CRIMINAL PROCEDURE

Spring 2016
Professor Mary Anne Franks

4th Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
 Only applies to searches by government, not private entities

 2 theories of fourth amendment

1) Warrant Clause modifies reasonableness clause. (searches generally unreasonable unless authorized by a
warrant)
 Most rights-protective theory
 Middle theory All searches and seizes require probable cause but not necessarily warrants
2) Reasonableness Theory (Warrant clause and reasonableness clause are independent)
 All searches and seizures just have to be reasonable on ad hoc basis
 Least rights protective theory
 Reasonableness theory usually dominates

5th Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or
indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in
time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be taken for public use, without just compensation.
 Can be invoked at custody
 Right to counsel for custodial interrogations

6th Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district where in the crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of
Counsel for his defense.
 Attaches at indictment
 Right to counsel for defense

I. PERSONS, HOUSES, PAPERS, AND EFFECTS

OLMSTEAD V. UNITED STATES (1928)

Property-based 4th Am. Test
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Facts  Bootleggers found guilty of conspiracy to violate the national prohibition act by unlawfully
possessing, transporting, and importing intoxicating liquors
 Evidence of the conspiracy was obtained via wire taps over a 5 month period where agents tapped
telephones, homes, and offices of the defendants (without trespass of any property)
Holding Evidence obtained through wire taps does not constitute a 4th and 5th Amendment violation. The
terms search and seizure refer to an actual, physical examination of one’s person, papers, tangible
material effects, or home.
Majority  The 4th Amendment is seen in direct accordance with the common law of property.
(Taft)  Intervening wires are not part of a house or office, any more than are the highways along which
they are stretched.
 If there is no trespass to tangible property there is no search and seizure.
 The reasonable view is that one who installs in his house a telephone intends to project his voice
to those outside. The wires and message passing over them, beyond his house, are not within
the protection of the 4th Amendment.
Dissent  The founders of the constitution created the 4 th Amendment to protect privacy not just property.
(Brandeis)  The founders were unable to foresee technological advances and he analogized sealed letters to a
conversation carried by telephone wire.
 In the state of WA wiretapping is illegal; therefore, the agents’ actions created an “unclean hands”
situation, and the conviction should not be supported.
 Wiretapping invades both parties of the conversation, and makes the agents parties to information
unrelated to the conspiracy.
 It is better to have a few criminals go free than to support illegal behavior by our government.
Dissent  While the wires are in use the conversation itself is the property of those using the wires and
(Butler) engaging in conversation – thus wiretapping is an invasion of property.
 Amicus brief from telephone companies supports Butler’s arguments – telephone companies took
an interest in the case because permitting wire- tapping could potentially prevent customers from
subscribing to their services and using their equipment.
Notes  OVERRULED BY KATZ
 OLMSTEAD IS OLD & DEAD

KATZ V. UNITED STATES (1967)

Reasonable Expectation of Privacy Test – 4th Protects people, not places
Facts  Katz was convicted in CA of illegal gambling
 He used a public payphone to place bets in other states
 FBI recorded the conversation via an electronic listening device exterior to the phone booth
 Katz argued the recordings should be suppressed
Holding The 4th Amendment protects people, not places; therefore, the rights of the individual may be violated
regardless of whether or not there is a physical intrusion into any given area.
Majority  Adopts the Brandeis dissent from Olmstead
(Stewart)  The Government’s activities in recording his conversations violated the privacy upon which he
justifiably relied and thus constituted a search and seizure within the meaning of the 4 th
Amendment
 Whatever a person knowingly exposes to the public, even in his own home, is therefore not
protected by the 4th Amendment; but what a person keeps private, even in a public place, may
be protected.
Concur.  Two prong test for what constitutes a Reasonable Expectation of Privacy:
(Harlan) 1. The individual has exhibited an actual subjective expectation of privacy

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 2. Society is prepared to recognize that expectation as objectively reasonable
 The key to this decision is that one has a reasonable expectation of privacy when he shuts the
doors of a telephone booth behind him and pays the fee for use of the telephone
 Harlan’s opinion is adopted as the holding in future cases
 The second prong has become subjective because rich white judges who have no basis for judging
the reasonable expectation of the Plebs are deciding reasonable privacy
Dissent  4th Amendment protects property from physical searches and seizure, not privacy
(Black)  Wiretapping is like modern day eavesdropping, which the framers did not protect against
 Expectation of privacy is too easily manipulated, the court may invalidate searches they do not like
or allow searches they should not allow – cuts both ways
Notes  Prior to this case the test hinged on physical trespass
 Physical intrusion is no longer required
 Hinges on a person’s expectation of privacy – judges are not average Americans, so the second
prong isn’t properly objective
 Overrules Olmstead, from now on the 4 th Amendment deals with privacy not property

Expectation of Privacy: An individual enjoys the highest expectation of privacy in their home, and only somewhat less in
the “curtilage” immediately surrounding and in close proximity to it. Unoccupied and undeveloped areas (even if fenced
in and posted with “no trespassing” signs) generally fall outside the 4 th Amendment.

OLIVER V. UNITED STATES (1984)

Pot All-Over the open field
Facts  Narcotics agents acting on reports of marijuana on a farm drove past the petitioner’s house that
had a locked gate with a No Trespassing sign
 They walked around the gate without a warrant and found a field of marijuana one mile from the
petitioners home
 The officers obtained a warrant and seized the marijuana
Holding A visual search of land beyond the curtilage of a home, “open fields,” is not an “unreasonable search”
under the 4th Amendment, even if the police are trespassing and the defendant takes steps to conceal.
Open fields are not intimate settings; therefore, there is no societal interest to protect them, so
individuals have no reasonable expectation of privacy under Katz.
Majority  Adopts the Brandeis Dissent from Olmstead
(Oliver)  Believes there is no expectation of privacy when conducting activities in open fields
 Open fields is not a place of intimate activity
 The Reasonable Expectation of Privacy Test is not whether the individual chooses to conceal
private activity (trespass signs, etc.), it is whether the government intrusion infringes upon the
personal and societal values protected by the 4th Amendment
Concur.  A field is not a person, house or effect, thus it is not protected by the 4 th Amendment
(White)
Dissent  A field is one’s property and trespassing is a crime.
(Marshall)  A person has a reasonable expectation of privacy in one’s property.
 Modern trespass law demonstrates that the expectations of the defendant’s were considered
reasonable by society
 Similar to Brandeis’ Dissent in Olmstead, Marshall says the court is looking at the constitution with
precision, which is something it should not do. Instead he believes it should effectuate the purpose
of the 4th Amendment and apply it to the case.
Notes  Oliver shows katz test can be used for less protection instead of more

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 II. SEARCHES

US V. JONES (2011)
Bullshit case that says Katz never overruled Olmstead
Facts  Police obtained a warrant to install a GPS on a car registered to Jones’ wife
 Police installed GPS after warrant was expired
Holding The government’s attachment of the GPS, together with the use of that device to monitor that
vehicle’s movements, constitutes search under the 4th Amendment.
Majority  Trespass inquiry should not replace the reasonable expectation of privacy inquiry; rather, it
(Scalia) should supplement it.
 This was a search; a car is an effect, which is explicitly protected by the 4th.
 Gov’t physically occupied the car for the purpose of obtaining information, so it was a search.
 If analyzed separately, neither the installment of the device nor its use would constitute a
search. Both factors together are what make it a search.
Concur.  Wants to exclusively apply the Katz reasonable expectation of privacy test.
(Sotomayor)
Notes  Court unanimously agreed that attachment of the GPS was a search.
 Court split about private property vs. reasonable expectation of privacy (Olmstead/Katz )

U.S. v. Pineda-Moreno (2010)

FACTS
 Cops attach gps to car within Pineda’s curtilage

HOLDING
 Panel held that there was no reasonable expectation of privacy in driveway because it is open to the
public

Reasoning (DISSENT)

 “ The panel authorizes police to do not only what invited strangers could, but also uninvited children-in this
case, crawl under the car and tinker with the undercarriage. But there’s no limit on what neighborhood kids
would do, given half the chance. They’ll jump the fence, crawl under the porch, pick fruit form the trees. To say
that police might do on your property what urchins might do spells the end of 4A protections for most people’s
curtilages.”
 “there’s been much talk about diversity on the bench but there is one type of diversity that doesn’t exist. No
truly poor people are appointed as judges. Judges, regardless of race, ethnicity or sex, are selected form the
class of people who do not live in trailers or urban ghettos.”
 Poor people are entitled to privacy, even if they cant afford all the wealthy gadgets for ensuring it. The Panel’s
breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural
elitism.”

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U.S. v. White (1971)

FACTS
 Evidence obtained from informant wearing radio transmitter can be used against White, even form
conversations that took place in White’s own home

HOLDING
 Relies on Hoffa- “false friend doctrine”; No 4A protection for “a wrongdoers misplaced belief that a person
whom voluntarily confied his wrongdoing will not reveal it.”

REASONING (Concurring)
 Person engaged in illegal activities must realize and risk that his companions are reporting to the police
 What expectations are “justifiably constitutional” is not the same as “actual” expectations
 Since the law does not protect a wrongdoer whos trusted accomplice turns on him, neither should it
protect him when that same agent records his conversations
 Recordings may aid in reliability in many cases where a person forgets

(DISSENT)
 “Electronic surveillance is the greatest leveler of human privacy ever known.”
 Quotes Ramsey Clark: “Privacy is the basis of individuality…when a gov’t degrades its citizens, however
beneficent the purpose, it limits opportunites for individual fulfillment and national accomplishment. Id America
permits fear and its failure to make basic social reforms to excuse police use of secret electronic surveillance,
the price will be dear indeed

UNITED STATES V. MILLER (1976)

Banks/checks and third parties
Facts  ATF issued subpoenas to bank where D maintained accounts; the bank did not advise D that the
subpoenas had been served and provided everything the agents desired.
 Respondent motioned to suppress evidence obtained from seizure of bank notes which were kept
on record pursuant to the Bank Secrecy Act
Holding No expectation of privacy for information conveyed to third parties.
Majority  Bank customer possesses no 4th Amendment interest in the bank records, where the 4th
(Powell) Amendment does not prohibit the use of information revealed to third parties who subsequently
reveal the information to government authorities
 Once you convey information to a third party it is no longer private
 The Notes actually belong to the bank – The bank records were business records of the banks, not
customer’s private papers
 There is no legitimate expectation of privacy in the contents of the original checks and deposit
slips since the checks are not confidential communications, but negotiable instruments to be used
in commercial transactions, and all the documents obtained contain only information voluntarily
conveyed to the banks and exposed to their employees in the ordinary course of business
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 Dissent  The Banks should not be allowed to consent to a waiver of the customers 4 th Amendment rights
(Brennan)  There is an expectation that the records will be used internally only
 The states may interpret the constitution more stringently than the Federal Government
Dissent  Customers must use the banking system; they have no choice
(Marshall)  The records belong to the individuals not the banks
Bascuas  The court here is using secret as synonymous with private, as opposed to Katz

GREENWOOD V. CALIFORNIA (1988)

Garbage on curtilage
Facts  Suspecting that Greenwood was involved with drugs, a police officer searched his garbage, placed
on the street for collection
 Police found evidence of drugs, which served as the basis for a search warrant for the house, which
led to the discovery of drugs
Holding The 4th Amendment does not prohibit the search and seizure of garbage left for collection outside the
curtilage of a home. Police are not to be expected to be less inquisitive than the most inquisitive
members of the general public.
Majority  Adopts Harlan’s 2- Part Test: A person has no societally recognized expectation of privacy in
(White) trash left for collection
 What a person knowingly exposes to the public is not a 4 th Amendment violation
 Respondents placed trash at the curb for the express purpose of conveying it to a third party
 The trash bags on the street could have easily been exposed by animals or children
Dissent  Rummaging through someone’s trash is contrary to civilized behavior
(Brennan)  This fails the 2nd prong of Harlan’s Test
 A single bag of trash testifies to the social status and personal habits of the person who produced it
and can relate intimate details about the person’s sexual and health practices, professional status,
political associations etc. – It is just this intimate activity associated with the sanctities of home and
the privacies of life that the Fourth Amendment is designed to protect from warrantless scrutiny
 Just because some one might expose your trash does not mean the police may expose it
Notes  All nine justices agree that it does not matter how the evidence came into plain view so long as the
police did not expose it
 This case would not be easily decided by a property regime, but a privacy regime allows for a
discussion of infinite degrees of privacy invasion
 Bascuas: The court cannot talk about the reasonable answer/explanation for this holding, which is
abandonment. The court does not want to bring up property arguments because after Katz, the 4th
Amendment no longer deals with property, only privacy.

Florida v. Riley (1989)

Facts:
 Greenhouse 10-20 feet away from R’s mobile home. Two of four sides enclosed, other two obscured by trees,
shrubs, home
 Covered by corrugated roofing panels; 2 were missing. Wire fence surrounds home and greenhouse; “do not
enter” sign.
 Officer uses helicopter to circle greenhouse at 400 ft; sees marijuana plants. Uses info to get warrant.
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Holding:
 It was NOT a search because RILEY could not reasonably have expected that his greenhouse was
protected from public observation from a helicopter had it been flying within navigable airspace for
fixed-wing aircraft

Reasoning (Majority: White)

 Although he had a expectation that his greenhouse would not be open to public inspection on ground-
level, he did not have the same expectation from the air since there were panels missing
 Private and commercial flight is routine in this country
 This case would have been decided differently if flying that low would be unlawful

Reasoning (Dissent: Brennan)

 Just because anyone could have flown a helicopter over his greenhouse doesn’t mean that RILEY did
not suffer a serious loss of privacy
 It is not commonplace

UNITED STATES V. JACOBSEN (1984)

Fed Ex Case – privacy was already violated by private party
Facts  A package sent using a private freight carrier was damaged in transit and the carrier opened it.
 The carrier called federal agents who came and took a sample to test without first obtaining a
warrant.
Holding  The search and seizure of the cocaine was not unreasonable as the privacy had already been
violated by the private carrier (to whom the 4th does not apply).
 The federal agents did not infringe any constitutionally protected privacy interest that had not
already been frustrated as the result of private conduct.
Majority  To the extent that a protected possessory interest was infringed, the infringement was de
(Stevens) minimis and constitutionally reasonable.
 The agents viewing of what a private party makes freely available for his inspection does not
violate the 4th.
 The chemical test done on site was not a search. The drug dealers do not win because they have
no reasonable expectation of privacy.
 There was a seizure, but it was not unreasonable because the privacy interests had already been
compromised; therefore, DEA could seize without a warrant because they had probable cause to
believe it was contraband.
 A chemical test that merely discloses whether or not a particular substance is cocaine does not
compromise any legitimate interest in privacy (binary test).
Concur.  This is excessively expanding Greenwood (in Greenwood, White believed that reasonable
(White) expectation of privacy was abolished upon delivering garbage to the curb. However, he takes issue
with warrantless searches of closed or covered containers arising from probable cause existing as a
result of a prior, private search)
 White’s opinion is similar to Scalia’s in Hicks, “a search is a search is a search”
Dissent  Agrees with White
(Brennan)

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 Notes  The significance of this case lies in its distinguishing warrantless searches given to a private party
from warrantless searches of effects exposed to the general public.

III. Seizures
Mendenhall Test: A person has been ‘seized’ within the meaning of the 4 th Amendment only if, in view of all the
circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave
 E.g. threatening presence of several officers, display of a weapon on behalf of the officer, physical touching, use
of language or tone of voice

California v. Hodari (1991)

Facts:
 Cops on patrol in unmarked car, wearing street clothes and police jackets
 4-5 youths grouped around small red car take flight; red car drives away
 Cops split up to give chase; Hodari doesn’t see Officer P until he almost runs into him
 Hodari throws what looks like small rock away. P tackles H, handcuffs, radios for backup
 H has $130 in cash, pager, rock turns out to be cocaine


Holding:
 No seizure occurs even though the subject does not yield because there was no physical force or
submission to authority

Hodari argues:
 Mendenhall Test; a reasonable person would have believed that he was not free to leave

Majority (scalia)

 Mendenhall Test is an objective, not subjective, test

 It’s a necessary but not sufficient condition for seizure

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  Even if officer’s pursuit was a “show of authority,” it is still not a seizure because Hodari did not halt.
Thus, he was only seized once the officer had tackled him
 Therefore, the cocaine is not a fruit of a seizure because the officer seized him after he abandoned the
cocaine

Dissent

 Mendenhall objective test allows police to determine in advance whether the contemplated conduct
will implicate the 4th amendment
 The court concludes the timing of the seizure is governed by the citizen’s reaction, rather than the
officer’s conduct
 It should be when a reasonable citizen believes he is no longer free to leave

UNITED STATES V. DRAYTON (2002)

Dr. Dre’s tour bus
Facts  Officers boarded bus for drug interdiction. One officer knelt on the driver’s seat in the front of the
bus, one stayed in the back, and one officer made his way from back to front.
 Officer approached suspects from behind and asked if he could search their bag. They consented
and the bag search revealed no contraband.
 Officer then asked if he could physically search the suspect – after the suspect consented to a pat
down, search revealed narcotics and suspects were arrested.
 Respondent’s motion to suppress evidence asserting the consent to the search was invalid. The
officers did not inform the suspects of their right to refuse cooperation.
Holding The 4th Amendment does not require police officers to advise bus passengers of their right not to
cooperate and to refuse consent to searches.
Majority  There was no unconstitutional search or seizure; their consent was voluntary and they were not
(Kennedy) seized.
 Officers did not block the exits, they did not brandish their weapons, there was no overwhelming
show of force or intimidating voice, and there was no threat or command.
 Does not want police to be so restrained that they cannot normally interact/speak to ordinary
citizens.
 Implicit Premise: 4th Amendment should be interpreted “in a way that allows enforcement of
measures necessary to rid drug trafficking…”
Dissent  The right to travel is a fundamental right that cannot be infringed.
(Souter)  The reasonable inference was that the “interdiction” was not a consensual exercise, but one the
police would carry out whatever the circumstances; that they would prefer “cooperation” but
would not let the lack of it stand in their way – the scene was one of obligatory participation.
 Narrow alley analogy.
 To meet the Bostick Test of whether a person may feel free to decline police interaction it requires
more than the police to request your compliance in a quiet tone of voice.
 Observing passenger on the bus getting arrested by police imposes psychological pressure to either
remain or to speak

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Notes

BRENDLIN v. CALIFORNIA (2007)

Car passengers are also seized when car is pulled over
Facts  Officer saw car parked w/ expired tag, but after speaking to dispatch, learned that the application
for renewal was being processed
 The officer later saw the car driving and decided to pull it over anyway just to verify that the permit
matched the vehicle
 Driver was Karen Simeroth, and officer recognizes passenger as “one of the Brendlin brothers”, so
he asked him to identify himself
 Officer went back to his car to call for backup and verified that Brendlin was a parole violate w/ an
outstanding warrant for arrest
 While officer went back to his car, he noticed Brendlin quickly open and close his passenger door
 When back up arrived, officer ordered B out of the car and arrested him
 When officer searched him, he found an orange syringe cap; and a patdown search of driver
revealed syringes and a plastic bag of leafy green substance
 When the car was searched, cops found other things used for making meth
Holding A car’s passenger is seized within the meaning of the 4th when an officer makes a traffic stop.
Majority  A person is seized and thus entitled to challenge the gov’ts action under the 4 th when an officer
(Souter) “by means of physical force or show of authority”, terminates or restraints his freedom of
movement, through means intentionally applied. But there is no seizure without submission…
 When a car is pulled over, the passenger will reasonably feel subject to suspicion owing to close
association. Even if just for bad driving, a passenger’s attempt to leave the scene would likely
prompt an objection form the officer… societal expectation of unquestioned police command.
 Once the car was stopped, B showed submission by staying inside of the car.
Notes  FRUIT OF THE POISONOUS TREE DOCTRINE

I. THE WARRANTS CLAUSE

A. Probable Cause
BRINEGAR V. UNITED STATES (1949)
Probable cause = less than evidence, but more than mere suspicion
Facts  Federal officers patrolling a highway observed a car driven by a person whom one of the officers
had arrested about 5 months earlier for illegally transporting liquor, and whom he had seen loading
liquor into a car on at least two occasions during the preceding six months, and knew to have a
reputation for hauling liquor.
 The officers pulled him over because the car appeared to be heavily weighted down with
something.
 When the driver admitted that he was transporting liquor in his car, the liquor was seized and used

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 as evidence at trial.
Holding A search and seizure is not unreasonable when the officers have probable cause to believe that an
offense is being committed (this result was reached without taking into consideration the admission
made by the driver immediately before his car was searched).
Majority  The Court relied on the precedent case of Carroll, and found that there was probable cause.
(Rutledge)  Carroll on probable cause: the facts and circumstances within the officer’s knowledge and of
which they had reasonably trustworthy information are sufficient in themselves to warrant a man
of reasonable caution in the belief that an offense has been or is being committed.
 The majority is upholding a warrantless search on Brinegar’s car based on probable cause.
Concurren  Concurred on the ground that the interrogation by the officers of the driver was legitimate and that
ce Brinegar supplied by his omission ample probable cause for an immediate search of his c ar.
(Burton)
Dissent  The search was illegal from the outset when the officers stopped the car, and therefore, it could not
(Jackson) be saved by the driver’s subsequent admission that he was transporting some liquor.
 It may be reasonable to have a roadblock to find a missing child but it is unreasonable for the
officers to stop every car looking for offenders of the Prohibition because of the gravity of the
offense
 Protect against uncontrolled search and seizure is an indispensable freedom. Having probable cause
is important because it distinguishes the US from a fascist regime.
Notes  Jackson was a chief prosecutor at the Nuremburg Trials and then came back to the Supreme Court.
These experiences shaped Jackson’s opinion about the America he wanted to live in.

DRAPER V. UNITED STATES (1959)

Plaid informant train case
Facts  A reliable, paid informant told an officer that Draper would be in Chicago arriving by train on one of
two days and that he was going to bring back heroin and that he would return to Denver.
 The informant gave the officer a detailed physical description of Draper and of the clothing he was
wearing and said that he would be carrying a tan zipper bag and that he habitually walked fast.
 The officer arrested him without a warrant and the search yielded a quantity of heroin and a
syringe.
 Draper moved to suppress the evidence.
Holding Because informant was known to be accurate and reliable and because the agent was able to
independently verify every facet of the tip, the agent had probable cause and the arrest was lawful.
The search and seizure did not violate the 4th amendment since it was done incident to a lawful arrest.
Majority  A tip is sufficient to establish probable cause.
(Whittaker  The tip must be predictive, detailed and accurate.
)  The informant was reliable. The Court noted that although the information given to the agent
may have been hearsay. Yet, he had provided numerous tips in the past, which the officer found
to be accurate and reliable.
 The tip included an advance description of the clothing.
 It is clear or reasonable to assume the clothing is a signal, why else would one know what
someone was going to be wearing two or three days before the fact.
Dissent  A tip is not sufficient to establish probable cause.
(Douglas)  The court’s decision opens the door for the potential for people to collude against one another.
 On the ground that the arrest without warrant was unlawful, the arresting officer had no evidence
apart from the mere word of an informer that defendant was committing a crime.
Notes  The people who are typically challenging the legality of a search and seizure are the people on
whom the police find illegal things.

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  PC is based on probabilities. Not on technicalities, but rather on factual and practical considerations
of everyday life on which a reasonably prudent man would act.

The Aguilar-Spinelli Test: When a judge is issuing a warrant to determine whether there is sufficient evidence to
support a showing of probable cause depends on:
(1) Did the affiant make clear why the information supplied to him was reliable or trustworthy?
(Veracity)
(2) Was the magistrate told the basis for the informant’s information? (Basis of knowledge/background
quality of informant)

ILLINOIS V. GATES (1983)

Totality of the circumstances
Facts  An anonymous tip gave the police Gates’ travel plans and drug trafficking scheme – the events
occurred as the tip predicted.
 The police requested a warrant from the magistrate judge and the warrant was granted.
 After officers executing a search warrant discovered marijuana in Gates’ home and automobile,
Gates and his wife were indicted for violation of state drug law.
 Gates motioned to suppress evidence obtained in search on the basis that the application for the
warrant was inadequate under the two-prong test developed in Aguillar-Spinelli.
 Aguillar-Spinelli Test: (1) Basis of knowledge -- Reliability of the way in which, the information
was acquired (2) Veracity – Provide facts efficiently establishing the credibility of the informant.
Holding Probable cause exists where the veracity and basis of knowledge, indicate that there is fair
probability that contraband or evidence will be found in the place to be searched.
Probable cause should be determined by the totality of the circumstances
Majority  Rejects the Aguillar-Spinelli test, saying that a deficiency in either of the prongs may be offset
(Rehnquist) by the sufficiency of the other combined with police corroboration. [Compensation Test]
 Anonymous + Police Corroboration = Probable Cause
 Magistrate judge issuing the warrant has to make a practical decision of whether given the
circumstances there is a fair chance that the contraband/evidence will be found.
 Here, judge issuing the warrant had a substantial basis for concluding that probable cause to
search respondent’s home and car existed. Under the “totality of the circumstances” analysis,
corroboration of details of an informant’s tip by independent police work is of significant value.
 The task of the issuing magistrate is simply to make a practical, common sense decision
whether, given all the circumstances set forth in the affidavit before him, there is a fair
probability that contraband or evidence of a crime will be found in a particular place.
Concur.  Do not need to adopt a new “totality of the circumstances test”; this case is sufficient for probable
(White) cause under the Spinelli test.
 A reliable citizen’s affidavit is not sufficient for probable cause when it is based upon unsupported
assertions.
 You need both prongs: credibility and information obtained in reliable way.
Dissent  Using “common sense” standard will force the magistrate to be less neutral. Common sense is
(Brennan) too broad of a standard.
 Eliminating Spinelli is the end of probable cause.
 Two-prong test provides bright line rule to establish probable cause as opposed to a subjective
“common sense standard”.
Dissent  We should use Spinelli.
(Stevens)  This test fails the veracity prong because the anonymous tip contained a material mistake
12
 (discrepancy between informant’s predictions and the actual sequence of events).
 Problem is police got the warrant before all of the events transpired so warrant was issued before
probable cause existed.
Notes  To establish probable cause the tip must be predictive of something unusual that is constant of
illegal activity.
 Moved probable cause from a legalistic analysis to a more practical analysis.

Florida v. Harris (2013)

FACTS:
 Harris pulled over for expired license plate
 Visibly nervous and refused a search of car
 Officer let dog have “free air sniff” of car and alerted to drivers door handle
 Officer used dog’s detection as probable cause
 Harris was stopped again a few months later. Dog alerted to the same place but nothing was found

Majority (Kagan)
 Evidence of a dogs satisfactory performance in a certification can itself provide sufficient reason to
trust his alert
 A sniff is sufficient for probable cause

MARYLAND V. PRINGLE (2003)

PC is about a specific person committing a particular crime
Facts  Police pulled over a car with three men in it for speeding.
 Upon a consensual search, the police found rolled up cash in the glove compartment and cocaine
in the back seat.
 None of the men admitted ownership of the drugs, and the police subsequently arrested all three
men after searching the car.
Holding Broad: Absent of individualized guilt, if an officer has probable cause to arrest one person in a car
then probable cause exists to arrest everyone in the car.
Narrow: The passenger of a vehicle, even if separated from the drugs, has sufficient constructive
possession of drugs located in the vehicle to give rise to probable cause for the passenger’s
arrest.
Unanimous  To determine whether an officer had probable cause to make an arrest, a court must examine
(Rehnquist) the events leading up to the arrest, and then decide “whether these historical facts, viewed from
the standpoint of objectively reasonable police officer, amount to probable cause.”
 There was probable cause to believe that each of the men committed the crime whether solely
or jointly.
 A car passenger will often be engaged in a common enterprise with the driver and have the same
interest in concealing the fruits or evidence of their wrongdoing.
 Probable cause in these circumstances (close compartment where everyone can reach the drugs)
applied to all people because the alternative, to let them all go, is not good for the future
Notes  Distinguished from Ybarra, the court asserts that it is reasonable to assume that the three people
13
 in the car (private) were in a common enterprise, where people in a bar (public) are not in such
close proximity to infer a common enterprise.

B. Warrants

 Need for Arrest Warrants: Although an arrest warrant is not needed to arrest a person in public or in a public
building, an arrest warrant is needed to arrest a person in his own home.
 Rationale: Given the sanctity of the home in relation to the Fourth Amendment, absent exigent circumstances, an
arrest warrant is necessary.
 A valid arrest warrant implicitly carries the authority to enter the suspect’s dwelling when there is a reasonable
belief that he is there and to search for him anywhere he may be found.
 Arrest Warrants and Third Party Homes: When the police seek to arrest a suspect in the residence of a
third party, they must obtain a search warrant to enter and search that home for the suspect, which is based on
probable cause that the suspect is at the third party’s residence at that specific time.
 Rationale: Necessary to protect the third party’s privacy interest in their home.

Payton v. New York (1980)

FACTS:
 Officers assembled sufficient evidence that Payton had murdered the manager of a gas station a few
days earlier
 Few days later, officers went to his apartment and broke into with crowbar. He was not there.
 However, in plain view, a shell casing was seized from table

Majority (Stevens)
 A greater burden is placed on officers who enter a home
 Absent exigent circumstances, warrantless entry to search for weapons is unconstitutional
 The 4th amendment has drawn a firm line at the entrance to the house
 The trend that states are moving towards is prohibition of warrantless searches of homes

Concurrence (Blackmun)
 Suspect’s interest in sanctity of home outweighs the gov’t interests

DISSENT (White)
 Requirements for warrantless entry into home:
1) Felony
2) Knock and announce
3) daytime
4) stringent probable cause
 Warrantless search in this case would allow suspect to destroy evidence
 Sticks with reasonable test and not stringent test of majority

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 STEAGALD V. UNITED STATES (1981)
Search warrant specifically names where and what
Facts  Police entered Steagald’s home, in an effort to find Lyons, for whom they had an arrest warrant (and
no search warrant).
 They did not find Lyons, but did find drugs in plain view, resulting in Steagald’s arrest and conviction.
 The court held that Steagald’s rights were violated and therefore, the drugs, as evidence, would be
suppressed.
Holding  An arrest warrant cannot authorize the police to enter the house of a third person, not named in the
warrant, in the absence of exigent circumstances, assuming police have probable cause to believe
the person named in the warrant is located in the house.
 The arrest warrant only authorizes police to arrest named person in public or by entering named
person’s home under Payton.
Majority  A detached magistrate is needed to determine whether there is probable cause that the fugitive is
(Marshall) in the third party’s home.
 Creates an additional safeguard to limit police discretion.
 To allow entry into the house of unnamed person would lead to police abuse because they could
use the single arrest warrant to enter unlimited number of person’s friends or for pretextual
reasons.
Dissent  A search warrant is not necessary because an arrest warrant gives the scope of the search (searching
(Rehnquist) for Lyons); fugitives are inherently mobile.
 Frustrates law enforcement
 Arrest warrant limits search to what is in plain view
 Distinguishes this case from Payton based on the presence of an arrest warrant, which states with
particularity that Lyons is the person to be seized
Notes  Cops needed a search warrant to go in that specific house; arrest warrant was not sufficient.
 SEARCH WARRANTS ARE SPECIFIC: Must name where is being searched and what they are looking for.

Wilson v. Arkansas (1995)

FACTS:
 Wilson sold drugs to informant directed by Arkansas State Police
 Informant arranged to meet Wilson and at the meeting Wilson waived piston at informant and said Ill
kill you if youre working for the police
 Next day, police obtained arrest and search warrants on the basis of the drug transactions and that
Adams, Wilson’s roommate, had been previously convicted of arson and firebombing
 Main door was open and opened unlocked screen door to get in.
 Inside, officers seized drugs and fun

HOLDING:
 In some circumstances an officer’s unannounced entry into a home might be unreasonable under the
4th amendment

15
Majority (Thomas)
 Knock and announce principle incorporated in reasonableness test

II. THE FOURTH AMENDMENT IN RECURRING CONTEXTS

A. Persons

Search Incident to Arrest: When a valid arrest has been made (i.e., probable cause or an arrest warrant when
someone is in a private dwelling), the officer may search the person and the immediate area of the person.
 Rationale: When a police officer places an individual under arrest, there is an obvious danger that the arrestee may
violently resist and use any weapon within their reach, or they may destroy evidence that is within their reach.
 Arrest must be made before the search, and the search must be made at the time of arrest, i.e., once the suspect is
securely in custody and the exigency has disappeared, so has the right to search without a warrant. In order words,
a search is “incident to arrest” when it occurs contemporaneously to the arrest.
 Scope of the Search: Limited to the person of the arrestee (including pockets), as well as the “grabable space”
from which he could reach weapons or evidence (Chimel v. California)
o Searching Containers: If a container is within the “grabable area” of the defendant, it may be opened by the
officer so long as it is done contemporaneously to the arrest. (Robinson)
o Protective Sweeps: When police make an arrest in a home, the officers are authorized to search areas
(including closets and other spaces) in the immediate vicinity of the arrest from which an attack can be
launched against them. Where the police also have a reasonable suspicion that they are in danger from
accomplices lurking elsewhere, they may also make a search of those other spaces, but the sweep may last
no longer than necessary to dispel the reasonable suspicion. And in any event must end by the time the
arrest is complete and the suspect is removed from the premises. (Maryland v. Buie)

CHIMEL V. CALIFORNIA (1969)

Area within immediate control (grab-able area)
Facts  Defendant’s wife allowed police officers with arrest warrant inside the house.
 Accompanied by the wife they searched through the entire house and seized numerous items.
 The arrest warrant was issued pursuant to a burglary of a coin shop and they seized coins.
Holding An arresting officer may search only the area “within the immediate control” of the person arrested,
meaning the area from which he might gain possession of a weapon or destructible evidence. Any
other search of the surrounding area requires a search warrant.
Majority  This is an unreasonable search.
(Stewart)  Police can only search within grab-able area when conducting search incident to arrest at home.
 You have to have an arrest warrant for an arrest and search warrant for a search.
 Allowing a rule where you can search the whole house would give police incentive to wait until
suspect arrives home to make arrest – police should make arrest as soon as possible.
 Justification: protect evidence and officer safety
Dissent  It would be unreasonable to make police leave the scene of an arrest to get a search warrant if they
(White) already have probable cause. If you have probable cause you will be able to get a search warrant.
Notes  Cannot open drawers and other cabinets.
 Search must be confined to that room.

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  SEARCH INCIDENT TO ARREST: COPS CAN SEARCH YOUR PERSON AND AREA WITHIN YOUR
IMMEDIATE CONTROL. CONCERNED W/ OFFICER SAFETY AND PRESERVING EVIDENCE,

UNITED STATES V. ROBINSON (1973)

Extension of Chimel – Full search of the person incident to lawful arrest is okay
Facts  D was convicted of a narcotics offense.
 The case was remanded because an evidentiary hearing concerning the scope of the search of the
defendant’s person at the time of his arrest for a traffic offense.
 The search resulted in the seizure of heroin. Upon a lawful arrest of the defendant for operating a
vehicle with a revoked license, the police officer conducted a full field search of the defendant’s
person, seizing the heroin capsules, which were found in a crumpled cigarette package in the
defendant’s coat pocket.
 The officer did not indicate any fear of the defendant, did not suspect that the defendant was armed
and was not specifically looking for weapons or anything else in the search.
Holding After a police officer lawfully placed a suspect under arrest for the purpose of taking him into custody,
even where the arrest was for a traffic violation, the officer could proceed to fully search the prisoner,
and was not limited by standards governing a protective stop-and-frisk search for weapons incident to
only an investigate stop of a person.
Majority  The authority to search the person incident to a lawful custodial arrest while based upon the need
(Rehnquist) to disarm and to discover evidence, did not depend on what a court might later decide was the
possibility in a particular arrest situation that weapons or evidence would in fact be found upon the
person.
 In the case of a lawful custodial arrest, a full search of the person was not only an exception to the
warrant requirement of the Fourth Amendment, but was also a “reasonable” search under that
Amendment, since the fact of the lawful arrest established the authority to search.
 According to Rehnquist, Terry applies only before an arrest. Here, the person has already been
arrested. Rehnquist relies on Chimel and wants to make things easier for the police.
 Bright-Line Rule: Police can search anyone after they had been arrested for anything.
Dissent  The constitutional validity of a search of the person, even after a lawful arrest, should be determined
(Marshall) on the facts and circumstances of each case.
 Case by case adjudication of the reasonableness of a search after arrest was necessary to determine
whether the arrest was effected for purely legitimate reasons, or rather as a pretext for searching the
arrestee for evidence.
 While a search for weapons when making an in-custody arrest was lawful, regardless of the nature of
the crime for which the arrest was made, nevertheless, here, where there was a traffic violation, the
officer should not be allowed to search personal effects.
 This search was not being reasonably necessary to protect the officer from harm or to ensure that the
arrestee would not escape from custody.
 In determining whether the seizure and search were unreasonable, there is a dual inquiry: (Terry)
 Whether the officer’s action was justified at its inception, and whether it was reasonably related in
scope to the circumstances which justified the interference in the first place.

Winston v. Lee (1985)

Facts:
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  Suspect allegedly shot at victim and victim responded by shooting at suspect on his left side
 Later, cops found alleged suspect, brought him to the same hospital as victim, and victim told them
that was the guy who robbed him
 Commonwealth moved for an order directing WINSTON to undergo surgery to remove object from his
left side
 Before surgery, surgeon took x ray and it revealed that bullet was deep into tissue which might possibly
cause harm

HOLDING:
 The proposed search is unreasonable because a more substantial justification is required when State
seeks to intrude upon an area in which out society recognizes a significantly heightened privacy
interest

Majority (Brennan)
 Surgical intrusions should be decided on a case by case basis in which individuals interests in privacy
and security are weighed against society’s interest in conducting the procedure
 Factors that need to be considered:
1) extent to which the procedure may threaten the safety or health of individual
2) extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity
 Moreover, State already has significant evidence that may convict him without undergoing surgery

B. Houses

Welsh v. Wisconsin (1984)

Facts:
 Witness saw car driving erratically and eventually veering off road
 Welsh walked away back to his residence
 When cops came, Witness told them what he saw
 Without warrant, officers went to Welsh’s home and gained entry after stepdaughter opened door
 Police found Welsh naked in bed and they arrested him for operating vehicle under influence

HOLDING:
 The arrest was unconstitutional

Majority (Brennan)
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  When offense is minor, we are hesitant in finding exigent circumstances
 Need warrant for minor offenses
 State interests was low because first offense for drunk driving is noncriminal
 Also, there was no hot pursuit because the suspect had already arrived home and abandoned car

Dissent (Rehnquist)
 Policy reason 4th amendment would NOT require exclusion of fruits of an illegal arrest in a civil
proceeding to remove form the highways a person who is intoxicated
 Offense is actually a serious one
 Just because it’s a civil offense in Wisconsin, state has compelling interest in keeping highways safe

ILLINOIS v. MCARTHUR (2001)

Couple in the trailer with pot
Facts  Tera McArthur asked cops to escort her to her trailer so they could help keep the peace btwn her and
her husband while she took her stuff
 She got her stuff and came outside and suggested that the copes check the place for pot and look
under the couch
 Officers asked McArthur (husband) if they could search, but he said no
 Cops made him stay outside until they came back w/ a warrant
 Cops got warrant and found the pot
Holding Officers can prevent an individual from entering his home while they obtain a search warrant when
they have probable cause that they will find contraband.
Majority  Restriction was reasonable and lawful because cops had PROBABLE CAUSE
(Breyer)  Good reason to fear that D would destroy the contraband
 Respected his personal privacy; no arrest or search prior to warrant
 Limited amount of time (2 hours)
 Evidence at issues was for “jailable crimes”
 Not very intrusive
Concurrence  It was an exigent circumstance, so warrant exception, so cops could have searched
(Souter)
Dissent
(Stevens)  Higher value on the sanctity of the ordinary citizens’ home than on prosecution of this petty offense.
Notes

Kentucky v. King (2011)

FACTS:
 Officer saw guy do a drug deal and told two officers to go get him. However, they were a bit late and the
guy went into an apt
 The two officers smelled weed in the hallway
 They knocked on the left door and announced their presence (not the door that the original suspect was
in) and heard people moving stuff around
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 They broke in and found weed and coke in plain view

Holding:
 Exigent circumstances justified the warrantless search of the apartment

Majority (Alito)
 3 exigent circumstances that justify warrantless search of home:
1) emergency aid
2) hot pursuit
3) to prevent destruction of evidence

 Officers did not create the exigent circumstance by banging on the door and announcing their
presence

Dissent (Ginsburg)
 There was little risk that the drugs would be destroyed had they obtained a warrant
 Smell of weed gave the officers probable cause but it did not create an exigent circumstance to justify a
warrantless entry into the home

MINNESOTA V. CARTER (1998)

No privacy merely for commercial purposes for short time
Facts  Police received a tip from a confidential informant that he saw defendants placing white powder into
plastic bags through a window.
 Police officer went to investigate and saw the same thing through a gap in the closed blinds.
 While the station was preparing the search warrant the suspects left in a car.
 The police stopped the car and when opening the door a black pouch and handgun were on the floor.
 After arresting defendants and searching the car the police returned to the apartment with a warrant
and searched the apartment.
 Defendants argued that the officers initial observation of their drug packaging activities was an
unreasonable search in violation of the Fourth Amendment and that all evidence obtained as a result
of this unreasonable search was inadmissible.
Holding A property used for commercial purposes has less protection under the fourth amendment than
residential property.
Majority  A person has no legitimate expectation of privacy when they are conducting a purely commercial
(Rehnquist) transaction for a short period of time and the person has no personal relationship to the
homeowner.
 Distinguishes Minnesota v. Olson, which held that overnight guests have the same expectation of
privacy as the homeowner.
 They were merely permitted on the property to conduct a commercial relationship.
 No expectation of privacy because
 a) purely commercial transaction,
 b) short period of time,
 c) lack of previous connection between D and householder

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Concurrence  Your privacy rights are only protected in your own house. No one else’s.
(Scalia)  There is no textual/constitutional support for differentiation between commercial and noncommercial
property.
Concurrence  The evidence was publicly visible.
(Breyer)  The evidence could have been seen by anyone walking by, etc.
Dissent  A social guest has a reasonable expectation of privacy in the house of whom he visits.
(Ginsburg)  The owner of the house who invites someone into their house has the interest in sharing their
constitutional protection of privacy with them.
 Katz – both guest and homeowner have reasonable expectation of privacy.
Notes

Good Faith Exception: As long as a police officer reasonably believed that an erroneous warrant granted was
proper, the evidence obtained by this deficient warrant is still admissible at trial, even though the warrant was
improperly issued by the court.
 1) Rationale: The exclusionary remedy is designed to deter unreasonable police conduct. If the police acted
reasonably, there is no deterrent effect. Therefore, the benefits incurred by the exclusionary rule in these
circumstances, i.e., almost none, is outweighed by the fact that guilty parties are being let free to go.
 2) When an officer’s belief is not reasonable:
o Where the police have misled (either on purpose or with reckless disregard of the truth) the judge in
their application for the warrant
o Where the warrant is so obviously invalid (either probable cause is missing or it fails to be particular as
to the scope of the search) that no officer could reasonably rely on it, or
o Where a judge abandoned his neutral and detached posture.

KYLLO V. UNITED STATES (2001)

Thermal imaging case
Facts  Police used thermal imaging device on a house whose residents were suspected of growing
marijuana.
 Combination of thermal imaging information, anonymous tips, and heating bills allowed the officers
to receive a warrant.
 Police searched the house and found a lot of marijuana plants.
Holding Where the government uses a device that is not in general public use, to explore details of the home
that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’
and is presumptively unreasonable without a warrant.
Majority  All details in the house are intimate and private.
(Scalia)  This is an intrusion into the house…it is telling you what is going on inside of the house.
 This is information that could not usually be obtained absent of physical intrusion of the house.
 Limiting prohibition of thermal imaging to “intimate details” would be impracticable because you
never know ahead of time what details are intimate or what details will actually be revealed.
 Thermal imaging was not in public use.
 The fact that equivalent information could be somehow obtained by other means does not make
lawful illegal means which violate the fourth amendment.
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Dissent  The thermal imager is obtaining information that is radiating off of the house, it is not giving
(Stevens) information about what is going on in the house.
 Drawing of inferences from information outside the house is not a search.
 You do not need a warrant if there is no physical intrusion.
 It is the individual’s responsibility to safeguard their own home – “if you want to prevent thermal
imaging you should get better insulation.”
 No information was obtained that couldn’t have been obtained from outside the curtilage of the
home. [People walking by could have noticed the heat/snow melting on the roof]
 Drawing an inference from heat is no different than drawing an inference from discarded trash.
(Greenwood)
Notes  Memory Device: KY (Kyllo) heating lube
 Bascuas: The majority’s holding in this case cannot be reconciled with Minnesota v. Carter.
 Scalia is big on intimacy arguments – Disagreed with peeing in cups
 Through the wall surveillance vs. off the wall surveillance

Florida v. Jardines (2013)

FACTS:
 After tip given to officer that weed was being grown in apt, officer approached home but could not see
anything inside bc the blinds were drawn
 Another officer came with dog and dog signaled to him that he smelled something pacing back and
forth and sitting in front of door
 Officer obtained warrant but Jardines left before he got it. He was later charged with trafficking

Holding:
 The use of a drug-sniffing dog on a homeowners porch to investigate contents of home is a search
within the meaning of the 4th amendment

Majority (Scalia)
 Curtilage is part of the home and deserves the same expectation of privacy
 Dog sniffing for incriminating evidence is not like someone knocking on the door

Concurring (Kagan)
 They used a device that is not in general public use

Dissent (Alito)
 Dogs have been used by officers forever
 A reasonable person understands that smell coming from a home can be detected by the public
 Officers were there for less than 2 minutes. Members of the public may do the same
 Police have license to approach a house and hear, smell, and see whatever can be detected
 No distinction between “knock and talk” and the objective purpose of this officer

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 C. Automobiles
Automobiles: Police may search an automobile and any containers within it when they have probable cause to
believe that contraband or evidence of a crime is present anywhere inside, so long as, the place where they are
looking reasonably would be large enough and shaped right to conceal the items being sought, i.e., can only search
where items may be hidden.
 Rationale: Given the lower expectation of privacy with regard to property transported in cars, officers with probable
cause to search a car may inspect even a passenger’s belongings as long as they are capable of concealing the object
of the search.

CALIFORNIA V. ACEVEDO (1991)

If PC, you can search containers in the car
Facts  The police, pursuant to a DEA tip, witness Acevedo place a container they believe contains marijuana
in the trunk of his car.
 Police interrupt Acevedo as he drives away and search the trunk without a warrant.
 They find and search the bag to find the marijuana.
Holding A warrant is not required to search a container or compartment in a car where there is probable cause
to believe the container holds contraband or evidence.
Majority  The current law is unclear.
(Blackmun)  Carroll established that exigent circumstances doctrine (Cars can be moved so immediate search is
necessary)
 Chambers established that the exigent circumstances are established at the time the automobile is
seized. (If exigent circumstances exist at the time the automobile is seized, a later search is valid)
 Chadwick created ambiguity because it said people have a greater expectation of privacy in their
luggage
 Sanders expanded Chadwick to include luggage actually transported in the car.
 Ross distinguished Carroll and Chadwick, search of a container is valid if officer had probable cause
to search the whole car.
 The police may search an automobile and the containers within it where they have probable cause
to believe contraband or evidence is contained.
Concurrence  Concurs not based on automobile exception but in the fact that there was probable cause to search
(Scalia) the paper bag and thus it was reasonable.
 We have carved out so many exceptions to warrant requirement that it is not extremely convoluted;
we need to return to fourth amendment principle of reasonableness to draft rules for warrantless
searches.
 Common law has no general rule requiring warrants.
Dissent  Absent exigent circumstances, the decision to invade the privacy of an individual’s personal effects
(Stevens / should be made by a neutral magistrate rather than an executive agent.
Marshall)  We have continuously held that police efficiency, even when well founded, is outweighed by a
person’s privacy interest.
 Privacy interests outweigh the possibility of error in a warrantless search.
 You now have rights on the street you wont have in your car. (i.e. if you are walking on the sidewalk
cops couldn’t seize your stuff without a warrant/but once you get into a car any of your personal
belongings are fair game.}
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Notes  These are good cops trying to figure out undecipherable law.
 Automobile Exception: You don’t have to get a warrant if there is probable cause for a car because it
can get away (exigency).
 Once the police find what they are looking for they have to stop.

WYOMING V. HOUGHTON (1999)

If PC, you can search containers in car w/o individualized PC for each container
Facts  Officer pulls car over for traffic infraction. During a discussion with the driver the officer notices a
syringe in the guys shirt pocket.
 Officer ordered driver and all passengers out of the car.
 Officer searched passenger compartment of the car, and then searched passengers purse.
 He found two bags of meth in her purse.
Holding Police officers with probable cause to search a car may inspect passenger’s belongings that are capable
of concealing the object of the search.
Majority  Search of passenger’s belongings was not unconstitutional.
(Scalia)  Passengers have the same reduced expectation of privacy as drivers with regard to property they
transport in a car – travel through public thoroughfares, subject to police stop, etc.
 Police officer does not need to believe that the passenger and driver are in a common enterprise, or
reason to believe the driver had concealed the item in the passenger’s belongings with or without
permission.
 Probable cause for individual articles is not necessary.
 Once you have probable cause you can search all containers in the car capable of holding the
contraband. (If you can’t search passenger stuff then passengers can always claim everything as
theirs.)
 “Cars are subject to lower expectation of privacy because people don’t keep personal effects in
cars.”
Concurrence  Purses are special containers like “outer clothing”… in this case it was separate from her person.
(Breyer)
Dissent  Interest in privacy outweighs interest in police efficiency.
(Stevens)  Individual probable cause protects privacy and should be the rule.
 The information here only implicated the driver.
 The scope of this search is broader than it would have been had a warrant actually been obtained – if
there was a warrant to search the car you would not be able to search passenger’s stuff.

ARIZONA V. GANT (2009)

Puts limits on Thornton rule
Facts  Two officers knocked on the defendant’s front door and asked to speak to the owner acting on a tip
there were drugs being sold in the house. A man answered and identified himself as Gant.
 There was an outstanding arrest warrant for Gant for driving with a suspended license. The Officers
returned and found the man near the back of the house and a woman in a car parked.
 A third officer came to assist; they arrested the man and the woman, both were handcuffed and
secured in separate cars when Gant arrived.
 Gant parked, got out of his car, shut the door and waked 10-12 feet away from the car to meet the

24
 officers. He was immediately arrested and handcuffed and placed in the backseat of yet another
officer’s car who came as backup.
Holding Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching
distance of the passenger compartment at the time of the search OR it is reasonable to believe the
vehicle contains evidence of the offense of arrest.
When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless
police obtain a warrant or show that another exception to the warrant requirement applies.
Majority  The search is unreasonable because it fails to meet the standards set in Chimel (here neither Belton
(Stevens) nor Thornton applies)
 Belton represents a bright line rule for the fact that the passenger compartment is within reach for
the meaning of allowing police to search it.
 “When an officer lawfully arrests the occupant of an automobile, hey may, as a contemporaneous
incident of that arrest, search the passenger compartment of the automobile.”
 Thornton represents a bright line rule that even if the arrestee is out of the car, the police can still
search the car as in Belton.
 Circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is
reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.
 May search passenger compartment of a vehicle incident to arrest if it is reasonable to believe the
arrestee might access the vehicle at the time of search, or that vehicle as evidence of offense of the
arrest. The exception for a search incident to arrest applies only to the area from within which an
arrestee might gain possession of a weapon or destructible device.
Concurrence  Only agrees with Stevens that the search was unreasonable. Doesn’t agree with the Chimel standard
(Scalia) argument. Suggests the court abandon the Belton-Thornton rule and hold a vehicle search incident to
arrest is ipso facto reasonable only when the object of the search is evidence of the crime for which
the arrest was made or of another crime that the officer has probable cause to believe occurred.
 Therefore, in order to avoid 4-1-4 decision, Scalia concurs.
 Thinks the officer safety rationale for a search makes no sense yet still concurs. In doing so he creates
an issue by writing his opinion in which he disagrees with Stevens holding and reasoning. Ultimately,
the result is in fact a 4-1-4 decision.
Dissent  Analyzes the reasons for overruling precedent and how they do not apply here:
(Alito)  1) Whether precedent has engendered reliance
 2) Whether there has been an important change in circumstances in the outside world
 3) Whether the precedent has proved to be unworkable
 4) Whether the precedent has been undermined by later decisions
 5) Whether the decision was badly reasoned

III. SEARCHES AND SEIZURES WITHOUT PROBABLE CAUSE

A. Reasonable Suspicion (“articulable suspicion”)
***REMEMBER THE DIFFERENCE BETWEEN REASONABLE SUSPICION AND PROBABLE CAUSE***
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 RS: Lesser standard, easier to meet, allows a terry-stop
PC: Higher standard, allows for a search

TERRY V. OHIO (1967)

Stop-and-frisk based on reasonable suspicion (objective standard)
Facts  Experienced undercover cop was suspicious of three individuals casing a store in a manner that is
typically associated with armed robbery. The men made over twelve trips back and fourth to the
window of the store where they would discuss in between.
 Officer approached the men, asked one his name, the man mumbled.
 Officer then stopped and physically frisked defendant, in the left breast pocket of Terry’s coat he felt a
pistol.
Holding Officers may stop and frisk someone for weapons without probable cause if they have a reasonable
suspicion that a crime has taken place, or is about to take place, and the suspect is armed and
dangerous.
Majority  This is a search and seizure under the Fourth Amendment; however, it is permitted. Officer does
(Warren) not need probable cause for search/seizure – just needs reasonable suspicion.
 Test for Reasonable Suspicion for “stop and frisk”: Whether a reasonably prudent person in the
circumstances would be warranted in the belief that his safety or that of others is in danger.
 The reasonableness of a “stop and frisk” depends upon weighing the government interest in police
and bystander security against a possibly armed criminal and every citizen’s interest against police
interference.
 Allows officer to investigate by asking questions, but before doing so ensuring his safety by
conducting an external pat down limited only to the search of weapons.
 Search should be confined to what is minimally necessary to discover weapons.
Dissent  Magistrate’s need probable cause to issue a warrant – if a cop only needs reasonable suspicion than
(Douglas) we are giving the police greater power than the magistrates.
 If society wants to change the necessary requirements for search and seizure, and abandon probable
cause, it should be done through constitutional amendment.
 Problem with Douglas’ Dissent
 If cops wait for warrant it might be too late and the criminal activity may already be in motion.
 Requiring probable cause for every search and seizure may put officer in danger and make it hard to
prevent potential crimes.
Notes  Pat down is limited to weapons; however, if other contraband is inadvertently discovered during the
weapons search, it will be admissible as long as it was found within the reasonable boundaries of the
frisk. [cannot search his shoes]
 If you find a drug or something, it can be seized as long as you have probable cause while you are
patting down the suspect (while you were patting him down you thought you felt drugs).
 Officer McFadden’s suspicions were based on the actions of the men creating reasonable fear for his
safety and the safety of others – not on the fact that Terry was black – Court left it out of the decision
because they wanted opinion to be based on the actions of the suspects and not their race.
 Terry Stops
 Reasonable Suspicion
 Objective: point to particular facts, things, evidence observed.
 Subjective: details will change depending on the circumstances.

ADAMS V. WILLIAMS (1972)

Reasonable suspicion for stop-and-frisk can come from reliable informant
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Facts  During early morning patrol duty in a high-crime area, a person know to the officer approached his
cruiser and informed him that an individual seated in a nearby vehicle was carrying narcotics and had
a gun at this waist.
 The officer approached the vehicle in question and asked the driver to step out of the car, when the
driver rolled down his window instead, the officer reached in and removed the gun from the driver’s
waistband.
Holding The totality of the circumstances here established the need to frisk defendant (high crime area, tip
about specific location for gun and drugs, defendant’s actions, and defendant’s position in car) as
there was a greater risk of danger than required under Terry.
Majority  The court held that the officer acted justifiably in responding to his informant’s tip. The informant
(Rehnquist) was known to him personally and had provided information in the past. The informant here came
forward personally to give information that was immediately verifiable at the scene (stronger /
more credible than an anonymous telephone tip)
 Court says that tips are sufficient – Court rejects the argument that a reasonable cause for a stop
and frisk can only be based on the officer’s personal observation rather than on information
supplied by another person.
 Officer had reason to fear for his safety when the defendant rolled down the window rather than
complying with the officer’s request to open the door.
 Once the officer found the gun precisely where the informant had predicted, probable cause
existed to arrest Williams for unlawful possession of the weapon.
Dissent  Connecticut allows citizens to carry weapons if they have a permit. The police had no authority to
(Douglas) frisk a person for a permit. The only basis for that arrest was the informer’s tip on the narcotics.
 Concerned about the extension of Terry to possessory offenses.
 Regrets his opinion in Terry. This search was not protected because there was no threat to the police
officer’s life. The arrest was not justified.
Dissent  Terry was meant for serious cases of imminent danger or harm to people or property, not to the
(Brennan) conventional ones of possessory offenses.
 This decision erodes the protection of the Fourth Amendment.
Dissent  Terry stop is the exception not the rule.
(Marshall)  There is no occasion in this case to determine whether or not police officers have a right to seize and
to restrain a citizen in order to interrogate him the facts are clear that the officer intended to make
the search as soon as he approached respondent.
 Dissent looks at the totality of the circumstances to determine whether a Terry stop was necessary
(the officer here lacked the information of circumstances that Officer McFadden had in Terry)
 “Today’s decision invokes the specter of a society in which innocent citizens may be stopped,
searched, and arrested at the whim of police officers who have only the slightest suspicion of
improper conduct.

FLORIDA V. J.L. (2000)

Anonymous tip w/ no corroboration is insufficient to justify a terry stop
Facts  There was an anonymous tip that there was a guy with a plaid shirt at a bus stop with a gun. Police
confirmed that there was a guy at the bus stop with a plaid shirt, searched him, and found a gun.
 When the cop saw suspect there was no suspicious activity.
Holding Anonymous tips alone are insufficient to form reasonable suspicion justifying a Terry Stop. Anonymous
tips can form reasonable basis for suspicion only if accompanied by not easily predicted behavior
(indicia of reliability).
Unanimous  An anonymous tip must be accompanied by indicia of reliability or police observation, etc.
(Ginsburg)  Tip must be predictive of unusual behavior.

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  Evidence of the gun must be suppressed.
 The officers’ suspicion that J.L. was carrying a weapon arose, not from their own observations, but
solely from a call made from an unknown location by an unknown caller.
 The stop was not based on reasonable suspicion as Terry requires.
Notes  If the case didn’t come out this way then the police would be able to search ANYONE at ANY TIME,
because police could fabricate anonymous tips.
 An anonymous tip lacking indicia of reliability does not justify a stop-and-frisk whenever and however
it alleges the illegal possession of a firearm

ILLINOIS V. WARDLOW (2000)

Expands Terry – Reasonable suspicion determined by common sense
Facts  An accused, who was holding an opaque bag (like the trash bags, translucent bags are less common),
fled upon seeing a caravan of four police cars converge on an area know for heavy narcotics
trafficking.
 When the two uniformed officers who were in the last car cornered the accused on the street, one of
the officers exited the car, stopped the accused, and immediately conducted a pat-down search for
weapons, because in the officer’s experience, it was common for there to be weapons in the near
vicinity of narcotics transactions.
 During the frisk, the officer discovered in the bag, a handgun and live ammunition, whereupon the
officer arrested the accused.
Holding Flight from police may be sufficient to support a finding of reasonable suspicion and to justify a police
officer’s further investigation. Officer relied on the fact that suspect was carrying a bag in a high crime
area.
Majority  Totality of circumstances justifies that flight was sufficient
(Rehnquist) 
Concurrenc  Agreed with the court’s rejection of both the rule requested by Illinois (authorize the detention of
e (Stevens) anyone who flees at the mere sight of a police car) and the Per Se rule requested by the accused
(flight would never, by itself, justify a stop authorized by Terry v. Ohio.
Dissent  Even in a high crime neighborhood, unprovoked flight does not invariably lead to reasonable
(Stevens) suspicion justifying a stop and frisk.
 Officer couldn’t remember if car was marked or unmarked – Bad Witness
 Factors that the court relies on to determine the motivation of a person’s flight: time of day, the
number of people in the area, the character of the neighborhood, whether the officer was in uniform,
the way the runner was dressed, the direction and speed of the flight, and whether the person’s
behavior was otherwise unusual might be relevant in specific cases.
Notes  Reasonable suspicion must be determined based on common sense judgments and inferences about
human behavior.
 No per se rules for reasonable suspicion.

MINNESOTA V. DICKERSON (1993)

Pocket-picking during terry stops
Facts  After leaving an apartment building, which was considered by police officers to be a “crack house”,
the accused began walking toward a marked squad car in which two police officers were patrolling.
 Upon making eye contact with one of the officers, the accused abruptly halted, began walking in the
opposite direction, and turned and entered an alley on the other side of the building.
 The officers pulled the squad car into the alley and ordered the accused to stop and submit to a pat

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 down search. The search revealed no weapons, but the officer who conducted the search felt a small
lump in the front pocket of the accused’s nylon jacket.
 As the officer later testified, the officer examined the lump with his fingers, and “it slid and it felt to be
a lump of crack cocaine in cellophane.” The officer then reached into the pocket and retrieved a small
plastic bag containing one fifth of one gram of crack cocaine.
Holding The police officer over stepped the bounds of Terry search for weapons, based on the first touch
doctrine [similar to plain view doctrine] – the officer must know what object is immediately without
manipulating it – otherwise, it is an improper search and seizure.
Majority  Consistent with the Fourth Amendment, a police officer may seize nonthreatening contraband
(White) detected during a protective pat down search of a person whom the officer has briefly stopped
based on the officer’s reasonable conclusion that criminal activity may be afoot and the person is
armed and presently dangerous to the officer or to others nearby AS LONG AS the officer’s search is
strictly limited to that which is necessary for the discovery of weapons.
 Here, the officer determined that the lump was contraband only after squeezing, sliding and
otherwise manipulating the contents of the pocket, which the officer already knew contained no
weapon.
Concurrenc  Concurs with the judgment however not necessarily the reasoning.
e (Scalia)  Agrees the search resulting in the discovery of the cocaine went beyond the standards set forth in
Terry. However, is not certain that Terry even applied to the initial stop – he does not agree that
Terry was at all applicable here.
Concurrenc  The findings made by the Minnesota Supreme Court were imprecise and not directed expressly to the
e question of the officer’s probable cause to believe that the lump in the accused’s jacket was
(Rehnquist) contraband. The Minnesota Supreme Court ‘s judgment should have been vacated and remanded for
further proceedings because the Minnesota Supreme Court employed a Fourth Amendment analysis
which differed significantly from that which the United States Supreme Court adopted.
Notes  Cops are not allowed to take stuff out of your pocket from a stop-and-frisk pat-down unless they are
SURE that it is something illegal, and were able to determine so without manipulating the object in
your pocket

B. Special Needs Searches

 Administrative Searches: This is the exception to the fourth amendment, Searches that are not
performed for the purpose of gathering criminal information for prosecution, but rather those conducted for
another purpose do not require any particular suspicion of criminal activity at all, however the search must still
be reasonable.
o E.g. When there is a health code inspection of residential dwelling units, there is no need for probable
cause or reasonable suspicion because this search is not for criminal behavior.
o Rule of determining whether the special needs search was reasonable : Balance government’s
need for search with citizen’s preference to be left alone, taking into consideration:
1) strength of privacy interest
2) character of intrusion
3) nature of the special need
4) efficacy of the search

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Camara v. San Francisco (1967)
FACTS:
 Inspector for housing dept entered an apt building for routine annual inspection for any housing code
violations
 Building manager informed inspector that Camara was using rear of his leasehold on ground floor as a
personal residence
 Inspector claimed building’s occupancy permit did not allow residential use of ground floor and
demanded that he inspect the premises
 Camara refused the inspection bc he did not have search warrant. He returned a few days later but
Camara refused again and a citation was mailed to him to appear at the DA office
 Camara didn’t show and two inspectors showed up demanding inspection under the housing code, but
he still refused.
 Shortly after, he was arrested

HOLDING:
 Without a warrant, administrative searches of the kind at issue here are significant intrusions upon
the interests protected by the 4th amendment.

Majority (White):

 Camara does not know the limit of the inspection which can be reviewed by a magistrate when
obtaining a warrant
 Public interests should be considered, however the question is not whether these inspections should
be made but whether they should be made without a warrant
 Government’s interest in inspecting housing code violations are not burdened by obtaining a warrant
 The “reasonable test” should apply when inspecting the premises without a warrant. Housing
inspections are reasonable bc they are not done to discover criminal activity and there is a
overwhelming public acceptance to prevent dangerous conditions. However, if occupant refuses
inspector, he should then obtain a warrant bc there is no compelling emergency to inspect a premise
at a specific time

BOARD OF EDUCATION V. EARLS (2002)

Competitive activities need to submit to drug test
Facts  School district required all students who participate in competitive extracurricular activities to submit
to drug testing.
 Honors student/band/choir girl challenges constitutionality of the compelled drug tests.
Holding  In context of safety and administrative regulations, a search unsupported by probable cause may be
reasonable when “special needs” beyond the normal need for law enforcement make the warrant
and probable cause requirement impracticable.
 Coercive drug testing imposed by school district upon students who participate in extracurricular
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 activities does not violate the Fourth Amendment.
Majority  This is not unconstitutional (unreasonable) search
(Thomas)  Three Part Test
1) Nature of Intrusion: School is guardian and school children have decreased expectation of
privacy.
2) Character of Intrusion: Results only given on “need to know basis.” Results not given to law
enforcement. Child given second and third test before being suspended.
3) Nature of the immediacy of government concerns and the efficacy of the policy in meeting them:
Drug epidemic is an important concern. Need to prevent and deter drug use is of immediate
importance. There is a nation-wide drug epidemic plaguing America in every school and thus no
privacy interest can be expected as a result.
 Reasonableness = reasonably effective – the ends will justify the means.
 Individualized suspicion based drug testing is not less intrusive because it may target different
groups/single out individuals and make teachers jobs more burdensome.
Concurrence  Privacy concerns could be addressed through political process/town meeting.
(Breyer)  This method gives option to conscientious objector (they have choice not to participate)
 Individualized suspicion requirement could lead to subjective criteria which unfairly targets groups of
certain social groups.
 Supply side efforts to curb drug use have not worked.
Dissent  Distinguishes Vernonia (she was part of majority in Verona)– students here have greater expectation
(Ginsburg) of privacy than athletes and there is no severe and demonstrated drug use problem. Athletes are
leaders of drug culture.
 Not reasonable – targets a group of student least likely to be afflicted with drug issues.
 Schools should teach by example, and shouldn’t use symbolic measures to diminish constitutional
protections.
 There’s no consent here like there is in Veronia. Here, there is an element of coercion, unlike in
sports, where communal undress is common.

SAFFORD UNIFIED SCHOOL DIST. V. REDDING (2009)

Drugs in panties
Facts  Redding, a thirteen-year-old girl, was taken out of her math class by the Vice President of the school.
The Vice President showed Redding a day planner, which he unzipped to reveal knives, lighters, a
permanent marker, and a cigarette.
 The Vice President then showed Redding bottles of prescription pills, all used for pain and
inflammation but banned under school rules without advance permission.
 After being told that she was being accused of giving pills to students, Redding agreed to let the Vice
President search her belongings, including her backpack.
 Redding was then taken to the school nurse’s office in order to have her clothes searched for pills.
Redding was told to remove her jacket, socks, shoes, t-shirt, pants – she was then told to extend her
bra and underwear, exposing her breasts and pelvic area to some degree.
Holding What was missing from the suspected facts that pointed to Redding was any indication of danger to the
students from the power of the drugs or their quantity, and any reason to suppose that Redding was
carrying pills in her underwear. The Court believed this combination of deficiencies made search
unreasonable under the Fourth Amendment.
Majority  Marissa’s statement that the pills came from Redding was sufficiently plausible to warrant suspicion
(Souter) that Redding was involved in pill distribution -- this justified a search of Redding’s backpack.
 The justification for the school officials’ search was required in accordance with the T.L.O standard

31
 of reasonable suspicion, for it is common ground that Redding had a reasonable expectation of
privacy covering the personal things she chose to carry in her backpack and the Vice President’s
decision to look through it was a “search” within the meaning of the Fourth Amendment.
 The very fact of Savana’s pulling her underwear away from her body in the presence of the two
officials who were able to see her necessarily exposed her breasts and pelvic area to some degree,
and both subjective and reasonable societal expectations of personal privacy support the treatment
of such a search as categorically distinct, requiring distinct elements of justification on the part of
school authorities for going beyond a search of outer clothing and belongings.
 Search was embarrassing, frightening and humiliating – the reasonableness of her expectation is
indicated by the consistent experiences of other young people similarly searched, whose adolescent
vulnerability intensifies the patent intrusiveness of the exposure.
 Search did not implicate the rule of reasonableness as stated in T.L.O., that “the search as actually
conducted be reasonably related in scope to the circumstances which justified the interference in
the first place.” The scope will be permissible, that is, when it is “not excessively intrusive in light of
the age and sex of the student and the nature of the infraction.”
Concurring  Stevens agreed that the strip search was unconstitutional, but disagreed that the school
(Stevens / administrators retained immunity. He stated that "[i]t does not require a constitutional scholar to
Ginsburg) conclude that a nude search of a 13-year old child is an invasion of constitutional rights of some
magnitude."
 Uses New Jersey v. TLO Test 2 parts: 1) Justified in inception by reasonableness grounds; 2)
Permissible in scope, considering age and sex, and nature of infraction.
 Qualified Immunity tests  what is the clarity of the constitutional issue? Were the officials aware of
the violation?
Concurring /  Judiciary should not meddle with decisions school administrators make that are in the interest of
Dissenting keeping their schools safe.
(Thomas)  By declaring the search unreasonable in this case, the majority has “surrendered control of the
American public school system to public school students” by invalidating school policies that treat all
drugs equally and by second-guessing swift disciplinary decisions made by school officials.
Notes  Relate this case to Greenwood
 Relate this case to Earls

FLORENCE V. BOARD OF BURLINGTON COUNTY

FACTS:
 Florence was arrested and fined 7 years before this incident. After falling behind payments, a warrant
for his arrest was issued. He paid the balance a few days later but for some reason the warrant
remained on the computer database
 Two years later, he was arrested based on that warrant and he was jailed for 6 days
 In jail, he was subjected to open his mouth, lift his tongue, and lift his genital and cough in a squatting
position
 Charges were eventually dismissed

HOLDING:
 The search procedure is constitutional. Deference should be given to the officials in charge of he jail
unless there is “substantial evidence” demonstrating their response to the situation is exaggerated
which it was not in this case

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MAJORITY (KENNEDY)

 Persons detained for minor offenses can turn out to be the most devious and dangerous criminals
 Certain search procedures are necessary to prevent diseases and other dangers
 Gang members and detecting contraband concealed by new detainees
 Allowing prisoners to dodge certain search procedures will put them at greater risk and may increase
contraband into the facility bc other detainees will tell them to hide it for them
 FRANKS SAYS: facts don’t support majorities conclusion

Concurrence (Alito)
 The Court holds that jails may requite all arrestees who are committed to the general population of a
jail to undergo a visual strip search but its Important to note that the COURT does not hold that its
always reasonable to conduct a full strip search of arrestee

DISSENT (BREYER)
 Search here is a serious invasion of a persons privacy
 You need reasonable suspicion in order for it to be constitutional. Whereas, privacy interests are even
more violated by those who commit minor offenses
 How is genital lifting connected with allegedly subjected to health and gang concerns. Moreover, they
rarely find contraband

NATIONAL TREASURY EMPLOYEES UNION V. VON RAAB (1989)

Gov’t workers—govt interests outweigh privacy expectations of employees
Facts  The United States Customs Service, which has as its primary enforcement mission the interdiction and
seizure of illegal drugs smuggled into the country, implemented a drug-screening program requiring
urinalysis tests of employees seeking transfer or promotion to positions having a direct involvement
in drug interdiction or requiring the employee to carry firearms or to handle “classified” material.
Holding Where the Fourth Amendment intrusion serves special governmental needs, beyond normal need for
law enforcement, it is unnecessary to balance individual’s privacy expectations against government’s
interests to determine whether it is impractical to require warrant or some level of individualized
suspicion in particular context.
Majority  Government’s need to conduct suspicionless searches outweighs the privacy interest of employees
(Kennedy) engaged in drug interdiction or otherwise required to carry firearms.
 Not a police search because results were not turned over to law enforcement.
 Consensual (do not need warrant) – they are applying for a promotion; they do not have to…
 Customs agents who use drugs will be susceptible to 1) smuggling drugs, 2) bribes, and 3) unable to
work.
 Deterring highly dangerous activity – even if there is a low incidence rate that results in itself is a
success.
Dissent  The majority’s contentions are solely based on speculation and unsupported by the facts. None of
(Scalia / the fears of the majority have actually transpired. {Their facts don’t support their argument)
Stevens)  Customs service rules are an immolation of privacy and human dignity and nothing more than a
symbolic opposition to drug use – individual’s privacy rights cannot be the means of making the
symbolic gesture.
 This will open the door for anyone whose job is potentially dangerous to others to be subjected to
33
 suspicionless searches (i.e., postal service, etc.)
 If officers were really incapacitated drug addicts, you would not need a urinalysis to discover this.
Notes  Private companies can make you take a piss test any time – Fourth amendment only applies to
government searches and seizures.
 The actual holding subjects the entire customs service (secretaries) to drug testing – the dicta may
point otherwise by the holding cannot be limited.
 “Special needs” is an EXCEPTION to the warrant / probable cause requirements of the Fourth
Amendment.

FERGUSON V. CHARLESTON (2001)

FACTS:
 Drug screens on urine samples form maternity patients who were suspected of using cocaine
 If she was positive, then she would get counseling and treatment. However, despite the referrals, use
among patients did not decrease
 Hospital decided to cooperate with police to prosecute mothers whos children tested positive for
cocaine
 Threat of law enforcement was done in two ways: First, identification of drug use during pregnancy,
and second, “ “ “ after labor. Under the second part, she would be arrested immediately. Policy was
modified to give patient an opportunity to avoid arrest and do treatment instead.
 Different charges depending on stage of pregnancy.

ISSUE:
1) IS nonconsensual hospital test to obtain evidence of patients criminal conduct for law enforcement
purposes an unreasonable search?

2) Is Gov’t interest in using threat of criminal punishment to deter pregnant women from using cocaine strong
enough to justify exception to warrantless search?

HOLDING:
 The fact that characterizes this case is that the policy was designed to obtain evidence of criminal
conduct of patients that would be turned over to police and admissible at trial. Gov’t interests that
drug problem is serious does not justify the means in which they employ that purpose.

Majority (Stevens)
 Distinguishes Ultimate vs. immediate purpose Although ultimate purpose could have been to get
women into treatment, the immediate purpose was to generate evidence for law enforcement
purposes in order to reach that goal.
 Every nonconsensual suspicionless search could be immunized under the special needs doctrine by
applying ultimate rather than the immediate purpose. Thus, this is not a “special needs” case.

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  Distinguishes between inadvertent and purposeful discovery of incriminating evidence: in the latter,
citizens must be fully informed of their Con rights, as standards of knowing waiver require.

Concurrence (Kennedy)
 However, disagrees with court that there is support for distinguishing between “ultimate” and
“immediate” purpose. In every case the immediate concern is usually to obtain evidence, this reveals
nothing. The fact is that there substantial law enforcement involvement from the beginning.
 There was a penal character since the inception
 Also, an essential character of “special needs” cases is consent, though not “fully free” consent

DISSENT (Scalia)
 Whether it was good policy is not the issue
 Only the test itself—taking the urine sample—can be considered a search, not reporting results to
police. This is what the 4th Amend protects against. Thus, since the urine sample was consented to, it
was reasonable. Greenwood
 Info obtained through violation of a relationship of trust is obtained consensually, and hence is not a
search.
 No difference here from doctor coming across info about patient in normal procedures.
 Addition of law enforcement-related purpose to a legitimate medical purpose does not destroy the
special needs doctrine. The special needs doctrine was developed precisely to enable searches by law
enforcement.

CITY OF ONTARIO V. QUON (2010)

FACTS:
 Police sergeant went over text messaging limit multiple times
 They had policy which stated that workers did not have any expectation of privacy when using the
pager
 After reviewing texts, most of them were not work related, and they concluded that he had violated
OPD rules

ISSUE:
 Whether a gov’t employer has a right to read text messages send and received on a pager the
employer owned and issued to employee

HOLDING:
 Even though gov’t employees have a reasonable expectation of privacy, the search here was
reasonable and thus constitutional

MAJORITY (KENNEDY)
 Test based on O’Connor 1) consider the operation realities of the workplace since places can be so
open to public that there is no expectation of privacy; 2) judged by standard of reasonableness
 Von Raab  Operational realities can diminish employee’s privacy, so that should be taken into
consideration when assessing the reasonableness of the workplace search
 Applying any of these tests, the search was still reasonable in this case

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  Court says its reasonable if: 1) its justified at its inception; 2) measures are reasonably related to
objectives of search and not excessively instrusive
 Evidence satisfies (1) bc there was reasonable grounds for suspecting that a search was necessary for
noninvesitgatory work-related purpose. Satisfies (2) bc it was an efficient and expedient way to
determine whether Quon’s overages were the result of work-related messaging or personal use

CONCURRING (SCALIA)
 Proper threshold question should not be what the majority says “whether the 4 th amend applies to
messages on public employee’s employer-issued pagers”, but rather “whether it applies, in general, to
such messages on employer issued pagers. But you don’t need to answer this question. The court says
much more than it should bc it is reasonable on face value.
 Applying test to new technologies is hard and will unlikely yield objective answers.

MICHIGAN DEPT. OF STATE POLICE V. SITZ (1990)

Balancing test – drunk driving is a big problem
Facts  The Police established a sobriety checkpoint pilot program under guidelines drafted by an advisory
committee. All vehicles passing through a checkpoint would be stopped and their drivers briefly
examined for signs of intoxication.
 IF signs were detected, the driver would be directed to a location out of the traffic flow where his or
her license and registration would be checked, further sobriety tests would be conducted if
warranted, and, if the field tests and the police officer's observations suggested that the driver was
intoxicated, an arrest would be made.
 One checkpoint was conducted under the program, which checkpoint was in operation for 75
minutes, during which time 126 vehicles passed through, each vehicle being delayed an average of
about 25 seconds; two drivers were detained for field sobriety testing, one of these drivers was
arrested for driving under the influence of alcohol, and a third driver who drove through without
stopping was pulled over and arrested for driving under the influence of alcohol.
Holding The initial stop of each motorist passing through a checkpoint and the associated preliminary
questioning and observation by checkpoint officers were reasonable seizures which did not violate the
Federal Constitution's Fourth Amendment, as the balance among the state's interest in preventing
drunk driving, the extent to which the checkpoint program could reasonably be said to advance that
interest, and the degree of intrusion upon individual motorists, weighed in favor of that program.
Majority  Comes to this conclusion by determining:
(Rehnquist)  The magnitude of the drunken driving problem and the states' interest in eradicating it were
indisputable = Problem because job of judiciary is to decide what is legal even if people vote on this.
 The "objective" intrusion resulting from the checkpoint, measured by the duration of the seizure
and the intensity of the investigation, was minimal;
 The "subjective" intrusion resulting from the checkpoint program- abiding motorists by the nature
of the stop, not the natural fear of one who has been drinking over the prospect of being stopped at
a sobriety checkpoint--was indistinguishable for constitutional purposes from that resulting from
border checkpoints which had been held proper in Martinez-Fuerte.
 The advancement of the state's interest in preventing drunken driving was sufficiently shown by 1)
the fact that, in the one checkpoint conducted under the program, approximately 1.5 percent of all
the drivers stopped were arrested for drunk driving AND 2) Expert testimony that experience in
other states demonstrated that checkpoints resulted in the arrest of about 1 percent of all drivers
stopped.

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  Good Public Policy Constitutional
Dissent  Agrees with Stevens that the court had misapplied its balancing test by: 1) Undervaluing the nature of
(Brennan) the intrusion upon motorists caused by sobriety checkpoints, AND 2) Exaggerating the law
enforcement need to use roadblocks to prevent drunk driving.
 Brennan believes that the BALANCING TEST must include: the 1) Gravity of the public concerns served
by the seizure, 2) The degree to which the seizure advances the public interest, and 3) The severity of
the interference with individual liberty.
 The majority opinion improperly fails to make clear that such a balancing approach is proper only
when the seizure is minimally intrusive.
o The majority opinion reads as if the minimal nature of the seizure ends RATHER than begins
the inquiry into reasonableness. The majority opinion says individual interests is slight and
then over. Still needs to be reasonable despite being minimal.
 Without individualized suspicion that a person is driving while impaired by alcohol, the constitutional
balance must be in favor of protecting the public against minimally intrusive seizures involved in this
case.
 It is not constitutional even though the public might be willing to suffer the minimal intrusion of a
checkpoint to stop drunk driving.
 Brennan gets that drunk driving is a problem, but the Majority Opinion pretends there is a test, but
there is NOT one.
Dissent  Sobriety checkpoints are much more intrusive than the border checkpoints upheld in Martinez-Fuerte
(Stevens) since temporary sobriety checkpoints are more likely to cause surprise and distress than permanent
border checkpoints, and allow the police more discretion as to the timing and placement of the
roadblock. Also, a search for evidence of intoxication more difficult to standardize than a check for
papers at an immigration checkpoint, and allows police virtually unlimited discretion to detain drivers
based on the slightest suspicion.
 A seizure, interrogation, and search at night, when sobriety checkpoints almost invariably are
conducted, is more offensive than one in the daytime, when many border stops occur.
 There was no proof that the checkpoint conducted by the Michigan state police resulted in more
arrests than would have been made by using the same law enforcement resources in conventional
patrols
 A program whereby a state conditioned access to its toll roads on taking a uniformly administered
breathalyzer test would not be subject to the constitutional objections to random, suspicionless
seizures which control the case at hand.
 Sobriety checkpoints are essentially symbolic state action, which is an insufficient justification for an
otherwise unreasonable program of random seizures.
 Degree of intrusion is NOT slight. He refers to Nazis, Soviets and Japanese.
 Stevens believes that the checkpoints are a sham/ publicity stunts. Elected officials want to prove/
show that they are doing this to combat major problems. The arrest rate is low and can't prove a
deterrent effect.

INDIANAPOLIS V. EDMOND (2000)

Balancing test failed the govt this time
Facts  City of Indianapolis instituted narcotics checkpoints throughout the city.
 Police would stop driver, ask a few questions, and have a drug- sniffing dog search the car from the
outside.
 If the officer found any suspicious behavior, or the dog indicated any possession of drugs, the cops
would search the vehicle.

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Holding Police may not conduct roadblocks “whose primary purpose is to detect evidence of ordinary criminal
wrongdoing.” Such roadblocks must have a specific primary purpose, such as keeping roadways safe
from impaired drivers, or enforcing border security. A “general interest in crime control” is not a
justification for a regime of suspicion-less stops.
Majority  Unconstitutional to conduct a narcotics drug checkpoint and search cars without quantum of
(O’Conner) individualized suspicion, consent or special needs.
 Primary purpose is indistinguishable from general interest in crime control and thus it contravenes
the fourth amendment.
 There are no exigent circumstances because drug interdiction is not a threat to “life and limb.”
Distinguishes illegal alien and DUI cases.
 Vehicle stop at a highway checkpoint effectuates a seizure. Walking a dog around the car does not
transform a seizure to a search. (Sitz)
Dissent  Reasonableness asks only if there is a legitimate state interest and a minimal intrusion on the person’s
(Rehnquist) expectation of privacy.
 The seizure was reasonable in time, only 2-3 minutes.
 The dog sniff itself was not a search.
 The primary purpose test is stupid – police could say it was for a different purpose and do the same
thing.
 Should be a Balancing Test: Constitutionality of a seizure turns upon weighing the gravity of the public
concerns served by the seizure, the degree to which the seizure advances the public interest, and the
severity of the interference with individual liberty. Stops reasonable because they were effective.
Dissent  The one thing framers meant to attack were general searches without reasonable suspicion.
(Thomas)  Roadblocks are precisely without individualized suspicion of wrongdoing and in direct contrast to what
the constitution is supposed to protect.
 Bascuas: says this is only judge who says anything logically consistent
Notes  Operation Pipeline Case (DWB)
 Pipeline lets you stop everyone on the highway to search for drugs.
 If Edmond makes any sense at all is says “you cannot stop anyone on the highway for just any reason.”

C. Consent Searches

Voluntariness: A person may waive their fourth amendment protection by consenting to a search, and do not need to
actually know that they can deny the search.
 Consent cannot be coerced, however, does not have to be intelligent or informed. (as opposed to other waiver of
rights, e.g. council, etc…)
 Determining whether consent was voluntary or coerced: Courts must look at the tactics used by the police, along
with the particular vulnerabilities of the suspects (age, intelligence, and education, emotional state)

General Rule: validly obtained consent allows for warrantless search with or without probable cause
 To be valid, consent must be:
1) Voluntary (Schneckloth)
2) Given by someone with capacity
a) Real (Matlock) or apparent (Rodriguez) authority
b) But cf. (Fernandez)
3) Scope of search must not exceed consent given
Test: Totality of Circumstances

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 SCHNECKLOTH V. BUSTAMONTE (1972)
Voluntary consent requires: legitimate need for the search and absence of coercion.. totality of circ.
Facts  Police pull car over for missing headlight and license plate.
 When defendant could not provide license, the officer asked the individuals in the car to step out.
 Officer received consent to search the car, and when officer asked if the trunk opened, the driver
responded with “go ahead.”
 The officer found fraudulent checks in the trunk.
Holding To be voluntary, consent to a search need not include an admonition that consent may be withheld.
 When the subject of a search is not in custody and the State attempts to justify a search on the basis
of his consent, the 4th and 14th Amendments require that it demonstrate that the consent was in fact
voluntarily given, and not the result of duress or coercion, express or implied.
Majority  While knowledge of a right to refuse consent is a factor to be taken into account, the State need not
(Stewart) prove that the one giving permission to search knew that he had a right to withhold his consent.
 Police do not have to inform you of your right to refuse consent.
 Must look at all of the surrounding circumstances to determine whether consent was voluntary
(police really look at objective police behavior).
 Voluntarily given means absent of police coercion.
Dissent  Consent is a waiver – you cannot waive a right you are unaware of.
(Marshall)  Something is voluntary only if you are aware/ informed of your right sand you understand that there is
an alternative.
 Police deliberatively are creating a situation where they can take advantage of people.
Notes  Consent gives the police a right to search without probable cause, reasonable suspicion, or any
suspicion whatsoever. This is why bus cases end up relying on seizure.

Capacity / Third Party Waiver: Of the fourth amendment may be given by a third party who shares common authority
over, and access to the property.
 The third party needs only have apparent authority over the property, does not need actual authority.
 E.g. GF who moved out one month ago still has key and consents to let the cops search the room. Although she
does not have actual authority, the reasonable person in the cop’s shoes would believe that she had authority, thus,
consent was okay.

U.S. v. Matlock (1974)

Facts:
 Matlock indicted for robbery of bank and arrested in yard of house
 Before the arrest, officers entered his house with the permission of lady who lived there
 She consented voluntarily
 They searched a bedroom that was shared by both her and MATLOCK

HOLDING:
 The lady’s relationship to the bedroom was sufficient to make her consent to the search valid against
Matlock

Majority (White)
 Voluntary consent of any joint occupant of residence is valid against co-occupant
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 ILLINOIS V. RODRIGUEZ (1990)
“apparent authority” case
Facts  Policed gained access to the defendant’s apartment through the defendant’ girlfriend. [Who didn’t
actually live there]
 Girlfriend asserted that the apartment was “ours.” She said she had clothes and furniture there and
proceeded to unlock the door with a key and permit the officers to enter.
 Police found drugs in the apartment and arrested/charged defendant.
 Defendant moved to suppress evidence, claiming that girlfriend had no authority to consent to the
entry.
Holding Under the Fourth Amendment, a warrantless entry is valid when based upon the consent of a third party
whom the police, at the time of the entry, reasonably believe to possess common authority over the
premises, but who in fact does not.
Majority  “Consent” is just one factor among MANY which will determine whether a search is reasonable.
(Scalia)  Distinguishes Stoner – says in Stoner the police knew that the hotel clerk did not have the authority
to give consent to the search.
 Reasonable in this case means that the police did not do anything deliberately bad. [Good-faith]
 If the police reasonably think they have permission to go in, it will suffice to make the search valid.
Dissent  There must be a warrant, probable cause, or valid consent for a search – here there is none.
(Marshall  There is no consent because there is no valid waiver from the owner of the apartment.
)  There is no such thing as “apparent agency.”
 Waiver can only be done by someone who owns the right or an actual authorized agent.
Notes  Marshall has higher standard for consent because he thinks it is the only relevant factor to determine
whether there was a valid search.
 Marshall sees reasonableness through the perspective of the person being searched. [Reasonableness
= Warrant; Probable Cause; or Exception]
 Scalia has lower standard for consent because he thinks there are many relevant factors for
determining what is a valid search.
 Scalia sees reasonableness through the eyes of the police officer.

IV. PRETEXTUAL SEARCHES AND SEIZURES

Pretextual Drug Interdiction: A pretextual traffic stop involves a police officer stopping a driver for a traffic violation,
minor or otherwise, to allow the officer to then investigate a separate and unrelated, suspected criminal offense.

WHREN V. UNITED STATES (1996)

Any traffic offense is a legitimate legal basis for a stop (intention of cop is irrelevant)
Facts  Plain-clothes officer in an unmarked vehicle noticed vehicle stopped at a stop sign for a long period of
time. Suddenly, truck turned and sped off.

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  Officer stopped the vehicle to warn about traffic violation. While approaching the truck, officer
observed a bag of crack cocaine in the petitioners lap.
 Defendant motioned to suppress evidence arguing the stop was not supported by reasonable suspicion
or probable cause and that the traffic violation was pre-textual.
Holding Constitutional reasonableness of the traffic stop does not depend on the individual motivations of the
officer conducting the stop.
Unanimo  Arrest is not valid or invalid because of the subjective mindset of the officer… an arrest is valid or
us invalid based on the fact that probable cause existed. If officers have good reasons (objective
(Scalia) probable cause) for doing what they did they can arrest you. (9-0 Justices agree)
 You do not need to balance the Fourth Amendment interests against governmental interests when
dealing with traffic stops. No need bc there was probable cause.
 Cocaine was in plain view and justifies the arrest.
 Detention of a motorist is reasonable where probable cause exists to believe that a traffic violation
has occurred.
 AS to selective enforcement by race, that is a 14th amend issue, not a 4th amend
 ‘we are aware of no principle that would allow us to decide at what point a code of law becomes so
expansive and so commonly violated that infraction itself can no longer be the ordinary measure of
the lawfulness of enforcement.”
Notes  Probable cause to stop car = traffic violation
 Probable cause for arrest = crack / cocaine

OHIO V. ROBINETTE (1996)

Don’t have to inform traffic-stop drivers that they are free to go before seeking consent to search
Facts  Defendant stopped for speeding on highway. Background check revealed nothing incriminating.
Police officer then asked the defendant to step out of the car for a warning.
 While the defendant was out of the car, the officer asked for consent to search his car. The
defendant gave consent and the search revealed marijuana and MDMA.
 Ohio Supreme Court invalidated the search because the defendant was not informed that he was
“free to go.”
Holding Fourth Amendment does not require police officers to inform a motorist at the end of a traffic stop
that he or she is free to go before seeking permission to search the motorist’s car.
Majority  Reverses Ohio per se rule, which said that the police officer had to tell the person he was free to
(Rehnquist) go before they could ask for consent to search the car.
 Voluntariness is a question of fact to be determined by all of the circumstances.
 PENN v MIMMS: Once a car has been lawfully detained for a traffic violation, the cops may order
the driver to get out of the vehicle w/o violating the 4th.
 Cite to Wren subjective intentions play not role in probable cause 4th Amend analysis. Officer
was objectively justified in asking him to get out of the car.
Concurrence  Advisory opinion to state supreme courts.
(Ginsburg)  Ohio is free to uphold “first ask then tell rule” as a matter of state law.
 A state is free as a matter of its own law to impose greater restrictions on police activity than those
of the constitution – but this court relied on the federal constitution.
 State court should have been clear on its ultimate reliance on state law.
Dissent  At the time Robinette was asked for consent to search his vehicle the lawful traffic stop had come to
(Stevens) an end.
 There was no reasonable suspicion of some separate illegal activity that would justify further
detention – continued detention constitutes an illegal seizure – consent obtained from an illegal

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 detention is ineffective to justify an otherwise invalid search.

DRIVING WHILE BLACK

Summary  Operation Pipeline: program financed by the DEA and run by state and local police across the
country to stop drug mules that haul drugs for dealers. Motorists can be ticketed, interrogated and
searched simply because they looked or acted funny.
 CA Highway Patrol canine units stopped 34,000 cars in 1997, and only 2% were carrying drugs. 95%
of all Pipeline searches were dry holes.
 Police officer must pull some one over only if they violate the traffic code. BUT, the vehicle code
gives 1,500 reasons to pull someone over.
 Once your license and registration are returned to you, you are technically free to leave, and in the
eyes of the law, the traffic stop is over.
 If the police ask to search you, then everything after that is consensual. The police can search your
luggage, your person, etc.
 IF you refuse, then police can use the dog-sniff test.
 Whren unanimously endorsed this method of stopping people for minor traffic violations in order to
search their cars for drugs.
 Edmond rules that there canNOT be a drug checkpoint stop, BUT the DEA is running the biggest
Edmond pipeline search legally.

ILLINOIS V. CABALLES (2005)

Random dog-sniffs at traffic stops are okay
Facts  Operation Pipeline stop
 Officer pulls defendant over for going 71 in a 65 mph zone.
 Another officer heard over the radio, and while one officer was issuing the warning the other officer
walked around the car with a drug sniffing dog.
Holding A dog sniff conducted during a concededly lawful traffic stop, that reveals no information other than
the existence of contraband, does not violate the Fourth Amendment.
Majority  A seizure that is justified by a traffic stop is unlawful if it is prolong beyond the time reasonable
(Stevens) required to complete that mission.
 Dog sniff did not prolong the traffic strop…so no illegal seizure.
 Dog sniff in itself does not change the character of the traffic stop – dog sniff in itself did not
infringe on respondents protected interest in privacy.
 The use of a well-trained narcotics dog – one that does not expose contraband items that
otherwise would remain hidden from public view – during a lawful traffic stop, generally does not
implicate legitimate privacy interests.
 Dog sniff itself is not a search – only a binary result of drugs/no drugs.
 You do not need individual articulable suspicion to use the drug sniff dog.
Dissent  Refers back to Edmond primary purpose test.
(Souter)  Statistical evidence…dogs are not always right (the infallible dog is a creature of legal fiction)
Dissent  Majority just changed the entire circumstance of traffic stops, making it more intimidating and
(Ginsburg) adversarial than necessary. (violates Terry)
Notes  This case is the same as Edmonds, and comes out completely differently…they allow suspicionless
narcotics stops…justices don’t even realized they are doing this – like they live under a rock – and

42
 they clearly have no idea about “Pipeline.”
 This is essentially a “traveling roadblock.”

V. POLICE QUESTIONING
The Right to Counsel Before Trial: Once adversary judicial proceedings have commenced against the individual,
government efforts to “deliberately elicit” statements from him in the absence of his attorney violate the Sixth
Amendment, although the right may be voluntarily waived.
 Rationale: As soon as judicial proceedings begin, the right to council is triggered and any interrogation that the cops
deliberately try to get incriminating evidence from is then in violation of the Sixth Amendment if no counsel is
present.
 The right to counsel guaranteed by the Sixth Amendment had been read to require counsel during any trial where a
sentence of imprisonment is ultimately imposed and to any appeal that is afforded as of right. (Douglas v. CA)
 Sixth Amendment also guarantees the right to have effective assistance of counsel.
 Supreme Court held that a defendant is denied effective assistance when his counsel does not meet a minimum
objective standard of competency and there is a reasonable probability that competent counsel would have
obtained a more favorable result.
 Sixth Amendment states that a defendant shall enjoy the right to counsel in all criminal prosecutions. The Supreme
Court read this to guarantee counsel even before a trial including during the investigate state of a criminal case.

BROWN V. MISSISSIPPI (1936)

FACTS:
 Indicted for murder. No evidence to warrant the submission of case to jury aside from the confessions
 Brutally tortured then Brown admitted to murder
 Brown argues confessions were false and procured by physical torture
 State argues exemption from compulsory self-incrimination in the courts of the states is not secured by
any part of the Federal Constitution.

HOLDING:
 Evidence is inadmissible bc the state may not coercively obtain a confession and may not deny the
accused aid of counsel. It violates DUE PROCESS.

Majority (hughes)

 State is free to regulate the procedure of the court, however it is limited by DUE PROCESS of law
requirement

Spano v. New York (1959)

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FACTS:
 Spano was punched by ex pro boxer. He went back to apartment, got his gun, and shot him
 A boy was the only witness and the 3 friends of victim did not see the person who fired the shot
 Spano told his close friend, Bruno, he wanted to get a lawyer and that he was going to give himself up
 After giving himself up, his attorney left him with officers and told him not to answer any questions
 He was put in room with detectives and assistant district attorney who prosecuted the case
 Persistent questioning but he never answered. Each time he would ask for his attorney, they would
deny his request
 They used his friend Bruno to empathize with him by saying that Brunos wife and children would be in
danger if he didn’t confess. He eventually confessed. They drove over numerous bridges to see which
one was where the gun was.
 Evidence was admitted and he was sentenced to death.
 Spano argues: following indictment, no confession obtained in the absence of counsel can be used
without violating 14th Amend

HOLDING:
 Conviction reversed. Decided under the 14th amend traditional principles. Spano’s will was overborne
by pressure, fatigue, and sympathy falsely aroused.

Majority (Warren):

 Right to counsel was probably violated too but they didn’t get to that bc it was unconstitutional under
14th amend
 Police must obey the law. Life and liberty can be as much endangered from illegal methods used to
convict those thought to be criminals as from actual criminals
 CONCURRENCE (DOUGLAS) right of counsel extends to the preparation of trial, as well as the trial
itself. He was denied of that right.
 CONCURRENCE (STEWART) Absense of counsel enough to render it inadmissible. This is not a case
where the police were questioning a suspect in the course of investigating an unsolved crime. When he
surrendered he was under indictment.

MASSIAH V. UNITED STATES (1964)

ONLY APPLIES POST-INDICTMENT: cops cant deliberately elicit a statement w/o attorney present.
Right to counsel (6A) question, not coercion
Facts  Massiah and Colson were arrested and indicted for bringing 3.5 pounds of cocaine in his
commercial ship.
 Colson sold out to cops and agreed to have his car wiretapped.
 Once Massiah paid bail they engaged in a conversation in the wiretapped car where Massiah

44
 made statements about the commissions of the crime.
 Police used the statements Massiah made against him in court.
Holding Federal agents violate the Sixth Amendment when they deliberately elicit self-incriminating
statements without the presence of counsel from the moving party after his Sixth Amendment is
attached (post-indictment).
Majority  Evidence is not admissible.
(Stewart)  Sixth Amendment attaches (at least) at indictment.
 The statements were deliberately elicited by the police officers.
 Police had opportunity to coach Colson in obtaining incriminating statements.
 Police can continue investigation after indictment – however – they cannot obtain incriminating
statements without legal counsel present.
 We don’t want police infringing on privacy so much that we have a concern about conversations
we have in the privacy of our cars and phone booths.
Dissent  There was no unconstitutional interference with Massiah’s Sixth Amendment right to counsel.
(White)  The police neither denied Massiah the right to meet with his attorney, questioned him without his
attorney present, or spied on his meeting with his attorney.
 It is ok to create safeguards against coercion – but here there was none.
 The court’s ruling is nothing more than a constitutional policy of minimizing and eliminating the
use of evidence of voluntary out-of-court admissions and confessions.
 Wants the evidence to get into court.
 Drugs are bad.
Notes  At the LATEST, the Sixth Amendment kicks in at indictment.
 The courts are concerned that police are using investigatory tactics that are against American
values.
 Stronger rule than Miranda – No exceptions.

ESCOBEDO V. ILLINOIS (1964)

FACTS:
 Escobedo’s brother in law was shot and killed. Escobedo was arrested without a warrant and
interrogated
 Detective told him that they pretty much got him so he might as well admit to the murder. He
responded that he wanted to speak to his lawyer.
 Although he was not formally charged, he was in custody and could not walk out the door
 While in questioning, they repeatedly denied his request to speak to his attorney. Moreover, he even
saw his attorney and they waved at each other but they still couldn’t see eachother
 They did not advise him of his constitutional rights ever
HOLDING:
 When investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a
particular suspect, the suspect has been taken into police custody, the police carry out a process of
interrogations that lends itself to eliciting incriminating statements, the suspect has requested and
been denied an opportunity to consult with his lawyer, and the police have not effectively warned him

45
 of his absolute constitutional right to remain silent, the accused has been denied the assistance of
Counsel in violation of the 6th Amend.
 6A using 5A entitled to counsel when police had focused on him as suspect

MAJORITY (GOLDBERG):
 PREP-INDICTMENT (moves farther back than Massiah)
 If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement,
then there is something very wrong with that system.
 Our Constitution strikes the balance in favor of the right of the accused to be advised by his lawyer of
his privilege against self-incrimination, as opposed to the state’s interest in not diminishing the number
of confessions obtained pre-indictment.

DISSENT (STEWART)

 This case is not controlled by Massiah.

 Pre vs post indictment makes all the difference
 It was a voluntary admission during legitimate police investigation of unsolved crime
 No constitutional basis for demanding cops give advice

DISSENT (WHITE)
 Moves protections too far back
 We should not abandon vol/invol Test
 Whats the limit? Should people have lawyers before they commit crimes?
 Escobedo knew of his rights so he didn’t need to be advised

Custodial Interrogations: Miranda and its progeny, finding that the Fifth Amendment requires the police to inform a
defendant of his rights prior to engaging him in custodial interrogation.
 Custody: When there is either a “formal arrest” or its functional equivalent (whether the reasonable person would
not have felt free to terminate the encounter).
 Interrogation: Police conduct deliberately designed to evoke a confession as well as conduct the officers should
have reasonably foreseen would elicit such a response.
o Routine background questions regarding the suspect’s name, address and related matters are not
considered within the Miranda doctrine because they are not investigatory, do not involve psychological
intimidation, and are not likely to elicit an incriminating response.

MIRANDA V. ARIZONA (1966)

If a person in custody is to be interrogated, he must first be informed of his rights in CLEAR AND
UNEQUIVOCAL terms
Facts  Miranda was arrested and charged with raping an 18 year-old girl outside of Pheonix, AZ. After
being pointed out in a line up, Miranda was taken to an office where he was interrogated for a
few hours by two police officers. Miranda was never told his Fifth Amendment rights. Eventually,
46
 Miranda admitted to the crime and wrote a confession.
Holding To trigger your Miranda rights you must (1) be in custody and (2) be interrogated. Both
requirements are absolutely necessary. Miranda attaches outside criminal court proceedings.
Serves to protect persons in all settings where their freedom of action is curtailed in any significant
way or where a person is being compelled to incriminate himself.
Prosecution may not use statements stemming form custodial interrogation of the D unless it
demonstrates use of procedural safeguards(warnings) effective to secure the privilege against self-
incrimination
Majority  Primarily concerned that police are trained professional interrogators and that custodial
(Warren) surrounding are inherently psychologically coercive.
 Without adequate protective devices to dispel the compulsive atmosphere, no statement made
by the suspect can truly be a product of free choice.
 In this case, as in Escobedo, there was no notice of rights. The absence of counsel undermined
the privilege to remain silent.
 Refers to the FBI’s current procedure of informing suspects of their Fifth Amendment rights.

Dissent  The decision today handicaps the possibility of reform and hinders legislative intervention which
(Harlan) is more apt to make the right solution after careful analysis of much more detailed data that this
court has access to.
Dissent  This new rule kills the deterrent effect of law enforcement, which is based on swiftness and
(White) surety.
 Would like a totality of the circumstances test. Believes incriminating statements can be made
voluntarily. With the new rule, a criminal can voluntarily make incriminating statements that will
be invalid because the officer did not read the criminal his Miranda rights.
 There are other ways to prevent coercion. For example, specific time limits for interrogations,
having independent observers present, or require transcripts of the interrogation to determine
whether coercion took place.
 When confessions are corroborated with physical evidence they are the most reliable means of
convicting a criminal with certainty.
 Last, this rule may make it more difficult for suspects to exonerate themselves.
Notes  CUSTODY + INTERROGRATION = MANDATORY MIRANDA RIGHTS
 Miranda must always be read, no matter what. Even if you arrest justice White.
 Failure to ask for a lawyer does not constitute as a waiver of your right to counsel because not
everyone knows their rights. Silence is not a waiver. Last, waiver can be rescinded.
 D can waive rights but must be; 1) voluntary, 2) knowingly, 3) intelligently
 If at any point he asks for lawyer. No questioning after
 A Clockwork Orange – If you take away a persons will to choose good or evil, then good and evil
does not exist.

VI. THE RIGHT TO COUNSEL (6th Am.)

BREWER V. WILLIAMS (1977)

Christian burial speech = interrogation …. Deliberate elicitation
Extension of Massiah
Facts  Williams, a recently escaped mental institution patient, was suspected of killing a 10-year-old girl
47
 at a YMCA. McKnight, a lawyer, received a long-distance call from him and told him to turn
himself in to the Davenport police.
 The Des Moines police drove to pick him up, but would not allow McKnight to go with him.
McKnight told Williams not to talk to the officers about the girl until he got back. In Davenport,
Kelly, another lawyer, told Williams that police will not question him until he got back to Des
Moines.
 In the car, the police gave a speech appealing to William’s sense of religion and asked where the
girl's body is. The police said he knew the body was in Mitchellville even though they did not know
that. Williams directed the police to where the body was buried.
Holding The prisoner was denied his constitutional right to counsel under the Sixth and Fourteenth
Amendments, since he was entitled to the help of a lawyer at initiation of judicial proceedings, and
judicial proceedings had been initiated against him before the start of the automobile trip.
Majority  Massiah on point
(Stewart)  Christian burial speech amounted to an interrogation because the officers knew it was likely to
elicit a response. DELIBERATE ELICITATION = INTERROGATION
 Once adversary proceedings had commenced against the prisoner, he had a right to legal
representation when the government interrogated him, and the police detective's "Christian
burial" speech was tantamount to interrogation which would entitle Williams to the assistance
of counsel at the time he made his incriminating disclosures. In light of the prisoner's assertions
of his right to counsel, there was no reasonable basis for finding that the prisoner had waived
that right.
Concurrence  Agrees with Stewart, but wanted to out that the police knowingly set out to violate the
(Marshall) defendant’s sixth amendment right to counsel and his fifth amendment privilege against self-
incrimination.
 Police misconduct
Concurrence  It was clear from the record that there was no evidence that the prisoner knowingly and
(Powell) voluntarily waived his right to have counsel present when he made his incriminating statements,
beyond the fact that he ultimately confessed.
 The majority opinion made it clear that the right to assistance of counsel could be waived, after it
had attached, without notice to or consultation with counsel. This would be the case here if the
petitioner had proved that the police refrained from coercion and Williams on his own initiative
confessed the crime.
Concurrence  Underlying the surface issues in this case was the question whether a fugitive from justice could
(Stevens) rely on his lawyer's advice given in connection with a decision to surrender voluntarily. The state
could not be permitted to dishonor its promise to the prisoner's lawyer in the case at bar
especially if we are concerned about the individual’s effective legal representation.
 Once the right to counsel is invoked then that can only be taken away through the lawyer during
questioning. If the defendant volunteers the information with out being questioned, then the
sixth amendment right to counsel is waived.
Dissent  Williams made a valid waiver of his right to counsel when he led the police to the body. And even
(Burger) if there was no waiver, the exclusionary rule should not be applied to non-egregious police
conduct, such as was involved here, where the prisoner's disclosures were voluntary and
uncoerced (according to Burger), and where his guilt was manifest.
Dissent  The majority opinion that the right to counsel was violated whenever police engaged in any
(White) conduct, in the absence of counsel, with the subjective desire to obtain information from a
suspect after arraignment, was too broad. There was no "interrogation" by the police in the case
at bar, according to White. He would remand the case for consideration of the issue of
voluntariness.

48
 KUHLMAN V. WILSON (1986)
No interrogation if ONLY LISTENING… no deliberate elicitation
Facts  Defendant Wilson robbed a garage and killed the dispatcher. He claimed he witnessed the murder
but denied involvement and was jailed. Police instructed an informant to share a cell with the
defendant and not to question him, but to “keep his ears open.” After being told that his family
was upset because they thought he had killed the man, the defendant told the informer of his
involvement in the murder. The defendant was tried and convicted of murder, with the trial court
denying his motion to suppress the statements.
 The defendant sought habeas relief and was denied by the District Court, a decision that was
affirmed by the Court of Appeals. Then United States v. Henry, 447 U.S. 264 (1980) was decided,
and the defendant sought retroactive application of its rule to his situation. This habeas relief was
denied at the District Court level, but successful in the Court of Appeals. The prosecution was then
granted certiorari.
Holding When police plant an informer with a jailed suspect and the informer does not ask questions, the
suspect’s statements to the informer are admissible unless the informer took coercive steps other
than listening to elicit incriminating information. Key is no deliberate elicitation.
Majority  The Sixth Amendment is not violated when the state obtains incriminating statements from the
(Powell) accused by luck or happenstance after the right to counsel has attached.
 D must demonstrate that police and informant took some action, BEYOND MERELY LISTENING,
that was designed to elicit incriminating statements
Concurrence  Agreed with the result, saying that the case was distinguishable from the Henry case declaring
(Burger) government-planted agents hearing suspects’ statements passively as inadmissible, in that there
was a difference between placing an “ear” in the cell and placing a voice in the cell to encourage
conversation. He also expressed the view that habeas petitions needed to stop being abused.
Dissent  Stated that Henry did apply to cases like the one here, where subtle forms of stimulating
(Brennan) incriminating admissions were used.
 Stevens also dissented, making clear his opinion that the District Court did not abuse discretion in
entertaining the habeas petition.
Notes  This case is the most recent interpretation of Henry, and it reinforces its strict holding that
incriminating statements made to a passive informer are admissible. But makes clear that making
statements to a suspect does not make an informer “active.” So in essence, informers can make
statements, but not ask questions, even if the effects may be very similar.

ROTHGERY V. GILLESPIE COUNTY (2008) (WHEN 6TH AMEND IS ATTACHED)

FACTS:
 Rothgery had never been convicted of a felony but a criminal background check disclosed that he had been
 Officer relied on that to arrest him as a felon in possession of a firearm
 Put in jail for 3 weeks
 He had no money for a lawyer and requested for one but never got one
 He finally was assigned a lawyer after getting out of jail and his indictment was dismissed
 Rothgery claimed that if the County had provided a lawyer within a reasonable time after the hearing, he
would not have been indicted. He claims it was a violation of his 6 th Amend right to counsel.

HOLDING:
49
  Defendant’s initial appearance before a judicial officer, where he learns the charge against him and his
liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger
attachment of the 6th Amend.
MAJORITY (SOUTER)

 The attachment of the 6th amend right does not require that a public prosecutor (as distinct from a
police officer) be aware of that initial proceeding or involved in its conduct (brewer and Jackson)
 Doesn’t decide whether 6A had been violated, only when it gets attached
 CONCURRENCE (ALITO) Court is not deciding when the beginning of a substantive entitlement to the
assistance of counsel is. They are only deciding when 6th Amend attaches. Moreover, refusal to counsel
not a violation unless its at a critical stage in prosecution but were not deciding when that “critical
stage” is.

DISSENT (THOMAS)
 Decision is not supported by original meaning or interpretation of precedent
 Relies on blackstone’s definition of prosecution stage. It is the third stage after 1) arrest and 2)
commitment and bail
 Criminal prosecution in 6th Amend refers to the commencement of criminal suit by filing formal charges
in a court

VII. The Privilege Against Compelled Self-Incrimination (5th Am.)

COLORADO V. CONNELLY (1986)

Facts:
 Connelly approached officer and told him that he murdered someone. Officer advised him of his rights
and he said he understood them although he also told him that he had been in a few different mental
hospitals.
 He had flown from Boston to Denver to tell him that and he eventually led the officers to the scene of
the killing
 At trial, psychiatrist testified that Connelly was diagnosed was chronic schizophrenia and that’s why he
told the officer that there was a voice telling him to either confess or commit suicide
 This condition interfered with his volitional abilities and the ability to make rational choices

HOLDING:
 Coercive police activity is a necessary predicate to the finding that a confession is not “voluntary”
within the meaning of the DUE PROCESS CLAUSE of the 14th Amend. Taking of respondent’s
statements, and their admission into evidence, constitute no violation of that Clause.

MAJORITY (REHNQUIST):

50
  The most outrageous behavior of private party seeking to secure evidence does not make the evidence
inadmissible
 Confession may be unreliable, but that’s an evidentiary issue, not a constitutional issue
 Exclusionary rule means to be a deterrent to bad police conduct but there was none here
 CONCURRING (STEVENS) Distinguishes pre and post custodial statements. Involuntary pre-custodial
statements does not violate 5th Amend because they are not the product of state compulsion.
However, once in custody, questioning assumed a coercive nature. Could not continue questioning
without a valid waiver of Connelly’s rights unless he was provided with counsel. Waiver cannot be
made without free will.

DISSENT (BRENNAN):
 THE COURT denies Connelly his fundamental right to make a choice with a sane mind, in making a
determination that could allow the state to deprive him of liberty or even life
 All confessions should be distrusted

SCHMERBER V. CALIFORNIA (1966)

Testimonial capacities – difference btwn testimonial evidence and physical evidence is THOUGHT
5th Am. protects your thoughts (not physical evidence)
Facts  Petitioner Schmerber was convicted of DWI of alcohol based on a chemical analysis that revealed
his intoxication. The blood was taken at the direction of a police officer at the hospital where the
petitioner had been taken following an accident, over the petitioner’s refusal.
Holding The Fifth Amendment privilege against self-incrimination “protects an accused only from being
compelled to testify against himself, or otherwise provide the State with evidence of a testimonial
or communicative nature, and that the withdrawal of blood and use of . . . analysis . . . did not
involve compulsion.”
Majority  The Supreme Court based its finding on precedent. While acknowledging that the State
(Brennan) “compelled petitioner to submit to an attempt to discover evidence that might be used to
prosecute him,” it did not mean that he had been compelled “to be a witness against himself.”
 The Court concluded that the privilege is “a bar against compelling ‘communications’ or
‘testimony’ but that compulsion which makes a suspect or accused the source of ‘real or
physical evidence’ does not violate it.” The Court also listed fingerprints, photographs,
measurements, writing or speaking samples, and the like as not being privileged.

Also a 4th Am. issue in this case: Whether or not drawing blood was an unreasonable S/S
 Not unreasonable because exigent circumstances: BAC starts diminishing after drinking stops
(threatened the destruction of evidence)
 Blood test itself was reasonable because 1) the tests are commonplace, 2) the quantity of blood
extracted was minimal, 3) no risk, trauma, or pain, and 4) conducted by a licensed doctor in a
hospital setting.
Dissent  BLACK Argued that the blood sample was “so that a person who analyzed it could give evidence
(Warren / to convict him had both a testimonial and a communicative nature. Blood test was testimonial.
Black /  DOUGLAS 4A clearly states “in their persons”
Douglas)  No clearer invasion of this right to privacy can be imagined than forcible bloodletting of the kind

51
 involved here
Notes  Bascuas: Read this case just for the holding
 Since the blood test evidence was neither petitioner’s testimony nor evidence relating to some
communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.

Baltimore Dept. of Social services v. Bouknight (1990)

FACTS:
 Bouknight accused of abusing child. After giving the child to social services dept. several times, they
told her she could have custody over her child as long as she did not violate the rules of protective
order
 After violation of rules, court granted order to remove child but and place her in foster care
 She did not reveal the location of child and was held in contempt for not producing the child
 The court held her in prison until she “purged herself of contempt by either producing the child before
the court or revealing where she was.”

Holding:
 A mother cannot invoke the 5th Amend privilege against self-incrimination to resist an order of the
juvenile court to produce the child. A person may not claim 5 th Amend protection based upon the
incrimination that may result from the contents or nature of the thing demanded.

MAJORITY (O’CONNOR):
 5th Amend privilege may not be invoked to resist compliance with a regulatory regime constructed to
effect the State’s public purposes unrelated to the enforcement of its criminal laws.
 Bouknight consented to care according to the custodial order’s conditions
 Orders to produce child usually don’t reveal any criminal activity. So they cannot be considered efforts
to gain testimonial evidence.

DISSENT (MARSHALL):
 Majority concedes that production of child can be testimonial and possibly incriminating, but not 5A
violation
 Downplays risk of criminal prosecution, including abuse, neglect, homicide. She could’ve been sincerely
scared.
 She was a MOTHER, not a “custodian:” Rights not extinguished. Not acting as agent of state; not
artificial entity.
 Same objection as special needs—any regime could be seen as non-criminal
 Individualized inquiry preferable because it allows privilege to turn on concrete facts of the case
 Privilege test better: implications, setting, that response or explanation why no response is dangerous
 Majority says that Civil Regulatory scheme can override 5th Amend rights only when it is targeted at the
general public. However, this scheme is targeting “a selective group inherently suspect of criminal
activities.” Not all such abuse or neglect rises to criminal abuse.

HUBBELL (200) (NOTE CASE)

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FACTS:
 Hubbell was compelled to produce documents that might incriminate him
 Hubbell refused and was granted immunity if he was to produce docs
 He was then indicted based on info in the documents
 DC dismissed charges on the grounds that the production was testimonial

Supreme Court:
 Distinction between production and creation. Cant force to create document but may require to turn
over
 Once makes use, then testimonial
 Production of documents was testimonial because the gov’t did not show that it had prior knowledge
of the whereabouts of the documents produced by the respondent.
 It was necessary for the respondent to make use of “the contents of his own mid” in indentifying the
documents. It was like telling an inquisitor the combination to a wall safe, not like being forced to
surrender the key to a strongbox.

VIII. ADMINISTERING MIRANDA

 Miranda is triggered by “custodial Interrogation”
 What is custody? Berkemer (Misdemeanors, traffic stops)
 What is interrogation? Innis
 Miranda imposes both positive and negative obligations
A. Interrogation

RHODE ISLAND V. INNIS (1980)

Interrogation = express questioning OR its FUNCTIONAL EQUIVALENT (anything that police SHOULD
KNOW is reasonably likely to elicit a response)
Facts  Police arrested a guy suspected of shooting a cab driver in the back of the head. Police officers
properly read him his Miranda warnings the defendant asserted his right to remain silent. At that
time, police stopped questioning. On ride back to police station, police officers engaged in
conversation with one another (not the suspect) intimating that it would be horribly tragic if a
little handicapped girl got ahold of the shotgun because defendant was arrested near a school of
the mentally handicapped. Defendant told the police where the gun was located.
Holding A person is not interrogated unless he is directly questioned or subjected to the functional
equivalent of direct question. “subtle compulsion” does not amount to interrogation.
Majority  Fifth amendment was not violated.
(Stewart)  Definition of Interrogation according to the court: “can only extend to words and actions on the
part of police that they should have known were reasonably likely to elicit an incriminating
response
 Defendant was not “interrogated” because the police officers were just talking to each other
and discussing what would happen if a handicapped girl found the gun.
 Functional Equivalent: Words or actions that are reasonably likely to elicit an incriminating
response (all 9 justices agree on this definition)
 Nothing in the record shows that Innis was particularly susceptible to sensitivity about a little

53
 girl getting shot…
 The record does NOT indicate that, in the context of a brief conversation, the officers should
have know that respondent would suddenly be moved to make a self-incriminating response.
Dissent  Majority’s definition of interrogation is correct (objective) but the application to this case was
(Marshall) incorrect
 Two officers were in the back of the car, one in the front, conversation began immediately, and
the police appealed directly to the defendant’s conscience – under these circumstances an
objective inquiry shows this was an interrogation. If conversation was directed to the suspect it
would surely have been interrogation.
Dissent  This decision prompts police to ignore defendant’s assertion of Fifth Amendment rights.
(Stevens)  Because we don’t know what is likely to illicit an incriminating response, it is not whether the
questions were meant to elicit an incriminating response, but whether their actions / questions /
conduct were meant to elicit ANY response.
 Police can completely avoid Miranda simply by not using question marks – this turns Miranda into
a trap and allows police to use it as bait.
 Footnote 10: Should use an objective test of whether a reasonable person would believe that the
police statements were designed to elicit any response rather than a subjective test of whether
police should have known they were exploiting a weakness or otherwise deliberately eliciting an
incriminating response.
Notes  Memory Device: Officer don’t need to put a question mark in this (Innis), if he uses functional
equivalent, fifth amendment is violated.
 CLASSIC INTERROGATION CASE
 5th Am. interrogation test (express questioning or functional equivalent)

NEW YORK V. QUARLES (1984)

Public safety exception to Miranda
Facts  Man is run down in grocery store after a woman accuses him of rape with a handgun. Police
tackle suspect, notice empty holster and ask where the gun is located. Man tells the police where
the gun is and they find it. Suspect moves to suppress both the statements and the physical
evidence.
Holding There is a public safety exception to Miranda requirement that does not depend on the motivation
of the individual officer. When there is a threat to public safety, an officer does not need to read
the suspect his Miranda rights before asking questions. The answers to these questions will not be
excluded. This outweighs the need for protecting 5th Amend privilege against self-incrimination.
Majority  In apprehending the suspect, police were confronted with immediate necessity of ascertaining
(Rehnquist) the whereabouts of the gun in the interest of officer and public safety.
 This is NOT a subjective standard because it is unfair to officers who need to make split second
decisions to prevent evidence without Miranda when faced with a volatile situation.
 The value of public safety outweighed the potential costs in failing to obtain evidence.
 When there is no exigency, there is no exception.
Concurrence  I would allow the physical evidence, but omit the statements.
(O’Conner)
Dissent  These statements should be excluded because they were coerced. Also, there is no real risk in
(Marshall) this case. (4 police to 1 suspect, no guns drawn). Today’s decision erodes the clarity of Miranda.
 Doesn’t believe there are exceptions to Miranda, must always inform suspects of Miranda rights.
Notes Memory Device: Can’t Quarrel (Quarles) with the public safety exception

ILLINOIS V. PERKINS (1990)

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 Undercover agent exception to Miranda (Miranda rights in jail)
Facts  After obtaining information that a murder suspect was being held in jail on an unrelated charge,
police placed an undercover agent in jail with the suspect. The agent engaged the suspect in
conversations, and the suspect then made incriminating statements about the murder. The trial
court granted the respondent Lloyd Perkins’s motion to suppress the statements made at the jail
at his murder trial, and the appellate court affirmed. The state of Illinois was granted certiorari.
Holding Miranda warnings are not required when an undercover agent asks questions that could result in
incriminating statements.
Majority  The Fifth Amendment privilege versus self-incrimination is not implicated when a suspect is not
(Kennedy) aware they are speaking to law enforcement, and then gives incriminating statements, thus
admit the statements into evidence.
 There is no convergence here between custody and official interrogation, thus admit the
statements made to the undercover agent.
 This is different from the situations where Miranda warnings are necessary since the suspect
was motivated only by his desire to impress his fellow inmates, had no reason to think that the
agent had legal authority to force the suspect to give testimony, and showed no signs of being
intimidated.
 Sixth Amendment right to counsel concerns do not apply since no charges had been filed at the
time of interrogation.
 Coercion is determined from the perspective of the suspect
Concurrence  The deliberate use of deception by police is incompatible with a system that presumes innocence;
(Brennan) however, Miranda rights do not apply here.
 Believed that if the suspect had invoked Miranda on unrelated charges, he might be able to
challenge the statements coming into evidence. Also, he may have invoked Sixth Amendment
rights earlier had he been formally charged on the unrelated charge. There also may even have
been a Fourteenth Amendment due process claim a result of the police’s deception.
Dissent  Familiarity with confinement does not turn incarceration into a noncustodial arrangement.
(Marshall)  Because Police interrogated Perkins while he was in custody, Miranda required that the officer
inform him of his rights.
 Miranda also included protections versus police deception, and thus the ignorance of the agent’s
real identity did not eliminate the compulsive nature of the exchange. Also, believed this clouded
the doctrine of Miranda, and established a large loophole for law enforcement in infringing on
suspect’s Fifth Amendment rights.
Notes  Memory Device: Undercover Agent, perks (Perkins) of the job.
 Miranda forbids coercion, not strategic deception
 The “Under Cover Agent” exception
 The purpose of Miranda is to provide suspects of their rights in a “police-dominated” atmosphere.
That atmosphere is not present in this case.
 The dangers of coercion results from the interaction of custody and interrogation.
 Whether statements can be admitted depends on whether suspect knows that he is speaking to a
governmental agent.
 Public policy: Undercover agents are needed in cells to detect prison violence.

B. Custody

55
 J.D.B. v NORTH CAROLINA (2011)
Age is relevant when determining custody for Miranda purposes
Facts  13-year old kid taken out of class to be interrogated about his alleged involvement in a home
break-in
 Officers questioned him without contacting his legal guardian and without reading him his
Miranda rights
Holding So long as a child’s age is known to the officer at the time of questioning, or would have been
objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with
the objective nature of that test.
Majority  Common sense that kids will feel bound to submit to police questioning in situations where an
(Sotomayor) adult would feel free to leave
 Ct. shouldn’t make itself blind to common sense
 Custody is determined by looking at 1) the circumstances surrounding the interrogation, and 2)
whether a reasonable man would have felt free to end the interrogation and leave. (objective
test)
 Children are less mature and responsible; lack experience, judgment, and perspective
 Children are more vulnerable to pressure
 Children cannot be viewed simply as miniature adults
Dissent (Alito)  Miranda rule needs to be clear and objective
 The first part of the courts test “so long as childs age is apparent at the time” over turns the rule
that initial determination of custody does not depend on subjective views by officers. The second
part of courts test will generate time consuming litigation over reasonable officer’s perceptions.
 Personal characteristics should always be ignored
 While minors may be more vulnerable, so are many people over the age of 18; why is age looked
at differently than intelligence or cultural background? Sensitive people is not the objective
standard but they still have opportunity to keep statements out of court through the
“voluntariness test”
 3 reasons why its bad to go down the road majority decides to go on:
1) many minors subjected to interrogation are near age of majority
2) Miranda rule as it was already takes into account setting in which the questioning occurs so
that will address many of these problems
3) Courts may take special care, in cases like this, to ensure that incriminating statements were
not obtained through coercion by applying the voluntariness test

BERKEMER V. MCCARTY (1984)

Miranda applies as soon as you are in custody (even if for a simple traffic offense)
Facts  Defendant was pulled over for swerving, etc. Police officer asked him to get out of the car and
he was having trouble standing. Police gave him a sobriety test and he failed. Police officer
then concluded (in his mind) that he was going to cite him with a traffic offense and therefore
his freedom to leave would be terminated. After sobriety test, police officer asked him if he’d
been drinking. Defendant admitted to smoking weed and drinking. After, defendant was
arrested and taken to county jail. At jail he was given BAC test and passed. They questioned
him again and he answered. At NO POINT at traffic stop or jailhouse was defendant ever
informed of his Miranda Rights.
Holding 1) Miranda warnings must be read, even when only arrested for misdemeanors (including when

56
 arrested for traffic offenses)
2) Miranda does not apply when officer stops person for simple traffic violations
Majority (Marshall)  Miranda warnings must be read even for misdemeanors.
 Miranda warnings do not need to be read for traffic stops because there is no custody.
 Traffic stops are more public (not cut off from the world / less coercive environment)
 Traffic stops are common and we know that they are relatively short and quick
(presumptively temporary)
 Rationale: The pressures inherent in a custodial interrogation from which Miranda was
concerned are not present in traffic stops without arrests.
 Court holds that custody only starts at arrest.
Concurring/dissent  Court did not have to decide whether Miranda applies to traffic stops because Court only
s on part 3 granted certiorari on whether Miranda applies to misdemeanors.
(Stevens)
Notes  This case distinguishes custody from seizure.
 Bascuas: Determining custody test: 1) Whether people know what to expect; 2) Whether
you were isolated from the world
 Every arrest is both custody and a seizure.
 NOT ALL SEIZURES ARE CUSTODY. (i.e. regular traffic stops)

FACTORS TO CONSIDER WHEN DETERMINING IF SOMEONE WAS IN CUSTODY FOR MIRANDA PURPOSES:
- Where interrogation occurred
- How long it lasted
- What was said
- Physical restraints on D’s movements
- Was D allowed to leave after questioning was over
- Age

C. Invocation and Waiver of Miranda Rights

 Waiver: In order for a suspect to successfully waive his right to Miranda, the waiver must be “knowing, intelligent,
and voluntary.”
Knowing and intelligent: (1) The suspect must have understood his right to not talk or to talk with his lawyer
present, and (2) that he appreciated the consequences of foregoing these rights and speaking to the cops.
Voluntary: As long as police overreaching did not coerce the waiver, it is deemed to be voluntary.

 Invocation of right to remain silent with a subsequent waiver (5th): It must be demonstrated that (1) his right to
silence, once invoked, was honored and questioning immediately stopped and (2) that the subsequent waiver
occurred intelligently, knowingly and voluntarily.

 Invocation of right to counsel with subsequent waiver (6th): It must be demonstrated that (1) the suspect himself
initiated the further communication; and (2) that a subsequent knowing, intelligible, and voluntarily waiver occurred

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Michigan v. Mosley
FACTS:
 Suspect arrest on tip that he was connected to robberies
 He was questioned by the first detective about the robberies at the restaurant. He was read his rights
and stopped questioning immediately after Mosely did not want to talk about it
 Few hours later, a second detective questioned him about a murder that happened at a different place
and time. He initially denied involvement but after detective told him his friend implicated him, he
admitted to being involved.

ISSUE:
 Whether the conduct of police that led to Mosley’s incriminating statement violated the Miranda
guidelines, so as to render the statement inadmissible in evidence

HOLDING:

 A reasonable and faithful interpretation of the Miranda guidelines must rest on the intention of the
Court to adopt “fully effective means… to notify the person of his right of silence and to assure that the
exercise of the right will be scrupulously honored.”
 “the right to cut off questioning” was fully respected so statement is admissible
MAJORITY( STEWART)
 Interrogation must cease when person indicates he wants to remain silent
 Police here resumed questioning only after a significant period of time and a fresh set of warnings, and
restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.

CONCURRING (WHITE)
 He agrees with Court but disagrees with the Court’s assertion that a voluntary statement, given right
after D says he wants to remain silent (doesn’t need to be a sufficient period of time after like the
majority insists), should be admissible
 Wants the court to adopt voluntary test approach

DISSENT (BRENNAN, MARSHALL)

 Dissent agrees with Court that “questioning shall cease” does not mean you cant ever question him
again; however, they do not think some test the majority comes up with should determine it either
 The guidelines should be sensitive to reality in that compulsion to speak in an isolated setting (police
station) is greater than in public like a courtroom
 Guidelines should follow Michigan state law—suspect arraigned and provided counsel before
questioning.
 Miranda held that “presence of counsel would be an adequate protective device necessary to make
police interrogation conform to the dictates of privilege.”

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 EDWARDS V. ARIZONA (1981)
You need to CLEARLY invoke your right to counsel, and cops need to respect it
Facts  Defendant was arrested for burglary, robbery, and murder. After asserting his right counsel, policed
stopped interrogation. The next day the police came back to interrogate him again. The man
asserted his rights again – the guard told him he had to talk to the police – so he went and the police
Mirandized him again. Later, during this interrogation, defendant gave incriminating statements.
Holding Once a suspect requests his right to counsel, all questioning must cease until counsel is present or the
suspect voluntarily initiates the interaction.
Majority  The use of Edward’s confession against him at this trial violated his rights under the Fifth and
(White) Fourteenth Amendments as construed in Miranda v. Arizona.
 Once right to counsel is invoked, police cannot question until counsel is present, unless there is
valid waiver.
 We need to create a bright-line rule to limit the uncertainty and judicial discretion making
decisions on a case-by-case basis.
 Having exercised his right on January 19th to have counsel present during interrogation, petitioner
did not validly waive that right on the 20th.
 To be a valid waiver, it must be a knowing and valid relinquishment and abandonment of that
right.
Concurrence  It doesn’t matter who initiates contact … it only matters if waiver is voluntary.
(Powell)
Notes  Memory Device: Not another word (Edwards) until counsel is present, if counsel is requested.
 Under Miranda (the Fifth Amendment), you must EXPLICITLY assert your right to an attorney.
 If you initiate contact with the police, this can be a waiver of your previous assertion of your right to
counsel.

MARYLAND V. SHATZER (2010)

Time limit on EDWARDS Rule is 14 DAYS!
Facts  In 2003, a police detective tried to question respondent Shatzer, who was incarcerated at a Maryland
prison pursuant to a prior conviction, about allegations that he had sexually abused his son. Shatzer
invoked his Miranda right to have counsel present during interrogation, so the detective terminated
the interview. Shatzer was released back into the general prison population, and the investigation
was closed. Another detective reopened the investigation in 2006 and attempted to interrogate
Shatzer, who was still incarcerated. Shatzer waived his Miranda rights and made inculpatory
statements.
 The trial court refused to suppress those statements, reasoning that Edwards v. Arizona , 451 U. S.
477 , did not apply because Shatzer had experienced a break in Miranda custody prior to the 2006
interrogation. Shatzer was convicted of sexual child abuse. The Court of Appeals of Maryland
reversed, holding that the mere passage of time does not end the Edwards protections, and that,
assuming, arguendo , a break-in-custody exception to Edwards existed, Shatzer’s release back into
the general prison population did not constitute such a break.
Holding Because Shatzer experienced a break in Miranda custody lasting more than two weeks between the
first and second attempts at interrogation, Edwards does not mandate suppression of his 2006
statements.
Majority  The Court reasoned that a suspect who has been released for at least two weeks following the
(Scalia) custodial interrogation in which he initially asserted a right to counsel will have had sufficient time to
re-acclimate to his normal life, consult with counsel, family, and/or friends, and rebound from any
lingering coercive effects of the prior custody.

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  In adopting a bright-line fourteen-day rule, the Court noted the need for a clear and certain rule for
law enforcement officers. In his concurring opinion, Justice Thomas disagreed with the Court’s
creation of a fourteen-day rule, which he characterizes as arbitrary.
 The Court next turned to the question of whether Shatzer’s return to the general prison population –
where he was serving an unrelated sentence – constitutes a “break in custody” for Miranda
purposes. The Court – in a part of the opinion joined by seven Justices, including Justice Thomas –
held that it did. The Court reasoned that the release of a suspect who has been previously
incarcerated back into the general prison population is a release to the suspect’s “accustomed
surroundings and daily routine,” in which the suspect regains the same control over his life as he
possessed prior to the interrogation.

CONCURRING (STEVENS)

 agreed that the protections provided by Edwards do not live on eternally, but he expressed
concern that a suspect who invokes his right to counsel but is not in fact provided with counsel is
then able to voluntarily waive that right.
 Court also did not adequately support its conclusion that a fourteen-day break in custody
removes the coercive effect against which Edwards was designed to protect; instead, the
majority opinion relies on assumptions that are even more speculative when the break from
interrogation merely returns the suspect to the prison environment.
 He ultimately concurred in the judgment, however: although Shatzer was never in fact provided
with counsel, the substantial passage of time between the two interrogations precluded Shatzer
from arguing that he had been denied counsel.

Notes  A BREAK IN CUSTODY OF AT LEAST 14 DAYS ENDS THE PRESUMPTION OF INVOLUNTARINESS

ESTABLISHED IN EDWARDS

BERGHUIS V. THOMPKINS (2010)

INVOCATION of Miranda rights  Must be clear and unambiguous
WAIVER of Miranda rights  Can be implied (i.e. not necessarily express)
You can waive your rights, and then change your mind and later invoke
Facts  A Michigan state court convicted Van Chester Thompkins of first-degree murder, assault with intent
to commit murder, and several firearms related charges.
 After exhausting his remedies in Michigan state court, Thompkins petitioned for habeas corpus relief
in a Michigan federal district court. The district court denied the petition.
 On appeal, Thompkins argued that his confession was obtained in violation of the Fifth Amendment
and that he was denied effective counsel at trial. The Sixth Circuit held that the Michigan Supreme
Court's finding that Thompkins waived his Fifth Amendment right was unreasonable because
Thompkins refused to sign an acknowledgement that he had been informed of his Miranda rights
and rarely made eye contact with the officer throughout the three-hour interview. The Sixth Circuit
also held that the Michigan Supreme Court improperly determined that Thompkins was not
prejudiced by his counsel's failure to request a limiting instruction related to his separately tried co-
defendant's testimony.

Holding The Court held that unless and until the suspect actually stated that he was relying on the right to
remain silent, his subsequent voluntary statements could be used in court and police could continue to

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 interact with (or question) him. The mere act of remaining silent was, on its own, insufficient to imply
the suspect has invoked his or her rights. Furthermore, a voluntary reply even after lengthy silence
could be construed as implying a waiver.
Majority  Did the Sixth Circuit improperly expand the Miranda rule when it held that defendant's Fifth
(Kennedy) Amendment rights were violated?
 Did the Sixth Circuit fail to give the state court deference when it granted habeas corpus relief with
respect to defendant's ineffective counsel argument when there was substantial evidence of the
defendant's guilt?
 Yes. Yes. Mr. Thompkins failed to invoke his Miranda rights to remain silent and to counsel because
he failed to do so "unambiguously."
 Mr. Thompkins waived his Miranda right to remain silent when he "knowingly and voluntarily" made
a statement to the police.
 The Court further held that, even if Mr. Thompkins' counsel was ineffective, he cannot show he was
prejudiced by counsel's deficient performance – a prerequisite to establishing that his Sixth
Amendment right was violated.

DISSENT (SOTOMAYOR)

 She reprimanded the majority for retreating from the broad protections afforded by Miranda,
stating that now a criminal suspect waives his rights simply by uttering a "few one-word
responses.”

D. Trickery

Moran v. Burbine
Facts:
 At first, respondent refused to waive his rights
 Respondents sister called to speak to the attorney who was providing legal assistance for her brother.
The attorney who took her call couldn’t reach him so she called another attorney about her concerns.
 That attorney, called the police station in an attempt to be transferred to the detective division. After
being transferred, she told the operator that respondent’s attorney was unavailable and that she
would be his legal counsel if they were to question him and the person responded by saying they were
not going to anymore
 D did not know of sisters efforts to get an attorney. An hour later, he signed form understanding right
to counsel but he explicitly stated he didn’t want an attorney
 Eventually, signed 3 statements admitting to the murder


ISSUE:
 Whether either the police’s conduct or respondent’s ignorance of the attorney’s efforts to reach him
taints the validity of the waivers and therefore requires exclusion of the confessions

MAJORITY (O’CONNOR)
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  Respondent validly waived his right to remain silent and to the presence of counsel. Thus, statements
are admissible
 RULE 1) waiver must be voluntary, 2) waiver must be made with full awareness of the nature and
consequences of decision
 COA believed it met rules requirements, although conduct of police was “deliberate and reckless” by
failing to inform him of attorneys call and this undermined validity of an otherwise valid waiver
 SC Disagrees and reverses
 Events occurring outside the presence of the suspect and entirely unknown to him has no bearing on
the capacity to knowingly and comprehend relinquishment of the constitutional right
 State of mind of police is irrelevant to the question of the intelligence and voluntariness of
respondent’s decision to abandon rights
 Even deliberate deception of an attorney could not affect a suspect’s decision to waive unless
he was aware of it
 No trickery here
 Miranda warnings are not rights protected by Con but they are measures to insure suspect right
against compulsory self-incrimination
 In balancing society’s legitimate law enforcement interests and suspect’s 5 th amend rights, we decline
to further extend Miranda’s reach
 Miranda holds that full comprehension of rights to remain silent and request an attorney are sufficient
to dispel whatever coercion is inherent in the interrogation process (purpose)
 The awareness of the phone call would not dissipate the coercion but only might’ve convinced
respondent to not speak at all (this doesn’t effect Miranda’s purpose)
 In regards to respondent’s 6th Amend concerns, the interrogation took place before the initiation of
adversary proceedings so the right has not attached yet
 Response to respondent’s due process concern Court does agree that egregious police behavior
does violate due process, but in this case police conduct was fine

DISSENT (STEVENS)
 Court holds that police interference with an attorney’s access to her client is constitutional. However,
so many state court opinions that deem it a violation of the Federal Con
 The burden of proving the validity of a waiver is on the gov’t and it is a heavy burden
 Miranda holds that any evidence the accused was threatened, tricked,… show that D didn’t voluntarily
waive his privilege
 Court doesn’t admit info of attorney would have been useful to respondent, thus it would serve
Miranda’s goal of dispelling the compulsion inherent in custodial interrogation
 Withholding info results in increased risk that individual will make unintelligent waiver of rights
 It also violated due process because police interference with communications is a requirement of
fundamental fairness under the due process clause

Colorado v. Spring
FACTS:
 Respondent shot and killed man in Colorado during a hunting trip

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  However, based on an informants tip that he dealt in the transportation of stolen firearms, he was
arrested during an undercover purchase based on this charge
 During 1st interrogation, agents asked about firearms, then about murder, but he said he didn’t commit
the murder
 In 2nd interrogation in jail cell, Miranda warnings were given and respondent signed that he understood
them and they also informed him that they wanted to question him about the murder
 He said he wanted to get it off his chest and he eventually confessed

ISSUE:
 Whether suspect’s awareness of all the crimes about which he may be questioned is relevant to
determining the validity of his decision to waive the 5th Amend privilege

MAJORITY (POWELL)
 COL SC yes it is
 U.S. SC no and reverses. 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 Amend privilege.
 Voluntary allegation that police failed to supply him with certain info is not coercive
 Knowingly and intelligently Con doesn’t require suspect to know and understand every possible
consequence of waiver, it just guarantees that D may not be compelled to be a witness against himself
 Failure to inform him of the potential subjects of interrogation doesn’t constitute police trickery, even
more mere silence of police officers on subject matter of interrogation is insufficient to invalidate
suspect’s waiver of Miranda rights

DISSENT (MARSHALL)
 In light of the “totality of circumstances,” suspect’s decision to waive this privilege will necessarily be
influenced by his awareness of the scope and seriousness of the matters under investigation
 Wisdom of info and validity of waiver coincide
 Requiring officers to articulate at a minimum the crime the suspect has been arrest could contribute
significantly toward ensuring that the attest was in fact lawful
 His decision to waive rights for federal firearms charge cannot be seen as waiver of right for another
charge
 Questioning of an entirely separate and more serious crime can take an unfair advantage of the
suspect’s psychological state

MISSOURI V. SEIBERT (2004)

Facts  Respondent, Seibert, conspired with her son and several of his friends to burn her mobile home with
two mentally ill children inside. Five days after the incident, respondent was interrogated at the
local police station. Prior to receiving Miranda rights, the respondent admitted to the crime. After
her initial admission, the police read the respondent her Miranda rights and then questioned her
until she repeated her previous admission.

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  The most important thing in this case is that officer never told Seibert that the previous statement
could not be used.
Holding When the question first-tactic produces a confession prior to Miranda warnings, a repeated confession
after the Miranda warnings will be inadmissible unless a reasonable person would have perceived the
second line of questioning as a new and distinct experience.
Majority  If Miranda warnings are administered in the middle of interrogation where the questioning is
(Souter) viewed as a continuation of previous questioning, it is viewed as a violation of Miranda.
 Without being told her prior statement was inadmissible, no reasonable person would believe
Miranda rights would have any effect after prior interrogation. (A person cant properly exercise
their rights where the police already heard their incriminating statement)
 Even if you give Miranda warnings – still need to complete voluntariness test and make sure that
the admission was not coerced. (Do not need to conduct a voluntariness test because the warning
was not effective)
 “The second confession was admissible only if the intermediate Miranda warnings were effective
enough to accomplish their objective.”
Concurrence  Deliberate and calculated attempt to undermine Miranda cannot yield admissible evidence.
(Kennedy)  Subjective intent of the officer matters -- if the officer did not realize the suspect was in custody the
first time he questions him, the statement may be admissible after the suspect is properly
Mirandized.
 Three times you can use statements obtained in violation of Miranda: 1) Impeachment 2)
Protection of safety 3) Where physical evidence was obtained in reliance on statements taken in
violation of the rule. (These three circumstances don’t undermine Miranda’s central concerns)
 Problem: Now officers can always say it was good faith.
Dissent  Subjective intent test is extremely problematic.
(O’Conner)  We should use voluntariness test based on 1) time 2) distance 3) whether the person thinks this is a
second line of questioning.
 Doesn’t think we should necessarily immunize sometime anytime they say something incriminating
prior to Miranda.
Notes  Memory Device: Roger and Ebert (Seibert) give two thumbs up if repeated confession is given and
reasonable person perceives new experience.
 Narrowest Holding: If the police deliberately attempt to violate your rights and don’t yell you that
they cannot use your previous confession against you, then that is unconstitutional.

E. Continuing Validity
.

DICKERSON V. UNITED STATES (2000)

Always need to give Miranda warnings (5th and 14th Am.)
Facts  Dickerson was indicted for bank robbery, conspiracy and use of a firearm in a violent crime.
Dickerson moved to suppress the evidence on grounds that he never received his Miranda warnings
before interrogations. Prior to Dickerson’s trial, Congress passed a law directing federal trial judges
to admit statements of defendants if they were made voluntarily and without regard to whether
they received Miranda warnings.
Holding Miranda governs the admissibility of statements introduced at trial. Subsequent Congressional
legislation cannot overrule judge made law for constitutional decisions.
Majority  Judge made law vs. legislation: Congress cannot overrule a constitutional decision. Miranda is a
(Rehnquist) constitutional decision because only the US Supreme Court holds the power to enforce commands
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 of the Constitution. Miranda warnings apply to state and federal cases.
Dissent  The Court does not have the power to expand the Constitution. We do not have the power to put
(Scalia) extra Constitutional restraints on Congress.
 Miranda should be overruled.
Notes  Memory Device: Judge made law cant be dicked (Dickerson) over by Congressional legislation.
 Miranda is a constitutional decision, made by this Court, that cannot be overruled by Congress.

IX. THE REMEDY OF EXCLUSION (of evidence)

A. Rationale

MAPP V. OHIO (1961)

Exclusionary Rule:
If evidence is seized illegally, it can’t be used in trial against D in state or fed. ct.
Facts  Cops go to defendant’s house because they were suspicious she was harboring someone involved in
a bomb incident.
 The cops arrive without a warrant and defendant tells her they cannot come in after calling her
attorney.
 Cops kicked down the door and when the girl asked for a warrant they held up a piece of paper that
was not a warrant – she grabbed the piece of paper and stuffed it in her shirt – they physically
restrained her and took the paper back.
 Cops then searched the entire house, kept her attorney from entering the home, and arrested her
for lewd pictures they found.
Holding The Fourth Amendment prohibition against unreasonable searches and seizures, as applied to the
states through the Fourteenth, excludes unconstitutionally obtained evidence from use in criminal
prosecutions.
Majority  4th Am. right to privacy is applicable to states through the 14 th Am. Due Process Clause
(Clark)  Deterrence – deters police misconduct by depriving them of the benefit of their unconstitutional
action.
 Judicial integrity of our system requires that the government, for its own preservation, observe its
own laws, especially the charter of its own existence – “nothing can destroy a government more
quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own
existence.”
 Prevents federal courts from making a case from unconstitutional violations then walking the case
over to the state courts or other suspicious arrangements.
 Ct. said that its stupid if a federal prosecutor can’t use illegally seized evidence, but a state atty
across the street can use it, even though he is supposedly operating under the enforceable
prohibitions of the same Am.
 WEEKS v US: In a federal prosecution, the 4th Am. bars the use of evidence secured through an
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 illegal search and seizure…. This case extended that rule to state courts.
Concurrence  There should not be a judicially created remedy – but the Fourth Amendment combined with the
(Black) fifth amendment requires the exclusionary rule (violating the fourth and then using evidence is like
compelled self incrimination)
Concurrence  Other sanctions just do not work … (Scalia rejects this in Herring)
(Douglas)  The only other options are having Attorney General bring suit on person’s behalf or victim to bring
trespass suit against the officer – these are not sufficient.
Notes  Applies fourth amendment to exclusionary rule to the states.
 Exclusionary rule MUST be applied to all violations of the fourth amendment.

B. Fruit of the Poisonous Tree

SILVERTHORNE LUMBER CO. V. UNITED STATES (1920)

Facts  Officers took books and documents from the companies office without a valid subpoena
 They made copies of them and put the originals back
Majority  2 important underpinnings of the exclusionary rule:
(Holmes)
1) It stands for the proposition that not only evidence seized in violation of the 4 th Amend but also
any evidence that derives from such a violation cannot be used in the gov’ts case-in-chief ( Fruit of
the Poisonous Tree doctrine)

2) Evidence obtained in violation of the 4th Amend is not necessarily irretrievably tainted; rather,
facts discovered through a violation of the 4th Amend may be used if knowledge of them is gained
from another source with the same information (Independent-Source doctrine)

Exclusion of Evidence
 Attenuation: If the taint becomes too attenuated, or there is an independent source for the evidence, or
the evidence would have been discovered anyway, exclusion does not follow.

 Factors looked at to determine attenuation: (1) time lapse or whether the chain has become too attenuated, (2)
whether the police secured the evidence through an independent source, (3) whether the police would have
inevitably secured the evidence through another means.

WONG SUN V. UNITED STATES (1963)

Facts  A person arrested in possession of narcotics, who never before had acted as an informer, told federal
narcotics officers that he had bought an ounce of heroin the night before from one known to him
only as "Blackie Toy," proprietor of a laundry on a certain street running some 30 blocks. Without
procuring an arrest warrant the officers went to the laundry; one of them rang the bell and told the
petitioner James Wah Toy that he was calling for laundry and dry cleaning, but when Toy started to
close the door, the officer identified himself as a federal narcotics agent.

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  Toy slammed the door and started running away, but the officer and his fellow officers broke open
the door and arrested Toy in his bedroom, where he gave information leading the agents to a third
person (Johnny Yee), not involved in the present case, who surrendered to the agents several tubes
containing heroin. Toy also led the agent to the living quarters of the petitioner Wong Sun, who also
was arrested. After arraignment both petitioners were released on their own recognizance. When
they were interrogated by one of the officers within a few days, they made unsigned statements of
an incriminating nature.
Holding  Statements made by a defendant and evidence obtained by the police directly as a result of
lawless police conduct are inadmissible against the defendant.
 Under the circumstances, Toy’s arrest was made without probably cause because his flight when
the officers appeared at his door did not justify an inference of guilt sufficient to generate probable
cause. Toy’s declarations in his bedroom should be excluded as the “fruits” of the officer’s
unlawful action; such exclusion required also the exclusion of the narcotics surrendered by Yee;
and Toy’s unsigned statements was not corroborated and hence furnished no basis for his
conviction.
 As to Wong, it was held that his arrest also was without probable cause. Though his unsigned
confession and the heroin surrendered by Yee were admissible against him because they were not
the fruit of the unlawful arrest. Any references to Wong in Toy's statement were incompetent to
corroborate Wong's confession; and Wong was entitled to a new trial because it was not certain
from the record whether the trial court might not have considered the contents of Toy's statement
as against Wong.
Majority  Toy gets both his statement and the drugs found at Yee's because it is the fruit of an unlawful entry
(Brennan) into his house. The Supreme Court does NOT apply a "but for" test to suppress the evidence. Instead,
the Supreme Court focuses on the fact that a bunch of police officers followed him into his house,
and the police exploited the illegality by questioning him handcuffed after they ran him down. The
Heroin was suppressed because it came from the statement after they arrested him thus it is physical
evidence resulting from a fourth amendment violation.
 Test- Whether the disputed evidence comes from the exploitation of the primary illegality or if it
comes from a means distinguishable from the first incident.
 The same heroin can be used in court against Wong because his rights weren't violated, and it wasn't
the fruit of his arrest. The seizure of the heroin invaded no right of privacy of person or premises,
which would entitle Wong to object.
 It doesn't matter how the police got into Yee's house because of Minnesota v. Carter. The police can
use the drugs against Wong because they weren't in his house.
Dissent  The arrests were lawful and there was no reason to grant Wong a new trial.
(Clark)
Notes  If a statement is so attenuated that it was no longer the “fruit” of the fourth amendment violation it
will not be excluded.

C. Limits

U.S. v. PATANE (2004)

FACTS:
 Respondent released on bail on charges of harassment of gf
 Detectives were tipped by informant that respondent, an ex felon, had a pistol
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 Officers went to respondent’s residence bc he had violated restraining order and arrested him
 Officers tried to give him Miranda warnings but respondent interrupted by saying I know them already
 Then officers questioned him about pistol and respondent told them it was in his room. They seized it.

ISSUE:
 Whether a failure to give a suspect his Miranda warnings, requires suppression of the physical fruits of the
suspect’s unwarned but voluntary statements

HOLDING:
NO. The Self-Incrimination Clause is not implicated by the introduction at trial of physical evidence resulting
from voluntary statements

MAJORITY (THOMAS)
 Miranda Rule is not a code for police conduct and police do not violate the Constitution by mere failures to
warn
 Any further justification for these prophylactic rules must be by its necessity for the protection of the
actual right against compelled self-incrimination
 Statements taken without Miranda warnings, though not compelled, are admissible.
 The right is “ a fundamental trial right.”

CONCURRING (KENNEDY)
 Admission of nontestimonial physical fruits does not run the risk of admitting an accused’s coerced
incriminating statements against himself
 Doesn’t want to talk about whether failure to give Patane the full warnings is a violation of the
Miranda be so long as unwarned statements are not admitted into evidence at trial
DISSENT (SOUTER)
 Plurality provides an important inducement for interrogators to ignore the Miranda rule
 The purpose of forestalling involuntary statements will diminish if we recognize an evidentiary benefit
when an unwarned statement leads to tangible evidence
DISSENT (Breyer)
 Applies Seibert Exclude physical evidence derived from unwarned questioning unless the failure was
in good faith.

HUDSON v. MICHIGAN (2006)

FACTS:
 Police obtained warrant for a search of drugs and firearms at the petitioner’s home and they found
both
 When police arrived, they announced their presence but only waited a short time—perhaps 3-5
seconds—before entering

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  Michigan concedes that they violated the “knock and announce” rule so that is not the issue. Issue is
the remedy

ISSUE:
 Whether violation of the “knock and announce” rule requires the suppression of all evidence found in
the search

HOLDING:
 Petitioner’s interest in shielding evidence from gov’t eyes is not an interest protected by the “knock
and announce rule.” Thus, the exclusionary rule does not apply.

MAJORITY (SCALIA)
 Suppression of evidence has been our last resort because of the possible substantial social costs. Thus,
we are cautious in expanding it
 We do not apply the exclusionary rule on the sole basis that it was a “but for” causality
 Attenuation can occur when the causal connection is remote or when the interest protected by the
constitutional guarantee that has been violated would not be served by suppression of evidence
 While the acquisition of the gun and drugs was the product of the search pursuant to the
warrant, it wasn’t the fruit of the fact that the entry was not preceded by knock and announce
 Exclusionary rule applies Where its deterrence benefits outweighs its substantial social costs
 Moreover, aside from the attenuated causation, the costs here are substantial. It would lead to
suppression of all evidence and in effect, a get-out-of-jail card. Also, it would lead to violence against
officers that would otherwise be preventable and destruction of evidence that would otherwise be
attainable
 Deterrence benefits ignoring the “knock and announce” rule can realistically be expected to
achieve absolutely nothing except preventing destruction of evidence and avoiding violence
against officers
 While the acquisition of the gun and drugs was the product of the search pursuant to the
warrant, it wasn’t the fruit of the fact that the entry was not preceded by knock and announce

CONCURRING (KENNEDY)
 Emphasizes the limitation of the Court’s ruling to these circumstances in particular.
 Might have a civil remedy but that is not related to suppression
 Would add a significant amount of practical issues for trial courts such as how long did officers wait
until entering the house

NIX V. WILLIAMS (1984)

Inevitable discovery doctrine
Facts  Defendant was arrested and transported to a local police station for the alleged murder of a young
girl. Defendant has contacted his attorney and the attorney spoke to police who informed them not
to question defendant while heading back to town. In car, police deliberately elicited information
regarding the location of body of the child by giving Williams the “Christian burial speech.” When
the body was found, local search parties were within 2.5 miles and had explicit plans to search that
area. The court in defendant’s first trial permitted the introduction of evidence regarding the body.
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 Defendant’s second trial also permitted the introduction of the body as evidence because the State
proved by a preponderance of the evidence that, if the search had not been suspended and
respondent has not led the police to the victim, her body would have been discovered “within a
short time” in essentially the same condition as it was actually found.
Holding Physical evidence obtained through a violation of constitutional right will not be excluded if the police
could prove by a preponderance of the evidence that they would have found the evidence anyway.
Majority  Inevitable Discovery Doctrine
(Burger)  The evidence pertaining to the discovery and condition of the victim’s body was properly admitted at
respondent’s second trial on the ground that it would ultimately or inevitably have been discovered
even if no violation of any constitutional provision had taken place.
 Prosecution is not required to prove the absence of bad faith because that would deprive the jury of
ability to see all the facts / unbridled truth, especially where the evidence would have been
discovered regardless of the specific unlawful police activity.
Notes  If you can prove by a preponderance of the evidence that you would have found the incriminating
evidence anyways, then it is admissible at trial.

Murray v. U.S.
FACTS:
 Federal agents had petitioners under surveillance for drug activity
 They entered the warehouse without a warrant and saw marijuana in plain view. However, they did not
touch it
 After obtaining a warrant, and not mentioning their prior unlawful entry to the magistrate, they reentered
warehouse and seized the marijuana

ISSUE:
 Whether, assuming evidence obtained pursuant to an independently obtained search warrant, the portion
of such evidence that had been observed in plain view at the time of a prior illegal entry must be
suppressed

HOLDING:
 No. The “independent Source Doctrine” applies when the knowledge of the evidence that was acquired
after getting a warrant to enter was the same knowledge acquired at the time of the unlawful entry.
 Invoking the exclusionary rule would put the police not in the same position they would have occupied if
no violation occurred, but in a worse one.

Majority (SCALIA)
 Reseizure of tangible evidence already seized is no more impossible than rediscovery of intangible
evidence already discovered compared to NIX
 Info was not presented to the magistrate so prior knowledge did not affect the issuing of the warrant
 No connection between illegal entry and the discovery of evidence in the lawful entry

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Good Faith Exception: As long as a police officer reasonably believed that an erroneous warrant granted was
proper, the evidence obtained by this deficient warrant is still admissible at trial, even though the warrant was
improperly issued by the court.
 Rationale: The exclusionary remedy is designed to deter unreasonable police conduct. If the police acted
reasonably, there is no deterrent effects. Therefore, the benefits incurred by the exclusionary rule in these
circumstances, i.e. almost none, is outweighed by the fact that guilty parties are being let free to go.
 When an officer’s belief is not reasonable:
o Where the police have misled (either on purpose or with reckless disregard of the truth) the judge in
their application for the warrant
o Where the warrant is so obviously invalid (either probable cause is missing or it fails to be particular as
to the scope of the search) that no officer could reasonably rely on it
o Where a judge abandoned his neutral and detached posture

UNITED STATES V. LEON (1984)

Good-faith exception to exclusionary rule
Facts  Police received a tip from an anonymous informant about potential drug activity. After police
investigation of several parties associated with defendant, police obtained a search warrant for
multiple defendant’s automobiles and homes. Defendant moves to have the evidence suppressed
because the officers lacked probable cause for the original warrant. Lower courts suppressed
evidence on the basis that the informant was neither predictive nor credible. Court overrules lower
court with “good faith exception.”
Holding Evidence obtained in good faith by police officer relying upon a search warrant that subsequently is
found to be deficient for lack of probable cause may be used in a criminal trial.
Majority  The exclusionary rule is used to DETER POLICE MISCONDUCT…not regulate magistrates.
(White)  Here, there is nothing to deter because police acted on good faith in an error by a magistrate.
 There exists no evidence that judges or magistrate are inclined to subvert the fourth amendment
(Magistrate are impartial and have no vested interest in the outcome)
 Reasonable minds frequently may differ on whether there was probable cause to issue a warrant,
and thus great deference should be given to the magistrate.
 The marginal benefits produced by suppressing evidence obtained in objectively reasonable
reliance on a subsequently invalidated search warrant cannot justify the substantial costs of
exclusion
 However, Court does not conclude that exclusion is never appropriate. Suppression is appropriate if
the judge in issuing a warrant was misled by info that the affiant knew was false or would have
known was false except for his reckless disregard of the truth. Also, if the judge is not detached and
neutral.

Notes  Memory Device: Officers can Leon (lean) on good faith from magistrate error.
 Once probable cause is established and a warrant is issued you then can never contest the probable
cause again, because the good faith rule automatically attaches.
 Last time probable cause for a warrant was reviewed was in Illinois v. Gates.
 After Gates, probable cause can only be litigated if there is a warrantless search. Warrant dispels
probable cause because they are the same…

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Herring v. U.S. (2009)

ISSUE:
 Whether contraband found during a search incident to an arrest, where an officer reasonably believes
there is an outstanding arrest warrant, but that belief turns out to be wrong bc of negligence by
another officer, should be inadmissible

HOLDING:
 No. Factors that must be considered is the culpability of the police and the potential of exclusion to
deter wrongful police conduct. Here, the error was the result of isolated negligence attenuated from
the arrest.

MAJORITY (ROBERTS)
 The exclusionary rule is not an individual right and only applies where it results in appreciable
deterrence. (just bc your 4th Amend rights were violated, doesn’t mean Court applies the rule)
 Benefits of deterrence must outweigh the costs (guilty and dangerous D’s go free)
 Extent to which the exclusionary rule is justified by deterrence varies with the culpability of officer’s
conduct
 To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can
meaningfully deter it.
 Not all recordkeeping errors by the police are immune to the exclusionary rule. If police have had
consistent behavior in maintaining a bad warrant system, or to have knowingly made false entries,
then exclusionary rule would apply.

Davis v. U.S. (2011)

ISSUE:
 Whether the exclusionary rule applies when the police conduct search in compliance with binding
precedent that is later overruled

HOLDING:
 No. Because suppression would do nothing to deter police misconduct in these circumstances, and
because it would come at a high cost to both the truth and the public safety, searches conducted in
objectively reasonable reliance on binding appellate precedent are not subject to the rule

MAJORITY (ALITO)
 4th Amendment says nothing about suppressing evidence in violation of the Amendment
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  The Exclusionary rule’s sole purpose is to deter future 4th Amend violations
 The rule is not implicit in the 4th Amend but is a “judicially created remedy,” instead, we impose a more
rigorous weighing of its costs and deterrence benefits. Also, we begin to focus the inquiry on the
flagrancy of the police misconduct
 Deterrence benefits of exclusion vary with the culpability of the officer’s conduct at issue
 The only deterrence in this case would be conscientious police work—police will take care to learn
what is required of them under the 4th Amend

DISSENT (BREYER)
 The Court leaves Davis with a 4th Amend const right but without a remedy
 The “good faith” exception creates a categorical bar to obtaining redress in every case pending when a
precedent is overturned
 “good faith” exception has only been applied in a handful of cases and in atypical circumstances
 Court’s ruling allows for the “good faith” exception to swallow the exclusionary rule

Final Exam Review

 Class slides
 Multiple choice
 Long answer
 Short answer (possible  based on time constraint)
o Policy question
 4 hour exam
o Will add up to a 3 hour exam
 Policy question example
o If you could overrule one case in criminal procedure, which case would it be and why?
 When you use more than a few words from a case, you need to quote and cite to the case.
o Just the case is fine, do not need to pincite
 Miranda Rights  Totality of circumstances

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