Threshold of the 4th amendment: right to be secure against

searches:
4th amendment protects:
Persons
Houses (e.g., motel rooms, invited guests)
Papers
Effects

Two-Fold Requirement for “Search”:

The person has exhibited an actual, subjective expectation of
privacy; AND
Whether the individual has shown that he seeks to preserve
something as private.
The expectation be one that society is prepared to recognize as
“reasonable”
Whether it is justifiable under the circumstances

1. Katz v. United States: Is electronically eavesdropping on a conversation

occurring within a closed glass phone booth without physically penetrating it
an “unreasonable” search protected by the 4th amendment?
HELD: Yes, the Govt.’s activities in electronically listening to and recording
D’s words violated the privacy upon which he justifiably relied while using
the phone booth and thus constituted a “search and seizure” within the
meaning of the 4th amendment.
“Constitutionally protected” area is not necessarily the correct
solution because the Constitution protects people, not places.

No longer need penetration: the reach of the 4th amendment cannot
turn upon the presence or absence of a physical intrusion into any
given enclosure.
Property interests no longer control the right of the Govt. to
search or seize
4th amendment also applies to recording statements even
without technical trespass.

Twofold test for 4th amendment protection (Harlan):

The person has exhibited an actual, subjective expectation of
privacy; AND
The expectation be one that society is prepared to recognize as
“reasonable”

Extension of Katz: Katz has been extended to prohibit wiretapping

without a warrant.
A. False-Friend Rule
1. United States v. White: Does the 4th amdt. Bar testimony of govt. agents
who related certain conversations that occurred between D and an
informant, which agents overheard by monitoring a radio transmitter carried
by the informant and concealed on his person. HELD: No.
Simultaneously transmitting/recording the conversation does not
violate 4th amendment rights because it’s no different than a CI writing
down the conversation immediately afterward.

No constitutional protection once D has chosen to confide in a person,

regardless of whether they turn out be an informant.

Recording actually benefits D in that it makes the testimony more

accurate.

False-Friend Rule: If person A says something to B, B can “choose” to

turn that info over to the police.
A has “given” B the statement, and now B can do whatever he
wants with it
No constitutionally protected expectation that B will not reveal
the info to police
”Rat testimony” is NEVER a 4th amendment problem.

B. Inside/Outside Doctrine
1. Smith v. Maryland: Was the installation of a pen register on D’s phone
line, which recorded only the numbers dialed on the phone and not the
contents of the conversations, without a warrant a “search” against which D
was protected by the 4th amdt? HELD: No, D had no actual expectation of
privacy in the phone numbers he dialed, and even if he did, his expectation
was not “legitimate.”
No legitimate expectation of privacy: General public does not have
actual expectation that numbers they dial on their phone lines will be
kept secret
People know that numbers they dial may be recorded by the
phone company because they show up on long-distance bills.
People know that pen registers may be used to identify people
making annoying or obscene calls.

Immaterial that D dialed the numbers in his home because the site of
the call only goes to show that D intended to keep the contents of the
calls private, not the numbers

Voluntarily conveyed the numbers to the phone company

 Justice Marshall Dissent: By its terms, the constitutional prohibition
against unreasonable searches and seizures assigns to the judiciary
some prescriptive responsibility.

Smith stands for the Inside/Outside Doctrine

Inside information = content = protected
Contents of call
Contents of letter
Contents of email (Worshak)

Outside information= meaningful info about conversation, but not

content= not protected
Numbers dialed
Envelope information
Location of phone (GPS data)—not yet decided by SCOTUS

C. Over-flights
California v. Ciraolo:

Rule: Over-flights do NOT violate one’s 4th amdt. Rights; no warrant needed
(but see limits on technology)

D. Searches of Effects
1. Bond v. United States: Is it a 4th amendment unreasonable search when a
border patrol agent squeezes hard a passenger’s soft-sided carry-on bag
that is located in the overhead bin above the passenger’s seat and feels a
brick-like object inside the bag? HELD: Yes.
Bag = “effect”: Bag protected by the 4th even though it was not on
D’s person

Physical invasion = intrusion: tactile observation is physically invasive

inspection that is simply more intrusive than purely visible inspection
like in Ciraolo

4th amendment search analysis:

Opaque bag= subjective expectation of privacy
Reasonable b/c he did not expect other passengers to feel the
bag in an exploratory manner.

Justice Breyer Dissent:

One’s privacy expectation must be against everyone, not just
govt. agents.
 One cannot reasonably expect privacy of objects that he
knowingly exposes to the public.

Test: What is the general level of tactile manipulation a person can

expect from putting his bag in a public space (e.g., overhead bin)?

E. High-Tech “Searches”
1. Kyllo v. United States: Is the use of a thermal imager to detect the heat
output of a house in order to determine if high-intensity lights are being
used to grow marijuana an unconstitutional search if such details are not
available otherwise without physical intrusion into the home?
HELD: Yes, the surveillance is a “search” and is presumptively unreasonable
without a warrant when the govt. uses a device that is not in general
public use to explore details of the home that would previously have been
unknowable without physical intrusion.
Silverman: at the very core of the 4th stands the right of a man to
retreat into his own home and there be free from unreasonable
governmental intrusions.

Was a search: obtaining info through sense-enhancing technology

that is not in general public use that could not otherwise be obtained
without physical intrusion is a search becayse there is a minimum
expectation of privacy that exists inside the home.
More than just naked-eye visual observation as in Ciraolo
Off-the-wall surveillance was not allowed in Katz

Bright-Line Test: the 4th draws a firm, bright line at the entrance to
the home in determining when a warrant is required for a search.

But, a sensitive-handed agent on the street feeling the outside of the

walls would NOT be a search

F. Email = Reasonable Expectation of Privacy?

1. United States v. Warshak:

Probable Cause Requirement

I. Probable Cause to Arrest: exists where the facts and circumstances
within the officers’ knowledge and of which they have reasonably
trustworthy information are sufficient in themselves to warrant a man of
reasonable caution in the belief that an offense has been or is being
committed by the person to be arrested.
Requires a certain likelihood that:
The particular individual
 Has committed or is committing a particular offense

II. Probable Cause to Search: exists where the facts and circumstances
within the officers’ knowledge and of which they have reasonably
trustworthy information are sufficient in themselves to warrant a man of
reasonable caution in the belief that an item subject to seizure will be found
in the place to be searched.
Requires a certain likelihood that:
Something that is subject to seizure by the govt., i.e.,
contraband, or fruits, instrumentalities, or evidence of a crime
Is presently
Must have current information
Subject to challenge if too stale
In the specific place to be searched.

III. Anonymous Tips

1. Spinelli v. United States: was there PC for a warrant when the affidavit
contained an informant’s tip that did not provide information to support its
reliability nor did it provide the underlying circumstances which led to te
conclusion in the tip?
HELD: No, the tip was not a sufficient basis for finding of PC.
Aguilar: Hearsay information from a CI can establish PC:
Application must set forth some “underlying circumstances”
necessary to enable the magistrate independently to judge the
validity of the informants conclusion
Must support that CI is “credible” or that the info is “reliable”

2. Illinois v. Gates: Is an anonymous tip via a letter that does not include
info about where the tipster acquired the info nor about his credibility still a
sufficient basis for determining that there is PC to search D’s house?
HELD: Yes, but only because the Aguilar-Spinelli test is out (in theory)
Abandon rigid Aguilar-Spinelli test: The 2 elements of the test are
highly relevant in determining the value of the tip, but they are not
separate and independent.

Totality of the Circumstances Analysis: the issuing magistrate must

make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, including the
“veracity” and “basis for knowledge” of persons supplying hearsay
info, there is a fair probability that contraband or evidence of a crime
will be found in a particular place
PC deals with probabilities and is not technical
 Rigid rules are not suited for tips because warrants are
issued on a nontechnical, common sense judgment of PC

Even if there is some doubt about an informants motives,

his explicit and detailed description of alleged wrongdoing
along with a statement that the even was observed first-
hand entitles the tip to greater weight.

IV. Motive Immaterial with Probable Cause

1. Whren v. United States: Is the temporary detention of a motorist who
police have PC to believe has committed a civil traffic violation inconsistent
with the 4th amdt.’s protection against unreasonable seizures unless a
reasonable officer would have been motivated to stop the car by a desire to
enforce the traffic laws?
HELD: No, PC justifies a search or seizure
Motive immaterial: some ulterior motive of the officers cannot
invalidate police conduct so long as there was a justifiable basis for PC
to believe that a violation of law had occurred.
Does NOT matter that arrest was a pretext to search.

Reasonableness of 4th not concerned with intent

Hypothecating about the reasonable officer would essentially
subjectify the test

Warrant Requirement
I. 4th Amendment Warrant Requirements:
PC supported by oath or affirmation
Particularly describe the place to be searched and the person or
things to be seized.

II. Searches of Persons, Houses, Papers, & Effects

1. Johnson v. United States: Did a police officer violate D’s 4th amendment
rights by searching her hotel room without a warrant after the officer
smelled a strong odor of burning opium and then knocked at the door and D
let him in?
HELD: Yes.
Taylor v. United States: Odors alone do NOT authorize a warrantless
search.

No question that there was PC to obtain a warrant

But the 4th amendment requires that the usual inferences which
reasonable men draw from evidence be drawn by a neutral and
 detached magistrate instead of being judged by the officer engaged in
the often competitive enterprise of ferreting out crime.

2. Katz: Warrantless searches are per se unreasonable

III. Seizures of Persons

1. Untied States v. Watson: Did an officer violate D’s 4th amdt. Rights when
he made an arrest without a warrant in a public place after believing that D
was in possession of stolen credit cards?
HELD: No, officers have the right to arrest in public without a warrant so
long as they have PC.
Carroll v. United States: Usual rule is that a police officer may arrest
without a warrant one believed by the officer upon probable cause to
have been guilty of a felony

Arrest was valid because the officer had PC to belive that D had
committed a felony

Never required a warrant to make an arrest for a felony so long as

there’s PC
Officers may still seek warrants where practicable to do so.

Arrest Location:
Public place = don't need a warrant (Watson)
Private place = need a warrant (Payton)

3. County of Riverside v. McLaughlin: PC determination made within 48

hours of arrest ordinarily will comply with promptness requirement

4. Atwater v. City of Lago Vista: Does the 4th prohibit a warrantless arrest
for a minor criminal offense such as a misdemeanor seatbelt violation
punishable only by a fine?
HELD: No, if an officer has PC to believe that an individual has committed
even a very minor criminal offense in his presence, he may, without violating
the 4th, arrest the offender.
Warrantless arrests have been part of Anglo-American jurisprudence
for hundreds of years.

No difference between fine-only and jail-able offenses

Impossible sometimes for an officer to know the penalty
scheme in the field

No question that officer had PC to arrest

5. Virginia v. Moore: Did a police officer violate the 4th when he arrested D
based on PC to believe that D had broken the law, but state law prohibited
arrest for this particular misdemeanor?
HELD: No, warrantless arrest for any crimes committed in the presence of an
arresting officer are reasonable under the 4th, and state law requirements in
addition do not alter the 4th amendment’s requirements.
When an officer has PC to believe that one has committed even a
minor offense in his presence, the balance of public and private
interests is not in doubt, and the arrest is reasonable

States can impose greater protections, but that does not affect the 4th
amendment.

IV. Issuance, Content, & Execution of Warrants

1. United States v. Grubbs: Is an anticipatory search warrant invalid because
the property owner was not given the affidavit that contained the condition
precedent to the warrant taking effect along with the copy of the warrant?
HELD: No, property owners needn’t receive the warrant at all.
Anticipatory search warrant: a warrant based upon an affidavit
showing PC that at some future time (but not presently) certain
evidence will be located at a specific place.
Usually subject to a condition precedent called a “triggering
condition” other than the passage of time

All warrants are in a sense anticipatory

Particularity requirement only requires particularity in the places to be

searched or the things to be seized—nothing more

Triggering condition needn’t be in warrant because the warrant

doesn't have to set forth the magistrate’s basis for finding PC

2. Problem: Anticipatory warrant with location “to be identified by Trooper

Sullivan prior to execution of the warrant”
Location is NOT specific enough—otherwise it’s a general warrant
Magistrate has to know exact location before the search begins

3. Problem: Scope of warrant: “the persons and vehicles of any other

subjects at the residence after the signing of the search warrant”
 Not particular enough—need to know exactly which cars/people
No PC to believe that every person/vehicle at the residence has drugs
in them
4. Grah v. Ramirez: Search warrant issued by magistrate was properly
based on PC but the warrant did not cross-reference the supporting affidavit
containing description of contraband to be seized.

5. Maryland v. Garrison: A reasonable mistake about the place to be

searched will not invalidate a warrant
Need to allow some latitude in executing warrants.

A. Neutral & Detached Magistrate: Not within the text of the 4th
amendment but required nonetheless

(1) Must not receive quid pro quo compensation for issuing warrants
(2) Must be capable of determining whether PC exists (clerks probably
OK)

B. Knock & Announce Rule

1. Wilson v. Arkansas: Does an officer have to knock and announce his
presence before kicking in a door to a house for which he has a valid search
or arrest warrant?
HELD: Maybe—K&A is a factor in the reasonableness requirement
In some circumstances, an officer’s unannounced entry into a home
might be unreasonable under the 4th amendment

Exceptions:
Under circumstances presenting a threat of physical violence
Where officers are apprehending an escaped prisoner
Where officers have reason to believe that evidence would be
likely destroyed if advance notice is given.
No suppression remedy for K&A violations

2. Richards v. Wisconsin: Categorical exception to the K&A rule for felony

drug investigations is too broad

3. United States v. Ramirez: Excessive or unnecessary destruction of

property in the course of a search may violate the 4th amendment even
though the entry itself is lawful and the fruits of the search are not subject
to suppression (claim for damages)

4. United States v. Banks: Kicking down a door after waiting 15 to 20

seconds after knocking is not unreasonable.
5. Reasonable Searches Without Warrants
I. Searches Incident to Arrest
A. Of Immediate Area
1. Chimel v. California: Did a search of D’s entire house including closed
desk drawers following his valid arrest amount to an unreasonable search
under the 4th amendment?
HELD: Yes, the search was unreasonable because it far exceeded D’s person
and immediate area.
When an arrest is made, it is reasonable for the arresting officer to
search the person arrested for weapons and evidence and the area
“within his immediate control,” i.e., the area into which an arrestee
might reach in order to grab a weapon or evidentiary items.

Wingspan Rule: Reasonable search incident to arrest must be within

the area into which a person might reach.

B. Of Person
1. United States v. Robinson: Was a search of a crumpled up cigarette pack
in D’s pocket following D’s lawful arrest justifiable as a seach incident to
arrest?
HELD: Yes, in the case of lawful custodial arrest, a full search of the person
is not only an exception to the warrant requirement, but it is also a
reasonable search under it.
Searches incident to arrest are justified by the need to protect officers
against concealed weapons and to preserve evidence on an arrestee’s
person for trial
Immaterial that the officer has no PC to believe that D has
drugs on his person
Doesn't extend to body cavaties
Purses are generally included

C. Of Vehicle
1. New York v. Belton: May a police officer search the passenger
compartment of a vehicle and containers inside it without a warrant as
incident to a valid arrest of its occupants?
HELD: Yes. When a police officer has made a lawful custodial arrest of the
occupant of a vehicle, he may, as a contemporaneous incident of the arrest,
search the passenger compartment of that vehicle.

Bright-Line Test: officers may search the entire passenger

compartment including closed containers because they are necessarily
within the reach of the occupants.
 However, after Gant, Belton is limited to its facts, i.e., where the
arrestees are not handcuffed and could conceivably reach into the
vehicle.

2. Arizona v. Gant: May a police officer properly search the passenger

compartment of a vehicle and its contents as a warrantless search incident
to arrest if the arrestees are secured and cannot possible reach any of the
contents of the vehicle?
HELD: No. The police are authorized to search a vehicle incident to a recent
occupant’s arrest only when the arrestee is unsecured and within reaching
distance of the passenger compartment at the time of the search.
Exception: when it is reasonable to believe that evidence relevant to
the crime of arrest might be found in the vehicle, a search incident to
arrest of the vehicle is justified.
Not just mere traffic violations, however.

3. Payton v. New York: May a police officer enter a private residence w/o a
warrant and with force if necessary in order to make a routine felony arrest,
even if allowed by state law?
HELD: No.
Absent exigent circumstances, a warrantless entry into a home to
search for weapons or contraband is unconstitutional even when a
felony has been committed and there is PC to believe that
incriminating evidence will be found therein
PC determination must be made by neutral and detached
magistrate (i.e., the officer would be asking/getting a warrant if
PC was found)
Need a warrant to arrest in the home (without exigent circumstances)
Watson only allows warrantless arrest in public places (e.g., right
outside one’s door)

II. Exigent Circumstances-

--Have a good answer to: Why didn't you get a warrant?
A. Hot Pursuit
1. Warden, Maryland Penitentiary v. Hayden: Is a comprehensive search of a
residence without a warrant a violation of the 4th if an armed robbery had
just occurred and police received a tip that the alleged robber had just
entered the house in question?
HELD: No. The exigencies of the situation made the warrantless search for
the robber and weapon imperative.
The 4th amendment does not require police officers to delay in the
course of an investigation if to do so would gravely endanger their
lives or the lives of others
 Thorough search was necessary to find any weapons or evidence

2. Welsh v. Wisconsin: Unreasonable warrantless search of D’s home when

the underlying offense was extremely minor.

3. Brigham City, Utah v. Stuart: The need to protect persons who are
seriously injured or threatened with such injury inside a house justifies a
warrantless entry.

B. Vale v. Louisiana: May police officers search a house as incident to arrest

if D was arrested outside the house on the front steps for allegedly selling
narcotics?
HELD: No.
For a search incident to arrest of a home to be valid, the arrest must
occur inside the home, not outside.

An arrest on the street can’t provide its own exigent circumstances to
justify a warrantless search of the arrestee’s house.

C. Illinois v. McArthur: Warrantless seizure of premises (i.e., not allowing D

back into the trailer until the warrant was issued) was not per se
unreasonable because the restraint was tailored to the need.
Since the officer didn't enter, the intrusion upon the privacy interest
was relatively minor and outweighed by the law enforcement interest
at stake.

Doorway is a public place.

D. Steagald v. United States: Police have a valid arrest warrant for D, but
he’s not in his own home. Arrest warrant will allow officers to forcibly enter
D’s own hoe but NOT someone else’s home.
Police forcibly enter the 3rd party’s home without a warrant and find
contraband = evidence is suppressed.

E. Pearson: Undercover agent identifying himself to create exigent

circumstance is not valid.

III. Vehicle & Container Searches

A. Vehicle Searches Based On PC
1. Chambers v. Maroney: Is a warrantless seizure of a vehicle unreasonable
under the 4th if officers had PC to believe that the fruits & instrumentalities
of crime would be found inside?
HELD: No. There is no constitutional difference between a warrantless search
of a vehicle and a warrantless seizure (both are valid under 4th with PC)
 Cars are moveable, so if a search is to be done, it must be done
immediately or risk loosing the F&I of crime.
Need PC to believe that the F&I of crime will be found inside,
however.

Reason for exception: if the police had to get a search warrant, they’d
have to seize the car so that it wouldn't be lost. However, that seizure
without a warrant would be violation of the 4th = catch 22
mobility of automobiles
lessened expectation of privacy due to pervasive regulation

Vehicle Searches: PC = Search

May search entire vehicle, including trunk

Rare Exception: Police see a person put out a paper bag in the trunk
that they have PC to believe contains drugs, but they know the rest of
car is clean.
Thus, PC to search bag ONLY
Cannot search the rest of the car- just the container

2. State v. Wallace: Positive dog sniff alerting to a car gives PC to search the
car but does not give PC to search the passengers in the vehicle. The officer
can have the dog sniff the passengers, however, and that wont be a search.

3. California v. Carney: Is a warrantless search of a fully-mobile motor home

reasonable under the vehicle exception to the 4th amendment warrant
requirement if the officers have PC to believe that the F&I of crime will be
found inside?
HELD: Yes.
Motor homes are mobile and readily moveable, so the Carroll
exception applies.

Immaterial that the motor home may be used as a residence

Factors if Not Mobile:

Location (on private property not readily accessible to public
road)
Mobility (up on blocks, tires flat/missing)
License plate
Connected utilities

Attacking Exception: to attack vehicle exception, need to attack

either prong: mobility or lessened expectation of privacy
4. California v. Acevedo: Does the 4th require the police to obtain a warrant
to open a paper bag in a moveable vehicle simply because they lack PC to
search the entire car?
HELD: No. The police may search an automobile and the containers within it
where they have PC to believe contraband or evidence is contained.
If there’s PC to believe that the vehicle contains contraband, the
police may search the entire vehicle + any closed containers therein
HOWEVER, if there’s only PC to search the containers, police
CANNOT search the whole car.
5. Problem: Police had PC to believe that a car contained heroin so they
seized it. However, the search became unreasonable because they searched
the car 10 times without a warrant
You only get one shot

B. Container Searches
1. United States v. Chadwick: Is a warrantless search of a footlocker that
the police have PC to believe contains the F&I of crime valid under the 4th if
it has been seized by police and under their exclusive control?
HELD: No. The footlocker is protected by the 4thAmdt. Warrant Clause, so it
may only be searched with a warrant or under exigent circumstances.
Expectation of privacy manifested by locking the footlocker
Just because it’s mobile doesn't mean it falls under the vehicle
exception because luggage is intended as a repository of personal
effects.
Not incident to arrest because the search was remote in time and
place from arrest
No danger that the arrestee might gain access to it

Hypo: if police had arrested the individuals on the sidewalk before

the footlocker was loaded into the car, the police would need a warrant
to search it
Unless it was abandoned, then police cannot search without a
warrant

IV. Consent Searches

A. Showing Required
1.Schneckloth v. Bustamonte: Must an individual be advised of his right to
refuse consent to a search required by police in order to be reasonable
under the 4th?
HELD: No. The prosecution must only show that the consent was in fact
voluntarily given and not the result of duress or coercion, express or implied.
It would be too burdensome to have to prove knowledge of the right
to refuse consent
 Knowing and intelligent waivers are required to preserve fair trials,
but 4th Amdt. protections are entirely different

Holding: when a subject of search is not in custody and the state

attempts to justify a search on the basis of his consent, the 4th
requires that the consent was in fact voluntarily given and not the
result of duress or coercion, express or implied.
Voluntariness is a question of fact to be determined from all the
circumstances, and while the subject’s knowledge of the right to
refuse is a factor, the prosecution needn’t demonstrate
knowledge of this right

2. United States v. Watson: The prosecution doesn't have to prove

knowledge of the right to refuse consent even when an individual is in
custody.

V. “Plain View” Doctrine

1. Horton v. California: Is the warrantless seizure of evidence of crime in
plain view prohibited by the 4th if the discovery was not inadvertent?
HELD: No. Even though inadvertence is characteristic of most legitimate
“plain view” seizures, it is not a necessary condition.
Plain view doctrine: justifies the warrantless seizure of evidence in
plain view, but NOT a search because something in plain view is not
searched
Warrantless searches are still per se unreasonable (Katz)

Additional requirements for plain view doctrine:

The incriminating character must be “immediately apparent”
Officer must be lawfully located in the place from which the
object can be plainly seen and must have a lawful right of access
to the object itself

No requirement of inadvertence because evenhanded law

enforcement is best achieved through objective standards of conduct
rather then depending on the officers’ state of mind

“Particularity” concerns are eschewed by the issuance of the warrant

that ipso facto must be particular

2. Arizona v. Hicks: May police conduct a “search” greater than a cursory

examination of an item found in plain view during a lawful search of the
premises in order to find out more information about the item?
HELD: No. Not unless police have PC to search the item.
 Recording the serial number off of a radio was a “search” because the
officer was not able to see the serial number without turning the radio
over.

Need probable cause in order to search an item found in plain view

PVD is a matter of convenience for the officers but it does not
obviate the underlying PC requirement

6. Balancing Approach to 4th Amendment Reasonableness

I. Stops, Frisks, & the Right to Be Secure in One’s Person, House, &
Effects
A. Constitutional Doctrine
1. Terry v. Ohio: Is it always unreasonable for a police officer to seize a
person and subject him to a limited search for weapons unless there is PC
for an arrest?
HELD: No. Where a police officer observes unusual conduct which leads him
to reasonably conclude that criminal activity is afoot and that the persons
with whom he is dealing may be armed and presently dangerous, he is
entitled to protect himself and others in the area to conduct a carefully
limited search of the outer clothing of such persons to discover weapons.
Seizure: when an officer, by means of physical force or show of
authority, has in some way restrained the liberty of a citizen.

Balancing Approach: Police conduct under certain circumstances is

not conducive to the warrant requirement because swift actions and
on-the-spot observations are necessary
Balance the need to search/seize against the intrusion of the
constitutionally protected interests of the private citizen.

Stop and Frisk = search/seizure

Police undoubtedly have a legitimate interest in crime prevention and

detection that justify them in approaching someone and making
inquiries

There is an immediate interest of the police in taking steps to assure

himself that the person with whom he is dealing is not armed
When an officer is justified in believing that the individual is
armed and presently dangerous, it is only reasonable that he be
able to take the necessary measures to neutralize any threat

Police may be able to point to specific articulable facts which,

taken together with rational inferences drawn from them,
reasonably warrant intrusion
 Standard: REASONABLE SUSPICION- a reasonably prudent person
would perceive danger in the situation

Justification is solely officer safety, so it may be a search for weapons

only

II. Seizures of Persons (Arrest vs. Stop)

1. United States v. Mendenhall: Was an airline passenger “seized” under the
4th when 2 DEA agents confronted her upon deplaning and asked her for her
ticket and ID and then asked if she would accompany them to an office for
further questioning.
HELD: No.
No objective reason for D to believe that she was not free to end the
conversation and proceed on her way

Totality of the circumstances shows that D voluntarily consented to

accompanying the agents to the office

Test: Whether a reasonable person under the circumstances would

feel free to terminate the encounter and go about his business
Almost immaterial whether particular person felt so able

2. Florida v. Bostick: Is a categorical per se rule that an impermissible

“seizure” results when the police mount a drug sweep on a bus during a
scheduled stop and question boarded passengers without articulable
suspicion for doing so and thereby obtain consent to search the passengers’
bags consistent with the 4th?
HELD: No.
No seizure results when the police ask questions of an individual, ask
to examine individual’s ID, and request consent to search his luggage
so long as the officers don't covey a message that compliance is
required.

Standard: Whether a reasonable person would feel free to decline the

officers’ requests or otherwise terminate the encounter
“Reasonable person” = reasonable innocent person

Basically the officers need to point a gun at someone to vitiate

consent

Immaterial that a person cannot leave the bus

Basically all bus sweeps will be upheld, but its fact-specific inquiry
3. Florida v. J.L.: Did officers have reasonable suspicion to believe that D
would be carrying a gun when they received an anonymous tip that a young,
black male in a plaid shirt at a certain bus stop was carrying a gun?
HELD: No. An anonymous top lacking indicia of reliability of the kind
contemplated in White does not justify a stop and frisk whenever and
however it alleges the illegal possession of a firearm
No moderate indicia of reliability like in White

Reasonable suspicion requires that a tip be reliable in its assertion of

illegality, not just in its tendency to identify a determinate person
No per se exception for firearms

Anonymous tip (without more)? Reasonable suspicion

4. Hiibel v. 6th Judicial District Court of Nevada: A state law requiring a

suspect to disclose his name in the course of a valid Terry stop is consistent
with the 4th amendment

5. Illinois v. Wardlow: May a police officer perform a Terry stop when he

sees an individual flee from the scene when police drive by a high-crime
area?
HELD: Yes.
High-crime area + Flight = Reasonable suspicion

Flight is not “going about one’s business”

III. Special Balancing Contexts

A. Drug Testing
1. Vernonia School Dist. V. Acton: Suspicion-less drug testing of high school
and grade school students who wished to participate in interscholastic
activities was reasonable because the intrusion in collecting the samples was
slight while the government interest in deterring drug use was “important
enough” to justify the search

2. Board of Education of Independent School Dist. v. Earls: Suspicion-less

urinalysis of middle and high school students wishing to participate in any
extracurricular activities was reasonable
Not just testing all students as that would be impermissible

There’s still some choice to not be tested, i.e., don't participate

7. Exclusionary Rule
I. Sources of and Rationales for the Exclusionary Rules
1. Weeks v. United States: Should the trial judge have excluded evidence
obtained from a search of D’s home conducted in violation of the 4th?
HELD: Yes.
Exclusionary Rule: if letters and private documents could be seized by
the government and used in evidence against and accused, the
protection of the 4th would be of no value and might as well be written
out of the Constitution = 1st statement of the Exclusionary Rule
Evidence here was obtained in direct violation of D’s
constitutional rights = prejudicial error committed

Weeks applies to federal government only (Mapp extends this

to the states)

2. Mapp v. Ohio: May evidence obtained from an unconstitutional search and

seizure be admitted against a criminal D in state court?
HELD: No.
Exclusionary Rule: All evidence obtained by searches and seizures in
violation of the Constitution is inadmissible in state court
Since the 4th has been deemed enforceable against the States
through the 14th amendment due process clause, so is the
Exclusionary Rule

Rule ensures that no man will be convicted on unconstitutional

evidence

Makes good sense too, as nothing can destroy a government

faster than its own disregard for its laws

“Fruits” Doctrine: IF the initial conduct violated the 4th, then all
“fruits” of the search/seizure will be excluded from evidence unless
sufficiently purged of the taint

II. Scope and Exceptions to the Exclusionary Rule

A. “Standing” Limitation
1. Alderman v. United States: Suppression of the product of the 4th
amendment violation can be successfully urged only by those whose rights
are aggrieved solely by the introduction of the damaging evidence
4th amendment rights are personal rights and cannot be asserted
vicariously
2. Rakas v. Illinois: May passengers in an automobile that was the subject of
an unconstitutional search assert the exclusionary rule to exclude the
evidence obtained from that search against them?
HELD: No.
No valid suppression claim: Ds had neither a property interest nor a
possessory interest in the car, no in the property seized
The fact that they were “legitimately on the premises” is
insufficient to determine that their 4th amendment rights were
violated

Property interests are not dispositive, however, they can be

overcome by the totality factors (e.g., who was the driver, who’s
on the title, sleeping in the car, caring for the car, spare key,
etc.)

Abandon “standing”: Better analysis in “standing” cases is to focus on

the extent of a particular D’s rights under the 4th, rather than relying
on any separate but intertwined concept of “standing”
Question is whether the challenged search or seizure violated a
D’s 4th amendment rights who seeks to exclude the evidence
obtained during it

Illegality in Traffic Stops

Illegal stop: All passengers have a suppression claim (Brendlin)
Need to ask if the initial illegality is the proximate cause of
the discovery of evidence

Illegal search: Affects ONLY those with possessory interests,

NOT passengers (Rakas)

3. Minnesota v. Olson: In general, an overnight guest has a legitimate

expectation of privacy in the host’s home despite not having a legal interest
in the premises
Question of intent of the owner and intent of the guest to stay the
night (toothbrush, clothes there, spent the night before, spend nights
at other people’s homes frequently, etc.)

Don't actually have to spend the night, just have the requisite intent
to stay the night

Act of sleeping puts someone in a particularly vulnerable position

4. Simmons v. United States: A D’s admission of ownership of contraband at
a suppression hearing in order to establish “standing” cannot be used as
substantive proof of guilt against him at trial
No longer need “automatic standing” rule when one is charged with
possession of contraband

“What happens in Vegas Stays in Vegas” Rule

5. Minnesota v. Carter: Does a temporary houseguest who is not staying

overnight have a legitimate expectation of privacy such that he can object to
an allegedly unreasonable search of the house?
HELD: No.
Olson doesn't apply: While an overnight guest may claim a legitimate
expectation of privacy, one who is merely present with the consent of
the house owner may not
Expectations of privacy are diminished when premises are used
just for commercial transactions

III. Exceptions to the Rule

A. “Independent Source” Doctrine
1. Murray v. United States: Must evidence obtained through a legal search
be suppressed if an illegal search was conducted prior to the legal one but
the knowledge gained from the illegal search was not used to obtain the
warrant?
HELD: No, probably not
Exclusionary Rule: Prohibits introduction into evidence of tangible
material seized during an unlawful search
Derivative Evidence: The Exclusionary Rule also prohibits the
introduction of derivative evidence, both tangible and
testimonial, that is the product of the primary evidence, or that
is otherwise acquired as an indirect result of the unlawful search
up to the point at which the connection with the unlawful search
becomes attenuated as to dissipate the taint

Independent Source Doctrine: Allows into evidence all

information acquired in a fashion untainted by the illegal
evidence-gathering activity
Facts X and Y are obtained form an illegal search, but fact
Z is from an independent source. Fact Z is admissible

B. “Inevitable Discovery” Doctrine:

1. Nix v. Williams: Should the Inevitable Discovery Doctrine apply to allow
admission of evidence that would have been discovered if search teams
continued as they would have if D had not led the police to the victim’s
body?
HELD: Yes.
Inevitable Discovery Doctrine: IF the prosecution can establish by a
preponderance of the evidence that the information ultimately or
inevitably would have been discovered by lawful means, then the
evidence should be admitted into evidence
Excluding such evidence would put the police in a worse
position than they would have been in, which is contrary to the
interests of society

No absence of bad faith requirement: There is no requirement that

the prosecution must prove the absence of bad faith
Such a requirement would place courts in the position of
withholding from juries relevant and undoubted truth that would
have been available absent unlawful police conduct.

Nix v. Williams MODERNLY: Inevitable Discovery Doctrine here

doesn't matter because derivative evidence isn’t suppressed under
Miranda violations (Patane), just the statement from the case-in-chief

C. “Attenuation” Doctrine:
1. Wong Sun v. United States: Did release from custody and a 2-week
period sufficiently attenuate the taint of the unlawful police conduct in order
for the later, voluntary statements to be admissible?
HELD: Yes.
Statement = “Fruit”: Verbal evidence which derives so immediately
from an unlawful entry and an unauthorized arrest is no less the “fruit”
of official illegality than the more common tangible fruits of
unwarranted intrusion

Statement tainted: It is unreasonable to infer that Toy’s response was

sufficiently an act of free will to purge the primary taint of the unlawful
invasion
No independent source and connection with the unlawful
activity is not so attenuated as to dissipate the taint

Wong’s Statement: Because Wong Sun had been released on his own
recognizance and went to Agent Wong voluntarily, the connection
between the arrest and the statement had become so attenuated as to
dissipate the taint

Attenuation Doctrine: (Purging the taint) Whether, granting

establishment of primary illegality, the evidence sought to be admitted
 has come at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint

2. Brown v. Illinois: Did Miranda warnings sufficiently attenuate the taint of

an illegal arrest in order for statements resulting from it to be admissible
into evidence?
HELD: No.
Miranda warnings insufficient: If Miranda warnings by themselves
were held to attenuate the taint of an unconstitutional arrest,
regardless of how wanton and purposeful the 4th amendment violation,
the effect of the Exclusionary Rule would be substantially diluted
Miranda warnings have never been held to be a means of
remedying and deterring 4th amendment violations

“Sufficiently an Act of Free Will” Test:

Temporal proximity between arrest and the confession

Presence of intervening circumstances (e.g., release from

custody)

Purpose and flagrancy of the police misconduct

D. “Good Faith” Exception:

1. United States v. Leon: Should the 4th amendment Exclusionary Rule be
modified so as not to bar the admission of evidence in reasonable, good-
faith reliance on a search warrant that is subsequently held to be defective
because there was no PC?
HELD: Yes.
Good-Faith Exception: Evaluation of the costs and benefits of
suppressing reliable physical evidence seized by officers reasonably
relying on a warrant issued by a neutral and detached magistrate
leads to the conclusion that such evidence should be admissible in the
prosecution’s case-in-chief
Reliance upon the warrant will normally establish that the
officer acted in good faith

Reliance must be objectively reasonable

Exclusion inappropriate: No basis for believing that exclusion of

evidence seized pursuant to a warrant will have a significant deterrent
effect on the issuing judge or magistrate, as they have no stake in the
outcome
Exclusionary Rule is designed to deter police misconduct rather
than to punish the errors of judges and magistrates
 When exceptions won’t apply:
Lies in affidavit
Absolutely no PC (e.g., uncorroborated anonymous tip (Florida
v. J.L.))
No particularity (facially deficient)
Grah v. Ramirez: Space for a description on warrant was
left completely blank
HELD: No good-faith exception because warrant was so
facially deficient that no reasonable officer could rely on it

2. Massachusetts v. Sheppard: Did officers reasonably rely on a search

warrant issued by a judge that was defective because it included an
authorization to search for material for which officer had no PC and it didn't
incorporate the supporting affidavit?
HELD: Yes.
Reasonable belief: no dispute that the officers believed that the
warrant was valid, and there was an objectively reasonable basis for
the officers’ mistaken belief
Reasonable police officer could conclude that the warrant
authorized a search for those items contained therein

Officers are not required to disbelieve a judge

8. Confessions
I. Interrogation Outline
1. Voluntary?
If no, then:
Involuntariness due to police misconduct?
If yes, suppress
If no, continue
If yes, then:
2. In Custody?
If no, then admit
If yes, then:
3. Interrogated
If no, then admit
If yes, then:
4. Adequately Warned?
If no, then:
Public safety exception?
If no, then suppress
If yes, then:
5. Waived? (does not have to be express)
 If no, then express
If yes, then admit.
6. Invoked? (does not have to be express)
If yes, then:
7. Silence or counsel?
If silence, did police honor the invocation? (stop, lay off for 2hrs., re-
warn?)
If yes, then admit
If no, then suppress.

If counsel, did police stop questioning until lawyer was present?
If yes, then admit
If no, then did D re-initiate?
(or was D released from custody and allowed to consult
attorney, and did police wait 2 weeks {Shatzer v. Maryland}?

II. Due Process of Law & Confessions

A. Overbear One’s Will
1. Ashcraft v. Tennessee: is a confession obtained through constant
questioning for over 36 hours without letting D sleep or leave the room,
valid against D? NO.
Not voluntary
Inherently coercive
D’s will was overborne
Involuntary statements: = the product of duress (use of threat
or force)
Power imbalance between the suspect and police
Secrecy so courts don't know what goes on in there.

B. Totality Test for Voluntariness

1. Spano v. New York: was a confession voluntarily obtained if D repeatedly
asked to speak with his attorney but wasn't allowed and D refused to speak
until his friend/new cop convinced him to talk?
HELD: No.
Balancing of interests: state’s interest in prompt and efficient law
enforcement with interest in preventing the rights of individuals from
being abridged through unconstitutional methods of law enforcement.
Police must obey the law while enforcing it.

Totality of the circumstances: D was overborne by official pressure,

fatigue, and sympathy.
Not native born
Junior high education
 Off-hours interrogation
Mounting fatigue
4 attempts by his “friend” to force confession

DPC does not prohibit police from lying while interrogating suspects
Police can lie about finding forensic evidence supposedly
implicating a defendant

2. Arizona v. Fulminante: After D was having a “rough time” in prison, a

prison informant offered D protection from the other inmates if he told him
about the murder of D’s stepdaughter
Holding: D’s confession of the murder was coerced because D’s will
was overborne by the credible threat of physical violence if he did not
confess

C. Police Misconduct:
1. Colorado v. Connelly: Was a confession voluntarily given if D blurted it out
to police officers who did not coerce him at all but it later turns out that D
was suffering form psychosis?
HELD: Yes. Coercive police activity is a necessary predicate to finding a
confession not “voluntary” within the meaning od the DPC
No due process claim: Absent police conduct causally related to the
confession, there is simply no basis for concluding that any state actor
has deprived a criminal D of due process of law
Need an element of police overreaching

State of mind not dispositive: while mental condition is surely

relevant to an individual’s susceptibility to police coercion, mere
examination of the confessant’s state of mind can never conclude the
due process inquiry

Exclusionary rule inappropriate: the purpose of excluding evidence

seized in violation of the Constitution is to substantially deter future
violations of it, but that is inapplicable where police conduct is not at
issue

Connelly: Will must be overborne by police misconduct- it has to be

police misconduct
By something police did, and
Not something D did himself or a 3rd party did

Police misconduct overreaching

 Could still be caused by police, but if there’s no
misconduct, it’s not a violation of the DPC

Exclusionary rule not appropriate when there’s no police

misconduct

III. Privilege Against Self-Incrimination & Confessions

A. Constitutional Basis
1. Miranda v. Arizona: Must a suspect be informed of his constitutional rights
against self-incrimination and assistance of counsel and give a voluntary and
intelligent waiver of those rights as a necessary precondition to police
questioning and the giving of a confession?
HELD: Yes.
Need for limitation: unless a proper limitation upon custodial
interrogation is achieved, there can be no assurance that black police
practices of this nature will be eradicated in the foreseeable future
Unless adequate protective devices are employed to dispel the
compulsion inherent in custodial surroundings; no statement
obtained from the D can truly be the product of his free choice

5th Amendment applies: all the principles embodied in the privilege

against self-incrimination apply to informal compulsion exerted by law
enforcement officers during in-custody questioning
5th amendment privilege applies in all settings where the
freedom of the suspect is curtailed in any significant way

Does NOT apply to general on-the-scene questioning

Required admonition of rights:

1. Suspect must be informed in clear and unequivocal language
that he has the right to remain silent
Absolute prerequisite to overcoming the inherent
pressures of the interrogation atmosphere

Warning will show that one’s interrogators are prepared

to recognize his privilege should he choose to exercise it

2. Anything said can and will be used against the individual in

court
It is only through awareness of these consequences that
there can be any assurance of real understanding and
intelligent exercise of the privilege
 3. Individual has the right to consult with counsel and have him
present during any questioning if the individual so desires
Assistance of counsel can mitigate the dangers of
untrustworthiness

Presence of a lawyer can guarantee that the accused

gives a fully accurate statement to the police

4. If the individual is indigent, a lawyer will be appointed to

represent him
Without this additional warning, the admonition of right to
consult with counsel would often be understood as
meaning only that he can consult with a lawyer if he has
one or has the funds to obtain one

Financial ability of the individual has no relationship to

the scope of the rights involved here
Prophylactic: Procedural measure put into place to protect
suspects’ rights
Rights are a prerequisite to the admissibility of
statements

So violation of Miranda does NOT necessarily mean that

5th amendment rights were violated

Statements taken in violation of Miranda cannot be used

in the State’s case-in-chief (but everything might be
suppressed if due to physical coercion)
But derivative evidence can be used (United States
v. Patane)

Statement can be used for impeachment (Harris v.

New York)

B. Custody:
1. Berkemer v. McCarty: Was a D taken into “custody” and thus his
statements barred from evidence per Miranda if he was detained at a traffic
stop and subjected to standard questioning and a balancing test?
HELD: No.
Miranda v. Arizona: By custodial interrogation, we mean 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
 Traffic stop ? custody: While a traffic stop does significantly curtail the
freedom of action of the driver and passengers in a detained vehicle, a
traffic stop is different from actual custody
Presumptively temporary and brief, unlike station house
interrogation
Mostly public to some degree
Atmosphere is substantially less police-dominated
More like Terry stops, which are not subject to Miranda

Black Letter Law: There is no Miranda requirement for questions

asked during traffic stops or Terry stops because, while they are
“seizures” for 4th amendment purposes, they are not “custodial” for 5th
amendment purposes

C. Interrogation:
1. Rhode Island v. Innis: Was an individual “interrogated” under Miranda if
the 2 officers in the police car said that it would be unfortunate for a little
handicap girl to die by finding a sawed-off shotgun hidden by the individual?
HELD: No.
“Interrogation” under Miranda: Miranda safe-guards come into play
whenever a person in custody is subjected to either express
questioning or its functional equivalent
Express questioning, and
Words and actions that the police should have known are
reasonably likely to elicit an incriminating response

D not “interrogated”: D was not interrogated within the meaning of

Miranda because it cannot be said that the officers should have known
that their conversation was reasonably likely to elicit an incriminating
response from D
No indication D was peculiarly susceptible to an appeal to his
conscience
Not unusually disoriented or upset
Nothing more than a few offhand remarks

Black Letter Law: “Interrogation,” for purposes of the “custodial

interrogation” test, means any act, verbal or non-verbal by the police
that they should know is reasonably likely to elicit incriminating
response from the suspect. It’s not a subjective test on either side
On the cop’s side, it’s based on what a reasonable cop would
think under the circumstances

On the suspect’s side, it’s based on the facts that a reasonable
officer would be aware of
2. Illinois v. Perkins: Does an undercover law enforcement officer have to
give Miranda warnings to an incarcerated suspect before asking him
questions that may elicit an incriminating response?
HELD: No.
Rule: Conversations between suspects and undercover agents do not
implicate the concerns underlying Miranda
No police domination or compulsion because the individual does
not know that he is speaking with an officer

Miranda forbids coercion, not strategic deception by taking

advantage of the suspect’s misplaced trust

D. Waiver:
1. North Carolina v. Butler: Must officers obtain an express waiver from a D
of his Miranda rights as a necessary condition to the admissibility of a
subsequent statement?
HELD: No.
Question is not one of form but rather whether D in fact knowingly
and voluntarily waived his Miranda rights
Mere silence is not enough, however

In some cases, waiver can be inferred from the actions and words of
the person interrogated

2. Colorado v. Spring: Must a suspect be informed of all of the possible

subjects of the interrogation as a necessary precondition to his waiver of his
Miranda rights being voluntary and knowing?
HELD: No. A suspect’s awareness of all the possible subjects of questioning
in advance of interrogation is not relevant to determining whether the
suspect voluntarily, knowingly, and intelligently waived his 5th amendment
privilege
No doubt that the waiver D signed was voluntary

Court has never held that mere silence by law enforcement officials as
to the subject matter of an interrogation is “trickery” sufficient to
invalidate a suspect’s waiver

Valid waiver does not require that an individual be informed of all info
“useful” in making his decision or that might affect his decision

3. Moran v. Burbine: Waiver must be “knowing, intelligent, and voluntary,”

i.e., the product of free and deliberate choice rather than intimidation,
coercion, or deception
 D’s waive was valid, as the interactions between the police and an
attorney have no impact on the validity of D’s waiver

Police are not required to supply a suspect with a flow of info to help
him calibrate his self-interest in deciding whether to speak or stand by
his rights.

4. Colorado v. Connelly: While mental condition is surely relevant to an

individual’s susceptibility to police coercion, mere examination of the
confessant’s state of mind can never conclude the due process inquiry
So a drunk, high, in pain, or insane suspect can validly waive Miranda
rights

E. Invocation & Protections:

Waiver—Right to Remain Silent
North Carolina v. Butler: doesn't have to be express-waiver can
be inferred form the actions and words of the person
interrogated (Berghuis)
Waiver—Right to Assistance of Counsel
North Carolina v. Butler: Doesn't have to be express-waiver can
be inferred form the actions and words of the person
interrogated

Ambiguous “invocation”—Right to Remain Silent

Berghuis v. Thompkins: Right to remain silent must be
unambiguously and unequivocally invoked
Ambiguous “invocation”—Right to Assistance of Counsel
Davis v. United States: request for assistance of counsel must be
unambiguously and unequivocally invoked

Express Invocation—Right to Remain Silent

Michigan v. Mosley: must be “scrupulously honored,” i.e., stop,
wait 2 hours, re-Mirandize, re-question about a separate crime-
crime specific
Express Invocation—Right to Assistance of Counsel
Edwards v. Arizona: Not subject to further questioning until a
lawyer has been made available or the suspect himself re-
initiates the conversation – NOT crime-specific (AZ v. Roberson)

1. Right to Remain Silent

Michigan v. Mosley: Do police have to cease questioning forever after
a suspect invokes his right to remain silent on certain subjects during
questioning?
HELD: No.
 Miranda: If the individual indicates in any manner, at any time
prior to or during questioning, that he wishes to remain silent,
the interrogation must cease.

No per se rule—police don't have to refrain from questioning

forever, but they also may no resume after a momentary respite

Standard: Admissibility of statement depends on whether D’s

rights to cut off questioning was “scrupulously honored”
Invocation is crime-specific—police can still ask a suspect
about crimes other than the one for which he has invoked


Mosley Rule:
Police must stop upon invocation of right to remain silent
Wait about 2 hours
Can only resume questioning about another crime
((Re-Mirandize))

Berghuis v. Thompkins: Are police required to obtain an express

waiver of the right to remain silent as a necessary precondition to the
admissibility of un-coerced statements if the suspect was given his
Miranda rights and understands them?
HELD: No. A suspect who has received and understands his Miranda
rights and has not invoked these rights, waives the right to remain
silent by making an un-coerced statement to the police
Invocation: Right to remain silent must be unambiguously and
unequivocally invoked just like the Davis rule for right to
assistance of counsel
No express waiver needed per Butler

Implied waiver of right to remain silent: Miranda warnings + D

understands them + un-coerced statement = implied waiver

2. Right to Assistance of Counsel:

Davis v. United States: Must the police cease questioning of a suspect
if he makes and objectively ambiguous mention of consulting with
counsel?
HELD: No.
Suspect’s request for assistance of counsel must be
unambiguously invoked
Ambiguity cuts in favor of police re. invocation
 Must articulate his desire to have counsel present sufficiently
clearly that a reasonable police officer would understand the
statement to be a request for an attorney

Edwards v. Arizona: May the prosecution use a statement D made

after he invoked his right to assistance of counsel if the police didn't
provide him with counsel and started a second round of questioning?
HELD: No.
Rule: if a suspect requests counsel at any time during the
interview, he is not subject to further questioning until a lawyer
has been made available or the suspect himself re-initiates the
conversation
No more custodial interrogation
Innis rule (reasonably likely to elicit an
incriminating response)

That was initiated by the police

Causal conversation will not be taken as initiating
conversation

Exception: nothing stops the police from listening to

one who voluntarily volunteered statements

Minnick v. Mississippi: Is it necessary for police to refrain from

questioning D if he has invoked his right to counsel and did in fact
consult with counsel but counsel was not present in the interrogation
room?
HELD: Yes.
Edwards requirement that counsel be “made available” refers to
more than an opportunity to consult with an attorney outside the
interrogation room

Rule: When counsel is requested, interrogation must cease, and

officials may not re-initiate interrogation without counsel
present, whether or not the accused has consulted with his
attorney

Exception: An individual may still initiate a conversation by

himself

F. Exceptions to Miranda:
1. New York v. Quarles: Was an officer justified in questioning a D
immediately upon detention about the whereabouts of a gun that the officer
believed as missing without advising D of his Miranda rights in the name of
public safety?
HELD: Yes. The needs for answers in a situation posing a threat to public
safety outweighs the need for the prophylactic rule protecting the 5th
amendment’s privilege against self-incrimination
“Public Safety” Exception: There is a public safety exception to the
requirement of Miranda right be given before questioning
Does NOT depend on the officers subjective state of mind
Exception is sui generis- general danger to public safety =
exigent circumstances here
Classic Q: “Where is the victim”

Black Letter Law: No Miranda warnings are necessary as a condition

of admissibility for voluntary statements made during custodial
interrogation in circumstances where a reasonable police officer might
believe the question necessary to protect the safety of the public
(including the suspect and the officer)

2. Oregon v. Elstad: Does an initial failure to administer Miranda warnings

before questioning a suspect “taint” a subsequent voluntary, warned
confession that was given after Miranda warnings were given and waived?
HELD: No. A suspect who has once responded to unwarned yet un-coercive
questioning is not thereby disabled from waiving his right and confessing
after he has been given the requisite Miranda warnings
No excludable “fruits”: It is an unwarranted extension of Miranda to
hold that a simple failure to administer the warnings, unaccompanied
by any actual coercion or other circumstances calculated to undermine
the suspect’s ability to exercise his free will to taint the investigatory
process that a subsequent voluntary and informed waiver is ineffective
for some indeterminate period
Admissibility of any subsequent statement should turn solely on
whether it was knowingly and voluntarily made

Since there was no actual infringement of D’s constitutional

rights in the first instance, subsequent voluntary statement is
not excludable as the fruit of the poisonous tree

Subsequent statement voluntary: a careful and thorough

administration of Miranda warnings serves to cure the condition that
rendered the unwarned statement inadmissible

No “cat out of the bag” theory: Psychological impact of the voluntary
disclosure of a guilty secret doe not qualify as state compulsion and
 does not compromise the voluntariness of a subsequent informed
waiver

G. Miranda Revisited:
1. Dickerson v. United States: Was Miranda a constitutional decision such
that a statute enacted by Congress essentially overruling it is invalid?
HELD: Yes.
Miranda is a constitutional rule: Congress may not legislatively
supersede decisions interpreting and applying the Constitution
Began being applied to the states and continued that way
Court granted cert. to give concrete constitutional guidelines for
law enforcements agencies and courts to follow

Stare decisis weighs in favor of leaving Miranda alone

2. Missouri v. Seibert: Did midstream Miranda warnings serve to sufficiently

dissipate the taint of previous, unwarned police questioning if the 2 sessions
of questioning were essentially continuous and referred to each other?
HELD: No.
Warnings ineffective: It is likely if the interrogators employ the
technique of withholding warnings until after interrogation succeeds in
eliciting a confession, the warnings will be ineffective in preparing the
suspect for successive interrogation, close in time and similar in
content

Factors: Could the warnings effectively advise the suspect that he had
a real choice about giving an admissible statement in that juncture?
Basically, midstream warnings wont work (essentially overrules
Elstad)
Completeness and detail of questions and answers in 1st
round
Overlapping content
Timing and setting
Continuity of police personnel
Degree to which interrogator’s questions treated rounds
as continuous

Kennedy Concurrence: (the law) Exclusion appropriate only when the

police employ a 2-step interrogation technique deliberately calculated
to undermine Miranda

3. United States v. Patane: Does the failure to give a suspect Miranda

warnings require suppression of the physical fruits of the suspect’s unwarned
but voluntary statements?
HELD: No.
No suppression: Self-incrimination Clause is not implicated by the
admission into evidence of the physical fruits of a voluntary statement,
and thus there is no justification in extending the Miranda rule into this
content
Derivative evidence is admissible

No constitutional violation: Mere failure to give Miranda warnings

does not, by itself, violate a suspect’s constitutional rights
Exclusion of the unwarned statement is a complete and
sufficient remedy for any perceived Miranda violation

6th Amendment Right to Assistance of Counsel

II. Confessions and the 6th Right to Assistance of Counsel
1. Massiah v. United States:
Violated 6th amendment: D was denied the basic protections of the 6th
amendment guarantee of assistance of counsel when his incriminating
words were used against him at trial, which agents deliberately
elicited after D had been indicted and in the absence of D’s counsel.

“Deliberate elicitation”: term of the 6th amendment context for

violating D’s 6th amendment rights by eliciting an incriminating
statement post-indictment (similar to Innis “interrogation” definition
for Miranda).

6th amendment confession analysis:

1. Post attachment?
2. Waived in Miranda setting?
3. Counsel Present?
4. Deliberate elicitation?

2. Brewer v. Williams: Was it a violation of D’s right to assistance of counsel

when officers made statements in a car with him reasonably likely to elicit
incriminating responses from D in the absence of D’s attorney?
HELD: Yes.
Attachment of right: right to assistance of counsel attaches on the
state level post-complaint (after arrest that explains PC and charge
arrest was based upon)
(Fed-System = post-indictment)

Violation of 6th Amendment: D’s 6th amendment right to counsel was

violated
Arraignment = initiation of adversarial proceedings
 Christian burial speech = deliberate elicitation

3. Texas v. Cobb: 6th amendment right to assistance of counsel is offense-

specific
If D was charged with one offense and is represented by counsel, the
police can still question him in the absence of counsel about a separate
offense for which adversarial proceedings have not been initiated

II. 6th Amendment Right to Assistance of Counsel at Trial

1. Betts v. Brady: Does the 14th amendment DPC require the states appoint
counsel to represent indigent Ds in all criminal cases?
HELD: No.
Great majority of states do not require their courts to appoint counsel
to represent all Ds as a fundamental right essential to a fair trial

2. Gideon v. Wainwright: Should Betts v. Brady be overruled as being

inconsistent with the fundamental right of fairness at trial?
HELD: Yes
Court in Betts was wrong in concluding that the 6th amendment’s
guarantee of counsel is not one of the fundamental rights essential to
a fair trial.

Both precedent and reason require one to recognize that in an

adversary system, one cannot be assured a fair trial unless counsel is
provided for him

Lawyers in criminal courts are necessities, not luxuries