Criminal Procedure Law School Outline

Best Supplements for Criminal Procedure:

1L Law School Contracts outline based on the following books:

General Reflections on Crim Pro & its Administration


Can stop people on a hunch or a suspicion

  • Whrenv USheld that police can detain motorists where there is a probable cause to believe that they have violated traffic laws, regardless of whether the stop is pretextual
  • 96% of people plead guilty because they know that the sentence will be lighter than if they don’t and they are found guilty at trial
  • Don’t have enough resources to have every case go to trial so pretty much force you to plead guilty
  • We can’t trust the prosecutors or the police or anyone else. That’s why we have the Bill of Rights.” Kamisar


  • General Reflections on the Criminal Process
    • Stuntz, “The Uneasy Relationship Between Crim Pro and Crim Justice”
      • Crim justice system is dominated by trio of forces: crime rates, definition of crime, and funding decisions. But that law that defines what the criminal process looks like and what ’s rights are is made by judges and Justices who have little info about crime rates and funding decisions, and whose incentives to take account of those factors may be perverse.
      • Courts, thinking its administration is cheap, have expanded crim pro and done a lot of regulating. Legislative response = underfunding and overcriminalization
      • Constitutionalization of crim pro. Crim pro = judicial policy preferences with a thin legal veneer.
      • Maybe it should be scaled back. “Defendants’ interests might best be protected by less procedure, coupled with a much more activist judicial posture toward funding, the definition of crime, and sentencing.” What good is Gideon when prosecutors are so backed up?
  • Skolnick and Fyfe, “Above the Law: Police and the Excessive Use of Force”
    • The view of police officers is as soldiers engaged in a war on crime not only diverts attention from more effective strategies for crime control but also is a major cause of police violence and the violation of citizens’ rights.” War model.
    • Low visibility decisions: “Every day, out of their supervisors’ sight, police officers at the lowest levels of their departments make what law scholar Joseph Goldstein called ‘low visibility decisions’ that have great effects on the lives and liberties of individual members of the public.” No opportunity to review them. The lower in the police department you go, the greater the discretion of the official.
    • [The] widespread belief that the Supreme Court’s best-known decisions on search, seizure, and interrogation somehow have handcuffed the police or otherwise have made citizens less safe is not supported by any objective evidence.”
  • Maclin, “Black and Blue Encounters”
    • [T]he dynamics surrounding an encounter between a police officer and a black male are quite different from those that surround an encounter between an officer and the so-called average, reasonable person… Black males learn at an early age that confrontations with the police should be avoided.” Fear of possible violence or humiliation; distrust.
    • Currently, the Court assesses the coercive nature of a police encounter by considering the totality of the circumstances surrounding the confrontation. All I want the Court to do is to consider the role race might play, along with the other factors it considers, when judging the constitutionality of the encounter.”
    • Kamisar (K) thinks it’s also a matter of class.
  • Why have matters involving police and prosecutors become such a matter of judicial concern in this country?
    • Constitution/Bill of Rights and an independent judiciary.
    • Death penalty.
    • Police abuses.
    • Failure of legislature to do anything.
    • Miranda


Relevant Constitutional Provisions

  • Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath of affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
  • Exclusionary Rule: The principle based on federal Constitutional Law that evidence illegally seized by law enforcement officers in violation of a suspect’s right to be free from unreasonable searches and seizures cannot be used against the suspect in a criminal prosecution.
    • The exclusionary rule is designed to exclude evidence obtained in violation of a criminal defendant’s Fourth Amendment rights. The Fourth Amendment protects against unreasonable searches and seizures by law enforcement personnel. If the search of a criminal suspect is unreasonable, the evidence obtained in the search will be excluded from trial.
  • Fifth Amendment: No person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law…
  • Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.
  • § 1983. Civil action for deprivation of rights: Every person who, under color of any statute, etc, of any State, subjects, or causes to be subjected, any citizen to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”
    • Applies to STATE laws


Arrest, Search & Seizure


The Exclusionary Rule

Wolf v. Colorado (1949)

  • Q: Does a conviction by a State court for a State offense deny due process under the 14th Amendment where evidence was admitted at trial that was obtained under circumstances that would’ve rendered it inadmissible for a federal offense in federal court under Weeks?
  • Answer (per Frankfurter): A State allowing police incursion into privacy runs counter to 14th Amendment, but the Constitution doesn’t mandate that the evidence be excluded. In other words, the DPC does not require the states to exclude evidence obtained in violation of the 4th Amendment. Frankfurter drove a wedge between the exclusionary rule (ER) and the 4th Am by focusing on remedy.
  • Not harmful unless guilty.
  • State can come up with methods for enforcing DPC.
  • Murphy’s dissent suggests possibility of tort action as remedy. But probably wouldn’t be effective.

Rochin v. California (1952)

  • Cops forced way into room,  swallowed capsules; dr. pumped his stomach.
  • Court (per Frankfurter): Police conduct violated the 14th Amendment. “This is conduct that shocks the conscience… They are methods too close to the rack and the screw…” Just as coerced confessions “offend the community’s sense of fair play and decency,” to admit this evidence “would be to afford brutality the cloak of law.”
  • K points out that Frankfurter avoided the constitutional question in Wolf.

Irvine v. Calif. (1954) limited Rochin to situations involving coercion, violence or brutality to the person.

  • Facts: Cops miked guy’s home for over a month. Ct recognized deliberate violation of 4th Am, but still adhered to Wolf. See also Schmerber (upholding the taking of blood sample from drunk driver).

Mapp v. Ohio (1961)

  • Cardozo’s famous quote: “The criminal is to go free because the constable has blundered.”
  • Facts: Cops showed up at M’s home and demanded entry. M called atty, refused to let them in. Cops later forcibly entered; atty arrived, but cops wouldn’t let him see M or enter house. Showed fake warrant. Continued search, found obscene materials.
  • Exclusionary Rule comes out of this case: the values of the 4th Amnd are what’s important; tort remedy no longer effective
  • Court overturned Wolf. “We hold that all evidence obtained by searches and seizures in violation of the Constitution is… inadmissible in a state court.” Applied 4th Am against the States.
  • But, Ct held that no requirement that the lawyer is allowed to see D when search & seizure is in progress
  • Court’s reasoning:
    • Ct says that the exclusion doctrine is an essential part of the right to privacy. Purpose of ER is deterrence.
      • But K: Deterrence wasn’t mentioned in Weeks.
    • More than half of the states have adopted Weeks.
    • Without ER, right is preserved, but enjoyment of it is prevented; unprotected.
  • ER enemy of 4th Amnd? White says that it puts tremendous pressure on not allowing in evidence so it shrinks the scope of the 4th Amnd; not only fails to work but it makes the cts say in a close case that there was probable cause to search, etc. Have to do that b/c hate to throw out evidence in a case that shows D is guilty. Response is that alternative is NO ER – and that would be even worse!
  • ER: deter the way the criminal code deters burglars? Burglars get caught maybe one time out ten. ER doesn’t work that way – its supposed to achieve institutional compliance – supposed to get the police chief to instill the rules & laws of search & seizure, probable cause, etc.
  • Since this case, Ct has been shrinking instances where ER applies. But until Leon, all assumed that additional exclusion assumed that sufficient exclusionary rule capacity was being exhibited in criminal prosecutions. Leon then addresses this…
  • Becomes clear that ct is limiting ER to search warrants

U.S. v. Leon (1984)

  • Q: Should the ER apply to evidence obtained under a search warrant obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupportable by probable cause? In other words, should there be a good faith exception to the ER?
  • Court (per White): Yes.
  • Reasoning
    • ER designed to safeguard 4th Am through its deterrent effect, rather than a personal constitutional right of the aggrieved.
    • Substantial social costs—ER has to pay its way. “Particularly when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty s offends basic concepts of the criminal justice system.” May generate disrespect for the law.
    • We have limited the rule in a number of ways.

Stone v. Powell (1976) held it doesn’t apply in habeas cases.

U.S. v. Calandra(1974)held it doesn’t apply to evidence used for questions before a grand jury. Ct in Calandra reasoned that extending ER to grand jury proceedings adds little or nothing to ER’s deterrent effect upon police conduct.

U.S. v. Janis(1976) held that ER doesn’t apply in federal civil suits. Ct said deterrent effect in these cases is speculative and doesn’t justify the loss of probative evidence. Dissent said disincentive is wiped out; cops can just turn evidence over to IRS.

US v Padilla (1993): ER doesn’t apply to coconspirators.

Alderman v. U.S. (1969): the owner of premises has automatic standing to contest the legality of an interception made of a conversation on those premises (when police use a wiretap).

INS v. Lopez -Mendoza: ER doesn’t apply in deportation cases.

Rakas v. Illinois: Test to decide whether ER applies or not is simply: whether the D had a legitimate expectation of privacy in the premises he was using.

  • Standing to invoke the rule only where prosecution seeks to introduce the fruits of an illegal search or seizure against the victim of police misconduct.

Walder v. United States: Can still use to impeach.

  • We consider the assertion that police will go “magistrate shopping” too speculative.
  • The officer’s reliance on the warrant must be “objectively reasonable.”
  • Test: “whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization.” Consider all circumstances, including whether warrant application had previously been rejected by another magistrate.
  • Neither the officer nor the magistrate can rely on highly dubious affidavits; nor can warrant be facially deficient in failing to specify place or thing to be searched.
  • Excluding evidence seized pursuant to a good-faith warrant will not have a significant deterrent effect. Doesn’t affect judges and magistrates.
  • [S]uppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.”
  • In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.”
  • Dissent (Brennan and Marshall): It’s the 4th Amendment itself, not the ER’s possible deterrent effect, that mandates exclusion. Constitutional command, not judicial remedy. Costs overestimated. Good faith exception puts a premium on police ignorance of the law. When you criticize the ER, you criticize the 4th Am itself.
  • Stevens’ Dissent: Court killed one bird with two stones.
  • Old probable cause standard:
    • Did the police have first-hand information?
    • Was the informant credible?

Illinois v. Gates (see infra) greatly simplified PC. Court should have remanded Leon in light of Gates rather than reaching further out and carving good faith exception.

  • Leon has generally been read as limited to search warrants, but K thinks language in the opinion suggests that it may not be so limited.

Proposed Alternatives to the Exclusionary Rule:

  • Tort remedy. Won’t work b/c it focuses on the last officer in the chain. ER rests on the whole system, looks at police as an institution.
  • Wigmore: Hold police in contempt of court. K says this would be even more costly, b/c police wouldn’t conduct searches at all. K points out that Orfield has shown that police actually do care when evidence gets thrown out. O says ER leads to greater police professionalism and observance of 4th Am.
  • Kaplan: Exempt certain crimes (treason, espionage, murder, etc.) from ER and just apply the Rochin standard to them. But K says the police take the ER most seriously in the most serious cases, so ER would be exempted where it least comes up. And list of serious crimes would just keep growing.
  • Kaplan proposal #2: ER inapplicable where police dept has taken seriously its responsibility by publishing regulations, etc.
  • ER applicable only where the reprehensibility of the police misconduct is greater than the gravity of ’s offense.


The Reach of Leon

Massachusetts v. Sheppard (1984) (companion case to Leon)

  • Detective could only find the drug search form on a Sunday and went to judge to get warrant for different type of search. Judge authorized search and tried to make necessary changes, but didn’t do it right.
  • Ct: This falls within Leon; evidence should not be excluded.

Michigan v. DeFillippo(1979) held that ER req’d suppression of evidence obtained in a search carried out pursuant to a statute subsequently held unconstitutional when the statute, by its own terms, authorized searches under circumstances that didn’t satisfy the traditional warrant and PC req’ts of 4th Am.

Illinois v. Krull (1987): Contrary to the holding in DeFillippo, Ct held that Leon applies where officer acts in objectively reasonable reliance on a statute. “Unless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law.” In dissent, O’Connor emphasized that it can take years for a statute to be deemed unconstitutional, and in the meantime many people could be illegally searched and set to jail.

U.S. v. Caceres (1979): Failure of an IRS agent to follow IRS electronic surveillance regulations did not require suppression.

Hudson v Michigan (2006): Evidence need not be excluded when police violate the “knock-and-announce” rule (knock, then wait 20-30 seconds before entering).

  • Reaffirmed the validity of both the knock-and-announce rule and the “exclusionary rule” for evidence obtained by police in most cases of Fourth Amendment violation.
  • However, the majority held that the exclusionary rule could not be invoked for evidence obtained after a knock-and-announce violation, because the interests violated by the abrupt entry of the police “have nothing to do with the seizure of the evidence.”
  • The knock-and-announce rule was meant to prevent violence, property- damage, and impositions on privacy, not to prevent police from conducting a search for which they have a valid warrant.
  • The Court also found that the social costs of the exclusionary rule as applied to the knock-and-announce rule outweighed any possible “deterrence benefits,” and that alternative measures such as civil suits and internal police discipline could adequately deter violations.
  • Dissent: noted the Court’s long history of upholding the exclusionary rule and doubted that the majority’s cited precedents supported its conclusion. The dissent also expressed doubt that knock-and-announce violations could be deterred without excluding the evidence obtained from the searches.


The Dimensions of the Exclusionary Rule

  • Evidence used as basis for questions to grand jury witness. See Calandra, supra.
  • Evidence used in criminal case after conviction.
  • Verdugo v. U.S. (9th Cir. 1968) held that illegally obtained evidence is not admissible after conviction for consideration by the judge in determining the sentence to be imposed.
    • But U.S. v. Schipani(E.D.N.Y. 1970) distinguished Verdugo and admitted evidence after concluding that “no appreciable increment in deterrence would result from applying a second exclusion at sentencing.”
  • Penn. Bd of Probation & Parole v. Scott (1998): ER doesn’t apply to state parole proceedings. Citing Janis, Calandra, and Lopez-Mendoza, Ct declined to extend ER “beyond the criminal trial context.” Minimal deterrence benefits. Souter, writing for dissenters, said police often know a guy’s parole status when they go after him, and they could be deterred.

Evidence used in “quasi-criminal” or civil case.

  • One 1958 Plymouth Sedan v. Penn. (1965): ER applies to forfeiture proceeding.
  • U.S. v. Janis(1976): Rev’d Plymouth Sedan; held that the deterrent effect in civil cases is highly attenuated b/c it “falls outside the offending officer’s zone of primary interest.” It was enough that evidence was thrown out in criminal gambling proceeding; we don’t need to throw it out in tax proceeding. But K says police and feds work together. Diminishes deterrence.
    • See also INS v. Lopez-Mendoza (holding that ER is inapplicable in a civil deportation hearing).

Evidence obtainedby private persons and used in criminal proceedings.

Burdeau v. McDowell (1921)

  • ER is a restraint on public authority, not private persons.
  • But 4th Am does apply to private individuals who are acting as instruments or agents of the gov’t. Whether a person is a gov’t agent is determined by a totality-of-the-circumstances test, which considers the actor’s motive; compensation; advice, direction, and level of participation by gov’t.

U.S. v. Jacobsen (1984): If private citizen opens packages and calls federal agent, then the agent’s actions are okay as long as they are not a “significant expansion” of the private search. On the spot chemical test of trace of powder is not a search because it only reveals whether or not it was cocaine.

  • 4th Amnd protects people, not places

Evidence obtained by virtue of conduct of non-police gov’t employee, used in criminal proceedings.

Arizona v. Evans(1995): Some gov’t searches covered by 4th Am are nonetheless inappropriate occasions for use of ER in light of kind of gov’t official who was at fault.

  • Facts: Clerical failure to void a warrant for traffic violations resulted in erroneous arrest. Subsequent to that arrest, marijuana was found.
  • Ct: No deterrent effect for clerical errors. Ct employees have no stake in outcome of particular criminal prosecutions. Evidence is admissible.

New Jersey v. T.L.O. (1985): 4th Am is applicable to the activities of civil as well as criminal state authorities (here, school administrator). But Ct didn’t say whether ER is applicable to searches by school authorities.

  • Evidence obtained by foreign authorities, used in domestic criminal proceedings.

U.S. v. Verdugo-Uriquidez (1990): Foreign citizens and residents are not included in “the people” covered by the 4th Am. Thus, even when U.S. authorities are involved in foreign search, ER doesn’t apply. Court left open the question whether illegal aliens are such persons.

Other Remedies

The “constitutional tort” by state officers.

  • Monroe v. Pape (1961)—can bring § 1983 action.
  • Harlowe v. Fitzgerald (1982): Notwithstanding the magistrate’s issuance of the warrant, the question is whether a reasonably well-trained officer in petitioner’s position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant. Objective standard. See also Malley v. Briggs (1986).
  • Monell: Municipality can also be liable.

The “constitutional tort by federal officers.

  • Bivens v. Six Unknown Named Agents (1971): P can sue federal agents for violating 4th Am. Note that this isn’t a § 1983 action, b/c that statute covers actions “under cover of state law.”
    • Congress acted in accordance with Court’s holding by passing the Federal Tort Claims Act in 1974.

Dismissal of criminal charges.

  • Frisbie-Ker Rule: It is no defense to a state or federal criminal prosecution that  was illegally arrested or forcibly brought within the jurisdiction of the court.
    • Crews:  “is not himself a suppressible ‘fruit.’”
  • Self-help: Most jurisdictions provide no justification for forceful resistance to an unlawful arrest by a known officer.



Katz v. United States (1967):  convicted of transmitting wagering information based on evidence obtained by wiretapping public telephone booth.

  • Q: Can the police wiretap a public phone booth without a warrant? Ct: No.
  • Prior to Katz, did the 4th Am apply to the seizure of words?
    • Yes and no. Compare Olmstead (words admissible where no physical trespass and no seizure of material object) with Silverman (conversation thrown out; whether words can be seized doesn’t matter, because you illegally got to the conversation by trespassing).
  • Court’s reasoning (Stewart): “Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.”
    • [T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection… But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”
    • One who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.”
    • Certain details, such as shutting the door on the telephone booth, help determine if a person intends for a conversation to be private. Thus, private conversations can be made in public areas.
      • sought to exclude the uninvited ear. He didn’t shed the right to do so simply b/c he made his calls from a place where he might be seen.
    • Ct: Olmstead no longer controlling. Police action violated the privacy on which  “justifiably relied,” constituting a “search and seizure.” Penetration irrelevant.
    • Magistrate could’ve found probable cause. Should’ve gotten a warrant.
  • Gov’t argument: But no physical penetration of booth.
  • K: Katz was hailed as a great triumph for civil libertarians, but it’s actually very disappointing. Harlan’s concurrence becomes the dominant opinion.
  • Concurrence: Harlan’s two-prong test: There is a right of privacy in the given circumstance if:
    • The individual “has exhibited an actual (subjective) expectation of privacy,” and
    • Society is prepared to recognize that this expectation is (objectively) reasonable
  • Black’s dissent: Wiretapping is like eavesdropping. Framers knew of eavesdropping; if they wanted to outlaw it, they could’ve done so.
    • Nothing you can do about it if third party normal people turn incriminating evidence (maid cleans your hotel room and finds drugs in your suitcase) over to police
    • Privacy is not the only interest protected by the 4th Amendment. It also protects property and liberty interests.

U.S. v. Place (1983): Detention of traveler’s luggage for 90 minutes was an unreasonable seizure because it constituted a deprivation of:

  • ’s possessory interest in his luggage
  • His liberty interest in proceeding with his itinerary. But canine sniff is not a search.

Soldad v. Cook County (1992): Seizure of trailer home is subject to Fourth Amendment even though no search within the meaning of the 4th Am had taken place.

California v. Greenwood (1988): Cops got warrants based on evidence obtained from s’ trash. State court dismissed charges on basis of Krivda, a CA case that held warrantless trash searches violate 4th Am and CA Const. App. ct. aff’d on 4th Am grounds. US SC rev’d.

  • Ct’s reasoning (White):
    • s must manifest a subjective expectation of privacy in their garbage that society accepts as objectively reasonable.
    • Fact that s exposed their garbage to the public sufficiently defeats their claim to 4th Am protection. They made it readily accessible to snoops, etc., and they had the express purpose of conveying it to a third party.
    • [P]olice cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public.”

Smith v. Maryland (1979): Individual has no legitimate expectation of privacy in the numbers dialed on telephone, because he voluntarily conveys those numbers to the telephone company.

  • State is prosecuting a robber, Smith, for robbery when Smith made a threatening phone call from his house to the victim after robbing the victim, and the telephone company installed a pen register to catch the D upon the police’s request.

Calif. v. Ciraolo (1986): Police don’t need warrant to conduct surveillance of fenced backyard from a private plane flying at an altitude of 1,000 feet.

  • Brennan’s Dissent: s didn’t expose everything to the public—just exterior of opaque, sealed containers. Cops can go to dump and search through garbage.

Additional Cases and Contexts

  • U.S. v. Scott (1st Cir. 1992): Don’t need warrant to seize evidence even where  has resorted to rather extraordinary means to ensure that incriminating character is not perceived by others.
    • Facts: IRS agents painstakingly reassembled documents that  shredded into 5/32-inch strips before putting in garbage later placed outside his curtilage.
  • Oliver v. U.S. (1984): Open fields doctrine from Hester (1924) remains intact after Katz. Police entry and examination of a field is free of any 4th Am. restraints.
    • Ct: It is not generally true that fences or no trespassing signs effectively bar the public from viewing open fields in rural areas. No an expectation that society recognizes as reasonable.
    • Distinguished open fields from curtilage, the land immediately surrounding and associated with the home. Curtilage is the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life; considered part of home itself for 4th Am purposes.
  • Florida v. Riley (1989): Helicopter hovering at 400 ft and spying on greenhouse does not constitute a search requiring a warrant under the 4th Amendment.
    • Reasoning (White): We would have a different case if flying at that altitude were contrary to law or regulation. But anyone could’ve done this; nothing in record suggests that helicopters flying at 400 ft are sufficiently rare to justify R’s claimed privacy expectation.
    • O’Connor’s concurrence: R’s expectation that his curtilage was protected from naked eye aerial observation from that altitude was not reasonable.
    • Dissent (Brennan): Ct ignores the very essence of Katz.

Other Premises

  • Business and commercial premises are covered by 4th Am. See See v. City of Seattle (1967)
  • Private areas in public places. State v. Bryant (Minn. 1970): Police officer’s conduct constituted a search when he looked down into an individual closed stall from an overhead vent above a restroom.
  • Detention facilities. Hudson v. Palmer (1984): prison cell not protected.
  • Vehicles
  • Cardwell v. Lewis (1974): No search where police took paint sample off car in public parking lot and matched the tire tread with tracks at a crime scene.
  • New York v. Class(1986): Officer reached into car and moved papers that were obscuring the VIN; federal law requires that VIN be placed in plain view of someone outside the vehicle. Ct said there was no reasonable expectation of privacy in the VIN, and mere viewing of the VIN was not a search. But because a car’s interior is subject to 4th Am. protection, the officer’s reaching into the car was a search (albeit a reasonable one).
  • Effects
  • Bond v. U.S. (2000): During lawful stop of Greyhound bus, feds squeezed soft luggage, found brick of meth. Court (per Rehnquist) said that traveler’s personal luggage is clearly an “effect” protected by 4th Am; passenger may expect that carry-on luggage in overhead bin may be handled by other passengers or bus employees, but he doesn’t expect it to be felt in an exploratory manner. Agent’s physical manipulation of bag violated 4th Am.

Enhancing the Senses

  • It’s generally not a search for an officer, lawfully present at a certain place, to detect something by one of his or her natural senses. See U.S. v. Mankani (2d Cir. 1984)(no search where conversations in adjoining motel room were overheard by naked human ear). Compare Raettig v. State (Fla.App.198) (use of flashlight to look into camper through half-inch wide crack is a search); State v. Ward (Hawaii 1980) (use of binoculars to look into 7th story apt from 1/8th mile away is a search).
  • US v Kyllo: the Court held that “[w]here, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” In dissent, Stevens argued that the “observations were made with a fairly primitive thermal imager that gathered data exposed on the outside of [Kyllo’s] home but did not invade any constitutionally protected interest in privacy,” and were, thus, “information in the public domain.”
  • Canine nose. See U.S. v. Place: Not a search, b/c it doesn’t require opening the luggage. Less intrusive than ordinary search, and info obtained is limited. Canine sniff is sui generis because of these limitations. K says the better explanation is that it only detects the presence of contraband.
  • Weapons detector?
  • Electronic tracking.
  • U.S. v. Knotts (1983): Electronic tracking device (beeper) does not constitute a search if the tracking could have been achieved by conventional means. Rehnquist says the 4th Am allows cops to augment their senses. K says this is wrong; 4th Am isn’t frozen in time.
  • BUT U.S. v. Karo (1984): Monitoring of a beeper falls within the ambit of the 4th Am when it reveals information that could not have been obtained through visual surveillance.
  • Photographic magnification. Dow Chemical Co. v. U.S. (1983): Aerial photography is not a search. Industrial plant complex is not analogous to the curtilage of a dwelling.
  • Thermal imaging. U.S. v. Cusumano (10th Cir. 1995): Followed Katz, rather than Greenwood and Place, in looking at the object of the gov’t’s efforts, not the phenomona measured by the tools. “The pertinent inquiry is not, therefore, whether the s retain an expectation of privacy in the ‘waste heat’ radiated from their home but, rather, whether they possess an expectation of privacy in the heat signatures of the activities, intimate or otherwise, that they pursue within their home.” Heat imaging is a search.
  • Gas chromatography?
  • Mere Evidence Rule” Repudiated. Gouled v. U.S. (1921) held that search warrants may not be used as a means of gaining access to a man’s house solely for purpose of making search to secure evidence; must have a primary right to the property to be seized. ButWarden v. Hayden repudiated this rule, saying that search simply requires probable cause.
  • Andresen v. Maryland (1976): A warranted seizure of ’s documents from within his law office and corporate office DOES NOT violate the 5th Am’s guarantee against self-incrimination
    • Ct:  wasn’t asked to do or to say anything. There is no special sanctity in papers as distinguished from other forms of evidence.
  • Zurcher v. Stanford Daily (1978): Police were injured by demonstrators in a protest. Daily ran photos from a vantage point where assailants might also have been photographed. Police obtained warrant and searched the Daily’s photo labs and filing cabinets for pictures of assailants. Dist ct held that (1) 4th Am bars issuance of warrant to search for materials in possession of one not suspected of a crime except upon a showing of probable cause that a subpoena duces tecum would be impracticable; (2) 1st Amend bars search of newspaper officers without strong need. SC rev’d.
    • The premises of one not suspected of a crime can be searched. Warrants can be issued for any property.
    • Const. guarantees no special protection for press from searches beyond stringencies of warrant process. A higher probable cause does not apply where 1st Am interests are involved. See New York v. P.J. Video (1986)
    • Note that a number of states recognize a journalist’s privilege.
  • Compare O’Connor v. Johnson (Minn. 1979): Need subpoena duces tecum to search law office for client’s business records. Warrant cannot adequately interfere with the atty-client privilege.



  • Herring v United States (2009): a criminal D’s 4th Amnd rights are not violated when police mistakes that lead to unlawful searches are merely the result of isolated negligence and “not systematic error or reckless disregard of constitutional requirements.” Evidence obtained under these circumstances is admissible and not subject to the exclusionary rule.
  • Dissent: an intact exclusionary rule provides a strong incentive for police compliance with respect to the 4th Amnd and its erosion in this case was not warranted. Justice Breyer also filed a separate dissenting opinion and was joined by Justice Souter. He argued that the Court should move away from its reliance on analyzing the degree of police culpability when determining whether the exclusionary rule applies, but rather draw a bright line between errors made by record keepers and those made by police officers.
  • Spinelli v. U.S. (1969): convicted of crossing state lines with intention of conducting gambling activities.  challenged constitutionality of warrant, claiming that FBI affidavit did not establish sufficient PC. Ct: Informant’s tip was not sufficient to provide basis for a finding of PC.
  • Reasoning
    • Aguilar v. Texas (1964): Search warrant insufficient where officers swore only that they had received reliable information from a credible person. Application didn’t set forth any underlying circumstances on which magistrate could independently judge validity of informant’s conclusion, and officers didn’t attempt to support the credibility or reliability of informant.
  • Here, affidavit contained more info: officers tracked ’s movement;  was a known bookie; “confidential, reliable informant.” Other info seemed largely innocent, so it came down to informant.
  • Magistrate should ask: “Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar’s tests without independent corroboration?”
  • Not sufficient underlying circumstances; need more detail. Draper v. U.S. (1959) provides good benchmark, because there the informant provided more detailed info, and because independent police work corroborated much more than one small detail that had been provided by the informant.
  • Illinois v. Gates (1983): Anonymous letter was sent to police describing in detail the m.o. of a drug-dealing husband and wife. Wife drives to Fla. from Chicago, flies back. Husband flies down and drives car back after it’s loaded with drugs. Letter said this would happen on May 3. Police pursued tip, verified some of the info, surveiled s, obtained warrant after H began driving north.
    • Q: Do these facts constitute PC? Ct: Yes.
    • Illinois Supreme Court, in holding that warrant lacked PC, derived a two-prong test from Spinelli:
      • Tip must adequately reveal the informant’s basis of knowledge.
      • Tip must provide facts sufficient to establish its veracity.
        • Credibility of informant.
        • Reliability of information.
  • Reasoning (per Rehnquist)
    • Spinelli provides common sense guidelines, not rigid rules, for determining when there is PC.
    • Totality of circumstances approach is far more consistent with prior cases than IL SC’s complex test. Veracity, reliability, and basis of knowledge are highly relevant, but they shouldn’t be viewed as entirely separate and independent requirements to be rigidly exacted in every case. A deficiency in one can be compensated for by a strong showing of another.
    • We don’t want to encourage police to conduct warrantless searches.
    • Magistrate should make a practical, common-sense decision whether, given all the circumstances set for in the affidavit, including the veracity and basis of knowledge of persons supplying the hearsay info, there is a fair probability that contraband will be found. Reviewing court should simply determine whether there was a substantial basis for magistrate’s finding of PC.
    • Corroboration of details helps.
    • Probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.”
  • K: Cops acted too quickly; got warrant when s left Palm Beach w/o waiting to see if they were going to drive all the way, non-stop, to Chicago. As Stevens points out in dissent, there were discrepancies in tip.
    • Do we need a good faith exception on top of this? Ct hasn’t really addressed how Gates and Leon interrelate.
    • We don’t know whether this case is limited to search warrants or not.

Additional Cases

  • Massachusetts v. Upton (1984): Warrant issued for search of motor home on basis of tip. Informant called anonymously, but cop knew who she was and knew that she had personal knowledge of . Cop verified that motor home was parked where informant said.
    • Ct: In light of Gates, there is a substantial basis for believing that magistrate found fair probability that contraband would be found in motor home.
  • Note that the probable cause standard can be somewhat different for searches than for arrests, b/c evidence for searches can quickly become too stale to constitute PC. See, e.g., U.S. v. Steeves (8th Cir. 1975) (holding that warrant was good for some items but not for others where robbery occurred three months earlier; “a highly incriminating or consumable item of personal property is less likely to remain in one place as long as an item of property which is not consumable or which is innocuous”).
  • State v. Thomas(W.Va. 1992) upheld two search warrants issued for two separate people who were suspected of the same rape.
  • Split of authority on whether everything supporting warrant must be in affidavit and/or whether the sufficiency of PC can later be established by statements from the officer(s) or judge as to other information known at the time but not stated in the affidavit. Compare U.S. v. Clyburn (4th Cir. 1994) (holding that magistrates can consider sworn, unrecorded oral testimony) with Whiteley v. Warden (1971) (holding that insufficient affidavit cannot be rehabilitated by testimony possessed by the affiant but not included in affidavit).
  • May challenge an affidavit that is sufficient on its face but where, for example, it’s based on false statements. See Franks v. Delaware (1978) (holding that a hearing should be held once  makes a “substantial preliminary showing” that a false statement was knowingly, intentionally, or recklessly included in affidavit). But K says Court doesn’t go far enough in allowing an attack on a search warrant. Once you find a flat lie, it should contaminate the whole affidavit. It’s a flagrant lie so shouldn’t allow it in.

The Informer’s Privilege

  • McCray v. Illinois (1967): Ct: Police will not be compelled to reveal the identity of an informer, even one who is the source of a probable cause tip.
    • K: How do we know whether there was an informant or not if we can’t push? Ct worries about threats to informant, but 80% of s are too poor even to afford an attorney. They’re not mobsters who are going to have witness snuffed out. Also, they’re not going to test the good faith of the police
      • Cops can just make up informants
  • An increasing number of courts are following People v. Darden (NY 1974) in conducting an in camera inquiry where PC fails w/o informant. Contrast State v. Richardson (Conn. 1987).
  • Maryland v Pringle (2003): A police officer stopped a car for speeding, searched the car, and seized money from the glove compartment and cocaine from behind the back-seat armrest. The officer arrested the car’s three occupants after they denied ownership of the drugs and money. A state court sentenced Pringle, the front- seat passenger, for possessing and intending to distribute cocaine after he signed a written confession. The state appellate court reversed the conviction, holding that the mere finding of cocaine in the back armrest when Pringle was in the front-seat of a car being driven by its owner was insufficient to establish probable cause for arrest for possession.
  • Question: Does an arrest of a front-seat passenger in a car driven by its owner, after police find cocaine in the car’s back armrest, lack probable cause and violate the Fourth Amendment’s prohibition of unreasonable searches and seizures?
  • Conclusion: No, the Court ruled that because the officer had probable cause to arrest Pringle, the arrest did not violate the Fourth Amendment. The Court reasoned that “a reasonable officer could conclude that there was probable cause to believe that Pringle committed the crime of possession of cocaine.”
  • K: no consideration that anyone in that car was doing anything different

Other Sources of Probable Cause

  • Information from an alleged victim of, or witness to, a crime
    • Prior reliability need not be shown here, unlike informant cases. See State v. Paszek (Wis. 1971). Instead, the critical question is usually whether the general description given by the victim or witness is sufficient to justify the arrest of any one person. See Brown v. U.S. (D.C. Cir. 1966) (where substantial discrepancies between description and accused nonetheless justified PC).
  • Direct observation by police. See Brooks v. U.S. (D.C.Mun.App. 1960) (holding that “the probabilities must be measured by the standards of the reasonable, cautious and prudent police officer as he sees them, and not those of the casual passerby).
  • Information and orders from official channels. See Whitely v. Warden (holding that when a radio bulletin of a warrant leads to an arrest, insufficiencies in the warrant will invalidate the arrest, even though it was made by officers not involved in the original, wrongfully obtained warrant issuance). Is Whitely still good law after Evans?
  • United States v Banks (2003): Police, with a warrant, knocked on the door of suspected drug dealer, Banks. They waited between 15 and 20 seconds, and when Banks did not come to the door they smashed it open. D was arrested and argued that the search was unconstitutional b/c officers did not wait long enough before breaking down the door, and had no evidence that waiting longer would have had negative consequences.
  • Question: How long must officers wait after knocking on a door before they can use force to break it down in order to execute a warrant?
  • Conclusion: The Court unanimously held that 15 to 20 seconds was a reasonable period for police to wait before entering by force when they were investigating drug charges because waiting any longer was likely to result in the destruction of evidence. “While we agree… that this call is a close one, we think that after 15 to 20 seconds without a response, police could fairly suspect that cocaine would be gone if they were reticent any longer.”




Issuance of the Warrant

The “neutral and detached magistrate” requirement.

  • Coolidge v. New Hampshire (1971): NH statute authorizing AG to issue search warrants as justice of peace even where s/he was overseeing the investigation violated both the 4th and 14th Amendments. Const. requires a neutral and detached magistrate.
  • Shadwick v. City of Tampa (1972): An issuing magistrate must:
      • (1) Be neutral and detached, and
      • (2) He must be capable of determining whether PC exists for the requested arrest or search.
    • Unanimous court upheld city charter that authorized muni court clerk to issue arrest warrants; met both req’ts.
  • Connally v. Georgia (1977): Unanimous Ct held magistrate not detached where he was paid $5 fee if he issued a warrant but nothing if he denied app.
  • Rooker v. Commonwealth (Ky.App. 1974) invalidated a warrant on a showing that the judge approved it w/o reading the application.
  • U.S. v. Davis (S.D.Ill. 1972): No magistrate shopping. Once one denies it, it’s final.

Particular description of the place to be searched

  • It’s enough if the description is such that the officer with a search warrant can, with reasonable effort, ascertain and identify the place intended. Steele v. U.S. (1925). Errors in warrant will generally be forgiven if police are reasonably able to deduce where to search once they are on the scene. Errors are more likely to be overlooked if they are reasonable.

Particular description of the things to be seized

  • More general descriptions are allowed when none better is available or when item is inherently contraband. More specific details required where products may be lawfully possessed or where other similar objects are likely to be in the same place. Errors are forgivable if officer can still determine what she is looking for.

Neutrality, particularity, and “good faith.” Recall Leon and Sheppard

  • Execution of the Warrant
    • Time of execution. Statutes and court rules commonly provide that a search warrant must be executed within a certain time, such as 10 days. Many jurisdictions also require a special search warrant for nighttime searches, but Gooding v. U.S. (1974) holds that the federal statute relating to searches for controlled substances does not so require. Subject need not be home to execute search.

Gaining entry: The Knock and Announce Rule.

  • Wilson v. Arkansas (1995) (Thomas): Knock and announce rule is part of the 4th Am reasonableness inquiry. Not a rigid rule.
  • Richards v. Wisconsin (1997) (Stevens, unanimous) rejected state court’s holding that police are never required to knock and announce when executing a warrant in a federal drug investigation. Ct: Case-by-case inquiry. No-knock entry is justified if police have a reasonable suspicion that knocking and announcing will, under the particular circumstances, be dangerous or futile, or that it will inhibit the effective investigation by, for example, allowing destruction of evidence. K approves.
  • U.S. v. Ramirez (1998) (unanimous, per Rehnquist): Whether the Richards reasonable suspicion test has been met depends in no way on whether police must destroy property in order to enter.

Detention and search of persons on the premises

  • Ybarra v. Illinois (1979): Tip re: bartender. Police executed warrant in bar in late afternoon. Cigarette package containing heroin was located and retrieved from customer Y’s pocket.
    • Ct: Warrant to search bartender only. No PC to search all of the customers. Terry doesn’t extend to evidence-gathering. “A person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to PC to search that person.”
  • Michigan v. Summers (1981): As cops were about to execute search warrant, they encountered D, the occupant, leaving the house. They asked him to let them enter and then detained him while they searched. After finding narcotics, they arrested D, searched his person, and found drugs on him.
  • Court, per Stevens, upheld seizure on basis of Terry and related cases, which establish that some seizures constitute such limited intrusions on personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than PC, so long as police have an articulable basis for suspecting criminal activity. Ct noted that, because detention was in D’s own residence, it added minimally to stigma, inconvenience, and indignity. Police had legitimate interests in preventing flight and in minimizing risk of harm to themselves. Existence of search warrant w/ PC verified by magistrate provides objective justification for detention.
  • How can Ybarra and Summersbe reconciled? Maybe distinction between occupants in private home and customers in business. Police often “freeze the situation.”

Intensity and duration of the search

  • Cops may only look where the items described in the warrant might be concealed. E.g., if warrant for T.V.s, can’t look in desk drawers. Once items have been found, search must cease.

Seizure of items not named in the search warrant

  • Plain view doctrine: Items found in plain view may be seized where it is immediately apparent to the police that they have evidence before them.
    • Horton v. California (1990): Warrant to search house for rings; police found and seized guns in plain view. Ct disagreed with Horton’s argument that Coolidge also required that the discovery be inadvertent. The Ct said that police practices are best administered by objective rules. As long as officer has a lawful right of access—that is, where warrant particularly described the place to be searched and persons or things to be seized, and where the search is circumscribed by the exigencies that justify its initiation—no additional 4th Am interest is further by inadvertence req’t.
  • How carefully may police examine article to determine whether it’s incriminating? See Stanley v. Georgia (1969) (obscene films suppressed where police found reels while searching for gambling paraphernalia and then viewed the film on a projector); Arizona v. Hicks (1987) (unreasonable search where police entered premises from which weapon was fired and moved expensive stereo equipment to see serial numbers); but see State v. Ruscoe (Conn. 1989) (where, in executing warrant for other articles, police moved TV equipment and saw that it was w/o serial numbers; this is lawful under Hicks b/c police were in the course of searching for items listed in the warrant).

Presence of third parties

  • Wilson v. Layne (1999): Third parties can enter with police executing search warrant to identify the stolen property. But here a reporter and photographer entered with the police. Citing Summers and Horton, Court unanimously held that presence of members of media is unconstitutional b/c it’s “not in the aid of the execution of the warrant.” Court declined to decide whether ER should apply to evidence discovered or developed by media representatives.

The “Preference” for Warrants

  • [T]he police must, whenever practicable, obtain advance judicial approval of searches and seizures.” Terry. But many warrantless searches are upheld.

Situations where warrant is excused:

  • Genuine exigent circumstances make it unfeasible for police to use the often time-consuming warrant process.
    • California v. Carney—auto exception.
    • Bertine—routine police practice.
    • Watson, below—public places.



  • U.S. v. Watson (1976): Based on informant info, postal officer arrested a man selling stolen credit cards. He concededly had time to obtain one, but he chose to make a warrantless arrest, as he was authorized by federal statute.
  • Q: Is a warrantless arrest illegal if the officer could have obtained one? Ct: No.
  • Reasoning (White):
    • Ancient common law rule that an officer was permitted to arrest w/o a warrant for crime committed in his presence or a felony not committed in his presence if there was reasonable grounds for the arrest.
    • By this statute, Congress expressly rejected the need for exigent circumstances to be proved (e.g., subject about to flee, impracticability, etc.) in favor of a simple PC standard. We defer to Congress.
    • Majority notes U.S. v. Di Re (1948), which held that even in the absence of a federal statute granting or restricting the authority of federal law enforcement officers, the law of the state where an arrest w/o warrant takes place determines its validity.
  • K is interested in Powell’s concurrence: Warrant req’ts for arrests should be equal to, or perhaps even greater than, the req’ts for searches. But history has not followed this logic.
    • See Skolnick’s finding that police may fabricate PC by constructing an ex post facto description of the preceding events so that they conform to legal req’ts.

Reasonableness of Seizure and Promptness of Judicial Review

  • Tennessee v. Garner (1985) Rejecting the contention that if the Watson PC req’t is satisfied, the 4th Am has nothing to say about how that seizure is made, Garner held that the use of deadly force to arrest a fleeing felon is sometimes unreasonable under 4th Am. Where the suspect poses no immediate threat to officer or to others, harm resulting from failing to apprehend him does not justify the use of deadly for to do so.
    • Must have PC to believe threat of serious physical harm to use deadly force
  • Graham v. Connor (1989): Reasonableness standard applies to all claims of excessive force, deadly or not, in the course of arrest, investigatory stop, or other seizure.
    • Case-by-case analysis considers severity of crime, whether immediate threat to safety of officers or others, and whether resisting or attempting to evade arrest.
    • Allow for fact that officers must make split-second judgments.
  • Are officers’ actions “objectively reasonable” in light of the facts and circumstances surrounding them, without regard to their underlying intent?
  • Gerstein v. Pugh (1975): Suspect can be taken into custody w/o warrant, but shouldn’t be detained for too long w/o going to magistrate to make sure there’s PC. “We hold that the 4th Am requires a judicial determination of PC as a prereq to extended restraint on liberty following arrest.” Grand jury hearing counts.
  • County of Riverside v. McLaughlin(1991):What constitutes prompt judicial review under Gerstein? Bright line = 48 hours. But courts must allow a substantial degree of flexibility. Even if it’s within 48 hrs, it may still be unreasonable in particular case. By the same token, 48 hours may not always be enough time.
  • U.S. v. Robinson (1973): Officer stopped  w/ PC for operating a motor vehicle w/o license; effected full custody arrest. In accordance w/ dept regulations, officer patted down and found in his breast pocket a crumpled cigarette package containing heroin. Officer testified that he could tell from feeling the pkg that it contained objects.
  • Held (Rehnquist): Search was permissible
  • Rule: Lawful arrest establishes authority to search—presumptively reasonable.
  • Reasoning:
    • Search incident to “lawful custodial arrest” is a traditional exception to 4th Am warrant exception. Search may be made of the person of the arrestee and of the area within the arrestee’s control.
  • Court of Appeals held that a full search could only be performed when evidence or fruits of the crime were sought, limiting protective searches to Terry req’ts. But SC said that standards for a search incident to lawful arrest aren’t limited to Terry when no possibility of fruits of further evidence.
  • Greater danger to officer where extended exposure to suspect in cases such as this, even when the alleged crime is benign, than in fleeting Terry stops.
  • Dissent: Search should stop when pat-down reveals no weapons.

Unlawful, Pretext, and Arbitrary Arrests

  • Gustafson v. Florida (1973) (companion to Robinson):  arrested for driving w/o a license when his car was observed weaving across the center-line could be searched.
  • Atwater v City of Lago Vista (2001): D driving truck where niether child was wearing a seatbelt. Police officer pulled D over and ultimately, handcuffed, placed in jail, and released D on bond. D argued that the police officer’s actions had violated her Fourth Amendment right to be free from unreasonable seizure.
  • Question: Does the 4th Amnd limit a police officer’s authority to arrest without warrant for minor criminal offenses?
  • Conclusion: No, the Court held that the Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. “If an officer has PC to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”
  • Dissent: O’Connor’s argued that the Court’s decision “neglects the Fourth Amendment’s express command in the name of administrative ease” and thus “cloaks the pointless indignity that D suffered with the mantle of reasonableness.”
  • Bacon v US: the power to arrest and detain a person as a material witness was fairly inferable from what is now 18 USC 3144, but then relied upon the 4th Amnd in concluding that such arrest was permissible only upon a need for custody showing
    • Material Witness: a person with information alleged to be material concerning a criminal proceeding. 18 USC 3144 allows material witnesses to be held to ensure the giving of their testimony in criminal proceedings or to a grand jury
    • 18 USC 3144: If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken
  • A material witness arrest must be based upon probable cause, which must be tested by two criteria:
    • That the testimony of a person is material
    • That it may become impracticable to secure his presence by subpoena
  • U.S. v. Mota (9th Cir. 1993): 9th Cir excluded evidence obtained after an arrest for operating a food cart w/o a license—an offense for which the statute mandated only a citation. Ct said arrest itself was unreasonable, and thus unlawful under 4th Am.

*** Note that the SC has never taken the position that an arrest made on PC violates the 4th Am merely b/c a taking of custody is deemed unnecessary.

  • Terry v. U.S. (1996): Vice-squad officers patrolling high drug area were suspicious of truck containing youthful occupants. Truck remained at stop sign for more than 20 seconds. When cops made U-turn to head back toward truck, it took off at “unreasonable” speed. Cops stopped truck, saw bags of drugs in W’s hands. s argued that stop was not based on PC and that officer’s reasons for approaching vehicle—to give warning concerning traffic laws—was pretextual. SC aff’d convictions.
  • Reasoning (Scalia): Don’t need PC, only need reasonable suspicion, which is less than PC
  • Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous.
    • Officer’s subjective motivation does not invalidate objectively justifiable behavior. See Robinson.
  • EPC can be used to prevent racial profiling.
    • But K: In U.S. v. Armstrong, petitioners tried to prove racial discrimination in arrests, and Court said it’s not sufficient to show that all arrestees were black. And what if you do show racial discrimination? There’s no ER under EPC, so evidence still gets in.
    • K: Ct is essentially saying there’s no such thing as a pretext stop. Now police can stop anyone in a car, b/cthe multitude of traffic laws is so expansive that you can’t possibly be in full compliance at all times.

Other Searches of the Person

  • a. Full searches of an arrested person are usually made when suspect has been delivered to stationhouse. Typically upheld on two bases:
  • i. As a delayed Robinson search incident to arrest
  • ii. As an inventory incident to booking to safeguard the property of the accused and to ensure that weapons and contraband aren’t introduced into the jail.
  • b. But some jurisdictions reject the Robinson rule and/or limited the scope of an inventory search. See, e.g., State v. Kaluna (Hawaii 1974) (strip search unlawfully uncovered drugs in bra); Zehrung v. State (Alaska 1977) (requiring that  be afforded opportunity to post bail first, where practicable).
  • Illinois v. LaFayette (1983) —(see also Bertine) Suspect arrested for disturbing the peace; drugs found in shoulder bag during at-the-station inventory search held admissible. SC: This is okay.
    • Reasoning (Burger):
      • Protects against police theft of suspect’s belongings and false claims thereof.
      • Even if less intrusive means of serving this end are available, such as sealing bag in locker w/o opening it, the 4th Am doesn’t compel police to employ them.
      • Cites S.D. v. Opperman (upholding search of contents of glove compartment of an abandoned automobile lawfully impounded by police).
  • U.S. v. Edwards (1974): Suspect’s clothes could be seized to corroborate physical evidence (paint chips) ten hours after the suspect was taken into custody. Dissent: Could’ve gotten warrant.
  • Can police search someone in custody for evidence of another crime? People v. Trudeau (Mich. 1971) said no, but that was before Robinson, Edwards, and LaFayette.
  • Schmerber v. Calif.: Blood can be seized from drunk driving suspect. Balance intrusiveness w/ emergency/risk of delay.
  • Winston v. Lee (1985): Applying Schmerber balancing test, Ct held that proposed court-ordered surgery on  (for purpose of removing bullet expected to prove that  was robber hit by victim’s gunfire) would constitute an unreasonable search. Reasonableness of surgical intrusions depends on case-by-case approach that balances individual’s privacy interests with society’s interests in conducting the procedure.
  • U.S. ex rel. Guy v. McCauley (E.D.Wisc. 1974): Stationhouse search of vagina of incarcerated female violated due process b/c not conducted by skilled medical technician.
  • Knowles v. Iowa (1998): Unanimous Court (Rehnquist) rev’d conviction where officer stopped  for speeding, issued citation, and made full search of car (uncovering drugs).
    • Reasoning: (1) No threat to officer once suspect ordered out of car and patted down; (2) No need to preserve evidence of speeding.
  • Cupp v. Murphy (1973): Where a murder suspect came voluntarily to the police station, it was permissible to take scrapings of what appeared to be blood under his fingernails given the evanescent nature of the evidence.




Chimel v. California (1969): Police showed up at home of , who was suspected of robbing a coin store, with an arrest warrant. When he arrived, they showed him the arrest warrant and asked for permission to look around. He objected, but they nonetheless conducted search of entire house and found contraband.

  • Q: Was the warrantless search of ’s entire house constitutionally justified as incident to a warranted arrest? Ct: No.
  • Reasoning (Stewart):
  • Rabinowitz (1950) Rule: Warrantless search “incident to a lawful arrest” may generally extend to the area that is considered to be in the “possession” or under the “control” of the person arrested. That rule, however, can withstand neither historical nor rational analysis.
  • When arrest is made, it’s reasonable for arresting officer to search the person arrested in order remove any weapons that the arrestee might seek to use in order to resist arrest or to escape. It’s also entirely reasonable for officer to search for and seize any evidence on the arrestee’s person in order prevent its concealment or destruction, and the area into which an arrestee might reach in order to grab a weapon or evidentiary items—that is, the area “within his immediate control”—must be governed by a like rule.
  • But not other rooms or concealed areas.Rabinowitz and Harris overruled.
  • So what do police do where they’ve arrested a guy at home but don’t have a search warrant? K: They impound the house and wait for somebody to go get a search warrant.

Search of Premises Incident to or After Arrest Therein

What constitutes grabbing distance or “immediate control”?

  • People v. Hufnagel (Colo. 1987): It’s irrelevant whether the arrestee was physically able to reach the exact place searched at the exact moment searched. See, e.g., People v. Perry (Ill. 1971) (search lawful where police handcuffed , took him out of hotel room, then searched dresser drawer into which they had seen him shove something).

When, if ever, can officers look into other areas of ’s home after  has been placed under arrest there?

  • Giacalone v. Lucas (6th Cir. 1971):  initially told police he was ready to go; they insisted he change clothes, then searched drawers before he did so.

When is a “protective sweep” permissible?

  • Maryland v. Buie (1990): Court rejected state court’s requirement of full PC; citing Terry and Long, it opted for a less demanding reasonable suspicion test.
  • Two-Part Sweep Rule: (1) There must be articulable facts that, taken together w/ rational inference from those facts, would warrant a reasonable, prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. (2) Protective sweep is not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than necessary to dispel the reasonable suspicion of danger and, in any event, no longer than it takes to complete the arrest and depart the premises.
    • K thinks this test is weird: is it something different from PC? Ct never says PC

When the officers are seeking other offenders. See People v. Block (Cal 1971).

  • Washington v. Chrisman (1982): Warrantless entry of premises may be permissible incident to and following an arrest elsewhere. Here officer arrested  and then accompanied him into dorm room to obtain I.D.; found marijuana and pipe in room. “We hold… that it is not ‘unreasonable’ under the 4th Am for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest.”
    • Plain view doctrine. See supra

Warrantless Searches of Premises Under Exigent Circumstances

  • Vale v. Louisiana (1970)
  • Disallowed a search where suspected drug dealer was searched in front of his home and the officer proceeded inside to see if anyone else was present.
  • K actually sides with dissent; officers couldn’t have gotten a warrant. B/c ’s mother and brother arrived home during arrest, the police couldn’t leave and let them destroy the evidence.

Securing the Premises While Getting Warrant

  • U.S. v. Grummel(9th Cir. 1976): Search permissible when suspect’s mother was at home at time of arrest; agent gave her option of leaving premises or remaining inside w/ him while another agent left to get a search warrant.
  • Segura v. U.S. (1984): Police arrested  when she answered door of apt. Made warrantless entry of apt and remained until search warrant was issued—19 hours later (b/c of “administrative delay”).
  • Ct: This is okay. Cops had PC for entry and arrest of occupants. Good faith attempt to obtain warrant, despite delay. Evidence first discovered in execution of warrant was not a fruit of illegal entry. Didn’t decide whether police action constituted seizure, but even if it did, it was reasonable. “Wiser course” may have been to secure from outside, but method doesn’t change the 4th Am result insofar as seizure is concerned. Interference with property interests was almost nonexistent b/c occupants had been taken into custody.
  • Illinois v McArthur: (2000): D’s wife asked two police officers to accompany her to her trailer, where she lived with her husband, D, so that they could keep the peace while she removed her belongings. While at the trailer, W told police that her husband had marijuana hidden under the couch. Police asked D to search trailer, who denied so P went to get a search warrant. Police told D he could not reenter his trailer, unless a police officer accompanied him. Afterwards, police stood just inside the door to observe D when he went into the trailer. About two hours later, a search warrant was obtained. Subsequently, a search of the trailer transpired and officers found drug paraphernalia and marijuana. D moved to suppress the drug paraphernalia and marijuana on the ground that they were the “fruit” of an unlawful police seizure, namely, the refusal to let him reenter the trailer unaccompanied, which would have permitted him, he said, to “have destroyed the marijuana.”
  • Question: Do officers, with probable cause to believe that a man had hidden marijuana in his home, who subsequently prevent that man from entering the home for about two hours while they obtain a search warrant, violate the Fourth Amendment?
  • Conclusion (Breyer) No, given the nature of the intrusion and the law enforcement interest at stake, the brief seizure of the premises was permissible under the Fourth Amendment. “We have found no case in which this Court has held unlawful a temporary seizure that was supported by probable cause and was designed to prevent the loss of evidence while the police diligently obtained a warrant in a reasonable period of time.”
  • Dissenting, Stevens noted he would have dismissed the writ of certiorari as improvidently granted.
  • Brigham City v Stuart (2006): Responding to a complaint about a loud party, police arrived at a house where they saw minors drinking alcohol outside and heard shouting inside. As they approached the house, they saw a fight through the window involving a juvenile and four adults, one of whom was punched hard enough to make him spit blood. The officers announced their presence, but the people fighting did not hear them so they entered the home. They arrested the men for contributing to the delinquency of a minor and other related offenses.
  • Question: What objectively reasonable level of concern is necessary to trigger the emergency aid (enter w/o warrant in emergency) exception to the Fourth Amendment’s warrant requirement?
  • Conclusion:  In a unanimous decision, the Supreme Court held that police may enter a building without a warrant when they have an objectively reasonable basis to believe that an occupant is “seriously injured or threatened with such injury.” Quoting from Mincey v. Arizona, Roberts wrote that “[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.”
  • U.S. v. Rubin (3d Cir. 1973) When agents have PC to believe that evidence will be destroyed or removed before they can secure a search warrant, a warrantless search is justified. Courts should consider degree of urgency; possibility of danger to officers if they guard evidence; reasonableness of belief that evidence is about to be removed; indications that suspects know police are on their trail; and ready destructability of contraband.

Homicide Scene Exception

  • Many courts have held that when police are summoned to scene of homicide, they may remain on premises without warrant to conduct general investigation.
  • But Mincey v. Arizona (1978) declined to hold that the seriousness of the offense under investigation itself creates exigent circumstances of the kind that justify warrantless search under 4th Am.
  • Thompson v. Louisiana (1984) applied Mincey in invalidating two-hour general search of premises to which police were summoned b/c of ’s attempt to get medical assistance after shooting her husband.
  • Flippo v. West Virginia (1999): After ’s 911 call that he and his wife had been attacked at a cabin in a state park, police arrived at scene and found  outside wounded and his wife dead inside. SC, citing Mincey, excluded contents of briefcase near body, found upon a warrantless police reentry and search several hours later.
  • When evidence of crime is fortuitously discovered by police w/o warrant while they are performing other functions, courts find it necessary to assess the reasonableness of the police conduct under the 4th Am.
  • Payton v. New York (1980): Consolidated cases. P’s case: Police had PC to believe P committed murder. Went to apt, w/o warrant; no response to knock, but light and music emanated from apt. Used crowbars to enter; no one home. Seized shell casing in plain view. In Riddick’s case, police went to R’s home w/o warrant. When his young son opened door, they could see R sitting in bed. They entered and arrested him; also searched chest of drawers two feet from bed in search of weapons and seized narcotics found inside.
  • Question: Does a warrantless entry of a home for the purpose of arresting with probable cause violate the 4th Amendment? Ct: Yes.
  • Reasoning (Stevens):
  • An entry to arrest and an entry to search for and to seize property implicate the same interest in preserving the privacy and sanctity of the home, and they deserve the same level of constitutional protection.
  • Rule: Absent exigent circumstances, the threshold of the home may not be crossed without a warrant. Unequivocal constitutional demand.
  • Ct noted that an arrest warrant founded on PC implicitly carries w/ it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.
  • Dissent: Majority ignores common law exceptions. Rule will hamper law enforcement.

Additional Cases Regarding the Warrantless Entry of the Home to Effect Arrest

  • Hot pursuit” Rule: Warden v. Hayden (1967) upheld warrantless entry and search where reliable witnesses reported a recent armed robber went into the house five minutes earlier. Ct admitted clothing found in washing machine, where an officer looked for weapons prior to or immediately contemporaneous with ’s arrest. “The 4th Am does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.”
  • Threshold: U.S. v. Santana (1976) held that Watson, see supra, permitted police to attempt a warrantless arrest of  when she was “standing directly in the doorway—one step forward would have put her outside, one step backward would have put her in the vestibule of her residence.” She was in a public place—exposed to public view, speech, hearing, and touch; as exposed as she would’ve been had she been completely outside. Thus, under the Hayden hot pursuit rule, the police could’ve pursued her w/o a warrant when she sought refuge within upon their approach.
  • Exceptional Circumstances: Dorman v. U.S. (D.C. Cir. 1970) (relied on in Payton) laid out these considerations: grave offense; suspect reasonably believed to be armed; better than minimum PC that suspect is guilty; strong reason to think suspect is home; likelihood that suspect will escape if not swiftly arrested; entry, if not consented, is peaceable; time of day.
  • Gravity of offense: Cited by Welsh v. Wisconsin (1984) in holding hot pursuit doctrine didn’t justify a warrantless home entry and arrest for drunk driving. But dissent noted likelihood that evidence would be destroyed.
  • Minnesota v. Olson (1990) invalidated a warrantless entry and arrest when driver of getaway car from armed robbery was thought to be in apt surrounded by police. On the theory that escape was virtually impossible—and that there was no evidence that the suspect was a danger to anyone in the apt—Ct held that police should have waited for warrant; no exigent circumstances.
  • Steagald v. U.S. (1981): In the course of executing a warrant for L, police entered ’s home, where they discovered drugs in plain view.  arrested and convicted. SC rev’d.
  • Reasoning (Marshall):
    • Agents sought to do more than to use warrant to seize L in public place. They relied on it as authority to enter home of 3rd person based on belief that L might be there. This belief was never subjected to the detached scrutiny of a magistrate. ’s privacy interest was violated.
    • If we allowed this, the police, armed solely w/ an arrest warrant, could search houses of all of that individual’s friends and acquaintances. Or arrest warrant could be used as pretext for entering home in which police have a suspicion, but not PC to believe, that illegal activity is taking place.
  • California v. Carney (1985): DEA agents questioned youth after he exited motor home they had seen him enter with  over an hour earlier. They had reports that  was exchanging marijuana for sex; youth corroborated that info. Agents entered motor home w/o warrant and observed drugs and paraphernalia in plain view. They arrested  and took possession of motor home; subsequent search revealed more marijuana. US SC aff’d conviction.
  • Reasoning (Burger):
    • Carroll v. U.S. (1925) established “automobile exception” to the general rule that a warrant is req’d before search. Carroll reasoned that privacy interests in automobile exist, but they’re entitled to less protection b/c of mobility.
  • Two-Fold Rationale emerges from prior cases:
    • Ready mobility.
    • Lower expectation of privacy than in home or office.
  • Pervasive regulation of vehicles reduced expectation of privacy.
  • Motor home is a vehicle, not a home, b/c readily mobile; licensed to operate on streets; situated in such a way that objective observer would think it was being used as a vehicle, not a residence. Ct declined to decide what the outcome should be where a motor home is situated in a way that objectively indicates that it’s being used as a residence.
  • Dissent:
  • Warrant would’ve been easy: They were close to courthouse, or could’ve called.
  • Compares U.S. v. Chadwick (1977) (holding that warrantless search of footlocker violated 4th Am even though there was ample PC to believe it contained contraband), stating that there are greater privacy interests in mobile homes than in luggage.

The Scope of the Automobile Exception

  • The “ready mobility” language does not mean there has to be an actual likelihood that the vehicle will be moved if search isn’t conducted immediately. See, e.g., Chambers v. Maroney (1970): An impounded car could be searched w/o a warrant, even though it was secure in the police lot and a warrant could easily have been obtained. Numerous other cases hold that the impossibility of flight or tampering does not alter the automobile exception.
  • Maryland v Dyson: ct reversed a state ct decision holding that in order for the automobile exception to the warrant requirement to apply, there must not only be probable cause to believe the evidence of a crime is contained in the car, but also a separate finding of exigency precluding the police from obtaining a warrant.
  • Florida v. White(1999) upheld the warrantless seizure of a car on PC that it was contraband under the state forfeiture law.
  • Probable cause required
  • Chambers held that police just need a “probable cause to search a particular auto for particular articles.”
  • ii. PC limits the scope and intensity of the search. Some cases indicate that, for example, pulling up flooring of truck goes too far.
  • U.S. v. Di Re: PC for a warrantless search of the car does not necessarily authorize searching the persons of the occupants.
  • Wyoming v. Houghton (1999): Cops stopped car for speeding and faulty brake light. While questioning driver (Y), officer saw syringe in his pocket and ordered him out of car. Y admitted he used syringe to take drugs. Another officer ordered respondent (H) out of car and searched the passenger compartment of the car. On the back seat, he found a purse, which H claimed was hers. Inside he found a brown pouch and a black wallet-type container, both of which contained drugs. H acknowledged that the wallet was hers, but she said the pouch was not hers, nor did she know how it got there. WY SC rev’d conviction, holding that search violated 4th & 14th Am; officer knew purse didn’t belong to driver, and no PC to search passengers’ personal effects or reason to believe there was contraband in them. US SC rev’d.
  • Reasoning (Scalia):
    • U.S. v. Ross (1982): Warrantless search of auto under Carroll could include search of container or package found inside the car. Ross involved the search of a brown paper bag found in trunk of car pursuant to informant’s tip. If PC justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the car and its contents that may conceal the object of the search. Thus, Carroll includes a “probing search” of compartments and containers within the auto so long as the search is supported by PC.
      • Later cases have characterized Ross as applying to all containers within a car, without qualification as to ownership.
    • Permissible scope of a warrantless car search is defined by the object of the search and the places in which there is PC to believe that it may be found
    • Passengers, like drivers, possess reduced expectation of privacy. And passenger may be in common enterprise w/ driver, w/ same interest in concealing fruits
    • Distinguished Ybarra and Di Re as limited to body searches.
    • Rule: Police officers w/ PC to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search.
    • Breyer, concurring, had some problems with fact that it was a purse, noting that it would be different if it had been on her person.
  • California v. Acevedo (1991): Police observed , w/ paper bag in hand, leaving apt of man known to have marijuana in his possession.  placed bag in trunk of car and drove off. Police stopped him, searched trunk and bag, and found drugs.
  • Q: Does the 4th Am require police to obtain a warrant to open a sack in a movable vehicle simply because they lack PC to search the entire car? SC: No.
  • Reasoning (Blackmun):
    • Ross rejected Chadwick’s distinction between containers and cars—i.e., a person’s privacy expectations in cars and luggage are equal.
      • In Ross, police had probable cause to search whole car. But distinction between PC to search car and PC to search package isn’t always clear.
      • If police know they can only search bag if they have PC to search entire car, they may search more extensively than they otherwise would in order to establish the general PC required by Ross.
    • The search here is far less intrusive than Carroll, where seats were slashed. Chadwick-Sanders rule affords minimal protection of privacy.
  • Held: 4th Am does not compel separate treatment for an auto search that extends only to a container within the vehicle. The interpretation of the Carroll doctrine set forth in Ross now applies to all searches of containers in vehicles. In other words, police may search w/o warrant if search is supported by PC.
  • Scalia’s concurrence: Should return to the first principle that the “reasonableness” req’t of the 4th Am affords the protection that the common law afforded.
  • Stevens’ dissent: Why should privacy expectation disappear when one climbs into a taxi or puts luggage in privately owned car?
  • K: Anomaly: You can’t search closed container outside car, but you can search closed container in car if you have PC. Early doctrine said that if police are focusing on particular suitcase, etc., they can’t search it outside car, and they can’t stop him once he gets in car. It had to be a car search, not just a search specifically of the container. This line dissolved.
  • Illinois v. Andreas (1983) upheld the arrest and search of a man who had drugs hidden in table delivered to him by undercover cops. Once an item is lawfully searched, one’s privacy interests in it are destroyed. An individual’s privacy interests in the item are restored when there is a substantial likelihood that, during a gap in surveillance, the contents of the container have been changed.
  • New York v. Belton (1981): Cop stopped car carrying four men for speeding. Smelled burnt marijuana, saw enveloped marked “Supergold.” Ordered men out, arrested them, and patted them down. Searched each individual and the car, including B’s leather jacket, where he found cocain
  • Q: What is the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants? Ct: Passenger compartment.
  • Reasoning (Stewart):
    • Need for single, familiar standard to guide police.
      • Robinson rule: Full search of person is reasonable when incident to a lawful custodial arrest.
      • Chimel: Search incident to arrest may not extend between the area within the immediate control of the arrestee. In automobile cases, that area is the entire passenger compartment.
  • Rule: When police make lawful custodial arrest of occupant of vehicle, they may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile. Police may also search the contents of any containers found within the passenger compartment.
  • K: Brennan’s dissent exaggerates the impact of this case. Search must be contemporaneous with arrest.
  • Colorado v. Bertine (1987):  arrested for DUI. While in custody, and before van impounded, backup officer conducted inventory search, during which he discovered drugs in closed backpack.
  • Q: Does the 4th Am require suppression of evidence discovered during inventory search? Ct: No.
  • Reasoning (Rehnquist): Inventory searches are well-defined exception to requirements of warrant and PC.
  • 4th Am doesn’t require police to adopt least intrusive means. No need to weigh owner’s privacy interest against likelihood that it may conceal contraband.
  • Rule: Reasonable police regulations relating to inventory procedures administered in good faith satisfy 4th Am.

More on Inventory Searches

  • Evidence found in an otherwise lawful inventory must be suppressed if the prior impoundment of the vehicle was not justified. See, e.g., Dyke v. Taylor Implement Mfg. Co. (1968) (search of car outside courthouse while driver was inside posting bond was improper); State v. Simpson (Wash. 1980) (where  arrested at home, impoundment of his truck lawfully parked in front of house was illegal).
  • Florida v. Wells(1990): Inventory of locked suitcase found in an impounded vehicle was unlawful under Bertine b/c “the Fla. Highway Patrol had no policy whatever w/ respect to the opening of closed containers encountered during an inventory search.” Can give police some latitude, but can’t grant them “uncanalized discretion.”
  • Ex Parte Boyd (Ala. 1989) struck down search conducted 4 days after impoundment. “There must be sufficient temporal proximity between the impoundment and the inventory.”



  • Terry v. Ohio (1968): Officer observed 3 men casing a store. He stopped them and frisked them for wepons, finding guns.
  • Q: Is it always unreasonable for a policeman on the beat to seize a person and subject him to a limited search for weapons unless there is PC for an arrest? Ct: No.
  • Reasoning (Warren):
  • Exclusionary rule has limitations. Sometimes it doesn’t deter—e.g., where police either have no interest in prosecuting or are willing to forego successful prosecution in the interest of serving some other goal.
    • This is clearly a search & seizure—serious intrusion that calls 4th Am into play.
  • Dual inquiry:
    • Was the officer’s action justified at its inception?
    • Was it related in scope to the circumstances that justified it in first place?
  • This rubric of police conduct—necessarily swift action based on on-the-spot observations of policeman on the beat—not subject to warrant procedure.
  • Officer must be able to point to specific and articulable facts that justify the intrusion.
  • Objective standard: Would the facts available to the officer at the moment of the search or seizure warrant a man of reasonable caution in the belief that the action taken was appropriate?
    • Immediate interest of officer in taking steps to assure himself that suspect is not armed—protect himself and other potential victims.
  • Rule: There must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe he is dealing w/ armed and dangerous individual, regardless of whether he has PC to arrest the individual for a crime.
  • Scope: Sole justification is protection of officer and others nearby, and must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of officer.
  • Holding: Where officer observes unusual conduct that leads him reasonably to conclude in light of his experience that criminal activity may be afoot… he can search the outer clothing of such persons in an attempt to discover weapons that may be used to assault him.
  • Arizona v Gant (2009): D apprehended by police on an outstanding warrant for driving with a suspended license. After the officers handcuffed D and placed him in their squad car, they went on to search his vehicle, discovering a handgun and a plastic bag of cocaine.
  • Question: Is a search conducted by police officers after handcuffing the defendant and securing the scene a violation of the Fourth Amendment’s protection against unreasonable searches and seizures?
  • Conclusion: Yes, under the circumstances of this case. The police may search the vehicle of its recent occupant after his arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of the arrest. The Court reasoned that “warrantless searches are per se unreasonable” and subject only to a few, very narrow exceptions. Here, D was arrested for a suspended license and the narrow exceptions did not apply to his case.
  • Dissent (Alito): Argued that the majority improperly overruled its precedent in New York v. Belton which held that “when a policeman has made a lawful arrest… he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Breyer also wrote a separate dissenting opinion, where he lamented that the court could not create a new governing rule.

Police Action Short of a Seizure

  • Florida v. Bostick (1991): Police, w/ badges and guns prominently displayed, boarded bus and, admittedly w/o articulable suspicion, asked B if they could search his bags; found drugs. Ct upheld the search.
    • Reasoning (O’Connor): “So long as a reasonable person would feel free ‘to disregard the police and go about his business,’ the encounter is consensual and no reasonable suspicion is required.” Reasonable person test presupposes innocent person.
      • Cramped confines of bus didn’t make it coercive. Okay as long as police don’t covey message that compliance is req’d.
  • INS v. Delgado (1984): INS agents came into factories and asked employees if they were illegal aliens. Ct upheld practice despite fact that agents were guarding exits, essentially preventing interviewees from leaving. Remanded to determine whether seizure occurred.
  • California v. Hodari D. (1991):  fled upon seeing an approaching police car, only to be pursued on foot by officer.  tossed away what appeared to be a small rock but which, when retrieved by police, proved to be crack cocaine.
  • Reasoning (Scalia): No physical force; show of authority does not constitute seizure.
    • Seizure” means laying on of hands or application of physical force, even when it is ultimately unsuccessful. Police yelling, “Stop!” is not seizure.
    • An arrest requires either physical force or submission to the assertion of authority.
  • K: Before Hodari, if police made show of authority, it was a seizure. But Hodari adopts the “no restraint, no seizure” model”: You’re not seized unless you’ve been stopped or until you submit.
  • US v Drayton (2002):The fourth amendment permits police officers to approach bus passengers at random and ask questions and request consent to searches provided a reasonable person would understand that he or she is free to refuse, but MUST the officer advise the passengers of their right not to cooperate?
  • Reasoning: First, the officers did not seize the Ds according to the Bostick rule.  Second, the search was reasonable b/c the Ds consented to it and knew it was occurring.  Third, the court rejects in specific terms the suggestion that police officers MUST always inform citizens of their right to refuse when seeking permission to conduct a warrantless search.
  • Dissent: Here, the Ds did not reasonably feel as though they could deny the officers access to their bags and persons.  Not only did the officers take over the bus by walking up the isle and placing an officer at the front of the bus, but by asking every passenger about their bags.  The reasonable inference is that the officers would prefer cooperation, but won’t let lack of it stand in their way.  However, the dissent is not prepared to say that no bus search will pass without giving passengers a proper warning as to their rights, this one does not pass and is in violation of the 4th.
  • Brendlin v CA (2007): when an officer making a traffic stop seizes the passengers as well as the driver, ask whether a reasonable person in the passenger’s position when the car stopped would have believed himself free to terminate the encounter between the police and himself.
  • County of Sacramento v. Lewis(1998): “[N]o 4th Am seizure would take place where a ‘pursuing police car sought to stop the suspect only by the show of authority represented by flashing lights and continuing pursuit,’ but accidentally stopped the suspect by crashing into him.” This is b/c 4th Am seizure requires “a gov’tal termination of freedom of movement through means intentionally applied.”

Grounds for Temporary Seizure for Investigation

  • U.S. v. Cortez (1981): “[T]he totality of the circumstancesthe whole picture—must be taken into account. Based on that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Process deals with probabilities.
  • Sibron v. U.S. (1968): Officer who observes a shady character repeatedly conversing w/ drug addicts but doesn’t hear what they discuss or see anything passed between them may not stop and frisk the suspect. “For all he knew, they might ‘indeed have been talking about the World Series.’ The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is not the sort of reasonable inference req’d to support an intrusion by the police…”
  • Florida v. J.L. (2000): Anonymous caller reported to police that young black male standing at particular bus stop wearing plaid shirt was carrying a gun. Officers went to bus stop, saw youth, but had no reason to suspect him apart from tip. Nonetheless, they frisked him and found gun. SC held search unreasonable.
  • Reasoning (Ginsburg):
    • Alabama v. White (1990) upheld search where informant suggested that  would emerge from her home w/ brown attaché case carrying cocaine, get into a brown station wagon w/ precise characteristics, and go to motel. When police saw that the descriptions were verified and that  was headed in direction of motel, they stopped her and asked if they could look for cocaine. She consented; they found cocaine in attaché. Ct: “Close case.” An anonymous tip alone seldom demonstrates the informant’s basis of knowledge of veracity. But there were moderate indicia of reliability.
  • Here there are not same indicia of reliability that were essential in White. Tip accurately describing a subject’s location and appearance is not enough, b/c it doesn’t show that tipster has knowledge of concealed criminal activity. Reasonable suspicion requires that tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.
  • We don’t speculate about circumstances under which danger alleged in tip might be so great as to justify search even w/o showing of reliability—e.g., bomb—nor do we hold that officers in quarters where 4th Am privacy is diminished—e.g., airports and schools—can’t conduct protective searches that aren’t justified in other contexts.
  • U.S. v. Sokolow (1989): “Reasonable suspicion” defined as a level of suspicion “considerably less than proof of wrongdoing by a preponderance of the evidence.” Police had reasonable suspicion that  was drug courier where he paid $2,100 for two tickets from Honolulu to Miami from a roll of $20s, traveled under fake name, stayed in Miami only 48 hours, seemed nervous, and checked no luggage.
  • U.S. v. Hensley (1985): By analogy to Whitely, Ct held that if a flyer or bulletin has been issued on basis of articulable facts supporting reasonable suspicion that wanted person has committed offense, reliance on bulletin justifies a stop to check I.D., question, or briefly detain person.
    • Rejected lower court’s holding that Terry is limited to ongoing criminal activity, stating that the limits of Terry stops are defined by a reasonableness test that balances nature and quality of intrusion on personal security against importance of gov interests.
  • Illinois v. Wardlow (2000): 4 PD cars were converging on high-drug area; cop saw  look at cops and run away.  stopped and frisked; cops found handgun.
    • Ct (Rehnquist): Standing in high-crime area doesn’t constitute “reasonable, particularized suspicion” of criminal activity. But fact that individual is in a high-crime area is on factor that cops can consider. Here, suspicion was also aroused by unprovoked flight, and “nervous, evasive behavior is a pertinent factor.” There may be innocent reasons to run, but cops can stop to resolve the ambiguity.
    • Stevens, for 4 dissenters, said the totality of the circumstances, as always, should dictate result and found that record failed to establish reasonable suspicion.
    • K: Kids are more likely to flee in high-crime neighborhood; it’s more suspicious in a low-crime, high-income neighborhood.
  • US v Sharpe: In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the D. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second guessing.
    • Concurring: A stop must first be found not unduly intrusive, particularly in its length, before it is proper to consider whether law enforcement aims warrant limited investigation

Permissible Extent of Temporary Seizure

  • Courts differ as to how long seizure may continue before it becomes illegal. One court held 25 minutes too long where no additional suspicion; another said 1 hour not too long when suspect was giving implausible answers.
  • Hiibel v Sixth Judicial District Court (2004): Hiibel was arrested and convicted in NV for failing to identify himself to a police officer who was investigating an assault. NV, and many other states, has a law that requires a person to tell an officer his name if asked. Hiibel challenged the conviction, claiming it violated his Fifth Amendment right not to incriminate himself and his Fourth Amendment right to be free from unreasonable searches.
  • Question: Did Hiibel’s arrest and conviction for not telling a police officer his name violate his Fifth Amendment right not to incriminate himself and his Fourth Amendment right to be free from an unreasonable search?
  • Conclusion: No, the Court ruled that the search did not violate the Fourth Amendment because it was based on reasonable suspicion (the police officer was investigating the assault, and Hiibel was nearby) and involved only a minimally intrusive question (his name). It also did not violate the Fifth Amendment because Hiibel never argued that telling the officer his name would actually incriminate him of any crime. “While we recognize petitioner’s strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the NV Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him.”
  • Illinois v Caballes (2005): D was convicted of cannabis trafficking, and he appealed from denial of motion to suppress evidence discovered during traffic stop of vehicle he was driving.
    • Holding: Where lawful traffic stop was not extended beyond time necessary to issue warning ticket and to conduct ordinary inquiries incident to such a stop, another officer’s arrival at scene while stop was in progress and use of narcotics-detection dog to sniff around exterior of motorist’s vehicle did not rise to level of cognizable infringement on motorist’s Fourth Amendment rights, such as would have to be supported by some reasonable, articulable suspicion.
  • Ohio v. Robinette (1996): Deputy on “drug interdiction patrol” stopped  for speeding. After issuing verbal warning, he asked  if he had drugs in car and asked to search the car.  consented; deputy found small amt of drugs. OH SC suppressed the evidence, holding that cop who is through must tell person s/he is free to leave before further interrogation. SC rev’d.
    • Ct (Rehnquist): Such a warning is not a prerequisite to a voluntary consent. Requiring them would be just as impractical as the right-to-refuse-consent warnings held unnecessary in Schneckloth v. Bustamonte (infra). Citing Whren, Ct declared that the subjective intentions of officer didn’t make the continued detention illegal.
    • Stevens in dissent characterized OH SC’s decision differently and noted that this deputy had used this tactic to make 786 consent searches in one year.
  • AZ v Johnson (2009): To justify a patdown of the driver or a passenger during a traffic stop, the police must harbor reasonable suspicion that the person is armed and dangerous.

Temporary Seizure of Effects

  • U.S. v. Van Leeuwen (1970): Although at some point detention at mail may become a seizure, here it was permissible for police to delay delivery of package for one day while a warrant for their search could be issued.
  • U.S. v. Place(1983): Taking ’s luggage for 90 minutes, then holding it over weekend while waiting for warrant, violated 4th Am. length of the detention makes seizure here unreasonable in absence of PC.



Safety Inspections

  • Camara v. Municipal Court (1967): If people refuse the administrative inspection of their home for fire, health, and housing code violations, the authorities need a warrant, but PC exists if scheme of inspection is reasonable. Balancing approach.
  • Ct has often upheld warrantless business inspections by emphasizing the “closely regulated” nature of the business, and that the inspection permitted by statute or reg. is “carefully limited in time, place, and scope.” New York v. Burger (1987)

Border Searches

  • U.S. v. Ramsey (1977) upheld a customs inspection of mail entering U.S. (which, by regulation, could not extend to reading of correspondence). Search was constitutional under longstanding rule that border searches are considered “reasonable” by the single fact that person or item entered country from outside.
  • But nonroutine border inspections require more. Must have “real suspicion” for strip search and “clear indication” for body cavity search.

Vehicle checkpoints

  • Searching for Illegal Aliens: Stopping vehicles and searching for illegal aliens away from the border requires probable cause, Almeida-Sanchez v. U.S. (1973), even at a permanent checkpoint, U.S. v. Ortiz (1975). But brief questioning of vehicle occupants at such checkpoints is permissible without any individualized suspicion whatsoever, U.S. v. Martinez-Fuerte (1976), and only Terry-type reasonable suspicion is needed to stop motorists away from border and inquire as to their residential status.
  • Delaware v. Prouse (1979): Absent reasonable suspicion, police may not stop individual vehicles for purpose of checking driver’s license and registration. K: So you can set up roadblocks, but you can’t randomly stop individual cars on the highway. There is less of a stigma attached to—and a greater political check on—roadblocks, because everyone is being checked.
  • Mich. Dep’t of State Police v. Sitz (1990) upheld checkpoint stop and brief sobriety check. Edmond characterized Sitz as concerning an “immediate-vehicle bound threat to life and limb.”

Terrorist Checkpoints: courts have upheld checkpoints involving searches directed at those using public facilities deemed likely terrorist targets.

  • Gilmore v Gonzales (2006 9th Circ): Gilmore claimed that being required to show identification in order to travel by plane inside the country is an unconstitutional restriction of his rights to travel, to petition government, and to speak anonymously. Gilmore also complained about being subject to “secret law,” when the airlines and government refused to show the directive under which they were requesting ID. Ct held there was no constitutional violation because air passengers could still travel without identification if they instead underwent the more stringent “secondary screening” search
    • Passengers and luggage are subjected to routine x-ray and magnetometer checks and closer scrutiny under suspicious circumstances…
    • US v Harwell (3rd Circ): …and some passengers are randomly selected for more intense scrutiny is ok

Search of students.

  • New Jersey v. T.L.O. (1985): Teachers may reasonably search students where they have reasonable grounds for suspecting that search will uncover evidence that student has violated or is violating a rule of the school.
    • School officials need not obtain a warrant before searching a student who is under their authority
    • Ordinarily a search of a student by a teacher or other school official will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school
    • Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction

Drug testing

  • Nat’l Treas. Emp. Union v. Von Raab (1989) upheld as reasonable the suspicionless drug testing of people being promoted to drug interdiction jobs and those who will be carrying firearm. Proper balancing process.
  • Skinner v. RR Labor Exec. Ass’n (1989), by similar balancing, upheld blood and urine testing of railway employees following major train accidents or incidents and the breath and urine testing of employees who violated certain safety rules.
  • Bd of Educ No 92 of Pottawatomie County v Earl: upheld a random testing policy applicable to students participating in extracurricular activities.
    • All students who voluntarily subject themselves to additional regulations by opting for extracurricular activities have as a consequence a limited expectation of privacy
    • As for the nature and immediacy of the government’s concern, it suffices that the nationwide epidemic makes the war against drugs a pressing concern in every school and that in addition there was specific evidence of drug use at thee schools
    • As for the efficacy of the policy in meeting the government’s concerns, the policy in question is a reasonable effective means of preventing, deterring, and detecting drug use.

Supervision of probationers and paroles; “special needs” v balancing of interests

  • Samson v CA (2006): A police officer stopped and searched Samson on the street in San Bruno, California. The officer had no warrant and later admitted he had stopped Samson only because he knew him to be on parole. The officer found that Samson was in possession of methamphetamines.
  • Question: Did the Fourth Amendment prohibit police from conducting a warrantless search of a person who was subject to a parole search condition, where there was no suspicion of criminal wrongdoing and the sole reason for the search was because the person was on parole?
  • Conclusion (Thomas): No. Samson “did not have an expectation of privacy that society would recognize as legitimate.” Parole allows convicted criminals out of prison before their sentence is completed. An inmate who chooses to complete his sentence outside of direct physical custody, however, remains in the Department of Correction’s legal custody until the conclusion of his sentence, and therefore has significantly reduced privacy rights. In this case, Samson had also been required, as a condition of his parole, to sign an agreement that he would be “subject to search or seizure by a parole officer or other peace officer…, with or without a search warrant and with or without cause.” This written consent to suspicionless searches, along with his already reduced privacy interests as a parolee, combined to make the search constitutional.
  • Stevens, Souter and Breyer dissented, arguing that parolees have an expectation of privacy greater than that of prisoners, which was violated by the search at issue in this case.



  • Schneckloth v. Bustamonte (1973): Guys riding around in car of one passenger’s brother (owner not present); one headlight burned out. Cop stopped car; no one had identification. Cop asked to search, brother said, “Sure, go ahead.” Driver opened trunk and glove compartment. Cop found stolen checks under seat, leading to charges against passenger B.
  • Q: What must the state prove to demonstrate that consent was “voluntarily” given?
  • Ct’s reasoning (Stewart):
    • Prior voluntariness cases, most of which involved confessions, conducted careful scrutiny of all surrounding circumstances. [K: Why return to voluntariness test that was repudiated in Miranda?].
    • Look at totality of circumstances. Knowledge of right to refuse consent is one factor to consider, but not the sine qua non (an essential condition) of effective consent. While the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing voluntary consent
      • Consent searches may be the only means available to cops who lack PC.
  • Consent must never be coerced, by explicit or implicit means, by implied threat or covert force. Consider subtly coercive police questions and the possibly vulnerable subjective state of the person who consents.
    • K: but cts never take into consideration a person’s IQ or how able they are to understand what their rights are
  • Holding: When subject of search is not in custody and State attempts to justify search on basis of consent, the 4th & 14th Am require that it demonstrate that consent was in fact voluntarily given, and not the result of duress or coercion, express or implied.
    • K: but 4th Amnd doesn’t even talk about consent
    • K: Stewart wants the police to be able to exploit people’s ignorance. See also Marshall’s dissent (arguing suspect should be informed of right to refuse consent).
  • Policy: Ct wants to encourage people to cooperate with police so make it difficult to say there wasn’t consent
    • Don’t really want suspects to assert their rights b/c then it would be tough to actually do the search if not good reason of PC. Make same argument about encouraging people to plead guilty and to spill it after Miranda rights are read
      • Getting people to cooperate with the police is a necessary weapon in the police arsenal

Relevant Factors in Determining the Validity of a Consent

  • Bumper v. North Carolina (1968) held that officer cannot lie about having a search warrant. If they obtain consent on the strength of such a lie, the evidence will be excluded. (Stewart wrote for 7-2 majority.) When officer claims to have a warrant, he in effect announces that suspect has no right to resist the search.
  • Consent may be held ineffective b/c obtained in exploitation of a prior illegal arrest under Wong Sun’s fruit of the poisonous tree doctrine.
  • K: if officer says, “You’re not going to make me jump through hoops to get a search warrant, so give me consent,” this would give D a good argument that there was coercion but officer would never admit to that
  • K: officer lies about having a search warrant but person says “well that’s ok, I’d let you search either way.” If police have PC to get search warrant, then it’s ok. K says this doesn’t make sense b/c PC to get a search warrant does not justify not getting one if you had time and had PC
    • Recall Florida v. Bostick, supra
  • Prevailing view is that Miranda warnings need not precede a valid consent to search.
  • Standard for measuring scope of consent is neither the suspect’s intent nor the officer’s perception thereof, but rather one of objective reasonableness—i.e., what would the typical reasonable person have understood by the exchange between the officer and the suspect? See Florida v. Jimeno (1991) – it was objectively reasonable for the police to conclude that the general consent to search respondent’s car included consent to search containers within that car which might bear drugs. But, the nature of the container is also relevant. “It is very unreasonable to think that a suspect, by consenting the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk, but it is otherwise with respect to a closed paper bag.”

Third Party Consent

  • Illinois v. Rodriguez (1990): Police were called to J’s house, where they met J’s daughter, F (D’s ex gf), who said she had been assaulted by . F said  was then sleeping in “our” apt and said she’d go there w/ cops to unlock door w/ her key. Officers had no search or arrest warrants. She let them in; they observed drugs in plain view; arrested  and seized drugs.  claimed F had vacated apt several weeks earlier and had no authority to consent to entry.
  • Q: Can ex-girlfriend’s consent legitimize the search? Ct: Yes.
  • Reasoning (Scalia):
  • Matlock “common authority”—mutual use of property by persons generally having joint access or control for most purposes. Anyone w/ common authority has right to consent; others assume risk that this will occur.
    • F did not have common authority here. But 4th Am does not demand that officers’ judgments be correct—only that they be “reasonable.”
  • What is at issue when a claim of apparent consent is raised is not whether the right to be free of searches has been waived, but whether the right to be free of unreasonable searches has been violated.
  • Objective standard: Would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?
  • Dissent: Majority erroneously assumes that third-party consent cases are generally reasonable. This is not so.

Who may consent

  • Spouse. U.S. v. Duran (7th Cir. 1992): Rebuttable presumption of validity for spousal consent.
    • But if H says no and W says go ahead, can’t search. But, wife could have just delivered the evidence to the police or told police to come to the house when husband wasn’t home and she would give consent
  • Parent-child. Head of household may consent to search of child’s living quarters (where child lives at home and is not clearly an adult); child may not consent to full search of parent’s house.
  • Landlords cannot consent to search of tenant’s premises, but joint tenants can consent even if they occupy separate bedrooms.
  • Employer-employee. Employers may consent to search of top of employee’s workbench, but not to employee’s desk. Employees in charge, such as managers, can consent to search of business.
  • Defendant’s refusal or failure to consent:Georgia v Randolph: when two co-occupants are present and one consents to a search while the other refuses, the search is not constitutional.
    • When two people both do live there but one person gives consent and the other doesn’t. Then, the law is now that the police can’t search but if the other person isn’t around, don’t have to search him out and ask him
  • Limits of Third-Party Consent
    • Antagonism. Cases on both sides.
    • Defendant’s instructions. May depend on whether police knew of instructions.
    • An absent third-party’s consent should not be used to waive another individual’s constitutional rights when that individual is present at the search to give or withhold consent in his own right.
    • Seizure v. Search. U.S. v. Woodrum (1st Cir. 2000) held that the logic of third-party consent to searches can apply to seizures, upholding a program whereby police may stop to check on safety of drivers of those cabs bearing a decal indicating the owner is voluntarily participating in a program contemplating stops; passenger, by entering cab w/ decal, assumed risk).



Undercover Investigations


Secret Agents and the 4th Amendment

  • Hoffa v. U.S. (1966): Partin volunteered, from prison, to be complicitous in capture of Hoffa. Ct upheld the use of Partin to obtain information from meetings to which he was invited.
    • Stewart, for Court, reasoned that no interest legitimately protected by 4th Am was implicated. 4th Am doesn’t protect a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.
    • Warran, dissented, objected that Partin’s testimony was insufficiently credible to support conviction w/o corroboration. K thinks this is best way to dispose of case.
  • Lopez v. U.S. (1963): IRS agent recorded ’s bribe offers by means of a concealed wire recorder. Ct: This was not an illegal seizure.
  • Reasoning (Harlan):
    • On Lee v. U.S. (1952): An old acquaintance and former employee of , was “wired for sound” (meaning mike transmitted all sounds to agent stationed outside) when he entered ’s laundry and got  to make incriminating statements. SC held that agent could testify as to what he heard.
    • Rathbun v. U.S. (1957) (holding that overhearing a conversation on a regularly used telephone extension with the consent of one party to the conversation was not a violation of § 605 of Fed. Communications Act).
  • No eavesdropping here; gov’t didn’t use electronic device to listen to conversations it could not otherwise have heard. IRS agent could’ve testified. This just removed flaws from agent’s credibility or memory.
  • Brennan, for dissenters: On Lee is indistinguishable, and it was wrongly decided. “There is a qualitative difference between electronic surveillance [and] conventional police stratagems such as eavesdropping and disguise. The latter do not so seriously intrude upon the right of privacy.” Brennan calls the use of recorders and transmitters “third parties.”
  • Rochin v. California (1952): stomach-pumping case. DP requires States to “respect certain decencies of civilized conduct.” “Coerced confessions offend the community’s sense of fair play and decency.”
  • U.S. v. White(1971): Informer carried concealed radio transmitter in numerous conversations w/  that were overheard by feds, who either listed to transmitter or, in one instance, were concealed in informer’s kitchen closet. No warrant or court order. Informer didn’t testify at trial; instead, agents’ testimony was admitted. 7th Cir. read Katz as overruling On Lee and rev’d. SC rev’d.
  • Reasoning (White): Katz didn’t overturn On Lee.
  • Undercover agent can, of course, write down his conversations w/ a  and testify concerning them. It’s no different if he records them electronically with device on his person or through transmitter, or if other agents electronically monitor it.
  • assumes risk in trusting confederates.
  • Dissenters. Harlan: Should get warrant for these activities. Brennan: In light of Katz, Lopez and On Lee should be viewed as overruled.

Should the law distinguish between (1) a “trusted accomplice” who, absent prior arrangements with the police, subsequently them with evidence, and (2) a “trusted accomplice” who was a police agent all along—i.e., who was planted by gov’t to secure incriminating evidence?

  • US v Longoria:One exposing conversations to others must necessarily assume the risk his statements will be overheard and understood.
  • Government infiltration of groups engaged in First Amnd Activities
  • US v Mayer:An investigation threatening First Amnd rights is permitted when it was justified by a legitimate law enforcement purpose that outweighs any harm to First Amnd interests. The ct found this requirement satisfied by reports of illegal activity the police had received relating to members of the NAMBLA (men and boys for underage sex) group.
  • Undercover agents and the scope of consent
  • Gouled v. U.S. (1921):Invalidated a search of ’s office where the searcher, pretending to pay a social visit, waited for  to walk out of office before searching paper. The agent violated the Fourth Amnd by exceeding the scope of consent he had been granted.


The Entrapment Defense


  • Jacobson v. U.S. (1992): Feds added  to suspect list b/c he bought magazines containing nude preteen and teenage boys. Gov’t sent him fake materials to enroll in fictitious organizations.  returned questionnaire, indicating he was opposed to pedophilia. After further solicitation and direct correspondence,  ordered a magazine from a fake company and was arrested. SC rev’d.
  • Reasoning (White):
    • [I]n their zeal to enforce the law [the Gov’t] may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Gov’t may prosecute.”
    • Prosecution has burden to prove beyond reasonable doubt that  was disposed to commit the criminal act prior to first being approached by gov’t agents.
    • [E]vidence that merely indicates a generic inclination to act within a broad range, not all of which is criminal, is of little probative value…”
    • was acting w/in the law when he ordered the first magazines.
    • Gov’t can’t implant in ’s mind the disposition to commit the crime. If left to his own devices, he would never have run afoul of the law. K says lower courts are latching onto italicized language.

Reverse-sting casesi.e., where gov’t is seller, rather than buyer of contraband, as in Jacobson.

  • U.S. v. Gendron(1st Cir. 1994) (Breyer) noted two underlying principles: (1) protection of ordinary, law-abiding citizen against (2) gov’t overreaching. Thus, the question should be: How would the  likely have reacted to an ordinary opportunity to commit the crime? That is, was  “’predisposed’ to respond affirmatively to a proper, not an improper, lure?”
  • U.S. v. Hollingsworth(7th Cir. 1994) (Posner) required positional predisposition. That is, entrapment exists where  is incapable of carrying out crime w/o gov’t’s aid and would not have done so were it not for the gov’t’s appearance.
  • U.S. v. Knox (5th Cir. 1997): while acknowledging that 9th and 1st Circuits adopted different tests, followed Hollingsworth’s positional predisposition test in holding that  was entrapped as a matter of law where “the gov’t failed to prove that the preacher was likely to engage in money laundering absent the gov’t’s conduct.”

Private Entrapment, vicarious entrapment, and derivative entrapment

  • The entrapment defense does not apply to conduct by non-governmental actors; there is no private entrapment defense.
  • US v Thicksun:if a private party is knowingly acting as an agent of the state, that private party is a state actor and the usual gov entrapment rules apply
  • US v Valencia: If a person is brought into a criminal scheme after being informed indirectly of conduct or statements by a gov agent which could amount to inducement, then that person should be able to avail himself of the defense of entrapment just as may the person who received the inducement directly.
  • US v Luisi:Several circuits categorically deny the entrapment defense in all third-party situations where the middleman is unaware that he is helping the gov. However, in a case where the gov agent specifically targets the D, and then causes the middleman to take a specifically contemplated action (that is arguably improper pressure) with the goal of ensnaring the D, the gov’s role is hardly attenuated and can support an entrapment defense.
  • To Catch a Predator and Internet Entrapment – TV programs where man gets set up by undercover volunteer woman for prostitution: Do men have a valid entrapment claim?
  • First, entrapment requires state action: a D cannot claim entrapment based on the conduct of a private party acting without police involvement. At the same time, the entrapment defense may be available if the gov encouraged the private party conduct
  • Second, it is relatively easy for an undercover agent in a chat room to avoid crossing the line and inducing criminal activity. The undercover agent can be passive and allow the D to take the lead in discussing sexual activity and arranging a meeting. Further, the entire exchange will be logged by the undercover agent’s computer, making the facts of the exchange easy to reconstruct
  • Third, the circumstances in which the D contacts the undercover agent can provide ready evidence of predisposition
  • US v Brand:illegal activity occurred prior to gov involvement so no entrapment
  • People v Grizzle:Just b/c it is easy to trap people with Internet chat rooms, does not mean that merely by providing an opportunity does not implicate the affirmative defense of entrapment


Right to Counsel


  • Report of AG’s Committee on Poverty and Criminal Justice (1963): “The essential point is that the problems of poverty with which this Report is concerned arise in a process initiated by the gov’t for the achievement of basic governmental purposes… While gov’t may not be required to relieve the accused of his poverty, it may properly be required to minimize the influence of poverty on its administration of justice.”

Indigent D’s “obligation” to repay gov’t for defense costs.

  • Rinaldi v. Yeager (1966) invalidated as invidiously discriminatory a NJ statute requiring only those Ds who were sentenced to prison to reimburse gov’t for legal costs.
  • Fuller v. Oregon (1974) upheld an Oregon recoupment statute that, under certain circumstances, authorized repayment to state of costs of free legal defense as condition to probation.



  • Betts v. Brady (1942) (K “one of the ten worst”)
    • Betts, an indigent, was accused of robbery; local practice permitted appointed counsel only in rape and murder cases. Convicted and sentenced to 8 yrs.
    • Q: Does Constitution require appointment of counsel in these circumstances? Ct: No.
    • Reasoning (Roberts): 14th Am DPC does not incorporate the 6th Am. Due process is a “less rigid and more fluid” concept than other specific provisions of Bill of Rights. Must appraise totality of facts in a given case.
  • Powell v. Alabama (1932): In capital case, where D is unable to employ counsel and is incapable adequately of making his own defense, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.
  • Johnson v. Zerbst (1938): 6th Am requires the appointment of counsel in all federal cases where D can’t procure atty and hasn’t waived right to counsel. Prosecution must show an intentional relinquishment of a known right.
    • In the states, it’s a matter of legislative policy. May not be fair, but 14th Am doesn’t demand it. We shouldn’t straight-jacket the states.
    • Black’s bitter dissent: I think 14th Am made 6th Am applicable to the states. But since Ct has never said that, Betts still deserved counsel under due process analysis.
      • Right to counsel in a criminal proceeding is a fundamental right. “Whether a man is innocent cannot be determined from a trial in which, as here, denial of counsel has made it impossible to conclude, with any satisfactory degree of certainty, that the D’s case was adequately presented.”
  • Gideon v. Wainwright (1963): D charged w/ entering a public place w/ intention of committing a misdemeanor, which was a felony in FL. He requested that counsel be appointed for him, but the judge refused because it was not a capital case.
  • Q: Are the States required to provide counsel to the indigent? Ct: Yes.
  • Reasoning (Black): Guarantee of counsel is a fundamental right; 6th Am is made obligatory upon the States by the 14th Am.
    • Betts departed from Powell. We now overturn Betts. Twenty-two states support our ruling.
    • Gov’ts, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society… [L]awyers in criminal courts are necessities, not luxuries.”
  • Argersinger v. Hamlin (1972): Ct struck down FL rule requiring that counsel be appointed only for “nonpetty offenses punishable by more than six months imprisonment.” Ct held that, “absent a knowing and intelligent waiver, no person may be imprisoned for any offense” unless represented by counsel.
    • Flat guarantee of counsel for any offense for which the accused may be imprisoned. Provides bright-line rule for judges.
  • Powell’s concurrence, joined by Rehnquist, says that right to counsel in petty offense cases should be a case-specific determination in trial judge’s discretion. Considerations: complexity of offense; probable sentence; other individual factors.
  • Scott v. Illinois (1979): Ct, per Rehnquist, declined to extend Argersinger to a case where one is charged with an offense for which imprisonment upon conviction is authorized but not imposed. Actual imprisonment is the line defining the constitutional right to appointment of counsel. No indigent criminal D can be imprisoned unless he had counsel. K: Literally, Scott applies to felonies as well as misdemeanors.

Can a prior uncounseled misdemeanor conviction be used to enhance a D’s prison sentence when, given counsel, he is convicted of a second crime?

  • Baldasar v. Illinois (1980) (held no; D may not be given an increased prison term only b/c he was convicted in a previous case in which he didn’t have counsel).
  • BUT Baldasar was overruled in Nichols v. U.S. (1994) (Rehnquist) (holding that an uncounseled nolo contendere plea to a state misdemeanor could be used to enhance prison sentence for federal drug charge).

When does the right to counsel begin or attach?

  • See infraMiranda (“custodial interrogation”); Wade (pretrial lineups); Coleman (preliminary hearing).
  • Compelled self-incrimination cases aside, one only has the right to counsel:
    • (1) at a “critical stage” of
    • (2) the “prosecution.” See infraAsh, Kirby, Williams I: right to counsel doesn’t come into play simply b/c suspect has become prime suspect or focal point (contrary to Escobedo); person is entitled to counsel, assuming the prosecution has reached a critical stage, at or after the time that judicial proceedings have been initiated against him, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment, presumably as early as the first appearance before a judicial officer.
  • When judicial proceedings have not been initiated, Miranda strikes the appropriate balance.

If an indigent D is not provided counsel, can he be given a suspended sentence or placed on probation?

  • Alabama v Shelton (2002): Shelton, D, is an indigent charged with a misdemeanor (third-degree assault) punishable by imprisonment, fine, or both, to the assistance of court-appointed counsel.  D was sentenced to a jail term of 30 days, which the trial court immediately suspended, placing D on probation for two years.  Court followed Scott v. Illinois (1979) in that counsel need not be appointed when the D is fined for the charged crime, but is not sentenced to a term of imprisonment.
  • Issue: Whether the Sixth Amendment right to appointed counsel, as delineated in Argersinger and Scott, applies to a defendant in D’s situation?
  • Holding:  Yes. A suspended sentence that may “end up in the actual deprivation of a person’s liberty” may not be imposed unless the D was accorded “the guiding hand of counsel” in the prosecution for the crime charged.
  • Rule:  Actual imprisonment: a penalty different in kind from fines or the mere threat of imprisonment, and is the line defining the constitutional right to appointment of counsel in nonfelony cases.
  • ReasoningArgersinger applies to Ds who receive suspended sentences rather than actual incarceration.  A suspended sentence is a prison term imposed for the offense of conviction.  Once the prison term is triggered, the D is incarcerated not for the probation violation, but for the underlying offense. The uncounseled conviction at that point results in imprisonment – the actual deprivation of a person’s liberty.  Deprived of counsel when tried, convicted, and sentenced, and unable to challenge the original judgment at a subsequent probation revocation hearing, a defendant in Shelton’s circumstances faces incarceration on a conviction that has never been subjected to “the crucible of meaningful adversarial testing.”
  • Dissent:  A suspended sentence does not require the appointment of counsel because such a step does not deprive a D of his personal liberty.  Only if the sentence is later activated, need the Court ask whether the procedural safeguards attending the imposition of Shelton’s sentence comply with the Constitution.
  • U.S. v. Gouveia (1984): Reaffirmed that right to counsel does not attach simply because one has been attained by gov’t authorities. This was true even though D were placed in administrative detention for 8-19 months.

The Griffin-Douglas “Equality” Principle

Douglas v. California (1963): Indigent petitioners requested, and were denied, assistance of counsel on appeal. SC rev’d.

  • Holding: If you offer appeals as a matter of right, you must provide counsel.
  • Reasoning (Douglas):
  • [A] State can, consistently with the 14th Am, provide for differences so long as the result does not amount to a denial of due process or an ‘invidious discrimination.’ Absolute equality is not required… [But] where the merits of the one and only appeal an indigent has as of right are decided w/o benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.”
  • When an indigent is forced to run this gantlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure… There is lacking that equality demanded by the 14th Am where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record… while the indigent… is forced to shift for himself.”
  • K thinks that, constitutionally, a State could make appeals for all s discretionary. K: In forma pauperis appeals (a party to a lawsuit who gets filing fees waived by filing a declaration of lack of funds) are only frivolous b/c s don’t know what they’re doing.
  • Harlan’s dissent: This doesn’t violate EPC, b/c it’s a laws of general applicability. It may affect the poor more harshly than the rich, and it may not eliminate economic imbalances, but EPC doesn’t require a State to give to some whatever others can afford.
    • Real question is whether it meets the requirement of fair procedure guaranteed by DC. This is entirely different from Gideon. Appellate procedures are not required by 14th Am. At least  had counsel at trial. Doesn’t violate DPC.
  • K: There’s a problem with the equal protection principle. Court doesn’t know where to stop it.

Ross v. Moffitt (1974):  was denied appointed counsel under an NC law that authorized appointment of counsel for a  appealing to the intermediate court of appeals, but not for a  who seeks either discretionary review in the state supreme court or a writ of cert. to U.S. SC.

  • Q: Does the State have an obligation to pay for counsel for one who seeks discretionary review or certiorari to the Supreme Court? SC: No.
  • Reasoning (Rehnquist):
  • DPC doesn’t require NC to appoint counsel here. There are differences between the trial stage and the discretionary appeal sought here. , not the state, initiates the appeal. Thus, appointed counsel is used on appeal as a sword, not a shield. State need not provide an appeal at all. “Unfairness results only if indigents are singled out by the State and denied meaningful access to that system because of their poverty.”
  • EPC: There are limits to EP. 14th Am requires that indigents have an adequate opportunity to present their claims w/in adversarial system, but it’s a matter of degrees. At least  had one appeal, so he had meaningful access. “[T]he fact that a particular service might be of benefit to an indigent  does not mean that the service is constitutionally required. The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal  in a continuing effort to reverse his conviction, but only to assure the indigent  an adequate opportunity to present his claims fairly in the context of the State’s appellate process.”  got that.
  • K: Rehnquist initially gets the DP/EP distinction right: DP “emphasizes fairness between the State and the individual dealing with the State,” while EP “emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable.” But then he screws it all up. Fighting chance, fair chance, “adequate opportunity,” and “meaningful access” are about DP, not EP. When you get through Rehnquist’s opinion, there’s nothing left of EP.
  • U.S. v. McCollum (1976): Upheld federal statute that provides a free transcript for an indigent’s habeas appeal only if trial judge certifies that the claim is “not frivolous” and that the transcript is needed to decide the issues presented. Hostile language: “Nor does the Constitution require that an indigent be furnished every possible legal tool, no matter how devoid of assistance it may be, merely because a person of unlimited means might choose to waste his resources in a quest of that kind.”
  • Halbert v Michigan (2005): H pleaded no contest in a Mich court to two counts of criminal sexual conduct. The day after H’s sentence was imposed, H moved to withdraw his plea. The trial court denied the motion and told H the property remedy for his complaint was the state appellate court. Mich required a D convicted on a guilty or no contest plea to apply for leave of appeal to the state appellate court. H asked the trial court twice to appoint counsel to help him with his application. The trial court refused. Without counsel, H still applied for leave to appeal, which the court of appeals denied. The state supreme court also denied H’s application for leave to appeal to that court.
  • Question: Did the due process and equal protection clauses require the appointment of counsel for defendants, convicted on their pleas, who sought access to a Michigan appellate court?
  • Conclusion (Ginsburg): YES, the Court held that the due process and equal protection clauses required Michigan to provide counsel for defendants who wanted to appeal to the state appellate court. The Court reasoned that if indigent defendants convicted on their pleas did not have counsel to guide them through Michigan’s complex appellate process, their right to appeal would not be meaningful

The Indigent D’s Right to Expert Services in Addition to Counsel

  • Ake v. Oklahoma (1985) (Justice Marshall):When  has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the state must provide access to “the psychiatric examination and assistance necessary to prepare an effective defense based on [the ’s] mental condition.”
  • Reasoning: Due process language—“fair opportunity,” “meaningful access,” “basic tools of an adequate defense or appeal.”
  • Burger, concurring, said this is limited to capital cases. Rehnquist, dissenting, thought the constitutional rule announced by the Court was “far too broad.”
  • K:Ake doesn’t go far enough.

Withdrawal of Appointed Counsel on Appeal: The Potential Tension Between the Indigent D’s Right to Counsel on First Appeal of Right and the Lawyer’s Ethical Obligations Not to Assert Frivolous Claims

  • Anders v CA (1967): held a “no-merit letter” (Anders Brief) – D’s counsel had stated in a letter to the ct that he would not file a brief b/c he was of the opinion that there is no merit to the appeal – insufficient b/c it affords neither the client nor the court any aid. If after conscientious examination of his case, counsel finds an appeal to be wholly frivolous, he should so advise the court and request permission towithdraw
    • Anders Brief: A request filed by a court-appointed attorney to withdraw from the appeal of a criminal case because of his belief that the grounds for the appeal are frivolous.
  • Suggs v US (7t Circ 2007) stressed that appointed counsel should not ask to withdraw unless in the same circumstance as he would insist of withdrawal if he had been retained. As a general rule, the court will be greatly aided if appointed counsel remains in a case, even though he may be subjectively unimpressed with the merits of the available points. Adequate representation of an indigent appellant should include personal interview if in the same circumstances they would be considered useful or desirable were counsel representing a private client. Ordinarily at least one interview by counsel would appear useful
  • May court-appointed appellate counsel be required to discuss why she believes her client’s appeal lacks merit?
    • YES: McCoy v Ct of Appeals of Wisc: Wisc Sc rule requires an Anders brief to include a discussion of why the appeal lacks merit
  • Is a state free to adopt other procedures than Anders for handling indigent criminal appeals?
  • Smith v Robbins (2000): The Anders procedure is merely one method of satisfying the requirements of the Constitution for indigent criminal appeals: a state is free to adopt other procedures if these procedures afford adequate and effective appellate review to indigent Ds and a state’s procedure provides such review so long as it reasonably ensures that an indigent’s appeal will be resolved in a way that is related to the merit of that appeal.
  • The proper standard for evaluating Robbins’ claim that appellate counsel was ineffective in neglecting to file a mertis brief is that respondent must first show that his counsel was objectively unreasonable in failing to find arguable issues to appeal – that is, counsel unreasonably failed to discover nonfrivilous issues and to file a merits brief raising them. If Robbins succeeds in such a showing, he then has the burden of demonstrating prejudice. That is, he must show a reasonable probability that, but for his counsel’s unreasonable failure to file a merits brief, he would have prevailed on appeal (Strickalnd).



  • Gagnon v. Scarpelli (1973):  (S) pled guilty to armed robbery, sentenced to 15 years, suspended for 7 years probation. A month later he was caught in the course of a burglary and confessed, but he claimed his statement was made under duress. Probation was revoked w/o a hearing.
  • Q: Does an indigent probationer or parolee have a due process right to be represented by appointed counsel at hearings? Ct: No.
  • Reasoning (Powell):
    • Mempa v. Rhay (1967) held that probationer is entitled to be represented by appointed counsel at a combined revocation and sentencing hearing. We said that counsel is required “at every stage of a criminal proceeding where substantial rights of an accused may be affected.”
  • The rule  wants would impose substantial costs without regard to need. There’s not great need here. This would alter the nature of the proceedings, making them more litigious.
    • Betts’ case-by-case approach may have been bad in the context of criminal trials, but it’s not bad for all types of proceedings. This is different from a criminal trial—no prosecutor, just a parole officer; no jury, just a judge familiar with parole issues; no rules of evidence or formal procedures; lawyer may make hearing body less attuned to rehabilitative needs. We like Betts’ flexibility.
  • Rule: Need for counsel must be made on a case-by-case basis in the discretion of the parole administering authority. Should consider whether timely request for counsel was made on basis of colorable claim that  didn’t do it; substantial reasons that mitigated the violation; whether  can adequately represent himself.

The Right to Counsel and the Loss of Liberty

  • Middendorf v. Henry (1976): No right to appointed counsel at summary courts-martial, even though could get 30 days hard labor. Ct (per Rehnquist): “[T]he fact that the outcome of a proceeding may result in loss of liberty does not by itself, even in civilian life, mean that the 6th Am’s guarantee of counsel is applicable.”
  • In re Gault (1967): Established a right to appointed counsel in juvenile delinquency proceedings that may result in the loss of the child’s freedom.
  • Lassiter v. Dept. of Social Services (1981): No right to appointed counsel in formal judicial proceedings to terminate parental status. State courts should determine this on a case-by-case basis. “[A]s a litigant’s interest in personal liberty diminishes, so does his right to appointed counsel.” Dissenters protested that a parent has a uniquely important interest in the care and custody of his/her children. K: Betts v. Brady all over again. There are some things that are as important as liberty. K suggests drawing a line by saying that you’re entitled to appointed counsel in order to challenge the gov’t whenever the gov’t is trying to do something to you. This distinguishes eviction and private custody proceedings.

Collateral Attack Proceedings: an indigent prisoner has no federal constitutional right to assigned counsel in postconviction proceedings. 





  • The Due Process “Voluntariness” Test
  • For centuries the rule that a confession was admissible so long as it was “voluntary” was more or less an alternative statement of the rule that a confession was admissible so long as it was free of influence that made it untrustworthy or “probably untrue.”
  • In its advanced state (the early 1960s), the “due process” or “voluntariness” test had three underlying values or goals. Barred the use of confessions that (a) were of doubtful reliability b/c of the police methods used to obtain them; (b) were produced by offensive methods even though reliability was not in question; and (c) were involuntary in fact (e.g., obtained from drugged person) even though entirely trustworthy and not the product of police wrongdoing.
  • From 1930s to 1960s, didn’t change terms of whether confession is voluntary or not, just changed the substance of it. Pre- Miranda cases reveal numerous police practices which, if not impermissible per se, certainly militate heavily against the “voluntariness” of any resulting confession: repeatedly rejecting D’s requests to phone his wife and repeatedly informing him that he would not be able to call her or anyone else unless and until he gave the police a statement (Haynes v Washington, 1963)
  • At the outset, however, the primary bases for excluding evidence under the “voluntariness” was the “untrustworthiness” rationale. Confession rule was designed merely to protect integrity of fact-finding process. Then shifted more to not voluntary if police have to do something illegal to get an answer
  • Brown v. Mississippi (1936): The first 14th Am due process confession case, Brown excluded a confession when the deputy admitted that the  was whipped, but “not too much for a Negro.”
  • Ashcraft v. Tennessee (1944): Conviction reversed where confession obtained after some 36 hours of continuous “relay” interrogation. Prof. Hancock says Ashcraft was a milestone b/c it prefigured Miranda’s recognition of the coercion inherent in all custodial interrogation.
  • Watts v. Indiana (1949): Excluded confessions even though extrinsic evidence verified their accuracy and reliability. Court stressed the need for “appropriate procedure before liberty is curtailed or life is taken.”

Heavily against the “voluntariness” of any resulting confession:

  • Rochin v. California (1952): stomach-pumping case. DP requires States to “respect certain decencies of civilized conduct.” “Coerced confessions offend the community’s sense of fair play and decency.”
  • Spano v. New York (1959): Made clear that Court was applying a “police methods” test as well as a “trustworthiness” test. Ban against “involuntary” confessions turns not only on their reliability but also on the notion that “the police must obey the law while enforcing the law.”
  • Rogers (per Frankfurter): “Our decisions under [the 14th Am] have made clear that convictions following the admission into evidence of [involuntary confessions] cannot stand… because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system.”
    • As the Court stated in Schneckloth, there was no single controlling criterion in due process confession cases; rather, “each reflected a careful scrutiny of all the surrounding circumstances,” including “the characteristics of the accused… and the details of the interrogation.” Examples: stripped naked for several hours; threatening to cut off aid to suspect’s children; isolated locale; refusing to allow phone call; pretending to hurt ’s invalid wife; saying that “childhood friend” had gotten in “a lot of trouble”; using psychiatrist w/ considerable knowledge of hypnosis.

Shortcomings of the “Voluntariness” Test

  • Seems at once too wide and too narrow.
  • Shulhofer: It virtually invited trial judges “to give weight to their subjective preferences” and “discouraged review even by the most conscientious appellate judges.”
  • Swearing contest” was almost always resolved in favor of police.
  • Mincey v. Arizona (1978): Excluded a confession from a suspect who was barely hanging onto life in the intensive care unit during interrogation. Rehnquist, dissenting, said ’s statement wasn’t involuntary. This case shows that it’s easy for judges who are removed from the particular man involved to dilute the effect of the interrogation on a hypothetical .

The McNabb-Mallory Rule

  • McNabb v. U.S. (1943) Frankfurter, for majority, pointed out that the federal courts are limited to the 14th Am in upsetting state convictions, but that the courts can exercise “supervisory authority” over the administration of federal criminal justice, going well beyond due process. Ct threw out a voluntary confession obtained while a suspect was illegally detained (i.e., not taken before magistrate).
  • Mallory v. U.S. (1957) emphatically reaffirmed McNabb, holding that an extended, 7-hour delay in bringing an arrestee before a committing magistrate was excessive.

Right to Counsel

  • Crooker v. California (1958): Admitted the confession of a suspect who indicated that he knew of his right to remain silent and was denied a request to contact his lawyer. D said that by persisting in interrogating him after denying his specific request to contact his lawyer the police violated his due process right to legal representation and advice and that therefore any confession obtained from him under these circumstances should be barred even though “freely” and “voluntarily” made under traditional standards. Ct said that such a rule would have a devastating effect on enforcement of criminal law, for it would effectively preclude police questioning – fair as well as unfair – until the accused was afforded opportunity to call his attny. Due process, a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the BoR
  • Cicenia v. La Gay (1958): Aff’d conviction of  who unsuccessfully asked to see his lawyer while being questioned even though his lawyer was at the station asking to be let in. Citing Crooker, the Court said  had no const’l right to confer with counsel.
  • Spanoheld that once a person is formally charged by indictment, his right to counsel—or at least to counsel he himself had retained—attaches.
  • Massiah v. U.S. (1965):  released on bail after being indicted and retaining a lawyer. C, ’s co-, cooperated w/ feds and had radio transmitter in car while eliciting incriminating statements from .
    • Court (Stewart): Once criminal proceedings have begun, the government cannot bypass the defendant’s lawyer and try to elicit statements from the defendant.
      • Decisive feature was that  had been indicted and was therefore “clearly entitled to a lawyer’s help” at a time when he was awaiting trial.
      • subjected to a “completely extrajudicial” proceeding designed to obtain incriminating statements. He may not have been in a coercive atmosphere, but he didn’t know that he needed to be on his guard.
      • was denied the basic protections of the right to counsel; statements couldn’t be used against him at trial.
    • Dissenters emphasized that D wasn’t in custody and wasn’t under police interrogation; no official pressure. Nor was  prevented from conferring w/ counsel as often as he wished.
  • This rule survives Miranda. Once you’ve been indicted and formal proceedings have begun, the cops can no longer bypass a lawyer and go at you directly, whether you have a lawyer or not.
  • Escobedo v. Illinois (1964):  was arrested for murder, repeatedly asked to speak to his lawyer, whom he had already retained. Lawyer arrived at station and tried unsuccessfully for several hours to speak to . Police ignored, arranged confrontation between  and man who had pointed finger at him.  made incriminating statements. SC rev’d conviction.
  • Reasoning (Goldberg):
  • hadn’t been indicted, but when he requested and was denied the opportunity to speak to lawyer, the investigation ceased to be a general investigation.  became the accused. Needed counsel. “This was the ‘stage when legal aid and advice’ were most critical.”
  • We hold… that when the process shifts from investigatory to accusatory—when its focus is on the accused and its purpose is to elicit a confession—our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.”
  • Stewart, dissenting, distinguished Massiah—here no judicial proceedings had been initiated against .


Moving toward a self-incrimination privilege: Malloy v. Hogan (1964) (holding that 5th Am’s Self-Incrimination Clause is incorporated in the Due Process Clause of the 14th Am and thus applies to the States).




The Miranda Revolution

MIRANDA v. ARIZONA (1966): arrested for kidnapping, rape. Questioned by 2 officers w/o being advised of right to have atty present. Confessed after 2 hours. 3 companion cases featured similar facts. In Westover, was questioned for 14 hours; in Stewart, 8 or 9 interrogations were spread over the course of 5 days.

  • Reasoning (Warren): Miranda is not constitutionally required but something is constitutionally requiring. The way police have been doing things by giving the impression that they have a right to an answer is not constitutional
    • Emphasizes that “interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation.” Compulsion inherent in custodial surroundings. K: Ct has limited “custody” to the stationhouse interrogation room. Doesn’t extend to questioning on the street, in squad car, etc.
    • Intimate connection between 5th Am privilege against self-incrimination and police custodial questioning. Privilege is a substantive right—part of privacy; gov’t must respect “the dignity and integrity of its citizens.” Privilege is fulfilled only when person is guaranteed the right to remain silent.
    • Presence of counsel is a protective device necessary to make sure cops conform to the dictates of the privilege. K: At one place, Ct comes very close to saying that the interrogation must be recorded, but it backs off.
    • In order to permit full opportunity to exercise privilege against self-incrimination, “accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.”
  • Holding: The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. This includes questioning after a suspect has been deprived of her freedom in any significant way. The suspect must be informed he has a right to silence, that his statements may be used against him and that he has the right to an attorney, retained or appointed.
    • Warnings:
      • Right to remain silent. Objective inquiry—we won’t consider whether was aware of his rights w/o warning. Just do it.
      • Anything you say can and will be used against you.
      • Right to have counsel preset at interrogation.
      • If you can’t afford a lawyer, one will be appointed for you.
    • Once warnings have been given, if suspect indicates “in any manner, at any time prior to or during question, that he wishes to remain silent, the interrogation must cease.”
    • Our decision today in no way creates a constitutional straitjacket.” Encourages legislatures to experiment.
  • White’s bitter dissent is famous. This decision has the effect of virtually eliminating confessions and preventing the conviction of numerous guilty s. can blurt out confession and it’s okay, but if the confession is preceded by a single question from the cops before Miranda rights are read, it’s inadmissible.
  • K: Miranda is a series of holdings:
    • 5th Am applies to informal as well as formal proceedings.
    • Privilege applies to stationhouse coerced confessions.
    • Must dispel coercion.
    • This is one way to neutralize the compulsion. Do this and you’re okay.

Title II of the Omnibus Crime Control and Safe Streets Act of 1968: § 3501

  • Purported to overrule Miranda.
  • Codifies the voluntariness test. Trial judge in determining voluntariness should consider all circumstances surrounding the giving of the confession. Lists various factors from Miranda and Escobedo, but those factors “need not be conclusive.” And the fact that warnings had or had not been given was considered by judges before Miranda anyway.
  • K: By the time § 3501 reached the Court in Dickerson, a plausible case for upholding it was established by decisions like Tucker, Quarles, and Elstad, which called it a “prophylactic rule,” not a constitutional decision.


4 Decades with Miranda: An Overview: (For or against Miranda, as in promoting Miranda and cutting into it)

  • Against: New York v. Harris (1971) (one of K’s top ten worst): Statements preceded by defective warnings, and thus inadmissible to establish the prosecution’s case-in-chief, could nevertheless be used to impeach the D’s credibility if he chose to take the stand in his own defense. The Court noted, but seemed unperturbed by the fact, that some language in the Miranda opinion could be read as barring the use of statements obtained in violation of Miranda for any purpose.
  • Against: Oregon v. Hass (1975) (another of K’s top ten worst): Held that incriminating statements can be used for impeachment even when the police ignore the ’s request for a lawyer following his Miranda warnings.
    • Dissent: This removes any incentive to obey Miranda.
  • Although the language in Miranda could be read as establishing a per se rule against any further questioning of one who has asserted his right to silence (as opposed to his right to counsel), Michigan v Against: Mosley (1975): held that under certain circumstances (and what they are is unclear), if they cease questioning on the spot, the police may “try again,” and succeed at a later interrogation session. At the very least, it seems, the police must promptly terminate the original interrogation, resume questioning after the passage of a significant period of time, and fire the suspect a fresh set of warnings at the outset of the second session, Whether Mosley requires more is matter of dispute.
  • The court has read “custody” or “custodial interrogation” rather narrowly, Oregon v Mathiason (1977) and Ca v Beheler (1983) illustrate that even police station questioning designed to produce incriminating statements is not necessarily “custodial interrogation.” The result in Mathiason is more easily defensible b/c the suspect went down to the station house on his own after an officer had requested that he meet him there at a convenient time and he had agreed to do so. In Beheler, however, the suspect went to the station house in the company of police.
  • Brown v. Illinois (1975): Held that Miranda warnings would not cure the taint of a prior illegal arrest and excluded a confession obtained after waiver. Ct noted that ER serves different interests and policies in the 4th and 5th Am contexts. Miranda warnings don’t sufficiently deter a 4th Am violation; to make Miranda a “cure-all” would eviscerate the 4th Am. Declining to adopt a per se rule, the Ct said Miranda warnings are one factor to consider in determining taint, along with proximity of arrest and confession, presence of intervening circumstances, and the purpose and flagrancy of misconduct.
  • Rhode Island v Innis (1980): Ct gave the key term “interrogation” a fairly generous reading. Although the case itself involved police “speech,” the Ct’s definition of “interrogation” embraces interrogation techniques that do not.
  • For: Edwards v Arizona (1981): Ct reinvigorated Miranda by adding a “bright line” test to the bright line Miranda rules. Sharply distinguishing Mosley, the Ct held that when a suspect asserts his right to counsel (as opposed to his right to remain silent), the police cannot “try again.” Under these circumstances, a suspect cannot be questioned anew “until counsel has been made available to him, unless he himself imitates further communication, exchanges or conversations with the police.”
  • Against: Michigan v Tucker. (1974): Ct, per Rehnquist, admitted the testimony of a witness whose identity had been learned during an interrogation in violation of Miranda. Ct emphasized that neither deterrence nor truthworthiness would be increased by suppression.
  • For: NY v Quarles (1984): recognized a public safety exception and thus held inadmissible both the suspect’s statement, the gun is over there” and the gun found as a result of the statement.
  • Oregon v. Elstad (1985): the fact that the police had earlier obtained a statement from D in violation of his Miranda rights (when they questioned him in his home) did not bar the admissibility of a subsequent statement (obtained at the police station) when, this time, the police complied with Miranda.
    • Although the matter is not free from doubt, Elstad seemed to say – it certainly could be plausibly be read as saying – that b/c Mirana was not a core or first class constitutional right, it was not entitled to the fruit of the poisonous tree doctrine, which operated to exclude the fruits of illegal searches.
  • Facts: Cops went to 18-yr-old ’s home w/ arrest warrant. Before telling him about warrant, they asked him if he was involved in burglary. He said, “Yes, I was there.” was then taken to station and Mirandized. He confessed. State conceded that statement in house was in violation of Miranda but argued that taint had dissipated prior to written confession. SC agreed.
  • Q: Does an initial failure of law enforcement officers to administer Miranda warnings, “taint” subsequent admissions made after a suspect has been fully advised of and has waived his Miranda rights? Ct: No.
  • Reasoning (O’Connor):
    • A procedural Miranda violation differs significantly from a 4th Am violation. 4th Am mandates a broad application of the “fruits” doctrine, but Miranda does not require that statements and their fruits be discarded as inherently tainted.
    • Michigan v Tucker (1974): Ct, per Rehnquist, admitted the testimony of a witness whose identity had been learned during an interrogation in violation of Miranda. Ct emphasized that neither deterrence nor truthworthiness would be increased by suppression.
    • Following Tucker’s rationales, Ct said that the absence of coercion or improper conduct does not call for suppression. “Once warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to the authorities.
    • Although Miranda requires suppression of unwarned admissions, the admissibility of any subsequent statement turns on whether it was knowingly and voluntarily made. It was here.
  • *** In both Quarles & Elstad the Court underscored the distinction between actual coercion by physical violence or threats of violence (the pre-Miranda voluntariness test) and inherent or irrefutably presumed coercion (the basis for the Miranda rules) or statements obtained merely in violation of Miranda’s procedural safeguards or prophylactic rules.
  • U.S. v. Dickerson (2000): arrested for bank robbery. Trial court suppressed statement on grounds that he had not received Miranda warnings before interrogation. 4th Cir. rev’d, holding that Miranda is not a constitutional decision and, therefore, § 3501’s voluntariness test controls. SC rev’d.
  • Holding:Miranda is a constitutional decision; therefore, that decision and its progeny, not § 3501, govern the admissibility of statements made during custodial interrogation in both state and federal court.
  • Reasoning (Rehnquist):
    • Miranda concluded that the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk to the 5th Am privilege against self-incrimination. Miranda accordingly laid down “concrete constitutional guidelines.”
  • Exceptions from Miranda (e.g., Quarles, Roberson) simply illustrate the principle “that no constitutional rule is immutable. No court laying down a general rule can possibly foresee the various circumstances in which counsel will seek to apply it, and the sort of modifications represented by these cases are as much a normal part of constitutional law as the original decision.”
  • We indicated in Miranda that legislatures could try other solutions, but § 3501’s protections don’t meet the constitutional minimum.
  • Stare decisis. “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Sometimes we overrule precedent “when subsequent cases have undermined their doctrinal underpinnings, [but] we do not believe that this has happened to the Miranda decision. If anything, our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision’s core ruling that unwarned statements may not be used as evidence in the prosecution’s case in chief.”
  • K thinks all the cases that cut down Miranda are still good. Rehnquist wrote the decision in order to contain the damage that Stevens might have done. So the Court simply reaffirms Miranda complete with all of its limitations.
  • Scalia (joined by Thomas), dissenting.
    • This is frighteningly antidemocratic. Majority thinks it has the power not merely to apply the Constitution, but to expand it.
    • K: Scalia makes some good points. Orozco seemed directly to flow from Miranda, but it’s no longer good law. (Orozco (1969) excluded statements made outside of stationhouse. 4 cops questioned in bedroom at 4:00 a.m. Ct said “potentiality for compulsion” was equivalent to police station interrogation.)
    • Miranda just protects against foolish, not compelled, confessions.
    • Ct has squarely concluded that a violation of Miranda is not a violation of the Constitution itself.
    • Cites North Carolina v. Pearce (1969) as a true prophylactic rule. There the Court concluded that due process is offended when judge vindictively makes sentence more severe because has successfully appealed original conviction. In order to guard against this, judges must affirmatively state the reasons for an increased sentence based on objective information. The Court, says Scalia, doesn’t have this kind of power to prescribe particular devices. Therefore, Miranda represents an illegitimate exercise of our authority to review state court judgments.


Miranda, The privilege Against Self Incrimination Compelled Self-Incrimination and 14th Amnd Due Process: When does a Violation of These Safeguards Occur?

  • Chaves v Martinez (2003): M was stopped while riding his bicycle home from work by police investigating narcotics violations. When police attempted to handcuff him, a struggle ensued, but it is unclear who started it. During the struggle, M was shot, resulting in permanent paralysis and loss of vision. A year later he sued the officers, saying the search and use of deadly force were unconstitutional. The officers introduced as evidence in their defense a taped confession obtained while M was receiving medical treatment in the hospital, in which he admitted to grabbing the gun of one of the officers during the struggle. M claimed that the tape could not be used as evidence b/c he had not been read his Miranda rights.

Question: Are a suspect’s Fifth Amendment right against self-incrimination and his Fourteenth Amendment substantive due process right to be free from coercive questioning violated when he was subjected to coercive questioning while in police custody, even if his coerced statements were never used against him in a criminal case?

Conclusion: No; the Court remanded the substantive due process portion of the question. The Court (Thomas) held that the gov did not deprive M of his Fifth Amendment rights. Souter, reasoned that M’s claim that his questioning alone was a violation of the Fifth and Fourteenth Amendments could be recognized if a “core guarantee” would be placed at risk; however, M could not make the showing necessary to expand protection of the privilege against self- incrimination.

  • US v Patane (2004) & Missouri Seibert (2004): Ct made it clear that, although the prosecution was unable to use the statements themselves obtained when the police failed to comply with Miranda, it was free to use – except for the most deliberate and flagrant attempts to violate the Miranda doctrine – any evidence (physical evidence or eyewitness testimony) that the Miranda violations brought to light. Cases are both very bad for Miranda
  • US v Patane:Question: Can physical evidence found as a result of un-Mirandized but voluntary testimony be used in court? K hates this case
    • Conclusion: Yes. In a decision without a majority opinion, three justices wrote that the Miranda warnings were merely intended to prevent violations of the Constitution, and that because Patane’s un-Mirandized testimony was not admitted at trial the Constitution (specifically the Fifth Amendment’s protection against self-incrimination) had not been violated. Physical evidence obtained from un-Mirandized statements, as long as those statement were not forced by police, were constitutionally admissible. Two other justices also held that the physical evidence was constitutionally admissible, but did so with the understanding that the Miranda warnings must be accommodated to other objectives of the criminal justice system. They did not discuss whether the Miranda warnings were, in themselves, constitutionally required.
      • 5th Amnd does say that you can’t compel someone to be a witness against himself that is a kind of exclusionary rule
      • Dickerson approved all the exceptions that riddled Miranda!
      • Although it is true that the Court requires the exclusion of the physical fruit of actually coerced confessions, it must be remembered that statements taken without sufficient Miranda warnings are presumed to have been coerced only for certain purposes and then only when necessary to protect the privilege against self-incrimination. We decline to extend that presumption further
        • K says for what purposes? And then Thomas seems to forget that later
        • Miranda says that a coerced confession is so bad that we don’t care how much amount of guilt there is, we will automatically reverse a conviction if all there is a coerced confession. BUT, this isn’t in the constitution and 50 years later, justices start to hack this apart
  • What is a voluntary statement? Miranda says, if you fail to give Miranda safeguards, statement is compelled and not voluntary and is objectionable as a violation of the 5th Amnd, but all these exceptions.
    • According to Thomas, there is only voluntary and involuntary statements but K says there’s all that in between!
  • Missouri v Seibert (2004): Question: Does the rule from Oregon v. Elstad that a defendant who has made an un- Mirandized confession may later waive her Miranda rights to make a second confession (admissible in court) still apply when the initial confession is the result of an intentional decision by a police officer to withhold her Miranda warnings?
    • Conclusion: No. In a decision with no majority, a four-justice plurality found that the post-Miranda confession is only admissible – even if the two-stage interview was unintentional, as it was in Elstad – if the Miranda warning and accompanying break are sufficient to give the suspect the reasonable belief that she has the right not to speak with the police. Kennedy, in a concurring opinion, found that evaluating the warning and accompanying break was only necessary if the police used the two-stage interrogation intentionally: “The admissibility of postwarning statements should continue to be governed by Elstad’s principles unless the deliberate two-step strategy is employed. Then, the postwarning statements must be excluded unless curative measures are taken before they were made.”
  • Allen article on the misguided defenses of Miranda
    • The arguments in defense of Miranda essentially assume the correctness of Miranda, more precisely, the correctness of a certain reading of Miranda, and argue that anything that deviates from that view is wrong, but this is obviously an inappropriate form of argumentation. One cannot establish that one case is wrong because of its inconsistency with another; either case might be wrong. An independent justification is needed.
    • Interrogator can’t draw attn to the fact that D hasn’t taken the stand but this happened before Miranda even though this isn’t in the Constitution


Applying & Explaining Miranda

  • Exploiting a criminal’s ignorance or stupidity; intelligent waivers v wise ones:
    • State v McKnight (N.J. 1968): It is consonant with good morals, and the Constitution, to exploit a criminal’s ignorance or stupidity in the detectional process. This must be so if Gov is to succeed in its primary mission to live free from criminal attack.
      • If a D has been given the Miranda warnings, if the coercion of custodial interrogation was thus dissipated, his waiver was no less voluntary and knowing and intelligent b/c he misconceived the inculpatory thrust of the facts he admitted, or b/c he thought that what he said could not be used b/c it was only oral or b/c he had his fingers crossed, or b/c he could well have used a lawyer. A man need not have understanding of a lawyer to waive one.
  • Adequacy of warnings:
    • Ducksworth v Eagan (1989): Admitted confession even though warnings were not given word for word and officer implied that counsel would only be appointed if and when the went to trial. Courts should examine warnings like construing a will; the inquiry is simply whether the warnings reasonably convey the Miranda rights.
    • Miranda has not been limited to station house questioning and the officer in the field may not always have access to printed Miranda warnings, or he may inadvertently depart from routine practice, particularly if a suspect requests an elaboration of the warnings. Cts need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably convey to a suspect his right required by Miranda”
    • K thinks suspect should be advised that his silence cannot be used against him.
  • The right to be made aware of the subject matter of the questioning
    • Colorado v. Spring(1987): was arrested by ATF agents for firearms violations in Kansas. Defendant signed a waiver of his Miranda rights, and ATF agents questioned him about a Colorado murder as well as firearms violations. Colorado police then went to Kansas, gave defendant his Miranda rights, and questioned him about t.
    • The Court held that the Fifth Amendment did not require ATF agents to warn defendant of a possible murder charge before defendant waived his Miranda rights. The Court found that defendant knowingly waived his Miranda rights since he knew what his right were, including the right to discontinue talking at any time. Thus, his waiver of his Miranda rights was valid.
    • The fact that the agents failed to disclose all possible charges against defendant or all the possible consequences of the waiver did not make the waiver any less knowing or valid.
      • A suspect’s awareness of all possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his 5th Am privilege.”
    • Dissent: Trickery + surprise coercion.
      • Miranda’s “custody” test has replaced Escobedo’s “focus” test.
      • Footnote 4 in Miranda said that Escobedo, in saying that right to counsel kicks in when an investigation focuses on the accused, meant custodial interrogation. So “focus” is gone.
  • Custody” v “Focus:”
    • Beckwithv. U.S. (1976): IRS agents “interviewed” in his private home. Ct (Burger): Miranda warnings are required only when is in custody. This situation doesn’t present the inherently coercive elements that Miranda was concerned about. Miranda specifically defined “focus” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”
    • Berkemer v. McCarty(1984) (Marshall): “Roadside questioning” of a motorist detained pursuant to a routine traffic stop does not amount to “custodial interrogation.” Traffic stop is presumptively temporary and brief, and it’s public. Atmosphere is substantially less “police dominated”—more like a Terry stop.
  • Yarborough v Alvarado (2004): Police interviewed Al, 17, without his parents at a police station about his involvement in a crime. Police neither arrested nor Mirandized A. During the interview, Alvarado confessed involvement. Based, in part, on these statements, A was convicted of second-degree murder and attempted robbery. 9th Circ reversed. Recognizing the “in custody” standard to be whether a reasonable person would feel free to end interrogation, the appeals court held that a juvenile is more likely to feel he is in custody. Because Alvarado was “in custody,” the Fifth Amendment required that his rights under Miranda v. Arizona (1966) be read to him. SC rev’d
  • Question: When deciding whether a suspect is “in custody” and therefore entitled to his Miranda warnings, must an officer consider the suspect’s age and previous history with law enforcement?
  • Conclusion: No, the Court ruled that the purpose of the Court’s Miranda decision was to provide an objective rule readily understandable by police officers: when interrogating a suspect who is “in custody,” an officer must first read the suspect his Miranda rights. Determining whether a suspect is actually in custody has always been based on objective criterion like whether he had been brought to the police station by police or had come of his own accord. Requiring officers to consider individual characteristics of a suspect when determining whether he is “in custody,” such as the suspect’s age or previous history with law enforcement, would make the test a subjective one that would be more difficult for officers to understand and abide by. Kennedy wrote that the Miranda decision “states an objective rule designed to give clear guidance to the police, while consideration of a suspect’s individual characteristics – including his age – could be viewed as creating a subjective inquiry.”
  • Rhode Island v. Innis (1980): arrested at 4:30 a.m. for murdering taxi driver. Advised of rights and placed in back seat of squad car with one officer in the back seat and two up front. The two cops up front talked about missing gun, said they were worried that kids might find it. then interrupted and said he would show them where it was. Trial court admitted gun and related testimony; RI SC rev’d, concluding that he was interrogated without valid waiver of Miranda.
    • Q: Was “interrogated” in violation of Miranda? Ct: No.
  • Reasoning (Stewart):
  • Miranda was concerned that the interrogation environment subjugates the individual’s will. But that doesn’t mean that all statements obtained by police after person is in custody are the product of interrogation. “Interrogation” must reflect a measure of compulsion above and beyond that inherent in custody itself.
  • Fn distinguishes Williams I, characterizing that decision as holding that Massiah prohibits officers from “deliberately elicit[ing]” incriminating info from in absence of counsel after formal charge is filed. Definitions of “interrogation” under 5th and 6th Am aren’t necessarily interchangeable, since policies are different.
  • Holding: “‘[I]nterrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Focuses on perceptions of suspect, not intent of police. “A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.”
  • This wasn’t interrogation under this definition, b/c it was just a dialogue, off-hand remarks. It was neither express questioning nor the “functional equivalent” of questioning. Not designed to elicit a response.
  • Marshall and Brennan, dissenting: We like your definition, but not its application.
  • Stevens, dissenting: Test shouldn’t be likelihood; it should be whether what the police do has “the same purpose or effect as a direct question.”
  • K likes Stevens’s approach more. K thinks it’s implausible that cops would’ve had this conversation in the absence of suspect. But K acknowledges that Ct could have done worse in Innis by limiting “interrogation” to direct questioning. The gov’t conceded that if police admitted that they intended to elicit a response, it would violate Miranda.
    • But Rehnquist says the opposite in Quarles (characterizing Innis as holding that “officer’s subjective intent to incriminate not determinative of whether “interrogation” occurred.)
  • K thinks that Innis would have been decided different had it come after Quarles (in which case Ct would have invoked public safety exception) and/or Edwards (given that asked for lawyer).
  • Arizona v. Mauro (1987): D was convicted of the child abuse and murder of his son. After D requested an attorney be present before further questioning took place, ’s wife requested to speak to in presence of a police officer, who placed a tape recorder in plain sight on a desk. The officers had tried to discourage the wife, but she insisted.
    • Ct, per Powell, held that it was not custodial interrogation under Miranda that violated D’s previously expressed wish to not be questioned further w/o a lawyer present.
    • Ct doubted whether felt he was being coerced by cops. K agrees. K says Miranda is about the impact of the environment on the mind of the suspect. Interrogation means questioning by an officer or someone known to be a police agent. Husband was aware that police were listening.
    • Dissenters: Detectives clearly intended to elicit statement, and clearly wished to remain silent.
  • Illinois v. Perkins (1990): was suspected of murder but jailed on other charges. Cops put two agents—a former cellmate and an undercover officer—in his cellblock in order to engage in casual conversation and report any incriminating statements.
    • Q: Does “custodial interrogation” occur when a secret gov agent, posing as a fellow prisoner, is placed in the same cell with an incarcerated suspect and induces him to discuss the crime? Ct: No
    • Ct (Kennedy): Miranda warnings aren’t required when suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement. Coercion is determined from the perspective of the suspect. No coercive atmosphere.
    • Marshall, dissenting:Miranda was concerned not only with police coercion, but also with any police tactics that may operate to compel a suspect in custody to make incriminating statements w/o full awareness of constitutional rights.
  • When does a response to an officer’s question present a reasonable danger of incrimination?
  • Hibel v Sixth Judicial Ct (2004): Hiibel was arrested and convicted in NV state court for failing to identify himself to a police officer who was investigating an assault. NV, and many other states, has a law that requires a person to tell an officer his name if asked. Hiibel challenged the conviction, claiming it violated his Fifth Amendment right not to incriminate himself and his Fourth Amendment right to be free from unreasonable searches.
  • Question: Did Hiibel’s arrest and conviction for not telling a police officer his name violate his Fifth Amendment right not to incriminate himself and his Fourth Amendment right to be free from an unreasonable search?
  • Conclusion: No. The search did not violate the Fourth Amendment because it was based on reasonable suspicion (the police officer was investigating the assault, and Hiibel was nearby) and involved only a minimally intrusive question (his name). It also did not violate the Fifth Amendment because Hiibel never argued that telling the officer his name would actually incriminate him of any crime. “While we recognize petitioner’s strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the NV Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him.”
  • Dissent: ON the self-incrimination issuee, argued that compelled statement at issue in this case is clearly testimonial and would be incriminating under the standard set forth in Hoffman and other cases.
  • New York v. Quarles (1984): Rape victim told police that had just run into supermarket w/ gun. Cops pursued to back of store; officer frisked & cuffed him, found that he had an empty holster, and asked him where gun was w/o giving Miranda warnings. Surrounded by 4 officers, nodded toward cartons and said, “the gun is over there.” was then read his rights, which he waived before answering questions about gun. State courts suppressed statements and gun. SC rev’d.
  • Reasoning (Rehnquist):
    • Public safety exception: “We conclude that under the circumstances involved in this case, overriding considerations of public safety justify the officer’s failure to provide Miranda warnings before he asked questions devoted to locating the abandoned weapon.”
    • Exception doesn’t depend on officers’ motivations. “Kaleidoscopic situation” where “spontaneity” controls.
    • Here, the gun might have been grabbed and used by an accomplice or found by customer.
    • Exception circumscribed by exigency that justifies it; police can “instinctively” distinguish between interrogation and questions necessary for public safety.
  • K: There was no public safety threat here. Dissent: If there’s really a threat, then just do what you need to do. Evidence may be excluded and you may lose conviction, but at least you’ll abate the threat.
  • O’Connor’s concurrence/dissent is more important, because it’s about fruit. She would have excluded the statement about the gun but not the gun itself, because “nothing in Miranda or the privilege itself requires exclusion of nontestimonial evidence derived from informal custodial interrogation.”
    • Weisselberg says Quarles hasn’t opened the door to other large exceptions as widely as some initially feared. He notes that since Quarles, SC has not approved any other instances of custodial interrogations in which warnings need not be given.

Implied Waiver

  • North Carolina v. Butler (1979): “The question is not one of form, but rather whether the D knowingly and intelligently waived [his rights]. The courts must presume that a did not waive his rights; the prosecution’s burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.”
    • Berger says Court really just cares about the “knowing” part.

Ct has read the waiver req’t rather loosely. It doesn’t have to be in writing

  • Connecticut v. Barrett (1987): D was arrested for suspicion of committing sexual assault and while in custody he was read his Miranda rights three times and all three times signed an acknowledgement that he had been informed of his rights. D stated that he would not give a written statement w/o a lawyer present, but he then made oral statements, w/o a lawyer present, that were incriminating and used against him in court. Barrett tried to argue that his incriminating oral statements could not be used against him in court b/c he requested a lawyer to be present if he made a written statement. The court rejected Barrett’s argument, finding that D’s limited requests for counsel were accompanied by affirmative announcements of his willingness to speak with the authorities. The fact that the authorities took the opportunity provided by defendant to obtain an oral confession was consistent with the Fifth Amendment.
    • To conclude that defendant had invoked his right to counsel for all purposes, both his oral and written statements, required not a broad interpretation of an ambiguous statement, but a disregard of the ordinary meaning of his statement.”
  • What constitutes an invocation of Miranda rights? Fare v. Michael C. (1979): After being fully advised of Miranda rights, , a juvenile, asked to talk to his probation officer. Police denied request. Ct held incriminating statements admissible, holding that the request was not the same as asking for a lawyer. Test is totality of circumstances, including age, experience, background, and intelligence. Ct noted that probation officer is actually more closely allied to police. Dissent said that probation officers have a duty to represent minors’ interests and are trusted guardian figures.

The Distinction Between the Right to Remain Silent and the Right to Counsel

  • The scope of “second level” Miranda safeguards – the procedures that must be followed when suspects do assert their rights – and the distinction between invoking the right to remain silent and the right to counsel
  • Michigan v. Moseley (1975): was questioned about a crime, invoked right to remain silent, and was left alone. Later, the police gave him a fresh set of warnings and questioned him about a separate set of crimes. Court admitted his subsequent intimidating statements, concluding that his right to silence was “scrupulously honored.”
  • Moseley suggests three minimal requirements for resuming questioning after a suspect asserts his right to remain silent:
    • Immediately ceasing the interrogation;
    • Suspending questioning entirely for a significant period; and
    • Giving a fresh set of Miranda warnings at outset of second interrogation.
  • Edwards v. Arizona (1981): arrested and taken to station, where he asserted his right to counsel. Questioning ceased, and remained in jail, w/o seeing counsel, overnight. Next morning two officers again read him his rights; he waived rights and made incriminating statements.
    • Ct (White): Once a suspect has invoked his right to counsel, he may not be subjected to further interrogation until counsel has been made available to him, unless he himself initiates further communication, exchanges, or conversations with the police.
  • Clarification (or extension?) of the Edwards Rule
  • Arizona v. Roberson (1988): Extended Edwards to prohibit the police from initiating interrogation about crimes other than the one for which the suspect has invoked his right to counsel.
  • Minnick v. Mississippi (1990): refused to sign a waiver form but agreed to answer some of the FBI’s questions. He then said he would make a more complete statement w/ lawyer present. Interview ended, and met w/ appointed counsel on 2 or 3 occasions. Then a state sheriff questioned him, and he declined to sign waiver form but made incriminating statements.
    • Q: Does the Edwards protection cease once the suspect has consulted with an attorney? Ct: No.
    • Reasoning (Kennedy): Edwards draws a bright line barring police-initiated interrogation unless the accused has counsel with him at the time of questioning. “[W]e now hold that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused as consulted with an attorney.” Allowing Edwards’ protection to pass in and out of existence would be too confusing.
    • Scalia, joined by Rehnquist, dissenting: This makes waiver impossible. “[P]rophylaxis built on prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement.” Ct is trying to protect stupid people from their own folly. Either Moseley is wrong or Edwards is wrong; they can’t both be right.
      • K doesn’t understand Minnick. Why isn’t it enough that they honored his request for a lawyer?
  • When does the “question-proof” status end? What constitutes “initiating” further communication with the police?
    • Magid: Miranda and its progeny do not require that an inmate who has invoked his right to counsel remain forever question-proof. She thinks an inmate who has been sentenced and has settled into routine prison life is not in Miranda custody, and should only be considered in Miranda custody when some additional restraint beyond prison life is imposed.
  • Oregon v. Bradshaw (1983): invoked right to counsel. Officers terminated conversation, but while in squad car, asked, “Well, what is going to happen to me now?” Officer reiterated right to remain silent, but then conversed w/ and invited him to take lie-detector test. Next day, given warnings, failed polygraph, and confessed. Court, in splintered opinion, held that could not avail himself of Edwards.
    • The inquiry was an initiation and D waived his Fifth Amendment rights. Although bare inquiries relating to the routine incidents of the custodial relationship were not to be held as initiating a conversation, in the instant case, D’s inquiry could have been reasonably understood by the officer as relating to the investigation. Further, the officer immediately reminded D that D did not have to speak to him, supporting the conclusion that the officer understood the inquiry as one relating to the investigation. Thus, b/c there was no violation of defendant’s right to counsel and silence and the statements made by D were voluntary and resulted from a knowing waiver of his right to remain silent
      • Some inquiries, like a request for a drink of water or a request to use the phone—i.e., statements “incident to the custodial relationship—are so routine that they don’t fairly indicate a desire on the part of the accused to discuss the investigation. But ’s ambiguous statement can fairly be viewed as evincing a desire for a generalized discussion of the investigation. Since there was a valid waiver, this is admissible.
      • Rehnquist used a two-step analysis:
      • (1) Did suspect initiate a conversation?
      • (2) If so, was there, in light of the totality of the circumstances, a valid waiver?
  • Dissenters said was responding to his custodial surroundings.
    • K says the question should be whether the suspect’s statement or question is related to the merits of the case against him—e.g., if suspect asked, “What kind of evidence do you have against me?” K also says that administrative questioning is okay.
  • How direct, assertive, & unambiguous does suspect have to be to invoke right to counsel?
  • Davis v. U.S. (1994): questioned about a murder for an hour and a half before he said, “Maybe I should talk to a lawyer.” Agents tried to clarify whether he was actually requesting counsel, and he said, “No, I don’t want a lawyer.” After a short break, questioning resumed for an hour, and again said, “I think I want a lawyer.” Questioning then ceased, but prior incriminating statements were admitted. SC aff’d the conviction.
    • Court (O’Connor): Edwards requires an objective inquiry into whether actually invoked his right to counsel. Questioning doesn’t have to cease when makes an ambiguous or equivocal reference to an attorney.
    • Suspect must unambiguously request counsel; “he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.”
      • Souter, in a separate opinion affirming the conviction, called for a “rule barring gov’t agents from further interrogation until they determine whether a suspect’s ambiguous statement was meant as a request for counsel.”
      • K likes Souter’s rule a lot. K also says that you could read Davis narrowly to cover only cases where the suspect initially waives his rights and then tries to change his mind. That is, only after waiving his rights does the suspect have to be forceful in asserting them.
  • Berghuis v Thompkins (2010): Court considered the position of a suspect who understands his right to remain silent under Miranda and is aware he has the right to remain silent, but does not explicitly invoke or waive the right.
    • Held: Unless and until the suspect actually stated that he was relying on that right to remain silent, his subsequent voluntary statements could be used in court and police could continue to interact with (or question) him. The mere act of remaining silent was, on its own, insufficient to imply the suspect has invoked his rights. Furthermore, a voluntary reply even after lengthy silence could be construed as implying a waiver
  • Dissent: Sotamayor reprimanded the majority for retreating from the broad protections afforded by Miranda, stating that now a criminal suspect waives his rights simply by uttering a “few one-word responses.”
  • The Miranda-Edwards-Roberson Rule & the Sixth Amnd Right to Counsel Compared and Contrasted
  • Michigan v. Jackson (1986): Indigent s agreed to talk to police w/o counsel before their arraignment, but when brought before a magistrate, they requested appointed counsel. After arraignment but before s had opportunity to consult with counsel, police again Mirandized them and obtained confessions. Court said Edwards applied and the Sixth Amendment right to counsel requires that if police initiate an interrogation after a D’s assertion of his right to counsel at an arraignment or similar proceeding, any waiver of that right for that police-initiated interrogation is invalid.
  • Court adopted a “broad” interpretation of request for counsel “at every critical stage of the prosecution.” BUT…
  • McNeil v. Wisconsin (1991): , following arrest for crime #1, appeared at bail hearing w/ counsel. On several subsequent occasions, he was interrogated about crime #2 and made incriminating statements. SC aff’d conviction.
  • Reasoning (Scalia):
  • Suspect’s assertion of his 6th Am right to counsel did not serve as an invocation of his 5th Am-based Miranda-Edwards-Roberson right to have counsel present during custodial interrogation.
    • Thus, 6th Am right protects suspect from police-initiated questioning w/o counsel about the crime w/ which he is charged, but not about unrelated, uncharged crimes.
    • 6th Am is offense-specific; doesn’t attach until prosecution is commenced. So also its Jackson effect of invalidating subsequent waivers in police-initiated interviews is offense-specific.
    • Purpose of 6th Am right is to protect layman during confrontations with gov’t after adversarial positions have solidified w/ respect to particular crime.
    • The 5th Am Edwards right is different—it’s designed to protect the suspect’s desire to deal w/ the police only through counsel.
  • We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation.’” K says this indicates that you can’t assert your rights before the warnings. K thinks it depends on the temporal proximity to the warnings; should be very close to time when warning should be delivered.
  • Dissent: This demeans the importance of the right to counsel.
  • If a suspect has not requested a lawyer but, unbeknownst to him, somebody else has retained one for him, does the failure to inform the suspect that a lawyer is trying to see him destroy the legal validity of the waiver of his Miranda rights? If the police mislead the attorney about whether her client will be questioned or otherwise deceive an inquiring attorney, should the confession be excluded?
  • Moran v. Burbine (1986): While was in custody, his sister, unbeknownst to him, retained counsel for him. Atty called police station and was told that he wouldn’t be questioned until next day. But interrogation by different police commenced later that evening. (There was no collusion.) was properly Mirandized, signed waivers, and confessed. SC held his confession to be admissible.
  • Reasoning (O’Connor):
    • Police followed Miranda; they just failed to inform him of the atty’s phone call.
    • Waiver must be knowing, intelligent, and voluntary. The inquiry has two dimensions:
      • Must be product of a free and deliberate choice rather than intimidation, coercion, or deception.
      • Must be made with full awareness both of nature of right being abandoned and consequences of decision to abandon it.
    • Police state of mind is irrelevant.
    • Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.” Info would have been useful to ; it may even have affected his decision. But Const. doesn’t require that police to supply suspect w/ constant flow of info. And we can’t define right in terms of police conduct toward attorney, b/c that conduct has no bearing on the degree of compulsion experienced by the during interrogation.
    • Miranda “embodies a carefully crafted balance designed to fully protect both the ’s and society’s interest.”
  • Dissent (Stevens): Court is now embracing incommunicado questioning. Rule should be that police have to inform suspect of atty’s efforts to contact him.
    • K says “incommunicado” is a dirty word. He’s not really incommunicado; his family knows where he is, and he could call if he wanted. K also distinguishes Escobedo, because there the knew his lawyer was outside. If this came out the other way, public defender could just say he represents all s.

When US law enforcement officers subject non-American citizens abroad to custodial interrogation, must they “Mirandize” them?

  • US v Bin Laden (2001): Judge was not dissuaded from applying Miranda to overseas interrogations conducted by US law enforcement, even if the interrogational target is in the physical custody of foreign authorities. As for the right to the assistance and presence of counsel, if the particular overseas context actually presents no obvious hurdle to the implementation of that right, due care should be taken no to foreclose an opportunity that in fact exists.

Use of Psychiatric Examinations in Proceedings

  • Estelle v. Smith (1981): State announced before trial that it would seek death penalty. Judge ordered psychiatric examination of , who was examined w/o his counsel’s permission and w/o being told he had right to remain silent. Psychiatrist then testified not only to ’s capacity to stand trial, but also to his “future dangerousness,” a critical sentencing issue. SC, per Burger, held that ’s 5th and 6th Am rights were violated: “An accused who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.”

Comparing and contrasting Miranda with (a) the prohibition against the use of involuntary or compelled statements and (b) the Fourth Amnd Exclusionary Rule

  • Stone v Powell (1976): Ct held that when a state has provided a full and fair chance to litigate a Fourth Amnd claim, federal habeas review is not available to a state prisoner claiming that his conviction rests on evidence obtained through an unconstitutional search or seizure. BUT…
  • Withrow v. Williams (1993): not Mirandized; incriminating statements admitted in state court. turned to federal courts; district court held that his Miranda rights were violated.
  • Q: Does Stone bar federal habeas review of Miranda claims? Ct: No.
  • Reasoning (Souter):
    • We have repeatedly declined to extend Stone in other contexts. Stone is limited to 4th Am, which confers no trial right, whereas 6th Am confers a fundamental right that assures the legitimacy of adversarial process.
    • Stone was based on the Mapp rule, which is not a personal constitutional right, but is prophylactic. Miranda is different, because it safeguards a trial right.
  • O’Connor, dissenting (w/ Rehnquist): Substantial costs. Suppression of voluntary statements is not a fundamental trial right.
  • Scalia (w/ Thomas): “Prior opportunity to litigate an issue should be an important equitable consideration in any habeas case, and should ordinarily preclude the court from reaching the merits of a claim, unless it goes to the fairness of the trial process or to the accuracy of the ultimate result.” Emphasizes federalism.
  • Note that several cases have held that 5th Am violations occur not only in the trial context, but also when witnesses testify, for example, before grand juries.

Is the failure of the police to notify the consular post of a detainee’s home country that he has been arrested, a notification required by the Vienna Convention, ground for suppressing the detainee’s subsequent statements to the police?

  • Sanchez-Llamas v Oregon (2006): (Consolidation of several cases) Under Article 36 of the Vienna Convention, a treaty to which the U.S. is a party, any person detained in a foreign country has the right to notify the consulate of his home country of his detention.
    • Sanchez-Llamas, a Mexican national, was arrested for his role in a shootout with the police. He was given a Miranda warning, but not informed of his right under Article 36 to notify his consulate. After Sanchez-Llamas made incriminating statements to the police, he was charged with attempted murder. Sanchez-Llamas moved to dismiss the charge. He argued that he had a right under Article 36 which had been violated, and that his confession should consequently be inadmissible as evidence. The trial court denied the motion. The OR SC affirmed, holding that the Vienna Convention does not create individual rights, but only rights of countries.
    • Bustillo, a Honduran national, was arrested for murdering a man with a baseball bat. He was not informed that Article 36 would allow him to notify his consulate of his arrest. At trial, Bustillo’s counsel brought witnesses testifying that another man had committed the crime. Nevertheless, Bustillo was convicted of first-degree murder, and the conviction was affirmed on appeal. Bustillo then filed a petition for review in state habeas court. He argued for the first time that his conviction should be thrown out because his Article 36 right to notify his consulate had been violated. The state habeas court denied the petition. The court ruled that the petition was “procedurally barred” under state law because he had failed to raise the issue at trial.
  • Question: (1) Does Article 36 of the Vienna Convention create individual, substantive rights? (2) Must evidence obtained after a violation of Article 36 be excluded from trial? (3) May a state refuse to consider a claim of a violation of Article 36 of the Vienna Convention because of a procedural bar under state law?
  • Conclusion: (1) Unanswered, (2) no, (3) . (Roberts) The Court affirmed the OR SC and ruled that evidence obtained in violation of Article 36 of the Vienna Convention need not be excluded from trial.
    • It would be “startling” if the Vienna Convention required suppression of evidence as a penalty for its violation, since the United States is the only country to have the “exclusionary rule” for illegally obtained evidence. Absent any language in the Convention requiring suppression, the Court could not impose it on states.
      • Furthermore, an Article 36 violation was not the type of evidence- related violation that normally requires the exclusionary rule.
    • Dissent (Breyer): Thought that “suppression may sometimes provide an appropriate remedy” for Article 36 violations.
    • The Court declined to decide the larger issue of whether the Vienna Convention creates individual rights that are enforceable in court. Dissent (Breyer): Would have decided that the Convention did create individual rights.
    • With respect to state law, the Court ruled that states are allowed to have procedural rules that require courts to deny Article 36 claims if they are not raised at the proper time. The Convention provides that Article 36 “shall be exercised in conformity with the laws and regulations of the receiving State.” In an adversarial system like that of the US, this means that states must be allowed to decide when claims need to be raised. Also, rulings of the International Court of Justice are not binding on U.S. courts. The dissent took exception to the absolute language of the majority opinion, arguing that “sometimes state procedural default rules must yield” to the Convention’s requirement that domestic laws give it “full effect.”

Can (Did) Congress “Repeal” Miranda? (Consider Title II of the Omnibus Crime Control and Safe Streets Act of 1968, see section 3501)

  • Dickerson v US (2000): During questioning about a robbery he was connected to, Dickerson made statements to authorities admitting that he was the getaway driver in a series of bank robberies and was then arrested. The timing of his statement is disputed. The FBI and local detectives testified that Dickerson was advised of his Miranda rights and waived them before he made his statement. Dickerson said he was not read his Miranda warnings until after he gave his statement. After his indictment, Dickerson filed a motion to suppress the statement that he made on the ground that he had not received Miranda warnings before being interrogated. The government argued that even if the Miranda warnings were not read, the statement was voluntary and therefore admissible under 18 USC Section 3501, which provides that “a confession shall be admissible in evidence if it is voluntarily given.”
  • Question: May Congress legislatively overrule Miranda v. Arizona and its warnings that govern the admissibility of statements made during custodial interrogation?
  • Conclusion (Rehnquist): No. Miranda governs the admissibility of statements made during custodial interrogation in both state and federal courts. “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” “Miranda announced a constitutional rule that Congress may not supersede legislatively. We decline to overrule Miranda ourselves.”
  • Dissent blasted the Court’s ruling, writing that the majority opinion gave needless protection to “foolish (but not compelled) confessions.



  • The Survival of the Old Tests
  • Although some may believe that Miranda displaced the due process-totality of the circumstances-voluntariness test, it’s still around in a number of contexts.
  • In the first place, most suspects waive Miranda, so their confessions are judged by the voluntariness test.
  • Voluntariness test is also used when suspects not in custody are questioned by the police; when suspects in a custody-like situation are questioned (or threatened) by private citizens; or when prosecution seeks to impeach or use fruits. (Note that involuntary statements cannot be used for impeachment purposes, and fruit of an involuntary statement may not be admissible either.)
  • Many lower courts have held that a confession is admissible even when obtained by trickery and deceit, provided that the trickery does not “shock the conscience” or is not apt to induce a false confession.


What kind of trickery or deception, if any, may the police employ after a suspect has waived his rights?

  • Miller v. Fenton (3d Cir. 1986): , prime suspect in brutal murder case, signed Miranda card. A 53-minute interrogation ensued, which the police taped. (Thus a transcript was available to the court.) One of the interrogators, Detective Boyce, was highly sympathetic, calling himself ’s brother, saying had mental problems and needed help, appealing to ’s conscience, etc. Boyce also lied about certain facts. When at last confessed, he collapsed in a state of shock and had to be taken to the hospital.
  • 3d Cir., per Becker, admitted the confession. Since had been properly Mirandized, the question, as Becker framed it, was whether Boyce’s tactics were sufficiently manipulative to overbear the will of a person w/ ’s characteristics. Becker concluded that the confession was “voluntarily given” after considering the “totality of the circumstances”: mature, 32-year-old adult; prior jail sentence; less than 1 hours; “good guy” approach is permissible; lying about timing of death wasn’t sufficient trickery to overcome will; leniency wasn’t promised. Free choice.
  • Dissent included portions of transcript. Majority doesn’t even include the fact that collapsed in a catatonic state in its totality-of-the-circumstances approach.

Police Trickery

  • Frazier v. Cupp (1969): Admitted a confession in a pre-Miranda case although the police had falsely told that someone else had confessed and also “sympathetically” suggested that victim’s homosexual advances may have started the fight. Otherwise, however, the interrogators’ behavior, claims a Stanford Note, was “exemplary.” Police trickery is just one factor in totality test.
  • State v. Cayward (Fla.App. 1989): Upheld the suppression of confession obtained after police showed a fabricated laboratory report indicating they found his semen stains on the victim’s underwear.
  • Arizona v. Fulminante(1991): After ’s stepdaughter was murdered, he was convicted of an unrelated federal offense and incarcerated. A paid FBI informant befriended him and eventually elicited a confession after he said that he would protect from his fellow inmates if told him about murder. AZ SC threw it out. US SC aff’d.
  • Reasoning (White): Totality of the circumstances test. AZ SC found a “credible threat of violence” resulting in “extreme coercion.” “A finding of coercion need not depend on actual violence by a gov’t agent; a credible threat is sufficient.”
  • Court also abandoned the “rule of automatic reversal,” which had held that no conviction based in any part on a coerced confession could stand. Court now performs case-by-case inquiry.
  • Dissent disagreed with this factual finding.

Resisting “freeing a murder” b/c of a promise not to prosecute

  • US v LeBrun (8th Circ 2004): great reluctance of some cts to “free a murder” even when the police made a flat promise not to prosecute him if he confesses – without taking into account other factors such as the length of questioning, the e D’s sophistication, and his understanding of his rights at the time of the questioning

Did the ct decline to expand the “voluntariness” test or fif it revise the test significantly:

Colorado v. Connelly(1986)

  • Facts: flew from Boston to Denver, approached a uniformed police officer, and, w/o any prompting, said he’d killed someone and wanted to talk about it. He was repeatedly Mirandized and fully confessed to murdering a young girl in Denver 9 months earlier. was found competent only after 6 months of drug and psychiatric therapy. Psychiatrist testified that his statements were the result of a mental disorder; the “voice of God” told him to confess. Psych. believed was unable to make a free and intelligent waiver of his rights. Trial court suppressed; US SC rev’d.
  • Holding: Because D was not coerced by the gov to divulge any info, his statement should be allowed in Court due to the lack of violation of the Due Process Clause.
  • Reasoning (Rehnquist): D’s confession should not have been suppressed, due to a specific sentence in Miranda that stated that confessions may only be thrown out if the accused is interrogated violently by the government.
    • Coercive police activity is a necessary predicate to finding that a confession isn’t voluntary under DPC. Absent police conduct causally related to the confession, there is no basis for concluding that any state actor deprived of due process.
    • Prior cases all involved police overreaching. See, e.g., Townsend v. Sain (suppressing confession of who, because he was suffering from severe heroin withdrawal symptoms, was injected by a police doctor with a drug that had the properties of a “truth serum”; doctor and police interrogators didn’t know about these properties, but Rehnquist nonetheless characterizes it as a case of “police wrongdoing.”)
    • Purpose of suppression is deterrence, which wouldn’t be served here.
  • Dissent: “Surely in the present stage of our civilization a most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane.” Focus on reliability. No corroboration.
    • White says that Connelly can be read narrowly: police exerted no pressure and had no reason to believe was suffering from mental disability. So police conduct wasn’t implicated, and they did not exploit a known weakness.



  • Brewer v. Williams (Williams I) (1977): “Christian burial speech case.” accused of kidnapping and murdering girl at YMCA. He was arraigned in Davenport, where he turned himself in, and judge Mirandized him. His attorney agreed to allow him to be transported by police from Davenport to Des Moines, where the crime took place, upon the condition that he not be questioned. Before, he was arrested on an outstanding warrant and was heard in front of a judge and assigned another lawyer for this case. The two lawyers talked to each other and again agreed with the detective that Williams would not be questioned. Nonetheless, during the snowy drive, Detective Leaming gave his famous speech kind of like through psychological means, coercing him to show the body. then leads him to body; D then convicted of first degree murder.
  • Q: Was deprived of his constitutional right to the assistance of counsel? Ct: Yes.
  • Reasoning (Stewart): Once judicial proceedings begin, the Sixth Amendment dictates that a suspect has the right to counsel. Here, the officer exploited the suspect’s deep religious convictions to obtain an incriminating statement in violation of the suspect’s Sixth Amendment right to counsel. The Davenport judge arraigned Williams on his outstanding arrest warrant, thus judicial proceedings were underway. Despite Williams’ insistence on his right to counsel, the officer obtained incriminating statements without informing Williams of his right to have counsel present and his ability to waive that right.
    • Right to counsel means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him, “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”
    • Leaming deliberately and designedly set out to elicit information from Williams just as surely as—and perhaps more effectively than—if he had formally interrogated him.”
    • These circumstances are constitutionally indistinguishable from Massiah. Note Stewart’s statement of the Massiah rule in Innis: Once adversary proceedings have commenced against an individual, he has a right to counsel when the gov’t deliberately elicits info from him, whether or not the gov’t’s conduct constitutes “interrogation” under Miranda.
    • Waiver requires “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst. No waiver here.
      • Court suggests that inevitable discovery doctrine might let body in.
  • Dissenters said waived his rights. White says Court is assuming that Massiah, as opposed to Miranda, includes a right not to be asked questions rather than a right not to answer.
  • K:Three scenarios (“Mother Power,” “Weather Forecaster,” and “Waitress” Ploys)
  • Distinguishable from Miranda because in K’s hypos didn’t know that people were police agents. Miranda is about the impact on the suspect’s mind that matters.
  • More importantly, these hypos are distinguishable from Williams I b/c they remove Massiah from the equation. Once is indicted and arraigned, all three are inadmissible. As far as Massiah is concerned, there doesn’t have to be interrogation to produce a violation; it’s enough if cops attempt to elicit info. K thinks Williams I would’ve been an easier case if it had come after Edwards, which focuses not on whether it was interrogation, but simply whether his right to counsel was violated.
  • K also says there’s an assumption in Williams I that Massiah rights can, like Miranda rights, be waived. Patterson confirms that, but K doesn’t think the Massiah Court intended that.

Does the “fruits” doctrine apply to Massiah violations (once criminal proceedings have begun, the government cannot bypass the defendant’s lawyer and try to elicit statements from the defendant)?

  • US v Fellers(8th circ 2005) said it did not. “We conclude that the exclusionary rule is inapplicable in Fellers’ case b/c, as with the 5th Amnd in Elstad, the use of the exclusionary rule in this case would serve neither deterrence nor any other goal of the 6th Amnd. Both the deterrence of future 6th Amnd violations and the vindication of the Amdn’s right to counsel guarantee have been effectuated through the exclusion of Feller’s initial statements. Although the officers acknowledged that they used Feller’s initial jailhouse statements (obtained after securing a Miranda waiver) in order to extract further admissions from him, there is no indication that the interrogating offices made any reference to Feller’s prior uncounseled statements in order to prompt him into making new incriminating statements.
  • Patterson v. Illinois (1988): and 2 fellow gang members were indicted for murder. As was being transferred to jail, he asked officer who else was indicted; when officer answered, asked why someone else wasn’t indicted, saying, “he did everything.” then signed waiver form and made a lengthy incriminating statement. SC aff’d conviction.
    • Reasoning (White): Same standards apply for waiving the 5th and 6th Am rights. Waiver of 5th Am-Miranda rights is sufficient to constitute waiver of 6th Am-Massiah rights. 6th Am right is not superior to 5th Am right. Miranda warnings sufficiently apprised of his right to have counsel present.
  • Stevens, dissenting, pointed to ABA anti-contact ethical rule. Also said that Miranda warnings don’t tell what a lawyer can do for him, like examining sufficiency of indictment or skillfully negotiating plea.
    • Note that the “no contact rule” has not been strongly applied in the criminal context.
  • Maine v. Moulton (1985): K: “True prophylactic rule.” Held inadmissible statements elicited after charges were filed and the right to counsel had attached, even though the statements were procured for legitimate reasons unrelated to the gathering of evidence concerning the filed charges (i.e., to investigate the possibility that would harm a potential witness). This information may be gathered and used against in new charges (e.g., for witness tampering), but it can’t be introduced against on original charges. To hold otherwise would invite abuse by police in form of fabricated investigations.

Passive” v. “Active” Secret Agents

  • U.S. v. Henry (1980): Ct, per Burger, suppressed statements made when an FBI informant, posing as ’s cellmate, was instructed by FBI not to question about the crime, and there was no showing that he had. Court said that informant was “not a passive listener”; statements were product of agent’s “conversations” w/ . Such propinquity was likely to result in agent taking affirmative steps to obtain incriminating info. K calls HenryMassiah’s “high-water mark.”
  • Kuhlmann v. Wilson (1986): ’s cellmate, Lee, was a plant who was supposed to “keep his ears open” w/o asking any questions. talked to Lee w/o changing the story he had given police, but when ’s brother visited, changed his story and confessed to Lee. SC aff’d conviction.
  • Reasoning (Powell): Distinguished Henry by saying the agent there had “stimulated” conversations w/ in order to “elicit” info, amounting to “indirect and surreptitious” interrogation. Informant must take some action, beyond merely listening, that is designed deliberately to elicit incriminating remarks. That didn’t happen here.
  • Burger, concurring, noted “a vast difference between placing an ‘ear’ in the suspect’s cell and placing a voice in the cell to encourage conversation for the ‘ear’ to record.”
  • K: You can’t separate ear from voice. K: It’s not easy to reconcile Henry and Kuhlmann. Ct says that in Henry, he was having a conversation with him, so he was encouraging conversation but in Kuhlmann, the FBI agent was just sitting there. Could say that Ct just defers to trial court. Or could look at causation—visit from ’s brother makes difference.

Once the 6th Amnd Right to Counsel Arises, Does it Attach to all Other Offenses Closely Related to the Particular Offense Charged?

  • Texas v Cobb (2001): In 1994, while under arrest for an unrelated offense, Cobb confessed to a home burglary. Cobb, however, denied knowledge of the disappearance of a woman and child from the home. In 1995, after counsel was appointed to represent him in the burglary case, Cobb confessed to killing the woman and child to his father, who contacted the police. Cobb, now in custody, waived his rights under Miranda and confessed to the murders. Cobb was then indicted, convicted, and sentenced to death. On appeal, Cobb argued that his confession should have been suppressed because it was obtained in violation of his Sixth Amendment right to counsel, which he claimed attached when counsel was appointed in the burglary case.
  • *** Ct says here, that if Williams was tried over again, it would have been decided differently and Massiah wouldn’t apply b/c D was arraigned for a different crime and before judge for that and this was about the murder. So right to counsel continuation wouldn’t have started yet.
  • Question: Does the Sixth Amendment right to counsel extend to crimes that are “factually related” to those that have actually been charged?
  • Conclusion (Rehnquist): No, the Court held that because the Sixth Amendment right to counsel is “offense specific,” it does not necessarily extend to offenses that are “factually related” to those that have actually been charged. Since the right to counsel was offense specific, and the offenses were separate, the “Sixth Amendment right to counsel did not bar police from interrogating [Cobb] regarding the murders, and [Cobb’s] confession was therefore admissible.”

The Fruit of the Poisonous Tree Doctrine



  • Historical Background and Overview
  • Genesis of the rule: Silverthorne Lumber (1920) (Holmes, J.): Ct said that the “essence” of forbidding gov’t from obtaining evidence in certain ways is that the evidence should “not be used at all.” This doesn’t make the evidence “sacred and inaccessible”: knowledge gained from an “independent source” can be proved like any other info.
  • The doctrine of attenuation: Nardone (1939): Frankfurter first used “fruit” phrase: “To forbid the direct use of methods but to put no curb on their full indirect use would only invite the very methods deemed inconsistent with the ethical standards and destructive of personal liberty.”
    • Also established the “attenuation doctrine”—where challenged evidence did not have an “independent source,” it may still be admissible if the causal connection between the information obtained and the gov’t’s conduct is “so attenuated as to dissipate the taint.”
      • K says it’s a very convenient way to admit the evidence
  • Wong Sun v. U.S. (1963): Excluded statements made by T when agents unlawfully entered and arrested T in his bedroom. Those statements implicated Y, and Y in turn incriminated T.
  • Ct held that Y’s statements were also inadmissible as the fruits of the unlawful bedroom entry and arrest. ER traditionally barred only “physical, tangible materials,” but Ct reasoned that “verbal evidence” that derives immediately from unlawful arrest is “no less the ‘fruit’ of an official illegality.”
    • Ct said the test is not a but-for inquiry, but rather “whether, granting establishment of the primary illegality, the evidence has been come at by exploitation of that illegality or instead by means sufficiently indistinguishable to be purged of the primary taint.”

Independent Source Doctrine v. the Inevitable Discovery Doctrine

  • Can’t expand one doctrine to completely wipe out another doctrine

Confession as the “fruit” of an illegal arrest.

  • Brown vIllinois (1975): D illegally arrested, made incriminating statements within two hours of the arrest after waiving Miranda rights. Held: not ok to admit statements. “If Miranda warnings, by themselves, were held to attenuate the taint of an unconst arrest, regardless of how wanton and purposeful the 4th Amnd violation, the effect of the exclusionary rule would be substantially diluted. Illegal arrests would be encouraged by the knowledge that evidence derived therefrom hopefully could be made admissible at trial by the simply expedient giving of Miranda warnings. Any incentive to avoid 4th Amnd violations would be eviscerated by making the warnings, in effect, a cure-all.”
  • Dunaway v. New York: Reaffirmed the view that Miranda warnings, by themselves, are insufficient to attenuate the taint of an unconstitutional arrest.
  • Rawlings v. Kentucky (1980): ’s admission of ownership of drugs found in someone else’s purse was not impermissible fruit even though was illegally detained in house while police obtained search warrant for premises. Ct noted that detention was in a “congenial atmosphere” and that police misconduct wasn’t that conscious or flagrant.

Identification of a person as a “fruit” of an illegal arrest.

  • U.S. v. Crews (1980): Upheld an in-court identification of even though he was wrongfully detained and photographed and the photo was shown, with 7 others, to the victim. In-court identification featured elements that were not “come at by exploitation” of ’s 4th Am rights. was not himself a suppressible fruit, and illegal arrest didn’t affect victim’s ability to identify him.
    • Miranda warnings are important but not necessarily decisive or cure the illegal arrest or wipe out the effects of the illegal arrest
      • Depends on how outrageous the illegal arrest was
      • Precursor to good faith exception (from Leon): If police knew or should have known they didn’t have enough for arrest, then police has extra burden of establishing why he proceeded

Confession as the “fruit” of a Payton violation

  • Payton v NY (1980): The Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. BUT
  • NY v Harris (1990): The police arrested an individual in his home without a warrant and he made various incriminating statements.
  • Rule: Where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is made after a warrantless and nonconsensual entry into the suspect’s violation of Payton.
  • Held: D’s statement taken at the police station was not the product of being in unlawful custody. Neither was it the fruit of having been arrested in the home rather than someplace else. Additionally, the police had a justification to question D prior to his arrest; therefore, his subsequent statement was not an exploitation of the illegal entry into the D’s home.

Warrant search as fruit of illegal entry and occupation of premises.

  • Segura v. U.S. (1984): Admitted evidence obtained pursuant to warrant where officers entered suspect’s apt illegally and stayed in apt for 19 hours while warrant was obtained. Ct: There was an independent source for the warrant.
  • Murray v. U.S. (1988): Held that evidence observed by police during an illegal entry need not be excluded if such evidence is subsequently discovered during the execution of an otherwise valid search warrant sought and issued on the basis of information wholly unconnected to the prior entry. Ct emphasized that second entry was independent of the first; if warrant had issued on basis of what agents had seen during illegal entry, evidence would be excluded. K: How do you know whether it was prompted by what the police saw?

The “tainted” witness

  • U.S. v. Ceccolini (1978): Held that testimony of witness should not be excluded b/c cops learned of witness and questioned her on basis of illegally seized evidence. Ct declined to adopt a per se rule that the testimony of a live witness should always be admissible, but it said that witnesses don’t remain hidden from view, like guns, etc. They can come forward on their own, so we shouldn’t permanently disable their testimony. But note that here the witness hadn’t come forward after 4 months.

Standing. Does A have standing to challenge the fruits of an illegal search of B’s belongings when those fruits are used against A? Ct: No. K thinks this doctrine should be eliminated. It’s not really explained by the deterrence theory, which has become the dominant theory of the ER. An overnight guest has sufficient involvement to have standing, but Minnesota v. Carter says that a guy who had just dropped in to sell some drugs didn’t have standing.

The “Inevitable Discovery” Doctrine

  • Even if a but-for test can’t be satisfied, the challenged evidence is admissible if the gov’t learned of the evidence from an independent source. A variation on the independent source doctrine is the “inevitable discovery” or “hypothetical independent source” doctrine, which asks not whether the police actually acquired certain evidence by reliance on an independent source, but whether evidence in fact obtained illegally would inevitably or eventually or probably have been discovered lawfully.
  • Nix v. Williams (Williams II) (1984): Sequel to Williams I (Christian burial case): At William’s second trial, prosecution did not offer his statements to the police into evidence, but did offer the body as evidence as if the body had been found without the notice of the defendant. The defense again argued to have the body not admitted as evidence, but was denied and the defendant was again found guilty of his charges.
  • Q: Is the evidence of the body and its condition admissible, despite the Massiah violation, under the inevitable discovery doctrine? Ct: Yes.
  • Ct (Burger): The fact that the body of the girl would have been found in short order outweighs the defendant’s argument of an unlawful interrogation, a minor mistake, by the police.
  • Same justification as independent source doctrine—deterrence. The burden of proof is on the prosecution by a preponderance of the evidence. No good faith req’t. This would inevitably have been discovered.
  • Must the independent line of investigation already be underway? Brennan and Stevens appear to think so in their Williams II dissents, but that’s not clear.
  • Williams II applied the exception to secondary or derivative evidence, but most courts have also applied the exception to primary evidence—i.e., evidence discovered during the course of the search itself.

More on the “inevitable discovery” exception and the “attenuation” doctrine:

  • Hudson v Michigan (2006): in the course of holding that a violation of the knock and announce rule did not require exclusion of the evidence found in the search of the D’s home, SCALIA observed: “exclusion may not be premised on the mere fact that a const violation was a “but for” cause of obtaining evidence.”
  • Evidence need not be excluded when police violate the “knock-and-announce” rule. Scalia reaffirmed the validity of both the knock-and-announce rule and the “exclusionary rule” for evidence obtained by police in most cases of Fourth Amendment violation. However, the majority held that the exclusionary rule could not be invoked for evidence obtained after a knock-and-announce violation, because the interests violated by the abrupt entry of the police “have nothing to do with the seizure of the evidence.” Justice Scalia wrote that the knock-and-announce rule was meant to prevent violence, property- damage, and impositions on privacy, not to prevent police from conducting a search for which they have a valid warrant. The Court also found that the social costs of the exclusionary rule as applied to the knock-and-announce rule outweighed any possible “deterrence benefits,” and that alternative measures such as civil suits and internal police discipline could adequately deter violations.
  • The dissent noted the Court’s long history of upholding the exclusionary rule and doubted that the majority’s cited precedents supported its conclusion. The dissent also expressed doubt that knock-and-announce violations could be deterred without excluding the evidence obtained from the searches.



Discover more from Legal Three

Subscribe now to keep reading and get access to the full archive.

Continue reading