Criminal Procedure Outline

I. The Idea of Due Process

II. The Right to Counsel
III. Rise & Fall of Boyd
IV. The Fourth Amendment
V. The Fifth Amendment

I. The Idea of Due Process

A. Supreme Court as the Ultimate Regulator of Police Power
1. Piecemeal decisions
a. Very limited number of criminal cases heard per year
(i.e. limited docket)
(1) Plus, criminal justice process after Δ is arrested—
some cases never go to trial, some don’t make it to
appeal, etc.
b. Each local entity must interpret the opinion as they
see fit
2. Problem of enforcement: The S.Ct must rule w/in
particular social constraints such that the lower courts and
police will actually follow their rules
3. Is the Supreme Court really in touch with what the
police do on a day-to-day basis? Are they in touch with
social reality?
B. Stages of Due Process
1. Founding—Nothing for the first 100 years
2. Warren Court (1960’s)
3. Present-day jurisprudence
a. Incorporation Doctrine
(1) Hurtado v. CA (1884): Δ charged and convicted of
1st degree murder. Δ charged by information, not
grand jury indictment. Δ arguing that due process
requires indictment by a grand jury for a serious
crime in state court via 14A (much like the process in
federal court as guaranteed by the 5th A).
(a) Historical argument (i.e. that the Magna Carta
would’ve guaranteed a grand jury) is rejected by
the majority b/c the system or process will change
and be molded into new forms.
(b) Textual argument: That 14 A is meant to mean
the same thing as the 5th A.
i) Majority: No b/c 5th says, “grand
jury indictment…due process of law,” and
14th says, “No state shall deprive any
person of due process of law.”
 ii) Cannot read 5th A DP into the 14th
A b/c would render the other words
superfluous.
iii) Thus, 5th and 14A are not exactly
the same thing.
iv) Thus, a grand jury indictment is not
inherently included in the notion of “due
process”
(c) Majority: Fundamental fairness (i.e. due
process ≠ Bill of Rights, due process is its own
concept)
i) Accuracy or prevent race-based
treatment
ii) Rule of law: Govt will not use
arbitrary action against you
iii) Based on a “shocking the
conscience” standard -- unpredictable
(d) Justice Harlan, Dissent: Due process
incorporates ALL of the bill of rights. 14A’s DPC is
meant to take in all 10 amendments into its
concept of DPC.
i) Is much more predictable
(2) Duncan v. Louisiana: Δ convicted of simple
battery. Duncan, an African-American, accused of
touching or hitting an elbow of a white boy. Δ
arguing that DP entitles him to a trial by jury.
(a) Test: Is a jury trial a right “fundamental
principle of liberty and justice which lie at the
base of all our civil and political institutions?”
(b) Holding: 14th A incorporates the 6th A right to
a jury trial in state court for all criminal cases
which would require a right to a jury trial in
federal court. RIGHT TO JURY = MATTER OF
FUNDAMENTAL FAIRNESS
i) Ct does not draw a BLR as to what
does or does not get a jury trial.
a) Today, 6 months is the dividing line
b/t petty and non-petty
ii) Ct moving from a fundamental
standard → selective incorporation (i.e. S. Ct
considering cases piecemeal and
incorporating more amendments)
iii) Criticism: Ct avoids the
race/discriminatory factor. Does not
address the status of Af-Ams. Ct is crafting
race-neutral and procedural rights.
II. The Right to Counsel
A. Right to Trial Counsel
1. State of the law prior to Gideon.
a. 14A DPC requires states to provide counsel required
in capital cases—called the special circumstances
rule. Powell v. Alabama.
b. In state court, no lawyer unless it is a hard or
complicated case. Ct does not see rt to counsel as
fundamental fairness. Betts v. Brady (1942).
2. Gideon v. Wainwright (1963): Δ accused of theft;
sentenced to 5 years (i.e. felony trial). Asked for a lawyer,
but was refused.
a. Held: Counsel must be appointed in all felony cases.
(1) Here, in state ct, so Δ is entitled to counsel via
14A.
b. Overrules Betts. Seeing an incorrect reading of the
DP (i.e. starting to move towards incorporation).
c. Majority: Betts was a departure from precedent. It
prevented some from getting fair trials. Due to the
adversarial system of justice, defense counsel is
necessary.
(1) Justice Harlan, concurrance: Special
circumstances rule has been eroded b/c it has been
employed frequently. Limit the incorporation of the
6A via 14A.
3. Scope of the right to counsel—Misdemeanor cases
a. Arbersinger v. Hamlin (1972): Δ argued that if all are
entitled to a jury trial, then Δ should also be entitled to
the rt to counsel. S.Ct: No, rt to trial by jury ≠ rt to
counsel. Δ may not be imprisoned for any offense
—whether petty, misdemeanor, felony—unless
represented by counsel at trial.
(1) Is S.Ct fearing cost of having to provide counsel to
everyone?
(2) Criticism:
(a) Doesn’t ct suggest that Δ atty would ensure a
fair process?
(b) Also, are legal issues in misdemeanors any less
complex than in felony cases?
(c) Justice Powell (concurs w/ result, but disagrees
w/ the breadth): Should have a case by case
determination of whether counsel is required—
whether or not imprisonment is involved.
i) Fears pre-judgment of the case to
ensure compliance w/ Arbersinger, and the
 pressure not to appoint counsel in every
case.
b. Scott v. Illinois (1979): Δ convicted of theft (i.e.
misdemeanor) and fined $50 after a bench trial. The
statute set maximum penalty for the offense as $500 or
one year in jail, or both. Scott arguing that where
imprisonment is authorized, he should be entitled to a
right to counsel.
(1) Held: Potential sentence does not matter. Actual
sentence to imprisonment is the factor that
will trigger the right to counsel.
(2) Brennan dissent:
(a) Authorized imprisonment is more faithful to
Gideon.
(b) Inherent problem b/c won’t actually know the
sentence until after the trial is over.
c. Collateral consequences
(1) Nickels v. US (1994): Misdemeanor conviction w/o
counsel. Repeats the offense. The 1st conviction
enhances 2nd conviction’s sentence. Violation
of Scott?
(a) Held: No. Uncounseled convictions may be
used to enhance a sentence for subsequent
charges.
(2) Alabama v. Shelton: Shelton received a
suspended sentence (i.e. probation). Breaks his
probation and is imprisoned. No attorney was at the
misdemeanor hearing. Violation?
(a) Held: Yes. Shelton is imprisoned for the same
offense. State cannot impose a suspended
sentence where the Δ might end up in jail..
d. Reconciling Arbersinger/Scott w/ Gideon: Counsel is
required:
(1) When facing a felony in the abstract
(2) In misdemeanor cases where the Δ is actually
jailed.

B. Counsel on Appeal
1. No federal xnal rt to appeal. McKane v. Durston (1894).
a. BUT…some states recognize a xnal rt to appeal.
Most states provide an appellate process via state law
or state constitution.
2. Chronology of right to counsel on appeal:
a. Griffen v. Illinois (1956): Δ entitled to appeal as of
right. Needed to pay for trial transcript in order to
appeal. USSC:: Violation of DPC by preventing indigent
 Δ’s from their rt to appeal.
(1) Rationale: Even though no federal xnal rt to
appeal, if the state provides for an appeal as a
matter of right, they cannot effectively prevent
indigents from accessing the system.
b. Douglas v. CA: CA statute—Indigent Δs get appointed
atty on appeal as of right only if the appeals court
decides it will be helpful for Δ. USSC: Violates DP. CA
cannot pre-judge cases
(1) Rule: If on appeal as of right, counsel
required as a matter of DP.
c. Ross v. Moffitt: Δ asking for atty on discretionary
appeal (i.e. to state S.Ct). Δ received atty @ trial and at
the appeal as of right. USSC: States not required to
provide counsel for discretionary appeals.
(1) Rationale (look @ DPC and EPC in 14A):
(a) DPC (governs relationship b/t Δ and state): @
trial level, atty essential as a shield, but @
appellate level, atty is more like a sword. Also, @
trial level—presumption of innocence, but @
appeal—Δ is convicted beyond a rsbl doubt, so no
more presumption of innocence.
(b) EPC (governs relationship b/t Δ and other
similarly situated Δs): EPC does not
guarantee absolute equality, but only that Δ has
meaningful access. Here, Δ has access to review
(i.e. on appeal as of right). State S.Ct is more
interested in legal principles to the state, conflicts
of law, or matters of public interest.
i) Once a state opens up a state of
play, it must be fair. But the North Carolina
S.Ct has nothing to do w/ the USSC. Thus,
NC shouldn’t have to pay for Δ to go up to
USSC.
(2) Situation differs from Douglas b/c:
(a) Difference b/t need and desire to go further
(b) Already briefed issues @ appeal, so can further
case on own
(c) Higher courts (e.g. state S.Ct, and USSC) shape
the law, and are not really to decide individual
questions of guilt.

C. Effective Assistance
1. Evitts v. Lucey (1985): Evitts’ appeal (of right) denied
b/c atty failed to file papers. USSC: If state provides for a rt
to appeal, must act constitutionally. As a matter of DP,
 must provide an atty (i.e. what the states owes to Δ on
appeal). Not an EPC case. If guaranteed an atty on 1st
appeal, then the atty must be effective.
2. Strickland v. WA (1984): Strickland convicted of
murder. Defense atty was “despondent and hopeless”.
Atty fails to investigate mitigating circumstances and
witnesses during the penalty phase at trial. @ time, no
uniform std for what constitutes “xnally effective counsel.”
a. USSC adopts 2 factor test in assessing ineffective
assistance of counsel—NEED BOTH--
(1) Ineffective—“cause”. Δ must show that counsel’s
performance was deficient.
(a) Objective std of rsblness—(“Simply rsblness
under prevailing professional norms”)
(b) No checklist—“lawyering as an art”
(c) Cannot challenge atty’s strategic choices
(d) This is measured @ time of the atty’s decision
or performance—not in hindsight.
(2) Harmful to Δ—“prejudice”. Δ must show that
counsel’s deficient performance or errors were so
serious as to deprive Δ of a fair trial, i.e. one whose
result is reliable.
(a) Must show reasonable probability that the
outcome would be different.
i) “Probability sufficient to undermine
confidence in the outcome.”
ii) Not more likely than not, but also
not any possible outcome. Thus,
somewhere b/t those two stds.
(b) This is measured in hindsight
b. Justice Marshall dissent—
(1) re: rsblenss—Not enough guidelines. Telling attys
to act “rsbly” is to tell them almost nothing.
(2) re: prejudice—Tough to tell the effects of bad
lawyering.
c. Difference b/t majority and Marshall—Purpose of
having an atty guaranteed by the 6A?
(1) Majority: To prevent convicting innocent Δs
(2) Marshall: End in itself. Ensuring a fundamentally
fair procedure—whether Δ is guilty or innocent.
d. Ct is also concerned with finality—at what point Δ
cannot complain about their case?
3. Guilty Pleas
a. Hill v. Lockhart: Δ alleged atty misinformed him re:
how much time he would have to serve before parole,
which lead him to plea bargain.
 (1) Performance test: Same as Strickland
(2) Prejudice: Whether Δ would’ve entered the plea at
all—i.e. if atty hadn’t unrsbly performed, Δ would’ve
have plead guilty.
D. Self Representation
1. Faretta v. CA: Δ charged w/ grand theft. Δ wants to
represent self. Judge tells him he thinks it’s a mistake,
later determining that Δ has no Xnal rt to self-
representation, and that Δ has no knowledge of ct rules, so
appoints counsel.
a. USSC: Effective waiver of counsel is Xnal in
state cts. Rationale:
(1) Historical evid: Δ could represent self @ trial in
colonial era
(2) Text of 6A: Refers to Δ himself, not to Δ’s counsel
(3) 6A rt is personal: Δ makes choices and bears
responsibility for choices.
b. Trial ct must:
(1) Give warning of consequences, and
(2) Ensure Δ is knowingly and intelligently waiving rt
to counsel.
c. Trial ct can deny waiver IF:
(1) Δ is not knowingly and intelligently waiving rt
(2) Self-representation is to engage in “obstructionist
conduct”—i.e. delaying tactics
(3) Request is too late (i.e. right before trial, in the
middle of trial)
d. FN 46: Not a violation of Δ’s rt if the trial ct appoints a
standby counsel to help out if Δ has a question.
(1) Rationale: Keeps judge as the neutral arbitrator,
so he won’t have to help Δ too much. Thus, standby
atty helps Δ w/ procedure. Does not interrupt the
adversarial procedure.
(2) Also, Δ may not raise a Strickland claim against
self if Δ is convicted once the rt to self-representation
is invoked.
2. Standby counsel @ trial
a. McKaskle v. Wiggins (1984): Trial ct appoints a
standby counsel over Δ’s objections. Δ oscillates re:
how much he wants counsel to participate. Consults
atty often. Confusion over who is in charge? Did
standby atty interfere w/ Faretta rt? Held: No violation
of Δ’s rt.
(1) TEST:
(a) CONTROL: Actual control by Δ over his hearing
i) Standby counsel cannot make of
 substantially interfere w/ tactical decisions,
control questioning of witnesses, or speak
instead of Δ on matters of importance.
(b) PERCEPTION: Jury’s perception that Δ is
representing himself. (If jury is not present, then
only concerned w/ control).
(2) Rationale: Want to promote the dignity and
autonomy of the Δ.
3. Self-Representation on appeal
a. Δ may not waive right to counsel on
appeal. Martinez v. CA Ct. App.
(1) Rationale: Appeals are statutory, and not
grounded in 6A or C/L. Thus, not denying DP when
denying self-rep on appeal. Δ is convicted—he is no
longer presumed innocent.
(2) Denying self-rep on appeal does not
fundamentally interfere w/ the rt at trial, and concern
for fair procedures.
E. Identification and Critical Stages of Proceedings
1. Critical Stage is a formal interaction b/t Δ and the state
a. Examples
(1) Preliminary hearings
(2) Arraignments
(3) Indictment
(4) Corporeal line-ups
(5) NOT warrant procedures
(6) NOT beyond sentencing
b. Δ gets an attorney at “critical stages”
2. Line-up cases
a. Dangers of identifications:
(1) Victim under stress
(2) Police suggestiveness
(3) Mistaken perception and memory
(4) Race—tough for ppl to id ppl in another race
b. US v. Wade: Witness makes an in-court identification
based on prior identification in a line-up. No counsel
was present at the line-up.
(1) USSC: No per se exclusionary rule
(a) Govt must show that the in-court
identification is based on something other
than the line-up OR must show that there
was harmless error in introducing the
evidence.
c. If a line-up w/o counsel and no in-court
identification→ per se exclusionary rule. The line-up
w/o counsel IS the error. Gilbert v. CA
 d. Kirby v. Illinois: Police station id of Kirby after his
warrantless arrest and before any adversarial
proceedings have begun.
(1) 6A does not apply b/c no formal adversarial
proceedings when Δ was put in the line-up.
(2) DPC applies. May be able to attack id at line-up if
it was unnecessarily suggestive on DP grounds.
e. Reconciling Wade/Gilbert/Kirby
(1) If a 6A violation @ lineup (i.e. after formal
proceedings begin) = evid of id procedure (i.e. fact
that witness id’d Δ at a line-up) = INADMISSIBLE
(2) Eyewitness cannot id Δ at trial/in-court unless the
govt can show the id is not tainted by pre-trial,
counsel-less id @ lineup (i.e. that eyewitness id’d Δ
apart from the line-up)
(3) 6A implicated: Corporeal lineup = critical
stage ONLY AFTER the start of formal
adversarial proceedings
3. US v. Ash: Δ id’d at photographic array w/o counsel
present. USSC: No 6A violation. Δ is not present, so this is
not an adversarial procedure. Also, Δ’s atty can do their
own photo id—or can be redone at trial.
a. Photo array ≠ critical stage. Thus, no rt to
counsel here.
b. Dissent: Greater dangers of mistaken id. Likelihood
of unconscious suggestions.
4. Using DUE PROCESS as a means of challenging ids
a. Stovall v. Denno (1967): Δ arrested for murder.
Victim’s wife is in the hospital. Δ brought into hospital
and wife id’s Δ w/o atty.
(1) TEST: Was id
procedure (1) unnecessarily (2) suggestive?
(2) Held: Suggestive, but not unnecessarily so. Not
sure if victim was going to live.
b. Key to challenging id on DP grounds:
RELIABILITY. Manson v. Braitwaite (1977)
(1) No need for per se exclusionary rule if utilize a
totality of the circumstances test.
(a) Per se rule is too harsh—creates a risk where
guilty ppl will go free, and goes too far in
excluding relevant evidence.
c. Summary of DP test. Δ must show:
a. Procedure was suggestive
b. It was unnecessarily so.
c. ID was found to be unreliable
d. Based upon the totality of the circumstances
 (1) Relevant factors:
(a) Opportunity of the witness to view the
criminal @ time of the crime
(b) W’s degree of attention
(c) Accuracy of W’s prior description of the
criminal
(d) W’s level of certainty.
5. Summary: Right to counsel @ id procedures:
a. 6A
(1) After formal proceedings
(2) Corporeal lineup
(a) To admit the in-court id, govt must show that id
was gotten from another source than the no-atty
lineup
(b) Per se exclusionary rule against the 1st id if no
atty present
b. Alternatively, (and independently), DPC
(1) Challenge can be to a line-up or a photo
(2) DPC does not care whether the id was before or
after formal proceedings.
III. Rise and Fall of Boyd
A. Boyd v. US (1886): Boyd importing glass. Govt claims Boyd
lied about the content of the shipment and is requiring Boyd
to produce invoices for shipment of glass. This is a tax
dispute and a civil proceeding. Boyd hands over papers, but
over objections that it is violating his 4/5th A rts.
1. Govt relies on 1875 statute: If Δ fails to produce papers,
allegations are taken as confessions.
2. Majority: Unreasonable search and seizure.
a. Statute is w/in the “spirit” of the 4A—even though no
literal search and seizure. Functional equivalent to
search and seizure.
(1) 4A is to protect against “general warrants”—open
ended warrants
(a) Entick v. Kerrington: Govt enters π’s home, and
search his papers pursuant to a general
warrant. Lord Camden: Condemns the search.
i) Private ppty is sacred as “papers
are the owner’s goods and chattels; they
are his dearest ppty…”
ii) This case called the “bastion of civil
liberties”
b. 4-5 A protect private ppty (not so much the language
of privacy).
c. Suggests absolute right of privacy w/ private ppty
3. This proceeding is quasi-criminal, so 5A applies.
 4. Relationship b/t 4 and 5A…
a. Majority: Closely related as an intimate relation b/t
the two…
B. Gouled v. US (1921): Govt barred from searches or seizures
where the claimant has a legitimate interest in ppty. MERE
EVIDENCE RULE—Govt can only take ppty you don’t have a
legitimate interest (e.g. contraband, stolen goods). Govt must
have superior interest in the evidence.
1. After Gouled and Boyd, USSC is creating an absolute
zone of privacy for private ppty. Thus, govt can only really
look for contraband
2. As a practical matter, effective law enforcement
becomes more important. Need to allow law enforcement
to touch private ppty. (beginning of 20C…allow law
enforcement to touch private ppty)
C. Fall of Boyd
1. 5A privilege against self-incrimination is NOT available
for corporations. Hall v. Hinkle
2. Required Records Doctrine: Can’t invoke 4/5 A to refuse
compliance w/ records you are required to keep.
3. Govt can search and seize ppty used in commission of a
crime. Marron v. US (1927)
a. Narrows mere evidence rule: Distinguishes b/t ppty
that is mere evidence of a crime and ppty used in the
commission of a crime.
4. Ppty or privacy?
a. Traditional view: Look @ whether evid belonged to Δ
b. Revisionist view of 4/5 A: Rts protect the right to be
left alone. View advanced by Justice Brandeis’ dissent
in Olmstead v. US, which eventually came to the core of
modern jurisprudence.
D. Schmerber v. CA: Δ arrested while driving drunk. Blood
drawn against Δ’s consent. Raises 4/5/6 A claims.
1. re: Blood compelled--implicates 5A claim against self-
incrimination
a. USSC: Blood ≠ testimony or communicative evid.
(1) Can use the body as evidence
(2) Xnal difference b/t forcing someone to say
something and physical evid alone
(3) versus lie detectors—where this measures both
physical evidence and is testimonial in nature.
2. re: Blood test—implicates 5A
a. Blood itself is a non-communicative act.
b. → Testimony comes from the doctor or lab analyst—
not from Δ himself.
c. Even though Δ is the blood donor, his participation is
 irrelevant for 5A purposes
(1) Departure from Boyd—Even though physical
evidence is incriminating and/or private, it is not
testimony, and is not covered by the 5A
3. re: Rt to counsel claim
a. USSC: No rt to counsel b/c is not a critical stage.
Counsel couldn’t help Δ protect his rts
4. 4A claim against unrsbl searches and seizures
a. USSC: Search and seizure here.
b. Then, is it rsbl for Xnal purposes? Yes
(1) Here, no warrant
(2) BUT…rsbl b/c timing issue (i.e. alcohol dissipating
in body) + rsbl procedures used + rsbl method to
ascertain whether Δ is drunk
(3) Thus, no 4A violation
5. Brennan’s decision:
a. “Overriding function of 4A is to protect personal
privacy and dignity against unwarranted intrusion by
the state”
(1) Privacy and dignity added to 4A analysis.
b. Suggests certain circumstances where it is ok for
govt to search
(1) Qualifies the absolute bar on personal ppty
c. Differs from Boyd:
(1) Getting away from thinking of 4/5 A as
giving substantive rights.
(2) Shifting idea to what 4/5 A is about—application
where the procedure is analyzed.
(3) Growing concern about effective law enforcement
(a) Increase in the idea that the govt’s needs
should be balanced against privacy
6. Douglas’ dissent: Absolute zone of privacy which govt
can never intrude.
7. Now: Under Schmerber, Δ cannot raise 5A claim w/
forcible DNA extractions; can only raise unrsbl 4A claim
E. Warden v. Hayden: Δ accused of armed robbery. Δ objects
to govt taking his clothes as evid. This is during the “mere
evid” rule (i.e. govt can’t search and seize mere evid; need a
superior ppty interest to Δ; thus, must be a
fruit/instrumentality of the crime or contraband)
1. USSC: Rejects mere evid rule. Distinction is a fiction.
2. Ct is moving away from exclusive view of the 4A as
protecting personal ppty. More about putting limitations
on the govt, and protecting privacy.
F. Berger v. NY: NY wiretapping statute struck down. USSC:
No longer a substantive interest in talking about 4/5 A. Ct
 concentrates on procedural protections
1. Total separation of analysis b/t 4-5 A. No longer an
intimate relationship.

IV. The Fourth Amendment

A. General principles
1. Text: “The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures [reasonableness clause] shall not be
violated, and no warrants shall issues, but upon probable
cause, [warrant clause] supported by oath and affirmation,
and particularly describing the place to be searched, and
the persons or things to be seized [particularity clause].
2. Xnal doctrines implicated:
a. Incorporation: B of Rts doesn’t necessarily apply to
states automatically. Must be incorporated by the DPC
b. State action: Must be govt action involved (i.e. state
actors)
B. Exclusionary Rule—Primary remedy for violating 4A
1. Mapp v. Ohio (1961): Police looking for Virgil Ogiltree to
question about a bombing. Go to Mapp’s house. She
refused entry and called her atty. Atty was kept from
entering the house. 3 hours later, door forced open.
“Warrant” held up, and fight ensues to get hold of the
paper. Police search the house, and find obscene
materials.
a. USSC: Illegal police action. Evid should’ve been
excluded at trial. Conviction reversed.
b. State of the law @ time of Mapp:
(1) Weeks v. US (1914): Fed officials illegally obtain
evidence. Exclusionary rule formed as a remedy for
the violation of a 4A rt.
(a) Rationale: If no remedy, then do you really
have a rt?
(2) Wolff v. Colorado (1949): Would not extend
exclusionary rule to the states as the remedy for 4A
violations by state officials.
(a) Lead to the silver platter doctrine: Fed agents
could get state police to seize evid
unconstitutionally, but evid would be let in b/c was
not obtained by federal agents
(b) Reverse silver platter doctrine: Feds getting
evid unconstitutionally, and giving it to state
officials.
(c) Silver platter doctrine today: Individuals,
private citizens, foreign police can seize evid
 c. Exclusionary rule applies to the states
(1) Rationale:
(a) Deterrence to the police
(b) Procedural uniformity—prevent evid in that was
unconstituionally obtained
(c) Upholds the integrity of the criminal justice
system; prevents tainted evid in
(d) Healthy federalism—avoiding conflicts b/t state
and fed cts
2. Exclusionary rule does not benefit those who are
searched illegally, but no evid is found in the illegal search
(e.g. Police want to harass someone, but are not looking
for evid to assist in their prosecution).
3. Cost of the exclusionary rule
(1) Some guilty Δs go free
(2) DA may refuse to bring case fwd—i.e. impacts
charging decisions
4. Exclusionary rule is NOT Xnally mandated, but
is judicially mandated. Thus, may change the remedy in
the future if a better one can be thought up.

C. Searches and Seizures—When the 4A is implicated

1. “Searches”
a. State of the law @ time of Katz
(1) Olmstead v. US: Police surveillance b/t Olmstead
and another individual around Olmstead’s home via
wires outside home. USSC: No physical trespass, so
no 4A event/violation.
b. US v. Katz: Δ in glass phone booth. Conversation
recorded.
(1) USSC: 4A protects privacy in limited sense. 4A
protects people, not places—Thus, even if Δ is in
a public place, it may be private
(a) Even though no physical trespass, Δ has 4A
claim here.
i) Even though Katz knowingly
exposed himself visually, he did expect
conversational privacy.
(b) Then, is search rsbl?
i) Ct: No. Govt could’ve obtained a
warrant. Not for the govt to determine
whether they are acting rsbly or unrsbly
(c) Overrules Olmstead
(2) Justice Harlan’s concurrence—becomes the
dominant way to look @ rsblness of searches and
seizures
 (a) Does Δ have rsbl expectation of privacy?
(subjective)
(b) Is the expectation rsbl from society’s
point of view, and is society prepared to
recognize it as rsbl? (objective)
(3) Problems w/ Harlan’s test:
(a) Room for variation
(b) Circular: Std will evolve w/ society’s changing
social circumstances—e.g. post 9/11: society may
demand greater intrusions for law enforcement,
while others would oppose this, so who is
“society”?
c. Knowingly exposure—Impact on reasonably
expectation of privacy
(1) Justice Stewart: “What a person knowingly
exposes to the public, even in his home/office, is not
a subject of 4A protection”
(a) CA v. Greenwood: Δ put opaque trash bags on
street and police search them. USSC: Δ knowingly
exposed items, so loses 4A protection
(b) BUT…problematic b/c ppl leaving DNA all over
the place. Will cts look @ whether Δ has
knowingly exposed DNA? (e.g. guy who licks a
stamp in NJ)
(2) Open fields doctrine:
(a) Oliver v. US (1984): Police search Oliver’s farm
where Δ is growing pot.
i) Held: No search. 2 justifications:
a) No rsbl expectation of privacy in an
open field
b) Not a “person, paper, house, effect”
ii) Dissent: a conversation is also not a
person, paper, house, effect
iii) BLR: Open fields are NOT
protected by 4A
(b) US v. Dunn (1987): Police pass through a fence
to reach Δ’s barn and enter ranch w/o warrant.
Eventually got a warrant.
i) Held: Not protected by 4A b/c this is
not curtilage (i.e. area around the home)
ii) Factors to determining whether the
ppty is an open field or curtilage:
a) Proximity of the area to the
home
b) Whether the area is included in
an enclosure surrounding the home
 c) How the area is used
d) Steps taken to protect the area
from observation of passerbys.
(c) e.g. Installing 5000 security cameras
in Manhattan. No subjective expectation of
privacy b/c you can see the cameras.
(d) Is the 4A suggesting that anytime you are
outside your curtilage, you no longer have an
expectation of privacy?
d. US v. White (1971): Δ having a conversation w/
Harvey Jackson, an informant. Jackson has a
transmitter. Δ objects to recording of the conversation
as a ‘search.’ [Jackson is acting as a state actor]
(a) US v. Hoffa: Hoffa in hotel, talking to colleague
(police agent). Colleague testifies to the
conversation at trial. Held: Not a 4A search b/c no
rsbl expectation of privacy in FALSE FRIEND.
No protection from misplaced confidence.
(b) Ct in White: No difference b/t testimony from
conversation and technologically enhanced
conversation.
i) Δ assumes the risk when he talks to
false friend, that the friend may disclose
conversation to someone else.
ii) Differs from Katz: Person Katz was
talking to did not consent to the 3d party in the
conversation. Here, one person consents.
e. US v. Karo: Govt put beeper in can of ether.
Owner/seller consents. Karo picks it up. Govt tracks
can from Karo’s house to other houses → storage locker
(lose visual tracking) → Taro’s house (police obtain
warrant and arrest)
(a) Held: No search during times can is transferred by
visual surveillance
(b) re: While in Taro’s home…yes, 4A reasonable
expectation of privacy implicated. Govt only knew of
the location of the ether b/c of the beeper—this info
could not have been obtained otherwise.
i) Govt uses beeper when they lose sight
of the can in public view
(c) Knotts: Person on public roads has no rsbl
expectation of privacy b/c it conveys to anyone that
he is traveling. Thus, no 4A search b/c Δ is
transmitting info of his whereabouts voluntarily.
i) karo differs from Knotts b/c beeper
provided info that was not/could not be known
 from public view.
f. Circolo (1986): Police survey Δ’s backyard via
airplane and spot marijuana from 1000 ft up.
(a) USSC: No 4A search by visual overflight. No rsbl
expectation of privacy.
g. Florida v. Riley (1996): Police in helicopter.
Surveying the inside of Δ’s greenhouse in his backyard.
(a) USSC: No search. Is legal to fly 400 ft over one’s
house in helicopter. If public can do it, so can police.
(b) Does this cause different stds for different
geographical areas?
(c) No rsbl expectation of privacy over your
curtilage
h. Bond v. US (2000): Δ, passenger on a bus. Police
come on and squeeze Δ’s bag. Find a brick of
methanphetamine.
(a) USSC: Violates 4A. Difference b/t visual and
tactile manipulation
(b) Katz test: (1) Not rsbl to think that ppl will come on
bus and squeeze bag (subjective); (2) Society: ct
nervous to fail to protect all things that can be
touched.
i. US v. Kyllo: Police think Δ is growing pot inside
house. Use thermoimager to see the heat emitting from
the home. Police don’t enter the home; only know
whether heat is coming from the bldg.
(a) USSC: 4A search.
i) Govt is actively seeking info that it
cannot see. Getting info about the interior of
the house that it could not otherwise have
been obtained w/o a physical intrusion.
(b) Police use of device not in general public use
is a search that is unrsbl w/o a warrant.
i) Stevens dissent: What is “general
public use”? Should Xnal protection hinge
upon consumer activity?
j. US v. Place: Dog sniff ≠ search.
(a) Differs from Kyllo: Both are non-invasive
collections of info. But in Place, this shows absence
or presence of drugs w/o actually opening up the
luggage
k. What does it mean to have 4A privacy w/ improving
technology? e.g. RFID microchips—usually used by
warehouse vendors to track merchandise. Now, no law
that the device needs to be turned off at any point.
2. “Seizures”
 a. Florida v. Bostick (1991): 2 police get on bus, one
standing at the exit. Approach Δ and ask him if they
can search his bag. Δ (questionably) consents. Police
find drugs. Δ argues that he was seized.
(1) USSC: No 4A event if encounter was purely
consensual.
(2) TEST: Would a rsbl person feel free to decline
the officer’s request or otherwise terminate
the encounter?
(a) Police’s subjective intent does NOT matter.
Looking at the rsbl person in Bostick’s shoes.
i) Rsbl person also presumes an
innocent person (O’Connor)
(b) Whether Δ feels free to leave is one factor, but
not the only one.
(c) Rationale: Gives police wiggle room to do their
job.
(d) Criticism: Ignoring social reality of the
relationship b/t certain communities and the
police? (e.g. race as a factor in whether Δ’s action
is rsbl) Don’t police just intimidate as being
symbols of authority?
b. Browers v. Inyo County (1989): Δ fleeing. Police set
up a tractor in the middle of the road to stop the car. Δ
hit and killed. Was Δ seized?
(1) USSC: Yes. Key is termination of freedom via
means intentionally applied.
(a) Hypo: A police car unintentionally loses its
break, rolls down the hill, and pins you. This is
NOT a seizure, even if the person it hits is a
fleeing suspect.
c. Hodari D. (1991): Δ fleeing from police. In midst of
pursuit, he throws cocaine on the ground. At what point
is Δ seized? (If Δ is seized at the time he threw away
the cocaine, then the drugs are the fruit of an unlawful
seizure and the evid excluded).
(1) USSC: Seizure = taking possession or physical
control. Need to show either actual physical
touching OR submission to authority.

D. Probable Cause and Warrants

1. Context: Once 4A found to apply (i.e. there has been a
search or seizure), must answer two additional questions:
a. What std are police held—meaning, how much or
what kind of justification must the police have in order
to search/seize?
 (1) Probable cause—This defines the amount of facts
or circumstances w/in the police’s knowledge that
would warrant a rsbl person to conclude that the
indiv committed a crime or that specific items related
to the criminal activity will be found in a certain
place.
b. Who decides whether this justification is present?
(1) Neutral magistrate before the issuing of a warrant
(2) When acting w/o a warrant, determination of PC is
made by the police and is later reviewable by the ct
(at the suppression hearing)
2. Standard
a. Traditional approach:
(1) Warrantless searches are unrsbl. Rare to have an
exception to a warrantless search.
(2) Police need probable cause to search
b. Contemporary approach:
(1) Many exceptions
(2) Difficult to apply b/c variation by jx
c. Brinegar v. US (1949): “Probable cause exists where
facts and circumstances w/in (officer’s) knowledge of
which they had reasonably trustworthy information [are]
sufficient in themselves to warrant a man of reasonable
caution in the belief that an offense has been…made.”
(1) 4 elements to probable cause:
(a) Rsbl to whom?
(b) Strength of connection
(c) Comparison to other [procedural] stds?
(d) Quality of info
d. Informant:
(1) Draper v. US (1958): Informant tells police the
narcotics agent will be arriving @ certain time,
carrying bag, wearing x, etc. Police conduct
surveillance and verify info before seizing Δ.
(a) Held: Tip + corroboration is enough for
probable cause
(2) Spinelli (1969): FBI get a warrant to search Δ’s
home b/c of tip that Δs gambling in home.
(a) Held: No probable cause. Problem with the tip
—first, not sure why it should be believed, and
second, don’t know if it is credible.
(b) 2-prong test developed:
i) Basis of knowledge—Underlying
circumstances relied on by the informant in
concluding the facts are as he claims they
are
 ii) Veracity/Reliability—Underlying
circumstances in which the officer must
conclude that (a) informant was credible, or
(b) that info was reliable.
(c) Criticism: When applied to Draper, then govt
would lose b/c no basis of knowledge.
(3) Illinois v. Gates (1983): Police receive an
anonymous letter that a husband and wife will be
going to Florida to pick up drugs. Anonymous tip is
mostly correct, but on legal activities (i.e. husband to
fly down and meet wife; they stay at hotel; one of
them will drive back)
(a) Held: Probable cause Disposes of the 2-prong
test. Totality of the circumstances test.
i) Not totally outcome determinative
if police fail one prong of old Spinelli test.
ii) Here: enough corroboration of the
tip by police observation to assume that the
tip is reliable.
(b) Warrants are easier to obtain under the new
test:
i) If one spinelli prong is weak, cts can
now use discretion in issuing warrants
ii) Where tip is not satisfactory
under Spinelli, if corroborated by police, can
serve as a basis for probable cause.
(c) Ct will not make a per se rule against
anonymous tips
i) fears a chilling effect
ii) police often rely on anonymous tips
e. Std of review for probable cause in warrantless
searches will be given a de novo review upon appeal—
i.e. no deference to trial ct. Ornelas v. US

3. Warrant Requirement—Execution of a warrant

a. Presume w/ absence of warrant = unrsbl
b. Knock and announce rule:
(1) Rationale for rule:
(a) Protect damage to ppty
(b) Give notice; protect against invasions of privacy
(c) Protect unnecessary incidents of violence;
police safety
(d) Goes to the ? of rsblness
(2) US v. Banks (2003): Police @ Δ’s house. Wait
about 15-20 seconds before entering. Find drugs.
(a) USSC: 15-20 seconds is rsbl for 4A purposes.
 Will not decide based on how long it takes Δ to
answer the door, but look at the police mindset.
(b) TEST FOR RSBLNESS: TOTALITY OF THE
CIRCUMSTANCES. Flexible standard; no BLR to
consider exactly how long police must wait before
entering.
(3) Exceptions to knock and announce rule:
(a) Exigent circumstances
(b) When police believe knocking would be
dangerous or futile.
4. Exceptions to the Warrant Requirement (i.e.
Warrantless searches/seizures)
a. Exigent Circumstances (Probable cause + no time
to get warrant = exigent circumstances)
(1) Timing cases
(a) Mincey v. AZ (1978): Undercover officer trying
to get into apt. Shots fired. Police rush in. Δ
injured, police injured. 10 minutes later, homicide
detectives arrive and search for 4 days. No
warrant is ever obtained.
i) USSC: Unrsbl. Warrantless
search must end once the exigency
ends.
a) Δ still has REOP. Even though crime
was committed, Δ is still innocent until
proven guilty
b) Apt was secured by the time the
detectives come in. Only an emergency
@ time the police hear shots. Exigency
dissipates after the crime scene is
secure.
c) Will not make an exception for
murder scenes
(2) Fleeting Suspects—Entering the home of a fleeing
felon. NEED HOT PURSUIT
(3) Destruction of Evidence—Exigency is created after
the police announce their arrival and the person runs
out to destroy evidence
(a) Illinois v. MacArthur—Police accompany wife to
help her remove her stuff from the trailer. As
she’s leaving, she tells police that her husband
has dope inside. Police make husband stand
outside w/ them while the other officer goes to get
a warrant. Δ claims that he was unrsbly seized.
i) USSC: Rsbl. Use balancing test:
Individual privacy interests v. law
 enforcement interests
a) Wife gives enough info for probable
cause
b) Seizure was limited in time (here, 2
hours)
c) Police feared Δ would destroy evid
d) Jailable offense
e) Differs from Welsh v. Wisconsin:
Police enter home w/o a warrant to
get Δ’s blood alcohol. USSC: Unrsbl
b/c this is a non-jailable traffic offense
f) Is this mixing the substantive law
w/ procedure? (i.e. state legislatures
ultimately decide whether a seizure is
rsbl/unrsbl based on how they deem
offenses jailable or non-jailable.
ii) Souter concurs: If cops let Δ go back
into trailer, then they would’ve been worried
about the destruction of the evidence →
exigent circumstances. Thus, would’ve
created circumstances for police to search
w/o a warrant
iii) Stevens dissent: Balance is wrong.
Greater privacy interest when someone’s
home is involved. Also, the nature of the
offense shouldn’t really matter much.
(4) Community Caretaking—Police enter home to
make sure that ppl are ok (e.g. checking on an
elderly person or seeing a neighbor’s door ajar for
days)
b. Plain View
(1) This doctrine focuses on seizures of evidence that
are not specified on a warrant
(2) Horton v. CA (1990): Robbery. Police looking for
“proceeds of the crime” (i.e. stolen coins). Officer
finds weapons probably used in the robbery.
(a) USSC: Rsbl
(b) 3 elements to the “plain view” exception
i) Police must be in place where s/he
can lawfully view the evid (i.e. lawful
vantage point)
ii) Object must have immediately
apparent incriminating character.
iii) Police must have lawful access to
the object
(c) Rationale to the exception:
 i) Practical law enforcement practice
—too cumbersome to go back and get
another warrant if police see new evid.
(d) Inadvertence NOT REQUIRED
i) Old rule said that evid only ok if the
police come across it inadvertently. BUT…
this punished officers for trying to specify
things in the warrant that they expected or
suspected would be found.
ii) If worried by particularity, this is
covered by the warrant itself
iii) Ct looking for more of an objective
standard. Inadvertence required asking
about the subjective state of mind of each
police officer.
iv) Also, police may have mixed motives
in a search.
(3) AZ v. Hicks (1987): Police arrive @ scene of
shooting. Police see a suspicious stereo and turn
over equipment to see the serial numbers to see if it
is stolen. It is .
(a) USSC: Plain view does not apply here. Police
have lawful access to the apt and to the stereo.
But until they see the serial numbers, it is not
obvious that it is stolen
(b) Moving stereo = new search
(c) Plain view doesn’t justify moving
objects (e.g. looking though drawers)
(4) PLAIN TOUCH DOCTRINE:
(a) Elements:
i) Police lawfully there
ii) Incriminating object (from touch) is
immediately apparent
iii) Police have lawful access
(b) Minn. v. Dickerson: During weapons pat-down,
police feel something in Δ’s jacket. Go back and
find drugs. USSC: Not rsbl here b/c not obvious
that the drugs were immediately incriminating
c. Automobiles
(1) Cars have a lower REOP b/c they travel on the
open road and are subject to govt license/registration
(2) State of the law at the time of Acevedo:
(a) Warrantless search of a car ≠ 4A violation.
Cars are mobile and have exigency in
itself. Carroll v. US (1925)
(b) Ok to search car after it is seized and taken
 back to the police station. Lesser expectation of
privacy in the car b/c it is on a public roadway.
Also, exigency is determined at the time of the
seizure. Chambers v. Moroney (1970)
(c) Containers in car that the police are specifically
interested in. The fact of the container falls in the
warrantless car exception. US v. Ross
(d) US v. Chadwick (1977): Police have probable
cause that a footlocker contains drugs. They
arrest/ seize the footlocker when it is placed into a
waiting car on the curb. USSC: Unconstitutional.
If it is a closed container, full
REOP. Presumption that police need a
warrant for the container—even if they have
probable cause. Need a warrant for the closed
container—even if probable cause is present
(e) Ark v. Sanders (1979): Suitcase in the care.
Find a suitcase in the car, then search it b/c cops
have probable cause to think there are drugs
there. USSC: Unconstitutional. Container is
separate from the car, so need warrant
(f) THUS, irreconcilable load of cases—complete
automobile exception, but a full REOP in
containers
(3) CA v. Acevedo (1991): Police watch Δ leave the
house w/ a paper bag; puts bag in trunk of car.
Police follow. Stop and search car and bag. Find
drugs.
(a) USSC: Police can search car + containers w/in
it where they have probable cause to believe that
contraband or evidence is contained w/in
(b) If container is placed in car, REOP drops to
the level of the car
i) Overrules Sanders, but
not Chadwick
ii) Basic presumption: Container still
has full REOP until in the car
(c) Rationale:
i) Conflicting line of cases
ii) Container not a part of the exigent
requirements
iii) Compared to the facts
of Carroll (where police rip up the car to
search for alcohol), this is less intrusive
iv) Police could’ve seized the paper bag
and applied for a warrant
 (d) Stevens dissent: Inconsistency not resolved.
Police must still get a warrant if you have a
briefcase when walking down the street and police
have probable cause. No lesser privacy interest
b/c the briefcase is in the car, than if you were
walking down the street.
(4) CA v. Carney (1985): Police want to search a
trailer parked in a public lot where they suspect ppl
are exchanging drugs for sex. No mobility issue, and
no warrant.
(a) USSC: Search ok. Police may search these
vehicles IF (1) used on the highway or (2) vehicle
is parked in a public place (not regularly used for
residence) or (3) if readily capable of mobility or
(4) if on a public road.
(b) Ct is not deciding whether the automobile
exception applies to mobile homes used as
residences. Factors to consider in future cases:
i) Whether the vehicle is readily
mobile or on blocks
ii) Whether the vehicle is connected to
utilities
iii) Convenient access to public roads
(5) Wyoming v. Houghton (1999): Police stop car for
brake lights. Police sees a needle in passenger’s
pocket. Eventually searches passenger’s purse and
finds drugs. Δ not the driver. No warrant, but have
probable cause.
(a) USSC: Ok.
i) Historical analysis: Not sure
whether this action was lawful or not @ C/L.
ii) Then…look to balancing…
a) Ownership is NOT dispositive
b) Passengers, no less than drivers,
possess a reduced REOP w/r/t ppty
transported on public thoroughfares in
cars
c) Law enforcement is tough to have a
passenger exception. Otherwise,
passengers would just claim all items,
and police would always need a warrant
iii) Thus, passenger’s container/ppty
does not need a separate warrant
(5) US v. DiRe: Passenger’s clotyhing is NOT w/in the
warrantless search exception
(a) Distinguish: Things ON passengers v. things
 passengers HAVE
d. Arrests (i.e. seizure of the person)
(1) Difference b/t search warrant and arrest warrant
(a) Search warrant: Whether a thing will be there
@ particular time and place. Thus, circumstances
may change.
(b) Arrest warrant: Whether the person committed
the crime.
(2) US v. Watson (1976): Informant tells police Δ has
stolen a credit card. Set up where informant to give
the signal if Δ really has the card. Δ arrested. Ask Δ
if they can search the car. (Dispute whether Δ
consents). Find credit cards in the car. No warrant.
(a) USSC: Rsbl arrest here. Postal statute allows
postal inspectors to conduct a warrantless
search. Ct assumes that Congress has a rt to
decide Xnal “rsbl” --But doesn’t this
contradict Marbury v. Madison?
i) Historical rationale: C/L allowed for
warrantless arrest in felonies
a) Marshall dissent: But C/L felonies
were punishable by death. Today,
felony-misdemeanor distinction is
different.
b) Also, how much do we really want to
rely on history as dispositive?
ii) Balancing: Falls in favor of desire for
effective law enforcement. If required a
warrant for every probable cause case, law
enforcement would be less effective &
cumbersome.
iii) Rule from Watson: Warrantless
arrest is ok if there is probable cause,
and when arrest is carried out in public
(3) Payton v. NY (1980): NY statute authorizes
warrantless arrest in a home. USSC: No; 4A has
greater protection over the home.
(a) If suspect is in a home, police must have
an arrest warrant even when there is reason
to believe the suspect is inside. (Based on
greater REOP inside the house)
(b) Other rationale: want to prevent the arrest
warrant from becoming a search warrant
(4) Steagald v. US (1981): Police have warrant to look
for Lyons. Believe that Lyons is at Δ’s house. Enter
house, find cocaine, but not Lyons.
 (a) USSC: Unrsbl. 2 interests at stake: (1) Lyon’s
interest for rsbl seizures; (2) Δ’s privacy interests
(b) Rule: To arrest someone in someone else’s
home…police must get an arrest warrant to
seize the suspect, and a search warrant for
the home.
(5) Atwater v. Lago Vista: Δ and her children are not
wearing seatbelts. Misdemeanor traffic violation—
could issue citation or arrest. Police arrests Δ and
takes her in. Δ brings § 1983 suit against police.
(a) USSC: Warrantless arrest for a minor
criminal offense is rsbl under the
Constitution.
i) Majority is really just setting the
constitutional minimum
(b) History is inconclusive
(c) Then…balancing test. Balance falls in favor of
the state
i) Arrest is not extraordinarily unrsbl
ii) Not a social problem—no “parade of
horribles”
a) Criticism: What about racial profiling?
Incidents of the police using a minor
offense to search for broader evidence?
b) Also, if this is really a consideration,
would the ct change their mind if
statistics show otherwise?
iii) Tough for police to determine these
questions in the spur of the moment. Need
police to do their job w/o the threat of
litigation.
a) O’Connor dissent: But, we ask police
to use their discretion in probable cause
determinations, so they are not totally
incapable.
(d) Issue is really: Rules v. Standards
i) Δ wants to promote a presumption
that an arrest warrant is needed for
nonviolent misdemeanors
ii) Ct: No, too difficult to administrate.
Looking for BLR.
e. Searches Incident to Arrest
(1) US v. Robinson (1973): Δ stopped in car. Δ
searched outside of car. Cops find heroin in cigarette
box in pocket. Issue: What is the scope of a search
subject to arrest
 (a) USSC: Warrantless search incident to
custodial arrest (w/ probable cause) does
NOT violate 4A. Search does NOT need further
probable cause for the search. The arrest itself
establishes the authority for the search.
(b) Seriousness of the crime is not the issue when
searching incident to arrest. Also doesn’t matter
if the search is not applicable to the case itself.
(c) Reasonable search incident to arrest includes:
i) Direct Person
ii) Area in immediate control of the
suspect
a) Grabbable areas
b) Chimel v. CA (1969): Δ arrested in own
home. Cops search entire house. USSC:
This is unrsbl. If in suspect’s home, can
only search the area w/in suspect’s
immediate control.
aa) Rationale: Privacy interest in home;
Want to prevent police from always
conducting arrests @ Δ’s home.
(d) Rationale:
i) Officer Safety
ii) Preserve Evidence
(e) Justice Marshall dissents:
i) Unrsbl b/c no weapons (or no evid Δ
was concealing weapons) so no danger to
police
ii) Officer should’ve seized the
cigarette case, then got warrant.
(2) MD v. Buie (1990): Police executing arrest warrant
in home. Even if cops have no probable cause
or reasonable suspicion, they can still do
a protective sweep when arresting a suspect in
the home.
(a) Rationale: Police protection against attacks by
other people; thus, search is limited to places
where the police believe an attack may be
launched from.
(3) Car cases
(a) NY v. Belton (1981): Cops stop Δ. Find cocaine
in his jacket. Also find cocaine in the back seat of
his car.
i) USSC: Rsbl search incident to
arrest. It is a contemporaneous search
during a custodial arrest of the suspect.
 Also, police do not need independent
probable cause for the jacket.
(b) Thornton v. US (2004): Δ standing near car, but
not in it. Officer arrests Δ once he is out of the
car. Officer searches the car and finds drugs,
weapons. Δ argues that the search is
unlike Belton b/c the officer didn’t initiate contact
until Δ was out of the car.
i) USSC: Rsbl.
ii) If Δ arrested outside car, officer
safety can still be threatened. Don’t want to
penalize officer for waiting to conduct a
safer arrest.
iii) Here, no facts of Δ potential to
destroy evidence. BUT…ct wants to keep a
BLR, and not get into a case by case
analysis.
iv) Rule: Once police determine
probable cause for the arrest, it is rsbl
for officers to search the entire car for
purposes of (1) officer safety and (2)
preserve evidence
v) Scalia dissent: This is about evid
gathering, not officer safety.
(c) Difference b/t car search exception
and Belton rule:
i) Car search: Cops need probable
cause for the warrantless search for what
might be in the car
aa) If the police have independent probable
cause to search the car, they can seize the
car and search later. Exigency is
determined @ time the car is taken.
ii) Belton: NOT a car search case. This
is a contemporaneous search when lawful
arrest occurring. Thus, police don’t need to
show independent basis for searching the
car.
aa) This is powerful b/c the police don’t
need probable cause for items in the car—
they don’t even need to know what’s in the
car.
bb) Rationale: There may be weapons or b/c
evidence could be destroyed.
cc) If cops are not arresting, then need
separate and distinct probable cause of
 criminal activity to search vehicle under
Acevedo
(4) Colorado v. Bertine: Cops search car (i.e.
inventory search) after arrest and suspect is out of
car. Upon searching the car after towing it, they find
things. Δ challenges b/c no probable cause for
search and it is not contemporaneous.
(a) USSC: Inventory search is rsbl. Even though
no warrant and no probable cause, rsbl as an
ordinary administrative procedure.
(b) Rationale: Protects against things in the car
that might injure others + fraudulent claims of
lost property in the car.
(c) Important: This is NOT a search incident to
arrest.
(5) Knowles v. Iowa (1998): Δ stopped for speeding.
Cops conduct full search of car. No probable cause
for search, so not under the car search exception.
(a) USSC: No search incident to citation. Must
be a custodial arrest.
(b) Rationale: Fewer officer safety concerns + No
threat of destruction of evidence (since evid of
speeding was already retained @ time Δ was
clocked).
(c) Criticism: But, how much does this serve as a
barrier to police? Can’t they decide to arrest,
then search, then if nothing found, let the suspect
go. Plus, with the car search exception, police
may be able to claim probable cause based on the
acts of the other passengers.
(6) Whren v. US (1996): Youths in Pathfinder stopped
at a sign for longer than usual. Cop sees passenger
look down at his lap. Unmarked police car makes a
U-turn. Pathfinder makes a right w/o signaling and
takes off at high speed. Cops pull Pathfinder over
and see drugs in plain view. Δ claims traffic violation
was a pretextual reason for pulling him over- real
reason was race-based.
(a) USSC: Subjective view/motive of officers is
irrelevant.
(b) TEST: whether a rsbl officer could (not
should) have pulled Δ over for traffic
violations.
(c) Also, if you have a race-based claim, use EPC

E. Reasonable Suspicion
1. Reasonable Suspicion Defined
a. Terry v. Ohio : Officer watching Δs while on patrol.
Thinks they’re casing a building to rob it. Stops Δ, and
pats them down. Finds gun. No probable cause. No
warrant. This is a seizure (by accosting individual and
preventing him from walking away) and search → 4A
applies.
(1) Then…is it reasonable? Balance govt interest in
law enforcement/police safety v. Δ’s Xnal rts.
(a) re: Initial stopping
i) Balance in favor of officer safety; Δ
only subject to a petty indignity
(b) re: Pat down
i) Balance in favor of law enforcement
—i.e. protecting against fact that the person
may have weapons
(2) To justify a Terry stop:
(a) THIS IS NOT A SEARCH & SEIZURE. It is about
the temporary detention
i) Temporary detention is justified
by reasonable suspicion if officer can
point to specific & articulable facts
leading to suspicion that criminal
activity is afoot (e.g. observing
unusual conduct that leads him to
suspect criminal activity and/or person
ii) After the seizure, the officer
must believe & have reason to believe
(i.e. rsbl suspicion) that the person has
weapons. Then he may search outer
clothing for weapons ONLY. Also limited
to a reasonable amount of time
aa) This differs from an officer who sees
someone on the street who they think may
be a shoplifter and wants to search w/o
probable cause.
(3) Landmark case b/c
(a) First time USSC dispenses of warrant
requirements/clause
(b) First time USSC acknowledges that search and
seizure can vary in intensity and intrusiveness
(c) First time USSC acknowledges that seizures
short of arrest can occur
i) Dunaway v. NY (1979) & Kapp v.
TX (2003): Just b/c police don’t say they’re
arresting you, does NOT make it an
 automatic Terry stop. Need to look @ the
duration of seizure & other circumstances.
(4) Distinct from a search incident to arrest
(a) Arrest is a full-blown search. Terry: limited
search for weapons
(b) Arrest is the beginning of the criminal process.
Terry: Suspect free to go if no weapons found
(c) Arrest is fear of preserving evidence. Terry:
Not a justification for this type of search.
b. US v. Place (1983): Police detain Δs suitcases at
airport for 90 minutes w/o probable cause.
(1) Terry also applies to THINGS
(2) USSC: IF rsbl suspicion, then initial detention of
bags: ok.
(3) USSC: But, here detention went on too long.
(a) Because it is a closed container, suitcase has a
full REOP
(4) btw, Dog sniff ≠ search
c. Applying Terry to Cars/Homes
(1) Cars
(a) When police lawfully stop a car, they can order
the people inside out.
(b) No difference b/t drivers and passengers
(c) Can look inside car for weapons (like
a Terry pat-down of the car)
(d) Need rsbl suspicion that the car is armed and
dangerous
(2) Homes—If police executing an arrest warrant
inside house, they can do a protective sweep (i.e.
look in adjoining area of Δ’s arrest w/o rsbl suspicion)
(a) Can also search farther areas of the home IF
they have rsbl suspicion.
d. Informant Tips
(1) Alabama v. White: Informant tells police Δ leaving
@ certain time, in a specific car, at a specific
address. Police watch, follow, then arrest. Find
drugs.
(a) USSC: OK b/c look at totality of the
circumstances—here, anonymous tip,
corroboration showing reliability.
(b) This is enough to justify an INVESTIGATORY
stop of the car
(2) Florida v. JL (2000): Informant tells Police that a
black male w/ a plaid shirt at the train station has a
gun.
(a) USSC: No, this is not enough to have
 reasonable suspicion. Distinct from White.
i) No predictive facts—thus, no way to
verify info
ii) Basic & innocent, nonsuspicious
facts—i.e. no info someone in the public
wouldn’t know.
iii) No info on informant
(b) USSC refuses to create a categorical firearms
exception for Terry frisks
(c) Should still take into account factors in these
RS cases as other informant cases:
i) Veracity of information + reliability
ii) Basis of knowledge
iii) ALSO MUST HAVE INDIVIDUALIZED
SUSPICION
e. Illinois v. Wardlow (2000): 4 car drug-caravan in
Chicago—high crime area. Δ runs when seeing the
police. Police go after him (i.e.Terry stop & frisk). Cops
see a bag and pat it down and take it out. Find a gun.
(1) Pat down = ok based on officer safety
(2) Taking gun out = rsbl suspicion OR plain feel
(3) BUT…geography (i.e. being in a high crime area)
is NOT reasonable suspicion in itself
(a) Reasonable suspicion here is based on the
Δ’s unprovoked flight
(4) USSC: Ok here. Reasonable suspicion can rest on
officer’s common sense judgment and inference—in
light of this being a split-second decision.
(a) Reasonable suspicion = less than probable
cause, but more than a police hunch.
(b) BUT…factual ambiguity here over whether Δ
actually saw the police car.
f. Hiibel v. NV (2004): 5A and 4A case. Po receive
anonymous call that there was an assault by a man in a
truck. Go to the scene. Po talk to Δ in truck. Ask for ID.
Δ refuses. Violates NV statute for refusing to id
self. Issue: Not whether cops can ask questions, but
what are the consequences if you refuse?
(1) USSC: Rsbl for a state to require ppl to id self
when they’re stopped. Also, ct finds a rsbl
relationship b/t asking for person’s name and
justification for the stop.
(2) Concern: If NV permits arrest for refusing to
answer question, will this lead to a fishing
expedition?
2. Alternatives to Probable Cause and Reasonable
Suspicion: Roadblocks and Consent
a. Roadblocks
(1) US v. Martinez-Fuente: Suspicionless stop: Ok to
stop cars @ Mexican border
(A) Ct balances: intrusion into 4A minor
v. FORMIDABLE LAW ENFORCEMENT PROBLEM
(2) Michigan v. Sitz: Suspicionless stop: Ok b/c
stopping drunk drivers. IMMEDIACY of threat to take
drivers off the road
(3) Delaware v. Prouse: Suspicionless stop: Not ok.
Requiring ppl to show valid license and registration is
unxnal b/c discretionary
(a) May be ok if the roadblock was in a less
intrusive manner and did not involve
unconstrained exercise of police discretion
(4) Indianapolis v. Edmond (2000): Δ files § 1983 suit.
Checkpoint stopping cars to search for narcotics.
Stopped a predetermined # of cars—not # at police’s
discretion. Police could search farther if they see
something to provide reasonable suspicion or
probable cause. Stop cannot last more than 5
minutes.
(a) USSC: NOT OK. Police are checking for
“ordinary law enforcement purpose”. Violates
4A. Need seriousness of threat to justify
suspicion-less stops.
i) No particularized goals
aa) This differs from Whren, where cops can
identify a programmatic purpose. There, no
subjective intent of the police.
Also, Whren had a articulable suspicion
before the stop
bb) Here, cannot distinguish the purpose
here from general crime control.
ii) No clear and immediate threat
(b) BUT…ct concedes that sometimes
suspicionless searches will be justified in exigent
circumstances, e.g.:
i) Serial killer on the loose
ii) Hit & Run
iii) Terror attack
b. Consent—i.e. no reasonable suspicion or probable
cause
(1) Scneckloth v. Bustamonte (1973): Valid traffic
stop. Cops ask if he could search the car. Driver
says ok. Finds stolen checks. Bustamonte,
 passenger, objects to search @ trial. Issue: Cops
didn’t tell the driver he had a right to refuse consent.
(a) Ct: VOLUNTARINESS TEST based on
the totality of the circumstances.
i) Knowledge of the right to refuse is
one factor, but is NOT required as a
prerequisite.
ii) This is NOT considered a waiver of
Xnal rights. Ct: Waiver is about
fundamental fairness of trial (e.g. waiving
rts to a jury trial). Here, police
investigation. Impractical to recognize this
formality—otherwise, everyone would just
refuse.
aa) Point: Consent ≠ waiver in a formal
criminal trial
(2) 3d Party Consent—Who can consent & what’s the
scope?
(a) WHO
i) → When the person asked & the
suspect have COMMON AUTHORITY over
an area justifies search (e.g. dorm room)
ii) Illinois v. Rodriguez (1990): Δ’s
girlfriend tells cops she’s been assaulted.
Tells them that Δ is at his apartment and
uses her key to let them in. But, GF didn’t
really live in that apt, so didn’t have
authority over Δ’s apt at all.
aa) USSC: Rsblness ≠ correctness. All cops
need is a rsbl belief that the person had
authority to give consent over the area—
even if that person doesn’t actually have
the authority to give consent.
bb) Apparent authority is ok.
(b) SCOPE
i) Florida v. Jimeno (1991): Cops stop
car in valid stop. Asks to search car. Δ says
ok. Officer finds cocaine in brown paper bag
on floor. Issue: Does the scope of searching
the car extend to the paper bag?
aa) USSC: Police can look in bag IF it
is objectively rsbl to believe the
scope of the suspect’s consent
permittedhim to open the paper bag
ii) Ohio v. Robinette (1996): Officer
conducts valid traffic stop. Gives Δ a
 warning. Asks if Δ minds looking in the car.
Officer looks & searches. Finds drugs. Δ
argues that he should’ve been told that he
was free to leave, so this consent was not
voluntary.
aa) USSC: This factor is not itself
dispositive of whether the consent was
voluntary. Still must look @ the totality
of the circumstances.

3. Non-Police Acts
a. Vernonia School Dist. v. Acton (1995): Public school
(i.e. govt) officials randomly (i.e. no individualized
suspicion) select student athletes for drug test. Need
consent of parents. Acton brings suit b/c he and
parents refuse to sign consent form to drug tests.
(1) Initial collection of urine = seizure
(2) Finding out the results = search
(3) USSC: This is ok based on the special needs
(a) NJ v. TLO: Principal suspects TLO of smoking.
Searches her purse w/ no probable cause or
warrant or rsbl suspicion. USSC: This is a rsbl
search.
i) Justice Blackmun: Suspicionless
search is ok here b/c of the special
circumstances beyond the normal need
for law enforcement that make the
warrant and probable cause
requirement are impracticable.
(4) Ct uses a 3-step analysis
(a) Nature of the privacy interest?
i) Students/minors = lower REOP than
ordinary adults
ii) Program targets student athletes—
have even lower REOP
aa) Scalia: sharing a locker room +
accustomed to heavy regulation
(b) Character of the intrusion?
i) Urinalysis = only gives a yes/no
answer for drugs.
ii) Limited nature of test—is not
genetic testing or pregnancy testing
(c) Nature of the govt interest?
i) Compelling
ii) Drugs = serious problem
iii) School also responsible for student
 well-being
b. Other Suspicionless Drug Tests that were upheld on
the special needs (i.e. beyond the need for normal law
enforcement) doctrine. Also, keep in mind this isn’t the
police conducting the search.
(1) Ct always balances the govt interest (usually
weighty) v. privacy interest (usually slight intrusion)
(2) Skinner: Ok to subject RR Ees to urine and blood
after a RR accident
(3) Von Robb: Ok to have drug testing for U.S.
Customs Ees
c. Limiting the special needs doctrine—
(1) Remember, usually need individualized suspicion.
Special needs recognizes suspicion searches and
seizures
(2) Chandler v. Miller: Georgia statute required ppl
running for office to give a urine sample.
(a) USSC: If a special need, the need must be
SUBSTANTIAL. Here, only a symbolic interest. No
demonstration of a systematic drug problem.
(3) Ferguson v. Charleston (2001): Hospital workers
take urinalysis of pregnant mothers suspected of
being on crack. Police get info..
(a) USSC: No special needs, this is different from
Acton/Skinner/VonRobb, where the purpose was
to address the drug problem. Here, central part of
the policy is to use law enforcement.
i) Even though the hospital claims it
really wants to get ppl off of drugs,
its immediate purpose is to generate
evidence to arrest the mother (i.e. law
enforcement purpose).
ii) Really, this search is ordinary law
enforcement.
iii) Thus, search is unreasonable.
(b) To examine the real purpose of the program…
look @ the “programmatic purpose”—not the
subjective intent of a specific officer (see Whren).
d. Note on increasing use of the private police. They fall
outside of the 4A/5A/6A analysis + Miranda also does
not apply.
(1) But what about “moonlighting” cops? Cts are
split.

Summary: Exceptions to the Warrant Requirement

· Exigent Circumstances
 · Searches Incident to Arrest
· Car Searches
· Inventory Searches
· Plain View
· Plain touch
· Consent
· Terry stops & frisks (but limited)
· Special needs

F. Substantive Law
1. While law enforcement cannot alter the Probable Cause
requirement, they CAN alter the substantive law.
a. e.g. Lower the speed limit so that cops can pull over
more people for traffic violations, then can perform
searches.
2. Welsh v. Wisconsin: Police called by a truck driver who
sees drunk driver. Δ suspected of DUI. Police come into
his bedroom and arrest him as he is sleeping naked. No
warrant, but exigent circumstances may excuse the
warrant requirement.
a. USSC: No exigency here. In Wisconsin, DUI is not a
crime, but a civil fine (for a 1st time offender). Thus,
the character of the crime defines whether Xnally,
police can enter.
(1) No hot pursuit here b/c police are not chasing
Welsh
(2) No public safety concern b/c Welsh is at home &
not posing a threat to anyone
(3) No concern over the destruction of evidence by
Welsh’s blood alcohol level going down.
(a) Basically, it is not important enough here b/c
this is a minor offense.
(b) Plus this is entering a home…”application of the
exigent circumstances exception in the context of
a home entry should rarely be sanctioned when
there is probable cause to believe that only a
minor offense…has been committed.”
b. Determining if there is exigency, must consider
the seriousness of the underlying offense.
3. Criticism of this rule:
a. Administration—variation in geography as travel
state to state
b. Changing social/historical context
c. Depends entirely on the state’s ability to define
substantive law. Legislatures define the gravity of the
underlying offense—which in turn determines whether
 exigency is present.
G. Limits on the Exclusionary Rule
1. Recall: Mapp v. Ohio: Applies the exclusionary rule to
the states. Justified rule b/c:
a. Procedural uniformity
b. Integrity of the criminal justice system
c. Deterring illegal police behavior (really the only
rationale in modern jurisprudence)
2. Good Faith
a. US v. Leon: Anonymous tip leads to the arrest of Δ.
Magistrate issued the warrant, but it was later found to
lack probable cause. Police execute search while
relying on the warrant.
(1) USSC: Exclusionary rule will not apply when
the police act upon objective good faith and a
warrant approved by a neutral magistrate.
Rationale:
(a) Wrong begins at the time of the illegal search
or seizure. No further wrong after the s & s is
over.
i) Issue is NOT whether Leon’s 4A rts
violated b/c we assume they already are.
(b) Exclusionary rule does not deter magistrate or
judiciary misbehavior. Rule is to deter illegal
police behavior. Here, no evidence of police
illegality.
(2) When the “good faith” rule will NOT APPLY:
(a) When police are lying or have a “reckless
disregard for the truth” in obtaining warrant
(b) When Magistrate fails to be neutral
(c) “Bare bones” supporting affidavit
i) Where impossible for the
magistrate to have found probable cause
ii) Where no rsbl person could find
probable cause
(d) Warrant is “so facially deficient” that no rsbl
officer would rely on it.
(3) Brennan dissent: 4A is a personal right against
govt infringing on Xnal rts—including judiciary.
Majority is suggesting that the 4A exists as against
law enforcement.
b. USSC would NOT EXTEND LEON TO WARRANTLESS
SEARCHES. But, will extend the reasoning.
(1) Illinois v. Kroll: Police relying on a state statute
that was later found unxnal.
(a) Ct: OK b/c good faith reliance on the law by the
 police
(2) AZ v. Evans: Po stops Evans, looks him up,
mistakenly shows a warrant for his arrest.
(a) Ct: OK b/c good faith reliance by the police
(3) Both of these holdings are relying on police
deterrence as the primary justification for the
exclusionary rule
3. Standing—Who may invoke the exclusionary rule
a. Evolution of the law:
(1) Jones v. US: Jones sleeping @ apt of friend (i.e.
overnight guest)
(a) Ct: Jones has standing b/c of “target theory”.
Jones is legitimately on the premises during the
search + Jones is the “target” of the search
(b) Here: just looking at whether Δ is legitimately
on the premises.
(c) later OVERRULED
(2) Rakas v. illinois (1978): Δs are passengers in car—
not the owners. Cops legitimately stop the car.
Police find guns. Issue: whether the s&s violated the
4A rts of the criminal Δ who seeks to exclude
evidence obtained during s&s.
(a) Test: REOP—Can anyone claim a REOP?
(3) Minn v. Olson: Δ, overnight guest, has REOP for
that night b/c it is your home for that night. Thus, Δ
has standing of search of a place not his home.
b. Minn v. Carter (1998): Anonymous tip that basement
apt has cocaine. Officer looks through the blind and
sees cocaine. Gets a search warrant. Δs get into the
car. [Review: police can stop the car based on rsbl
suspicion. Police can order Δs out of the car based
on Terry limited search for weapons]. Δs were in
Thompson, the apt lessee’s apt. She allowed Δs to bag
coke there in exchange for some. Δs try to exclude the
evidence
(1) USSC: No b/c Δs do not have REOP (Rakas) & are
not overnight guests (Olson). Rationale:
(a) Purely commercial nature of the transaction
(b) Short time in Thompson’s apt (vs. an overnight
stay)
(c) Hadn’t known Thompson beforehand
(2) Scalia/Thomas concur w/ result, but object to
rationale:
(a) Text: Can only be secure in own home.
i) Overnight guests are allowed b/c it
is your home for the night
 ii) We should stay w/in the text w/o
going outside
(3) Breyer: concurs w/ result
(a) This is not a search. Look @ circumstances
i) Cops not inside the curtilage
ii) Says that ppl in basement apts that
face street, need to understand that a
"member of the public simply direct his
gaze downward.”
(4) Kennedy concurs: Some social guests may be
protected, even if they are not overnight, but here,
Δs more like business guests.
(5) Ginsburg dissent: Δs not a “mere social guest.”
When you are invited in to do a common endeavor,
take the host’s REOP.
i) Does not mean that the pizza delivery
man has standing
(6) Vote counting, strange result
i) Kennedy + Breyer (concurring) +
Ginsberg/Stevens/Souter (dissent) agreed that
“social guests” (not necessarily overnight
guests) have a legitimate EOP
ii) Suggests that if merely a social guest,
then may have standing to challenge the
holding.
iii) Here, Δs are not social guests b/c
hadn’t really known Thompson outside of this
context + only there for 2.5 hours, so Δs lose.
c. Rawlings v. KY: Δ had drugs. Put drugs in friend’s
purse. Δ argues that cops illegally searched purse. Find
drugs. Δ standing?
(1) USSC: No. Δ cannot claim REOP in purse that
does not belong to him.
(2) Ownership is one factor, but notions of ppty law
do NOT control 4A protections anymore
(3) Rule: If no REOP in area searched, then no
standing.
4. Fruit of the Poisonous Tree
a. General rule: Exclusionary rule applies to direct
evidence and derivative evidence.
b. Hypos:
(1) Cops search X’s home illegally. Evid: Address to
Y’s home. Then cops search Y’s home illegally. Evid:
Incriminating X & Y.
(a) Y has standing b/c has REOP in own home
(b) X has standing b/c the evid only known b/c of a
 search of X’s home, which X has REOP
(2) Cops legally search X’s home. Find Y’s address.
Search Y’s home illegally. Find incriminating
evidence implicating X & Y.
(a) Y has standing
(b) X cannot challenge the evid @ Y’s house b/c no
REOP in Y’s house.
c. Wong Sun v. US (1963): HW, informant, is arrested
for heroin possession—says he got it from BT. Go to
BT’s laundrymat, BT eventually makes a statement
implicated Yee. Cops arrest Yee, and find heroin—which
is tied to BT and WS. Yee makes a statement
implicating WS. A few days after release, WS makes a
written unsigned statement incriminating
himself. Issue: Arrest of BT was illegal b/c cops did not
have probable cause for arrest.
(1) Exclusionary rule will NOT apply:
(a) Attenuation—i.e. if too much has happened
b/t the initial illegality and derivative evid found
later. Factors:
i) Time passing
ii) Space—i.e. multiple actions by Δ
and police, intervening events
iii) How flagrant the initial illegality
(2) re: BT’s statement
(a) Excludable as direct evidence of illegality
(3) re: Heroin found
(a) Test [for attenuation exception]: Whether
evid found as exploiting an illegality OR
found “by means sufficiently distinguishable
to be purged of primary taint.
i) Heroin suppressed as to BT b/c
came by exploiting an initial illegality
(4) re: WS statement
(a) Admitted b/c made under free will. WS was
released and then returned to the police station
on his own to make the confession
i) This is NOT the fruit of the
poisonous tree b/c the chain of causation
broken.
d. Murray v. US (1988): Cops surveilling Δ and co-
conspirators @ Boston warehouse. (1) Seize the truck
and find drugs. (2) Force entry to warehouse w/o
warrant and find packages of weed. Leave, keeping
warehouse under surveillance. (3) Get warrant, not
mentioning the earlier entry. (4) Enter warehouse and
 seize drugs. Δs trying to suppress weed evid b/c the
warrant was tainted by the initial search.
(1) USSC: Admitted based on the independent
source doctrine—i.e. the police action leading to
this evidence could have been based on permissible
conduct.
(2) Must be an independent, legal basis for
justifying the police action to get the evidence
—i.e. the evidence did not come from the tainted
tree, but instead was of a different tree w/ an
untainted source, leading to the same derivative
evidence.
(a) Govt must prove that they would’ve gotten the
warrant even if they hadn’t entered the
warehouse illegally (i.e. there was probable cause
absent entering the warehouse)
i) Basically, must show that illegal
entry was irrelevant to getting the warrant
e. Nix v. US: Δ in police car. Cops not supposed to talk
to Δ, but police elicit illegal confession that Nix killed a
girl. Δ tells police where the body is. Issue: location of
the body is evidence derived from an illegal confession.
(1) USSC: Evid is admitted under the inevitable
discovery doctrine.
(a) Assumes that b/c there was a search team
looking for the body, they would’ve discovered
the body if left alone
H. Outside Criminal Litigation—Alternatives to the
exclusionary rule
a. DAMAGES: Anderson v. Creighton (1987): Police
looking for suspect in π’s home. Warrantless search. Find
nothing. π’s file § 1983 suit, alleging a 4A violation. For π’s
to prevail, need to overcome cop’s qualified immunity.
(1) Test for qualified immunity: Whether a rsbl
officer could have believed that the action (here,
warrantless search) to be lawful, in light of clearly
established law and information that the
searching officer possessed (objective standard)
(a) NOT LOOKING INTO POLICE’S SUBJECTIVE STATE
OF MIND.
(b) This is NOT in hindsight, but looking @ whether the
illegality of the police conduct was clearly
established @ time of the action
(2) Here: Problem w/ the warrant, but no evid of police
misconduct—even though there was a Xnal violation.
Can’t deter police in situations like this
 (a) Also won’t punish police where the law is muddled.
(3) Stevens dissent: Gives police two layers of immunity
—i.e. police can (1) make a xnal mistake, but π still
must show (2) officer violated a clearly established
rule.
(a) Basically, the police can violate the 4A, but if the
rule is not clearly established, then they get qualified
immunity.
(4) Limited remedy
(a) Usually only for severe interactions—e.g.
beatings, wrongful deaths. Most minor Xnal
violations won’t win damages
(b) Tough to get a desirable π AND an atty to take the
case.
b. INJUNCTIVE RELIEF: LA v. Lyons (1983): π stopped for
traffic violation. Police administer a chokehold, rendering
him unconscious and damaging his larynx. Was a dept-
wide police. 16 people had died b/c of this chokehold. π
asked for injunctive relief for LAPD to stop using this.
(1) First, Lyons must pass the “case or controversy”
requirement—i.e. this must be an issue that happened
to YOU.
(a) Also π must prove that he himself would be
injured inth e future by this police policy in
order ot have standing.
(2) Second, Lyons must show: (1) All LAPD officers choke
all people every time they stop people, or (2) the city
tells them to use this chokehold everytime
(3) USSC: Mere speculation that π would be stopped and
choked again. π is trying to correct a future wrong act
against him and all other people.
(a) Std: π must show that this is a broad activity that
the entire dept is engaged in—i.e. that police will
choke all citizens who are stopped or arrested
regardless of their conduct.
c. CRIMINAL PROSECUTION: e.g. Rodney King case:
Police prosecuted in state court and acquitted. Tried in
federal court, and two officers were acquitted.
(1) These are rare b/c of political hurdles
d. POLITICAL OR ADMINISTRATIVE REMEDIES: e.g.
citizen review boards who review police misconduct
claims.
(1) But unclear how much power these bodies have—
e.g. are they able to enforce discipline or just make
recommendations?
V. The Fifth Amendment: “…nor shall any person…be
compelled in any criminal case to be a witness against himself.”
A. Compelled Testimonial Incrimination
1. Testimony (i.e. in-court)
a. Remember: Schmerber: Blood alcohol
level ≠ testimony. Action of the blood coming from his
arm is a non-communicable act. Testimony would be
the lab analysis.
b. If not “testimony,” then 5A does not apply
2. Compulsion
a. McKune v. Lile (2002): Kansas sex abuse treatment.
Prisoners must fill out a form which admits to prior
crime—even if they weren’t prosecuted for it. Prisoners
not given immunity & are warned that info may be used
in future prosecutions. If they refuse, then prison
privileges are revoked, and they are moved to a high
security facility. Lile refuses to participate b/c this
choice violates his 5A privilege against self-
incrimination.
(1) State argued that the prison admitting to prior
offenses and accepting the consequences of their
actions was central to the goal of rehabilitation. Also
wanted to reserve power to prosecute particularly
heinous or egregious crimes.
(2) Plurality opinion: This is testimonial, but NOT
COMPULSION
(a) Prisoners’ DP claims must be about “atypical
hardship”—i.e. more than just normal prisoner
hardship
(b) Lile’s consequences are rsbly tied to the state’s
goals
(c) This is really about reduction of benefits (i.e. no
tv, less canteen provisions, etc)
(d) 5A does not speak every time you need to
make a tough choice
i) Here, this is a difficult decision, but
not compulsion. Every hard choice does
not implicate 5A.
(3) O’Connor: Concurs (swing vote)
(a) Lile loses b/c 5A std is like the atypical
hardship std, but is not sure that the burden to
invoke the 5A is that big.
(4) Stevens dissent: Lile is being punished b/c the
revoking the privileges is the same as if Lile had
committed assault or induced a riot. It took him 6
years to get these privileges, and he cannot regain
 them.
3. Incrimination
a. Hiibel v. NV (2004): Officer received call of assault.
Shows up, finds truck w/ Δ and woman. (is really
a terry stop). Officer asks Δ for name, but he refuses.
NV statute requires suspects to provide their name (no
documentation) during a terry stop. Δ arrested for
refusal. Δ argues that disclosing name is incriminating
per the 5A.
(1) USSC: No. Disclosure of name did not present rsbl
danger of incrimination.
(a) In the abstract, names are not private.
(b) Narrow holding. Ct is open ot the idea that
compelled disclosure would trigger the chain of
evid that would be totally incriminating.
(2) Present concern w/ the war on terrorism: Need too
give police the opportunity to question suspects and
get their identity.
B. Limits on the Privilege
1. CA v. Byers (1971): Byers involved in accident. CA
statute requires driver to give name and address.
a. USSC (plurality): The reason for the statue is
regulatory—i.e. get insurance info and compensate for
damages, NOT for criminal investigation. This targets
drivers in general.
(1) May have compulsion
(2) No substantial risk of self-incrimination
(3) Not really testimony b/c non-communicative
(a) Disclosure of name and address is an
essentially neutral act
i) Like requiring a person in custody
to stand and walk
ii) Requiring person in custody to
speak words
iii) Requiring samples of
handwriting/fingerprints/blood
b. Harlan-concurring: If recognize the 5A privilege here,
then govt can’t function and respond to societal needs
(via criminal sanctions and other regulatory devices)
(1) Really saying that we really don’t want to apply
the 5A to all regulatory laws.
2. SD v. Neville (1983): SD statute requires telling jury Δ
refuses to submit to a blood alcohol test (unlike CA who
compels Δ to take the test)
a. USSC: No compulsion b/c state is not forcing him to
refuse, but forcing him to choose b/t two unpleasant
 choices—comply or accept consequences.
C. Police Interrogation
1. Police confessions are essential to law enforcement’s
ability to solve crimes. But concern over:
a. Coercion
b. Reliability—i.e. ppl will confess to things they didn’t
do.
2. Miranda
a. Road to Miranda
(1) Voluntariness cases
(a) Bram v. US (1897): Murder on the ship. Bram
interrogated by the master of the ship. Brought to
land. B stripped of his clothing and interrogated
by detective. Detective tells him there was an
eyewitness, and Bram replies, “but he could’ve
have seen me from there”—something that he
thinks is exculpatory, but really incriminates him.
Bram claims that his statement was involuntary.
i) Ct adopts a totality of the
circumstances test to see whether Bram’s
statement was voluntary.
ii) Here, yes, Bram’s 5A rts violated.
Statement suppressed.
iii) At the time, the 5A was not
incorporated. It is now.
(b) Brown v. Mississippi (1936): Δ actually beaten
to get confession. Δs argue 14A DP rts violated.
Cts looks @ whether the confession was voluntary
based on the totality of the circumstances.
i) Rule: Coerced confession was not
admissible at trial.
(c) To show involuntariness, must show
i) Police/law enforcement subjected Δ
to coercive conduct
ii) Conduct was enough to overcome
the will of the Δ
aa) Based on totality of the circumstances
factors:
- confession obtained by
threat/actual violence
- psychological pressure
- length of time
- interrogation meant to break
suspect down psychologically
- physical conditions of
interrogations
 - promises of leniency—i.e. inferring
that Δ better off if he confessed
- deception (although this is not a
per se circumstance of illegality or
involuntariness)
bb) Criticism: This is all in hindsight. No
predictive quality of the test. Subjective
std of whether the Δ’s will was overcome
is tough to analyze.
(2) 6A rt to counsel violated
(a) Massiah v. US (1964): Δ indicted & released on
bail. Friend arranged mtg w/ Δ. Car is bugged.
Govt records incriminating statements by Δ.
Here, formal adversarial proceedings had begun
and Δ had invoked his right to counsel.
i) USSC: Resolves case on 6A basis.
Evid of the incriminating words
was deliberately elicited from Δ after he had
been indicted and in the absence of counsel.
aa) Rt to counsel had already attached.
ii) White dissent: 5A is concerned
about the coercive atmosphere and whether
a statement is made free & voluntarily.
Here, Δ is talking to friend only as a friend.
aa) Strange result b/c if formal adversarial
proceedings not started and Δ talks to a
friend, this is not a search b/c no REOP in
a false friend. Same logic here since no
coercive atmosphere.
(b) Escobedo v. Illinois: Δ arrested, but not charged
yet. Asked for atty, but made incriminating
statements w/o atty.
i) Ct does not want to expand 6A
rights to pre-indictment
b. Miranda v. AZ : Consolidated cases in which
suspects are questioned and confess. USSC delivers a
precise ruling: Prosecution may not use statements
stemming from custodial interrogations of a Δ
unless it demonstrates the use of procedural
safeguards to secure the privilege against self-
incrimination.
(1) The Warning:
(a) Rt to remain silent
(b) Any statement made can and will be used
against you
(c) Rt to an Atty
 (d) → Δ may waive these rights. Must be
voluntarily, knowingly and intelligently. “Heavy
burden” on govt to show the waiver.
(2) The Consequences
(a) @ any point, suspect can remain silent and no
more questions will be asked
(b) No questioning if individual requests an atty at
any time.
(3) Rationale:
(a) Police fear coercive atmosphere + Suspects
confessing to crimes he didn’t do.
(b) Look @ police tactics (e.g. good cop/bad cop
routine + psychological techniques). These are
not outrageous enough to give rise to a DP
violation
(c) Rt to remain silent—have this apply to
everyone (i.e. level the playing field).
(d) Anything said might/can be used against you—
Reminder to the suspect that the police’s
interests ≠ Δ’s interests
(e) Rt to counsel—Prevent police motivated by a
coercive atmosphere
i) IN THIS CONTEXT, THIS RT IS
DERIVED FROM 5A—thus, it applies before
formal adversarial proceedings
(4) Majority: Even though the language of the 5A
says, “in a criminal proceeding,” we’ve already
recognized that 5A applies to pretrial interrogations.
(5) Difference b/t incriminating and exculpatory
statements
(a) Both apply here
(b) Exculpatory statements can still be used
against you (i.e. impeachment)
(6) Requirements:
(a) Need compulsion, testimony, incrimination
before even arriving at the Miranda inquiry
(b) Applies during custodial interrogation—i.e.
@ police station or if Δ otherwise deprived of
freedom of action in any significant way.
i) Does NOT apply when Δ comes into
the station on own and confesses.
(7) Nature of warnings: Congress or the states can
develop their own stds. This is only the minimum
needed to safeguard 5A privilege. Open to
alternatives.
(8) White dissent: Purpose of govt is to provide
 security for people and their ppty. This ruling is
returning criminals to the streets by throwing out
good confessions.
c. Post-Miranda
(1) Congress intends to return to voluntariness std.
Two years after Miranda, passes 18 USC § 3501,
which makes confessions admissible if “voluntarily
given.”
(2) Dickerson v. US (2000): Δ confesses
w/o Miranda warnings. Wants statements excluded.
4th Cir. allows statements in under § 3501 if Δ can’t
show that the statement was involuntarily made.
(a) USSC: No. Miranda is a Xnal ruling—not a
procedural ruling. Know this b/c we’ve already
applied Miranda to the state courts (would not
apply procedure to state cts)
i) Congress has power to prescribe
rules of procedure
(b) Congress intended to overrule Miranda with §
3501.
(c) re: Alternatives. Yes, still open to this. But the
solution here, i.e. a DP voluntariness std, is not
enough
(d) Scalia dissent: Majority is basically saying that
the failure to give Miranda warnings IS a xnal
violation w/o being explicit. But, ct can’t say that
b/c it already contradicted itself in prior cases
i) Miranda is a bad rule
ii) Majority is being hostile to
confessions. 5A only
condemns compelled confessions, not all
confessions, so warnings not really always
required.
iii) Need to come up with another basis
for upholding Miranda.
3. Scope of Miranda
a. Interrogation
(1) RI v. Innis (1980): Police pick up suspect for
taxicab drivers’ deaths. Arrest Δ, put him in car.
Given Miranda warnings 2x. Invokes Miranda rt to
counsel. Police have a conversation in front of the
squad car, talking about the thought of finding the
gun @ school for handicapped kids. Δ then admits
that he knows where the gun is.
(a) Miranda applies to both direct questioning and
the functional equivalent.
 (b) To see whether it is an “interrogation,”
look at whether there are
i) express questioning by the
police, or
ii) words/actions on the part of the
police that the police should know are
reasonably likely to elicit an
incriminating response from the
suspect.
→ FROM THE PERSPECTIVE OF THE SUSPECT
to see whether words/acts are likely to elicit
a response.
(c) Here: No interrogation. No way officers should
have known this would elicit the response OR that
Δ was susceptible to respond.
(d) Scalia dissent: Innis is not being tortured, but
voluntarily offered information
(e) Stevens dissent: Majority saying that just b/c it
doesn’t sound like a question, it is not a question.
But, the statement here is functioning like a ?, so
it should be ? for Miranda purposes.
(2) Penn v. Muniz (1990): Δ arrested for DUI. Is read
Miranda rights after arriving at the police station—
after Δ has already made statements. Before
Miranda warning, Δ is given drunk driving tests,
asked name/address/height (“7 questions”), date of
his 6th birthday, and statements made during a
breathalizer test.
(a) re: Slurring speech during the 7 questions.
This is only looking @ the physical manner of the
speech/delivery—not compelling a testimonial
response for purposes of the privilege. Admitted.
i) Also, answers probably admissible
under the routine booking exception.
(b) re: 6 birthday question. This conveys info +
facts. State is concerned w/ the answer, not the
delivery. Actual content of answer = testimony.
i) This implicates the “cruel trilemma”
: tell the truth (and incriminate self), falsity
(lie and purjure self), or silence (also
incriminates self).
ii) Rehnquist dissents: No distinction
b/t evid from the body or voice—really is
physically response b/c we are seeing if the
brain is being used in a physical way. Cruel
trilemma doesn’t apply here just b/c there is
 potential for a bad answer. Is like an eye
test.
(c) re: Statements made during sobriety tests. Not
interrogation b/c officer only talking to Δ to give
him directions. These are totally voluntary
statements, and admitted.
(d) re: Statements during the breathalizer test.
Police were giving directions and maybe some ?,
but were not elicited in response to custodial
interrogation. Admitted.
(3) HYPO: Δ arrested and brought to the station.
Suspect asks, “Why is this happening?” Police
answer, “You shouldn’t be growing dope like that.”
Suspect confesses. Invoke Miranda?
(a) No b/c not interrogation. Cop is merely
responding.
(4) HYPO: S arrested for murder. Given Miranda rts
and requests counsel. S asks, “What can a guy get
for murder?” Police say, “30 years—only if you’re a
mass murderer.” S confesses.
(a) Not interrogation. Ct will look at the asking
and answering. Officer is only responding to S’s
questions.
b. Custody
(1) Custody (objective std): Would a rsbl person
in Δ’s sitch believed himself deprived of
freedom?
(a) Traffic stops ≠ custody, for Miranda purposes
(usually)
(2) Minnesota v. Murphy: Δ must check in w/
probation program on regular basis. Probation
officer finds out Δ admitted to murder and rape.
Calls for mtg w/ Δ and asks him about it. Δ admits to
it. No Miranda warning, but Δ asked to see an atty in
the mtg.
(a) USSC: Miranda does not apply b/c no custodial
interrogation
i) Even though the 5A text literally
applies to courtroom proceedings, it is
broadly applied to any context where the
statement may be used against you.
ii) Thus, probationer still has 5A
privilege rts here.
iii) Δ should have invoked 5A rights—
even though Miranda wasn’t read to him.
(b) Not custody b/c not sending the message that Δ
 has no choice but to submit to officers’ will and
confess. Instead, this was at a mutually
convenient time.
i) Request for atty doesn’t matter b/c
not in custody
(c) Ct finds no coercive setting
i) Doesn’t matter that Δ had no idea
he’d be asked these questions
ii) Doesn’t matter that probation
officer had planned to ask these questions.
Just b/c focus is on Δ doesn’t make Miranda
applicable.
iii) Doesn’t matter that there wasn’t
anyone else present to ensure against
abuse. Ct finds that probation meetings are
informal and that interrogations are w/o
outside observation anyway.
(3) Illinois v. Perkins (1990): Police find out via other
prisoner that Perkins committed murder. Police set
up a situation where cellmate and undercover agent
go into the cell w/ Perkins. Undercover agent asks
Perkins if he has ever murdered. Perkins says
yes. Issue: Perkins is in custody, is interrogated, and
no Miranda warnings given.
(a) USSC: Admissible. Perkins does not think that
he is in an official interrogations
i) Goal of Miranda was to preserve
the 5A privilege in police-dominated
atmosphere during interrogation. Concern
not present here b/c no police-dominated
atmosphere.
ii) Coercion = police present + official
interrogation
(b) What about the fact that Perkins was deceived?
i) Ct: Miranda does not forbid “mere
strategic deception” by taking advantage of
a suspect’s misplaced trust
ii) Ploys to mislead Perkins or lull him
into a false sense of security do not rise to
the level of compulsion or coercion w/in
Miranda’s concerns.
iii) Distinction b/t force (protected) and
fraud (not)
(c) Practical result: If this case is decided the other
way, then no more undercover policing.
Undercover work is essential to law enforcement.
 (d) Brennan concurs: Agrees that Miranda doesn’t
apply, but thinks this should’ve been challenged
as DP argument—i.e. this was coercive conduct
that overcame Perkins’ will
(e) Marshall dissent: Custodial interrogation here.
Miranda covers any tactic meant to get a
statement out of a suspect. Should not
distinguish b/t coercion and deception.
i) Also doesn’t matter that P was
boasting b/c it is a survival skill in harsh
prison atmosphere.
4. Other Miranda issues
a. Adequacy of Warnings
(1) Duckworth v. Egan: Police giving Miranda
warnings. Tell Δ he will get an atty “if and when” he
goes to court.
(a) USSC: Ok. Warning is basically the same.
Adequate and sufficient.
(b) Simple mistakes, slight vagueness is ok
b. Waiver
(1) Waiver must be voluntarily, knowingly,
intelligently
(a) Voluntarily = no coercion, intimidation,
deception
(b) Knowingly & intelligently = S basically knows
what he is giving up.
i) Knows the nature of the right being
given up
ii) Knows the consequences of the
decision to abandon it
(2) Moran v. Burbine (1986): Δ given warnings and
waived them 3x. Δ didn’t know that his atty was
trying to get a hold of him.
(a) USSC: Look @ totality of the
circumstances. Here, no evid of coercion and no
evid that Δ didn’t know of the consequences of
giving up the right. Δ knew of the two rights—
silence and request atty.
(b) Fact of the atty trying to reach him is
irrelevant.
(c) Police’s subjective intent in deceiving Δ is
irrelevant
i) But ct concedes that there may be
a later case w/ egregious or severe police
conduct which Xnally violates the rights
(d) Burbine’s alternate argument: DP violation
 i) Remember: Miranda gives rts in a
custodial interrogation & protecting police
atmosphere. DP involves involuntary
confessions
ii) USSC: No. DP must “shock the
conscience” of a civilized society. Here, not
at that level.
c. Invocation
(1) Michigan v. Mosley (1975): Δ arrested for
robbery. Given Miranda warnings. Invokes rt to
silence. Later, police come and talk to Δ about an
unrelated homicide. Give him Miranda warnings,
then talk to him about the homicide.
(a) USSC: OK. Police did not violate Δ’s rt to
silence.
i) Inquiry: Did police “scrupiously
honor” Δ’s rt to silence? If yes, then may
question Δ later on.
ii) Rt to silence doesn’t cut off
questioning forever.
(b) Use totality of the circumstances test to see
whether police are honoring Δ’s rt to silence.
Factors:
i) If lengthy amount of time passes
ii) Asking about a different crime (this
is NOT per se allowing another line of
questioning, but only one factor.
(2) Edwards v. AZ (1981): Δ arrested. Read Miranda
rights. Initially waives them, and tells police he
wants to make a deal. Δ then invokes his right to an
atty. Police then play a tape of accomplice
confessing.
(a) USSC: Δ not subject to further
investigation until counsel if present
UNLESS the accused himself initiates
conversation. Thus, once this right is invoked, a
wall comes down b/t the Δ and the police.
i) Is much harsher BLR than invoking
the right to silence
ii) Tape of the accomplice confessing =
interrogation
(b) Δ must unambiguously invoke the right to
counsel
i) This cannot be a subjective/secret
desire. Δ must say exactly what he wants.
(c) Initiating communication
 i) Oregon v. Bradshaw (1983): Δ
invokes M right to counsel. On the way to
jail, Δ says, “So what’s going to happen to
me now?” Leads to incriminating statement
by Δ. Issue: Casual conversation or Δ
waiving his Miranda right?
aa) USSC: This is general conversation
over this investigation. Edwards no
longer is invoked. Police can start up
questioning again.
5. Miranda and the 6th Amendment
a. Recall Massiah (before Miranda). USSC rules that the
interrogation violated the 6A rt to counsel b/c federal
agents had “deliberately elicited an incriminating
statement” after formal adversarial proceedings had
begun.
b. Brewer v. Williams (1977): Δ suspected of murder.
Makes an incriminating statement in the police car while
Δ is being driven back to the city where the murder
occurred. The police remark how nice it would be to
give the girl a “proper Christian burial.” Δ then tells
police where evidence can be found.
(1) Here, 6A rts attached b/c Δ was already
arraigned.
(a) Also, Δ invoked his 6A rt to an atty. Δ’s atty
instructed police not to interrogate Δ
(2) USSC: Δ did NOT waive 6A rts. Thus, Δ’s 6A rts
violated.
(a) Test: Did the police deliberately elicit an
incriminating statement (as if it was a formal
interrogation)?
i) Here, like Massiah & Miranda, even
if the police are not directly asking, it is
the functional equivalent.
(b) re: Waiver—If Δ waived rts, then no Xnal
violation
i) Facts: Δ asked for atty and was
appointed two. Both told the police not to
question Δ. Δ also relying on atty’s advice.
(3) Result
(a) Statement of the body: Excluded
(b) Actual Body: Not suppressed b/c of
the inevitable discovery doctrine.
i) There was a search party looking
for the girl’s body. The body could’ve been
found by the search party.
 (4) 6A rt to counsel (Massiah) and 5A (Miranda) rt
to counsel are separate.
(a) These rts are triggered differently
i) 6A: Formal adversarial proceedings
ii) Miranda: Custodial interrogation
(b) See the undercover cop cases for illustration
i) Perkins: Undercover cop in jail
cell. USSC: Use a Miranda rts analysis, and
find no custodial interrogation.
ii) US v. Henry (1980): H indicted. Put
an undercover cop in his jail cell who asked
him ?s. USSC: Applies the 6A rt to counsel,
and find a violation. If 6A rts attach, even
an undercover cop can’t deliberately elicit
statements against you.
c. Michigan v. Jackson (1986): @ arraignment, Δs ask
for atty. Δs later sign a waiver and waive their rts.
Confession.
(1) USSC: Waivers not valid. 6A rule will be similar
to Edwards (which was based on Miranda rt to
counsel)—i.e. a BLR
(a) BLR: Once 6A rts attach, police can’t come to
you until: (1) you get an atty, or (2) you change
your mind and initiates conversation.
(b) Absent the above, the interrogation is invalid
d. When Miranda and 6A rts play into the same case
(1) Patterson v. Illinois: P arrested and put into jail.
Read Miranda rights. Volunteers to answer
questions. P indicted. Cops come back. Read
Miranda rights. P waives rts. Issue: What was the
affect of the 2nd waiver?
(a) USSC: Waiver was to Miranda rts AND 6A rts for
counsel.
i) Evid: P never asked for an atty—
either when given Miranda rights and post-
indictment
ii) Post-indictment warning and
waiver extinguishes both Miranda rts
and 6A rts
(2) McNeil v. Wisconsin (1991): Δ represented by atty
@ bail hearing for armed robbery. While in jail, the
police ask him about an unrelated murder. Give him
Miranda warnings. Δ appears to waive rts. Police
interrogate Δ on the unrelated murder, and Δ makes
incriminating statements
(a) USSC: 6A rt to counsel is offense-specific.
 i) Cannot invoke this rt once for all
future prosecutions.
ii) Does not work until the prosecution
commences
(b) Miranda rt to counsel are NOT offense-
specific.
i) Once you invoke your M rt to
counsel, the wall comes down and police
can’t ask you about ANY offense.
(c) Result:
i) Atty @ the bail hearing was for
armed robbery charge. Thus, cops can’t ask
Δ about armed robbery. This was the 6A
protection.
ii) Statements about murder are
admissible
(d) Rationale:
i) 6A is about the fairness of the
criminal proceeding
ii) Miranda rts protect from coercive
interrogation
iii) To receive these rts, you must
invoke…i.e. they don’t automatically
attach.
6. Limits on Miranda
a. Even if USSC finds that Miranda was not violated,
may have a 14A DP claim based on voluntariness.
b. NY v. Quarles (1984): Alleged rape. Police chase Δ
into convenie. Know that he’s carrying a gun.
Approach Δ, pat him down, and find the shoulder holster
empty. Cops ask Δ where the gun is. He tells him.
They find the gun. Give him Miranda warnings, then
interrogate further.
(1) 2 statements in question:
(a) Location of the gun
(b) That Δ got the gun in Miami.
(2) re: DP voluntariness claim—i.e. that the cops’
conduct may have overcome the Δ’s will..
(a) Ct rejects this
(3) Miranda claim: This was a custodial (i.e. arrest)
interrogation
(a) USSC: Admissible under the public safety
exception to the requirement that Miranda
warnings be given before suspects answers are
admitted into evidence.
(b) This is an OBJECTIVE standard. (i.e. Will NOT
 look into cops’s individual motivation (i.e. police
subjective intent)).
i) Ct will not set any BLRs, but will
basically rely on the judgment of the police
ii) TEST: if ct can infer a rsbl public
safety issue at hand, then that is
enough
iii) Thus, doesn’t matter if the cops had
in mind evidence gathering or public safety
(4) Dissent: Public safety doesn’t have to do w/
Miranda. Admissibility of evidence is a separate
issue. Here, can find out where the gun is, but just
don’t admit the statements.
(5) O’Connor, concurs in result. There are two kinds
of evid: (1) statement & (2) gun itself. Gun itself is
not protected b/c Miranda doesn’t protect non-
testimonial evidence.
c. Missouri v. Seibert: Seaburn confesses to a killing.
Given Miranda rights. confesses again. Police was
following dept-wide practice of “beach head”
interrogations—i.e. deciding if this is the right person,
then given warnings.
(1) nb: There was literal compliance w/ Miranda, but
is that enough?
(2) USSC (plurality): Warning could
not function effectively as required by Miranda. A
reasonable person in Δ’s position did not have a true
option to exercise her Miranda rts
(a) Look @ circumstances & Δ couldn’t have
thought that her rts would be respected.
i) Warning not given to give Δ the
impression it should be taken seriously
ii) 2nd interrogation refers to the 1st.
iii) Only 20 minute break b/t
interrogations
iv) Same cop, same room, same sets
of ?s
(b) FUNCTIONALLY, this was all one interrogation.
(3) Oregon v. Elstad (1985): Δ, juvenile, is arrested at
home. Cops ask him ?s w/o warnings and Δ makes
an incriminating statement. At the police station,
given Miranda warnings, then makes another
incriminating statement.
(a) USSC: 2d statement is admissible
(b) There is NO fruit of the poisonous tree
doctrine for Miranda
 (c) @ time of the case, though, the Xnal status
of Miranda was not clear—i.e. is it a prophylactic
rule or a xnal rule?
i) Dickerson, ruled in 2000, that these
rules are xnal.
(d) Seibert does not overrule Elstad. Still, no fruit
of the poisonous tree doctrine for Miranda.
(e) These cases are distinguished by their facts.
Factors in determining if a midstream warning is
effective enough to accomplish their object:
i) Overlapping content of two
statements
ii) Timing/setting b/t two interrogations
iii) Continuity of police personnel
iv) Degree to which interrogators
questions are treated as the 2nd round, or
as continuous w/ the first.
(4) Kennedy, concurs, but thinks that the plurality is
too broad.
(a) Question should be whether the police are
deliberately skirting Miranda, OR do they take
curative steps to correct their mistake?
(b) Maybe midstream warnings are ok if the police
use curative steps—e.g. long break, explaining
their failure to give rights before
d. US v. Patane (2004): Δ suspected of violating
probation @ home, and is questioned. Is given
warnings, but says “yeah yeah” and doesn’t allow police
to finish. Δ then points police to the glock. Issue: The
statement itself is not admissible, but is the gun itself
admissible—b/c it was found based on an illegal
statement?
(1) USSC (Justice Thomas, on crack): Admissible.
(a) Rationale:
i) 5A only protects testimonial
evidence. Miranda is really more expansive
than the self-incrimination clause, and is a
prophylactic rule.
aa) Criticism: This doesn’t reconcile
w/ Dickerson (i.e. that Miranda is a xnal
rule)
ii) Privilege is not violated when
warnings are not hidden
(2) Kennedy/ O’Connor concurring in judgment: Gun
admissible b/c it is not testimony for purposes
in Miranda. 5A is about protecting suspects from
 testimony. Thus, admitting nontestimonial physical
fruits doesn’t run the risk of admitting incriminating
statements.
e. Colorado v. Connelly (1987): Suspect approaches a
cop on the street. Confesses to killing, despite cops’
advice not to and attempt to give Miranda warnings.
Suspect turns out to be schizophrenic, and claims that
voices in his head told him to confess. Brings claim to
exclude the statements based on a 14A voluntariness
claim—i.e. that the statement was not voluntary.
(1) USSC: Admissible. No xnal claim
(a) Rationale:
i) Miranda protects against coercive
police conduct—not present here
ii) Coercive police conduct must be
CAUSALLY RELATED to the confession.
(b) Another issue: State actor
i) Need a state actor for a xnal claim
ii) Coercion here is from Connelly’s
own head
(c) Ct does says that the result may have been
different if the facts showed the coercive police
misconduct caused the internal coercion of the
suspect.
(d) Still must get to the threshold that the police
overcame the will of the suspect.
(2) re: Whether there was knowing, intelligent,
voluntary waiver of M rts…
(a) Ct: No b/c no police misconduct.
(b) Miranda’s scope: Protect against govt coercion
that leads Δs to surrender 5A rts. Goes no further
than that.
(3) Dissent (Brennan): Confessions law is also about
trying to get reliable statements—regardless of
whether there was police misconduct. DP
guarantees fundamental fairness to Δs. Is it
fundamentally fair to permit mentally ill’s coerced
confession in trial against him?
(4) Sad result for mentally ill suspects who cannot
reach the threshold of being so incompetent to not
be tried.
(a) Demonstrates that the exclusionary rule is a
deterrent for police behavior—not any coercion at
all.
(5) POINT: Lack of reliability to the confessions is
really NOT a concern of confessions law. Confessions
law is only concerned w/ the non-reliability of
confessions caused by coercive police conduct.
Thus, FOCUS IS ON THE POLICE, NOT THE SUSPECT.
(a) May have a different result if the police could
tell that Connelly was crazy when they took his
statement.