LexisNexis Area of Law Summary

Criminal Procedure
Chapter 1
OVERVIEW OF FOURTH AMENDMENT PRINCIPLES
1.01 Text of the Fourth Amendment
The Fourth Amendment reads:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
1.02 Persons and Actions Covered by the Fourth Amendment
[A] People
The Fourth Amendment is not specifically limited to citizens. For Fourth Amendment
purposes, the word people encompasses non-citizens who have developed sufficient
connection with the United States to be considered part of the national community.
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
In Verdugo-Urquidez, the Court assumed, but did not rule, that undocumented
immigrants living voluntarily in the United States have accepted some societal
obligations and thus possess Fourth Amendment rights. It declined to resolve the
question of whether a nonresident alien, involuntarily detained in the United States for an
extended period of time, has sufficient connection with the country to be afforded Fourth
Amendment rights.
[B] Standing to Raise Fourth Amendment Claims
Fourth Amendment rights may only be asserted by one who is subjected to an
unreasonable search or seizure. The rights may not be vicariously asserted. Thus, a
defendant cannot challenge a search against a co-defendant. [See Chapter 6, Standing to
Assert Fourth Amendment Claims.]
[C] Governmental Action
The Fourth Amendment only applies to actions by the government. Actions undertaken
by private persons acting in the capacity of an agent of the government are also covered
by the Amendment. Whether a private person is deemed an agent of the government is
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determined by the degree of government involvement in the situation and the totality of
the circumstances.
The Fourth Amendment is not limited to police activity and covers conduct by other
public employees, such as firefighters, public school teachers, and housing inspectors.
Searches by non-police government actors are generally of an administrative, not
investigatory nature, and are controlled by different standards. [See Chapter 5,
Administrative and Non-Investigatory Searches.]
[D] Extraterritorial Searches and Seizures
The Fourth Amendment does not apply to activities of foreign law enforcement officers
acting outside the United States. Thus, evidence secured by a foreign officer that is turned
over to the United States may be admitted against the victim of the search in a criminal
trial. However, if there is sufficient U.S. involvement in the extraterritorial search of an
American citizen, the Fourth Amendment applies.
In contrast, nonresident aliens located outside the United States or its territories, as well
as those who are temporarily and involuntarily in the country, are not protected against
foreign searches, even if conducted by United States government officers. United States
v. Verdugo-Urquidez, 494 U.S. 259 (1990).
1.03 Persons, Houses, Papers, and Effects
[A] Persons
For Fourth Amendment purposes, person includes:
(1) the defendants body as a whole (as when he is arrested);
(2) the exterior of the defendants body, including his clothing (as when he is
patted down for weapons);
(3) the interior of the defendants body (as when his blood or urine is tested for
drugs or alcohol);
(4) the defendants oral communications (as when his conversations are subjected
to electronic surveillance).
[B] Houses
House has been broadly construed to include:
(1) structures used as residences, including those used on a temporary basis, such
as a hotel room;
(2) buildings attached to the residence, such as a garage;
(3) buildings not physically attached to a residence that nevertheless are used for
intimate activities of the home, e.g., a shed;
(4) the curtilage of the home, which is the land immediately surrounding and
associated with the home, such as a backyard. However, unoccupied and undeveloped
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property beyond the curtilage of a home (open fields) falls outside of the Fourth
Amendment.
Factors relevant to determining whether land falls within the cartilage are:
(1) the proximity of the land to the home;
(2) whether the area is included within enclosures surrounding the house;
(3) the nature of the use to which the area is put; and
(4) the steps taken by the resident to protect the land in question from observation.
United States v. Dunn, 480 U.S. 294 (1987).
Commercial buildings receive limited Fourth Amendment protection on the theory that
one has a greater expectation in his home than in commercial structures.
[C] Papers and Effects
Papers encompass personal items, such as letters and diaries, as well as impersonal
business records. Effects encompass all other items not constituting houses or
papers, such as clothing, furnishings, automobiles, luggage, etc. The term is less
inclusive than property; thus, an open field is not an effect.
1.04 Search
[A] Katz v. United States
In Katz v. United States, 389 U.S. 347 (1967), federal officers, acting without a warrant,
attached an electronic listening device to the outside of a telephone booth where the
defendant engaged in a number of telephone conversations. The controlling legal test at
the time for determining whether police conduct violated the Fourth Amendment was
known as the trespass doctrine. Under the trespass doctrine, the Fourth Amendment
did not apply in the absence of a physical intrusion - a trespass - into a constitutionally
protected area, such as a house.
Noting the advent of modern technology that allowed the government to electronically
intercept conversations without physical intrusion into any enclosure, the Court
abandoned the trespass doctrine and announced that the appropriate inquiry for Fourth
Amendment challenges was whether the defendant had a reasonable expectation of
privacy. Applying this new standard, the Court found that despite the fact that the
telephone booth was made of glass and the defendants physical actions were knowingly
exposed to the public, what he sought to protect from the public were his conversations,
as evidenced in part by shutting the door to the phone booth. Thus, the governments
electronic surveillance of the defendants conversations without a warrant violated the
Fourth Amendment.
[B] False Friends Doctrine
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The Fourth Amendment protects private conversations where no party consents to the
surveillance and/or recording but does not protect conversations where one party
consents to such activity. Thus, under the doctrine of false friends, no search occurs if
a police informant or undercover agent masquerading as the defendants friend, business
associate, or colleague in crime, reports to the government the defendants statements
made in the informants or agents presence. United States v. White, 401 U.S. 745 (1971).
A person is not deemed to have a reasonable expectation of confidentiality from a person
with whom he is conversing.
The doctrine also applies where the false friend wears a wire to record the
conversation with the defendant.
[C] Open Fields
Entry into and exploration of so-called open fields does not constitute a search within
the meaning of the Fourth Amendment. The open fields doctrine is based on the theory
that people do not have a legitimate expectation of privacy in activities occurring in open
fields, even if the activity could not be observed from the ground except by trespassing in
violation of civil or criminal law.
[D] Other Forms of Electronic Surveillance
[1] Pen Registers
Installation and use of a pen register by the telephone company, at the behest of the
government, to record the telephone numbers dialed from a private residence is not a
search within the meaning of the Fourth Amendment. Smith v. Maryland, 442 U.S. 735
(1979) (concluding that the defendant did not likely have an expectation of privacy in the
numbers he dialed, but even if he did, such expectation was unreasonable).
[2] Electronic Tracking Devices
Surveillance of activities occurring in public falls outside the protections of the Fourth
Amendment. Thus, the use of an electronic tracking device attached to a suspects
vehicle or object carried by the suspect does not constitute a search to the extent that it
provides the police with information that could have otherwise been secured by visual
surveillance from public places. United States v. Knotts, 460 U.S. 276 (1983). However,
where such device allows the police to monitor activity inside a private place such as a
home, a Fourth Amendment search occurs. United States v. Karo, 468 U.S. 705 (1984).
[3] Thermal Imagers
The use of a thermal-imaging device aimed at a home from a public area to detect relative
amounts of heat within constitutes a search. Kyllo v. United States, 533 U.S. 27 (2001)
(technology improperly used to confirm federal agents suspicion that defendant was
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using high-intensity lamps to grow marijuana inside his home). Use of such technology
constitutes a search if it enables the government to gather evidence from a
constitutionally protected area to which it would not otherwise have access without a
warrant.
[E] Aerial Surveillance
Aerial surveillance by the government of activities occurring within the curtilage of a
house does not constitute a search if the surveillance:
(1) occurs from public navigable airspace;
(2) is conducted in a physically non-intrusive manner; and
(3) does not reveal intimate activities traditionally connected with the use of a
home or curtilage.
California v. Ciraolo, 476 U.S. 207 (1986) (involving aerial surveillance of defendants
backyard in which he was growing marijuana)
Construction of a fence which blocks observations from ground-level and demonstrates
the defendants desire to maintain privacy does not necessarily equate to a reasonable
expectation of privacy if there any modes of surveillance possible under the
circumstances, e.g., airplanes and helicopters flying above, observations from taller
adjacent buildings, a utility repair person on a pole overlooking the yard.
[F] Dog Sniffs and Other Tests for Contraband
Activity that is aimed at detecting the mere presence of contraband, or identifying a
suspicious substance as such, does not constitute a search. United States v. Place, 462
U.S. 696 (1983) (a dog sniff of luggage, which was located in a public place, does not
constitute a search); United States v. Jacobsen, 466 U.S. 109 (1984) (a chemical test that
merely discloses whether a particular substance is cocaine does not compromise any
legitimate interest in privacy, and is, therefore, not a search). However, a test to
determine personal use of contraband, such as a urine test to detect drug use, does
qualify as a search.
[G] Inspection of Garbage
There is no reasonable expectation of privacy in garbage left for collection outside the
curtilage of ones home. California v. Greenwood, 486 U.S. 35 (1988).
1.05 Seizure
[A] Seizure of Property
In contrast to a search, which affects a persons privacy interest, a seizure of property
invades a persons possessory interest in that property. Tangible property is seized in
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Fourth Amendment terms when there is some meaningful interference with an

individuals possessory interests in that property.
[B] Seizure of Persons
A Fourth Amendment seizure of a person occurs when a police officer, by means of
physical force or show of authority, in some way restrains the liberty of a citizen, Terry
v. Ohio, 392 U.S. 1 (1968), or put another way, when in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was not free
to leave. United States v. Mendenhall, 446 U.S. 544 (1980).
Examples of activities that constitute a seizure of persons include:
arrests.
physically restraining or ordering a person to stop in order to frisk or question him
on the street.
taking the person into custody and bringing him to a police station for questioning
or fingerprinting.
ordering a person to pull his automobile off the highway for questioning or to
receive a traffic citation.
stopping a car by means of a roadblock.
However, brief questioning by itself is unlikely to amount to a seizure. E.g., Florida v.
Bostick, 501 U.S. 429 (1991) (brief questioning during a bus sweep not a seizure);
Immigration and Naturalization Service v. Delgado, 460 U.S. 210 (1984) (brief
questioning about citizenship during a factory sweep not a seizure).
[C] Mere Evidence Rule
Under the mere evidence rule, only certain categories of evidence could be seized:
(1) a fruit of a crime (e.g., money obtained in a robbery);
(2) an instrumentality of a crime (e.g., the gun used to commit a robbery, or the
car used in the get-away); or
(3) contraband (e.g., illegal narcotics).
So-called mere evidence, items that have only evidentiary value in the apprehension or
conviction of a person for an offense, could not be seized.
The Supreme Court abolished the mere evidence rule in Warden v. Hayden, 387 U.S. 294
(1967). Police officers may now seize any evidence that has a connection to the criminal
activity under investigation.
1.06 Probable Cause
[A] Scope of Probable Cause Requirement
Probable cause is required as the basis for:
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(1) arrest and search warrants; and

(2) all arrests (regardless of whether an arrest warrant is required)
Not all searches and seizures need be founded on probable cause. A lesser standard
reasonable suspicion may apply where the intrusion is minor, such as a pat-down for
weapons. Furthermore, where the intrusion on a persons privacy is especially slight and
societys interest in conducting the search or seizure is significant, there may be no need
for individualized suspicion, such as for society and border checkpoints and certain
administrative searches.
[B] Probable Cause Defined
Probable cause exists when the facts and circumstances within an officers personal
knowledge, and about which he has reasonably trustworthy information, are sufficient to
warrant a person of reasonable caution to believe that:
(1) in the case of an arrest, an offense has been committed and the person to be
arrested committed it.
(2) in the case of a search, an item described with particularity will be found in
the place to be searched.
Probable cause is an objective concept. An officers subjective belief, no matter how
sincere, does not in itself constitute probable cause. However, in determining what a
person of reasonable caution would believe, a court will take into account the specific
experiences and expertise of the officer whose actions are under scrutiny.
[C] Basis for Probable Cause
Probable cause may be founded on:
(1) direct information, i.e., information the officer secured by personal
observation; and
(2) hearsay information.
No weight may be given to unsupported conclusory statements in probable cause
determinations.
[1] Direct Information
Unless a magistrate has reason to believe that an affiant has committed perjury or
recklessly misstated the truth, the magistrate may consider all direct information provided
by the affiant. The affiants information is considered reasonably trustworthy because it
is provided under oath.
[2] Hearsay (Informant) Information

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A magistrate may consider hearsay for purposes of determining probable cause, as long
as the information is reasonably trustworthy. The informants identity need not be
disclosed to the magistrate unless the magistrate doubts the affiants credibility regarding
the hearsay.
The Aguilar-Spinelli test for determining the reliability of informant tips controlled until
1983, when it was replaced by the Gates totality-of-the circumstances test.
[a] Aguilar-Spinelli Test
Hearsay information had to satisfy both of the tests prongs below in order to be deemed
sufficiently trustworthy to be included in the probable cause assessment:
(1) the basis-of-knowledge prong; and
(2) the veracity prong, of which there are two alternative spurs:
(a) the credibility-of-the-informant spur and
(b) the reliability-of-the-information spur.
Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969).
The basis-of-knowledge prong is satisfied if the informant personally observed the
reported facts. If the information was second-hand, the magistrate would need to
ascertain the reliability of that source. In some circumstances, the basis-of-knowledge
prong could be satisfied by self-verifying detail, where the information provided by the
informant was so rich in detail that it was reasonable to conclude that he had obtained it
first hand.
To satisfy the veracity prong, evidence was required to demonstrate either that the
informant was a credible person (the credibility spur of the veracity prong) or, if that
could not be shown, that his information in the specific case was reliable (the reliability
spur).
If one of the prongs was not satisfied, the hearsay evidence standing alone was deemed
insufficiently trustworthy, but its trustworthiness could be resuscitated by at least partial
corroboration.
[b] Totality of the Circumstances Test
In Illinois v. Gates, 462 U.S. 213 (1983), the Court abandoned Aguilar and substituted
the totality-of-the-circumstances test for probable cause determinations, which requires
the magistrate to balance the relative weights of all the various indicia of reliability (and
unreliability) attending an informants tip. The factors enunciated in Aguilar - basis-ofknowledge and veracity - remain highly relevant in determining the value of an
informants tip but are no longer treated as separate, independent requirements.

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Chapter 2
SEARCH WARRANTS
2.01 Oath or Affirmation
The Fourth Amendment provides that warrants may not be issued unless they are
supported by Oath or affirmation. An affidavit supporting a search warrant is
presumed valid. However, in limited circumstances, a defendant may challenge a facially
valid warrant, after the search is conducted, on the ground that the warrant would not
have been issued but for the falsity in the affidavit. Franks v. Delaware, 438 U.S. 154
(1978).
The granting of a hearing on the veracity of the affidavit requires the defendant to make a
substantial preliminary showing that:
(1) a false statement was included in the affidavit;
(2) the affiant made the false statement knowingly and intentionally or with
reckless disregard for the truth; and
(3) the false statement was essential to the magistrates finding of probable cause.
If the allegations are proved at a hearing by a preponderance of the evidence, the warrant
is void, and the fruits of the search must be excluded from the criminal trial.
2.02 Particularity Requirement
The Fourth Amendment provides that a warrant must describe with particularly the
place to be searched, and the persons or things to be seized.
[A] Place to be Searched
The place to be searched must be described in the warrant in a manner sufficiently
precise that the officer executing the warrant can identify it with reasonable effort. For
example, if the warrant specifies an address which is in fact a multiple dwelling building,
the police must limit their search to the unit belonging to the person named in the warrant
only, which may be ascertained by reasonable effort, such as by checking names on the
mailbox or by asking neighbors.
A warrant to search an automobile is sufficient if it describes the vehicle in a manner that
makes it easily identifiable, such as by providing the license or vehicle identification
number, or by describing its location, if the location is a one-car garage, but not if it is a
two-car garage or public parking lot.
[B] Persons or Things to be Seized
A degree of vagueness in the warrant description may be acceptable when the police have
described the item with as much particularity as can reasonably be expected. Less
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specificity is required regarding contraband than is required for papers and effects,
which the First Amendment protects.
2.03 Execution of Search Warrants
[A] Time of Execution
Some jurisdictions, by statute or rule of procedure, require that search warrants be
executed within a specified period of time from the date that the warrant was issued,
often within ten days. Some jurisdictions bar night-time execution of warrants, unless
expressly authorized by the magistrate.
[B] Knock-and-Announce Rule
Generally, the police may not forcibly enter a home to execute a warrant, unless they first
knock at the door (or ring the bell), identify themselves, state their purpose for seeking
entry, request admittance, and are refused admission. Wilson v. Arkansas, 514 U.S. 927
(1995).
The knock-and-announce rule may be dispensed with when the police:
(1) have chased the person named in the warrant to his home in hot pursuit;
(2) have reasonable suspicion that evidence may be imminently destroyed; and
(3) have reasonable suspicion that there is a risk of harm to the officers or others.
2.04 Scope of the Search
The police are authorized to search only for items specified in the warrant. They may
open containers (e.g., drawers, closets, trunks) within the place specified in the warrant if
the containers are large enough to contain the object of the search. E.g., the police may
open dresser drawers in a search for narcotics but not for a stolen television.
Nevertheless, the police are authorized to seize any item (whether or not it is described in
the warrant) if:
(1) they discover the item while searching a place that they have the authority to
search;
(2) the item is located in such area; and
(3) they have probable cause to believe the item is subject to seizure.
2.05 Search of Persons While Executing a Warrant
[A] Public Places
When a warrant is executed in a public place, the police may not extend the search to
persons not named in the warrant who happen to be present at the premises identified in
the warrant, unless they have reasonable suspicion that such other persons are armed and
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dangerous. In that case, such other persons may be frisked according to Terry v. Ohio.
[See 3.01, Reasonableness Balancing Standard.] Ybarra v. Illinois, 444 U.S. 85
(1979) (police officers, with a warrant to search a tavern and a named bartender for
heroin, frisked each tavern customer for weapons, without reason to believe any were
armed, and discovered heroin on the person of one of the customers).
[B] Private Homes
The Supreme Court has not directly addressed the scope of a police officers authority to
search a person during execution of a search warrant to search a private residence. A few
lower courts permit the police, while executing a search warrant of a home for narcotics,
automatically to frisk occupants for weapons. Other courts require particularized
suspicion that the person frisked is armed and dangerous.
[C] Detention of Persons During Searches
During the execution of a search warrant for contraband, the police have limited authority
to detain all occupants of the premises to be searched. Michigan v. Summers, 452 U.S.
692 (1981). The Court has not addressed whether this authority extends to search
warrants for evidence other than contraband.

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Chapter 3
WARRANTLESS SEARCHES
3.01 Reasonableness Balancing Standard
[A] Terry v. Ohio
Terry v. Ohio, 392 U.S. 1 (1968), made constitutionally permissible warrantless searches
and seizures in limited circumstances. The Supreme Court ruled that in determining
whether the Warrant and Probable Cause clauses of the Fourth Amendment apply to a
given search and/or seizure, the central inquiry is the reasonableness of the
governments activity under the circumstances; reasonableness is assessed by
balancing the need to search or seize against the invasion the search or seizure entails.
This is known as the reasonableness balancing test. [See 3.02 for further discussion
of Terry v. Ohio.]
[B] Reasonable Suspicion
Suspicion is reasonable if the officer can point to specific and articulable facts that,
along with reasonable inferences from those facts, justify the intrusion. Reasonable
suspicion that a crime has been or is being committed may be based on one or more of
the following information:
the police officers personal observations.
reliable hearsay.
criminal profiles.
unprovoked flight.
[1] Hearsay
Hearsay may support an officers reasonable suspicion of criminal activity where:
(1) the tip carries enough indicia of reliability to justify a Terry stop. Adams v.
Williams, 407 U.S. 143 (1972). E.g., the informant identifies himself or has provided
reliable information to the police on a prior occasion.
(2) a tip lacking sufficient indicia of reliability is corroborated such that the
totality of the circumstances justifies the Terry stop. Alabama v. White, 496 U.S. 325
(1990). A tip lacks sufficient indicia of reliability where the informant is anonymous and
provides an insufficient basis for his statements from which the police may conclude that
the informant is honest or his information reliable.
An uncorroborated anonymous tip can never serve as the sole basis for a Terry stop.
Florida v. J. L., 529 U.S. 266 (2000) (reasonable suspicion not found where the police
received an anonymous tip that a young black male wearing a plaid shirt standing at a
particular bus stop was carrying a gun and where the police observed a person matching
the informants description, but noted no suspicious conduct suggesting criminal activity
was underfoot).
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[2] Criminal Profiles

An officers observations may properly be supplemented by consideration of the typical
modes of behaviors of certain kinds of criminals. For example, in drug-trafficking cases,
an officers suspicions can be buttressed by his awareness that the suspects conduct or
appearance conforms to a so-called drug-courier profile, which is a set of
characteristics purportedly often associated with drug traffickers, compiled by law
enforcement agencies.
[3] Flight in High-Crime Areas
Unprovoked flight, when coupled with other factors such as the presence of the police
in a high-crime area can constitute reasonable suspicion to justifying a search and/or
seizure, at least in the absence of circumstances that suggest the flight is motivated by a
non-criminal purposes. Illinois v. Wardlow, 528 U.S. 119 (2000).
[4] Suspects Race or Ethnicity
Terry stops based solely on the race of a suspect are impermissible. However, race or
ethnicity, when coupled with other factors, may give rise to reasonable suspicion. For
example, courts have sometimes treated racial incongruity the presence of a person of
a particular race or ethnic group in a neighborhood where such group is not ordinarily
found as one legitimate factor in evaluating the lawfulness of a stop.
[C] Length of the Detention
The justifiability of a seizure on less than probable cause is predicated in part on the
brevity of the detention, although there is no bright-line time limitation to a Terry-type
seizure. Compare United States v. Place, 462 U.S. 696 (1983) (90-minute detention of
person suspecting of carrying narcotics in his luggage in order to subject the luggage to a
dog-sniff test was held excessive in length) with United States v. Montoya de Hernandez,
473 U.S. 531 (1985) (16-hour detention was upheld where a woman, who was suspected
of having swallowed narcotics-filled balloons in order to smuggle them, refused to
undergo an x-ray, and was thus detained until she had a bowel movement).
In determining whether a detention was excessive in length, the court may consider
whether a less intrusive method was available and whether the police acted unreasonably
in failing to recognize it or to pursue it. United States v. Sharpe, 470 U.S. 675 (1985).
3.02 Weapons Searches
[A] Holding of Terry v. Ohio

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At issue in Terry was a pat-down of a suspect that the officer observed apparently
casing a store in order to rob it. The Court found that the brief restraint and pat-down
did constitute a search and seizure. Next applying the reasonableness balancing test, the
Court weighed societys interest of effective crime prevention and detection which
would be impaired if the police could not confront suspects for investigative purposes on
less than probable cause and the polices legitimate immediate interest in ensuring that
the suspect is not armed, against the invasion of the suspects personal liberty. The Court
held that the police conduct was constitutional, stating that when an officer has reason to
believe that the suspect is armed and dangerous, the officer has the constitutional
authority to conduct a search for weapons without probable cause or a warrant.
[B] Weapon Searches of Persons
The purpose of the Terry search is limited to the sole purpose of determining whether the
suspect is armed. While the appropriate manner of the protective search depends on the
specific circumstances, generally, the proper technique, as approved in Terry, is as
follows:
(1) If an officer feels no object during a pat-down, or feels an object that does not
appear to be a weapon, no further search is justifiable.
(2) If the initial pat-down with no further touching provides the officer with
probable cause for believing that an object felt is contraband or other criminal evidence
subject to seizure, he may pull out the object without a warrant, as part of the plain-touch
doctrine.
(3) If the officer feels an object that he reasonably believes is a weapon, the
officer may conduct a search by removing the object from the suspect.
(4) If the object he pulls out is a container, he may feel the container to see if it
might contain a weapon inside.
(5) If his suspicions regarding the container are not reasonably dispelled by its
size, weight, and feel, the officer may, at a minimum, retain possession of the container.
(6) If the container could not reasonably contain a weapon, it may not be searched
or seized.
[C] Weapons Searches of Automobiles
The police may search the passenger compartment of an automobile, limited to those
areas in which a weapon may be found, if the officer reasonably believes that the suspect
is dangerous and may gain immediate control of a weapon. Michigan v. Long, 463 U.S.
1032 (1983).
3.03 Temporary Seizures of Property
Terry principles apply to seizures of property as well as to seizures of persons. Thus, for
example, police officers may, without a warrant, temporarily seize luggage on the basis
of reasonable suspicion that it contains narcotics, in order to investigate further, such as
to conduct a dog-sniff test of the luggage. United States v. Place, 462 U.S. 696 (1983).
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 3.04 Searches and Seizures of the Body

The taking of a blood, urine or breath sample, or subjecting the suspect to other intrusions
of the body, e.g., an x-ray, may be permissible without a warrant if:
(1) the police are justified in requiring the individual to submit to the test; and
(2) the means and procedures employed are reasonable.
Schmerber v. California, 384 U.S. 757 (1966) (withdrawing a blood sample from the
defendant without a warrant was found justifiable on the ground that the evidencethe
alcohol in the bloodstreamwould have been lost if the police had been required to
obtain a warrant).
3.05 Exigent Circumstances
Exigent circumstances can justify a warrantless entry of a home to make a felony arrest
or to conduct a search related to a serious offense under the following circumstances:
(1) hot pursuit of a fleeing felon;
(2) imminent destruction of evidence;
(3) the need to prevent a felons escape; or
(4) risk of harm to the police or others.
The exigent-circumstances exception does not generally apply to cases involving minor
offenses. Welsh v. Wisconsin, 466 U.S. 740 (1984) (warrantless entry of the defendants
home in order to arrest him for drunk driving was unconstitutional; the Court rejected the
states argument that the entry was necessary in order to collect a blood sample for
testing before evidence of alcohol consumption was destroyed).
Warrantless entry of a home may also be permitted in order to respond to emergency
situations, such as when the police reasonably believe that a person within is in need of
immediate aid. However, in such circumstances, the police are acting in a care-taker
capacity, not an investigative capacity.
3.06 Searches Incident to Arrest
[A] Areas That May be Searched Without a Warrant
Regardless of whether or not an arresting officer suspects weapons, evidence, or
dangerous persons will be discovered, contemporaneous with a custodial arrest, an
officer may conduct a warrantless search of:
[1] Arrestees Person
The search of an arrestee may include pockets of his clothing, and any containers found
therein, as well as containers immediately associated with him, such as a briefcase or
shoulder bag, that are large enough to conceal a weapon or evidence of a crime.
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[2] Area Within the Arrestees Immediate Control

[a] Generally
Factors to consider in determining the arrestees grabbing area are:
whether he is hand-cuffed in front or behind his back.
his size and dexterity.
the size of the space he is in.
whether containers within his reach are open or shut, and if shut, whether they are
locked.
the number of officers relative to suspects.
[b] Arrests Within a Home or Other Structure
Some courts apply a one-room rule allowing a search of the entire room in which the
arrest occurred, regardless of the other circumstances.
Aside from those areas within a residence to which the search-incident-to-arrest
exception applies, the police may not search the entire house without a warrant. Chimel v.
California, 395 U.S. 752 (1969).
[c] Arrests on the Road
When an occupant (driver or passenger) of an automobile is arrested, the police may
conduct a warrantless search of the passenger compartment and all containers found
therein, whether the containers are open or closed. New York v. Belton, 453 U.S. 454
(1981). However, the trunk and engine compartment fall outside this rule as they are not
within the immediate grabbing area of the arrestee.
[3] Immediately Adjoining Spaces
If the arrest occurs in a home, closets and other spaces immediately adjoining the place
of arrest from which an attack could be immediately launched may be searched
without a warrant. Maryland v. Buie, 494 U.S. 325, 334 (1990). This is known as a
protective search for dangerous persons or a protective sweep of the residence. Such
search is to be limited to a cursory visual inspection of those places in which a person
could be hiding, and may last only as long as necessary to dispel the reasonable suspicion
of damage, or to complete the arrest and depart the premises.
[B] Probable Cause to Seize
A police officer may seize without a warrant any article found during the search upon
probable cause to believe that it is criminal evidence related to the immediate or another
crime, even though probable cause is not necessary to conduct the search.
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[C] Full Custodial Arrest

The search-incident-to-lawful-arrest rule applies to arrests in which the officer takes the
suspect into full custody, which includes transporting him to the police station for
booking. It does not apply, however, when an officer temporarily detains a suspect.
Knowles v. Iowa, 525 U.S. 113 (1998).
3.07 Automobile Searches
[A] Searches at the Scene
A police officer may conduct an immediate warrantless search of an automobile that the
officer has probable cause to believe contains contraband, fruits, instrumentalities, or
evidence of a crime if:
(1) the officer stops the vehicle traveling on a public road; or
(2) the officer discovers the vehicle parked, but apparently capable of operation,
in a non-residential location, such as a public parking lot or gas station.
[B] Searches Away From the Scene
A warrantless search of an automobile that would be valid if it were conducted at the
scene, is also permissible if it takes place shortly thereafter away from the scene, such as
if the police impound the vehicle and subsequently conduct the search. The Supreme
Court has authorized delays of a few days, United States v. Johns, 469 U.S. 478 (1985),
but found a year-long delay unreasonable, Coolidge v. New Hampshire, 403 U.S. 443
(1971).
[C] Searches of Containers
Containers, even one belonging to a passenger who is not suspected of criminal activity,
may be searched without a warrant during an otherwise lawful automobile search
provided the container is large enough to hold the criminal evidence for which the police
are searching. Any container that constitutionally can be searched at the scene may also
be seized and searched without a warrant shortly thereafter, at the police station.
3.08 Plain View and Related Doctrines
[A] Plain View
A police officer lawfully present at the scene may seize without a warrant an object of an
incriminating nature if it is in plain view of the officer. An article is in plain view if:
(1) the police officer observes the object from a lawful vantage point i.e., the
officers presence is not in violation of the Fourth Amendment. Generally speaking, an
officer will be in a lawful vantage point during: the execution of a valid search warrant;
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an in-home arrest pursuant to an arrest warrant; a search justified under an exception to

the warrant requirement; or an activity that does not constitute a search and, therefore,
falls outside the scope of the Fourth Amendment.
(2) the police officer has a lawful right of physical access to the object i.e., an
officers ability to view an object is not necessarily accompanied by authority to seize it,
e.g., an officer may view marijuana growing in a suspects backyard from the street but
nevertheless needs a warrant to search the suspects property.
(3) its nature as contraband, fruit, instrumentality, or evidence of a crime is
immediately apparent upon observation.
[B] Inadvertent Discovery
If an officer anticipates discovery of a particular item, the plain view doctrine does not
cure his failure to obtain a warrant or to include it in a warrant to search for other items.
In such cases, the warrantless search and seizure of such object violates the Fourth
Amendment. Coolidge v. New Hampshire, 403 U.S. 443 (1971).
[C] Plain Touch
The Supreme Court has recognized a plain touch or plain feel corollary to the plain
view doctrine. Minnesota v. Dickerson, 508 U.S. 366 (1993). Under this doctrine, the
police may seize contraband detected solely through an officers sense of touch if,
comparable to plain view, the officer had a right to touch the object in question, and upon
doing so, its identity as contraband was immediately apparent. However, if further
probing is necessary to identify the nature of the object, the search falls outside the plain
touch doctrine, and a warrant is necessary to continue the search.
[D] Plain Hearing and Plain Smell Doctrines
Lower courts have similarly expanded on the plain view doctrine to recognize plain
hearing and plain smell principles.
3.09 Automobile Inventory Searches
Generally speaking, a routine inventory search of a lawfully impounded car is reasonable
under the Fourth Amendment even though it is conducted without a warrant and in the
absence of probable cause to believe that evidence of a crime will be discovered.
Consequently, if police discover criminal evidence during an inventory, they may seize it
pursuant to the plain view doctrine, and introduce it in a criminal prosecution.
[A] Routine Nature of the Inventory
A warrantless, suspicionless search of a car lawfully in police custody is not justifiable
merely because it was conducted for administrative purposes. The inventory must be a
routine or standard procedure of the department conducting it.
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Ideally, the regulations authorizing an inventory should give no significant discretion to

the individual officer. Nevertheless, the Supreme Court has upheld inventories that
permit some police discretion if exercised according to standard criteria and grounded
on reasons other than suspicion of evidence of a crime. Colorado v. Bertine, 479 U.S.
367 (1987).
[B] Scope of Inventory Search
[1] Containers
As part of a valid automobile inventory, the police may open containers found in the car,
without a warrant or probable cause. Whether an officer police may do so in his
discretion, see Florida v. Wells, 495 U.S. 1 (1990), or only where routine practice
mandates such procedure, see Colorado v. Bertine, 479 U.S. 367 (1987), is unclear.
[2] Locked Portions of the Automobile
An inventory search of an unlocked glove compartment is permissible under the Fourth
Amendment. South Dakota v. Opperman, 428 U.S. 364 (1976). Unresolved by the
Supreme Court is whether a locked glove compartment or automobile trunk may be
searched without a warrant during an inventory search, although many lower courts have
authorized such searches when they are a required part of a routine inventory.
[3] Inspection of Papers
The Supreme Court has not determined whether or to what extent the police may examine
papers and documents found during an otherwise valid inventory, but lower courts have
frequently barred the introduction of evidence secured as the result of the inspection of
private papers found during an inventory search.
3.10 Arrest Inventories
The police may search an arrestee, as well as his personal effects including containers,
as part of a routine inventory at a police station, incident to his booking and incarceration.
Neither a search warrant nor probable cause is required for an arrest inventory. Illinois v.
Lafayette, 462 U.S. 640 (1983).
3.11 Consent Searches
[A] Validly Obtained Consent
A validly obtained consent justifies an officer in conducting a warrantless search, with or
without probable cause. If the officer discovers evidence during a valid consent search,
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he may seize it without a warrant pursuant to the plain view doctrine. Consent is valid if
it is:
(1) given voluntarily The voluntariness of consent is determined from the
totality of the circumstances. Consent that is the result of express or implied duress or
coercion is involuntary. The prosecutor bears the burden of demonstrating by a
preponderance of the evidence that consent was freely given.
(2) not based on an officers assertion of authority to conduct a search on the
basis of a warrant, whether or not the warrant is valid. Bumper v. North Carolina, 391
U.S. 543 (1968).
[B] Scope of Search
A warrantless consent search is invalid if the officer exceeds the scope of the consent
granted.
[C] Third-Party Consent
Consent to a search by one who possesses common authority over property is valid
against another with whom the authority is shared. Common authority exists when
there is mutual use of the property by persons generally having joint access or control
for most purposes. United States v. Matlock, 415 U.S. 164 (1974). However, if a third
party who lacks common authority of the property with the defendant in fact consents to
a search of the defendants property, such evidence cannot be admitted at trial against the
defendant. Stoner v. California, 376 U.S. 483 (1964).
[D] Apparent Authority
A warrantless search of a residence is also constitutional when it is based on the consent
of a person whom the police, at the time of entry, reasonably believe has common
authority over the premises, whether or not that authority is valid. Illinois v. Rodriguez,
497 U.S. 177 (1990).

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Chapter 4
ARRESTS
4.01 General Rules
Upon probable cause that the suspect has committed or is committing a felony, a police
officer:
(1) may arrest a person in a public place without a warrant, even if it is
practicable to secure one;
(2) may not arrest a person in the persons home without an arrest warrant,
absent exigent circumstances or valid consent; and
(3) may not arrest a person in another persons home without a search warrant,
absent exigent circumstances or valid consent.
[See 3.05, Exigent Circumstances, and 3.11, Consent Searches.]
4.02 Arrest in the Home
The Fourth Amendment prohibits the warrantless, nonconsensual entry into a suspects
home in order to make a routine (non-exigent) felony arrest. Payton v. New York, 445
U.S. 573 (1980). A warrant is not necessary to effectuate an arrest in the curtilage of the
suspects home, however. Moreover, a suspect standing in an open doorway of his home
at the time the police arrive is treated as if he were in a public place, justifying a
warrantless arrest. United States v. Santana, 427 U.S. 38 (1976). Less clear is the
situation where the suspect is inside the house until the police knock at the door, at which
point the suspect comes to the doorway.
4.03 Knock-and-Announce Rule
An arrest warrant authorizes the police to enter a suspects home only if there is reason to
believe the suspect is within. As with search warrants, the knock-and-announce rule
applies. Even if the police believe the suspect is at home, they may not, absent special
circumstances, forcibly enter a home to execute an arrest warrant unless they first knock,
announce their purpose for entering, request admittance, and are refused entry. Wilson v.
Arkansas, 514 U.S. 927 (1995).
4.04 Use of Force in Making an Arrest
[A] Deadly Force
The police may not use deadly force to make an arrest except where:
(1) the officer has probable cause to believe that the suspect poses a significant
threat of death or serious physical injury to the officer or others; and
(2) the officer reasonably believes that such force is necessary to make the arrest
or prevent escape.
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Tennessee v. Garner, 471 U.S. 1 (1985) (an officer in pursuit of a suspect was
reasonably sure that the suspect was unarmed but fatally shot him when the suspect
refused to stop fleeing)
If the officer can reasonably effectuate the arrest with non-deadly force, he must do so.
Moreover, when feasible, the officer must warn the suspect to stop fleeing before deadly
force is employed.
[B] Non-Deadly Force
All claims of excessive force by police, whether deadly or non-deadly, are to be
evaluated according to the reasonableness standard. Graham v. Connor, 490 U.S. 386
(1989). Among the factors that may bear upon the reasonableness of the officers use of
force in a given case are:
the seriousness of the crime committed/being committed.
the extent to which the suspect poses an immediate threat to the safety of others.
the extent to which the suspect is resisting arrest or attempting to escape.

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Chapter 5
ADMINISTRATIVE AND NON-INVESTIGATORY SEARCHES
5.01 Building Inspections
[A] Warrant Requirement
Except in the case of emergency or consent, a warrant is required to enter a residential or
commercial building for the purpose of conducting administrative health and safety
inspections therein. However, such warrant is not based on probable cause to believe
there is criminal activity underfoot. Camara v. Municipal Court, 387 U.S. 523 (1967),
and See v. City of Seattle, 387 U.S. 541 (1967).
[B] Administrative Probable Cause Standard
In Camara, the Supreme Court developed a special probable cause standard to apply in
administrative search cases. In such cases, probable cause exists to issue a warrant to
inspect premises for administrative code violations as long as there are reasonable
legislative or administrative standards for conducting the inspection. Administrative
probable cause does not require individualized suspicion of wrongdoing and may be
founded on the basis of general factors such as:
the passage of time since the last inspection.
the nature of the building in question.
the condition of the entire area to be searched.
[C] Exception to Warrant Requirement
In limited circumstances, warrantless, non-exigent, nonconsensual administrative
inspections of commercial premises are constitutional. A closely regulated business
may be inspected without a warrant if three conditions are met:
(1) the administrative regulatory scheme must advance a substantial interest,
such as to protect the health and safety of workers;
(2) warrantless inspections must be necessary to further the regulatory scheme,
i.e., if there is a significant possibility that the subject of the search could conceal
violations without the surprise element that the warrantless search would allow;
(3) the ordinance or statute that permits warrantless inspections must, by its terms,
provide an adequate substitute for the warrant, such as rules that limit the discretion of
the inspectors, regarding the time, place, and scope of the search.
New York v. Burger, 482 U.S. 691 (1987).
5.02 Border Patrol Searches
[A] At the Border

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Routine border searches, without a warrant and in the absence of individualized

suspicion of criminal conduct, are deemed to be reasonable. United States v. Ramsey, 431
U.S. 606 (1977). Travelers may be detained at an international border or its functional
equivalent (e.g., an airport where an international flight arrives) for a brief search of
their person and belongings. Furthermore, a person lawfully stopped at a border may be
detained beyond the scope of a routine customs search if agents have reasonable
suspicion of criminal activity.
[B] Near the Border
The reasonableness of searches and seizures conducted near but not at the actual border
depends in part on whether they take place at a fixed checkpoint or as the result of a
roving border patrol.
[1] Roving Border Patrols
Traditional Fourth Amendment standards apply to searches and seizures conducted by
roving border patrol agents. Roving border patrol agents may not detain a person in a
vehicle even briefly for questioning in the absence of reasonable suspicion of illegal
presence in the country or other illegal activity. Factors that may justify a brief seizure to
determine whether the occupants of a vehicle are illegal aliens include:
information about recent illegal border crossings in the area;
furtive behavior by the occupants of the vehicle; and
evidence that the car has an extraordinary number of passengers.
Reasonable suspicion may not be based, however, exclusively on the fact that occupants
of the vehicle appear to be of foreign ancestry. United States v. Brignoni-Ponce, 422
U.S. 873 (1975) (roving border patrol agents improperly stopped a vehicle to question the
occupants solely on the ground that they appeared to be of Mexican ancestry).
[2] Fixed Interior Checkpoints
Vehicles may be stopped and their occupants briefly detained for questioning at fixed
checkpoints, without individualized suspicion of wrongdoing. United States v. MartinezFuerte, 428 U.S. 543 (1976). The Court distinguished fixed checkpoints from roving
border patrols on two grounds:
(1) the lesser intrusion resulting from a fixed checkpoint than random stops on the
highway; and
(2) the lesser discretion afforded officers maintaining the fixed checkpoints than
the roving patrols.
5.03 Sobriety Checkpoints
A highway sobriety checkpoint at which drivers were briefly detained (an average of 25
seconds) to search for signs of intoxication was upheld despite the lack of individualized
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suspicion of driving under the influence. Michigan Department of State Police v. Sitz,
496 U.S. 444 (1990). The interest in eradicating drunk driving was found to outweigh the
slight intrusion on drivers.
5.04 Drug Interdiction Checkpoints
A highway checkpoint established for the purpose of detecting possession and/or use of
illegal drugs has bee held to violate the Fourth Amendment. City of Indianapolis v.
Edmond, 531 U.S. 32 (2000). As opposed to border and sobriety checkpoints, which are
designed primarily to serve purposes closely related to the problems of policing the
border or the necessity of ensuring roadway safety, the drug interdiction checkpoint was
aimed at detecting evidence of ordinary criminal activity not related to the checkpoint.
Thus, when non-specific crime control is its aim, a checkpoint must be based on
individualized reasonable suspicion of wrongdoing.
5.05 License and Vehicle Registration Inspections
Stopping a vehicle solely for the purpose of checking drivers license and registration,
without a reasonable suspicion that a motorist is unlicensed or the vehicle unregistered, is
unreasonable under the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648 (1979).
However, the Court in Prouse indicated that a procedure to conduct suspicionless license/
registration inspections that was less intrusive or did not involve the unconstrained
exercise of discretion might be permissible.
5.06 Special Needs Searches
[A] In General
The special needs doctrine is another exception to the warrant and probable cause
requirements of the Fourth Amendment. Special needs cases generally arise from
searches by government actors other than police officers, such as school officials, public
employers, and probation officers.
The doctrine applies when the government can demonstrate that:
(1) it is impracticable to obtain a warrant;
(2) the governmental interest outweighs the intrusion;
(3) the immediate objective of the search is one other than to generate evidence
for law enforcement purposes, even if the ultimate goal is non-criminal in nature.
[B] Searches of Personal Property and Premises
[1] Public School Students
While the Supreme Court has recognized that public school students retain a legitimate
expectation of privacy in the private property they bring to school, it has held that neither
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the warrant requirement nor the traditional doctrine of probable cause applies to public
school searches. New Jersey v. T.L.O, 469 U.S. 325 (1985). Public school teachers and
administrators may search students without a warrant if two conditions are met:
(1) there are reasonable grounds to suspect that the search will reveal evidence
that the student has violated or is violating either the law or a school rule; and
(2) the search is not excessively intrusive in light of the students age and sex and
the nature of the suspected violation.
[2] Public Employees
A public employer may search the office, including the desk and file cabinets, of an
employee suspected of employment infractions, without a warrant or probable cause
under the special needs exception. OConnor v. Ortega, 480 U.S. 709 (1987). For a
search to be reasonable, the employer must have reasonable grounds for suspecting that
the search will turn up evidence that the employee is guilty of work-related misconduct,
or that the search is necessary for a non-investigatory work-related purpose.
[3] Probationers
The Court has approved a warrantless, non-exigent search by a probation officer of the
home of a probationer, based on reasonable grounds to believe contraband would be
discovered there, pursuant to a state regulation authorizing such searches. Griffin v.
Wisconsin, 483 U.S. 868 (1987).
[C] Drug and Alcohol Testing
[1] Approved Testing
In limited circumstances, drug and alcohol testing (by taking blood, urine, or breath
samples) of public employees and public school students, in the absence of a search
warrant and in the absence of individualized suspicion, may be constitutional.
The following general factors tend to render a drug/alcohol testing program
constitutionally reasonable:
(1) regardless of the ultimate goal of the testing, the immediate objective of the
testing is not to generate evidence for criminal law enforcement purposes;
(2) in an employment context, persons being tested are working in an already
highly regulated job; in non-employment contexts, persons tested have a reduced
expectation of privacy;
(3) in the employment context, there is a significant relationship between the
employees job responsibilities and the employers concern about drug or alcohol use; in
non-employment contexts, there is a significant societal reason for identifying drug users
or alcohol abusers;
(4) procedures limit the risk of arbitrary application of the testing;
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(5) care is taken to protect the dignity of persons tested in the specimen-collection
process;
(6) a regime based on individualized suspicion would have been impracticable;
(7) there exists empirical evidence of a substantial need for the random testing
program in question.
See Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989); National
Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) (upholding drug and
alcohol testing of public employees) and Vernonia School District 47J v. Acton, 515 U.S.
646 (1995) (authorizing random drug testing of public school students voluntarily
participating in school athletics programs where there was considerable evidence of a
serious drug problem in the school district).
[2] Disapproved Testing
Drug testing programs have been found not to pass the special needs test where:
(1) the testing was not in response to any suspicion of drug use by the target
group, Chandler v. Miller, 520 U.S. 305 (1997) (striking down Georgias requirement
that various candidates for state office pass a drug test where there was no fear or
suspicion of drug use by state officials).
(2) the immediate objective of the drug testing was to generate evidence for law
enforcement purposes, even though the policys ultimate purpose was a beneficent
one, Ferguson v. City of Charleston, 121 S. Ct. 1281 (2001) (invalidating procedures to
identify and non-consensually test any maternity patient suspected of drug use who came
to a public hospital, where the policy was aimed at prosecuting drug-abusing mothers and
forcing them into drug treatment programs).
In cases where the special needs exception does not apply, a valid search warrant is
required in order to conduct the testing.

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Chapter 6
STANDING TO ASSERT FOURTH AMENDMENT CLAIMS
6.01 Nature of Fourth Amendment Rights
Fourth Amendment rights are personal, not derivative. Thus, evidence seized in violation
of one defendants Fourth Amendment rights may be admissible against a co-defendant
unless the co-defendant has independent grounds to assert such claim. Alderman v.
United States, 394 U.S. 165 (1969).
6.02 Legitimate Expectation of Privacy Standard
[A] General Rule
The modern test for determining whether a person has standing to contest a search on
Fourth Amendment grounds is whether the person who claims the protection of the
Amendment has a legitimate expectation of privacy in the invaded place. Rakas v.
Illinois, 439 U.S. 128 (1978) (passenger in a car failed to prove that he had any legitimate
expectation of privacy in the areas searched, namely, in the locked glove compartment
and the area under the front passenger seat, and therefore, could not successfully claim
the protections of the Fourth Amendment). Rakas rejected the notion of target
standing, ruling that one does not possess standing to raise a Fourth Amendment claim
simply because he was the target of the search that resulted in the seizure of evidence
against him.
[B] Examples Involving Residences
An overnight guest may successfully challenge a search of another persons residence.
Minnesota v. Olson, 495 U.S. 91 (1990) (defendant, an overnight guest in his girl friends
home, could challenge the police entry of the premises, notwithstanding the fact that
defendant was never alone in the home, did not have a key, and lacked dominion and
control over the premises).
In contrast, one who is merely present in a residence, without further indicia of a
reasonable expectation of privacy, may not claim the protections of the Fourth
Amendment. In Minnesota v. Carter, 525 U.S. 83 (1998), out-of-town defendants came
to anothers apartment for the sole purpose of packaging the cocaine, had never been to
the apartment before and were only in the apartment for approximately 2 1/2 hours. The
Court focused on three factors in finding that the defendants had no reasonable
expectation of privacy in the apartment searched:
(1) the purely commercial nature of the transaction engaged in there;
(2) the relatively short period of time in the apartment; and
(3) the lack of any previous connections between the two defendants and the
occupant of the apartment.
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[C] Examples Involving Automobiles

[1] Automobile Out of Owners Possession
Courts are split on the issue of whether the owner of an automobile has standing to
challenge a search and seizure when the car is temporarily out of the owners possession
at the time of the police conduct. Most courts hold that when a car owner lends his/her
vehicle to another, at least if for a short duration, the owner maintains a legitimate
expectation of privacy in it and, therefore, can challenge a search of the car that takes
place in the owners absence.
A few courts have held that possession, and not ownership of the car is the key.
Therefore, an absent owner of an automobile lacks standing to contest the search of
his/her vehicle. More often, however, a court may rule that the owner lacks standing if
the owner gives another person complete control of the car and its contents for an
extended period of time, especially if the vehicle will be driven a considerable distance
away from the owner.
[2] Search of Another Persons Automobile
A non-owner occupant of an automobile may have standing to contest a search, under the
test set forth in Rakas [439 U.S. 128]. E.g., where the owner lends the car to the
occupant for a period of time and the occupant has complete dominion and control of the
automobile at the time of the search, the occupant may be found to have had a reasonable
expectation of privacy in the automobile.
Some courts have held that a passenger does not have standing to contest a search and
seizure of a vehicle in which the passenger is traveling.

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Chapter 7
EXCLUSIONARY RULE
7.01 General Rule
Evidence gathered in violation of the Fourth Amendment is not admissible in a criminal
trial against the defendant.
7.02 Exceptions to the Exclusionary Rule
[A] Non-Trial Criminal Proceedings
Illegally seized evidence may constitutionally be introduced in a variety of non-trial
criminal proceedings including: grand jury proceedings, preliminary hearings, bail
proceedings, sentencing, and proceedings to revoke parole.
[B] Impeachment at Trial
A prosecutor may introduce evidence obtained from a defendant in violation of the
defendants Fourth Amendment rights for the limited purpose of impeaching the
defendants: (1) direct testimony; or (2) answers to legitimate questions put to the
defendant during cross-examination. However, such evidence may not be used to
impeach other defense witnesses. James v. Illinois, 493 U.S. 307 (1990).
[C] Good Faith Exception
[1] In General
Evidence obtained by a police officer in reasonable reliance on a search warrant that is
subsequently found invalid may be admissible. United States v. Leon, 468 U.S. 897
(1984). It is necessary that a reasonably well-trained officer would have believed that the
warrant was valid. This has come to be known as the good faith or Leon exception to
the exclusionary rule. Many states, however, have rejected this exception.
[2] Circumstances Suggesting Invalidity of Warrant
Circumstances which should suggest to a police officer that a search warrant is not valid
include:
(1) the magistrate who issued the warrant relied on information supplied by an
affiant who knew that the statements in the document were false or who recklessly
disregarded the truth;
(2) the magistrates behavior was so lacking in neutrality that it would have been
apparent to a reasonable officer, e.g., where the magistrate acts as a rubber stamp for the
police by signing the warrant without reading it, while in the presence of the officer who
later claims reliance;
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(3) the warrant is based on an affidavit lacking sufficient indicia of reliability,

e.g., if a warrant is issued based on a wholly conclusory affidavit;
(4) the warrant is facially deficient in that it fails to particularize the place to be
searched or the things to be seized.
[3] Improperly Executed Warrants
The Leon [468 U.S. 897] good faith rule does not cure improperly executed warrants.
[4] Extension of Good Faith Exception
The good-faith exception has been extended to a non-warrant search based on an error
made by a court employee, rather than by a police officer. Arizona v. Evans, 514 U.S. 1
(1995) (a police officer relied on a clerical error made by a court employee; because of
the error, the patrol car computer showed that there was an outstanding misdemeanor
warrant for defendants arrest; a subsequent warrantless search of the defendants car
incident to the arrest revealed marijuana).
7.03 Fruit of the Poisonous Tree Doctrine
In general, the exclusionary rule extends not only to the direct products of an
unconstitutional search and seizure but also to ancillary evidence that results from the
illegal search. The fruit-of-the-poisonous-tree doctrine is subject to three qualifications:
(1) the independent source doctrine;
(2) the inevitable discovery rule; and
(3) the attenuated connection principle.
[A] Independent Source Doctrine
Evidence that is not causally linked to unconstitutional governmental activity is
admissible pursuant to the independent source doctrine. The doctrine applies if the
challenged evidence is:
(1) first discovered during lawful police activity; or
(2) initially discovered unlawfully, but is later obtained lawfully in a manner
independent of the original discovery. Murray v. United States, 487 U.S. 533 (1988).
[B] Inevitable Discovery Rule
Evidence obtained illegally may be admissible in a criminal trial if the prosecutor proves
by a preponderance of the evidence that the challenged evidence ultimately or inevitably
would have been discovered by lawful means. Nix v. William, 467 U.S. 431 (1984).
[C] Attenuated Connection Principle

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Evidence that otherwise qualifies as fruit-of-the-poisonous-tree may be admissible if its

connection with the illegal police activity is so attenuated that it is purged of the taint.
Nardone v. United States, 308 U.S. 338 (1939); Wong Sun v. United States, 371 U.S. 471
(1963). Factors that may influence whether fruit of the poisonous tree evidence is purged
of its taint include:
[1] Temporal Proximity
The shorter the time lapse between the Fourth Amendment violation and the acquisition
of the challenged evidence, the more likely it is that a court will conclude that the
evidence is tainted. For example, in Wong Sun [371 U.S. 471], the police obtained a
statement from the defendant in his bedroom immediately after his unlawful arrest. The
Court suppressed this evidence, which derive[d] so immediately from the unlawful
entry.
[2] Intervening Events
The more factors that intervene between the Fourth Amendment violation and the seizure
of the challenged evidence, the more likely it is that the evidence will be deemed to have
lost its taint.
[a] Intervening Act of Free Will
An intervening act of free will can remove the taint of an earlier Fourth Amendment
violation. For example, in Wong Sun [371 U.S. 471], upon his release from jail after his
unlawful arrest, the defendant later voluntarily returned to the police station and provided
a written statement. The Court found that the voluntary nature of the defendants conduct
removed from his statement any statement from the initial violation.
However, the Court has warned that Miranda [Miranda v. Arizona, 384 U.S. 436 (1966)]
warnings alone cannot convert a confession following a Fourth Amendment violation
into a product of free will, breaking the link between the statement and the violation.
Brown v. Illinois, 422 U.S. 59 (1975). Therefore, if the police arrest a suspect on less than
probable cause, administer Miranda warnings, obtain a waiver from the suspect, and
thereafter secure a confession, the question of whether the subsequent statement was the
product of the suspects free will must be determined based on the totality of the
circumstances.
[b] Payton violation
Where the police have probable cause to arrest a suspect, the exclusionary rule does not
bar the States use of a statement made by the defendant outside of his home, even when
he was arrested in his home without a warrant in violation of Payton. New York v.
Harris, 495 U.S. 14 (1990).
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[3] Flagrancy of the Violation

Fruit of the poisonous tree evidence is less likely to be free of taint if the Fourth
Amendment violation was flagrant rather than unintentional.
[4] Nature of the Derivative Evidence
Some evidence, by its nature, is more susceptible to dissipation of the taint than other
evidence, e.g., verbal evidence is more likely to be admissible than physical evidence.

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Chapter 8
PRIVILEGE AGAINST SELF-INCRIMINATION
8.01 Text and Interpretation of the Privilege Against Self-Incrimination
The Fifth Amendment to the United States Constitution provides in relevant part that
[n]o person . . . shall be compelled in any criminal case to be a witness against
himself.
[A] Person
The privilege against self-incrimination applies only to natural persons. It may be
invoked by witnesses as well as defendant(s). Corporations, associations, partnerships,
and other entities cannot avail themselves of the privilege (the collective entity
doctrine), but a sole proprietor may.
[B] Compelled
The Fifth Amendment is violated when the government compels a person, by physical or
mental force, to provide incriminating oral or documentary testimonial evidence, e.g.,
forced confessions. [See Chapter 10, Confessions.]
[C] Criminal Case
One may invoke the privilege against self-incrimination in any civil or criminal
proceeding, whether formal or informal e.g., grand jury proceedings, trials,
administrative hearings, police interrogations where statements could be used to
incriminate him in a subsequent criminal proceeding. Lefkowitz v. Turley, 414 U.S. 70
(1973). The privilege is available only where the possible consequence of the
incriminating statement is criminal prosecution; it may not be invoked to shield against
personal disgrace, loss of employment, or civil confinement.
[D] Witness Against Himself
[1] Testimonial Evidence
A person is deemed a witness against himself when he provides incriminating
testimonial or communicative evidence. Evidence is of a testimonial or communicative
nature if it expresses, either directly or indirectly, a factual assertion or ones thoughts
about the commission of a crime. Doe v. United States, 487 U.S. 201 (1988). The
communication can be verbal, such as an oral confession, or non-verbal, such as nodding
or shaking ones head or making other gestures that communicate thoughts or facts.
Under some circumstances, an incorrect answer to an otherwise non-incriminating
statement may also be deemed testimonial. In Pennsylvania v. Muniz, 496 U.S. 582
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(1990), a drunk driving case, the Court held that an incorrect answer regarding the date of
the suspects sixth birthday was testimonial as it supported the factual inference that the
defendants mental faculties were impaired. (The Court distinguished the incorrect
answer, which reflected his mental processes, from the slurred nature of his words in
general, which were deemed to be physical evidence.)
The privilege generally applies to documentary evidence as well if the documents
incriminate the person compelled to produce them. However, as the privilege against
self-incrimination is personal, it may not be asserted by a third-party (e.g., a suspects
accountant) who is compelled to produce documents that incriminate another.
[2] Physical Evidence
The Fifth Amendment does not preclude the government from compelling a person to
provide real or physical evidence. Schmerber v. California, 384 U.S. 757 (1966)
(upholding compulsory taking of a blood sample in order to test for alcohol after the
defendant was arrested for driving under the influence).
Speech does not always constitute testimonial evidence and may be deemed physical
evidence, for example:
a suspect in a lineup compelled to speak the words allegedly spoken by the
perpetrator of the crime under investigation for the purpose of voice recognition.
a compelled writing sample used to analyze the handwriting itself, not the content.
slurred speech, suggestive of intoxication.
Other conduct producing evidence that is deemed physical rather than communicative,
and therefore, to which the privilege does not apply, includes:
putting on clothing to see if it fits.
standing in a lineup.
moving ones eyes or walking on a straight line as part of a sobriety test.
giving blood after being arrested for driving under the influence of alcohol.
8.02 Immunity
If a judge determines that a witness has legitimately asserted the privilege against selfincrimination regarding a given matter, the prosecution cannot compel the witness to
testify as to that matter unless the government obtains an immunity order. An immunity
order requires the witness to testify while providing him with at least as much protection
as the privilege itself.
Two forms of immunity may be granted to a witness. Transactional immunity
protects a witness from prosecution for any offense that is the subject of the questioning.
Use immunity permits prosecution of the witness regarding the matter on which he is
questioned but precludes admission of the compelled testimony at his criminal trial.
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 8.03 Exceptions to the Privilege Against Self-Incrimination

The privilege against self-incrimination applies to situations where the statements could
be used in a criminal proceeding. Thus, testimonial evidence, even if incriminating may
be compelled in a variety of non-criminal contexts.
[A] Required-Records Doctrine
Under the required-records doctrine, a party may be compelled to produce documents
that it is required by law to maintain. The doctrine applies where the statutory recordkeeping requirement is:
(1) imposed in an essentially non-criminal and regulatory area;
(2) directed at the public at large, not at a select group inherently suspect of
criminal activities; and
(3) rationally related to the regulatory purpose.
See, e.g., Shapiro v. United States, 335 U.S. 1 (1948) (upholding the constitutionality of
federal regulations issued under the Emergency Price Control Act, which required certain
licensed businesses to maintain records of their business activities and to make them
available for inspection by the government upon request); California v. Byers, 402 U.S.
424 (1971) (upholding a state hit-and-run statute that required drivers involved in a
vehicular accident to stop at the scene and report name and address).
[B] Object of Regulatory Interest
The ability to invoke the privilege against self-incrimination is limited when a person
assumes control over items or persons that are the legitimate object of the governments
non-criminal regulatory authority. In Baltimore City Department of Social Services v.
Bouknight, 493 U.S. 549 (1990), the Supreme Court ruled that a mother who had
previously lost custody of her child because of suspected child abuse, but was permitted
temporary custody of the child subject to various court conditions, could not assert the
privilege against self-incrimination to resist compliance with a subsequent court order
that she produce the child or otherwise reveal his whereabouts. Because the childs care
and safety had become an object of the states regulatory concern, the mother, upon
accepting temporary custody of the child, became subject to the routine operation of the
regulatory system and thus was required to comply with its requirements.

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Chapter 9
CUSTODIAL INTERROGATION
9.01 Miranda v. Arizona
The landmark case of Miranda v. Arizona, 384 U.S. 436 (1966), resulted from the
consolidation of four cases on appeal. In each case, the suspect was taken into custody,
questioned in a police interrogation room in which the suspect was alone with the
interrogators, and never informed of his privilege against self-incrimination.
Miranda held that any statement, whether exculpatory or inculpatory, obtained as the
result of custodial interrogation could not be used against the suspect in a criminal trial
unless the police provided procedural safeguards effective to secure the suspects
privilege against compulsory self-incrimination. Custodial interrogation is defined in
Miranda 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.
9.02 Custody
A person is deemed to be in custody if he is deprived of his freedom of action in any
significant way. Custody requires the existence of coercive conditions that would
cause a reasonable person to believe, under all the circumstances surrounding the
interrogation, that he is not free to go.
Not all coercive environments equate to custody. For example, a police interrogation
room may be deemed a coercive environment but the totality of the circumstances may
indicate that a person is not in custody e.g., he came to the police station voluntarily,
was informed prior to questioning that he was not under arrest, and he was free to leave
the police station at any time. See Oregon v. Mathiason, 429 U.S. 492 (1971); California
v. Beheler, 463 U.S. 1121 (1983).
Brief detention by the police likewise does not necessarily put one in custody, for
example, brief questioning during a routine traffic stop or roadblock. Berkemer v.
McCarty, 468 U.S. 420 (1984).
9.03 Interrogation
For purposes of Miranda [384 U.S. 436], interrogation refers to express questioning or
its functional equivalent, i.e., 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. Rhode Island v.
Innis, 446 U.S. 291 (1980). For example, if the police know the person in custody may
be susceptible to certain forms of persuasion, any statements or actions designed to play
upon such susceptibilities may be deemed the functional equivalent of interrogation.
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In Innis, a murder suspect was being transported to the police station when the police
commented that they hoped that the murder weapon, which had not yet been located,
would not be found by any children from a nearby school for the handicapped. In
response, the suspect, who had previously requested a lawyer, revealed the location of the
gun. The Court held that the comments were not the functional equivalent of
interrogation because it found:
(1) the comments were brief;
(2) the comments were not particularly evocative;
(3) the suspect was not disoriented or upset when the comments were made;
(4) there was no evidence that the police should have known that the suspect
would be susceptible to an appeal to his conscience.
9.04 Procedural Safeguards: The Miranda Warnings
[A] Content of Miranda Warnings
The Court in Miranda [384 U.S. 436] noted that Congress and the states are free to
develop procedural safeguards for protecting a suspects Fifth Amendment rights during
custodial interrogation. However, unless they are fully as effective as those described
in Miranda, the police must apprise the suspect issue, prior to custodial interrogation,
that:
(1) the suspect has a right to remain silent;
(2) anything said can and will be used against the suspect in court;
(3) the suspect has the right to consult with a lawyer and to have his lawyer
present during interrogation;
(4) if the suspect is indigent a lawyer will be appointed to represent him.
[B] Right to Remain Silent
Miranda [384 U.S. 436] states that, once warnings are given, if the suspect indicates that
he wishes to remain silent, the interrogation must cease. The police must honor a
suspects right to silence after he asserts the privilege but are not necessarily precluded
from attempting to interrogate the suspect under different circumstances. See Michigan
v. Mosley, 423 U.S. 96 (1975) (holding that the police did not violate the defendants
Fifth Amendment rights when the interrogation ceased immediately upon request; two
hours elapsed; the subsequent questioning was by a different officer, in a different
location, for a different crime; and Miranda warnings were restated).
[C] Right to Counsel During Interrogations
[1] Fifth Amendment Right
When a suspect in custody invokes his right under Miranda [384 U.S. 436] to consult
with an attorney, the police must cease the interrogation until the suspects attorney is
present unless the suspect initiates further communication, exchanges, or conversations
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with the police. Edwards v. Arizona, 451 U.S. 477 (1981). This rule is intended to
prevent police from badgering a defendant into waiving his previously asserted Miranda
rights and applies to all interrogation, including questioning about crimes other than the
one for which the suspect is in custody. However, the Edwards rule does not apply
unless a suspect unambiguously asserts his right to counsel. Davis v. United States, 512
U.S. 452 (1994).
Furthermore, once a suspect in custody invokes his Miranda [384 U.S. 436] right to
counsel, the police may not re-initiate interrogation at any time thereafter unless counsel
is present. Minnick v. Mississippi, 498 U.S. 146 (1990).
Where the suspect initiates communications with the police in the absence of counsel, the
police may recommence interrogation upon obtaining a valid waiver of his Fifth
Amendment rights. A suspect initiates communications, exchanges or conversations by
any comment or inquiry that indicates his desire to engage in a discussion relating
directly or indirectly to the investigation. Comments or inquiries relating to routine
incidents of the custodial relationship, such as a request for water or to use a telephone,
do not qualify as communications, exchanges, or conversations and thus do not
properly trigger further police interrogation. Oregon v. Bradshaw, 462 U.S. 1039 (1983).
[2] Sixth Amendment Right
The right to counsel guaranteed as a result of Miranda v. Arizona [384 U.S. 436] falls
within the protections of the Fifth Amendment and is available to a suspect upon being
taken into custody. This right differs in various respects from the right to counsel in the
Sixth Amendment, which, with the exception of the ruling in Escobedo v. Illinois, 378
U.S. 478 (1964) (a pre-Miranda decision), has been held to attach only upon
commencement of criminal proceedings, e.g., upon filing of an indictment. [See Chapter
11, Sixth Amendment Right to Counsel: Interrogation.]
9.05 Waiver of Miranda Rights
[A] Elements of Valid Waiver
Miranda [384 U.S. 436] states that a valid waiver of Fifth Amendment rights during
interrogation could be found when, after the reading of Miranda rights, a suspect
expressly states a willingness to make a statement, without the presence of an attorney,
followed closely by such statement. The validity of the waiver must be based on an
assessment of the particular facts and circumstances surrounding that case, including
the background, experience, and conduct of the accused. Edwards v. Arizona, 451 U.S.
at 482 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
[B] Voluntary, Knowing, and Intelligent Waiver

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In order to be valid, a waiver must have been given voluntarily, knowingly, and
intelligently. Colorado v. Connelly, 479 U.S. 157 (1986). A voluntary waiver is the
product of a free and deliberate choice rather than intimidation, coercion, or deception.
A knowing and intelligent waiver is made with full awareness of both the nature of the
right being abandoned and the consequences of the decision to abandon it. Moran v.
Burbine, 475 U.S. 412 (1986). A waiver cannot be deemed knowing and intelligent
unless the police issued proper Miranda [384 U.S. 436] warnings.
[C] Express and Implied Waiver
A valid waiver may not be presumed simply from the suspects silence following reading
of the Miranda [384 U.S. 436] warnings or from the fact that he confesses. Nevertheless,
an express statement of waiver is not invariably necessary. North Carolina v. Butler, 441
U.S. 369 (1979). In some cases, waiver may be clearly inferred from the suspects words
and actions that follow Miranda warnings, although the Supreme Court has given little
guidance on when such circumstances exist.
9.06 Inapplicability of Miranda
[A] Interrogation by Undercover Police
Miranda [384 U.S. 436] warnings are not required if the suspect being questioned is
unaware that the interrogator is a police officer. Illinois v. Perkins, 496 U.S. 292 (1990)
(an undercover police agent, posing as a criminal, was positioned in the defendants
cellblock and engaged the defendant in a conversation designed to elicit details of the
crime for which he was suspected; the Court held that such statements, although the
result of interrogation while in custody, and in the absence of Miranda warnings, were
admissible).
[B] Physical Evidence
Since the privilege against compulsory self-incrimination applies only to testimonial or
communicative evidence, Miranda [384 U.S. 436] warnings are not required in order for
the police to compel the production of physical or real evidence, such as a blood, breath,
or handwriting sample. [See Chapter 8, Privilege Against Self-Incrimination.]
[C] Exigent Circumstances
A public safety exception to Miranda [384 U.S. 436] allows the police to interrogate a
suspect prior to Miranda warnings if an exigency exists that requires immediate police
action to ensure public safety, e.g., to locate a loaded weapon in a public place. The
questions asked prior to issuance of the warnings must be directed at the exigent
circumstances only. New York v. Quarles, 467 U.S. 649 (1984) (observing that the
defendant, who had just attacked a woman and then fled into a grocery store, had an
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empty shoulder holster, an officer validly asked the defendant, without issuing Miranda
warnings, where the gun was).
[D] Routine Booking Questions
Miranda [384 U.S. 436] warnings need not be issued prior to asking a suspect in custody
routine booking questions, such as name, address, date of birth, and other biographical
data necessary to complete the booking process. Pennsylvania v. Muniz, 496 U.S. 582
(1990).
9.07 Exclusionary Rule Under Miranda
[A] Impeachment Exception
A statement obtained in violation of Miranda [384 U.S. 436] may be used to impeach a
defendant at trial. Harris v. New York, 401 U.S. 222 (1971).
[B] Fruit-of-the-Poisonous-Tree Doctrine
The Supreme Court has interpreted Miranda [384 U.S. 436] to not support the fruit-ofthe-poisonous-tree doctrine. Michigan v. Tucker, 417 U.S. 433 (1974) (the government
may call a witness to testify at trial, even if that witnesss identity became known as a
result of a statement by defendant secured in violation of Miranda); Oregon v. Elstad,
470 U.S. 298 (1985) (the government may introduce a defendants own voluntary, postMiranda, admissions, even if they were obtained as a result of an earlier Miranda
violation).
However, Tucker [417 U.S. 433] and Elstad [470 U.S. 298] were based on the premise
that Miranda [384 U.S. 436] was a prophylactic but not a constitutional rule.
Subsequently, the Court in Dickerson v. United States, 530 U.S. 428 (2000), departed
from the reasoning in Tucker and stated that Miranda was in fact a constitutional
decision. Nevertheless, the Court has not thus far reversed its position on the
inapplicability of the fruit-of-the-poisonous-tree doctrine to statements obtained in
violation of Miranda.

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Chapter 10
CONFESSIONS
10.01 Voluntary Confessions
A confession that is freely and voluntarily made, following proper Miranda [384 U.S.
436] warnings, is admissible against the defendant at a criminal trial. The voluntariness
of a confession is to be assessed from the totality of all the circumstances, taking into
account both the characteristics of the accused and the details of the interrogation.
10.02 Involuntary Confessions
A confession that results from police coercion violates the Fifth Amendment privilege
against compulsory self-incrimination. The following factors may negate the
voluntariness of a confession.
[A] Actual or Threatened Physical Force
A confession obtained by threatened or actual use of violence is inadmissible.
Confessions have also been invalidated when the police have warned a suspect that,
unless he confesses, he may be the victim of mob violence or deadly attacks from fellow
prisoners.
[B] Deprivation
Confessions have been suppressed in cases in which the police deprived a suspect of
food, water, or sleep, for an extended period of time.
[C] Psychological Pressures
Among the relevant factors that determine whether undue psychological pressure was
imposed on a suspect are:
length of custodial detention.
whether the interrogation was prolonged.
whether the questioning occurred in the daytime or at night.
whether the interrogation is conducted incommunicado.
the personal characteristics of the suspect (e.g., age, intelligence, level of
education, psychological makeup, and prior experience with the police).
[D] Promises of Leniency
A confession is not necessarily a product of coercion where the police expressly or
implicitly promise leniency in exchange for the suspects cooperation. Arizona v.
Fulminante, 499 U.S. 279 (1991) (repudiating Bram v. United States, 168 U.S. 532
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(1897), which held that a confession was involuntary if it was obtained by any promise
for leniency, however slight).
Lower courts have determined that some types of promises of leniency will render a
confession involuntary, such as assurances that some of the charges will be dropped or
that the defendant will receive a reduction in punishment. However, standing alone,
courts rarely invalidate a confession based on a mere promise by the police to bring the
defendants cooperation to the prosecutors attention, or promise that a prosecutor will
discuss leniency in exchange for a confession, without in fact making any assurances as
to results.
[E] Threat of Harsh Legal Treatment
A confession procured by a threat of especially harsh treatment directed at the suspect
himself or another may be invalid. E.g., Rogers v. Richmond, 365 U.S. 534 (1961)
(suppressing a confession as involuntary because it was secured in response to a wrongful
police threat to take the suspects wife into custody).
Some lower courts have ruled that a confession is involuntary if the police threaten to
inform the prosecutor of a suspects refusal to cooperate, since this is a threat to penalize
the suspect for asserting his privilege against compulsory self-incrimination.
[F] Deception
Deception about the strength of the case against the suspect e.g., if the police falsely
inform a suspect that an accomplice has already confessed without more, generally will
not invalidate a confession, although it may be a factor weighed in an assessment of the
voluntariness of the confession.
10.03 Exclusionary Rule
[A] Impeachment
A coerced confession is inadmissible at the defendants criminal trial for all purposes,
including impeachment.
[B] Fruit-of-the-Poisonous-Tree Doctrine
The Supreme Court has not expressly addressed whether the fruit-of-the-poisonous-tree
doctrine applies to coerced confessions, but it is generally assumed that the doctrine does
apply in such circumstances.

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Chapter 11
SIXTH AMENDMENT RIGHT TO COUNSEL: INTERROGATION
11.01 Text of Sixth Amendment
The Sixth Amendment reads in relevant part: In all criminal prosecutions, the accused
shall . . . have the Assistance of counsel for his defence.
11.02 When the Right Attaches
The Sixth Amendment right to counsel exists for criminal prosecutions. Thus, the right
attaches only upon commencement of adversary judicial proceedings, such as
preliminary hearing, indictment, information, or arraignment. Brewer v. Williams, 430
U.S. 387 (1977).
11.03 Deliberate Elicitation
The Sixth Amendment has been interpreted to prohibit the government from deliberately
eliciting incriminating information from an accused, in the absence of defense counsel,
once adversary judicial criminal proceedings have commenced. Massiah v. United States,
377 U.S. 201 (1964).
An investigatory technique constitutes elicitation if it is the equivalent of direct police
interrogation. Kuhlmann v. Wilson, 477 U.S. 436 (1986). Deliberate elicitation occurs
when the government through its overt or covert police agent:
(1) acts with the purpose of eliciting incriminating information from the accused
regarding the pending charges, without regard to the likelihood that the elicitation will be
successful; or
(2) creates an opportunity for the accused to make incriminating statements about
the pending charges.
[A] Police Acts With Purpose
Examples of purposeful police conduct that may elicit incriminating statements from the
accused include:
an officer formally interrogates the accused.
an undercover agent engages the accused in a conversation about the criminal
activity.
an officer makes statements that are designed to play on the conscience of the
accused in order to induce incriminating remarks.
[B] Police Create an Opportunity for Incriminating Statements
Deliberate elicitation may be found where the government creates a situation likely to
induce the defendant to make incriminating statements. For example, in United States v.
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Henry, 47 U.S. 264 (1980), the FBI placed an informant who was to be paid on a
contingent basis in the defendants jail cell after he had been indicted. The FBI advised
the informant to be alert to any statement the defendant made, but not to initiate any
conversations with the defendant or ask him questions. Nevertheless, the informant
engaged the defendant in conversation, during which he made incriminating statements
that the government sought to introduce at his trial. Focusing on several factors,
including that the paid informant had an incentive to elicit information from the
defendant, the Court found that the government had created an opportunity for the
accused to incriminate himself, in the absence of counsel, thereby violating his Sixth
Amendment right.
The government may be found to have unlawfully created an opportunity for the accused
to incriminate himself in violation of the Sixth Amendment even if the encounter with
an informant or undercover agent is initiated by the accused himself. In Maine v.
Moulton, 474 U.S. 159 (1985), subsequent to the defendants indictment, the police
installed a recording device on an informants telephone. The defendant, unaware of
such action, telephoned the informant three times, during which he discussed the criminal
charges against them. The Supreme Court again held that the defendants Sixth
Amendment right to counsel was violated by the governments creation of an opportunity
for defendant to incriminate himself, irregardless of the fact that the defendant initiated
the conversations.
However, if a government agent does no more than listen, without proactively inducing
the accused to make incriminating statements such as by placing an undercover agent or
informant in an accuseds jail cell and merely reporting the accuseds unsolicited
incriminating statements such action does not constitute deliberate elicitation.
11.04 Offense-Specific Nature of the Right
The Sixth Amendment is offense-specific, i.e., the interrogation that is the subject of the
Sixth Amendment inquiry must relate to the crime for which criminal proceedings have
commenced. McNeil v. Wisconsin, 501 U.S. 171 (1991). The Sixth Amendment right to
counsel does not attach to other crimes for which the accused may be under investigation
but which are unrelated to the pending prosecution.
For purposes of determining whether the Sixth Amendment covers a given crime, Texas
v. Cobb, 532 U.S. 162 (2001), clarified that:
(1) the Sixth Amendment does not necessarily extend to offenses that are
factually related to those for which the accused has been formally charged;
(2) the term offense is not necessarily limited to the four corners of a charging
instrument;
(3) where the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two offenses or
only one, is whether each provision requires proof of a fact which the other does not.
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Blockburger v. United States, 284 U.S. 299 (1932) (the test applied for double jeopardy
purposes, extended to the Sixth Amendment context by Cobb).
11.05 Waiver of the Right to Counsel
[A] When the Accused Requests Counsel
Once the Sixth Amendment right to counsel attaches, and the accused requests counsel,
the government may not initiate conversation with the accused relating to the crime at
hand in the absence of counsel, even if the accused waives the right in response to the
police elicitation. However, if the accused initiates conversation with the police, and
waives his right to counsel, interrogation in the absence of counsel may proceed.
Michigan v. Jackson, 475 U.S. 625 (1986) (defendant was appointed counsel whom he
had not yet met when the police contacted the defendant, read him his Miranda [384 U.S.
436] rights, obtained a waiver, and questioned him, even though the defendant had asked
for his lawyer several times; the Court held that the waiver was invalid because the police
initiated the conversation after the defendant had requested counsel).
[B] When the Accused Does Not Request Counsel
[1] Before Counsel is Appointed or Hired
In the absence of a request for counsel after the right attaches, the police are permitted
to seek from the accused a waiver of his right to counsel. Patterson v. Illinois, 487 U.S.
285 (1988) (upholding the admissibility of the post-indictment statements made after
issuance of Miranda [384 U.S. 436] warnings and procurement of a waiver of the right to
counsel, where at the time of the post-indictment questioning, the defendant had not yet
retained, or accepted by appointment, a lawyer to represent him).
[2] After Counsel is Appointed or Hired
The Supreme Court has not directly addressed the issue of whether a waiver is valid
where counsel has been appointed but the accused has not actually requested to meet with
his lawyer. However, in a footnote in Patterson [487 U.S. 285], the Court hinted that
once counsel has been appointed or hired, the police may not seek a waiver of the right to
counsel from the defendant until he has had the opportunity to meet with counsel (stating
that it was a matter of some significance that the defendant, whose waiver of right to
counsel was found valid, had not yet retained or been appointed counsel). A footnote in
Cobb [532 U.S. 162], however, calls this position into question (stating there is no
background principle of our Sixth Amendment jurisprudence establishing that there
may be no contact between a defendant and police without counsel present), suggesting
that a waiver may be valid if the accused does not request assistance of counsel even if
counsel has been appointed.
[C] Sufficiency of Waiver
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As with waiver of the right to counsel during custodial interrogation, a waiver of the right
to counsel prior to post-indictment interrogation must be voluntary and made knowingly
and intelligently. [See Chapter 9, Custodial Interrogation.]
11.06 Scope of the Sixth Amendment Exclusionary Rule
[A] Impeachment
The Court has addressed whether a statement secured in violation of the Sixth
Amendment may be used for impeachment purposes in only a limited context. If the
police initiate conversation with an accused who has requested counsel, in violation of
the rule in Michigan v. Jackson, incriminating statements may be used for impeachment
if the accused subsequently waived the right, despite the fact that the improper police
conduct precludes admission of the statements as part of the prosecutions direct case.
Michigan v. Harvey, 494 U.S. 344 (1990).
[B] Fruit-of-the-Poisonous-Tree Doctrine
The fruit-of-the-poisonous-tree doctrine applies to violations of the Sixth Amendment
right to counsel. See Nix v. Williams, 467 U.S. 431 (1984). [See Chapter 7, Exclusionary
Rule.]
11.07 Comparison of Right to Counsel During Interrogations Under Sixth
Amendment and Miranda
The right to counsel under the Sixth Amendment and the Fifth Amendment Miranda [384
U.S. 436] decision differ in the following ways:
(1) Timing The Sixth Amendment right applies only after adversary judicial
criminal proceedings have been initiated against the accused; the Fifth Amendment right
attaches once the defendant is taken into custody.
(2) Custody The Fifth Amendment right does not attach unless the suspect is in
custody; the Sixth Amendment is not so limited, e.g., it applies when the accused has
been released from custody on bail or on his own recognizance.
(3) Nature of offense The Sixth Amendment right is offense-specific; the Fifth
Amendment right to counsel applies to any and all offenses, once custodial interrogation
commences.
(4) Focus of inquiry The Fifth Amendment right to counsel applies when the
custodial suspect is interrogated, and focuses on the perceptions of the suspect
(whether he believes he is in custody); the Sixth Amendment prohibits deliberate
elicitation, and focuses on the intentions of the police.
(5) Questioning by undercover agent or informant The Fifth Amendment
right to counsel is not invoked when the suspect is questioned by an informant or
undercover officer; the Sixth Amendment applies to deliberate elicitation by overt and
covert government agents.
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(6) Fruit-of-the-poisonous-tree doctrine The doctrine applies to Sixth

Amendment violations; the doctrine does not apply to violations of the Fifth Amendment
right to counsel.
(7) Impeachment Statements secured in violation of the Fifth Amendment right
may be used for impeachment purposes; statements secured in violation of the Sixth
Amendment Jackson [475 U.S. 625] rule may be used for impeachment.

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Chapter 12
EYEWITNESS IDENTIFICATION
12.01 Right to Counsel at Line-ups
An accused has a Sixth Amendment right to have counsel present at any corporeal
identification procedure conducted after the commencement of an adversary judicial
criminal proceeding against him. This rule is known as the Wade-Kirby doctrine. United
States v. Wade, 388 U.S. 218 (1967) (recognizing that a person is entitled to the
assistance of counsel at all critical stages of a criminal proceeding, and determining that
the pretrial exhibition of a suspect to a witness for identification purposes is a critical
stage of the prosecution); Kirby v. Illinois, 406 U.S. 682 (1972) (the right to counsel does
not apply to pre-indictment eyewitness identification).
If counsel is not present at the post-indictment lineup, and the accused has not waived
counsel, results of the out-of-court identification are inadmissible. In such cases, the
prosecution is furthermore precluded from obtaining an in-court identification of the
accused by the same witness, unless it proves by clear and convincing evidence that the
in-court identification does not constitute fruit-of-the-poisonous-tree evidence. Among
the factors that may be considered are:
the prior opportunity of the witness to observe the alleged criminal act.
the existence of any discrepancy between any pre-lineup description and the
defendants actual appearance.
any identification prior to lineup of another person.
the identification by picture of the defendant prior to the lineup.
failure to identify the defendant on a prior occasion.
the lapse of time between the crime and the lineup identification.
Distinguished from in-person line-ups are mug shots. The Sixth Amendment does not
apply where the police present photographs, including a photograph of the accused, to an
eyewitness for possible identification of the perpetrator. Such a display, although it
occurs after indictment, is not a critical stage of the prosecution. United States v. Ash,
413 U.S. 300 (1973).
12.02 Reliability of Identification Procedures
Evidence of a pretrial identification of the accused must be excluded from trial if, based
on the totality of the circumstances, the procedure used to obtain the identification was
(1) unnecessarily suggestive; and (2) conducive to mistaken identification. Stovall v.
Denno, 388 U.S. 293 (1967). This rule applies regardless of whether the identification
was corporeal or non-corporeal, occurred before or after formal charges were initiated,
and whether or not counsel was present.
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Where pretrial eyewitness identification is deemed unnecessarily suggestive and

unreliable, the witness is precluded from making an in-court identification of the
accused unless the prosecution proves that the out-of-court identification procedure did
not create a very substantial likelihood of irreparable misidentification. Simmons v.
United States, 390 U.S. 377 (1968).
[1] Unnecessarily Suggestive
In some cases, the identification procedure may in fact be suggestive e.g., showing a
single suspect to an eyewitness, or presenting the suspect in handcuffs but under the
circumstances, the identification procedure is deemed necessary. In Stovall, the Court
found suggestive the police action of bringing to the hospital a single AfricanAmerican suspect, who was handcuffed to an officer, for identification by a stabbing
victim. Nevertheless, the Court concluded that the procedure was necessarily suggestive,
as the police were unsure if the victim would survive long enough to view a later line-up.
[B] Conducive to Mistaken Identification
Even if an identification procedure is unnecessarily suggestive, the identification
procedure must also have been unreliable in order to exclude the evidence. Manson v.
Brathwaite, 432 U.S. 98, 114 (1977). The relevant factors in determining reliability
include:
the opportunity of the witness to view the perpetrator at the time of the crime.
the witness degree of attention.
the accuracy of the witness prior description of the perpetrator.
the level of certainty demonstrated by the witness at the confrontation.
the length of time between the crime and the confrontation.

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Chapter 13
ENTRAPMENT
13.01 Nature of Entrapment
Entrapment is not a constitutional doctrine. It is a criminal law defense to police
overreaching, recognized in all states and the federal courts. In general, entrapment
occurs when the defendant:
(1) was induced to commit the crime by a government agent (typically an
undercover police officer); and
(2) would not have otherwise committed such crime.
Proof of entrapment varies according to whether the jurisdiction in which a case is
pending applies the subjective test (majority approach) or the objective test (minority
approach advocated by the Model Penal Code).
13.02 Subjective Test
The subjective test focuses on the defendants predisposition, if any, to commit the
crime solicited by the government agent. Sorrells v. United States, 287 U.S. 435 (1932).
A defendant need not be completely law-abiding in order to assert a defense of
entrapment; a history of or predisposition to engage in unlawful activity unrelated to the
crime at issue does not preclude the defense.
Entrapment requires more than that the government agent provided an opportunity to the
defendant to commit the crime, and generally involves repeated and persistent
solicitation. See, e.g., Jacobson v. United States, 503 U.S. 540 (1992) (defendant who
had purchased magazines that contained nude photographs of under-age males not
depicting any sexual activity prior to the enactment of a federal law prohibiting the
receipt of such materials, and who subsequently succumbed to more than two years of
government solicitation to purchase child pornography, was not deemed to be
predisposed to commit such crime).
Predisposition may be proved by demonstrating the defendants ready complaisance to
commit the crime, with evidence of, for example:
the defendants non-hesitancy to commit the crime.
the defendants ready knowledge of how to commit the crime.
the defendants comments prior to the commission of the crime that demonstrate
his propensity to commit the crime.
Predisposition may also be proved by reference to the defendants character in the
community prior to the time the government approached him, e.g., evidence (which is
otherwise generally inadmissible) of the defendants bad reputation in the community
and/or his prior criminal record, including arrests and convictions for related offenses.
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In jurisdictions applying the subjective test, the issue of whether the defendant was
entrapped is deemed a question of fact and is generally submitted to the jury.
13.03 Objective Test
The objective standard focuses on police conduct rather than the predisposition of the
defendant. Under the objective test, the court considers the likely impact of the police
solicitation on a hypothetical innocent person, not the actual defendant. The
hypothetical person standard may take into account some of the characteristics of the
actual defendant.
Model Penal Code 2.13(2) provides that the entrapment defense should be submitted to
a judge rather than to the jury.

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Chapter 14
RIGHT TO COUNSEL: PRETRIAL, TRIAL AND POST-CONVICTION
PROCEEDINGS
14.01 Pretrial Proceedings
Under the Sixth Amendment, a defendants right to counsel attaches upon the
commencement of an adversarial criminal proceeding and may be invoked at any critical
stage. Thus, prior to trial, a defendant is entitled to the assistance of counsel at:
(1) post-indictment line-ups [See Chapter 12, Eyewitness Identification.]
(2) post-indictment interrogation [See Chapter 11, Sixth Amendment Right to
Counsel: Interrogation.]
(3) psychiatric examinations of the defendant to determine competency [See
Chapter 18, Pretrial and Trial Issues.]
(4) arraignments [See Chapter 15, Charging the Defendant.]
(5) preliminary hearings [See Chapter 15, Charging the Defendant.]
(6) bail and detention hearings [See Chapter 16, Pretrial Release or Detention.]
(7) plea hearings [See Chapter 17, Plea Bargaining and Guilty Pleas.]
If a defendant is denied his right to counsel at a pretrial proceeding, any trial conviction
is not necessarily subject to reversal if the prosecution demonstrates beyond a reasonable
doubt that the Sixth Amendment violation constitutes harmless error, i.e., if the same
verdict would have been rendered regardless of such constitutional violation. Chapman v.
California, 386 U.S 18 (1967).
14.02 Trial Proceedings
[A] Appointment of Counsel to Indigents
The state must appoint counsel to an indigent who is charged with a felony. Gideon v.
Wainwright, 372 U.S. 335 (1963). While this requirement does not extend to
misdemeanor cases under the Sixth Amendment, no person may be imprisoned for any
offense, whether classified as petty, misdemeanor, or felony, unless he was represented
by counsel at his trial, absent a knowing and intelligent waiver of the right to counsel.
Argersinger v. Hamlin, 407 U.S. 25 (1972). Thus, a defendant charged with a
misdemeanor which carries an optional jail sentence is not guaranteed assistance of
counsel at state expense; however, if counsel is not provided, the judge is precluded from
sentencing any term of imprisonment upon a finding of guilt. Nor may the court impose
a suspended prison sentence under such circumstances. Alabama v. Shelton, 535 U.S. 654
(2002).
Denial of the Sixth Amendment right to counsel at trial results in automatic reversal of
any conviction. Gideon v. Wainwright [372 U.S. 335].
[B] Right of Self-Representation
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[1] Waiver of Counsel

Implicit in the Sixth Amendment is the right of a defendant to voluntarily and knowingly
waive his right to the assistance of counsel and to represent himself at trial, provided the
court deems him mentally competent to do so. Faretta v. California, 422 U.S. 806
(1975). The court must inform the defendant seeking to waive counsel of the dangers
and disadvantages of self-representation, so that the record will establish that he knows
what he is doing and his choice is made with eyes open.
[2] Standby Counsel
The right to self-representation is not violated by the appointment of standby counsel,
even if the defendant objects. The role of standby counsel is to assist the defendant if and
when he seeks help and to assume control of the defense if the defendant can no longer
represent himself.
Mere occasional unsolicited assistance by the standby counsel does not violate the Sixth
Amendment as long as the defendant retains control over his defense. The right of selfrepresentation is not violated unless standby counsel:
substantially interferes with the defendants significant tactical decisions.
assumes control of the examination of witnesses.
speaks for the defendant on material issues against his wishes.
otherwise destroys the jurys perception that the defendant is representing
himself.
McKaskle v. Wiggins, 465 U.S. 168 (1984) (upholding a conviction in which standby
counsel provided unsolicited, and at times even unwanted, assistance).
[3] Inadequate Self-Representation
A defendant who chooses self-representation cannot thereafter assert a claim of
ineffective assistance of counsel.
[4] Wrongful Denial of the Right of Self-Representation
If a court wrongfully denies a defendant the right to represent himself at trial, or if the
right is violated by standby counsel, any subsequent conviction must be reversed.
[C] Ineffective Assistance of Counsel
[1] Requirement for Effective Representation
Implicit in the right to counsel is that such counsel, whether retained or court-appointed,
must render effective representation. According to standards issued by the American Bar
Association, effective representation requires defense counsel to:
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(1) exercise professional judgment, within the bounds of the law, solely for the
benefit of the defendant and free of any conflicts of interest.
(2) interview the defendant early in their relationship.
(3) keep the defendant informed of important developments in the case.
(4) consult with the defendant on important decisions.
(5) promptly and comprehensively investigate the circumstances of the case.
(6) apply legal skill and knowledge to render the trial a reliable adversarial
process.
[2] Strickland Test for Ineffective Representation
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a twoprong test for determining when legal representation in a criminal trial is ineffective. The
test requires a showing that:
(1) the representation was deficient; and
(2) such deficiency prejudiced the defendant.
[a] Deficiency of Representation
While Strickland did not establish explicit guidelines for effective representation, the
Court stated that representation is deficient when the errors [were] so serious that
counsel was not functioning as the counsel guaranteed . . . by the Sixth Amendment.
Cases alleging ineffective representation generally fall into one of three categories:
(1) failure to perform ordinary tasks;
(2) falling asleep in court; or
(3) ignorance of the relevant law.
[i] Failure to Perform Ordinary Tasks
Examples of omissions that, under given circumstances, may qualify as deficient
representation, include:
failure to develop a meaningful defense strategy.
failure to interview witnesses.
failure to request discovery.
failure to visit the crime scene.
absence from the courtroom during critical portions of the trial.
failure to make appropriate evidentiary objections.
failure to timely file a notice of appeal.
However, less-than-optimal performance does not necessarily render representation
inadequate, as long as the nature and conduct of the representation is based on
reasonable professional judgment. See, e.g., Burger v. Kemp, 483 U.S. 776 (1987)
(finding that defense counsels decision to not fully investigate the defendants
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background and not offer mitigating evidence at two capital sentencing hearings was
supported by reasonable professional judgment, in that his interviews and studies of
reports indicated that an explanation of the defendants background would not have
minimized the risk of the death penalty).
[ii] Sleeping in Court
It is widely accepted that proof that defense counsel frequently slept during trial or
significant pretrial hearings constitutes deficient representation.
[iii] Ignorance of Relevant Law
Deficiency may be proved where defense counsels ignorance or misunderstanding of
relevant law affects trial strategy to the detriment of the defendant. E.g., Kimmmelman
v. Morrison, 477 U.S. 365 (1986) (defense counsels failure to request discovery and
consequently move to suppress evidence obtained in violation of the Fourth Amendment,
based on his erroneous belief that the prosecution was required on his own initiative to
turn over all incriminating evidence in its possession, was held to constitute deficient
representation); Lockhart v. Fretwell, 506 U.S. 364 (1993) (defense counsel failed to
object to the introduction of certain evidence at the sentencing phase of the trial when it
had already been introduced during the guilt phase of the trial, apparently because he was
unaware of the relevant law which would have precluded such duplicate evidence).
[b] Prejudice
Once a defendant demonstrates that representation was deficient, the second prong of the
Strickland test requires proof that such deficiency was prejudicial to the defendants case.
To prove prejudice, the defendant must show that there is a reasonable probability that,
but for counsels errors, the outcome of the trial would have been different, e.g., that the
defendant would not have been convicted or would have received a lesser sentence.
Reasonable probability suggests more than that the error had some effect on the
outcome, but not that it is more likely than not that counsels deficient representation
affected the outcome.
Prejudice is presumed in cases involving:
(1) actual or constructive denial of the assistance of counsel such as when the
lawyer repeatedly fell asleep during trial;
(2) certain forms of state interference with counsels assistance; and
(3) attorney conflict of interest.
[3] Conflicts of Interest
[a] Pretrial Avoidance of Conflicts

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If an attorney representing co-defendants makes a timely motion for appointment of

separate counsel based on a potential conflict of interest, the trial judge must either grant
the motion or at least conduct a hearing on the matter to ascertain whether appointment
of separate counsel is warranted. Failure of the judge to do so requires automatic
reversal of any conviction. Holloway v. Arkansas, 435 U.S. 475 (1978).
[b] Disqualification of Counsel
A trial court has the authority to disqualify defense counsel, even over a defendants
objection, if it concludes that there is significant potential of a conflict of interest. Wheat
v. United States, 486 U.S. 153 (1988).
[c] Appeal Based on Conflict of Interest
In order to overturn a conviction on the basis of a conflict of interest, the defendant must
demonstrate that:
(1) an actual conflict of interest existed; and
(2) the conflict adversely affected the lawyers performance. The defendant need
not show actual prejudice i.e., that the outcome of the trial would have been different
only that the conflict adversely affected the lawyers performance.
14.03 Post-Conviction Proceedings
The Sixth Amendment right to counsel applies to sentencing hearings. Mempa v. Rhay,
389 U.S. 128 (1967).
The Sixth Amendment does not itself extend to criminal appeals. (In fact, the federal
Constitution does not even provide a right to appeal convictions, although every state
provides at least one appeal of right in criminal cases, and grants courts discretion
regarding subsequent appeals.)
However, as appellate procedures are subject to the standards of the Fourteenth
Amendment equal protection and due process clauses, an indigent defendant seeking to
appeal his conviction must be provided counsel for the first statutory appeal of right.
Douglas v. California, 372 U.S. 353 (1963).
The Fourteenth Amendment has been held to not require the appointment of counsel to
assist indigent appellants for:
discretionary state appeals.
applications for review in the United States Supreme Court.
state habeas corpus proceedings.
post-sentencing probation hearings.
post-sentencing parole revocation hearings.
Ross v. Moffitt, 417 U.S. 600 (1974); Pennsylvania v. Finley, 481 U.S. 551 (1987);
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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Chapter 15
CHARGING THE DEFENDANT
15.01 Complaint
After a suspect is arrested and booked, a complaint is prepared by the police or a
prosecutor and is filed with the court. A complaint is a written statement of the essential
facts constituting the offense charged. Fed. R. Crim. P. 3. The complaint serves as the
official charging document prior to the issuance of an information or indictment.
15.02 Probable Cause (Gerstein) Hearing
When the police arrest a suspect without an arrest warrant, a prompt judicial
determination of probable cause must ordinarily be made in order to continue to detain
the defendant where a significant pretrial restraint on liberty is involved. Gerstein v.
Pugh, 420 U.S. 103 (1975). A Gerstein hearing that is held more than 48 hours after the
defendants arrest is presumptively unreasonable. Riverside County v. McLaughlin, 500
U.S. 44 (1991). In indictment jurisdictions, if a grand jury previously returned an
indictment, a Gerstein hearing is unnecessary.
A Gerstein [420 U.S. 103] hearing is equivalent to a pre-arrest warrant hearing, at which
probable cause must be demonstrated in order to be granted a warrant. It is
nonadversarial in nature. The hearing may be conducted in the defendants absence, and
the probable cause determination may be based on hearsay testimony.
15.03 Initial Court Appearance
A defendant must be brought before a judicial officer for a hearing without unnecessary
delay, Fed. R. Crim. P. 5(a), usually within 24 hours of the arrest, except on weekends.
Such hearing is variously called the initial arraignment, arraignment on a warrant,
arraignment on a complaint, or the initial appearance.
At the initial appearance:
(1) the defendant receives formal notice of the charges against him.
(2) relevant constitutional rights are explained to the defendant.
(3) a date is set for a preliminary hearing.
(4) counsel is appointed if the defendant is indigent.
(5) a Gerstein [420 U.S. 103] probable cause determination may be made at such
time if the defendant was arrested without a warrant.
(6) the magistrate determines whether the defendant should be set free on his own
recognizance, released on bail, or detained pending further proceedings. [See Chapter 16,
Pretrial Release or Detention.]
15.04 Preliminary (Bindover) Hearing
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In most jurisdictions, a preliminary hearing is held within two weeks after the initial
appearance before the magistrate, unless the defendant waives the hearing. Fed. R. Crim.
P. 5(c). The primary purpose of a preliminary hearing is to determine whether there is
probable cause to believe that the defendant committed a specified criminal offense.
Fed. R. Crim. P. 5.1(a). Like the Gerstein [420 U.S. 103] hearing, a preliminary hearing
is not required if a grand jury previously returned an indictment.
Unlike a Gerstein [420 U.S. 103] hearing, the preliminary hearing is adversarial in
nature. Defense counsel may be present, and the prosecutor and the defendant may call
witnesses on their behalf and cross-examine adverse witnesses. Many jurisdictions
permit the introduction of hearsay and evidence obtained in an unconstitutional manner at
the preliminary hearing. Fed. R. Crim. P. 5.1(a).
[A] Information Jurisdictions
If the magistrate in an information jurisdiction i.e., a state in which an indictment by a
grand jury is not required determines that there is sufficient evidence to bind over the
defendant for trial, the prosecutor files an information. An information states the charges
against the defendant and the essential facts relating to the charges and replaces the
complaint as the formal charging document.
If the magistrate in an information jurisdiction does not find sufficient evidence to bind
over the defendant, the complaint is dismissed and the defendant is discharged. If the
prosecutor wishes to proceed with the dismissed case:
(1) he may file a new complaint, in which case the prosecution begins anew;
(2) in some states, he may appeal the magistrates dismissal to the trial court;
and/or
(3) in some circumstances, he may seek an indictment from a grand jury.
In an indictment jurisdiction states in which the defendant ordinarily cannot be
brought to trial unless indicted by a grand jury the preliminary hearing functions as
little more than an adversarial Gerstein-type hearing. Indeed, the magistrates probable
cause determination may be superseded by the grand jury; if the grand jury does not
indict the defendant, he must be released, despite a finding by the magistrate that
probable cause exists to believe that the defendant committed the offense.
15.05 Grand Jury Proceeding
In indictment jurisdictions, a defendant may not be tried for a serious offense unless he is
indicted by a grand jury or waives the right to a grand jury hearing. A grand jury
proceeding differs from a preliminary proceeding in that:
(1) the defendant is not permitted to be present during the grand jury
proceedings, except if and when he is called as a witness.
(2) the defendant (as well as all other witnesses) may not have counsel present
while he testifies before the grand jury.
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(3) no judge is present during the proceedings, and thus, rules of evidence e.g.,
those excluding hearsay and evidence obtained in violation of the Constitution do not
apply.
(4) the prosecutor is not required to disclose exculpatory evidence to the grand
jurors.
If a majority of grand jurors believe that the prosecutor presented sufficient evidence on
which a trial may proceed, the grand jury issues an indictment, a document that states the
charges and the relevant facts relating to them. If the jury does not indict the defendant (a
no-bill), the complaint is dismissed and the defendant is discharged.
15.06 Arraignment
Upon the filing of an indictment or information, the defendant is arraigned. Defense
counsel may be present at the arraignment. At the arraignment, the defendant is provided
with a copy of the indictment or information, after which he enters one of the following
pleas to the offenses charged:
not guilty
guilty
nolo contendere
not guilty by reason of insanity (available in some states)

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Chapter 16
PRETRIAL RELEASE OR DETENTION
16.01 Initial Court Appearance
At a defendants initial court appearance (which usually occurs within 24 hours after
arrest), the magistrate or judge determines whether the defendant may be released
pending trial. The magistrate may:
(1) release the defendant on recognizance if the magistrate is confident that the
defendant will appear as required at all criminal proceedings.
(2) attach conditions to the defendants release, such as placing him in the
custody of a designated individual or requiring the deposit of bail, in order to better
ensure the defendant will appear as required.
(3) order the continued confinement of the defendant pending trial (preventive
detention) if the magistrate determines that no conditions will reasonably ensure the
defendants appearance as required or that his release will jeopardize the safety of others.
In federal criminal cases, a defendant is entitled to representation by counsel at the bail
determination, and indigents are appointed counsel for such purpose. Fed. R. Crim. P.
44(a). Many state court systems, however, do not provide counsel to indigents for bail
proceedings.
16.02 Bail
[A] Amount of Bail
The Eighth Amendment, as well as all states, by constitution or statute, prohibits the
setting of excessive bail. Bail is excessive if it is set at an amount higher than is
deemed necessary to ensure the defendants appearance at trial.
In determining the appropriate amount of bail in a given case, the magistrate is to
consider:
the nature and circumstances of the offense charged.
the weight of the evidence against the defendant.
the defendants character.
the financial ability of the defendant to meet the bail requirements.
The Constitution does not entitle an indigent to be released without bail if he cannot
afford to meet any financial conditions. Stack v. Boyle, 342 U.S. 1 (1951).
[B] Federal Bail Reform Act
Under the Federal Bail Reform Act of 1984, 18 U.S.C. 31413150, the magistrate is
required to release the defendant on his own recognizance or upon execution of an
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unsecured appearance bond in an amount specified by the court, unless the magistrate
concludes that more restrictive conditions are necessary to reasonably ensure that the
defendant will not flee the jurisdiction and/or endanger others while released pending
trial.
The magistrate may not set bail in an amount that is beyond the means of the defendant
and therefore results in pretrial detention. 18 U.S.C. 3142(c)(2). If a judge determines
that the defendant should be detained pending trial, he is required to follow the detention
provisions set out in the Act.
16.03 Preventive Detention
[A] Detention Hearing
Under the Federal Bail Reform Act, 18 U.S.C. 3142(f)(1), the magistrate must hold a
detention hearing on the motion of the prosecutor if the defendant is charged with:
a crime of violence.
any offense for which the maximum sentence is life imprisonment or death.
a drug offense for which the maximum term of imprisonment is ten years or more.
any other felony committed by a person previously convicted of two or more of
the above offenses.
A hearing is also required on a motion of the prosecutor or on the judges own motion in
cases that involve an allegation of:
a serious risk of flight.
obstruction of justice.
intimidation of a prospective witness or juror.
At the detention hearing, which ordinarily must be held at the defendants first
appearance before the magistrate, the defendant is entitled by statute to be represented by
counsel, to testify in his own behalf, to present witnesses, and to cross-examine witnesses
called by the prosecutor. Rules concerning the admissibility of evidence at criminal trials
do not apply at the hearing, thus allowing the introduction of hearsay and evidence
obtained in violation of the Constitution.
The prosecutor or defendant may immediately appeal the magistrates order in the
detention hearing. 18 U.S.C. 3145.
[B] Determination of Release or Detention
[1] Relevant Factors
In order to determine whether any condition(s) will reasonably ensure the appearance of
the defendant and the safety of others, the magistrate must consider:
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the nature of the offense charged.

the weight of the evidence against the defendant.
the defendants physical and mental condition.
the defendants ties to family and the community.
whether, at the time of the current arrest, the defendant was already on probation
or parole or on pretrial release from another offense.
18 U.S.C. 3142(g)
[2] Statutory Presumptions
The Federal Bail Reform Act of 1984 provides for two rebuttable presumptions in
detention hearings.
The defendant is presumed to be too dangerous to be released if the prosecutor proves:
(1) the defendant was previously been convicted of one of the enumerated
offenses that justifies a detention hearing;
(2) that the offense for which the defendant was convicted was committed while
he was on release pending trial for another crime; and
(3) five years have not elapsed since the later of the date of the defendants prior
conviction or his release from prison.
It may also be presumed that no conditions of release will reasonably ensure that the
defendant will not flee or commit a crime, if the magistrate determines that there is
probable cause to believe that the current charge involves an enumerated serious drug
offense or an the use or possession of firearms. 18 U.S.C. 3142(e).

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Chapter 17
PLEA BARGAINING AND GUILTY PLEAS
17.01 Plea Bargaining
[A] Types of Plea Agreements
[1] Charge Bargaining
There are two types of charge bargaining:
(1) dismissal agreement a defendant who is charged with multiple offenses
pleads guilty to one or more charges, in exchange for which the prosecutor agrees to drop
the other charges.
(2) charge-reduction agreement the defendant and prosecutor agree on a guilty
plea to a lesser degree of the original charge.
[2] Sentence Bargaining
Sentencing bargaining also takes one of two forms:
(1) sentencing recommendation agreement in exchange for a guilty plea to a
given charge, the prosecutor agrees to recommend to the judge a sentence agreed upon by
the defendant, or alternatively, to not oppose the defendants request for a particular
sentence;
(2) sentencing agreement the prosecutor agrees to a specified sentence in
exchange for the guilty plea.
[B] Disclosure of Agreement to Court
Federal Rule of Criminal Procedure 11(e)(2), followed by most states, requires the
disclosure of any plea bargain to the trial court when the defendant pleads guilty.
[C] Acceptance of Plea Agreement by Trial Court
A judge is not required to accept a plea agreement. If the judge rejects the plea
agreement, the defendant must be given the opportunity to withdraw the plea, and must
be informed that if he does not withdraw it, the disposition of the case may be less
favorable to the defendant than that contemplated by the plea agreement. Fed. R. Crim.
P. 11(e)(4).
With respect to a guilty plea based on a sentencing-recommendation agreement, the judge
must inform the defendant that if the court does not accept the sentencing
recommendation, the defendant is not entitled to withdraw the plea.
[D] Revocation and Breach of Agreement by Prosecutor
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The prosecutor may revoke an offer, even after the defendant accepts it, prior to the entry
of the plea by the court. Mabry v. Johnson, 467 U.S. 504 (1984). However, the
prosecutor may not breach the plea bargain once the court accepts it if the guilty plea
rests in significant part on the prosecutors promise. Santobello v. New York, 404 U.S.
257 (1971) (defendant pleaded guilty based on prosecutors agreement to not make a
sentencing recommendation to the trial judge; months later at the sentencing hearing, in
violation of the plea agreement, a different prosecutor sought the maximum sentence,
which the judge imposed). If the prosecutor violates his agreement, the court may order
specific enforcement of the agreement or allow the defendant to withdraw the plea.
The Supreme Court has suggested that defense counsel should seek to have all aspects of
a deal expressly and clearly set out, United States v. Benchimol, 471 U.S. 453 (1985), and
in especially complicated or unusual cases, include an express provision mandating
judicial construction of a plea agreement, in the event that the parties dispute the meaning
of a provision. Ricketts v. Adamson, 483 U.S. 1 (1987).
[E] Hard Bargaining by Prosecution
A prosecutor does not engage in prosecutorial vindictiveness simply by driving a hard
bargain in the plea negotiation process, such as threatening to charge the defendant with a
more serious charge if he does not plead guilty. Bordenkircher v. Hayes, 434 U.S. 357
(1978).
[F] Withdrawal of Plea by Defendant
Once a guilty plea is entered by the court but before sentencing, a defendant may not
withdraw the plea unless he demonstrates a fair and just reason for doing so, such as
that the plea was coerced. United States v. Hyde, 520 U.S. 670 (1997).
[G] Evidence of Guilty Plea and Statements Made During Negotiations
In federal criminal trials, Federal Rule of Criminal Procedure 11(e)(6) excludes from any
civil or criminal proceeding:
evidence that the defendant entered a plea of guilty that was later withdrawn.
statements made by the defendant to the prosecutor during plea negotiations.
statements made by the defendant to the judge during plea proceedings.
However, the defendant can knowingly and voluntarily waive the exclusionary
provisions. United States v. Mezzanatto, 513 U.S. 196 (1995).
17.02 Guilty Pleas
[A] Assistance of Counsel

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A defendant who intends to plead guilty must be represented by counsel or must validly
waive the right to counsel at the pleading stage.
[B] Competency to Plead Guilty
A defendant must be mentally competent in order to validly plead guilty or waive his
right to counsel. The competency standard for pleading guilty or waiving the right to
counsel is the same as that applied for determining competency to stand trial, i.e., the
defendant must possess sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding and a rational as well as factual
understanding of the proceedings against him. Godinez v. Moran, 509 U.S. 389
(1993).
[C] Voluntary and Knowing Plea
A guilty plea is valid only if it is made voluntarily and knowingly.
[1] Voluntary Waiver of Rights
A federal trial court may not accept a guilty plea until it determines that the plea is
voluntary, i.e., it must not be the result of force or threats or of promises apart from a
plea agreement. Fed. R. Crim. P. 11(d). Rule 11 requires the judge to determine the
voluntariness of the plea by addressing the defendant personally in open court.
Nevertheless, under Rule 11, any variance from the procedures . . . which does not affect
substantial rights constitutes harmless error. Fed. R. Crim. P. 11(h). This rule
supersedes the holding in McCarthy v. United States, 394 U.S. 459 (1969), which held
that a guilty plea must be set aside if the district court failed to address the defendant in
open court in order to determine the voluntariness of the plea.
[2] Knowing Waiver of Rights
A guilty plea is invalid if the defendant is unaware of:
(1) the nature of the charges to which he is pleading;
(2) the penal consequences of the plea; and
(3) the nature of the rights he is waiving by pleading guilty.
However, a plea is not invalid merely because the defendant or his counsel incorrectly
assessed the legal or factual circumstances surrounding the case. Fed. R. Crim. P. 11(c).

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[a] Nature of the Charges

The defendant must be informed of and understand the critical elements (e.g., mental
state) but not necessarily all elements of the crime to which he is pleading guilty.
Henderson v. Morgan, 426 U.S. 637 (1976) (defendant, who possessed substantially
below-average intelligence, pleaded guilty to intent-to-kill murder, even though he told
the court that he meant no harm to the victim; the plea was held invalid because the
trial judge determined that neither the defense attorney nor the prosecutor explained to
the defendant that intent was a critical element of the crime).
[b] Penal Consequences of the Plea
Federal Rule of Criminal Procedure 11(c) requires the judge to inform the defendant of
any mandatory minimum sentence provided by law, and the maximum penalty for the
offense, including any pertinent parole provisions. The judge must also inform the
defendant that he is required to consider any applicable sentencing guidelines but may
depart from those guidelines under some circumstances.
Nevertheless, the prevailing view is that the failure of a court to inform a defendant of the
direct penal consequences of the plea, even if such failure violates a statute or procedural
rule, does not by itself constitute a due process violation.
[c] Nature of the Rights Being Waived
The judge must inform the defendant that by pleading guilty, he waives the privilege
against self-incrimination, the right to trial by jury, and the right to confront ones
accusers. Boykin v. Alabama, 395 U.S. 238 (1969); Fed. R. Crim. P. 11(c).
Regarding the waiver of the privilege against self-incrimination, if the court intends to
question the defendant under oath during the plea proceeding, it must inform the
defendant that his answers can later be used against him in a prosecution for perjury. In
contrast, however, the defendants truthful statements to the judge during the plea
proceeding may not be used against him at any subsequent sentencing hearing in that
case. Mitchell v. United States, 526 U.S. 314 (1999).
[d] Incorrect Legal Advice
An otherwise valid plea is not vulnerable to collateral attack simply because it was
based on incorrect legal advice, if the advice was based on then existing law as to
possible penalties. United States v. Jackson, 390 U.S. 570 (1968).
However, if the defendant entered into a plea agreement based on advice of counsel
whose representation was ineffective, the plea may be challenged. In order to vacate a
guilty plea on the ground of ineffective representation, the defendant must prove that the
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representation was constitutionally deficient and that such deficiency was prejudicial.
[See Chapter 14, Right to Counsel: Pretrial, Trial and Post-Conviction Proceedings.]
[D] Factual Basis of the Plea
In general, a judge is not constitutionally required to determine whether there is a factual
basis for a defendants guilty plea. However, when a defendant affirmatively asserts his
innocence during the plea proceeding, the trial judge must determine whether there is a
factual basis for the plea. North Carolina v. Alford, 400 U.S. 25 (1970). If the record
contains strong evidence of actual guilt, a judge may accept a guilty plea from a
defendant despite his assertion of innocence at the plea proceeding.
Although not constitutionally mandated, Federal Rule of Criminal Procedure 11(f)
requires federal criminal courts to determine whether a factual basis for the plea exists.
The rule does not require the trial judge to believe that the defendant is in fact guilty as
long as a factual basis for the plea exists.
[E] Forfeiture of Prior Constitutional Claims
A defendant who pleads guilty to a criminal charge in state court ordinarily is barred
from raising a claim in federal court based on a constitutional violation that occurred
prior to the guilty plea, even if such claim might have barred a conviction if the
defendant had proceeded to trial on the criminal charge.
Nevertheless, a defendant who pleads guilty does not forfeit the following constitutional
claims:
a procedural defect in the guilty plea procedure itself.
the plea was not voluntarily or intelligently made.
ineffective assistance of counsel.
prosecutorial vindictiveness in the charging process.
double jeopardy.
17.03 Conditional Pleas (Nolo Contendre)
The alternative plea of nolo contendre, available in federal court and some states, allows
a defendant to conditionally plead guilty in order to reserve the right, on appeal from the
judgment, to review of the adverse determination of any specified pretrial motion. Fed.
R. Crim. P. 11(a)(2). If the defendant prevails on appeal, he may withdraw the plea. If
he does not prevail, the plea stands.
All of the provisions of Federal Rule of Criminal Procedure 11 pertaining to guilty pleas
apply to pleas of nolo contendere as well, except for the factual basis requirement
under Rule 11(f).
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Chapter 18
PRETRIAL AND TRIAL ISSUES
This chapter covers the following issues:
Discovery
Competency to Stand Trial
Right to a Speedy Trial
Jury Trial
Right to Confront Witnesses and Present a Defense
Joint Trials
Sentencing
18.01 Discovery
[A] Exculpatory Evidence
In preparation for trial, the prosecution has a duty to:
disclose exculpatory evidence in its possession to the defendant, Brady v.
Maryland, 373 U.S. 83 (1963).
disclose any deals made by the prosecution with a witness, Giglio v. United
States, 405 U.S.150 (1972).
ascertain any exculpatory evidence known to other government agents and to
assess the cumulative effect of all exculpatory evidence in deciding whether to
disclose the evidence to the defendant, Kyles v. Whitley, 514 U.S 419 (1995).
Failure to disclose exculpatory evidence violates the due process clause. Where the
prosecution fails to disclose exculpatory evidence, a conviction must be overturned if
there is a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. United States v. Bagley, 473
U.S. 667 (1985).
Absent bad faith on the part of the police, failure to preserve potentially exculpatory
evidence does not constitute a due process violation. Arizona v. Youngblood, 488 U.S. 51
(1988) (failure to test semen taken from a sexual assault victim and to refrigerate his
clothing in order to preserve semen on it did not require reversal of conviction because no
police bad faith was shown).
[B] Government Duty to Disclose Information Upon Defense Request
Upon a defendant's request, Federal Rule of Criminal Procedure 16 requires the
government to disclose the following evidence within its possession, custody or control,
and known to exist through due diligence:

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(1) the substance of any oral statement made by the defendant, before or after
arrest, in response to interrogation by a person the defendant knew was a government
agent;
(2) any relevant written or recorded statement by defendant;
(3) defendant's prior criminal record;
(4) any material documents and objects that the government intends to in its casein-chief, or was obtained from or belongs to the defendant;
(5) reports resulting from any physical or mental examinations and tests;
(6) written summary of any expert testimony that the government intends to use
in its case-in-chief.
Under federal procedure, if the defendant requests the government to produce documents
and tangible evidence, reports of examinations and tests, or information about expert
witnesses, the defense must make a reciprocal disclosure. Fed. R. Crim. P. 16(b)(1).
[C] Defendants Obligation to Disclose Information
The prosecution may be entitled by statute or procedural rule to obtain information from
the defendant prior to trial, e.g., the names of alibi witnesses. See, e.g., Fed. R. Crim. P.
12.1. In such cases, the defense must be entitled to reciprocal discovery from the
prosecution pertaining to relevant rebuttal evidence. Wardius v. Oregon, 412 U.S. 470
(1973).
18.02 Competency to Stand Trial
[A] Incompetency Defined
Prosecution of a defendant who lacks competency to stand trial violates the due process
clause. Medina v. California, 505 U.S. 437 (1992). Competency to stand trial is
constitutionally required because a defendant must be able to assist his attorney in a
meaningful defense, e.g., to discuss strategy, explain his version of the facts, and provide
the names of potential witnesses, as well as to confront accusers at trial.
A person is incompetent if, during the criminal proceedings, he lacks:
(1) capacity to consult with counsel with a reasonable degree of rational
understanding; or
(2) a rational as well as factual understanding of the proceedings against him.
Dusky v. United States, 362 U.S. 402 (1960). Incompetency may be the result of a
physical handicap, e.g., inability to speak, or a temporary or permanent mental disability,
e.g., mental retardation, amnesia, mental illness.
[B] Procedures for Determining Competency
The issue of competency to stand trial may be raised by the prosecutor, the defense, or
the trial judge. The defendants competency must be investigated, even over the
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defendants objection, if the trial judge believes that the defendant may be incompetent.
Pate v. Robinson, 383 U.S. 375 (1966).
When the defendants competency is raised, the defendant must submit to a psychiatric
examination, and if the results are in dispute, a hearing must be held at which the parties
may present evidence on the matter of competency. 18 U.S.C. 4241. Upon a ruling of
incompetency, the defendant is committed to an appropriate facility for a reasonable
period of time (up to four months under federal law) in order to determine whether there
is a substantial probability that he will attain capacity to stand trial in the foreseeable
future. Jackson v. Indiana, 406 U.S. 715 (1972). The defendant may be held for an
additional reasonable period until the defendant attains competency, if it is determined
that he is likely to so improve. 18 U.S.C. 4241(d)(2). If it is not so determined, the
defendant is to be committed according to civil commitment procedures.
18.03 Right to a Speedy Trial
The Sixth Amendment guarantees an accused the right to a speedy trial. The right
attaches only after one has been formally accused of the offense, i.e., upon indictment,
information, or custodial arrest.
A charge must be dismissed if a court finds that the defendants right to speedy trial has
been violated, Strunk v. United States, 412 U.S. 434 (1973), and such dismissal bars all
future prosecutions of the offense. As set out in Barker v. Wingo, 407 U.S. 514 (1972),
the factors relevant to whether the right to a speedy trial has been violated include:
(1) Length of delay Delay must be of sufficient length to potentially prejudice
the accused; some statutes set specific time limits for initiation of trial, see, e.g., Federal
Speedy Trial Act, 18 U.S.C. 3161.
(2) Reason for delay Evidence that the prosecutor deliberately attempted to
delay trial is weighed heavily in the analysis, unless there is a justifiable reason for the
delay, such as a missing witness or illness of a party. If the delay is willfully caused by
the defendant, he is deemed to have waived the right to a speedy trial.
(3) Defendants assertion or non-assertion of right The defendant need not
assert the right prior to trial but failure to do so may receive considerable weight in the
courts analysis of the speedy trial question.
(4) Prejudice to defendant e.g., loss of evidence, fading memory of witnesses,
prolonged incarceration, etc.
18.04 Jury Trials
[A] Right to Trial by Jury
The right to a jury trial applies only to non-petty offenses, generally deemed to be
offenses punishable by imprisonment for more than six months. Baldwin v. New York,
399 U.S. 66 (1970). Offenses for which the maximum term of imprisonment authorized
by law is six months or less may also be deemed non-petty if additional available
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statutory penalties (including fines) are so severe that they clearly reflect a legislative
determination that the offense in question is a serious one. Blanton v. City of North
Las Vegas, 489 U.S. 538, 543 (1989).
[B] Required Number of Jurors
A jury composed of as few as six persons is constitutional. Williams v. Florida, 399 U.S.
78 (1970). Twelve jurors are required in federal criminal trials, although fewer may be
permissible upon stipulation by the parties or when the court finds it necessary to excuse
a juror for cause after the trial begins. Fed. R. Crim. P. 23(a). Many states likewise
require a twelve-person jury in criminal trials.
[C] Number of Jurors Needed to Acquit or Convict
State laws permitting non-unanimous verdicts are permissible, as long as the vote to
convict represents a substantial majority of the jurors, Johnson v. Louisiana, 406 U.S.
356 (1972), but in federal criminal trials, a verdict to convict or acquit must be
unanimous. Fed. R. Crim. P. 31(a).
18.05 Right to Confront Accusers and to Present a Defense
[A] Face-to-Face Confrontation
In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him. This right applies to trials but not pretrial or sentencing
proceedings. Williams v. New York, 337 U.S. 241 (1949).
The confrontation clause entitles the defendant to be physically present in the courtroom
during the trial. Snyder v. Massachusetts, 291 U.S. 97 (1934). Federal Rule of Criminal
Procedure 43 requires a federal criminal defendants presence at every trial stage
including empanelment of the jury and the reading of the verdict. The defendant waives
the right to be present in the courtroom, however, if he voluntarily absents himself from
the courtroom during proceedings, Taylor v. United States, 414 U.S. 17 (1973), or
behaves in a disorderly manner in the courtroom, Illinois v. Allen, 397 U.S. 337 (1970).
See also Fed. R. Crim. P. 43(c).
The accused is entitled to a face-to-face confrontation with an opposing witness. Such
right may be denied, however, when the prevention of the confrontation serves an
important public purpose, and the witnesss testimony is otherwise shown to be reliable.
For example, if the trial court finds that a child victim of alleged sexual abuse would be
traumatized from having to testify in front of the alleged abuser, the court may allow the
child victim to testify via telephone hook-up or behind a one-way glass or other such
protective measure. E.g., Maryland v. Craig, 497 U.S. 836 (1990). However, the trial
court may not merely rely on a statutory presumption that a witness needs protection
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from face-to-face confrontation without a determination as to the susceptibility of the

individual witness. E.g., Coy v. Iowa, 487 U.S.1012 (1988).
[B] Hearsay Evidence [Note: After this section was written, the Supreme Court decided
Crawford v. Washington, 541 U.S. 36 (2004), differentiating between "testimonial" and
"nontestimonial" hearsay and holding that the Confrontation Clause bars the admission of
testimonial hearsay unless the declarant is unavailable and the accused has had a prior
opportunity to cross-examine the declarant.]
Introduction of hearsay passes constitutional analysis where:
(1) the declarant of the hearsay statement testifies at trial, affording the defendant
the opportunity to cross-examine the declarant;
(2) a hearsay exception applies;
(3) the statement is otherwise found to be trustworthy, based on the totality of
circumstances. Idaho v. Wright, 497 U.S. 805 (1990).
If the hearsay consists of statements made at a prior judicial proceeding, the statement
may be admitted if the declarant is unavailable to testify at the current trial and the
statement carries with it sufficient indicia of reliability. United States v. Inadi, 475 U.S.
387 (1986). The prosecution has the burden of showing that the witness is unavailable
for trial and must make a good faith effort to secure his presence; mere reliance on the
witnesss incarceration is insufficient as the prosecution must attempt to secure his
presence at trial. Barber v. Page, 390 U.S. 719 (1968).
[C] Confession by Co-Defendant
In a joint trial of co-defendants, when the prosecution introduces an admission or
confession made by one defendant that implicates another defendant, and the declarant
opts to not testify at trial, the trial court must sever the trials or order a deletion of
references to the other defendant. Bruton v. United States, 391 U.S. 123 (1968). When the
statement is redacted, it is not sufficient merely to insert a blank or other substitution for
the name of the defendant; the redaction should not indicate the defendants
involvement in any manner. Compare Richardson v. Marsh, 481 U.S. 200 (1987) (after
redaction, the co-defendants confession contained no indication of defendants
involvement) with Gray v. Maryland, 523 U.S. 185 (1998) (redacted statement that me,
deleted, deleted, and a few other guys killed the victim clearly referred to the
defendants involvement).
Severance or redaction is not required if the declarant testifies at trial because the
defendant is given the opportunity to cross-examine the co-defendant. Nelson v. ONeil,
402 U.S. 622 (1971). The rule also does not apply if the confession is offered for a
limited purpose other than to prove guilt. Tennessee v. Street, 471 U.S. 409 (1985).
[D] Right to Present a Defense
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The Sixth Amendment grants to the accused the right to compulsory process for
obtaining witnesses in his favor, which includes the rights to subpoena witnesses and to
present a defense. The defendant must be permitted to introduce crucial evidence in his
defense that has substantial assurances of trustworthiness, even if the evidence is
otherwise inadmissible under local rules of evidence. Chambers v. Mississippi, 410 U.S.
284 (1973).
18.06 Joint Trials
Generally co-defendants may be charged in the same indictment or information, and tried
jointly. Fed. R. Crim. P. 8. Furthermore, defendants charged under separate indictments
may be jointly tried if the offenses and defendants could have been charged in a single
indictment. Fed. R. Crim. P. 13.
If a defendant believes that he will be prejudiced by joinder of his case with that of a codefendant, he may move for separate trials (severance). Fed. R. Crim. P. 14. A defendant
may appeal the decision to conduct a joint trial, but the decision is subject to the harmless
error rule. United States v. Lane, 474 U.S. 438 (1986).
In the interests of judicial efficiency, the Supreme Court has stated that severance should
be granted only if there is a serious risk that a joint trial would compromise a specific
trial right of one of the defendants, or prevent the jury from making a reliable judgment
about guilt or innocence. Zafiro v. United States, 506 U.S. 534 (1993).
18.07 Sentencing
[A] Eighth Amendment Limits on Punishment
Implicit in the prohibition against cruel and unusual punishment contained in the Eighth
Amendment is that punishment not be grossly disproportional to the crime committed.
Weems v. United States, 217 U.S. 349 (1910).
[1] Death Penalty
The death penalty does not invariably violate the Constitution. Gregg v. Georgia, 428
U.S. 153 (1976) (addressing capital punishment imposed for murder convictions).
However, the death penalty has been determined to be grossly disproportional to the
crime of rape of an adult woman. Coker v. Georgia, 433 U.S. 584 (1977).
[2] Terms of Imprisonment
Disproportionate prison sentences for petty offenses may be permissible if the statute
provides for parole. Compare Rummel v. Estelle, 445 U.S. 263 (1980) (life sentence for a
petty nonviolent crime imposed pursuant to the states habitual offender law was upheld
where the defendant would be eligible for parole) with Solem v. Helm, 463 U.S. 277
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(1983) (life imprisonment without possibility of parole, imposed pursuant to the habitual
offender law, upon conviction of fraudulently passing a check for $100, was deemed to
violate the Eighth Amendment).
Even in the absence of parole, a seemingly disproportionate punishment might be
permissible for a serious offense. Harmelin v. Michigan, 501 U.S. 957 (1991) (life
sentence without parole for conviction of possession of 672 grams of cocaine, which was
the defendants first conviction, did not violate the Eighth Amendment).
[B] Judicial Vindictiveness
If a defendant successfully appeals his conviction, upon retrial and a subsequent
conviction, the trial judge may not impose a greater sentence in order to punish the
defendant for successfully appealing the conviction. In the absence of judicial
vindictiveness, however, the trial court is authorized to impose a greater sentence, up to
the maximum permitted by law, upon retrial and re-conviction. North Carolina v.
Pearce, 395 U.S. 711 (1969).

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Chapter 19
HABEAS CORPUS
19.01 Nature of Habeas Corpus
A habeas corpus proceeding is not a direct appeal but rather a collateral attack of a
conviction by which the defendant challenges the lawfulness of his detention. Habeas
corpus is a civil remedy that mandates the release from custody of an individual being
held in violation of constitutional or federal law. Preiser v. Rodriguez, 411 U.S. 475
(1973).
19.02 Standing to Petition for Habeas Corpus
Standing to bring a habeas corpus petition requires that at the time of such petition the
defendant is in custody, which has been broadly construed to include probation,
parole, release on bail, as well as the continued collateral consequences of a criminal
sentence, e.g., loss of rights to vote and to hold public office. Lane v. Williams, 455 U.S.
624 (1982).
19.03 Petitions in Federal Court
[A] State Prisoners
Where state law provides for habeas corpus relief, state prisoners may petition for federal
relief only upon exhausting all available state remedies. The federal petition will be
dismissed if the petitioner did not previously exhaust all state remedies. Rose v. Lundy,
455 U.S. 509 (1982).
A state prisoner will be denied federal relief if he fails to comply with state procedural
rules governing the assertion of federal constitutional claims, Wainwright v. Sykes, 433
U.S. 72 (1977), unless he can show cause for noncompliance and demonstrate that he
suffered actual prejudice. Francis v. Henderson, 425 U.S. 536 1976). Such cause can be
shown if either the factual or legal basis for a claim was not reasonably available to the
defense at the time the claim should have been raised. Amadeo v. Zant, 486 U.S. 214
(1988).
A state prisoner cannot relitigate Fourth Amendment claims at a federal habeas corpus
proceeding, Stone v. Powell, 428 U.S. 465 (1976), but can relitigate:
claims regarding sufficiency of evidence used to convict.
claims of racial discrimination in the grand jury proceeding.
Sixth Amendment claims of ineffective assistance of counsel.
Miranda [384 U.S. 436] violations.
[B] Federal Prisoners
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Federal prisoners seeking a writ of habeas corpus based on trial errors or grand jury racial
discrimination must show cause for failing to object to the errors and demonstrate actual
prejudice from such errors. United States v. Frady, 456 U.S. 152 (1982). If the petition is
based on a claim of innocence, the federal prisoner generally must show that, but for the
error, it is more likely than not that the jury would have found him not guilty. Schlup v.
Delo, 513 U.S. 298 (1995).

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