as if you were going to move into the
subject address, will help you figure out what calls to make.
If you want to take the exercise one step further, you could
sift through your own trash before taking it out for disposal.
What does your trash say about you? Would an investigator
be able to find out any sensitive information, like credit card
numbers or health information? What about personal habits
(alcohol or cigarette use, food preferences, club m
emberships)?

NOTES

APPENDIX A—FCRA
Appendix
The Fair Credit Reporting Act
The Fair Credit Reporting Act (FCRA)(15 U.S.C. §§ 1681–
1681u) sets forth legal standards governing the collection,
use, and communication of credit and other information
about consumers. The Consumer Credit Reporting Reform
Act of 1996 (“1996 Amendments”) amended the FCRA exten-
sively. The 1996 Amendments gave consumers many new
protections, including a requirement that consumer reporting
agencies (“CRAs”), such as credit bureaus, must promptly
investigate disputed items, usually within 30 days. The FCRA
created substantial obligations for CRAs. Most importantly,
CRAs must
• Make reports only to parties with permissible purposes,
listed in Section 604
• Limit reporting of negative information past a certain

number of years, which are set out in Section 605
• Maintain reasonable procedures to ensure accuracy

of reports as required by Section 607(b)
• Make file disclosures to consumers required by

Section 609
• Reinvestigate disputes using the procedures set forth in

Section 611
As a public service, the staff of the Federal Trade Commission (FTC)

has published the complete text of the Fair Credit Reporting Act
(FCRA), 15 U.S.C. § 1681 et seq., on the FTC’s Web site: http://
www.ftc.gov/os/statutes/fcra.htm
The format of this text differs in minor ways from the U.S. Code
(abbreviated U.S.C.), as published by the Government Printing
Office, and from West’s U.S. Code Annotated. For example, the
FTC’s version uses FCRA section numbers (§§ 601–625) in the
headings. (The relevant U.S. Code citation is included with each
section heading and each reference to the FCRA in the text.) This
makes a difference when you’re looking up the Act in books at a law
library, which use the U.S. Code sections.
63
The version of the FCRA on the FTC’s Web site is complete
as of January 7, 2002. It includes the amendments to the
FCRA set forth in the Consumer Credit Reporting Reform Act
of 1996 (Public Law 104-208), Section 311 of the Intelligence
Authorization for Fiscal Year 1998 (Public Law 105-107), the
Consumer Reporting Employment Clarification Act of 1998
(Public Law 105-347), Section 506 of the Gramm-Leach-Bliley
Act (Public Law 106-102), and Sections 358(g) and 505(c)
of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (USA PATRIOT Act) (Public Law 107-56).
The table of contents and section names are reproduced
here. For further information, go to the full version on the
Web site.
TABLE OF CONTENTS
§ 601 Short title
§ 602 Congressional findings and statement of purpose
§ 603 Definitions; rules of construction
§ 604 Permissible purposes of consumer reports
§ 605 Requirements relating to information contained in
consumer reports
§ 606 Disclosure of investigative consumer reports
§ 607 Compliance procedures
§ 608 Disclosures to governmental agencies
§ 609 Disclosures to consumers
§ 610 Conditions and form of disclosure to consumers
§ 611 Procedure in case of disputed accuracy
§ 612 Charges for certain disclosures
§ 613 Public record information for employment purposes
§ 614 Restrictions on investigative consumer reports
§ 615 Requirements on users of consumer reports
§ 616 Civil liability for willful noncompliance
§ 617 Civil liability for negligent noncompliance
64 Appendix
§ 618 Jurisdiction of courts; limitation of actions
§ 619 Obtaining information under false pretenses
§ 620 Unauthorized disclosures by officers or employees
§ 621 Administrative enforcement
§ 622 Information on overdue child support obligations
§ 623 Responsibilities of furnishers of information to
consumer reporting agencies
§ 624 Relation to State laws
§ 625 Disclosures to FBI for counterintelligence purposes
§ 626 Disclosures to governmental agencies for
counterterrorism purposes
Civil Rights and Employee

Investigation Clarification Act
Background
In 1970, Congress enacted the Fair Credit Reporting Act
(FCRA), which was intended to protect consumer rights by
codifying rules regarding how credit information is gathered,
disseminated, and used. During the 104th Congress, the
FCRA was amended and updated to enhance the accuracy
and fairness of consumer reports. The amendments to the
FCRA resulted in a number of notification and disclosure
requirements for employers who use an outside party to
conduct any type of investigation.
Issue
The need for legislation stems from the Federal Trade
Commission’s (FTC) interpretation of changes made to the
FCRA in 1996. In 1999, an FTC staff opinion known as the
“Vail Letter” concluded that all outside consultants who, for
a fee, perform investigations of alleged employee misconduct
are considered to be “credit reporting agencies” as defined by
FCRA.
Appendix 65
As a result, employers who retain investigators, attorneys, or
others to conduct inquiries into unlawful activities subject
themselves to the provisions of the FCRA. This means that
employers conducting investigations are required to
• Provide notice and obtain written authorization from the
person who is being investigated
• Upon request, disclose the “nature and scope of the

investigation”
• Provide a complete copy of the investigative report prior

to taking any adverse action against an employee
As a result of the FTC’s interpretation of the FCRA, an

employer’s ability to conduct investigations into unlawful
activities and an employee’s protection from abuses are
compromised. Possible scenarios resulting from this inter
pretation of the FCRA include the following:
• Investigations regarding sexual harassment, embezzle-
ment, fraud, theft, violence, drug sales, and other ille-
gal activities in the workplace would all be subject to
requirements under FCRA.
• A potentially violent employee must be given a report

of the investigation, including names of coworkers who
make or corroborate complaints. Not only would this
“chill” witness testimony, it makes those other employees
potential targets for violence.
• An employer who suspects an employee is dealing

drugs in the workplace would be required to obtain that
employee’s permission in order to investigate. This would
give the employee time to “cover his or her tracks.”
Legislative Solution
HR 1543, the Civil Rights and Employee Investigation
Clarification Act, removes requirements of the FCRA for
1. Investigations of suspected misconduct relating to
employment
66 Appendix
2. Compliance with existing laws and preexisting written
policies of the employer
In addition, under the proposed legislation, the onerous
requirement of providing notification prior to an investiga-
tion would be removed. Also, the employee under investiga-
tion will be given a comprehensive summary, not the report
of “raw data,” containing the “nature and substance of the
communication upon which the adverse action is based,” if
adverse action is indeed taken.
When enacted, this law will allow employers to conduct
investigations for the preservation of workplace safety and
will ensure that employees who are suffering harassment
will be able to seek prompt, thorough, impartial, confiden-
tial, and competent investigation of those abuses. As of this
writing, HR1543 hadn’t yet been enacted into law.
APPENDIX B—GLBA
The Gramm-Leach-Bliley Act, Its Privacy

Regulations, and Financial Institutions
The Gramm-Leach-Bliley Act (GLBA) sets standards for finan-
cial institutions’ disclosure of nonpublic personal information
to nonaffiliated third parties through its privacy provisions.
The Federal Trade Commission published timely final reg-
ulations implementing these privacy provisions, as did the
federal banking agencies.
The GLBA privacy regulations don’t “modify, limit, or super-
sede the operation of the Fair Credit Reporting Act.” Thus,
both the privacy regulations and the FCRA may apply to a
financial institution’s disclosure of certain consumer infor-
mation. Moreover, if a financial institution provides an
opt-out notice under the FCRA, that notice must be
included in certain notices mandated by the privacy regula-
tions, including annual notices to customers. Therefore, the
Commission anticipates that financial institutions will design
their information-sharing policies and practices taking into
account both the GLBA (and its privacy regulations) and
Appendix 67
the FCRA. The federal banking agencies have stated their
intent to conform their privacy regulations and FCRA regula-
tions where appropriate.
Results of a Gramm-Leach-Bliley Sting
March 8, 2002—Information Brokers Settle FTC Charges

The following paragraphs are from an FTC press release
announcing the settlements of court cases stemming from
an undercover operation performed by the FTC.
Consumers’ Confidential Financial Information was
Allegedly Obtained through Deception
Information brokers who allegedly used deception to obtain
consumers’ confidential financial information have agreed to
settle Federal Trade Commission charges that their practices
violated federal law. The settlements bar the operators from
obtaining or hiring others to obtain consumers’ financial
information through illegal means or by hiring or contracting
with others who use illegal methods to obtain consumers’
financial information. The settlements also require that
the defendants give up the money they made in the illegal
scheme.
In April 2001, the FTC filed suit in three U. S. District Courts
to halt the operations of information brokers who allegedly
used false pretenses, fraudulent statements, or imperson-
ation to illegally obtain consumers’ confidential financial
information—such as bank balances—and sell it. The prac-
tice of obtaining consumers’ private financial information
under false pretenses is known as “pretexting.” The Gramm-
Leach-Bliley Act specifically outlaws pretexting and soliciting
others to pretext.
“Pretexting, like that alleged in these cases, undermines
consumers’ basic expectation of confidentiality in their finan-
cial information,” said J. Howard Beales, III, Director of
the FTC’s Bureau of Consumer Protection. “The clients of
pretexters are often law firms and other businesses. These
buyers should beware because knowingly obtaining pretexted
information is illegal as well.”
68 Appendix
In documents filed with the courts, the FTC charged that the
defendants maintained Web sites where they advertised that
they could obtain nonpublic, confidential, financial informa-
tion—including such things as checking and savings account
numbers and balances; stock, bond, and mutual fund
accounts; and safe deposit box locations—for fees ranging
from $100 to $600, depending on the information sought.
In sting operations set up by the FTC in cooperation with
local banks, investigators established dummy bank accounts
in the names of cooperating witnesses and then called defen-
dants posing as purchasers of the defendants’ pretexting
services. In the three cases, an FTC investigator posed as
a consumer seeking account balance information on her
fiancé’s checking account. The investigator provided limited
information about her “fiancé’s” account to the defendants.
The defendants or persons they hired called the bank, iden-
tifying themselves by the name of the supposed “fiancé,” and
asked to check his balance. The defendants later provided
the account balance information to the FTC investigator.
The FTC asked the courts to halt the illegal practices perma-
nently, freeze the defendants’ assets pending trial, and order
them to give up their ill-gotten gains. The courts temporarily
enjoined the defendants from continuing the illegal practices
and imposed partial freezes of their assets pending trial. The
settlements announced today resolve those court cases.
The settlements bar the defendants, in connection with the
obtaining, offering for sale, or selling of customer information
of a financial institution, from
• Misrepresenting their identities or their right to receive
customer information
• Using others who will obtain information using deception
• Selling or disclosing customer information obtained from

a financial institution
• Making false and misleading statements
The settlements also bar the defendants from violating the

pretexting provisions of the Gramm-Leach-Bliley Act, and
require the defendants to give up their ill-gotten gains.
Appendix 69
The Commission complaints name Information Search, Inc.,
and David Kacala of Baltimore, Maryland; Victor L. Guzzetta,
doing business as Smart Data Systems of Staten Island, New
York; and Paula Garrett, doing business as Discreet Data
Systems of Humble, Texas. The cases were filed under seal in
U. S. District Courts for the District of Maryland, the Eastern
District of New York, and the Southern District of Texas.
Defendants Paula Garrett and Victor L. Guzzetta will pay
$2,000 each. Based on financial statements provided by def
endant David Kacala, a $15,000 payment will be suspended.
Should the Commission have evidence that the defendant
made misrepresentations in his financial statements, the
entire amount of the judgment will become immediately due.
All the settlements contain record keeping provisions to allow
the Commission to monitor compliance with its order.
APPENDIX C—IMPORTANT COURT

CASES
Take some time to read through the cases reprinted here.
They’ll give you valuable insight into the reasoning behind
the Court’s rulings, and also give you practice in reading
court decisions. You might consider borrowing a legal dic-
tionary to make it easier to look up unfamiliar legal terms.
Asterisks (* * *) indicate that the text has been cut for brevi-
ty. (Note: footnote numbers won’t be consecutive, as most of
them have been omitted from this reprint.)
Mapp v. Ohio
367 U.S. 643 (1961)

JUSTICE CLARK delivered the opinion of the Court. * * *
On May 23, 1957, three Cleveland police officers arrived at
appellant’s residence in that city pursuant to information
that “a person [was] hiding out in the home who was want-
ed for questioning in connection with a recent bombing, and
that there was a large amount of policy paraphernalia being
70 Appendix
hidden in the home.” Miss Mapp and her daughter lived on
the top floor of the two-family dwelling. Upon their arrival at
that house, the officers knocked on the door and demand-
ed entrance but appellant, after telephoning her attorney,
refused to admit them without a search warrant. * * *
The officers again sought entrance some three hours later
when four or more additional officers arrived on the scene.
When Miss Mapp did not come to the door immediately,
at least one of the several doors to the house was forcibly
opened and the policemen gained admittance. Meanwhile
Miss Mapp’s attorney arrived, but the officers, having
secured their own entry, and continuing in their defiance of
the law, would permit him neither to see Miss Mapp nor to
enter the house. When the officers broke into the hall, Miss
Mapp demanded to see the search warrant. A paper, claimed
to be a warrant, was held up by one of the officers. She
grabbed the “warrant” and placed it in her bosom. A struggle
ensued in which the officers recovered the piece of paper and
as a result of which they handcuffed appellant because she
had been “belligerent” in resisting their official rescue of the
“warrant” from her person. * * * Appellant, in handcuffs, was
then forcibly taken upstairs to her bedroom [while the house
was searched]. * * * The obscene materials for possession of
which she was ultimately convicted were discovered in the
basement in the course of that widespread search.
At the trial no search warrant was produced by the pros-
ecution, nor was the failure to produce one explained or
accounted for. At best [as the Ohio Supreme Court, which
affirmed the conviction, expressed it], “there is, in the record,
considerable doubt as to whether there ever was any warrant
for the search of defendant’s home.” * * *
The State says that even if the search were made without
authority, or otherwise unreasonably, it is not prevented
from using the unconstitutionally seized evidence at trial,
citing Wolf v. Colorado. * * * On this appeal, * * * it is urged
once again that we review that holding. * * *
While in 1949, prior to the Wolf case, almost two-thirds of
the States were opposed to the use of the exclusionary rule,
now, despite the Wolf case, more than half of those since
passing upon it, by their own legislative or judicial decision,
have wholly or partly adopted or adhered to the Weeks rule.
Appendix 71
* * * Significantly, among those now following the rule is
California, which, according to its highest court, was “com-
pelled to reach that conclusion because other remedies have
completely failed to secure compliance with the constitutional
provisions.” In connection with this California case, we note
that the second basis elaborated in Wolf in support of its fail-
ure to enforce the exclusionary doctrine against the States
was that “other means of protection” have been afforded “the
right to privacy.” The experience of California that such other
remedies have been worthless and futile is buttressed by the
experience of other States.
* * * It therefore plainly appears that the factual consider-
ations supporting the failure of the Wolf Court to include the
Weeks exclusionary rule when it recognized the enforceability
of the right to privacy against the States in 1949, while not
basically relevant to the constitutional consideration, could
not, in any analysis, now be deemed controlling.
* * * Today we once again examine Wolf’s constitutional
documentation of the right to privacy free from unreasonable
state intrusion, and, after its dozen years on our books, are
led by it to close the only courtroom door remaining open to
evidence secured by official lawlessness in flagrant abuse of
that basic right, reserved to all persons as a specific guaran-
tee against that very same unlawful conduct. We hold that
all evidence obtained by searches and seizures in violation of
the Constitution is, by that same authority, inadmissible in a
state court.
Since the Fourth Amendment’s right of privacy has been
declared enforceable against the States through the Due
Process Clause of the Fourteenth Amendment, it is enforce-
able against them by the same sanction of exclusion as is
used against the Federal Government. Were it otherwise,
then just as without the Weeks rule the assurance against
unreasonable federal searches and seizures would be “a form
of words,” valueless * * * , so too, without that rule the free-
dom from state invasions of privacy would be so ephemeral
and so neatly severed from its conceptual nexus with the
freedom from all the brutish means of coercing evidence as
not to merit this Court’s high regard as a freedom “implicit in
‘the concept of ordered liberty.’”
72 Appendix
* * * In extending the substantive protections of due process
to all constitutionally unreasonable searches—state or feder-
al— it was logically and constitutionally necessary that the
exclusion doctrine—an essential part of the right to privacy—
be also insisted upon as an essential ingredient of the right
newly recognized by the Wolf case. In short, the admission
of the new constitutional right by Wolf could not consistently
tolerate denial of its most important constitutional privilege,
namely, the exclusion of the evidence which an accused had
been forced to give by reason of the unlawful seizure. To
hold otherwise is to grant the right but in reality to withhold
its privilege and enjoyment. Only last year the Court itself
recognized that the purpose of the exclusionary rule “is to
deter—to compel respect for the constitutional guaranty in
the only effectively available way—by removing the incentive
to disregard it.”
* * * Nothing could be more certain than that when a
coerced confession is involved, “the relevant rules of evi-
dence” are overridden without regard to “the incidence of
such conduct by the police.” Why should not the same rule
apply to what is tantamount to coerced testimony by way
of unconstitutional seizure of goods, papers, effects, doc-
uments, etc.? We find that, as to the Federal Government
the Fourth and Fifth Amendments and, as to the States, the
freedom from unconscionable invasions of privacy and the
freedom from convictions based upon coerced confessions
do enjoy an “intimate relation” in their perpetuation of “prin-
ciples of humanity and civil liberty * * *.” The philosophy of
each Amendment and of each freedom is complementary to,
although not dependent upon, that of the other in its sphere
of influence—the very least that together they assure that no
man is to be convicted on unconstitutional evidence.
Moreover, our holding * * * is not only the logical dictate
of prior cases, but it also makes very good sense. * * *
Presently, a federal prosecutor may make no use of evidence
illegally seized, but a State’s attorney across the street may,
although he supposedly is operating under the enforceable
prohibitions of the same Amendment. Thus the State, by
admitting evidence unlawfully seized, serves to encourage
disobedience to the Federal Constitution which it is bound to
uphold. * * *
Appendix 73
There are those who say, as did Justice (then Judge)
Cardozo, that under our constitutional exclusionary doc-
trine “the criminal is to go free because the constable has
blundered.” In some cases this will undoubtedly be the
result. But, as was said in Elkins, “there is another consider-
ation—the imperative of judicial integrity.” The criminal goes
free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to
observe its own laws, or worse, its disregard of the charter
of its own existence. * * * If the government becomes a law-
breaker, it breeds contempt for law; it invites every man to
become a law unto himself; it invites anarchy. Nor can it lightly
be assumed that, as a practical matter, adoption of the exclu-
sionary rule fetters law enforcement. Only last year this Court
expressly considered that contention and * * * noted that:
“The federal courts themselves have operated under the
exclusionary rule of Weeks for almost half a century; yet it
has not been suggested either that the Federal Bureau of
Investigation has thereby been rendered ineffective, or that
the administration of criminal justice in the federal courts
has thereby been disrupted. Moreover, the experience of the
states is impressive * * *. The movement toward the rule of
exclusion has been halting but seemingly inexorable.”
The ignoble shortcut to conviction left open to the States
tends to destroy the entire system of constitutional restraints
Ignoble means lacking
noble qualities, such on which the liberties of the people rest. Having once rec-
as elevated moral ognized that the right to privacy embodied in the Fourth
character. Amendment is enforceable against the States, and that the
right to be secure against rude invasions of privacy by state
officers is, therefore, constitutional in origin, we can no lon-
ger permit that right to remain an empty promise. Because it
is enforceable in the same manner and to like effect as other
basic rights secured by the Due Process Clause, we can no
longer permit it to be revocable at the whim of any police
officer who, in the name of law enforcement itself, chooses
to suspend its enjoyment. Our decision, founded on reason
and truth, gives to the individual no more than that which
the Constitution guarantees him, to the police officer no less
than that to which honest law enforcement is entitled, and,
to the courts, that judicial integrity so necessary in the true
administration of justice. * * *
74 Appendix
Reverse and remanded.
JUSTICE HARLAN, whom JUSTICE FRANKFURTER and
JUSTICE WHITTAKER join, dissenting.
* * * I would not impose upon the States this federal exclu-
sionary remedy. The reasons given by the majority for now
suddenly turning its back on Wolf seem to me notably
unconvincing.
First, it is said that “the factual grounds upon which Wolf
was based” have since changed, in that more States now
follow the Weeks exclusionary rule than was so at the time
Wolf was decided. While that is true, a recent survey indi-
cates that at present one half of the States still adhere to the
common-law nonexclusionary rule. * * * Our concern here,
as it was in Wolf, is not with the desirability of that rule
but only with the question whether the States are Constitu
tionally free to follow it or not as they may themselves deter-
mine, and the relevance of the disparity of views among the
States on this point lies simply in the fact that the judgment
involved is a debatable one. Moreover, the very fact on which
the majority relies, instead of lending support to what is now
being done, points away from the need of replacing voluntary
state action with federal compulsion.
The preservation of a proper balance between state and fed-
eral responsibility in the administration of criminal justice
demands patience on the part of those who might like to
see things move faster among the States in this respect.
Problems of criminal law enforcement vary widely from State
to State. * * * For us the question remains, as it has always
been, one of state power, not one of passing judgment on the
wisdom of one state course or another. In my view this Court
should continue to forbear from fettering the States with an Fetter means to restrict
adamant rule which may embarrass them in coping with their the freedom of some-
own peculiar problems in criminal law enforcement. * * * thing or someone.
Adamant means stub-
* * * Our role in promulgating the Weeks rule and its exten- bornly unyielding to
sions * * * was quite a different one than it is here. There, reason. Forbear means
to resist.
in implementing the Fourth Amendment, we occupied the
position of a tribunal having the ultimate responsibility for
developing the standards and procedures of judicial adminis-
tration within the judicial system over which it presides. Here
we review State procedures whose measure is to be taken not
Appendix 75
against the specific substantive commands of the Fourth
Amendment but under the flexible contours of the Due Process
Clause. I do not believe that the Fourteenth Amendment
empowers this Court to mould state remedies effectuating the
right to freedom from “arbitrary intrusion by the police” to suit
its own notions of how things should be done.
* * * The point, then, must be that in requiring exclusion of
an involuntary statement of an accused, we are concerned
not with an appropriate remedy for what the police have
done, but with something which is regarded as going to the
heart of our concepts of fairness in judicial procedure. * * *
The pressures brought to bear against an accused leading to
a confession, unlike an unconstitutional violation of privacy,
do not, apart from the use of the confession at trial, neces-
sarily involve independent Constitutional violations. What is
crucial is that the trial defense to which an accused is enti-
tled should not be rendered an empty formality by reason of
statements wrung from him. * * * That this is a procedural
right, and that its violation occurs at the time his improperly
obtained statement is admitted at trial, is manifest. * * *
This, and not the disciplining of the police, as with illegally
seized evidence, is surely the true basis for excluding a state-
ment of the accused which was unconstitutionally obtained.
In sum, I think the coerced confession analogy works strongly
against what the Court does today. * * *
Gideon v. Wainwright
372 U.S. 335 (1963)

JUSTICE BLACK delivered the opinion of the Court.
The petitioner is the Petitioner was charged in a Florida state court with having
person seeking relief broken and entered a poolroom with intent to commit a
in the courts. misdemeanor. This offense is a felony under Florida law.
Appearing in court without funds and without a lawyer,
petitioner asked the court to appoint counsel for him,
whereupon the following colloquy took place:
76 Appendix
“The Court: Mr. Gideon, I am sorry, but I cannot appoint
Counsel to represent you in this case. Under the laws of the
State of Florida, the only time the Court can appoint Counsel
to represent a Defendant is when that person is charged with
a capital offense. * * *”
“The Defendant: The United States Supreme Court says I am
entitled to be represented by Counsel.”
Put to trial before a jury, Gideon conducted his defense
about as well as could be expected from a layman. He made
an opening statement to the jury, cross-examined the State’s
witnesses, presented witnesses in his own defense, declined
to testify himself, and made a short argument “emphasizing
his innocence to the charge contained in the Information
filed in this case.” The jury returned a verdict of guilty, and
petitioner was sentenced to serve five years in the state pris-
on. Later petitioner unsuccessfully appealed his conviction
and sentence in the state supreme court on the ground that
the trial court’s refusal to appoint counsel for him violated
his constitutional rights. Since 1942, when Betts v. Brady
was decided by a divided Court, the problem of a defendant’s
federal constitutional right to counsel in a state court has
been a continuing source of controversy and litigation in
both state and federal courts. To give this problem another
review here, we granted certiorari and appointed counsel to
Certiorari is a writ used
represent petitioner. by a higher court to
review the decision of
We accept Betts’ assumption, based as it was on our prior a lower court and take
cases, that a provision of the Bill of Rights which is “funda- corrective action if
mental and essential to a fair trial” is made obligatory upon needed. When the court
“grants certiorari,” it’s
the States by the Fourteenth Amendment. We think the
saying it believes the
Court in Betts was wrong, however, in concluding that the case is important, and
Sixth Amendment’s guarantee of counsel is not one of these it’s willing to review the
fundamental rights. Ten years before Betts [in the Powell case.
decision], this Court, after full consideration of all the historical
data examined in Betts, had unequivocally declared that “the
right to the aid of counsel is of this fundamental character.”
While the court at the close of the Powell opinion [limited]
its holding to the particular facts and circumstances of that
case, its conclusions about the fundamental nature of the
right to counsel are unmistakable. The fact is that in decid-
ing as it did—that “appointment of counsel is not a funda-
mental right, essential to a fair trial”—the Betts Court made
Appendix 77
an abrupt break with its own well-considered precedent. In
returning to these old precedents, sounder we believe than
the new, we but restore constitutional principles established
to achieve a fair system of justice. Not only these prece-
dents but also reason and reflection require us to recognize
that in our adversary system of criminal justice, any person
haled into court, who is too poor to hire a lawyer, cannot
be assured a fair trial unless counsel is provided for him.
This seems to us to be an obvious truth. Governments, both
state and federal, quite properly spend vast sums of money
to establish machinery to try defendants accused of crime.
* * * That government hires lawyers to prosecute and defen-
dants who have the money hire lawyers to defend are the
strongest indications of the widespread belief that lawyers
in criminal courts are necessities, not luxuries. * * * From
the very beginning, our state and national constitutions and
laws have laid great emphasis on procedural and substan-
tive safeguards designed to assure fair trials before impar-
tial tribunals in which every defendant stands equal before
the law. This noble ideal cannot be realized if the poor man
charged with crime has to face his accusers without a lawyer
to assist him. * * *
The Court in Betts departed from the sound wisdom upon
which the Court’s holding in Powell rested. Florida, support-
ed by two other States, has asked that Betts v. Brady be left
intact. Twenty-two States, as friends of the Court, argue that
Betts was “an anachronism when handed down” and that it
should now be overruled. We agree. * * * Reversed
JUSTICE CLARK, concurring in the result. * * *
The Constitution makes no distinction between capital and
noncapital cases. The Fourteenth Amendment requires due
process of law for the deprival of “liberty” just as for deprival
of “life,” and there cannot constitutionally be a difference in
the quality of the process based merely upon a supposed
difference in the sanction involved. How can the Fourteenth
Amendment tolerate a procedure which it condemns in the
capital cases on the ground that deprival of liberty may be
less onerous than deprival of life—a value judgment not
universally accepted—or that only the latter deprival is
irrevocable? * * *
78 Appendix
JUSTICE HARLAN, concurring.
* * * In noncapital cases, the “special circumstances” rule
has continued to exist in form while its substance has been
substantially and steadily eroded. In the first decade after
Betts, there were cases in which the Court found special cir-
cumstances to be lacking, but usually by a sharply divided
vote. * * * At the same time, there have been not a few cases
in which special circumstances were found in little or nothing
more than the “complexity” of the legal questions presented,
although those questions were often of only routine difficulty.
The Court has come to recognize, in other words, that the
mere existence of a serious criminal charge constituted in
itself special circumstances requiring the services of counsel
at trial. In truth the Betts rule is no longer a reality.
This evolution, however, appears not to have been fully recog-
nized by many state courts, in this instance charged with the
front-line responsibility for the enforcement of constitutional
rights. To continue a rule which is honored by this Court
only with lip service is not a healthy thing and in the long
run will do disservice to the federal system.
The special circumstances rule has been formally abandoned
in capital cases, and the time has now come when it should
be similarly abandoned in noncapital cases, at least as to
offenses which, as the one involved here, carry the possibility
of a substantial prison sentence.
Miranda v. Arizona
384 U.S. 436 (1966)

CHIEF JUSTICE WARREN delivered the opinion of the Court.
The cases before us raise questions which go to the roots of
American criminal jurisprudence: the restraints society must
observe consistent with the Federal Constitution in prose-
cuting individuals for crime. More specifically, we deal with
the admissibility of statements obtained from an individual
who is subjected to custodial police interrogation and the
necessity for procedures which assure that the individual
is accorded his privilege under the Fifth Amendment to the
Constitution not to be compelled to incriminate himself. * * *
Appendix 79
We start here, as we did in Escobedo, with the premise that
our holding is not an innovation in our jurisprudence, but
is an application of principles long recognized and applied in
other settings. We have undertaken a thorough reexamination
of the Escobedo decision and the principles it announced,
and we reaffirm it. That case was but an explication of basic
rights that are enshrined in our Constitution—that “No per-
son * * * shall be compelled in any criminal case to be a wit-
ness against himself,” and that “the accused [shall] have the
Assistance of Counsel”—rights which were put in jeopardy
in that case through official overbearing. * * *
Our holding will be spelled out with some specificity in the
pages which follow, but briefly stated it is this: the prosecution
may not use statements, whether exculpatory or inculpato-
ry, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.
By custodial interrogation, we mean 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.
As for the procedural safeguards to be employed, unless
other fully effective means are devised to inform accused
persons of their right of silence and to assure a continuous
opportunity to exercise it, the following measures are required.
Prior to any questioning, the person must be warned that
he has a right to remain silent, that any statement he does
make may be used as evidence against him, and that he
has a right to the presence of an attorney, either retained
or appointed. The defendant may waive effectuation of these
To waive means to give
rights, provided the waiver is made voluntarily, knowingly
up a right or privilege
voluntarily. and intelligently. If, however, he indicates in any manner
and at any stage of the process that he wishes to consult
an attorney before speaking there can be no questioning.
Likewise, if the individual is alone and indicates in any man-
ner that he does not wish to be interrogated, the police may
not question him. The mere fact that he may have answered
some questions or volunteered some statements on his own
does not deprive him of the right to refrain from answering
any further inquiries until he has consulted with an attorney
and thereafter consents to be questioned.
80 Appendix
The constitutional issue we decided in each of these cases
is the admissibility of statements obtained from a defendant
questioned while in custody and deprived of his freedom of
action in any significant way. * * * All [the cases] thus share
silent features—incommunicado interrogation of individuals in
a police-dominated atmosphere, resulting in self-incriminating
statements without full warnings of constitutional rights. * * *
Again we stress that the modern practice of in-custody inter-
rogation is psychologically rather than physically oriented.
* * * Interrogation still takes place in privacy. Privacy results
in secrecy and this in turn results in a gap in our knowledge
as to what in fact goes on in the interrogation rooms. A valu-
able source of information about present police practices,
however, may be found in various police manuals and texts
which document procedures employed with success in the
past, and which recommend various other effective tactics.
* * * By considering these texts and other data, it is possible
to describe procedures observed around the country. * * *
When other techniques prove unavailing, the texts recom-
mend they be alternated with a show of some hostility. One
ploy often used has been termed the “friendly-unfriendly” or
the “Mutt and Jeff” act:
“[In] this technique, two agents are employed. Mutt, the
relentless investigator, who knows the subject is guilty and
is not going to waste any time. He’s sent a dozen men away
for this crime and he’s going to send the subject away for
the full term. Jeff, on the other hand, is obviously a kind-
hearted man. He has a family himself. He has a brother who
was involved in a little scrape like this. He disapproves of
Mutt and his tactics and will arrange to get him off the case
if the subject will cooperate. He can’t hold Mutt off for very
long. The subject would be wise to make a quick decision.
The technique is applied by having both investigators pres-
ent while Mutt acts out his role. Jeff may stand by quietly
and demur at some of Mutt’s tactics. When Jeff makes his
plea for cooperation, Mutt is not present in the room.”
The interrogators sometimes are instructed to induce a con-
fession out of trickery. * * * The interrogator may take a break
in his questioning to place the subject * * * in a lineup. “The
witness or complainant (previously coached, if necessary)
Appendix 81
studies the lineup and confidently points out the subject as
the guilty party.” Then the questioning resumes “as though
there were now no doubt about the guilt of the subject.” A
variation on this technique is called the “reverse lineup”:
“The accused is placed in a lineup, but this time he is iden-
tified by several fictitious witnesses or victims who associ-
ated him with different offenses. It is expected that the sub-
ject will become desperate and confess to the offense under
investigation in order to escape from the false accusations.”
The manuals also contain instructions for police on how
to handle the individual who refuses to discuss the matter
entirely, or who asks for an attorney or relatives. The examiner
is to concede him the right to remain silent. * * * After this,
however, the officer is told to point out the incriminating sig-
nificance of the suspect’s refusal to talk:
“Joe, you have a right to remain silent. That’s your privilege
and I’m the last person in the world who’ll try to take it away
from you. If that’s the way you want to leave this, O.K. But
let me ask you this. Suppose you were in my shoes and I
were in yours and you called me in to ask me about this and
I told you, ‘I don’t want to answer any of your questions.’
You’d think I had something to hide, and you’d probably be
right in thinking that. That’s exactly what I’ll have to think
about you, and so will everybody else. So let’s sit here and
talk this whole thing over.”
* * * In the event that the subject wishes to speak to a
relative or an attorney, the following advice is tendered:
“The interrogator should respond by suggesting that the sub-
ject first tell the truth to the interrogator himself rather than
get anyone else involved in the matter. If the request is for an
attorney, the interrogator may suggest that the subject save
himself or his family the expense of any such professional
service, particularly if he is innocent of the offense under
investigation. The interrogator may also add, ‘Joe, I’m only
looking for the truth, and if you’re telling the truth, that’s it.
You can handle this by yourself.’”
From these representative samples of interrogation tech-
niques, the setting prescribed by the manuals and observed
in practice becomes clear. In essence, it is this: To be alone
with the subject is essential to prevent distraction and to
82 Appendix
deprive him of any outside support. The aura of confidence
in his guilt undermines his will to resist. He merely confirms
the preconceived story the police seek to have him describe.
Patience and persistence, at times relentless questioning,
are employed. To obtain a confession, the interrogator must
“patiently maneuver himself or his quarry into a position
from which the desired object may be obtained.” When nor-
mal procedures fail to produce the needed result, the police
may resort to deceptive stratagems such as giving false legal
advice. * * * The police then persuade, trick, or cajole him
out of exercising his constitutional rights.
Even without employing brutality, the “third degree” or the
specific stratagems described above, the very fact of custodi-
al interrogation exacts a heavy toll on individual liberty and
trades on the weakness of individuals. * * *
In the cases before us today, given this background, we con-
cern ourselves primarily with this interrogation atmosphere
and the evils it can bring. In Miranda v. Arizona, the police
arrested the defendant and took him to a special interro-
gation room where they secured a confession. In Vignera v.
New York, the defendant made oral admissions to the police
after interrogation in the afternoon, and then signed an
inculpatory statement upon being questioned by an assis-
tant district attorney later the same evening. In Westover v.
United States, the defendant was handed over to the Federal
Bureau of Investigation by local authorities after they had
detained and interrogated him for a lengthy period, both at
night and the following morning. After some two hours of
questioning, the federal officers had obtained signed state-
ments from the defendant. Lastly, in California v. Stewart,
the local police held the defendant five days in the station
and interrogated him on nine separate occasions before they
secured his inculpatory statement.
In these cases, we might not find the defendants’ statement
to have been involuntary in traditional terms. Our concern
for adequate safeguards to protect precious Fifth Amendment
rights is, of course, not lessened in the slightest. In each
of the cases, the defendant was thrust into an unfamiliar
atmosphere and run through menacing police interroga-
tion procedures. The potentiality for compulsion is force-
fully apparent, for example, in Miranda, where the indigent
Mexican defendant was a seriously disturbed individual
Appendix 83
with pronounced sexual fantasies, and in Stewart, in which
the defendant was an indigent black Los Angeleno who had
dropped out of school in the sixth grade. To be sure, the
records do not evince overt physical coercion or patented
psychological ploys. The fact remains that in none of these
cases did the officers undertake to afford appropriate safe-
guards at the outset of the interrogation to ensure that the
statements were truly the product of free choice.
It is obvious that such an interrogation environment is created
for no purpose other than to subjugate the individual to the
will of his examiner. This atmosphere carries its own badge
of intimidation. To be sure, this is not physical intimidation,
but it is equally destructive of human dignity. The current
practice of incommunicado interrogation is at odds with one
of our Nation’s most cherished principles—that the individ-
ual may not be compelled to incriminate himself. Unless
adequate protective devices are employed to dispel the com-
pulsion inherent in custodial surroundings, no statement
obtained from the defendant can truly be the product of his
free choice.
From the foregoing, we can readily perceive an intimate con-
nection between the privilege against self-incrimination and
police custodial questioning. It is fitting to turn to history
and precedent underlying the Self-Incrimination Clause to
determine its applicability in this situation.
* * * The constitutional foundation underlying the privilege
is the respect a government—state or federal—must accord
to the dignity and integrity of its citizens. To maintain a “fair
state–individual balance,” * * * to respect the inviolability of
the human personality, our accusatory system of criminal
justice demands that the government seeking to punish an
individual produce the evidence against him by its own inde-
pendent labors, rather than by the cruel, simple expedient
of compelling it from his own mouth. In sum, the privilege
is fulfilled only when the person is guaranteed the right “to
remain silent unless he chooses to speak in the unfettered
exercise of his own will.”
* * * We are satisfied that all the principles embodied in
the privilege apply to informal compulsion exerted by law-en-
forcement officers during in-custody questioning. * * *
As a practical matter, the compulsion to speak in the isolated
84 Appendix
setting of the police station may well be greater than in
courts or other official investigations, where there are often
impartial observers to guard against intimidation or trickery.
***
Because of the adoption by Congress of Rule 5(a) of the
Federal Rules of Criminal Procedure, and this Court’s effec-
tuation of that Rule in McNabb and Mallory, we have had
little occasion in the past quarter century to reach the
constitutional issues in dealing with federal interrogations.
These supervisory rules, requiring production of an arrested
person before a commissioner “without unnecessary delay”
and excluding evidence obtained in default of that statutory
obligation, were nonetheless responsive to the same consid-
erations of Fifth Amendment policy that unavoidably face
us now as to the States. In [the McNabb and Mallory cases]
we recognized both the dangers of interrogation and the
appropriateness of prophylaxis stemming from the very
fact of interrogation itself.
Our decision in Malloy v. Hogan necessitates an examination
of the scope of the privilege in state cases as well. In Malloy,
we squarely held the privilege applicable to the States, and
held that the substantive standards underlying the privilege
applied with full force to state court proceedings. * * * The
voluntariness doctrine in the state cases, as Malloy indicates,
encompasses all interrogation practices which are likely to
exert such pressure upon an individual as to disable him
from making a free and rational choice. * * *
In Escobedo, as in the cases today, we sought a protective
device to dispel the compelling atmosphere of the interrogation.
In Escobedo, however, the police did not relieve the defendant
of the anxieties which they had created in the interrogation
rooms. Rather, they denied his request for the assistance of
counsel.35 This heightened his dilemma, and made his later
statements the product of this compulsion. * * *
35. The police also prevented the attorney from consulting with his
client. Independent of any other constitutional proscription, this action Proscription means
constitutes a violation of the Sixth Amendment right to the assistance of prohibition.
counsel and excludes any statement obtained in its wake.
The denial of the defendant’s request for his attorney thus

undermined his ability to exercise the privilege—to remain
silent if he chose or to speak without any intimidation,
Appendix 85
latant or subtle. The presence of counsel, in all the cases
b
before us today, would be the adequate protective device nec-
essary to make the process of police interrogation conform
to the dictates of the privilege, by ensuring that statements
made in the government-established atmosphere are not the
product of compulsion.
It was in this manner that Escobedo explicated another
facet of the pretrial privilege, noted in many of the Court’s
prior decisions: the protection of rights at trial. That coun-
sel is present when statements are taken from an individual
during interrogation obviously enhances the integrity of the
fact-finding processes in court. The presence of an attorney,
and the warnings delivered to the individual, enable the
defendant under otherwise compelling circumstances to tell
his story without fear, effectively, and in a way that elim-
inates the evils in the interrogation process. Without the
protections flowing from adequate warnings and the rights
of counsel, “all the careful safeguards erected around the
giving of testimony, whether by an accused or any other wit-
ness, would become empty formalities in a procedure where
the most compelling possible evidence of guilt, a confession,
would have already been obtained at the unsupervised plea-
sure of the police.” Mapp v. Ohio (Harlan, J., dissenting).
Today, then, there can be no doubt that the Fifth Amendment
privilege is available outside of criminal court proceed-
ings and serves to protect persons in all settings in which
their freedom of action is curtailed from being compelled to
incriminate themselves. We have concluded that without
proper safeguards the process of in-custody interrogation of
persons suspected or accused of crime contains inherently
compelling pressures which work to undermine the indi-
vidual’s will to resist and to compel him to speak where he
would not otherwise do so freely. In order to combat these
pressures and to permit a full opportunity to exercise the
privilege against self-incrimination, the accused must be ade-
quately and effectively apprised of his rights and the exercise
of those rights must be fully honored.
* * * Unless we are shown other procedures which are
To apprise means at least as effective in apprising accused persons of their
to inform. right of silence and in assuring a continuous opportunity
to exercise it, the following safeguards must be observed.
86 Appendix
At the outset, if a person in custody is to be subject-
ed to interrogation, he must first be informed in clear and
unequiv-ocal terms that he has the right to remain silent.
For those unaware of the privilege, the warning is needed
simply to make them aware of it—the threshold requirement
for an intelligent decision as to its exercise. More important,
such a warning is an absolute prerequisite in overcoming
the inherent pressures of the interrogation atmosphere. * *
* 37 Further, the warning will show the individual that his
interrogators are prepared to recognize his privilege should
he choose to exercise it.
37. * * * In accord with the decision, it is impermissible to penalize an

individual for exercising his Fifth Amendment privilege when he is under
police custodial interrogation. The prosecution may not, therefore, use
at trial the fact that he stood mute or claimed his privilege in the face of
accusation.
The Fifth Amendment privilege is so fundamental to our

system of constitutional rule and the expedient of giving
an adequate warning as to the availability of the privilege
so simple, we will not pause to inquire in individual cases
whether the defendant was aware of his rights without a
warning being given. Assessments of the knowledge of the
defendant, based on information as to his age, education,
intelligence, or prior contact with authorities, can never be
more than speculation; a warning is a clear-cut fact. More
important, whatever the background of the person interro-
gated, a warning at the time of the interrogation is indis-
pensable to overcome its pressures and to ensure that the
individual knows he is free to exercise the privilege at that
point in time.
The warning of the right to remain silent must be accompa-
nied by the explanation that anything said can and will be
used against the individual in court. This warning is needed
in order to make him aware not only of the privilege, but
also of the consequences of forgoing it. It is only through To forgo or relinquish
means to give some-
an awareness of these consequences that there can be any thing up.
assurance of real understanding and intelligent exercise of
the privilege. Moreover, this warning may serve to make the
individual more acutely aware that he is faced with a phase
of the adversary system—that he is not in the presence of
persons acting solely in his interest.
Appendix 87
The circumstances surrounding in-custody interrogation can
operate very quickly to overbear the will of one merely made
aware of his privilege by his interrogators. Therefore, the
right to have counsel present at the interrogation is indis-
pensable to the protection of the Fifth Amendment privilege
under the system we delineate today. Our aim is to assure
that the individual’s right to choose between silence and
speech remains unfettered throughout the interrogation pro-
cess. * * * A mere warning given by the interrogators is not
alone sufficient to accomplish that end. * * * Even prelimi-
nary advice given to the accused by his own attorney can be
swiftly overcome by the secret interrogation process. Thus,
the need for counsel to protect the Fifth Amendment privilege
comprehends not merely a right to consult with counsel prior
to questioning but also to have counsel present during any
questioning if the defendant so desires.
* * * An individual need not make a pre-interrogation request
for a lawyer. While such request affirmatively secures his
right to have one, his failure to ask for a lawyer does not
constitute a waiver. No effective waiver of the right to coun-
sel during interrogation can be recognized unless specifically
made after the warnings we here delineate have been given.
The accused who does not know his rights and therefore
does not make a request may be the person who most needs
counsel. * * *
Accordingly we hold that an individual held for interrogation
must be clearly informed that he has the right to consult
with a lawyer and to have the lawyer with him during inter-
rogation. * * * As with the [other] warnings, this warning is
an absolute prerequisite to interrogation. No amount of cir-
cumstantial evidence that the person may have been aware of
this right will suffice to stand in its stead. Only through such
a warning is there ascertain-able assurance that the accused
was aware of this right.
If an individual indicates that he wishes the assistance of
counsel before any interrogation occurs, the authorities
cannot rationally ignore or deny his request on the basis
that the individual does not have or cannot afford a retained
attorney. * * * The need for counsel in order to protect the
privilege exists for the indigent as well as the affluent. In
fact, were we to limit these constitutional rights to those who
can retain an attorney, our decisions today would be of little
88 Appendix
significance. The case before us as well as the vast majori-
ty of confession cases with which we have dealt in the past
involve those unable to retain counsel. While authorities
are not required to relieve the accused of his poverty, they
have the obligation not to take advantage of indigence in the
administration of justice. Denial of counsel to the indigent at
the time of interrogation while allowing an attorney to those
who can afford one would be no more supportable by rea-
son or logic than the similar situation at trial and on appeal
struck down in Gideon and Douglas v. California.
In order fully to apprise a person interrogated of the extent
of his rights under this system then, it is necessary to warn
him not only that he has the right to consult with an attor-
ney, but also that if he is indigent a lawyer will be appoint-
ed to represent him. Without this additional warning, the
admonition of the right to consult with counsel would often
be understood as meaning only that he can consult with a An admonition is a
lawyer if he has one or has the funds to obtain one. * * * warning.
As with the warnings of the right to remain silent and of
the general right to counsel, only by effective and express
explanation to the indigent of this right can there be assur-
ance that he was truly in a position to exercise it.43
43. While a warning that the indigent may have counsel appointed need
not be given to the person who is known to have an attorney or is known
to have ample funds to secure one, the expedient of giving a warning is
too simple and the rights involved too important to engage in ex post facto Ex post facto means
inquiries into financial ability when there is any doubt at all on that score. after the fact.
Once warnings have been given, the subsequent proce-
dure is clear. If the individual indicates in any manner, at
any time prior to or during questioning, that he wishes to
remain silent, the interrogation must cease.44 At this point he
has shown that he intends to exercise his Fifth Amendment
privilege; any statement taken after the person invokes his
privilege cannot be other than the product of compulsion,
subtle or otherwise. * * * If the individual states that he wants
an attorney, the interrogation must cease until an attorney
is present. At that time, the individual must have an oppor-
tunity to confer with the attorney and to have him present
during any subsequent questioning. If the individual cannot
obtain an attorney and he indicates that he wants one before
speaking to police, they must respect his decision to remain
silent.
Appendix 89
44. If an individual indicates his desire to remain silent, but has an
attorney present, there may be some circumstances in which further ques-
tioning would be permissible. In the absence of evidence of overbearing,
statements then made in the presence of counsel might be free of the
compelling influence of the interrogation process and might fairly be con-
strued as a waiver of the privilege for purposes of these statements.
This does not mean, as some have suggested, that each

police station must have a “station house lawyer” present
at all times to advise prisoners. It does mean, however, that
if police propose to interrogate a person they must make
known to him that he is entitled to a lawyer and that if he
cannot afford one, a lawyer will be provided for him prior to
any interrogation. * * *
If the interrogation continues without the presence of an
attorney and a statement is taken, a heavy burden rests on
the Government to demonstrate that the defendant knowingly
and intelligently waived his privilege against self-incrimination
and his right to retained or appointed counsel. This Court
has always set high standards of proof for the waiver of con-
stitutional rights, and we reassert these standards as applied
to in-custody interrogation. Since the State is responsible
for establishing the isolated circumstances under which the
interrogation takes place and has the only means of mak-
ing available corroborated evidence of warnings given during
incommunicado interrogation, the burden is rightly on its
shoulders.
An express statement that the individual is willing to make a
statement and does not want an attorney followed closely by
a statement could constitute a waiver. But a valid waiver will
not be presumed simply from the silence of the accused after
warnings are given or simply from the fact that a confession
was in fact eventually obtained.
* * * Moreover, where in-custody interrogation is involved,
there is no room for the contention that the privilege is
waived if the individual answers some questions or gives
some information on his own prior to invoking his right to
remain silent when interrogated.
Whatever the testimony of the authorities as to waiver of
rights by an accused, the fact of lengthy interrogation or
incommunicado incarceration before a statement is made
is strong evidence that the accused did not validly waive his
90 Appendix
rights. * * * Moreover, any evidence that the accused was
threatened, tricked, or cajoled into a waiver will, of course,
show that the defendant did not voluntarily waive his priv-
ilege. The requirement of warnings and waiver of rights is a
fundamental with respect to the Fifth Amendment privilege
and not simply a preliminary ritual to existing methods of
interrogation.
The warnings required and the waiver necessary in accordance
with our opinion today are, in the absence of a fully effective
equivalent, prerequisites to the admissibility of any statement
made by a defendant. No distinction can be drawn between
statements which are direct confessions and statements
which amount to “admissions” of part or all of an offense.
The privilege against self-incrimination protects the individual
from being compelled to incriminate himself in any manner; it
does not distinguish degrees of incrimination. * * *
The principles announced today deal with the protection
which must be given to the privilege against self-incrimina-
tion when the individual is first subject to police interrogation
while in custody at the station or otherwise deprived of his
freedom of action in any significant way. * * *
Our decision is not intended to hamper the traditional
function of police officers in investigating crime. When an
individual is in custody on probable cause, the police may,
of course, seek out evidence in the field to be used at trial
against him. Such investigation may include inquiry of per-
sons not under restraint. General on-the-scene questioning
as to facts surrounding a crime or other general questioning
of citizens in the fact-finding process is not affected by our
holding. * * * In such situations the compelling atmosphere
inherent in the process of in-custody interrogation is not
necessarily present.
In dealing with statements obtained through interrogation,
we do not purport to find all confessions inadmissible. * * *
Any statement given freely and voluntarily without any com-
pelling influences is, of course, admissible in evidence. The
fundamental import of the privilege while an individual is
in custody is not whether he is allowed to talk to the police
without the benefit of warnings and counsel, but whether
he can be interrogated. There is no requirement that police
stop a person who enters a police station and states that he
Appendix 91
ishes to confess to a crime, or a person who calls the police
w
to offer a confession or any other statement he desires to
make. Volunteered statements of any kind are not barred by
the Fifth Amendment and their admissibility is not affected
by our holding today.
To summarize, we hold that when an individual is taken into
custody or otherwise deprived of his freedom by the authorities
in any significant way and is subjected to questioning, the
privilege against self-incrimination is jeopardized. Procedural
safeguards must be employed to protect the privilege, and
unless other fully effective means are adopted to notify the
person of his right of silence and to assure that the exercise of
the right will be scrupulously honored, the following measures
are required. He must be warned prior to any questioning that
he has the right to remain silent, that anything he says can
be used against him in a court of law, that he has the right to
the presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any questioning
if he so desires. Opportunity to exercise these rights must be
afforded to him throughout the interrogation. After such warn-
ings have been given, and such opportunity afforded him, the
individual may knowingly and intelligently waive these rights
and agree to answer questions or make a statement. But
unless and until such warnings and waiver are demonstrated
by the prosecution at trial, no evidence obtained as a result of
interrogation can be used against him.
***
An attorney may advise his client not to talk to police until
he has had an opportunity to investigate the case, or he may
wish to be present with his client during any police question-
ing. In doing so an attorney * * * is merely carrying out what
he is sworn to do under his oath—to protect to the extent of
his ability the rights of his client. In fulfilling this responsi-
bility the attorney plays a vital role in the administration of
criminal justice under our Constitution.
* * * This Court, while protecting individual rights, has
always given ample latitude to law enforcement agencies in
the legitimate exercise of their duties. The limits we have
placed on the interrogation process should not constitute an
To preclude means to undue interference with a proper system of law enforcement.
prevent. As we have noted, our decision does not in any way preclude
92 Appendix
police from carrying out their traditional investigatory func-
tions. Although confessions may play an important role in
some convictions, the cases before us present graphic exam-
ples of the overstatement of the “need” for confessions. In each
case authorities conducted interrogations ranging up to five
days in duration despite the presence, through standard
investigating practices, of considerable evidence against each
defendant.
It is also urged that an unfettered right to detention for
interrogation should be allowed because it will often redound
to the benefit of the person questioned. When police inquiry
determines that there is no reason to believe that the person
has committed any crime, it is said, he will be released * *
*. The person who has committed no offense, however, will
be better able to clear himself after warnings, with counsel
present than without. It can be assumed that in such cir-
cumstances a lawyer would advise his client to talk freely to
police in order to clear himself.
Custodial interrogation, by contrast, does not necessarily
afford the innocent an opportunity to clear themselves. A
serious consequence of the present practice of the interro-
gation alleged to be beneficial for the innocent is that many
arrests “for investigation” subject large numbers of innocent
persons to detention and interrogation. In one of the cases
before us, California v. Stewart, police held four persons,
who were in the defendant’s house at the time of the arrest,
in jail for five days until the defendant confessed. At that
time they were finally released. Police stated that there was
“no evidence to connect them with any crime.” Available
statistics on the extent of this practice where it is condoned
indicate that these four are far from alone in being subjected
to arrest, prolonged detention, and interrogation without the
requisite probable cause. * * *
We do not suggest that law enforcement authorities are pre-
cluded from questioning any individual who has been held
for a period of time by other authorities and interrogated by
them without appropriate warnings. A different case would
be presented if an accused were taken into custody by the
second authority, removed both in time and place from his
original surroundings, and then adequately advised of his
rights and given an opportunity to exercise them. * * *
Appendix 93
JUSTICE CLARK, dissenting in Miranda, Vignera, and Gilbert
and concurring in the result in Stewart.
I cannot agree with the Court’s characterization of the
present practices of police and investigatory agencies as to
custodial interrogation. The materials referred to as “police
manuals” are not shown by the record here to be the official
manuals of any police department, much less in universal
use in crime detection. Moreover, the examples of police
brutality mentioned by the Court are rare exceptions to the
thousands of cases that appear every year in the law reports.
* * * The Court’s strict constitutional specific inserted at the
nerve center of crime detection may well kill the patient.
Paucity means smallness Since there is at this time a paucity of information and
of number; fewness.
Empirical means derived
an almost total lack of empirical knowledge on the prac-
from observation; guided tical operation of requirements truly comparable to those
by practical experience. announced by the majority, I would be more restrained lest
we go too far too fast. * * *
Rather than employing the arbitrary Fifth Amendment rule
which the Court lays down I would follow the more pliable
Pliable means receptive dictates of Due Process Clauses of the Fifth and Fourteenth
to change; adaptable. Amendments which we are accustomed to administering and
which we know from our cases are effective instruments in
protecting persons in police custody. In this way we would
not be acting in the dark nor in one full sweep changing the
traditional rules of custodial interrogation which this Court
has for so long recognized as a justifiable and proper tool in
balancing individual rights against the rights of society. * * *
JUSTICE HARLAN, whom JUSTICE STEWART and JUSTICE
WHITE join, dissenting. * * *
The new rules are not designed to guard against police bru-
tality or other unmistakably banned forms of coercion. Those
who use third-degree tactics and deny them in court are
equally able and destined to lie as skillfully about warnings
and waivers. Rather, the thrust of the new rules is to negate
all pressures, to reinforce the nervous or ignorant suspect,
and ultimately to discourage any confession at all. * * *
To incorporate this notion into the Constitution requires a
Pragmatic means strained reading of history and precedent and a disregard
practical. of the very pragmatic concerns that alone may on occasion
justify such strains. I believe that reasoned examination
94 Appendix
will show that the Due Process Clauses provide an adequate
tool for coping with confessions and that, even if the Fifth
Amendment privilege against self-incrimination be invoked,
its precedents taken as a whole do not sustain the present
rules. * * *
The Court’s opinion in my view * * * fails to show that the
Court’s new rules are well supported, let alone compelled, by
Fifth Amendment precedents. Instead, the new rules actually
derive from quotation and analogy drawn from precedents
under the Sixth Amendment, which should properly have no
bearing on police interrogation. * * *
It then emerges from a discussion of Escobedo that the Fifth
Amendment requires for an admissible confession that it be
given by one distinctly aware of his right not to speak and
shielded from “the compelling atmosphere” of interrogation.
From these key premises, the Court finally develops the safe-
guards of warnings, counsel, and so forth. I do not believe
these premises are sustained by precedents under the Fifth
Amendment.
The more important premise is that pressure on the suspect
must be eliminated though it be only the subtle influence of
the atmosphere and surroundings. The Fifth Amendment,
however, has never been thought to forbid all pressure to
incriminate one’s self in the situations covered by it. * * *
A closing word must be said about the Assistance of Counsel
Clause of the Sixth Amendment, which is never expressly
relied on by the Court but whose judicial precedents turn
out to be linchpins of the confession rules * * *.
The only attempt in this Court to carry the right to coun-
sel into the station house occurred in Escobedo, the Court
repeating several times that the stage was no less “critical”
than trial itself. * * * This is hardly persuasive when we
consider that a grand jury inquiry, the filing of a certiora-
ri petition, and certainly the purchase of narcotics by an
undercover agent from a prospective defendant may all be
equally “critical” yet provision of counsel and advice on that
score have never been thought compelled by the Constitution
in such cases. The sound reason why this right is so freely
extended for a criminal trial is the severe injustice risked by
confronting an untrained defendant with a range of technical
Appendix 95
points of law, evidence, and tactics familiar to the prosecu-
tor but not to himself. This danger shrinks markedly in the
police station where indeed the lawyer in fulfilling his profes-
sional responsibilities of necessity may become an obstacle
to truthfinding. * * *
The Court’s new rules aim to offset [the] minor pressures and
disadvantages intrinsic to any kind of police interrogation.
The rules do not serve due process of interests in preventing
blatant coercion since, as I noted earlier, they do nothing to
contain the policeman who is prepared to lie from the start.
***
While passing over the costs and risks of its experiment,
the Court portrays the evils of normal police questioning
in terms which I think are exaggerated. Albeit stringently
confined by the due process standards, interrogation is no
doubt often inconvenient and unpleasant for the suspect.
However, it is no less so for a man to be arrested and jailed,
to have his house searched, or to stand trial in court, yet all
this may properly happen to the most innocent given probable
cause, a warrant, or an indictment. Society has always paid
a stiff price for law and order, and peaceful interrogation is
not one of the dark moments of the law. * * *
JUSTICE WHITE, with whom JUSTICE HARLAN and
JUSTICE STEWART join, dissenting.
The proposition that the privilege against self-incrimination
forbids in-custody interrogation without the warnings spec-
ified in the majority opinion and without a clear waiver of
counsel has no significant support in the history of the priv-
ilege or in the language of the Fifth Amendment. As for the
English authorities and the common-law history, the privi-
lege, firmly established in the second half of the seventeenth
century, was never applied except to prohibit compelled
judicial interrogations. The rule excluding coerced confes-
sions matured about 100 years later. * * *
Even if the relentless application of the described procedures
[in the the Court’s text and reasoning] could lead to involun-
tary confessions, it most assuredly does not follow that each
and every case will disclose this kind of interrogation or this
kind of consequence.2 Insofar as it appears from the Court’s
opinion, it has not examined a single transcript of any police
96 Appendix
interrogation, let alone the interrogation that took place in
any one of these cases which it decides today. Judged by
any of the standards for empirical investigation utilized in
the social sciences the factual basis for the Court’s premises
is patently inadequate.
2. In fact, the type of sustained interrogation described by the Court

appears to be the exception rather than the rule. A survey of 399 cases in
one city found that in almost half of the cases the interrogation lasted less
than 30 minutes. Questioning tends to be confused and sporadic and is
usually concentrated on confrontations with witnesses or new items of
evidence, as these are obtained by officers conducting the investigation.
Although in the Court’s view in-custody interrogation is

inherently coercive, it says that the spontaneous product
of the coercion of arrest and detention is still to be deemed
voluntary. An accused, arrested on probable cause, may
blurt out a confession which will be admissible despite the
fact that he is alone and in custody, without any showing
that he had any notion of his right to remain silent or of the
consequences of his admission. Yet, under the Court’s rule,
if the police ask him a single question such as “Do you have
anything to say?” or “Did you kill your wife?” his response,
if there is one, has somehow been compelled, even if the
accused has been clearly warned of his right to remain
silent. Common sense informs us to the contrary. While
one may say that the response was “involuntary” in the
sense the question provoked or was the occasion for the
response and thus the defendant was induced to speak out
when he might have remained silent if not arrested and not
questioned, it is patently unsound to say the response is
compelled. * * *
If the rule announced today were truly based on a conclusion
that all confessions resulting from custodial interrogation are
coerced, then it would simply have no rational foundation. *
* * Even if one were to postulate that the Court’s c oncern is
not that all confessions induced by police interrogation are
coerced but rather that some such confessions are coerced
and present judicial procedures are believed to be inade-
quate to identify the confessions that are coerced and those
that are not, it would still not be essential to impose the rule
that the Court has now fashioned. * * *
Even if one assumed that there was an adequate factual
basis for the conclusion that all confessions obtained during
Appendix 97
in-custody interrogation are the product of compulsion, the
rule propounded by the Court would still be irrational, for
apparently, it is only if the accused is also warned of his
right to counsel and waives both that right and the right
against self-incrimination that the inherent compulsiveness
of interrogation disappears. But if the defendant may not
answer without a warning a question such as “Where were
you last night?” without having his answer be a compelled
one, how can the court ever accept his negative answer to
the question of whether he wants to consult his retained
counsel or counsel whom the court will appoint? And why
if counsel is present and the accused nevertheless confess-
es, or counsel tells the accused to tell the truth, and that
is what the accused does, is the situation any less coercive
insofar as the accused is concerned? The court apparently
realizes its dilemma of foreclosing questioning without the
necessary warnings but at the same time permitting the
accused, sitting in the same chair in front of the same police-
men, to waive his right to consult an attorney. It expects,
however, that not too many will waive the right; and if it is
claimed that he has, the State faces a severe, if not impossi-
ble burden of proof.
All of this makes very little sense in terms of the compulsion
which the Fifth Amendment proscribes. That Amendment
deals with compelling the accused himself. It is his free will
that is involved. Confessions and incriminating admissions,
as such, are not forbidden evidence; only those which are
compelled are banned. * * * By considering any answers to
any interrogation to be compelled regardless of the content
and course of examination and by escalating the requirements
to prove waiver, the Court not only prevents the use of
compelled confessions but for all practical purposes forbids
interrogation except in the presence of counsel. That is,
instead of confining itself to protection of the right against
compelled self-incrimination the Court has created a limited
Fifth Amendment right to counsel—or, as the Court expresses
it, a “right to counsel to protect the Fifth Amendment priv-
ilege * * *.” The focus then is not on the will of the accused
but on the will of counsel and how much influence he can
have on the accused. Obviously there is no warrant in the
Fifth Amendment for thus installing counsel as the arbiter
of the privilege.
98 Appendix
In sum, for all the Court’s expounding on the menacing
atmosphere of police interrogation procedures it has failed
to supply any foundation for the conclusions it draws or the
measures it adopts.
* * * The result adds up to a judicial judgment that evidence
from the accused should not be used against him in any
way, whether compelled or not. This is the not so subtle
overtone of the opinion—that it is inherently wrong for the
police to gather evidence from the accused himself. And this
is precisely the nub of this dissent. I see nothing wrong or
immoral, and certainly nothing unconstitutional, with the
police asking a suspect whom they have reasonable cause
to arrest whether or not he killed his wife or with confront-
ing him with the evidence on which the arrest was based, at
least where he has been plainly advised that he may remain
completely silent. * * * Particularly when corroborated, as
where the police have confirmed the accused’s disclosure of
the hiding place of implements or fruits of the crime, such
confessions have the highest reliability and significantly
contribute to the certitude with which we may believe the
accused is guilty. * * *
There is, in my view, every reason to believe that a good
many criminal defendants, who otherwise would have been
convicted on what this Court has previously thought to be
the most satisfactory kind of evidence, will now, under this
new version of the Fifth Amendment, either not be tried at
all or acquitted if the State’s evidence, minus the confession,
is put to the test of litigation. * * *
There is another aspect to the effect of the Court’s rule
on the person whom the police have arrested on probable
cause. The fact is that he may not be guilty at all and may
be able to extricate himself quickly and simply if he were Extricate means to free
from something that
told the circumstances of his arrest and were asked to explain.
entangles.
This effort, and his release, must now await the hiring of a
lawyer or his appointment by the court, consultation with
counsel and then a session with the police or the prosecu-
tor. Similarly, where probable cause exists to arrest several
suspects as where the body of the victim is discovered in a
house having several residents, it will often be true that a
suspect may be cleared only through the results of interro-
gation of other suspects. Here too the release of the innocent
may be delayed by the Court’s rule.
Appendix 99
* * * If further restrictions on police interrogation are desir-
able at this time, a more flexible approach makes much more
sense than the Court’s constitutional straitjacket, which
forecloses more discriminating treatment by legislative or
rule-making pronouncements.
Burdeau v. McDowell
256 U.S. 465 (1921)

The United States may retain for use as evidence in the
criminal prosecution of their owner, incriminating documents
which are turned over to it by private individuals who procured
them, without the participation or knowledge of any govern-
ment official, through a wrongful search of the owner’s private
desk and papers in an office.
The provision of the Fourth Amendment forbidding unrea-
sonable searches and seizures refers to governmental action;
the Fifth Amendment secures the citizen from compulsory
testimony against himself by protecting him from extort-
ed confessions and examinations in court proceedings by
compulsory methods.
MR. JUSTICE DAY delivered the opinion of the court.
J. C. McDowell, hereinafter called the petitioner, filed a
petition in the United States District Court for the Western
District of Pennsylvania asking for an order for the return to
him of certain books, papers, memoranda, correspondence
and other data in the possession of Joseph A. Burdeau,
appellant herein, Special Assistant to the Attorney General of
the United States.
* * * It is alleged that during the spring and summer of 1920
these papers were unlawfully seized and stolen from petition-
er by certain persons * * * under the direction and control of
Burdeau as special assistant to the Attorney General, and
that [they] were being held in the possession and control
of Burdeau and his assistants; that in the taking of the per-
sonal private books and papers the person who stole them
Abstracted in this con- drilled the petitioner’s private safes, broke the locks upon
text means to remove
without permission.
his private desk, and broke into and abstracted from the
100 Appendix
files in his offices his private papers; that the possession
of the books, papers, etc., by Burdeau and his assistants
was unlawful and in violation of the legal and constitutional
rights of the petitioner. It is charged that the presentation
to the grand jury of the papers, or any secondary or other
evidence secured through or by them, would work a depri-
vation of petitioner’s constitutional rights secured to him by
the Fourth and Fifth Amendments to the Constitution of the
United States.
An answer was filed claiming the right to hold and use the
papers. A hearing was had before the District Judge, who
made an order requiring the delivery of papers to the clerk
of the court, together with all copies, memoranda and data
taken therefrom, which the court found had been stolen
from the offices of the petitioner at rooms numbered 1320
and 1321 in the Farmers Bank Building in the City of
Pittsburgh. The order further provided that upon delivery of
the books, papers, etc., to the clerk of the court the same
should be sealed and impounded * * * until the determina-
tion of the appeal. An order was made restraining Burdeau,
the Department of Justice, its officers and agents, and the
United States Attorney from presenting to * * * any judicial
tribunal, any of the books, papers, etc., or any evidence
of any nature whatsoever secured by or coming into their
possession as a result of the knowledge obtained from the
inspection of such papers.
In his opinion the District Judge stated that it was the
intention of the Department of Justice, through Burdeau
and his assistants, to present the books, papers, etc., to
the grand jury with a view to having the petitioner indicted
for the alleged violation of § 215 of the Criminal Code of the
United States, and the court held that the evidence offered
by the petitioner showed that the papers had been stolen
from him, and that he was entitled to their return. In this
connection the District Judge stated that it did not appear
that Burdeau, or any official or agent of the United States,
had anything to do with the search of the petitioner’s safe,
files and desk, or the abstraction therefrom of any of the
writings referred to in the petition, and added that “the order
made in this case is not made because of any unlawful act
on the part of anybody representing the United States or
Appendix 101
any of its Departments but solely upon the ground that the
Government should not use stolen property for any purpose
after demand is made for its return.” Expressing his views,
at the close of the testimony, the Judge said that there had
been a gross violation of the Fourth and Fifth Amendments
to the Federal Constitution; that the Government had not
been a party to any illegal seizure; * * * and that the court
was satisfied that the papers were illegally and wrongfully
taken from the possession of the petitioner, and were then in
the hands of the Government.
So far as is necessary for our consideration certain facts
from the record may be stated. Henry L. Doherty & Company
of New York were operating managers of the Cities Service
Company. * * * McDowell was employed by Doherty &
Company as the head of the natural gas division of the Cities
Service Company. Doherty & Company discharged McDowell
for alleged unlawful and fraudulent conduct in the course
of the business. An officer of Doherty & Company and the
Cities Service Company went to Pittsburgh in March, 1920,
* * * to take possession of the company’s office. He took
possession of room 1320; that room and the adjoining room
had McDowell’s name on the door. * * * A large quantity of
papers were taken and shipped to the auditor of the Cities
Service Company. * * * The secretary of McDowell testified
that room 1320 was his private office; that practically all the
furniture in both rooms belonged to him; that there was a
large safe belonging to the Farmers Bank and a small safe
belonging to McDowell; that on March 23, 1920, a represen-
tative of the company and a detective came to the offices;
that the detective was placed in charge of room 1320; that
the large safe was opened with a view to selecting papers
belonging to the company, and that the representative of the
company took private papers of McDowell’s also. While the
rooms were in charge of detectives both safes were blown
open. In the small safe nothing of consequence was found,
but in the large safe papers belonging to McDowell were
found. The desk was forced open, and all the papers taken
from it. The papers were placed in cases, and shipped to
Doherty & Company, 60 Wall Street, New York.
* * * We do not question the authority of the court to control
the disposition of the papers, and come directly to the con-
tention that the constitutional rights of the petitioner were
102 Appendix
violated by their seizure, and that having subsequently come
into the possession of the prosecuting officers of the Govern
ment, he was entitled to their return. The Amendments
involved are the Fourth and Fifth, protecting a citizen against
unreasonable searches and seizures, and compulsory testi-
mony against himself. * * *
The Fourth Amendment gives protection against unlawful
searches and seizures, and as shown in the previous cases,
its protection applies to governmental action. Its origin and
history clearly show that it was intended as a restraint upon
the activities of sovereign authority, and was not intended
to be a limitation upon other than governmental agencies;
as against such authority it was the purpose of the Fourth
Amendment to secure the citizen in the right of unmolested
occupation of his dwelling and the possession of his property,
subject to the right of seizure by process duly issued.
In the present case the record clearly shows that no offi-
cial of the federal government had anything to do with the
wrongful seizure of the petitioner’s property, or any knowl-
edge thereof until several months after the property had
been taken from him and was in the possession of the Cities
Service Company. It is manifest that there was no invasion
of the security afforded by the Fourth Amendment against
unreasonable search and seizure, as whatever wrong was
done was the act of individuals in taking the property of
another. * * * We assume that petitioner has an unquestion-
able right of redress against those who illegally and wrongfully
took his private property under the circumstances herein
disclosed, but with such remedies we are not now concerned.
The Fifth Amendment * * * protects from extorted confessions
or examinations in court proceedings by compulsory m ethods.
The exact question to be decided here is: May the Government
retain incriminating papers, coming to it in the manner
described, with a view to their use in a subsequent investi-
gation by a grand jury where such papers will be part of
the evidence against the accused, and may be used against
him upon trial should an indictment be returned?
We know of no constitutional principle which requires the
Government to surrender the papers under such circum-
stances. Had it learned that such incriminatory papers,
tending to show a violation of federal law, were in the hands
Appendix 103
of a person other than the accused, it having had no part
in wrongfully obtaining them, we know of no reason why a
subpoena might not issue for the production of the papers
as evidence. Such production would require no unreasonable
search or seizure, nor would it amount to compelling the
accused to testify against himself.
The papers, having come into the possession of the
Government without a violation of petitioner’s rights by
governmental authority, we see no reason why the fact that
individuals, unconnected with the Government, may have
wrongfully taken them, should prevent them from being held
for use in prosecuting an offense where the documents are of
an incriminatory character.
It follows that the District Court erred in making the order
appealed from, and the same is Reversed.
MR. JUSTICE BRANDEIS dissenting, with whom MR.
JUSTICE HOLMES concurs.
Plaintiff’s private papers were stolen. The thief, to further
his own ends, delivered them to the law officer of the United
States. He, knowing them to have been stolen, retains them
for use against the plaintiff. Should the court permit him to
do so?
That the court would restore the papers to plaintiff if they
were still in the thief’s possession is not questioned. That it
has power to control the disposition of these stolen papers,
although they have passed into the possession of the law offi-
cers, is also not questioned. But it is said that no provision of
the Constitution requires their surrender and that the papers
could have been subpoenaed. This may be true. Still I cannot
believe that action of a public official is necessarily lawful,
because it does not violate constitutional prohibitions and
because the same result might have been attained by other
and proper means. At the foundation of our civil liberty lies
the principle which denies to government officials an excep-
tional position before the law and which subjects them to the
same rules of conduct that are commands to the citizen. And
in the development of our liberty, insistence upon procedur-
al regularity has been a large factor. Respect for law will not
be advanced by resort, in its enforcement, to means which
shock the common man’s sense of decency and fair play.
104 Appendix
People v. Zelinski
Supreme Court of California, 155 Cal.Rptr. 575

(1979)
Defendant was charged with unlawful possession of a con-
trolled substance and a motion to suppress evidence was
filed. The Superior Court, Los Angeles County, Kathleen
Parker, J., denied motion, and defendant entered plea of
guilty and appealed. The Supreme Court, Manuel J., held
that: (1) store personnel did have authority to arrest or
detain defendant, but (2) personnel exceeded their authority
in their subsequent search for and seizure of evidence.
Reversed.
MANUEL, Justice.
On March 21, 1976, Bruce Moore, a store detective employed
by Zody’s Department Store, observed defendant place a
blouse into her purse. Moore alerted Ann O’Connor, another
Zody’s detective, and the two thereafter observed defendant
select a pair of sandals, which she put on her feet, and a
hat, which she put on her head. Defendant also took a straw
bag into which she placed her purse. Defendant then selected
and paid for a pair of blue shoes and left the store.
Detectives Moore and O’Connor stopped defendant outside
the store. Moore placed defendant under arrest for violation
of Penal Code § 484 (theft) and asked her to accompany him
and detective O’Connor into the store. Defendant was taken
by O’Connor to the security office where Pat Forrest, another
female store detective, conducted a routine “cursory search
in case of weapons” on the person of defendant.
Moore testified that he reentered the security office when
the search of defendant’s person was completed, opened
defendant’s purse to retrieve the blouse taken from Zody’s,
and removed the blouse and a pill vial that lay on top of the
blouse. Moore examined the vial, removed a balloon from
the bottle, examined the fine, powdery substance contained
in the balloon, and set the vial and balloon on the security
office desk to await the police who had been called.
Appendix 105
Detective O’Connor, who testified to the search of defendant’s
person by Forrest, was initially confused as to whether the
pill vial containing the balloon had been taken from the
defendant’s purse or from her brassiere. On cross-examina-
tion, O’Connor was certain that she saw Forrest taking it
from defendant’s brassiere. According to O’Connor, the pill
bottle was placed on the security office desk where detective
Moore shortly thereafter opened it and examined the powdery
substance in the balloon. Later the police took custody of
the vial and defendant was thereafter charged with unlawful
possession of heroin.
Defendant’s appeal involves two questions—(1) whether store
detectives Moore, O’Connor and Forrest exceeded the per-
missible scope of search incident to the arrest, and (2) if they
did, whether the evidence thus obtained should be exclud-
ed as violative of defendant’s rights under federal or state
Constitutions. We have concluded that the narcotics evidence
was obtained by unlawful search and that the constitutional
prohibition against unreasonable search and seizure affords
protection against the unlawful intrusive conduct of these
private security personnel.
Store detectives and security guards are retained primarily
to protect their employer’s interest in property. They have no
more powers to enforce the law than other private persons.
Like all private persons, security employees can arrest or
detain an offender and search for weapons before taking the
offender to a magistrate or delivering him to a peace officer.8
Store personnel Moore and O’Connor were acting under this
statutory authority when they arrested defendant and took
her into custody for leaving the store with stolen merchandise.
8. Insofar as applicable to private persons, the statutes provide:

Section 837: “A private person may arrest another: 1. For a public offense
committed or attempted in his presence. 2. When a person arrested has
committed a felony, although not in his presence. 3. When a felony has
been in fact committed and he has reasonable cause for believing the
person arrested to have committed it.”
Section 846: “Any person making an arrest may take from the person
arrested all offensive weapons which he may have about his person, and
must deliver them to the magistrate before whom he is taken.”
Section 847: “A private person who has arrested another for the commis-
sion of a public offense must, without unnecessary delay, take the person
arrested before a magistrate, or deliver him to a peace officer.”
Section 849: “(a) When an arrest is made without a warrant by a peace
officer or private person, the person arrested, if not otherwise released,
shall, without unnecessary delay, be taken before the nearest or most
106 Appendix
accessible magistrate in the county in which the offense is triable, and
a complaint stating the charge against the arrested person shall be laid
before such magistrate.”
Merchants have traditionally had the right to restrain and

detain shoplifters. At the time of the incident at Zody’s, mer-
chants were protected from civil liability for false arrest or
false imprisonment in their reasonable efforts to detain shop
lifters by a common law privilege that permitted detention for
a reasonable time for investigation in a reasonable manner
of any person whom the merchant had probable cause to
believe had unlawfully taken or attempted to take merchan-
dise from the premises. That privilege has since been enacted
into statute as subdivision (e) of Penal Code § 490.5.
Thus, pursuant to the Penal Code or the civil common law
privilege, store personnel Moore and O’Connor had authority
to arrest or detain defendant. The question remains, however,
whether they exceeded their authority in their subsequent
search for and seizure of evidence.
The permissible scope of search incident to a citizen’s arrest
is set out in People v. Sandoval (1966): “A citizen effecting
such an arrest is authorized only to ‘take from the person
arrested all offensive weapons which he may have about
his person’ (Pen. Code, § 846), not to conduct a search for
contraband ‘incidental’ to the arrest, or to seize such con-
traband upon recovering it. We reject the suggestion * * *
that the search of one private individual or his premises by
another is lawful simply because ‘incidental’ to a lawful cit-
izen’s arrest.” The rationale behind the rule is that, absent
statutory authorization, private citizens are not and should
not be permitted to take property from other private citizens.
The limit of the merchant’s authority to search is now
expressly stated in Penal Code § 490.5. Paragraph (3) of sub-
division (e) provides that “During the period of detention any
items which a merchant has reasonable cause to believe are
unlawfully taken from his premises and which are in plain
view may be examined by the merchant for the purposes of
ascertaining the ownership thereof.” Neither the statute nor
the privilege which it codified purport to give to the merchant
or his employees the authority to search.
Appendix 107
In the present case, instead of holding defendant and her
handbag until the arrival of a peace officer who may have
been authorized to search, the employees instituted a search
to recover goods that were not in plain view. Such intrusion
into defendant’s person and effects was not authorized as
incident to a citizen’s arrest pursuant to § 837 of the Penal
Code, or pursuant to the merchant’s privilege subsequently
codified in subdivision (e) of § 490.5. It was unnecessary to
achieve the employees’ reasonable concerns of assuring that
defendant carried no weapons12 and of preventing loss of
store property. As a matter of law, therefore, the fruits of that
search were illegally obtained.
12. The record discloses no specific facts or circumstances which warrant-

ed a search for weapons. According to detective Moore, a “cursory” and
routine search for weapons was made because weapons had been found
on other occasions. We express no opinion as to the validity of a routine
search for weapons after a petty theft, and the People do not rely upon the
weapons search as justification for seizure of the narcotics. But, even if we
concede the right to search for weapons, the detectives were not justified
in seizing and examining the contents of an opaque bottle in the course
of such a limited search. A container of pills carried on an individual’s
person or in his immediate effects does not ordinarily feel like a weapon,
and the person conducting the search is not entitled to engage in “fanciful
speculation” as to what the item might be.
The People contend that the evidence is nevertheless admis-

sible because the search and seizure was made by private
persons. They urge that Burdeau v. McDowell, holding that
Fourth Amendment proscriptions against unreasonable
searches and seizures do not apply to private conduct, is still
good law and controlling.
Defendant contends, on the other hand, that only by apply-
ing the exclusionary rule to all searches conducted by store
detectives and other private security personnel can freedoms
embodied in the Fourth Amendment of the federal Consti
tution and Article I, Section 13 of the state Constitution
be protected from the abuses and dangers inherent in the
growth of private security activities.
More than a decade ago we expressed concern that searches
by private security forces can involve a “particularly serious
threat to privacy”; in Stapleton and later in Dyas v. Superior
Court (1974), we left open the question whether searches by
such private individuals should be held subject to the consti-
tutional proscriptions. We now address the problem.
108 Appendix
Article I, Section 13 of the California Constitution provides
in part that: “The right of the people to be secure in their
persons, houses, papers and effects against unreasonable
searches and seizures may not be violated.” Although the
constitutional provision contains no language indicating
that the “security” protected by the provision is limited to
security from governmental searches or seizures, California
cases have generally interpreted this provision as primarily
intended as a protection of the people against such govern-
mentally initiated or governmentally directed intrusions. The
exclusionary rule, fashioned to implement the rights secured
by the constitutional provision, has therefore been applied
to exclude evidence illegally obtained by private citizens
only where it served the purpose of the exclusionary rule in
restraining abuses by the police of their statutory powers.
We have recognized that private security personnel, like
police, have the authority to detain suspects, conduct inves-
tigations, and make arrests. They are not police, however,
and we have refused to accord them the special privileges
and protections enjoyed by official police officers. We have
excluded the fruits of their illegal investigations only when
they were acting in concert with the police or when the
police were standing silently by. We are mindful, however, of
the increasing reliance placed upon private security person-
nel by local law enforcement authorities for the prevention
of crime and enforcement of the criminal law, and the
increasing threat to privacy rights posed thereby. * * *
Realistically, therefore, we recognize that in our state today
illegal conduct of privately employed security personnel poses
a threat to privacy rights of Californians that is compara-
ble to that which may be posed by the unlawful conduct of
police officers. Moreover, the application of the exclusion-
ary rule can be expected to have a deterrent effect on such
unlawful search and seizure practices since private security
personnel, unlike ordinary private citizens, may regularly
perform such quasi-law enforcement activities in the course
of their employment.
In the instant case, however, we need not, and do not,
decide whether the constitutional constraints of Article I,
Section 13, apply to all of the varied activities of private
security personnel, for here the store security forces did
Appendix 109
not act in a purely private capacity but rather were fulfilling
a public function in bringing violators of the law to public
justice. * * * When private security personnel conduct an
illegal search or seizure while engaged in a statutorily autho-
rized citizen’s arrest and detention of a person in aid of law
enforcement authorities, the constitutional proscriptions of
Article I, Section 13 are applicable.
Although past cases have not applied the constitutional
restrictions to purely private searches, we have recognized
that some minimal official participation or encouragement
may bring private action within the constitutional constraints
on state action. As noted by the United States Supreme
Court in United States v. Price (1965), a person does not need
to be an officer of the state to act under color of law and
therefore be responsible, along with such officers, for actions
prohibited to state officials.
In the instant case, the store employees arrested defen-
dant pursuant to the authorization contained in Penal Code
Section 837, and the search which yielded the narcotics was
conducted incident to that arrest. The acts, engaged in pur-
suant to the statute, were not those of a private citizen acting
in a purely private capacity. * * * In arresting the offender, the
store employees were utilizing the coercive power of the state
to further a state interest. Had the security guards sought
only the vindication of the merchant’s private interests they
would have simply exercised self-help and demanded the
return of the stolen merchandise. Upon satisfaction of the
merchant’s interests, the offender would have been released.
By holding defendant for criminal process and searching her,
they went beyond their employer’s private interests.
Persons so acting should be subject to the constitutional
proscriptions that secure an individual’s right to privacy,
for their actions are taken pursuant to statutory authority
to promote a state interest in bringing offenders to public
accounting.14
14. We distinguish action taken pursuant to statutory authority which

promotes a state interest (here, enforcement of the penal laws) from action
taken pursuant to statute, which merely establishes the procedure for
regulation of private interests.
Thus, when a merchant exercises his common law privilege to detain a
person suspected of taking merchandise, the merchant is exercising a
purely private and self-interested right to protect his property. His conduct
110 Appendix
does not assume the color of law until he formally arrests the suspected
thief, as any citizen is empowered to do, or, alternatively, continues the
detention for delivery of the suspect to a peace officer who may arrest.
Detention and search of a shoplifter, followed by release by the merchant,
brings into play no state interest that concerns us here.
Unrestrained, such action would subvert state authority in

defiance of its established limits. It would destroy the pro-
tection those carefully defined limits were intended to afford
to everyone, the guilty and innocent alike. It would afford
de facto [actual] authorizations for searches and seizures
incident to arrests or detentions made by private individ-
uals that even peace officers are not authorized to make.
Accordingly, we hold that in any case where private security
personnel assert the power of the state to make an arrest or
detain another person for transfer to custody of the state,
the state involvement is sufficient for the court to enforce
the proper exercise of that power by excluding the fruits of
illegal abuse thereof. We hold that exclusion of the illegal-
ly seized evidence is required by Article I, Section 13 of the
California Constitution.
Appendix 111
NOTES
112 Appendix
Self-Check 1
1. True
2. False
Answers
3. True
4. False
Self-Check 2
1. False
2. False
3. True
4. Napoleonic Code
5. The necessary elements of a tort claim are as follows:
• The defendant had a duty to the plaintiff.
• The duty was breached (broken).
• The plaintiff suffered damages (was injured

physically, financially, or mentally).
• The breach of duty was the proximate cause of the

damages.
Self-Check 3
1. True
2. False
3. False
4. The Gramm-Leach-Bliley Act
5. Daubert or Kumho Tire
113
Self-Check 4
1. False
2. False
3. True
4. True
5. Crimes punishable by more than a year are classed as
felonies.
6. Mental culpability is a person’s blameworthiness for a
criminal act.
Self-Check 5
1. False
2. False
3. True
4. Fourth
5. Officer safety, preventing escape, preventing the
destruction of evidence
Self-Check 6
1. True
2. True
3. False
4. False
5. When the investigator is working for an attorney and
the witness is the opposing party, is represented by an
attorney, and the attorney isn’t present
6. Statutory law or procedural law
114 Self-Check Answers

Examination
Legal Principles and Requirements
EXAMINATION NUMBER:
05802800
Whichever method you use in submitting your exam
answers to the school, you must use the number above.
For the quickest test results, go to

http://www.takeexamsonline.com
When you feel confident that you have mastered the material in
this study unit, complete the following examination. Then submit
only your answers to the school for grading, using one of the exam-
ination answer options described in your “Test Materials” envelope.
Send your answers for this examination as soon as you complete it.
Do not wait until another examination is ready.
Questions 1–20: Select the one best answer to each question.
1. The Sixth Amendment to the Constitution concerns the issue of

A. search and seizure.
B. self-incrimination.
C. the right to counsel.
D. the special privileges of employers.
2. A crime with a sentence of more than one year imprisonment

is a
A. felony. C. traffic infraction.
B. tort. D. misdemeanor.
115
3. The exclusionary rule dealing with discarding illegally obtained evidence was derived from
which Supreme Court case?
A. Miranda v. Arizona C. Gideon v. Wainwright
B. Mapp v. Ohio D. Burdeau v. McDowell
4. The Latin phrase mens rea refers to

A. the insanity defense. C. criminal mischief.
B. crimes that are evil in themselves. D. a guilty mind.
5. Which of the following is not one of the four things required to win a tort case?
A. The defendant had a duty to the plaintiff.
B. The duty was breached.
C. The plaintiff suffered damages.
D. The defendant should have done things differently.
6. Many states have passed laws protecting a business owner in the event he or she wrongly
detains a shopper suspected of shoplifting. These statutes are known as
A. merchant privilege laws. C. common-law torts.
B. diplomatic immunity. D. false-arrest lawsuits.
7. Overzealous surveillance by private investigators deemed too obtrusive or malicious could

be grounds for a successful lawsuit in a legal contest involving what type of tort?
A. Negligence C. Assault and battery
B. False arrest D. Invasion of privacy
8. The first 10 Amendments to the Constitution collectively are called the

A. Preamble. C. Bill of Rights.
B. Declaration of Independence. D. UCR.
9. Which of the following court cases remains the first and only instance where a state court
has applied the exclusion rule broadly to include evidence seized by private security
personnel?
A. People v. Zelinski C. Mapp v. Ohio
B. Gideon v. Wainwright D. Miranda v. Arizona
10. Private investigators have the same authority to arrest, detain, and use force as do
A. police officers. C. peace officers.
B. private citizens. D. federal agents.
116 Examination
11. The three basic concepts embodied in the Fourth Amendment that help define lawful
searches and seizures are that the search has to be reasonable, that it has to be
authorized through a warrant, and that it must be based on
A. third-hand information. C. probable cause.
B. exigent circumstances. D. sworn testimony in court.
12. Imagine that a law enforcement officer stopped a person who was suspected of attempting
to commit a crime. By patting down the suspect’s outer clothing to check for weapons, the
officer would be performing a
A. stop-and-frisk search. C. summary arrest.
B. seizure of evidence in plain view. D. Fifth Amendment violation.
13. Which of the following is not a valid investigation activity for a private investigator?
A. Surveillance C. Arresting someone on suspicion
B. Interviewing D. Records searching
14. Damages, in legal terminology, is defined as

A. something used to prove or disprove a claim. C. a lawsuit or action in civil court.
B. a concept necessary for a police arrest. D. the restitution for a civil wrong.
15. Civil law is the body of law that deals with

A. the law of the land. C. criminal cases.
B. tort cases. D. statutes.
16. The Fair Credit Reporting Act controls the activities of

A. only banks.
B. only credit unions.
C. only credit bureaus.
D. anyone who handles the personal credit information of others.
17. The special emergency circumstances that may allow police to conduct searches and
seizures without warrants are called
A. unwarranted circumstances. C. reasonable neglect.
B. exigent circumstances. D. reasonable expectation.
18. What offense might you be committing by going onto a man’s property to search his
garbage?
A. Robbery C. Defamation
B. Assault D. Trespass
Examination 117
19. Which of the following is not an equity action?
A. Divorce C. Trespassing
B. Probate D. Property condemnation
20. In civil law, the element of physical contact during an attack is called
A. battery. C. assault.
B. mens rea. D. criminal intent.
118 Examination

1-Legal Principles and Requirements

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

1-Legal Principles and Requirements

Uploaded by

Copyright:

Available Formats

Study Unit

About the Contributing Reviewer

Printed in the United States of America

When you complete this study unit, you’ll be able to

IMPORTANT LAWS AND DECISIONS, CIVIL 11

IMPORTANT LAWS AND DECISIONS, CRIMINAL 28

THE UNITED STATES CONSTITUTION 33

APPENDIX C—IMPORTANT COURT CASES 70

SELF-CHECK ANSWERS 113

2 Legal Principles and Requirements

Legal Principles and Requirements 3

Three Areas of the Law

4 Legal Principles and Requirements

Indicate whether the following statements are True or False.

_____ 1. Culpable means deserving blame.

_____ 2. A plaintiff is the one being sued.

_____ 3. Private investigators are seldom called upon to investigate crimes.

_____ 4. An injury, in legal terms, simply means physical harm.

Check your answers with those on page 113.

Legal Principles and Requirements 5

6 Legal Principles and Requirements

Legal Principles and Requirements 7

Numerous law school courses are taught on the subject of

Overlap of Civil and Criminal Issues

8 Legal Principles and Requirements

Legal Principles and Requirements 9

_____ 2. A duty doesn’t always have to be proven to win a tort case.

_____ 3. Negligence is not a crime, but it is a tort.

4. What is the basis of law in Louisiana?

5. What are the necessary elements of a tort claim?

Check your answers with those on page 113.

10 Legal Principles and Requirements

The Fair Credit Reporting Act

Legal Principles and Requirements 11

FIGURE 3—An unintended consequence

12 Legal Principles and Requirements

Legal Principles and Requirements 13

The Fourth Amendment

14 Legal Principles and Requirements

Legal Principles and Requirements 15

16 Legal Principles and Requirements

The Known or Potential Error Rate

Legal Principles and Requirements 17

Peer Review and Publication

18 Legal Principles and Requirements

Legal Principles and Requirements 19

20 Legal Principles and Requirements

_____ 1. FCRA stands for Fair Credit Reporting Act.

4. What is the official name of the Financial Modernization Act?

Check your answers with those on page 113.

Legal Principles and Requirements 21

22 Legal Principles and Requirements

Merchant Privilege Laws

Legal Principles and Requirements 23

24 Legal Principles and Requirements

Felonies and Misdemeanors

Crimes are further subdivided within each level into classes

Legal Principles and Requirements 25

Other Classifications of Criminal Law

26 Legal Principles and Requirements

Legal Principles and Requirements 27

IMPORTANT LAWS AND

Mapp v. Ohio (1961)