1

I.

General
A.
4th Amendment protects people from unreasonable searches and
seizures, and provides that no warrant shall issue unless there is probable
cause supported by oath or affirmation and particularly describing the place
to be searched and the persons/things to be seized
B.
Applies to:
1.
Searches and seizures of property; and
2.
To arrests of persons
C.
Search/seizure must be executed by a government agentif it wasnt,
then search/seizure is not challengeable
1.
Types of government agents:
a)
Publically paid police (on or off duty); and
b)
Private citizensONLY if they are acting at the direction of
the police
c)
Potential government agents
(1)
Private security guardsonly if they are deputized
w/ the power to arrest (i.e., campus security officers at
public universities)
(2)
Public school administratorsi.e., principals and
vice-principals

II.
Did a government agent conduct a search or seizure governed by 4 th
Amendment?
A.
A search something that violates your reasonable expectation of
privacy
B.
Was there a reasonable expectation of privacy (REOP) in the area
searched or items seized that was invaded by government agents? (D must
show a legitimate expectation of privacy in the items seized or in the
premises searched)
1.
REOP is determined by a totality of the circumstances

C.

Does D have standing?

1.
To challenge the search or seizure, the D must have standing
D must have a reasonable expectation of privacy in the thing or place
being searched
2.
REOP of privacy always exists if D either:
a)
Owns, has a right to possess, or lives in the premises to
be searched, or
b)
Is an overnight guest of the premises to be searched
3.
REOP exists in Protected Areas, including:
a)
Persons body
b)
Houses (including hotel rooms) and the curtilage (living
space directly around your home)
c)
Papers (personal correspondence)
d)
Affects (purses, wallets, backpacks)
e)
An overnight social guest has a REOP in the home where
he is staying (but owner may consent to a search, and then
youre shit out of luck)
(1)
BUT short term guests, non-overnight social guess,
and commercial guests have no REOP of hosts home
4.
REOP does NOT exists in Unprotected Areas, including:
a)
Inherently public thingsi.e., handwriting, voice, location,
odors that eminate from car/luggage, bank records, things
viewable from public space, garbage placed outside, open fields
b)
Paint scrapings on the outside of your car
c)
Pen registers (which record the telephone numbers you
dial)
d)
Private conversations, including eavesdropping
e)
Naked eye observations of your private property by air
f)
Aerial photography of the outdoor areas around a large
fenced in industrial complex
g)
Information the police learn by use of other senses while
police are in a place they have a right to be (e.g., the police use
dogs to smell luggage in airports and, thus, detect drugs)
h)
A prisoner has no REOP in his jail cell

i)
A passenger in an automobile has no REOP in the search
of the vehicle (b/c the vehicle isnt theirs, theyre just a
passenger)
(1)
BUT they DO have REOP in a particular area that
may be searched or the item seized (i.e., if cop finds bag
of drugs w/ passengers name on it under the drivers
seat= NO standing; but if cop finds bag of drugs in
passengers coat pocket= standing)
D.
**If government agent has invaded an individuals REOP, the 4 th
Amendment applies to the search/seizure. Next step is to determine
if the search/seizure complies w/ 4th Amendment requirements to be
admissible**
III.
Did the government agent have a search warrant under which the criminal
evidence was gathered, and was the search warrant valid?
A.
Unless an exception applies, the government must have a properly
executed warrant to conduct a search
B.
YESthere was a search warrant
1.
Was the warrant proper on its face, issued by a neutral
magistrate and based on probable cause? Requirements for a valid
warrant:
a)
Probable cause a valid warrant must be based on
probable cause. 2-prong test for determining if there was
probable cause:
(1)
Must be reasonably likely that the evidence of the
crime (the named items or persons sought) will be found
in the area searchedaka that the search or seizure will
product evidence
(2)
The testimony/affidavit presented to the
magistrate contains facts or circumstances that are still
relevant and not out of date
b)
Precise on its face
(1)
Warrant must describe, with reasonable precision,
the place to be searched/items to be seized
c)
Issued by a neutral and detached magistrate
(1)
Neutral magistrate= must be detached from the
law-enforcement side of the government
(2)
If this requirement is violated, evidence seized
pursuant to the invalid warrant cannot be admitted under
the good faith reliance exception
(a)
But if the invalidity of the warrant is due to
an error by the issuing magistrate, the evidence is
admissible if police were acting in good faith on the
basis of an objectively valid warrant??? (p.443
Kaplan)
2.
Use of Informants Tips A warrant based on an informants tip
will be issued when probable cause is established under the totality of
the circumstances. An informant does not have to reveal his/her
identity. Relevant factors taken into account are:

a)
Credible information
b)
Reliable informant;
c)
Police corroboration; and
d)
Declaration against interest (if the information is making
some declaration against interest, makes it more credible)
3.
Was the agents reliance on a defective warrant in good faith?
a)
An officers good faith overcomes constitutional deficits in
probable cause and particularity, with 4 exceptions. D can
challenge the affidavit upon which the warrant was issued but
must prove one of the following by a preponderance of the
evidence:
(1)
Affidavit was so egregiously lacking in probable
cause that no reasonable officer would have relied on it
(bare bones affidavit)
(2)
Warrant is so facially deficient in particularity that
no officer could reasonably presume it to be valid
(3)
Affidavit relied on by magistrate contained knowing
or reckless false statements that are necessary to the
probable cause finding
(4)
Magistrate who issued the warrant is biased in
favor of the prosecution
**At this point, if you find that police had either a valid warrant or
a defective warrant saved by the officers good faith, move on**
C.
NOthere was no search warrant
IV.

Execution of Search Warrants

A.
Timing no unreasonable delay
1.
Police must execute warrant promptly, without unreasonable
delay after it is issued, while probable cause still exists
B.
Knock and Announce police must knock and announce
themselves
1.
Police must knock and announce their purpose, then wait a
reasonable time for admittance before entering on their own
accord/attempting a forcible entry
C.
Scope of Search the person or place searched/seized was within the
scope of the warrant
1.
Police may only search those areas/items authorized by the
language of the warrant
2.
Persons unnamed in a warrant may not be searched merely
because of their presence at the search location
a)
BUT police may detain people found on the searched
premises; they just cannot search them unless a valid
warrantless search exception applies
3.
Police CAN, however, seize any evidence of criminal activity they
discover, even if not included in the warrant (see plain view exception,
below)

V.
Is the [warrantless] search through which criminal evidence was gathered fall
under a valid exception to the warrant requirement?
A warrantless search is unconstitutional unless it falls under a valid exception to
the search warrant requirement. 8 EXCEPTIONS: ESCAPIST
A.
EXIGENT CIRCUMSTANCES (plus probable cause)
1.
Hot pursuit
a)
While in active pursuit of a fleeing felon, police can search
for anything relating to the pursuit or for their own protection
b)
Allows police, when looking for a suspect, to enter a
suspects home or that of a third party into which he has fled
c)
During hot pursuit, any evidence of a crime discovered in
plain view while searching for the suspect is admissible
(1)
Ask Alison/Kristina during this, they cant
do a search, only allowed to get items in plain view
right?
2.
Emergency
a)
Police can search or seize evidence if justified by
emergency circumstances (e.g., a bomb threat or act of
terrorism
b)
Police can enter w/o a warrant when there is an
objectively reasonable basis for believing that a person inside is
in need of emergency aid to address or prevent injury
3.
Evanescent evidence
a)
Police can search/seize evidence that would be at risk of
disappearing if police were required to secure a warrant (e.g.,
drugs which may be discarded, DNA evidence which may not
last [like Dexter])
B.
SEARCH INCIDENT TO AN ARREST police may, w/o a warrant, search a
lawfully arrest person and his immediate surrounding area aka wingspan
(includes the body, clothing, and any containers within the arrestees
immediate control w/o regard to the offense for which the arrest was made)
1.
Requirements:
a)
Arrest must be lawful;
b)
Search must be contemporaneous w/ the arrest;
c)
Search must be limited to the area within the suspects
immediate reach or immediate movement (i.e., where he may
be ale to obtain weapons or destroy evidence)
2.
Protective Sweeps
a)
Police may make protective sweeps of an area for their
own safety or if they have reasonable belief that accomplices
may be present

3.

C.

Inventory search
a)
Police may make an inventory search of an arrestees
belongings, i.e., they can take items to the police station to be
searched
4.
Automobile Search Incident to a Custodial Arrest
a)
Police can only search the arrestees vehicle ONLY if he
has reason to believe the vehicle may contain evidence relating
to the crime for which the arrest was made
b)
If arrestee is in an automobile, police may search the
passenger compartment, including the glove box; can also
searched closed containers
c)
Police CANNOT search the trunk w/o probable cause or
consent
d)
Police CANNOT search the passenger compartment if
arrestee is secured, away from the vehicle
5.
Justification officer safety an the need to preserve evidence
CONSENT with valid consent, police may search anything
1.
Requirements for valid consent:
a)
Voluntarily and intelligently made
(1)
Police cant lie or deceive to obtain consent
(2)
Police have no obligation to inform suspects that
they have a right to refuse consent
b)
Person giving consent has authority to consent
(1)
Must be reasonably apparent that the consenting
party has the authority to consent
2.
Scope of consent
a)
Can be limited by the consenting party
b)
Violation of the allowed scope renders the entire search
non-consenting
3.
3rd party consent
a)
Allowed if there is authority to consent
b)
Where multiple people have rights to property (via
ownership, authorized use or occupancy), any single one can
consent to the search of any area where they have authority to
consent

c)
A residents right to consent trumps a non-resident (e.g.,
if both a tenant and landlord are present, the tenants refusal
trumps the landlords consent)
d)
Scope of consent is dictated by the person present w/ the
highest authority to consent
(1)
Consent to search extends to all areas for which a
reasonable officer would believe permission to search was
granted (within authority of individual granting consent)
e)
Refusal trumps consentno consent if 2 persons w/ equal
right to possession disagree on consent
f)
Apparent authority if police office obtains consent to
search from someone who lacks actual authority to grant it,
consent VALID under 4th Amendment, provided the officer
reasonably believed that the consenting party had actual
authority
D.
AUTOMOBILE EXCEPTION if probable cause exists (that there is
contraband or evidence of crime in the car), police may search an entire
vehicle (including the trunk) and anything inside it that may contain evidence
of suspected criminality
1.
2 types:
a)
Protective sweep search= generally does not include the
trunk
b)
Probable cause search= generally includes any area
evidence could be
2.
Requirements
a)
Police must have probable cause to search the vehicle
b)
Probable cause must arise before the search begins (i.e.,
probable cause must arise based on something between the
vehicle stop and the search)
3.
Scope of permissible search
a)
Police may search passengers and their belongings
b)
Packages and containers in the vehicle
(1)
Police may open any package, container, or item of
luggage that they reasonably believe may contain
evidence relating to the reason they searched the vehicle
(2)
Police may also tow the vehicle and search such
containers at a later time (DOES THIS MEAN ANY CAR
THAT IS TOWED- POLICE CAN SEARCH THE
VEHICLE?)
4.
Automobile Stop
a)
Requires reasonable suspicion
b)
To stop or pull over a vehicle, police must have reasonable
suspicion that a law has been violated
c)
All passengers have standing to challenge the stop itself

d)

5.

Accompanying Searchespolice may search:

(1)
The passenger compartment and passengers for
weapons (does not include the trunk)
(2)
Any open containers that could reasonably contain
evidence supporting the reasonable suspicion for the stop
(does not include closed, locked containers)
(3)
The entire car may be searched if probable cause
arises
(a)
The officer does NOT need probable cause at
the time the car is pulled over, providing he
acquires it BEFORE initiating the search
Police Checkpoints
a)
Must relate to a vehicle-specific purpose
b)
DUI checkpoints are OK because they relate to road
safety, but drug checkpoints are insufficiently related to driving
and therefore unconstitutional
c)
Vehicles must be stopped using some neutral and
articulable standard

E.
PLAIN VIEW EXCEPTION police may search from any place where they
are legitimately present when viewing (i.e., when conducting the search)
1.
Officer can only be seized if he is lawfully present
2.
Seizure based on plain view police may make a warrantless
seizure based on evidence in plain view if:
a)
They are legitimately on the premises from which they
viewed the evidence to be seized (lawfully present at the
location)
b)
Evidence of criminal activity or contraband is immediately
apparent [criminality of the item must be immediately apparent]
c)
They have probable cause to believe that plainly viewed
evidence is contraband or relates to a crime (officers have
lawful right of access to the object itself)
(1)
NOTE: officer, standing on a public sidewalk, can
see through window of Ds house and can view marijuana
growing in Ds living room. Officer may not make
warrantless entry into Ds house to seize the marijuana
b/c she doesnt have lawful access to the inside of the
house
3.
Scope & limitations of plain view searches
a)
Plain view includes anything viewable from land or public
property
(1)
Items viewable only through binoculars are still
within plain view!
b)
Police cannot use technological devices to view evidence
that may give rise to a plain view search (e.g., infrared scanners
capable of viewing through walls)

c)

F.

Plain smells included within plain view

(1)
If police smell something giving rise to probable
cause from a place where they are legitimately present,
they can search that item

INVENTORY SEARCH
1.
Occurs in 2 contexts:
a)
Arrestees when they are booked into jail; and
b)
Vehicles when they are impounded
2.
Inventory searches are constitutional, provided:
a)
The regulations governing them are reasonable in scope;
b)
The search itself must comply w/ those regulations; and
c)
Search is conducted in good faith (it is motivated solely by
the need to safeguard the owners possessions and/or ensure
officer safety

G.
SPECIAL NEEDS special needs of law enforcement, government
employers and school officials beyond a general interest in law enforcement
1.
Administrative Searches
a)
Government agencies may conduct routine searches or
inspections (ex: building code inspections, food safety
inspections, searches of businesses in high-regulated industries,
airline passenger searches, parolee searches, etc.)
b)
Warrant is required for inspections of private residences
or commercial buildings
(1)
Requires less particularity than standard warrants
(2)
A general and neutral enforcement plan for the
searches will suffice to validate the warrant
2.
Random Drug Testing= warrantless, random drugs testing is
okay in the following contexts:
a)
Warrantless searches are permitted for drugs tests of
public school students who wish to participate in extracurricular
activities
b)
Railroad employees following an impact accident

10

3.

4.
5.

c)
Customs agents who are responsible for drug interdiction
Border Searches & Immigration
a)
At the border, officials may conduct routine searches of
persons and their effects (including vehicles) w/o a warrant,
probable cause, or reasonable suspicion
(1)
Border= any place where one can arrive in the US
from a foreign country
b)
Detentions= reasonable suspicion required
(1)
Officials may detain a traveler at the border if they
have reasonable suspicion he/she is smuggling
contraband
c)
International Mail
(1)
Officials can open and inspect international mail if
they have reasonable suspicion it contains contraband
d)
Immigration
(1)
Officials may raid a business to determine
citizenship status of its employees
Government employees desks and files
a)
Warrantless searches of government employees desks
and files are permitted to investigate work-related misconduct
Students effects in public schools
a)
Warrantless searches of the effects (purses, backpacks,
etc.) of public schoolchildren are permission to investigate
violations of school rules, such as the prohibition of smoking on
school grounds

H.
TERRY STOP AND FRISK police may detain a person for an
investigative purpose if they have reasonable suspicion of criminal activity
1.
Terry Stop/Frisk addresses 2 questions:
a)
When the police may briefly detain a person even though
the do not have probable cause to arrest or search them; and
b)
To what extent may the police conduct a protective,
limited search for weapons on the suspects person
2.
Stop v. arrest
a)
Stop= brief detention (it is NOT a arrest)

11

b)
Length detention must be no longer than necessary to
verify the suspicion
c)
But police may develop probable cause to arrest based on
anything occurring or discovered during the stop and/or frisk
3.
Stop= requires reasonable suspicion of wrongdoing
a)
Where a police officer observes unusual conduct which
leads him to reasonably conclude that criminal activity is afoot,
he may briefly detain the sustain in order to make inquires.
b)
Probable cause is not required; Reasonable suspicion,
based on objective facts, that the individual is involved in
criminal activity, will suffice
c)
Stop based on Informants Tip:
(1)
Stop may be justified not only based on officers
own observations, but also based on an informants tip.
All that is required is reasonable suspicion
d)
Flight as a cause for suspicion
(1)
The fact that an individual has attempted to flee
when seen by police will normally raise the polices
suspicion and may even without more justify the police in
making a stop
4.
Protective Frisk= a pat down. Requires belief that the D is armed
and dangerous an the officer may seize any item that he reasonably
believes is a weapon
a)
When police perform a frisk after making a stop, the frisk
must be limited to a search for weapons or other sources of
dangerthe purpose of the frisk may not be to search for
contraband or other incriminating evidence SO WHEN EXACTLY
ARE POLICE ALLOWED TO SEARCH THE PERSONS BODY
FOR CONTRABAND?
b)
Once the officer conducts a stop as described above, the
assuming nothing in the initial encounter dispels his reasonable
fear for his/others safety, the officer may conduct a carefully
limited search of the outer clothing of the suspect in attempt to
discover weapons
c)
If police have a reasonable belief during the frisk that
what they feel is a weapon or contraband, they may seize the
suspected item
(1)
Officers cannot manipulate the item to develop
reasonable beliefit must be plain touch only
(2)
If, instead officer feels something she immediately
recognizes as contraband w/o manipulating the object,
she can seize it b/c it is in plain view (plain-feel)
(3)
Evidence validly seized is admissible
5.
If officer has properly stopped a car, police are entitled to do a
frisk of any passengereven if the police have no reason to suspect
the passenger of wrongdoingas long as the police have a reasonable
suspicion that passenger may be armed and dangerous
a)
If suspect has been removed from car, police can then
search for weapons in the passenger compartment so long as:

12

(1)
Officer reasonably believes the driver is dangerous
and may gain control of weapons that may be in the car;
and
(2)
They look only in those parts of the passenger
compartment where weapons might be placed/hidden
VI.

I.

Electronic Surveillance, Wiretapping, & Eavesdropping

A.
Electronic surveillance (i.e., wiretapping or eavesdropping) is a
search under the 4th Amendment and requires a warrant
B.
Wiretapping= the use of an electronic surveillance device w/o the
suspects knowledge or consent. Any form of electronic surveillance violates a
Ds REOP and therefore a warrant must be issued
C.
4 requirements for valid electronic surveillance warrant [Screen
Telephone Calls Carefully]:
1.
Suspected Persons warrant must name the suspects subject to
surveillance;robable cause
2.
Time surveillance is limited to short periods of time & wiretap
terminates when the desired information is obtained;
3.
Crime there must be probable cause that a crime has been or
is being committed;
4.
Conversations Warrant describes w/ particularity the subject of
conversations that can be listened to
D.
Eavesdropping
1.
All speakers assume the risk that the person to whom they are
speaking is wired and/or tape recording the conversation and/or
eavesdroppingso in these case, you do not have a 4 th amendment
claim
a)
Therefore, police do not need a warrant if they get
someone to wear a wire and talk to the suspect b/c the person
consented to wearing the wire
b)
Police DO need a warrant to tap the suspects phone
Is Ds statement/confession admissible?
A.
4 federal constitutional challenges that can be brought to exclude a
confession [will be inadmissible under these]:
1.
5th/14th Amendment Due Process Clause
2.
6th Amendment Right to Counsel
3.
5th Amendment Miranda (Privilege against self-incrimination)
4.
4th Amendment Exclusionary Rule

13

4 BASES TO EXCLUDE STATEMENTS AND CONFESSIONS

APPROACH
Voluntariness Approach to be
admissible, a statement must be
voluntarily made based on the totality of
the circumstances [this is a Ds protection
against coerced statements]
Right to Counsel Approach
Statements made during any critical
stage of a criminal proceeding are
inadmissible unless the defendant is
afforded the right to counsel [right to have
a lawyer help you trough the criminal
process; lawyer has to be there through all
critical stages. BUT 6th Amend. right to
counsel doesnt attach until adversary
proceedings have commenced against you
until some charge has been filed against
you]
Miranda Standard Statements made
during custodial interrogation are
inadmissible in the absence of Miranda
warnings [this kicks in when D is at the
police statement, before they file charges
against him; any statement made during
custodial interrogation is inadmissible in
the absence of Miranda warnings]
Fruits of Illegal Conduct Even
voluntary statements obtained as fruits of
prior illegal searches and seizures are
inadmissible

14

CONSTITUTIONAL BASIS

Due Process Clause of the

5th and 14th Amendments

6th Amendment Right to

Counsel

5th Amendment Privilege

Against Self-Incrimination

4th Amendment
Exclusionary Rule

B.
If Ds statement was voluntary= then statement is admissible!
C.
2 requirements for confessions for it to be admissible against person
who made confession:
1.
Voluntary confession was voluntary i.e., not the product of
coercion by the police; and
a)
Voluntary confession will be admissible regardless of
whether Miranda warnings were given
2.
Miranda warnings confession must have been obtain in
conformity with Miranda
a)
When a suspect is questioned in custody by the police, his
confession will be admissible against him only if he has received
the Miranda warnings
II.

Excluding Statements Under 5th/14th Amendment Due Process Clause

A.
Under the 5th Amendment, any person in any proceeding (civil or
criminal) may refuse to answer a question if he response might incriminate
herself
B.
Privilege is only available for compelled testimony or communicative
evidence
1.
Testimonial
a)
Verbal or otherwise communicative evidence
b)
NOT testimonialLineups and physical evidence
2.
Compelled
a)
Elicited or induced
b)
NOT compelled Evidence produced from Ds free will
(e.g., Ds diary)
c)
Compelled Lie detector tests, custodial interrogation,
etc. so 5th Amendment privilege does apply
C.
Privilege does NOT apply if:
1.
Grant of immunity government can grant immunity from
prosecution for self-incriminating testimony
2.
Incrimination is not possible e.g., the statute of limitations has
run
3.
Extinguished by waiver D waives the privilege

III.

Excluding Statements Under 6th Amendment

A.
Fgfdgdfg
B.
Dfdfg

IV.

5th Amendment Double Jeopardy

A.
General
1.
Keeps an individual from being tried and punished for the same
offense twice
2.
A D cannot be retried for the same offense once jeopardy has
attached
3.
Arises when a D charges with 1 crime is charged w/ another
crime based on the same offense
4.
2 main issues regarding Double Jeopardy:

15

B.

C.

D.
E.

F.

a)
Where the D is retried for the same exact crime for which
he has previously been tried
(1)
Double Jeopardy precludes such trial, but the
question is whether the D is really being tried twice for
the same crime
b)
When the D is tried for 2 or more different crimes, but the
crimes are sufficiently similar to be considered the same
offense, precluding separate trial and convictions for both
crimes
When does jeopardy attach?
1.
Jury trial
a)
Attaches when the jury is empanelled and sworn in
2.
Bench trial
a)
Attaches when the 1st witness is sworn in and the court
begins to hear evidence
3.
Civil trial
a)
Jeopardy is not applicable
4.
Juvenile proceedings
a)
The commencement of a juvenile proceeding bars a
subsequent criminal trial for the same offense
Same Offense
1.
Offenses are different if conviction for each offense requires
proof of an element not included in the other offense
2.
Different offense e.g., where offense #1 requires proof of A &
B, but offense #2 requires proof of A, C, and D
3.
Same offense e.g., where offense #1 requires proof of A,B, and
C; offense #2 requires proof of A & B
a)
Ex: a D cannot be charged w/ larceny after his trial begins
for robbery from the same incident
One Crime (D is being tried for 1 crime)
1.
Rule once jeopardy attaches for the trial on the crime, the D
cannot thereafter be tried again for the crime (with some exceptions)
More than One Crime (D is being tried for 2 or more different crimes)
1.
Issue can the D be tried, convicted and sentenced for both
crimes?
2.
Lesser Included Offenses
a)
When all elements of 1 crime + an additional element is
another crime, then the former is a lesser included offense of
the latter
b)
Separate trial are not allowed, jeopardy attaches for both
if either is tried
(1)
Exception retrial for murder is permitted if the
victim dies after attachment of jeopardy for battery
3.
Joint bail is allowed but the D can only be convicted and
sentenced on 1 crime
Separate Offenses
1.
Blockburger test each crime has at least 1 element not shared
w/ another crime2 trials and sentences are allowed

16

G.
Exceptions Permitting Retrialonce jeopardy has attached, when is
retrial still allowed?
1.
Generally
a)
New evidence for the greater offense has become
available
b)
D can be tried for battery and subsequently tried for
homicide if the victim later dies from the battery
2.
Hung Jury
a)
Retrial is allowed if the first trial ended in an inability of
the jury to reach a verdict
3.
Mistrial due to manifest necessity
a)
Ds original trial is aborted for some reason, e.g., D is too
ill to continue
4.
Retrial after a successful appeal by D
a)
D can be retried unless the basis for reversal was
insufficient evidence to support a guilty verdict
5.
D breaches a plea bargain agreement
6.
Separate Sovereigns
a)
D can be tried for the same crime in different states
b)
D can be tried for the same crime in federal and state
court
c)
D CANNOT be tried for the same crime in a municipality
and a state
V.
VI.
I.

Excluding Statements Under 5th Amendment Miranda

A.
General
General
A.
A person in custody must be adequate informed of his Miranda rights
prior to interrogation in order for his subsequent statements to be admissible

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B.
When a suspect is questioned in custody by the police, his confession
will be admissible against him only if he has received the Miranda warnings
II.

When does Miranda apply?

A.
For Miranda to apply, 3 requirements must be satisfied:
1.
Custody Miranda warnings are necessary ONLY when the
suspect is taken into custody
a)
So Miranda is not triggered if suspected is only
stopped/detained on the street
b)
Custody= accused is not free to leave
2.
Questioning/Interrogation Miranda only applies where the
confession comes as the result of questioning
a)
Any statements by police likely to elicit an incriminating
response (i.e. any conduct police know or should know will get a
damaging response from the accused)
b)
Routine questioning e.g., during booking or a probation
interview, is NOT considered interrogation
c)
Public safety exception police may interrogate suspects
w/o giving Miranda warnings if necessary due to concerns for
public safety (e.g., D has info about a bomb that could go off in
public)
3.
Authorities Miranda only applies where both the questioning
and the custody are by the police or other law enforcement authorities

III.

4 Miranda Warnings
A.
Once you determine Miranda DOES apply, 4 warnings are required to
be given to the suspect:
1.
He has the right to remain silent;
2.
Anything he says can be used against him in a court of law;
3.
He has the right to the presence of an attorney;
4.
If he cannot afford an attorney, one will be appointed for him
prior to any questioning if he desires
B.
Substantial compliance in reading warnings is sufficient
C.
Suspect may exercise his right to remain silent or have an attorney
present at ANY time during the questioning. As soon as suspect exercises his
right, interrogation must cease

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D.
Any statement obtained in violation of Miranda rules will be
INADMISSIBLE as prosecution evidence, even if the statement is in a sense
voluntary
1.
Failure to give warnings only implicates 5th Amendment, not 6th
Amendment
2.
But statement could still be used for impeachment purposes
IV.

Invoking the Right to Remain Silent

A.
After the accused invokes this right, police must immediately cease all
questions
B.
Police may later question the accused regarding unrelated crimesIS
THIS TRUE?
C.
When may the police initiate a new interrogation after the suspect has
invoked his right to silence?
1.
Court applies scrupulously honored standard police must
satisfy 4 requirements in order to be deemed to have scrupulously
honored the suspects invocation of his right to remain silent:
a)
Police must have immediately ceased the interrogation
once the suspect invoked his right;
b)
The gap between the cessation of questioning and the
initiation of the new session must represent a significant
passage of time (a cooling off period); and
c)
Prior to the second interrogation, the police must give a
second set of Miranda warnings
D.
**Remember: If D invoked ONLY the right to remain silent and the
police continued questioning, the confession is inadmissible unless:
1.
There was a break in questioning,
2.
D was given the Miranda warnings again, and
3.
The questioning was about a different crime
o This is so b/c if the accused indicates that he wishes to
remain silent, all questioning related to the particular crime
must stop

V.

Invoking the 5th Amendment Right to Counsel

A.
Applies ONLY where questioning occurs
B.
Includes the right to consult a lawyer prior to questioning as well as the
right to have a lawyer present while the questioning occurs

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C.
All questions must cease on any topic until counsel is provided an
present
1.
NOTE this is different than the 6th Amendment right to counsel,
which is offense-specific and does not attach until charges have been
filed
D.
If accused initiates the communication, interrogation is allowed. Only
the accused can re-initiate dialogue
E.
Waiver After Invocation of Right to Counsel:
1.
Court has made it very difficult for prosecution to establish that
this demand has been subsequently waived
2.
General rule after suspect invokes his right to counsel, he is
not subject to further interrogation by the authorities until counsel has
been made available to him, unless the accused himself initiates
further communication, exchanges or conversations with the police
3.
Response to questioning
a)
Waiver will not be established by the mere fact that the
suspect responded to later police-initiated interrogation
4.
Initiating the Conversation test
a)
Once a suspect indicates a desire to have a lawyer, any
subsequent waiver of that right will not be measured by the
usual knowing/voluntary/intelligently standard
b)
Instead, the only way a suspect may waive a previouslyasserted desire to have a lawyer present at the interrogation is
by initiating the conversation with police
5.
Break In Custody
a)
Once the suspect has been out of custody for at least 14
days, the police may initiate questioning even though they
never furnished counsel in response to the suspects initial
request for it
F.
**Remember: If D requested counsel, a confession in response to
further questioning w/o counsel is inadmissible unless the D re-initiated the
questioning
VI.

Waiver of Miranda Rights

A.
To be effective waiver must be made:
1.
Knowingly
2.
Voluntarilymust be a clear verbal waiver
3.
Intelligently made
B.
Suspects silence may NOT be taken as a waiver

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C.
But waiver need not be express to be valid
D.
Burden is on Prosecution to prove the waiver was validmust prove by
a preponderance of the evidence
VII.

Other Miranda Issues

A.
Grand Jury Witnesses
1.
A witness who is subpoenaed to appear before a grand jury
probably does not have to be given Miranda warnings
B.
Impeachment
1.
A confession obtained in violation of Miranda may not be
introduced as part of the prosecutions case-in-chief, but they may use
such statements to impeach Ds testimony at trial
2.
Exception for coercion:
a)
Although a statement obtained in violation of Miranda
may be admissible for impeachment purposes, it may NOT be
used even for this limited purpose if it was the product of
coercion or was involuntary for some other reason
C.
Use of Ds Silence
1.
Generally not allowed the prosecution may NOT introduce in
court the fact that D remained silent while under police questioning
2.
Pre-arrest silence the general rule only applies to Ds silence
after arrest and Miranda warningsit does NOT apply to pre-arrest
silence by the suspect
a)
Ex: D raises a self-defense claim at his murder trial.
Prosecution impeaches this claim by pointing out that for 2
weeks after the murder, D failed to go to the police to surrender
himself or to explain that he killed in self-defense. The
prosecutions use of Ds silence was proper, because Ds silence
did not occur while he was in custody [think Jodi Arias?]

VIII. StandardIf testimonial evidence that should have been excluded as

violative of Miranda was improperly admitted at trial and D was convictedshould
the court vacate the guilty verdict?
A.
Admission of an involuntary confession does not result in automatic
reversal harmless error rule applies
1.
Under this standard, government must prove beyond a
reasonable doubt that the introduction of the confession into evidence
didnt contribute to the guilty verdict/D would have been convicted
even without the tainted evidence
B.
Harmless error rule also applies to physical evidence
improperly admitted under the 4th Amendment
I.
Rights Associated w/ 6th Amendment Relative to the Criminal Prosecution of a
Defendant:
A.
Right to a Speedy Trial

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B.
Right
C.
Right
Witnesses
D.
Right
E.
Right
II.

to an Impartial Jury
to be Informed of the Cause of Action and Confrontation of
to Compulsory Process for Obtaining Witnesses
to the Assistance of Counsel

General
A.
Once the 6th Amendment right to counsel attaches, police may not
deliberately elicit incriminating statements outside the presence of Ds
counsel
B.
Application
1.
Right attaches once charges have been filed
2.
Applies to all subsequent stages of the judicial proceeding
C.
Scope
1.
The right is offense-specific
2.
Police can question D about any other crime without violating
Ds 6th Amendment rights

III.
Inadmissible Statements: Statements Made in Violation of 6 th Amendment
Right to Counsel
A.
A statement is inadmissible if it is in violation of the 6 th Amendment
right to counsel under the Massiah rule
B.
Under the 6th Amendment, D has a right to counsel during questioning
by the police
C.
D must make the request unambiguously to the interrogator, at which
time the questioning must cease
D.
Right is offense-specific, so police may continue to question on other
offenses, even if those that are factually related to the charged offense
E.
Counsel must be present at all questioning until the accused waives
the right
F.
Absent an effect waiver once formal charges have been filed, the
deliberate eliciting of any incriminating statements from a D w/o the
assistance of counsel violates the 6th Amendment right to counsel

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G.
A police agents secret recording of a suspects conversations while out
of bail violates his right to counsel
H.
The right extends not only to noncustodial settings, but also to the
beginning of the adversarial court process. The initial appearance in a court
will trigger this right b/c it signals the governments intent to prosecute
I.
Although police cannot knowingly or intentionally create an
opportunity to confront the accused w/o counsel absent a waiver, passive
listening by a cellmate informant does NOT violate the right to counsel
1.
D must demonstrate that the police and their informant took
some action, merely beyond listening, that was designed to
deliberately elicit incriminating remarks
IV.

Difference Between 5th vs. 6th Amendment Right to Counsel

A.
5th Amendment Right to Counsel
1.
NOT automaticthe accused must invoke the right by
requesdting the presence of counsel
a)
Request must be unambiguous
b)
Applies to any custodial interrogation
2.
NOT offense-specificonce invoked, police must stop
questioning on all subject
a)
Police can re-initiate questioning after a break and D must
re-invoke the right by again requesting an attorneyIS THIS
RIGHT?
th
B.
6 Amendment Right to Counsel
1.
Automaticattaches once charges have been filed
2.
Offense-specificpolice can question D about any other crime

I.

8 Critical Stages when Right to Counsel Attaches:

A.
Pre-Trial
1.
Custodial interrogation (Miranda warnings)
2.
Accusatory stage
3.
Post-indictment line-up

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B.
C.

II.

4.
Preliminary hearing
Trial Stage
1.
All felony trials
2.
Misdemeanor trial (where actual imprisonment is imposed)
Post-Trial
1.
Sentencing
2.
First appeals granted as a matter of right

6 Non-Critical Stages Where There is NO Right to Counsel:

A.
Pre-indictment line-up
B.
Non-advertised Gerstein hearing to determine probable cause
C.
Grand jury proceeding
D.
Discretionary appeal
E.
Parole and probation revocation proceedings (unless re-sentencing is
involved)
F.
Taking of handwriting or voice exemplars and blood

IDENTIFICATIONS: 2 BASES TO ATTACK IDENTIFICATIONS OF THE DEFENDANT (DUE

PROCESS & RIGHTS TO COUNSEL)
III.

Types of Pretrial Identification

A.
Lineups witness is shown several possible suspects at once and
asked to identify the perpetrator from a group
B.
Showups one-on-one confrontation between the witness and the
suspect; witness is asked to identify a single suspect

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C.
Photo ID/arrays witness is asked to pick out the perpetrator from a
series of photos
IV.

Constitutional Objections
A.
4 plausible constitutional objections that D may be able to make to the
use of these procedures against him:
1.
That it violates Ds privilege against self-incrimination;
2.
That it constituted an unreasonable search or seizure in violation
of the 4th Amendment;
3.
That if D did not have a lawyer present, the use of the procedure
violated his 6th Amendment right to counsel; and
4.
That the procedure was so suggestive that it violated Ds 5 th/14th
right to due process
B.
Objections most likely to succeed (in order of successfulness):
1.
The use of 1 of these procedures (esp. a lineup or showup) w/o
Ds lawyer present violated his right to counsel
2.
The procedure was so suggestive that it violated due process
(most likely to work where the procedure was a lineup, showup, or
photo ID)
3.
Self-incrimination argument almost NEVER works
4.
Search/seizure argument only works if police lacked a warrant
and/or probable cause

V.

Pre-Indictment Identifications: The Due Process Standard

A.
Rule any lineup, showup, or photo ID is inadmissible as violative of
due process when the identification is unnecessarily suggestive and likely to
produce an irreparable mistaken identification
B.
D must show that when viewed by the totality of the circumstances
the procedure was so unnecessarily suggestion as to be unfair to D
C.
Minor exception suggestive procedures are allowed if they are
reliable
1.
An identification procedure is not violative of due process if the
court finds that it is reliable (i.e., not likely to cause error), even if it is
somewhat suggestive

VI.

Post-Indictment/Pre-Trial Lineups: The Right to Counsel

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A.
General Rule after formal criminal proceedings have commenced, a
suspect has an absolutely right to have counsel present at any pre-trial
confrontation procedure
1.
Includes any in-person lineup or showup
2.
Rule does NOT apply to non-live identification procedure, such
as photo lineups or fingerprinting)
B.
Remedy for Violation
1.
D may move to suppress any subsequent in-trial identifications
by the witness
a)
If confrontation is conducted in violation of the right to
counsel, the prosecution will not only be barred from introduced
at trial the fact that D was picked out of the lineup, but may
even be barred from having the witness who made the
identification testify in court that the person sitting on the dock
is the person observed by the witness at the scene of the crime
b)
Once the lineup is shown to have been improper, the
prosecution will have to come up with clear and convincing
evidence that the in-court identification is not the fruit of the
poisonous tree
(1)
Note remedy for a violation is rare b/c
government can often prove the identifying witness has
an independent source of identification to overcome the
exclusionary rule
C.
Waiver
1.
The right to have counsel present at the pre-trial confrontation
proceeding may be waived, but waiver must be an intelligent one
D.
Exceptions to Right to Counsel (where there is no right to counsel)
1.
Before formal proceedings have been brought against D
2.
Photo ID (see above)
3.
Scientific ID procedures (such as fingerprints, blood samples,
clothing, hair, voice, handwriting samples, etc.)
I.

Pre-Trial (Preliminary) Hearings & Bail

A.
Pretrial hearing requires to determine if there is probable cause to
detain the suspect
1.
Required if:
a)
Arrestee is incarcerated, and
b)
There has not been a grand jury or other judicial
determination of probable cause
2.
Pretrial hearing MUST occur within 48 hours of detention

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B.

II.

III.

Bail
1.
Bail= used to make sure D shows up at trial. D is required to
post an amount of money known as a bail bond; if he does not show
up for trial, he forfeits this amount
2.
Must be set no higher than necessary to ensure D will appear at
trial
3.
Detention w/o bail is constitutional, BUT any decision to refuse
bail is immediately appealable
a)
Arbitrary denial of bail violates due process
4.
For denial of bail, the government must show either:
a)
D poses a flight risk, or
b)
D poses a danger to the community
Grand Jury Proceedings
A.
General
1.
Grand juries are required in federal court under the 5 th
Amendment and are used to determine whether there is sufficient
probable cause to bring charges against a suspect
2.
Prosecutors present their cases to grand jury, which votes to
issue an indictment if they find probable cause
B.
Grand Jury Proceedings
1.
Secret, non-public proceedings
2.
Suspect has no right to confront witnesses or be at the
proceeding
3.
Witnesses are not entitled to Miranda warnings
4.
Witnesses may not challenge a subpoena
a)
But they may refuse to testify under the 5th Amendment
5.
Exclusionary rule doesnt apply (an indictment can be based on
evidence that would be inadmissible at trial)
Right to a Speedy Trial

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A.
B.

C.

IV.

6th Amendment guarantees D the right to a speedy trial

General
1.
Protects D from unreasonable delay between the time charges
are filed and the beginning of trial
2.
Right attaches once D has been arrested or charged
Violations
1.
Determined by the totality of the circumstances
2.
Courts can look at the following factors:
a)
Length of delay
b)
Reason for delaydid D contribute to the delay?
c)
Whether D asserted his right to a speedy trial
d)
Whether the delay has prejudiced D
3.
Remedy for violation= dismissal of case with prejudice

Right to a Jury Trial & Jury Requirements

A.
6th Amendment provides the right to a jury trial for all serious
offenses
B.
Serious Offenses
1.
Those that authorize a sentence of imprisonment for more than
6 months
2.
Offenses authorizing probation for up to 5 years may be tried
without a jury, unless revocation of probation would result in
imprisonment greater than 6 months
C.
Jury Size and Selection Requirements
1.
Jury size and unanimity
a)
Jury must contain at least 6 jurors

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b)
2.

3.

4.

V.

There is no constitutional right to a unanimous verdict

(1)
BUT a 6-member jury verdict MUST be unanimous
c)
10-2 and 9-3 jury verdicts have been upheld
Juror composition requirements
a)
The jury pool must be a representative cross-section of
the community
b)
The actual jury does not have to be representative
Right to an impartial jury
a)
D can question potential jurors on possible prejudices if
relevant to the case (e.g., racial biases, feelings on the death
penalty)
b)
D can challenge for cause based on prejudices and has
unlimited challenges for cause if relevant to the case
Peremptory challenges
a)
Cannot be used to exclude jurors on account of race or
gender (violates equal protection)

Right to Confront Witnesses

A.
6th Amendment gives Ds the right to confront adverse witnesses
B.
Confrontation
1.
D has a right to have adverse witnesses testify in-person and
subject to cross-examination; not an absolute right
2.
In-person testimony is not required if:
a)
Exclusion is necessary for public policy, and
b)
Reliability of the testimony is otherwise assured
3.
D can be removed from court for disruptive behavior
C.
Co-Defendant Confessions
1.
The confession of a non-testifying co-D against D at a joint trial
violates the 6th Amendment
2.
This does NOT apply to bench trials
3.
Exceptions the confession of a non-testifying co-D is
admissible if:
a)
Ds have separate trials
b)
The confession is edited so that all portions referred to the
co-D are eliminated
c)
The confession is used to rebut Ds claim that his
confession was obtained coercively
D.
Hearsay
1.
Prior testimonial statements of unavailable witnesses are ONLY
admissible if D had the opportunity to cross-examine the declarant
when the statement was made

29