crim pro outline new

8/8/2019 Crim Pro Outline New

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Criminal Procedure Outline

I. The Idea of Due ProcessII. The Right to Counsel

III. Rise & Fall of BoydIV. The Fourth AmendmentV. The Fifth Amendment

I. The Idea of Due ProcessA. Supreme Court as the Ultimate Regulator of Police Power

1. Piecemeal decisionsa. Very limited number of criminal cases heard per year

(i.e. limited docket)(1) Plus, criminal justice process after is arrested

some cases never go to trial, some dont make it to

appeal, etc.b. Each local entity must interpret the opinion as they

see fit2. Problem of enforcement: The S.Ct must rule w/in

particular social constraints such that the lower courts andpolice will actually follow their rules

3. Is the Supreme Court really in touch with what thepolice do on a day-to-day basis? Are they in touch withsocial reality?

B. Stages of Due Process1. FoundingNothing for the first 100 years

2. Warren Court (1960s)3. Present-day jurisprudence

a. Incorporation Doctrine(1) Hurtado v. CA (1884): charged and convicted of

1st degree murder. charged by information, notgrand jury indictment. arguing that due processrequires indictment by a grand jury for a seriouscrime in state court via 14A (much like the process infederal court as guaranteed by the 5th A).(a) Historical argument (i.e. that the Magna Carta

wouldve guaranteed a grand jury) is rejected by

the majority b/c the system or process will changeand be molded into new forms.

(b) Textual argument: That 14 A is meant to meanthe same thing as the 5th A.i) Majority: No b/c 5th says, grand

jury indictmentdue process of law, and14th says, No state shall deprive anyperson of due process of law.


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ii) Cannot read 5th A DP into the 14thA b/c would render the other wordssuperfluous.

iii) Thus, 5th and 14A are not exactlythe same thing.

iv) Thus, a grand jury indictment is notinherently included in the notion of dueprocess

(c) Majority: Fundamental fairness (i.e. dueprocess Bill of Rights, due process is its ownconcept)i) Accuracy or prevent race-based

treatmentii) Rule of law: Govt will not use

arbitrary action against youiii) Based on a shocking the

conscience standard -- unpredictable(d) Justice Harlan, Dissent: Due process

incorporates ALL of the bill of rights. 14As DPC ismeant to take in all 10 amendments into itsconcept of DPC.i) Is much more predictable

(2) Duncan v. Louisiana: convicted of simplebattery. Duncan, an African-American, accused oftouching or hitting an elbow of a white boy. 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 thebase of all our civil and political institutions?

(b) Holding: 14th A incorporates the 6th A right toa jury trial in state court for all criminal caseswhich would require a right to a jury trial infederal court. RIGHT TO JURY = MATTER OFFUNDAMENTAL FAIRNESSi) 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 fundamentalstandard selective incorporation (i.e. S. Ctconsidering cases piecemeal andincorporating more amendments)

iii) Criticism: Ct avoids therace/discriminatory factor. Does notaddress the status of Af-Ams. Ct is craftingrace-neutral and procedural rights.


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II. The Right to Counsel

A. Right to Trial Counsel1. State of the law prior to Gideon.

a. 14A DPC requires states to provide counsel required

in capital casescalled the special circumstancesrule. Powell v. Alabama.b. In state court, no lawyer unless it is a hard or

complicated case. Ct does not see rt to counsel asfundamental fairness. Betts v. Brady(1942).

2. Gideon v. Wainwright(1963): 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 is entitled to counsel via14A.

b. Overrules Betts. Seeing an incorrect reading of theDP (i.e. starting to move towards incorporation).

c. Majority: Betts was a departure from precedent. Itprevented some from getting fair trials. Due to theadversarial system of justice, defense counsel isnecessary.(1) Justice Harlan, concurrance: Special

circumstances rule has been eroded b/c it has beenemployed frequently. Limit the incorporation of the6A via 14A.

3. Scope of the right to counselMisdemeanor cases

a. Arbersinger v. Hamlin (1972): argued that if all areentitled to a jury trial, then should also be entitled tothe rt to counsel. S.Ct: No, rt to trial by jury rt tocounsel. may not be imprisoned for any offensewhether petty, misdemeanor, felonyunlessrepresented by counsel at trial.(1) Is S.Ct fearing cost of having to provide counsel to

everyone?(2) Criticism:

(a) Doesnt ct suggest that atty would ensure afair process?

(b) Also, are legal issues in misdemeanors any lesscomplex than in felony cases?

(c) Justice Powell (concurs w/ result, but disagreesw/ the breadth): Should have a case by casedetermination of whether counsel is requiredwhether or not imprisonment is involved.i) Fears pre-judgment of the case to

ensure compliance w/Arbersinger, and the


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pressure not to appoint counsel in everycase.

b. Scott v. Illinois (1979): convicted of theft (i.e.misdemeanor) and fined $50 after a bench trial. Thestatute set maximum penalty for the offense as $500 or

one year in jail, or both. Scott arguing that whereimprisonment is authorized, he should be entitled to aright to counsel.(1) Held: Potential sentence does not matter. Actual

sentence to imprisonment is the factor thatwill trigger the right to counsel.

(2) Brennan dissent:(a) Authorized imprisonment is more faithful to

Gideon.(b) Inherent problem b/c wont 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 convictionenhances 2nd convictions sentence. ViolationofScott?(a) Held: No. Uncounseled convictions may be

used to enhance a sentence for subsequentcharges.

(2) Alabama v. Shelton: Shelton received asuspended sentence (i.e. probation). Breaks hisprobation and is imprisoned. No attorney was at the

misdemeanor hearing. Violation?(a) Held: Yes. Shelton is imprisoned for the sameoffense. State cannot impose a suspendedsentence where the might end up in jail..

d. ReconcilingArbersinger/Scottw/ Gideon: Counsel isrequired:(1) When facing a felony in the abstract(2) In misdemeanor cases where the is actually

jailed.

B. Counsel on Appeal

1. No federal xnal rt to appeal. McKane v. Durston (1894).a. BUTsome states recognize a xnal rt to appeal.

Most states provide an appellate process via state lawor state constitution.

2. Chronology of right to counsel on appeal:a. Griffen v. Illinois (1956): entitled to appeal as of

right. Needed to pay for trial transcript in order toappeal. USSC:: Violation of DPC by preventing indigent


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s from their rt to appeal.(1) Rationale: Even though no federal xnal rt to

appeal, if the state provides for an appeal as amatter of right, they cannot effectively preventindigents from accessing the system.

b. Douglas v. CA: CA statuteIndigent s get appointedatty on appeal as of right only ifthe appeals courtdecides it will be helpful for . USSC: Violates DP. CAcannot pre-judge cases(1) Rule: If on appeal as of right, counsel

required as a matter of DP.c. Ross v. Moffitt: asking for atty on discretionary

appeal (i.e. to state S.Ct). received atty @ trial and atthe appeal as of right. USSC: States not required toprovide counsel for discretionary appeals.(1) Rationale (look @ DPC and EPC in 14A):

(a) DPC (governs relationship b/t and state): @trial level, atty essential as a shield, but @appellate level, atty is more like a sword. Also, @trial levelpresumption of innocence, but @appeal is convicted beyond a rsbl doubt, so nomore presumption of innocence.

(b) EPC (governs relationship b/t and othersimilarly situated s): EPC does notguarantee absolute equality, but only that hasmeaningful access. Here, has access to review(i.e. on appeal as of right). State S.Ct is more

interested in legal principles to the state, conflictsof law, or matters of public interest.i) Once a state opens up a state of

play, it must be fair. But the North CarolinaS.Ct has nothing to do w/ the USSC. Thus,NC shouldnt have to pay for to go up toUSSC.

(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) shapethe law, and are not really to decide individualquestions of guilt.

C. Effective Assistance1. Evitts v. Lucey(1985): Evitts appeal (of right) denied

b/c atty failed to file papers. USSC: If state provides for a rtto appeal, must act constitutionally. As a matter of DP,


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must provide an atty (i.e. what the states owes to onappeal). Not an EPC case. If guaranteed an atty on 1stappeal, then the atty must be effective.

2. Stricklandv. WA (1984): Strickland convicted ofmurder. Defense atty was despondent and hopeless.

Atty fails to investigate mitigating circumstances andwitnesses during the penalty phase at trial. @ time, nouniform std for what constitutes xnally effective counsel.a. USSC adopts 2 factor test in assessing ineffective

assistance of counselNEED BOTH--(1) Ineffectivecause. must show that counsels

performance was deficient.(a) Objective std of rsblness(Simply rsblness

under prevailing professional norms)(b) No checklistlawyering as an art(c) Cannot challenge attys strategic choices

(d) This is measured @ time of the attys decisionor performancenot in hindsight.

(2) Harmful to prejudice. must show thatcounsels deficient performance or errors were soserious as to deprive of a fair trial, i.e. one whoseresult 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 hindsightb. Justice Marshall dissent

(1) re: rsblenssNot enough guidelines. Telling attysto act rsbly is to tell them almost nothing.

(2) re: prejudiceTough to tell the effects of badlawyering.

c. Difference b/t majority and MarshallPurpose ofhaving an atty guaranteed by the 6A?(1) Majority: To prevent convicting innocent s

(2) Marshall: End in itself. Ensuring a fundamentallyfair procedurewhether is guilty or innocent.

d. Ct is also concerned with finalityat what point cannot complain about their case?

3. Guilty Pleasa. Hill v. Lockhart: alleged atty misinformed him re:

how much time he would have to serve before parole,which lead him to plea bargain.


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(1) Performance test: Same as Strickland(2) Prejudice: Whether wouldve entered the plea at

alli.e. if atty hadnt unrsbly performed, wouldvehave plead guilty.

D. Self Representation

1. Faretta v. CA: charged w/ grand theft. wants torepresent self. Judge tells him he thinks its a mistake,later determining that has no Xnal rt to self-representation, and that has no knowledge of ct rules, soappoints counsel.a. USSC: Effective waiver of counsel is Xnal in

state cts. Rationale:(1) Historical evid: could represent self @ trial in

colonial era(2) Text of 6A: Refers to himself, not to s counsel(3) 6A rt is personal: makes choices and bears

responsibility for choices.b. Trial ct must:

(1) Give warning of consequences, and(2) Ensure is knowingly and intelligently waiving rt

to counsel.c. Trial ct can deny waiver IF:

(1) is not knowingly and intelligently waiving rt(2) Self-representation is to engage in obstructionist

conducti.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 s rt if the trial ct appoints astandby counsel to help out if has a question.(1) Rationale: Keeps judge as the neutral arbitrator,

so he wont have to help too much. Thus, standbyatty helps w/ procedure. Does not interrupt theadversarial procedure.

(2) Also, may not raise a Stricklandclaim againstself if is convicted once the rt to self-representationis invoked.

2. Standby counsel @ triala. McKaskle v. Wiggins (1984): Trial ct appoints a

standby counsel over s objections. oscillates re:how much he wants counsel to participate. Consultsatty often. Confusion over who is in charge? Didstandby atty interfere w/ Faretta rt? Held: No violationof s rt.(1) TEST:

(a) CONTROL: Actual control by over his hearingi) Standby counsel cannot make of


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substantially interfere w/ tactical decisions,control questioning of witnesses, or speakinstead of on matters of importance.

(b) PERCEPTION: Jurys perception that isrepresenting himself. (If jury is not present, then

only concerned w/ control).(2) Rationale: Want to promote the dignity andautonomy of the .

3. Self-Representation on appeala. 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 whendenying self-rep on appeal. is convictedhe is nolonger presumed innocent.

(2) Denying self-rep on appeal does not

fundamentally interfere w/ the rt at trial, and concernfor fair procedures.

E. Identification and Critical Stages of Proceedings1. Critical Stage is a formal interaction b/t 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. gets an attorney at critical stages2. Line-up cases

a. Dangers of identifications:(1) Victim under stress(2) Police suggestiveness

(3) Mistaken perception and memory(4) Racetough for ppl to id ppl in another race

b. US v. Wade: Witness makes an in-court identificationbased on prior identification in a line-up. No counselwas present at the line-up.(1) USSC: No per se exclusionary rule

(a) Govt must show that the in-courtidentification is based on something otherthan the line-up OR must show that therewas harmless error in introducing theevidence.

c. If a line-up w/o counsel and no in-courtidentification per se exclusionary rule. The line-upw/o counsel IS the error. Gilbert v. CA


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d. Kirby v. Illinois: Police station id of Kirby after hiswarrantless arrest and before any adversarialproceedings have begun.(1) 6A does not apply b/c no formal adversarial

proceedings when was put in the line-up.

(2) DPC applies. May be able to attack id at line-up ifit was unnecessarily suggestive on DP grounds.e. Reconciling Wade/Gilbert/Kirby

(1) If a 6A violation @ lineup (i.e. after formalproceedings begin) = evid of id procedure (i.e. factthat witness idd at a line-up) = INADMISSIBLE

(2) Eyewitness cannot id at trial/in-court unless thegovt can show the id is not tainted by pre-trial,counsel-less id @ lineup (i.e. that eyewitness idd apart from the line-up)

(3) 6A implicated: Corporeal lineup = critical

stage ONLY AFTER the start of formaladversarial proceedings

3. US v. Ash: idd at photographic array w/o counselpresent. USSC: No 6A violation. is not present, so this isnot an adversarial procedure. Also, s atty can do theirown photo idor 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): arrested for murder.Victims wife is in the hospital. brought into hospitaland wife ids 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 harshcreates a risk whereguilty ppl will go free, and goes too far inexcluding relevant evidence.

c. Summary ofDP test. must show:a. Procedure was suggestiveb. It was unnecessarily so.c. ID was found to be unreliabled. Based upon the totality of the circumstances


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(1) Relevant factors:(a) Opportunity of the witness to view the

criminal @ time of the crime(b) Ws degree of attention(c) Accuracy of Ws prior description of the

criminal(d) Ws 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 idwas gotten from another source than the no-attylineup

(b) Per se exclusionary rule against the 1st id if noatty 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 ofBoyd

A. Boyd v. US (1886): Boyd importing glass. Govt claims Boydlied about the content of the shipment and is requiring Boydto produce invoices for shipment of glass. This is a taxdispute and a civil proceeding. Boyd hands over papers, butover objections that it is violating his 4/5th A rts.1. Govt relies on 1875 statute: If fails to produce papers,

allegations are taken as confessions.2. Majority: Unreasonable search and seizure.

a. Statute is w/in the spirit of the 4Aeven though noliteral search and seizure. Functional equivalent tosearch and seizure.(1) 4A is to protect against general warrantsopen

ended warrants(a) Entick v. Kerrington: Govt enters s home, and

search his papers pursuant to a generalwarrant. Lord Camden: Condemns the search.i) Private ppty is sacred as papers

are the owners goods and chattels; theyare his dearest ppty

ii) This case called the bastion of civilliberties

b. 4-5 A protect private ppty (not so much the languageof privacy).

c. Suggests absolute right of privacy w/ private ppty3. This proceeding is quasi-criminal, so 5A applies.


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irrelevant for 5A purposes(1) Departure from BoydEven though physical

evidence is incriminating and/or private, it is nottestimony, 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 couldnt help protect his rts4. 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) BUTrsbl b/c timing issue (i.e. alcohol dissipating

in body) + rsbl procedures used + rsbl method toascertain whether is drunk

(3) Thus, no 4A violation5. Brennans decision:

a. Overriding function of 4A is to protect personalprivacy and dignity against unwarranted intrusion bythe state(1) Privacy and dignity added to 4A analysis.

b. Suggests certain circumstances where it is ok forgovt 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 aboutapplication

where the procedure is analyzed.(3) Growing concern about effective law enforcement

(a) Increase in the idea that the govts needsshould be balanced against privacy

6. Douglas dissent: Absolute zone of privacy which govtcan never intrude.

7. Now: Under Schmerber, cannot raise 5A claim w/forcible DNA extractions; can only raise unrsbl 4A claim

E. Warden v. Hayden: accused of armed robbery. objectsto govt taking his clothes as evid. This is during the mereevid rule (i.e. govt cant search and seize mere evid; need a

superior ppty interest to ; thus, must be afruit/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 limitationson 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


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concentrates on procedural protections1. Total separation of analysis b/t 4-5 A. No longer anintimate relationship.

IV. The Fourth Amendment

A. General principles1. Text: The right of the people to be secure in theirpersons, houses, papers, and effects, against unreasonablesearches and seizures [reasonableness clause] shall not beviolated, and no warrants shall issues, but upon probablecause, [warrant clause] supported by oath and affirmation,and particularly describing the place to be searched, andthe persons or things to be seized [particularity clause].

2. Xnal doctrines implicated:a. Incorporation: B of Rts doesnt necessarily apply to

states automatically. Must be incorporated by the DPC

b. State action: Must be govt action involved (i.e. stateactors)

B. Exclusionary RulePrimary remedy for violating 4A1. Mapp v. Ohio (1961): Police looking for Virgil Ogiltree to

question about a bombing. Go to Mapps house. Sherefused entry and called her atty. Atty was kept fromentering the house. 3 hours later, door forced open.Warrant held up, and fight ensues to get hold of thepaper. Police search the house, and find obscenematerials.a. USSC: Illegal police action. Evid shouldve been

excluded at trial. Conviction reversed.b. State of the law @ time ofMapp:

(1) Weeks v. US (1914): Fed officials illegally obtainevidence. Exclusionary rule formed as a remedy forthe 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 4Aviolations by state officials.(a) Lead to the silver platter doctrine: Fed agents

could get state police to seize evidunconstitutionally, but evid would be let in b/c wasnot obtained by federal agents

(b) Reverse silver platter doctrine: Feds gettingevid unconstitutionally, and giving it to stateofficials.

(c) Silver platter doctrine today: Individuals,private citizens, foreign police can seize evid


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c. Exclusionary rule applies to the states(1) Rationale:

(a) Deterrence to the police(b) Procedural uniformityprevent evid in that was

unconstituionally obtained

(c) Upholds the integrity of the criminal justicesystem; prevents tainted evid in(d) Healthy federalismavoiding conflicts b/t state

and fed cts2. 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 lookingfor evid to assist in their prosecution).

3. Cost of the exclusionary rule(1) Some guilty s go free(2) DA may refuse to bring case fwdi.e. impacts

charging decisions4. Exclusionary rule is NOT Xnally mandated, but

is judicially mandated. Thus, may change the remedy inthe future if a better one can be thought up.

C. Searches and SeizuresWhen the 4A is implicated

1. Searchesa. State of the law @ time ofKatz

(1) Olmstead v. US: Police surveillance b/t Olmsteadand another individual around Olmsteads home viawires outside home. USSC: No physical trespass, so

no 4A event/violation.b. US v. Katz: in glass phone booth. Conversation

recorded.(1) USSC: 4A protects privacy in limited sense. 4A

protects people, not placesThus, even if is ina public place, it may be private(a) Even though no physical trespass, has 4A

claim here.i) Even though Katz knowingly

exposed himself visually, he did expectconversational privacy.

(b) Then, is search rsbl?i) Ct: No. Govt couldve obtained a

warrant. Not for the govt to determinewhether they are acting rsbly or unrsbly

(c) Overrules Olmstead(2) Justice Harlans concurrencebecomes the

dominant way to look @ rsblness of searches andseizures


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(a) Does have rsbl expectation of privacy?(subjective)

(b) Is the expectation rsbl from societyspoint of view, and is society prepared torecognize it as rsbl? (objective)

(3) Problems w/ Harlans test:(a) Room for variation(b) Circular: Std will evolve w/ societys changing

social circumstancese.g. post 9/11: society maydemand greater intrusions for law enforcement,while others would oppose this, so who issociety?

c. Knowingly exposureImpact on reasonablyexpectation 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: put opaque trash bags on

street and police search them. USSC: knowinglyexposed items, so loses 4A protection

(b) BUTproblematic b/c ppl leaving DNA all overthe place. Will cts look @ whether hasknowingly exposed DNA? (e.g. guy who licks astamp in NJ)

(2) Open fields doctrine:(a) Oliver v. US (1984): Police search Olivers farm

where is growing pot.

i) Held: No search. 2 justifications:a) No rsbl expectation of privacy in an

open fieldb) Not a person, paper, house, effect

ii) Dissent: a conversation is also not aperson, paper, house, effect

iii) BLR: Open fields are NOTprotected by 4A

(b) US v. Dunn (1987): Police pass through a fenceto reach s barn and enter ranch w/o warrant.Eventually got a warrant.

i) Held: Not protected by 4A b/c this isnot curtilage (i.e. area around the home)

ii) Factors to determining whether theppty is an open field or curtilage:a) Proximity of the area to the

homeb) Whether the area is included in

an enclosure surrounding the home


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c) How the area is usedd) 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 areoutside your curtilage, you no longer have anexpectation of privacy?

d. US v. White (1971): having a conversation w/Harvey Jackson, an informant. Jackson has atransmitter. objects to recording of the conversationas a search. [Jackson is acting as a state actor](a) US v. Hoffa: Hoffa in hotel, talking to colleague

(police agent). Colleague testifies to theconversation 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 fromconversation and technologically enhancedconversation.i) assumes the risk when he talks to

false friend, that the friend may discloseconversation to someone else.

ii) Differs from Katz: Person Katz wastalking to did not consent to the 3d party in theconversation. Here, one person consents.

e. US v. Karo: Govt put beeper in can of ether.Owner/seller consents. Karo picks it up. Govt trackscan from Karos house to other houses storage locker(lose visual tracking) Taros house (police obtainwarrant and arrest)(a) Held: No search during times can is transferred by

visual surveillance(b) re: While in Taros homeyes, 4A reasonable

expectation of privacy implicated. Govt only knew ofthe location of the ether b/c of the beeperthis infocould not have been obtained otherwise.

i) Govt uses beeper when they lose sightof the can in public view

(c) Knotts: Person on public roads has no rsblexpectation of privacy b/c it conveys to anyone thathe is traveling. Thus, no 4A search b/c istransmitting info of his whereabouts voluntarily.i) karo differs from Knotts b/c beeper

provided info that was not/could not be known


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from public view.f. Circolo (1986): Police survey 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 s greenhouse in his backyard.(a) USSC: No search. Is legal to fly 400 ft over ones

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

curtilageh. Bond v. US (2000): , passenger on a bus. Police

come on and squeeze s bag. Find a brick ofmethanphetamine.

(a) USSC: Violates 4A. Difference b/t visual andtactile manipulation

(b) Katztest: (1) Not rsbl to think that ppl will come onbus and squeeze bag (subjective); (2) Society: ctnervous to fail to protect all things that can betouched.

i. US v. Kyllo: Police think is growing pot insidehouse. Use thermoimager to see the heat emitting fromthe home. Police dont enter the home; only knowwhether heat is coming from the bldg.(a) USSC: 4A search.

i) Govt is actively seeking info that itcannot see. Getting info about the interior ofthe house that it could not otherwise havebeen obtained w/o a physical intrusion.

(b) Police use of device not in general public useis a search that is unrsbl w/o a warrant.i) Stevens dissent: What is general

public use? Should Xnal protection hingeupon 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 absenceor presence of drugs w/o actually opening up theluggage

k. What does it mean to have 4A privacy w/ improvingtechnology? e.g. RFID microchipsusually used bywarehouse vendors to track merchandise. Now, no lawthat the device needs to be turned off at any point.

2. Seizures


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a. Florida v. Bostick(1991): 2 police get on bus, onestanding at the exit. Approach and ask him if theycan search his bag. (questionably) consents. Policefind drugs. argues that he was seized.(1) USSC: No 4A event if encounter was purely

consensual.(2) TEST: Would a rsbl person feel free to declinethe officers request or otherwise terminatethe encounter?(a) Polices subjective intent does NOT matter.

Looking at the rsbl person in Bosticks shoes.i) Rsbl person also presumes an

innocent person (OConnor)(b) Whether 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 thepolice? (e.g. race as a factor in whether s actionis rsbl) Dont police just intimidate as beingsymbols of authority?

b. Browers v. Inyo County(1989): fleeing. Police setup a tractor in the middle of the road to stop the car. hit and killed. Was seized?(1) USSC: Yes. Key is termination of freedom via

means intentionally applied.

(a) Hypo: A police car unintentionally loses itsbreak, rolls down the hill, and pins you. This isNOT a seizure, even if the person it hits is afleeing suspect.

c. Hodari D. (1991): fleeing from police. In midst ofpursuit, he throws cocaine on the ground. At what pointis seized? (If is seized at the time he threw awaythe cocaine, then the drugs are the fruit of an unlawfulseizure 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 Warrants1. 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 heldmeaning, how much or

what kind of justification must the police have in orderto search/seize?


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(1) Probable causeThis defines the amount of factsor circumstances w/in the polices knowledge thatwould warrant a rsbl person to conclude that theindiv committed a crime or that specific items relatedto 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. Standarda. Traditional approach:

(1) Warrantless searches are unrsbl. Rare to have anexception 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 wherefacts and circumstances w/in (officers) knowledge ofwhich they had reasonably trustworthy information [are]sufficient in themselves to warrant a man of reasonablecaution in the belief that an offense has beenmade.(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 conductsurveillance and verify info before seizing .(a) Held: Tip + corroboration is enough for

probable cause(2) Spinelli (1969): FBI get a warrant to search s

home b/c of tip that s gambling in home.

(a) Held: No probable cause. Problem with the tipfirst, not sure why it should be believed, andsecond, dont know if it is credible.

(b) 2-prong test developed:i) Basis of knowledgeUnderlying

circumstances relied on by the informant inconcluding the facts are as he claims theyare


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ii) Veracity/ReliabilityUnderlyingcircumstances in which the officer mustconclude 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 ananonymous letter that a husband and wife will begoing to Florida to pick up drugs. Anonymous tip ismostly correct, but on legal activities (i.e. husband tofly down and meet wife; they stay at hotel; one ofthem 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 thetip by police observation to assume that thetip is reliable.

(b) Warrants are easier to obtain under the newtest:i) If one spinelli prong is weak, cts can

now use discretion in issuing warrantsii) Where tip is not satisfactory

under Spinelli, if corroborated by police, canserve as a basis for probable cause.

(c) Ct will not make a per se rule against

anonymous tipsi) fears a chilling effectii) police often rely on anonymous tips

e. Std of review for probable cause in warrantlesssearches will be given a de novo review upon appeali.e. no deference to trial ct. Ornelas v. US

3. Warrant RequirementExecution of a warrant

a. Presume w/ absence of warrant = unrsblb. 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 @ s house. Waitabout 15-20 seconds before entering. Find drugs.(a) USSC: 15-20 seconds is rsbl for 4A purposes.


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Will not decide based on how long it takes toanswer the door, but look at the police mindset.

(b) TEST FOR RSBLNESS: TOTALITY OF THECIRCUMSTANCES. Flexible standard; no BLR toconsider 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. injured, police injured. 10 minutes later, homicidedetectives arrive and search for 4 days. Nowarrant is ever obtained.i) USSC: Unrsbl. Warrantless

search must end once the exigencyends.a) still has REOP. Even though crime

was committed, is still innocent untilproven guilty

b) Apt was secured by the time the

detectives come in. Only an emergency@ time the police hear shots. Exigencydissipates after the crime scene issecure.

c) Will not make an exception formurder scenes

(2) Fleeting SuspectsEntering the home of a fleeingfelon. NEED HOT PURSUIT

(3) Destruction of EvidenceExigency is created afterthe police announce their arrival and the person runsout to destroy evidence

(a) Illinois v. MacArthurPolice accompany wife tohelp her remove her stuff from the trailer. Asshes leaving, she tells police that her husbandhas dope inside. Police make husband standoutside w/ them while the other officer goes to geta warrant. claims that he was unrsbly seized.i) USSC: Rsbl. Use balancing test:

Individual privacy interests v. law


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enforcement interestsa) Wife gives enough info for probable

causeb) Seizure was limited in time (here, 2

hours)

c) Police feared would destroy evidd) Jailable offensee) Differs from Welsh v. Wisconsin:

Police enter home w/o a warrant toget s blood alcohol. USSC: Unrsblb/c this is a non-jailable traffic offense

f) Is this mixing the substantive laww/ procedure? (i.e. state legislaturesultimately decide whether a seizure isrsbl/unrsbl based on how they deemoffenses jailable or non-jailable.

ii) Souter concurs: If cops let go backinto trailer, then they wouldve been worriedabout the destruction of the evidence exigent circumstances. Thus, wouldvecreated circumstances for police to searchw/o a warrant

iii) Stevens dissent: Balance is wrong.Greater privacy interest when someoneshome is involved. Also, the nature of theoffense shouldnt really matter much.

(4) Community CaretakingPolice enter home to

make sure that ppl are ok (e.g. checking on anelderly person or seeing a neighbors door ajar fordays)

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). Officerfinds 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/hecan lawfully view the evid (i.e. lawfulvantage point)

ii) Object must have immediatelyapparent incriminating character.

iii) Police must have lawful access tothe object

(c) Rationale to the exception:


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i) Practical law enforcement practicetoo cumbersome to go back and getanother warrant if police see new evid.

(d) Inadvertence NOT REQUIREDi) Old rule said that evid only ok if the

police come across it inadvertently. BUTthis punished officers for trying to specifythings in the warrant that they expected orsuspected would be found.

ii) If worried by particularity, this iscovered by the warrant itself

iii) Ct looking for more of an objectivestandard. Inadvertence required askingabout the subjective state of mind of eachpolice 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 turnover equipment to see the serial numbers to see if itis 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 notobvious that it is stolen

(b) Moving stereo = new search(c) Plain view doesnt justify moving

objects (e.g. looking though drawers)(4) PLAIN TOUCH DOCTRINE:

(a) Elements:i) Police lawfully thereii) Incriminating object (from touch) is

immediately apparentiii) Police have lawful access

(b) Minn. v. Dickerson: During weapons pat-down,police feel something in s jacket. Go back andfind drugs. USSC: Not rsbl here b/c not obviousthat 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 ofAcevedo:

(a) Warrantless search of a car 4A violation.Cars are mobile and have exigency initself. Carroll v. US (1925)

(b) Ok to search car after it is seized and taken


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back to the police station. Lesser expectation ofprivacy in the car b/c it is on a public roadway.Also, exigency is determined at the time of theseizure. Chambers v. Moroney(1970)

(c) Containers in car that the police are specifically

interested in. The fact of the container falls in thewarrantless car exception. US v. Ross(d) US v. Chadwick(1977): Police have probable

cause that a footlocker contains drugs. Theyarrest/ seize the footlocker when it is placed into awaiting car on the curb. USSC: Unconstitutional.If it is a closed container, fullREOP. Presumption that police need awarrant for the containereven if they haveprobable cause. Need a warrant for the closedcontainereven 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 copshave probable cause to think there are drugsthere. USSC: Unconstitutional. Container isseparate from the car, so need warrant

(f) THUS, irreconcilable load of casescompleteautomobile exception, but a full REOP incontainers

(3) CA v. Acevedo (1991): Police watch leave thehouse 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 thatcontraband or evidence is contained w/in

(b) If container is placed in car, REOP drops tothe level of the cari) Overrules Sanders, but

not Chadwickii) Basic presumption: Container still

has full REOP until in the car(c) Rationale:

i) Conflicting line of casesii) Container not a part of the exigent

requirementsiii) Compared to the facts

ofCarroll (where police rip up the car tosearch for alcohol), this is less intrusive

iv) Police couldve seized the paper bagand applied for a warrant


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(d) Stevens dissent: Inconsistency not resolved.Police must still get a warrant if you have abriefcase when walking down the street and policehave probable cause. No lesser privacy interestb/c the briefcase is in the car, than if you were

walking down the street.(4) CA v. Carney(1985): Police want to search atrailer parked in a public lot where they suspect pplare exchanging drugs for sex. No mobility issue, andno warrant.(a) USSC: Search ok. Police may search these

vehicles IF (1) used on the highway or (2) vehicleis parked in a public place (not regularly used forresidence) 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 asresidences. Factors to consider in future cases:i) Whether the vehicle is readily

mobile or on blocksii) Whether the vehicle is connected to

utilitiesiii) Convenient access to public roads

(5) Wyoming v. Houghton (1999): Police stop car forbrake lights. Police sees a needle in passengerspocket. Eventually searches passengers purse andfinds drugs. not the driver. No warrant, but have

probable cause.(a) USSC: Ok.

i) Historical analysis: Not surewhether this action was lawful or not @ C/L.

ii) Thenlook to balancinga) Ownership is NOT dispositiveb) Passengers, no less than drivers,

possess a reduced REOP w/r/t pptytransported on public thoroughfares incars

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, passengers container/pptydoes not need a separate warrant

(5) US v. DiRe: Passengers clotyhing is NOT w/in thewarrantless search exception(a) Distinguish: Things ON passengers v. things


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passengers HAVEd. 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 committedthe crime.

(2) US v. Watson (1976): Informant tells police hasstolen a credit card. Set up where informant to givethe signal if really has the card. arrested. Ask if they can search the car. (Dispute whether consents). Find credit cards in the car. No warrant.(a) USSC: Rsbl arrest here. Postal statute allows

postal inspectors to conduct a warrantlesssearch. Ct assumes that Congress has a rt to

decide Xnal rsbl --But doesnt thiscontradict Marbury v. Madison?i) Historical rationale: C/L allowed for

warrantless arrest in feloniesa) Marshall dissent: But C/L felonies

were punishable by death. Today,felony-misdemeanor distinction isdifferent.

b) Also, how much do we really want torely on history as dispositive?

ii) Balancing: Falls in favor of desire for

effective law enforcement. If required awarrant for every probable cause case, lawenforcement would be less effective &cumbersome.

iii) Rule from Watson: Warrantlessarrest is ok if there is probable cause,and when arrest is carried out in public

(3) Payton v. NY(1980): NY statute authorizeswarrantless arrest in a home. USSC: No; 4A hasgreater protection over the home.(a) If suspect is in a home, police must have

an arrest warrant even when there is reasonto believe the suspect is inside. (Based ongreater REOP inside the house)

(b) Other rationale: want to prevent the arrestwarrant from becoming a search warrant

(4) Steagald v. US (1981): Police have warrant to lookfor Lyons. Believe that Lyons is at s house. Enterhouse, find cocaine, but not Lyons.


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(a) USSC: Unrsbl. 2 interests at stake: (1) Lyonsinterest for rsbl seizures; (2) s privacy interests

(b) Rule: To arrest someone in someone elseshomepolice must get an arrest warrant toseize the suspect, and a search warrant for

the home.(5) Atwater v. Lago Vista: and her children are notwearing seatbelts. Misdemeanor traffic violationcould issue citation or arrest. Police arrests andtakes her in. brings 1983 suit against police.(a) USSC: Warrantless arrest for a minor

criminal offense is rsbl under theConstitution.i) Majority is really just setting the

constitutional minimum(b) History is inconclusive

(c) Thenbalancing test. Balance falls in favor ofthe statei) Arrest is not extraordinarily unrsblii) Not a social problemno parade of

horriblesa) Criticism: What about racial profiling?

Incidents of the police using a minoroffense to search for broader evidence?

b) Also, if this is really a consideration,would the ct change their mind ifstatistics show otherwise?

iii) Tough for police to determine thesequestions in the spur of the moment. Needpolice to do their job w/o the threat oflitigation.a) OConnor dissent: But, we ask police

to use their discretion in probable causedeterminations, so they are not totallyincapable.

(d) Issue is really: Rules v. Standardsi) wants to promote a presumption

that an arrest warrant is needed for

nonviolent misdemeanorsii) Ct: No, too difficult to administrate.

Looking for BLR.e. Searches Incident to Arrest

(1) US v. Robinson (1973): stopped in car. searched outside of car. Cops find heroin in cigarettebox in pocket. Issue: What is the scope of a searchsubject to arrest


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(a) USSC: Warrantless search incident tocustodial arrest (w/ probable cause) doesNOT violate 4A. Search does NOT need furtherprobable cause for the search. The arrest itselfestablishes the authority for the search.

(b) Seriousness of the crime is not the issue whensearching incident to arrest. Also doesnt matterif the search is not applicable to the case itself.

(c) Reasonable search incident to arrest includes:i) Direct Personii) Area in immediate control of the

suspecta) Grabbable areasb) Chimel v. CA (1969): arrested in own

home. Cops search entire house. USSC:This is unrsbl. If in suspects home, can

only search the area w/in suspectsimmediate control.aa) Rationale: Privacy interest in home;Want to prevent police from alwaysconducting arrests @ s home.

(d) Rationale:i) Officer Safetyii) Preserve Evidence

(e) Justice Marshall dissents:i) Unrsbl b/c no weapons (or no evid

was concealing weapons) so no danger to

policeii) Officer shouldve seized the

cigarette case, then got warrant.(2) MD v. Buie (1990): Police executing arrest warrant

in home. Even if cops have no probable causeor reasonable suspicion, they can still doa protective sweep when arresting a suspect inthe home.(a) Rationale: Police protection against attacks by

other people; thus, search is limited to placeswhere the police believe an attack may be

launched from.(3) Car cases

(a) NY v. Belton (1981): Cops stop . Find cocainein his jacket. Also find cocaine in the back seat ofhis car.i) USSC: Rsbl search incident to

arrest. It is a contemporaneous searchduring a custodial arrest of the suspect.


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Also, police do not need independentprobable cause for the jacket.

(b) Thornton v. US (2004): standing near car, butnot in it. Officer arrests once he is out of thecar. Officer searches the car and finds drugs,

weapons. argues that the search isunlike Belton b/c the officer didnt initiate contactuntil was out of the car.i) USSC: Rsbl.ii) If arrested outside car, officer

safety can still be threatened. Dont want topenalize officer for waiting to conduct asafer arrest.

iii) Here, no facts of potential todestroy evidence. BUTct wants to keep aBLR, and not get into a case by case

analysis.iv) Rule: Once police determine

probable cause for the arrest, it is rsblfor officers to search the entire car forpurposes of (1) officer safety and (2)preserve evidence

v) Scalia dissent: This is about evidgathering, not officer safety.

(c) Difference b/t car search exceptionand Belton rule:i) Car search: Cops need probable

cause for the warrantless search for whatmight be in the caraa) If the police have independent probablecause to search the car, they can seize thecar and search later. Exigency isdetermined @ time the car is taken.

ii) Belton: NOT a car search case. Thisis a contemporaneous search when lawfularrest occurring. Thus, police dont need toshow independent basis for searching thecar.

aa) This is powerful b/c the police dontneed probable cause for items in the carthey dont even need to know whats in thecar.bb) Rationale: There may be weapons or b/cevidence could be destroyed.cc) If cops are not arresting, then needseparate and distinct probable cause of


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criminal activity to search vehicle underAcevedo

(4) Colorado v. Bertine: Cops search car (i.e.inventory search) after arrest and suspect is out ofcar. Upon searching the car after towing it, they find

things. challenges b/c no probable cause forsearch and it is not contemporaneous.(a) USSC: Inventory search is rsbl. Even though

no warrant and no probable cause, rsbl as anordinary administrative procedure.

(b) Rationale: Protects against things in the carthat might injure others + fraudulent claims oflost property in the car.

(c) Important: This is NOT a search incident toarrest.

(5) Knowles v. Iowa (1998): stopped for speeding.

Cops conduct full search of car. No probable causefor 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 ofspeeding was already retained @ time wasclocked).

(c) Criticism: But, how much does this serve as abarrier to police? Cant they decide to arrest,then search, then if nothing found, let the suspect

go. Plus, with the car search exception, policemay be able to claim probable cause based on theacts of the other passengers.

(6) Whren v. US (1996): Youths in Pathfinder stoppedat a sign for longer than usual. Cop sees passengerlook down at his lap. Unmarked police car makes aU-turn. Pathfinder makes a right w/o signaling andtakes off at high speed. Cops pull Pathfinder overand see drugs in plain view. claims traffic violationwas a pretextual reason for pulling him over- realreason was race-based.

(a) USSC: Subjective view/motive of officers isirrelevant.

(b) TEST: whether a rsbl officer could (notshould) have pulled over for trafficviolations.

(c) Also, if you have a race-based claim, use EPC

E. Reasonable Suspicion


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1. Reasonable Suspicion Defineda. Terry v. Ohio : Officer watching s while on patrol.

Thinks theyre casing a building to rob it. Stops , andpats them down. Finds gun. No probable cause. Nowarrant. This is a seizure (by accosting individual and

preventing him from walking away) and search

4Aapplies.(1) Thenis it reasonable? Balance govt interest in

law enforcement/police safety v. s Xnal rts.(a) re: Initial stopping

i) Balance in favor of officer safety; only subject to a petty indignity

(b) re: Pat downi) Balance in favor of law enforcement

i.e. protecting against fact that the personmay have weapons

(2) To justify a Terry stop:(a) THIS IS NOT A SEARCH & SEIZURE. It is about

the temporary detentioni) Temporary detention is justified

by reasonable suspicion if officer canpoint to specific & articulable factsleading to suspicion that criminalactivity is afoot (e.g. observingunusual conduct that leads him tosuspect criminal activity and/or person

ii) After the seizure, the officer

must believe & have reason to believe(i.e. rsbl suspicion) that the person hasweapons. Then he may search outerclothing for weapons ONLY. Also limitedto a reasonable amount of timeaa) This differs from an officer who seessomeone on the street who they think maybe a shoplifter and wants to search w/oprobable 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 occuri) Dunaway v. NY(1979) & Kapp v.

TX(2003): Just b/c police dont say theyrearresting you, does NOT make it an


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automatic Terry stop. Need to look @ theduration 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 s suitcases at

airport for 90 minutes w/o probable cause.(1) Terryalso 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 Terryto Cars/Homes(1) Cars

(a) When police lawfully stop a car, they can orderthe people inside out.

(b) No difference b/t drivers and passengers(c) Can look inside car for weapons (like

a Terrypat-down of the car)(d) Need rsbl suspicion that the car is armed and

dangerous

(2) HomesIf police executing an arrest warrantinside house, they can do a protective sweep (i.e.look in adjoining area of 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 leaving@ certain time, in a specific car, at a specificaddress. Police watch, follow, then arrest. Finddrugs.(a) USSC: OK b/c look at totality of the

circumstanceshere, anonymous tip,corroboration showing reliability.

(b) This is enough to justify an INVESTIGATORYstop of the car

(2) Florida v. JL (2000): Informant tells Police that ablack male w/ a plaid shirt at the train station has agun.(a) USSC: No, this is not enough to have


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reasonable suspicion. Distinct from White.i) No predictive factsthus, no way to

verify infoii) Basic & innocent, nonsuspicious

factsi.e. no info someone in the public

wouldnt know.iii) No info on informant(b) USSC refuses to create a categorical firearms

exception for Terryfrisks(c) Should still take into account factors in these

RS cases as other informant cases:i) Veracity of information + reliabilityii) Basis of knowledgeiii) ALSO MUST HAVE INDIVIDUALIZED

SUSPICIONe. Illinois v. Wardlow (2000): 4 car drug-caravan in

Chicagohigh crime area. runs when seeing thepolice. Police go after him (i.e.Terrystop & frisk). Copssee 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) BUTgeography (i.e. being in a high crime area)

is NOT reasonable suspicion in itself(a) Reasonable suspicion here is based on the

s unprovoked flight(4) USSC: Ok here. Reasonable suspicion can rest on

officers common sense judgment and inferencein

light of this being a split-second decision.(a) Reasonable suspicion = less than probable

cause, but more than a police hunch.(b) BUTfactual ambiguity here over whether

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 atruck. Go to the scene. Po talk to in truck. Ask for ID. refuses. Violates NV statute for refusing to idself. Issue: Not whether cops can ask questions, butwhat are the consequences if you refuse?

(1) USSC: Rsbl for a state to require ppl to id selfwhen theyre stopped. Also, ct finds a rsblrelationship b/t asking for persons name andjustification for the stop.

(2) Concern: If NV permits arrest for refusing toanswer question, will this lead to a fishingexpedition?

2. Alternatives to Probable Cause and Reasonable


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Suspicion: Roadblocks and Consenta. Roadblocks

(1) US v. Martinez-Fuente: Suspicionless stop: Ok tostop cars @ Mexican border(A) Ct balances: intrusion into 4A minor

v. FORMIDABLE LAW ENFORCEMENT PROBLEM(2) Michigan v. Sitz: Suspicionless stop: Ok b/cstopping drunk drivers. IMMEDIACY of threat to takedrivers off the road

(3) Delaware v. Prouse: Suspicionless stop: Not ok.Requiring ppl to show valid license and registration isunxnal b/c discretionary(a) May be ok if the roadblock was in a less

intrusive manner and did not involveunconstrained exercise of police discretion

(4) Indianapolis v. Edmond(2000): files 1983 suit.

Checkpoint stopping cars to search for narcotics.Stopped a predetermined # of carsnot # at policesdiscretion. Police could search farther if they seesomething to provide reasonable suspicion orprobable cause. Stop cannot last more than 5minutes.(a) USSC: NOT OK. Police are checking for

ordinary law enforcement purpose. Violates4A. Need seriousness of threat to justifysuspicion-less stops.i) No particularized goals

aa) This differs from Whren, where cops canidentify a programmatic purpose. There, nosubjective intent of the police.Also, Whren had a articulable suspicionbefore the stopbb) Here, cannot distinguish the purposehere from general crime control.

ii) No clear and immediate threat(b) BUTct concedes that sometimes

suspicionless searches will be justified in exigentcircumstances, e.g.:

i) Serial killer on the looseii) Hit & Runiii) Terror attack

b. Consenti.e. no reasonable suspicion or probablecause(1) Scneckloth v. Bustamonte (1973): Valid traffic

stop. Cops ask if he could search the car. Driversays ok. Finds stolen checks. Bustamonte,


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passenger, objects to search @ trial. Issue: Copsdidnt 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 aprerequisite.ii) This is NOT considered a waiver of

Xnal rights. Ct: Waiver is aboutfundamental fairness of trial (e.g. waivingrts to a jury trial). Here, policeinvestigation. Impractical to recognize thisformalityotherwise, everyone would justrefuse.aa) Point: Consent waiver in a formalcriminal trial

(2) 3d Party ConsentWho can consent & whats thescope?(a) WHO

i) When the person asked & thesuspect have COMMON AUTHORITYoveran area justifies search (e.g. dorm room)

ii) Illinois v. Rodriguez(1990): sgirlfriend tells cops shes been assaulted.Tells them that is at his apartment anduses her key to let them in. But, GF didntreally live in that apt, so didnt have

authority over s apt at all.aa) USSC: Rsblness correctness. All cops

need is a rsbl belief that the person hadauthority to give consent over the areaeven ifthat person doesnt actually havethe authority to give consent.

bb) Apparent authority is ok.(b) SCOPE

i) Florida v. Jimeno (1991): Cops stopcar in valid stop. Asks to search car. saysok. Officer finds cocaine in brown paper bag

on floor. Issue: Does the scope of searchingthe car extend to the paper bag?aa) USSC: Police can look in bag IF it

is objectively rsbl to believe thescope of the suspects consentpermittedhim to open the paper bag

ii) Ohio v. Robinette (1996): Officerconducts valid traffic stop. Gives a


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warning. Asks if minds looking in the car.Officer looks & searches. Finds drugs. argues that he shouldve been told that hewas free to leave, so this consent was notvoluntary.

aa) USSC: This factor is not itselfdispositive of whether the consent wasvoluntary. Still must look @ the totalityof the circumstances.

3. Non-Police Acts

a. Vernonia School Dist. v. Acton (1995): Public school(i.e. govt) officials randomly (i.e. no individualizedsuspicion) select student athletes for drug test. Needconsent of parents. Acton brings suit b/c he andparents 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 orwarrant or rsbl suspicion. USSC: This is a rsblsearch.i) Justice Blackmun: Suspicionless

search is ok here b/c of the specialcircumstances beyond the normal needfor law enforcement that make the

warrant and probable causerequirement are impracticable.

(4) Ct uses a 3-step analysis(a) Nature of the privacy interest?

i) Students/minors = lower REOP thanordinary adults

ii) Program targets student athleteshave even lower REOPaa) Scalia: sharing a locker room +

accustomed to heavy regulation(b) Character of the intrusion?

i) Urinalysis = only gives a yes/noanswer for drugs.

ii) Limited nature of testis notgenetic testing or pregnancy testing

(c) Nature of the govt interest?i) Compellingii) Drugs = serious problemiii) School also responsible for student


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well-beingb. Other Suspicionless Drug Tests that were upheld on

the special needs (i.e. beyond the need for normal lawenforcement) doctrine. Also, keep in mind this isnt thepolice conducting the search.

(1) Ct always balances the govt interest (usuallyweighty) 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 Eesc. Limiting the special needs doctrine

(1) Remember, usually need individualized suspicion.Special needs recognizes suspicion searches andseizures

(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. Nodemonstration of a systematic drug problem.

(3) Ferguson v. Charleston (2001): Hospital workerstake urinalysis of pregnant mothers suspected ofbeing on crack. Police get info..(a) USSC: No special needs, this is different from

Acton/Skinner/VonRobb, where the purpose wasto address the drug problem. Here, central part ofthe policy is to use law enforcement.

i) Even though the hospital claims itreally wants to get ppl off of drugs,its immediate purpose is to generateevidence to arrest the mother (i.e. lawenforcement purpose).

ii) Really, this search is ordinary lawenforcement.

iii) Thus, search is unreasonable.(b) To examine the real purpose of the program

look @ the programmatic purposenot thesubjective intent of a specific officer (see Whren).

d. Note on increasing use of the private police. They falloutside of the 4A/5A/6A analysis + Miranda also doesnot apply.(1) But what about moonlighting cops? Cts are

split.

Summary: Exceptions to the Warrant Requirement Exigent Circumstances


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exigency is present.G. Limits on the Exclusionary Rule

1. Recall: Mapp v. Ohio: Applies the exclusionary rule tothe states. Justified rule b/c:a. Procedural uniformity

b. Integrity of the criminal justice systemc. Deterring illegal police behavior (really the onlyrationale in modern jurisprudence)

2. Good Faitha. US v. Leon: Anonymous tip leads to the arrest of .

Magistrate issued the warrant, but it was later found tolack probable cause. Police execute search whilerelying on the warrant.(1) USSC: Exclusionary rule will not apply when

the police act upon objective good faith and awarrant 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 isover.i) Issue is NOT whether Leons 4A rts

violated b/c we assume they already are.(b) Exclusionary rule does not deter magistrate or

judiciary misbehavior. Rule is to deter illegalpolice behavior. Here, no evidence of policeillegality.

(2) When the good faith rule will NOT APPLY:

(a) When police are lying or have a recklessdisregard for the truth in obtaining warrant

(b) When Magistrate fails to be neutral(c) Bare bones supporting affidavit

i) Where impossible for themagistrate to have found probable cause

ii) Where no rsbl person could findprobable cause

(d) Warrant is so facially deficient that no rsblofficer would rely on it.

(3) Brennan dissent: 4A is a personal right against

govt infringing on Xnal rtsincluding judiciary.Majority is suggesting that the 4A exists as againstlaw enforcement.

b. USSC would NOT EXTEND LEON TO WARRANTLESSSEARCHES. 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


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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 theexclusionary rule3. StandingWho 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 thesearch + Jones is the target of the search

(b) Here: just looking at whether is legitimatelyon the premises.

(c) later OVERRULED(2) Rakas v. illinois (1978): s are passengers in car

not the owners. Cops legitimately stop the car.Police find guns. Issue: whether the s&s violated the4A rts of the criminal who seeks to excludeevidence obtained during s&s.(a) Test: REOPCan anyone claim a REOP?

(3) Minn v. Olson: , overnight guest, has REOP forthat night b/c it is your home for that night. Thus, 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 andsees cocaine. Gets a search warrant. s get into thecar. [Review: police can stop the car based on rsblsuspicion. Police can order s out of the car basedon Terrylimited search for weapons]. s were inThompson, the apt lessees apt. She allowed s to bagcoke there in exchange for some. s try to exclude theevidence(1) USSC: No b/c s do not have REOP (Rakas) & are

not overnight guests (Olson). Rationale:(a) Purely commercial nature of the transaction

(b) Short time in Thompsons apt (vs. an overnightstay)

(c) Hadnt 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 itis your home for the night


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ii) We should stay w/in the text w/ogoing 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 thatface street, need to understand that a"member of the public simply direct hisgaze downward.

(4) Kennedy concurs: Some social guests may beprotected, even if they are not overnight, but here,s more like business guests.

(5) Ginsburg dissent: s not a mere social guest.When you are invited in to do a common endeavor,take the hosts 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 thatsocial guests (not necessarily overnightguests) have a legitimate EOP

ii) Suggests that if merely a social guest,then may have standing to challenge theholding.

iii) Here, s are not social guests b/chadnt really known Thompson outside of this

context + only there for 2.5 hours, so s lose.c. Rawlings v. KY: had drugs. Put drugs in friends

purse. argues that cops illegally searched purse. Finddrugs. standing?(1) USSC: No. 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 directevidence and derivative evidence.

b. Hypos:(1) Cops search Xs home illegally. Evid: Address to

Ys home. Then cops search Ys 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


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search of Xs home, which X has REOP(2) Cops legally search Xs home. Find Ys address.

Search Ys home illegally. Find incriminatingevidence implicating X & Y.(a) Y has standing

(b) X cannot challenge the evid @ Ys house b/c noREOP in Ys house.c. Wong Sun v. US (1963): HW, informant, is arrested

for heroin possessionsays he got it from BT. Go toBTs laundrymat, BT eventually makes a statementimplicated Yee. Cops arrest Yee, and find heroinwhichis tied to BT and WS. Yee makes a statementimplicating WS. A few days after release, WS makes awritten unsigned statement incriminatinghimself. Issue: Arrest of BT was illegal b/c cops did nothave probable cause for arrest.

(1) Exclusionary rule will NOT apply:(a) Attenuationi.e. if too much has happened

b/t the initial illegality and derivative evid foundlater. Factors:i) Time passingii) Spacei.e. multiple actions by

and police, intervening eventsiii) How flagrant the initial illegality

(2) re: BTs statement(a) Excludable as direct evidence of illegality

(3) re: Heroin found

(a) Test [for attenuation exception]: Whetherevid found as exploiting an illegality ORfound by means sufficiently distinguishableto 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 wasreleased and then returned to the police stationon his own to make the confessioni) This is NOT the fruit of the

poisonous tree b/c the chain of causationbroken.

d. Murray v. US (1988): Cops surveilling and co-conspirators @ Boston warehouse. (1) Seize the truckand find drugs. (2) Force entry to warehouse w/owarrant and find packages of weed. Leave, keepingwarehouse under surveillance. (3) Get warrant, notmentioning the earlier entry. (4) Enter warehouse and


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seize drugs. s trying to suppress weed evid b/c thewarrant was tainted by the initial search.(1) USSC: Admitted based on the independent

source doctrinei.e. the police action leading tothis evidence could have been based on permissible

conduct.(2) Must be an independent, legalbasis forjustifying the police action to get the evidencei.e. the evidence did not come from the taintedtree, but instead was of a different tree w/ anuntainted source, leading to the same derivativeevidence.(a) Govt must prove that they wouldve gotten the

warrant even if they hadnt entered thewarehouse illegally (i.e. there was probable causeabsent entering the warehouse)

i) Basically, must show that illegalentry was irrelevant to getting the warrant

e. Nix v. US: in police car. Cops not supposed to talkto , but police elicit illegal confession that Nix killed agirl. tells police where the body is. Issue: location ofthe 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 wouldve discoveredthe body if left alone

H. Outside Criminal LitigationAlternatives to theexclusionary rulea. DAMAGES:Anderson v. Creighton (1987): Police

looking for suspect in s home. Warrantless search. Findnothing. s file 1983 suit, alleging a 4A violation. For sto prevail, need to overcome cops 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 clearlyestablished law and information that thesearching officer possessed (objective standard)

(a) NOT LOOKING INTO POLICES SUBJECTIVE STATEOF MIND.

(b) This is NOT in hindsight, but looking @ whether theillegality of the police conduct was clearlyestablished @ time of the action

(2) Here: Problem w/ the warrant, but no evid of policemisconducteven though there was a Xnal violation.Cant deter police in situations like this


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(a) Also wont 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 stillmust show (2) officer violated a clearly establishedrule.

(a) Basically, the police can violate the 4A, but if therule is not clearly established, then they get qualifiedimmunity.

(4) Limited remedy(a) Usually only for severe interactionse.g.

beatings, wrongful deaths. Most minor Xnalviolations wont win damages

(b) Tough to get a desirable AND an atty to take thecase.

b. INJUNCTIVE RELIEF: LA v. Lyons (1983): stopped fortraffic 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. asked for injunctive relief for LAPD to stop using this.(1) First, Lyons must pass the case or controversy

requirementi.e. this must be an issue that happenedto YOU.(a) Also must prove that he himself would be

injured inth e future by this police policy inorder ot have standing.

(2) Second, Lyons must show: (1) All LAPD officers chokeall people every time they stop people, or (2) the city

tells them to use this chokehold everytime(3) USSC: Mere speculation that would be stopped and

choked again. is trying to correct a future wrong actagainst him and all other people.(a) Std: must show that this is a broad activity that

the entire dept is engaged ini.e. that police willchoke all citizens who are stopped or arrestedregardless of their conduct.

c. CRIMINAL PROSECUTION: e.g. Rodney King case:Police prosecuted in state court and acquitted. Tried infederal court, and two officers were acquitted.

(1) These are rare b/c of political hurdlesd. POLITICAL OR ADMINISTRATIVE REMEDIES: e.g.

citizen review boards who review police misconductclaims.(1) But unclear how much power these bodies have

e.g. are they able to enforce discipline or just makerecommendations?


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V. The Fifth Amendment: nor shall any personbecompelled 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 hisarm is a non-communicable act. Testimony would bethe lab analysis.

b. If not testimony, then 5A does not apply2. Compulsion

a. McKune v. Lile (2002): Kansas sex abuse treatment.Prisoners must fill out a form which admits to priorcrimeeven if they werent prosecuted for it. Prisonersnot given immunity & are warned that info may be usedin future prosecutions. If they refuse, then prisonprivileges are revoked, and they are moved to a high

security facility. Lile refuses to participate b/c thischoice violates his 5A privilege against self-incrimination.(1) State argued that the prison admitting to prior

offenses and accepting the consequences of theiractions was central to the goal of rehabilitation. Alsowanted to reserve power to prosecute particularlyheinous or egregious crimes.

(2) Plurality opinion: This is testimonial, but NOTCOMPULSION(a) Prisoners DP claims must be about atypical

hardshipi.e. more than just normal prisonerhardship

(b) Liles consequences are rsbly tied to the statesgoals

(c) This is really about reduction of benefits (i.e. notv, less canteen provisions, etc)

(d) 5A does not speak every time you need tomake a tough choicei) Here, this is a difficult decision, but

not compulsion. Every hard choice doesnot implicate 5A.

(3) OConnor: Concurs (swing vote)(a) Lile loses b/c 5A std is like the atypical

hardship std, but is not sure that the burden toinvoke the 5A is that big.

(4) Stevens dissent: Lile is being punished b/c therevoking the privileges is the same as if Lile hadcommitted assault or induced a riot. It took him 6years to get these privileges, and he cannot regain


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them.3. Incrimination

a. Hiibel v. NV(2004): Officer received call of assault.Shows up, finds truck w/ and woman. (is reallya terrystop). Officer asks for name, but he refuses.

NV statute requires suspects to provide their name (nodocumentation) during a terry stop. arrested forrefusal. argues that disclosing name is incriminatingper 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 ofevid that would be totally incriminating.

(2) Present concern w/ the war on terrorism: Need too

give police the opportunity to question suspects andget their identity.

B. Limits on the Privilege1. 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

regulatoryi.e. get insurance info and compensate fordamages, NOT for criminal investigation. This targetsdrivers 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 acti) Like requiring a person in custody

to stand and walkii) Requiring person in custody to

speak wordsiii) Requiring samples of

handwriting/fingerprints/bloodb. Harlan-concurring: If recognize the 5A privilege here,

then govt cant function and respond to societal needs

(via criminal sanctions and other regulatory devices)(1) Really saying that we really dont want to apply

the 5A to all regulatory laws.2. SD v. Neville (1983): SD statute requires telling jury

refuses to submit to a blood alcohol test (unlike CA whocompels 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


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choicescomply or accept consequences.C. Police Interrogation

1. Police confessions are essential to law enforcementsability to solve crimes. But concern over:a. Coercion

b. Reliabilityi.e. ppl will confess to things they didntdo.2. Miranda

a. Road to Miranda(1) Voluntariness cases

(a) Bram v. US (1897): Murder on the ship. Braminterrogated by the master of the ship. Brought toland. B stripped of his clothing and interrogatedby detective. Detective tells him there was aneyewitness, and Bram replies, but he couldvehave seen me from theresomething 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 Bramsstatement was voluntary.

ii) Here, yes, Brams 5A rts violated.Statement suppressed.

iii) At the time, the 5A was notincorporated. It is now.

(b) Brown v. Mississippi (1936): actually beatento get confession. s argue 14A DP rts violated.

Cts looks @ whether the confession was voluntarybased 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 to coercive conduct

ii) Conduct was enough to overcomethe will of the aa) Based on totality of the circumstances

factors:

- confession obtained bythreat/actual violence

- psychological pressure- length of time- interrogation meant to break

suspect down psychologically- physical conditions of

interrogations


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- promises of leniencyi.e. inferringthat better off if he confessed

- deception (although this is not aper se circumstance of illegality orinvoluntariness)

bb) Criticism: This is all in hindsight. Nopredictive quality of the test. Subjectivestd of whether the s will was overcomeis tough to analyze.

(2) 6A rt to counsel violated(a) Massiah v. US (1964): indicted & released on

bail. Friend arranged mtg w/ . Car is bugged.Govt records incriminating statements by .Here, formal adversarial proceedings had begunand had invoked his right to counsel.i) USSC: Resolves case on 6A basis.

Evid of the incriminating wordswas deliberately elicitedfrom after he hadbeen indicted and in the absence of counsel.aa) Rt to counsel had already attached.

ii) White dissent: 5A is concernedabout the coercive atmosphere and whethera statement is made free & voluntarily.Here, is talking to friend only as a friend.aa) Strange result b/c if formal adversarial

proceedings not started and talks to afriend, this is not a search b/c no REOP in

a false friend. Same logic here since nocoercive atmosphere.

(b) Escobedo v. Illinois: arrested, but not chargedyet. Asked for atty, but made incriminatingstatements w/o atty.i) Ct does not want to expand 6A

rights to pre-indictmentb. Miranda v. AZ: Consolidated cases in which

suspects are questioned and confess. USSC delivers aprecise ruling: Prosecution may not use statementsstemming from custodial interrogations of a

unless it demonstrates the use of proceduralsafeguards 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


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(d) may waive these rights. Must bevoluntarily, knowingly and intelligently. Heavyburden 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 atany time.

(3) Rationale:(a) Police fear coercive atmosphere + Suspects

confessing to crimes he didnt do.(b) Look @ police tactics (e.g. good cop/bad cop

routine + psychological techniques). These arenot outrageous enough to give rise to a DPviolation

(c) Rt to remain silenthave 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 policesinterests s interests

(e) Rt to counselPrevent police motivated by acoercive atmospherei) IN THIS CONTEXT, THIS RT IS

DERIVED FROM 5Athus, it applies beforeformal adversarial proceedings

(4) Majority: Even though the language of the 5Asays, in a criminal proceeding, weve 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, incriminationbefore even arriving at the Miranda inquiry

(b) Applies during custodial interrogationi.e.@ police station or if otherwise deprived of

freedom of action in any significant way.i) Does NOT apply when comes into

the station on own and confesses.(7) Nature of warnings: Congress or the states can

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