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CRIMINAL PROCEDURE OUTLINE Models of Criminal Process Crime Control Model after police/prosecutor have sifted through the

e cases (administrative fact finding), we presume whoever is left is guilty efficiency, speed, finality plea bargaining works well with misdemeanors Due Process Model obstacle course, quality control less trust in administrative fact finding process, more sensitive to human error less concerned about efficiency presumption of innocence The Basics of the Fourth Amendment The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches or seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 1. U.S. v. Verdugo-Urquidez (U.S.S.C. 1990) a. The people is a term of art. b. Refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. i. 4th Amendment does not apply to a search of property that is owned by a nonresident alien and located in a foreign country. ii. The purpose of the 4th Amendment was to protect the people of the United States from abuses by their own government. c. Dissent i. 4th Amendment protects everyone who is subjected to the enforcement of substantive criminal law of the United States.. 2. Warrant requirement: Warrantless searches and seizures are presumed to be unreasonable. a. However, when an exception to the warrant requirement is applicable, only the reasonableness requirement must be satisfied. 3. Probable cause is used to define the minimum showing necessary to support a warrant application. a. Lesser standard than preponderance of the evidence. 4. Government action is required to trigger 4th Amendment protection. a. 4th Amendment only provides protection against the government and those acting in conjunction with it NOT private citizens.

What is a Search? What is a Seizure? Three questions for 4th Amendment problems 1. Does the amendment prohibit the kind of conduct described? 2. If so, was the search or seizure in compliance with constitutional standards? 3. If not, should the evidence obtained by means of a 4th Amendment violation be available as proof in criminal trials? 1. Katz v. U.S. (U.S.S.C. 1967) (p. 35) a. 4th Amendment protects people, not places. i. What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. b. [T]his Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means to that end. i. Probable cause alone is never enough. c. Katz test i. There is a two-fold requirement to trigger 4th Amendment protection: 1. A person must exhibit actual (subjective) expectation of privacy; and 2. The expectation must be one that society recognizes as reasonable. ii. Individuals must take affirmative steps to protect their privacy interests, or else they fail to exhibit the subjective expectation of privacy required by Katz. iii. Criticism of the test 1. The reasonableness of a privacy expectation will be determined by existing laws and practices, and that this could result in the diminution of protected privacy interests. 2. Interests Protected by the 4th Amendment after Katz a. There is no legitimate privacy interest in illegal activity. i. However, where guilt is not certain before the intrusion, the government may be invading the privacy and possessory interests of innocent citizens: 1. An interest in being free from physical disruption and inconvenience; 2. An interest in keeping personal/embarrassing information private; and 3. An interest in having control over and use of personal property. b. Searches and seizures implicate different privacy interests. i. Search maintaining personal privacy ii. Seizure retaining possession of property 1. A seizure of property occurs whenever there is some meaningful interference with an individuals possessory interest in that property. c. Oliver v. U.S. (U.S.S.C. 1984) i. There is no legitimate expectation of privacy in open fields because there is no societal interest in the privacy of those activities (e.g. cultivation of crops) that occur in open fields. ii. It is not generally true that fences or no trespassing signs effectively bar the public from viewing open fields in rural areas.

d. U.S. v. Dunn (U.S.S.C. 1987) i. Curtilage questions should be resolved with particular reference to four factors: 1. Proximity of the area in question to the home; 2. Whether the area is included within an enclosure surrounding the home; 3. The nature of the uses to which the area is put; and 4. The steps taken by the resident to protect the area from observation. ii. Even if property is found to be curtilage, a visual inspection of that property from outside the curtilage does not constitute a search. e. Access by Members of the Public i. If an aspect of a persons life is subject to scrutiny by other members of society, then that person has no legitimate expectation in denying equivalent access to the police. ii. Consensual electronic surveillanceU.S. v. White (U.S.S.C. 1971) 1. Plurality opinion assumption of risk approach a. The law permits the frustration of actual expectations of privacy by permitting authorities to use the testimony of those associates who have turned to the police. b. A person contemplating criminal activity must realize and risk that his companions may be reporting to the police. 2. Dissent (Douglas) a. Should a citizen have to live in fear that every word he speaks may be transmitted or recorded and later repeated to the entire world[?] 3. Dissent (Harlan) a. Thing party bugging undermines that confidence and sense of security in dealing with another that is characteristic of individual relationships between citizens in a free society. iii. Financial RecordsCalif. Bankers Assn v. Schultz (U.S.S.C. 1974) 1. Majority a. Banks are parties to any transactions of the depositors. Depositors of necessity granted access to the banks; this precludes any legitimate expectation that the government would not have the same access. 2. Dissent (Marshall) a. The fact that an individual has disclosed private papers to the bank, for a limited purpose, within the context of a confidential relationship, does not mean that he has waived all rights to the privacy of the papers. iv. Pen RegistersSmith v. Maryland (U.S.S.C. 1979) 1. Majority a. The use of pen registers to log outgoing calls does not constitute a search because a person cannot have a legitimate expectation of privacy in information that he voluntarily turns over to third parties (e.g. telephone company.) 2. Dissent (Marshall) a. Those who disclose information for a limited business purpose need not assume that this information will be released to other persons for other purposes.

v. Aerial Surveillance 1. Calif. v. Ciraolo (U.S.S.C. 1986) a. Majority i. The fact that an individual has taken measures to restrict some views of his activities does not preclude an officers observations from a public vantage point. ii. 4th Amendment protection of the home does not require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. b. Dissent i. Majority erred in relying solely upon the method of surveillance rather than focusing on the interests of the individual and of a free society. 2. Dow Chem. Co. v. U.S. (U.S.S.C. 1986) a. Majority i. The taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by the 4th Amendment. b. Dissent i. Trade secrets laws demonstrate societal recognition of legitimate interests in business privacy. ii. EPA had to use sophisticated cameras to discover the details revealed by the photographs. 3. Florida v. Riley (U.S.S.C. 1989) a. Plurality i. If information is made available to the public, then an officer can act as any member of the public could and obtain the information free of 4th Amendment restrictions. ii. Surveillance of a backyard from a helicopter hovering at 400 ft was not a search. b. Concurrence (OConnor) i. Proper test for determining the reasonableness of an expectation of privacy was whether the public ordinarily had access to the information sought by the policenot whether it was legally possible for a member of the public to obtain it. f. Investigation That Can Only Reveal Illegal ActivityCanine Sniffs i. There is no legitimate expectation of privacy in illegal activities. Therefore, an investigation is not a search if it can only reveal illegal activity. ii. U.S. v. Place (U.S.S.C. 1983) 1. A canine sniff of closed luggage for drugs was not a search. a. Canine sniff is much less intrusive than a typical search. b. Canine sniff discloses only the presence or absence of contraband. i. Although the sniff tells the authorities something about the contents of the luggage, the information obtained is limited.

iii. Illinois v. Caballes (U.S.S.C. 2005) 1. Majority a. 4th Amendment does not require reasonable suspicion to justify using a drug-detection dog to sniff a vehicle during a lawful traffic stop. b. Conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner. 2. Dissent (Ginsburg) a. The use of drug-detection dogs does change the character of a lawful traffic stop. Suddenly you are being investigated for drugs in public. iv.Canine Sniff Procedure 1. If a drug dog positively alerts to luggage, the officers still cannot open the luggage immediately. a. The opening of the luggage would be a search because it could uncover legitimate private activity. 2. If a drug dog positively alerts, this constitutes legally obtained information that can be presented to obtain a search warrant. g. Use of Technology to Enhance InspectionKyllo v. U.S. (U.S.S.C. 2001) i. Issue 1. Whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitute a search within the meaning of the 4th Amendment. ii. Holding 1. 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. iii. Majority 1. Obtaining through sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a searchat least where the technology is not in general public use. 2. 4th Amendments protection of the home has never been tied to measurement of the quality or quantity of information obtained. a. One inch of intrusion into the home is too much. iv. Dissent (Stevens) 1. The ordinary use of the senses might enable a neighbor or passerby to notice the heat emanating from a building. 2. 4th Amendment protection apparently evaporates once the relevant technology is in general public use. This is problematic. h. Investigative Activity Conducted by Private Citizens i. The 4th Amendment was intended to regulate state actors. 1. Thus, a search or seizure conducted by a private citizen is not a search or seizure within the meaning of the 4th Amendment. ii. The 4th Amendment does apply when a private individual is acting as an agent for the government.

1. Government officials may not avoid 4th Amendment requirements by enlisting private individuals to do what they cannot. iii. Skinner v. Railway Labor Exec. Assoc. (U.S.S.C. 1989) 1. Drug testing procedures promulgated by private railroad companies pursuant to federal regulations granting authority to the railroads implicated the 4th Amendment. 2. The Court found clear indices of the governments encouragement, endorsement and participation sufficient to make the drug testing a search regulated by the 4th Amendment. iv. U.S. v. Pierce (5th Cir. 1990) 1. For a search by a private person to trigger 4th Amendment protection, the government must have known about the search in advance, and the private party must be acting for law enforcement purposes. v. U.S. v. Jones (U.S.S.C. 2012) (Supp.) 1. Holding: Attachment of GPS device to vehicle and subsequent use of device to track vehicles movement constitutes a search under 4th Amendment. a. 4th Amendment violation may occur when government engages in a warrantless physical intrusion of a constitutionally protected area in order to obtain information. b. There is no precedent for the proposition that whether a search has occurred depends upon the nature of the crime being investigated. vi. Florida v. Jardines (U.S.S.C. 2013) (Supp.) 1. Holding: Officers' use of drug-sniffing dog on front porch of home, to investigate an unverified tip that marijuana was being grown in the home, was a trespassory invasion of the curtilage which constituted a search for Fourth Amendment purposes. a. There was no probable cause to search until the officer made a search using the dog! b. Use of dog was compared to Kyllos rule about the government using technology not in general public use. The Warrant Requirement 1. ...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. 2. Courts language in Katz re: warrant requirement: a. [S]earches and seizures conducted outside the judicial process, without prior approval by a judge or magistrate are per se unreasonable under the 4th Amendmentsubject only to a few specifically established and well-delineated exceptions. 3. Realistic rule re: warrant requirement a. A search or seizure in some circumstances is presumed to be unconstitutional if no prior warrant is obtained, but in many other circumstances the prior warrant is unnecessary to justify a search or seizure.

4. Justification of the Warrant Requirement a. Johnson v. U.S. (U.S.S.C. 1948) i. 4th Amendment protection does not deny officers the support of the usual inferences which reasonable men draw from evidence. ii. Its protection is in requiring that those inferences be drawn by a neutral and detached magistrate, NOT by the officer engaged in the often competitive field of law enforcement. iii. When the right of privacy must reasonable yield to the right of search is to be decided by a judicial officer, not by a policeman or government agent. 5. Anticipatory Warrants a. An anticipatory warrant is a warrant based upon an affidavit showing current probable cause that at some future time (but not presently) certain evidence of crime will be located a certain place. b. U.S. v. Grubbs (U.S.S.C. 2006) i. For a conditioned anticipatory warrant to comply with the 4th Amendments requirement of probable cause, two prerequisites of probability must be satisfied: 1. It must be true not only that if the triggering condition occurs there is probable cause to believe that contraband/evidence of a crime will be found in a particular place, but also: 2. That there is probable cause to believe the triggering condition will occur. Probable Cause 1. Probable cause means there is a fair probability of criminal activity. a. More than reasonable suspicion. b. Less than preponderance of the evidence. 2. Determination of probable cause is a TOC analysis. 3. Probable cause to search is determined by whether there is a fair probability that the area or object to be searched contains evidence of a crime. 4. Quality of Information Required for Probable Cause a. Aguilar v. Texas (U.S.S.C. 1964) i. Affidavit made an inadequate showing of probable cause for two reasons: 1. It failed to prove that the informant was reliable; and a. Reliability requirement. 2. It failed to list the bases and details of the informants knowledge. a. Credible information requirement. b. Spinelli v. U.S. (U.S.S.C. 1969) i. Reiterated two-pronged test of Aguilar. ii. Only the probability and not a prima facie showing of criminal activity is the standard of probable cause. iii. Majority appears to distrust paid or anonymous informants. c. Rejection of Rigid Two-Prong Test i. Illinois v. Gates (U.S.S.C. 1983) 1. Spinelli requirements should not be understood as separate and independent and to be rigidly exacted in every case.

a. Spinelli requirements should be understood as closely intertwined issues relevant to a TOC analysis that determines probable cause. 2. Probable cause is a practical, non-technical conception. 3. In making a determination of probable cause, the relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of non-criminal acts. d. The Citizen Informant i. Identified citizens informants are considered reliable because they are presumed to be motivated by concern for society or for their own safety. e. Accomplices i. U.S. v. Patterson (4th Cir. 1998) 1. The confession of an accomplice is itself sufficient to establish probable causeno corroboration is required. 5. Quantity of Information Required for Probable Cause a. Assuming that all evidence gathered is reliable, has the evidence established a fair probability of criminal activity? b. U.S. v. Prandy-Binett (D.C. Cir. 1993) i. Fair probability of probable cause is somewhere between less than evidence which would justify a conviction and more than bare suspicion. ii. Probable cause is evaluated not only from the perspective of a reasonable prudent man but also from the particular viewpoint of the officer involved in the search or seizure. 1. Thus, the officers experience is relevant in determining probable cause. 6. Probable Cause to Arrest a. Probable cause to arrest is determined by whether there is a fair probability to believe that the person arrested has committed a crime. b. U.S. v. Valez (2d Cir. 1986) i. Detailed description of the perpetrator was not overly general, and the officers had probable cause to arrest based on his answering to the description. c. U.S. v. Kithcart (3d Cir. 1998) i. Description of suspects and car was insufficient to create probable cause to stop the car and to arrest the driver. d. Maryland v. Pringle (U.S.S.C. 2003) i. Issue: Whether an officer has probable cause to arrest all the passengers in a car when he discovers drugs in the car. ii. Holding: He does. Car passengers will often be engaged in a common enterprise with the driver and have the same interest in concealing the evidence of their wrongdoing. iii. Majority 1. Probable cause standard is a practical, non-technical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men (not legal technicians) act. 2. Probable cause standard deals with probabilities and depends upon TOC. 3. To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide whether

these factsviewed from the standpoint of an objectively reasonable police officeramount to probable cause. 7. Staleness of Information a. U.S. v. Harris (11th Cir. 1994) i. Staleness challenges are determined on a case-by-case basis. ii. Factors 1. Age of the information 2. Nature of the suspected crime (discrete event or ongoing conspiracy) 3. Habits of the accused 4. Character of the items sought 5. Nature and function of the premises to be searched 8. Specificity and Reasonableness a. Ultimately, particularity questions come down to reasonableness. i. Particularity required will vary depending on the circumstances of the case and the nature of the thing to be searched or seized. b. The Things That Can Be Seized i. Warden v. Hayden (U.S.S.C. 1967) (p. 129) 1. Before Warden, officers could only seize the fruits and instrumentalities of a crime. They could not seize mere evidence. 2. Holding: Items of evidentiary value only are lawfully subject to seizure under the 4th Amendment. a. There must be a nexus between the item seized and the criminal activity. 3. The holding had a fundamental, pro-prosecution effect on 4th Amendment law. c. Probable Cause as to Location of Evidence i. The critical element is reasonable cause to believe that specific things to be searched for and seized are located on the property to which entry is sought. ii. Probable cause does not automatically exist to search a persons home (or any other particular location) simply because that person has been involved in a crime. 1. Residential searches have been upheld only where some information links the criminal activity to the defendants residence. d. Searches of Non-Suspects Premises i. There is nothing special about the search of a third partys premises. Nothing on the face of the 4th Amendment suggests that a third-party search warrant should not normally issue. e. Describing the Place to be Searched i. The Warrant Clause requires a particularized description of the place to be searched. ii. Colonial experience with general warrants was the major reason for including the 4th Amendment in the Bill of Rights. iii. Function of Particularity Requirement 1. If the executing officer has no knowledge of the underlying facts, the particular description of the premises in the warrant operates as a necessary control on his discretion.

2. The particular description in the warrant establishes a specific record of probable cause as to location prior to the search. 3. Particularity requirement prevents the officer from using the warrant as a carte blanche to expand a search of a location by relying on an overly general description of the place to be searched. iv. The validity of the warrant must be assessed on the basis of the information that the officers disclosed (or had a duty to discover and to disclose) to the issuing magistrate. v. Particularity issues 1. Whether the place to be searched is described with sufficient particularity to enable the executing officer to locate and identify the premises with reasonable effort; and 2. Whether there is any reasonable probability that another premise might be mistakenly searched. vi.Breadth of the Place to Be Searched 1. A warrant authorizing a search of a house or a building authorizes the police to search anywhere within the house/building that is large or small enough to contain the evidence the police are looking for. f. Particularity for Arrest Warrants i. An arrest warrant must describe the person to be seized with sufficient particularity. g. Describing the Things to Be Seized i. The Warrant Clause requires that a valid warrant particularly describe the things that the officers can look for and seize. ii. Andresen v. Maryland (U.S.S.C. 1976) 1. Holding: The warrant was not so over-broad as to authorize the executing officers to conduct a search for evidence of other crimes, but only to search for and seize evidence relevant to the crime at hand. 2. Dissent: The warrants in this case authorized the seizure of other fruits, instrumentalities and evidence of the crime at this [time] unknown. The police read the language too broadly and seized a bunch of unrelated materials; that cannot be cured by the Court. iii. If a search warrant is issued for a computer, all files can be searched. Executing the Warrant 1. The Knock and Announce Requirement a. It is not a rigid constitutional requirement, but part of the 4th Amendment reasonableness inquiry. i. Although a search/seizure of a dwelling might be constitutionally defective if police enter without prior announcement, law enforcement interests may also establish the reasonableness of an unannounced entry. ii. In order to justify a no-knock entry, the police must have a reasonable suspicion (not probable cause) that knocking and announcing their presence would be dangerous, futile, or would inhibit the effective investigation of the crime (e.g. by allowing the destruction of evidence.)

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b. Three purposes of requirement i. Protects citizens and law enforcement from violence; ii. Protects individual privacy rights; and iii. Protects against needless destruction of private property. c. Police can break open premises if they have announced their authority and purpose and are refused admittance. d. Exceptions to knock and announce requirement i. If the door to a residence is already open, police are not required to announce their presence before entering because the prohibition is against a breaking of the door. ii. If an officer can trick the homeowner into opening the door, there is no violation of the requirement because there is no breaking. e. A violation of the knock and announce requirement does not justify exclusion of evidence found in the subsequent search of the premises. i. The requirement has never protected a defendants interest in preventing the government from seeing or taking evidence described in a warrant. f. No-Knock Warrants i. U.S. v. Banks (U.S.S.C. 2003) 1. When an officer gives reasonable grounds to expect futility or to suspect that an exigency already exists of will arise instantly upon knocking, a valid no-knock warrant may be issued. ii. Suppression of evidence has always been our last resort, not our first impulse. 1. Exclusion only applies when its deterrence benefits outweigh its substantial social costs. 2. Arrests in the Public and the Home a. Unlike search warrants, arrest warrants are not specific as to location. b. Standards for Warrantless Arrests in Public i. An officer may arrest a person without a warrant if the officer has probable cause to believe that the person has committed a felony or a misdemeanor in the officers presence. ii. The officer must always have probable cause to arrest a suspect. c. Constitutional Basis for Warrantless Arrest in Public i. U.S. v. Watson (U.S.S.C. 1976) (p. 171) 1. The Court defers to the ancient common law rule allowing warrantless arrests for felonies and misdemeanors committed in an officers presence and for felonies the officer has probable cause to believe the suspect committed. 2. The Courts opinion emphasizes the historical sanction accorded warrantless felony arrests. 3. Dissent: Surely there is no reason to place greater trust in the partisan assessment of a police officer that there is probable cause for an arrest than in his determinate that probable cause exists for a search. d. Use of Excessive Force in Making an Arrest i. Tennessee v. Garner (U.S.S.C. 1985) (p. 174) 1. Under the 4th Amendment, deadly force may not be used to prevent the escape of a felon unless:

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a. it is necessary to prevent escape; AND b. the officer has probable cause to believe that the suspect poses a significant threat of causing death or serious harm to anyone. 2. This is a reasonableness inquiry. 3. [I]t is not better that all felony suspects die than that they escape. ii. Graham v. Connor (U.S.S.C. 1989) (p. 175) 1. All claims of excessive force in the making of an arrest are to be governed by 4th Amendment standards of reasonableness. 2. Relevant inquiry is whether the force that was used to effect a particular seizure was reasonable, viewing the facts from the perspective of a reasonable officer on the scene. a. Whether officers hypothetically could have used less painful, less injurious, or more effective force in executing an arrest is not the issue. 3. Relevant factors in reasonableness inquiry: a. Severity of the crime at issue b. Whether the suspect poses an immediate threat to the safety of others c. Whether he is actively resisting arrest or only attempting to flee iii. Scott v. Harris (U.S.S.C. 2007) (p. 175) 1. A law enforcement officer can attempt to stop a fleeing motorist from continuing a public-endangering flight by ramming the motorists car from behind. e. Protections Against Erroneous Warrantless Arrest i. Gerstein v. Pugh (U.S.S.C. 1975) (p. 179) 1. If a person is arrested without a warrant, he is entitled to a prompt postarrest assessment of probable cause by a magistrate. ii. County of Riverside v. McLaughlin (U.S.S.C. 1991) (p. 179) 1. A jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein. 2. Remedy for McLaughlin violation a. Evidence (most likely a confession) can be excluded only if it was obtained as a result of the unreasonable detention. f. Arrests in the Home i. Payton v. New York (U.S.S.C. 1980) (p. 184) 1. Police need both probable cause and an arrest warrant to arrest a suspect at home. a. They also need to have reasonable belief that the suspect is at home. 2. Requirement of an arrest warrant protects the suspects home from government entry without a neutral magistrates determination of probable cause. g. Arrest in Third Partys Home i. Steagald v. U.S. (U.S.S.C. 1981) (p. 189) 1. What warrant is necessary to arrest someone in the home of a third party? a. A search warrant. 2. Whose interest does the search warrant protect? a. The privacy interests of third parties.

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i. Arrest warrants are not sufficient to protect these interests. 3. What if a suspect regularly resides with the third party? a. Police need an arrest warrant, and any evidence they seize is fair game. If you live with someone, you are assuming a risk. ii. Minn. v. Olson (U.S.S.C. 1990) (p. 191) 1. Payton requires an arrest warrant in order to arrest a person who is an overnight guest in the third partys home. 2. Suspects status as an overnight guest is alone enough to show that he had an expectation of privacy in his hosts home that society is prepared to recognize as reasonable. 3. This is more about standing to object to a search than anything else. iii. Minn. v. Carter (U.S.S.C. 1998) (p. 191) 1. An overnight guest typifies the individual who can claim 4th Amendment protection in third partys home. 2. A person merely legitimately on the premises typifies the individual who cannot claim 4th Amendment protection in third partys home. iv. Who has standing to challenge the lack of search warrant? 1. Under Steagald, only the third-party homeowner. 4th Amendment rights cannot be asserted vicariously. h. Custodial Arrest for Minor Offenses i. Atwater v. City of Lago Vista (U.S.S.C. 2001) (p. 301) 1. Issue: Whether the 4th Amendment forbids a warrantless arrest for a minor criminal offense. 2. Holding: If an officer has probable cause to believe that an individual has committed even a very minor criminal offense, he may arrest the individual without offending the 4th Amendment. a. Even when conviction of offense would carry no jail time and the government has no compelling reason to detain the suspect. 3. Rationale: Probable cause is probable cause. A bright line rule would be inappropriate and a case-by-case determination would be unnecessarily burdensome to the courts. a. Legislatures can deal with it if its such a big deal. i. Pretextual Stop and Arrests i. Whren v. U.S. (U.S.S.C. 1996) (p. 325) 1. Issue: Whether the temporary detention of a motorist who the police have probable cause to believe has committed a traffic violation is inconsistent with the 4th Amendments prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic laws. 2. Holding: No. Subjective intent alone does not make otherwise lawful conduct illegal or unconstitutional. a. There is no realistic alternative to the traditional common-law rule that probable cause justifies a search and seizure. 3. Atwater and Whren make a powerful combination. FOR THE POLICE!

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Stop and Frisk 1. Terry v. Ohio (U.S.S.C. 1968) (p. 193) a. Stop and frisk searches and seizures must be tested by the 4th Amendments reasonableness requirement. b. A Terry Stop i. Officers need reasonable suspicion in order to detain a suspect. 1. An officer must have specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. 2. Less than probable cause, but more than inarticulate hunches. ii. In making an assessment of reasonable cause, the facts must be judged against an objective standard. 1. Would the facts available to the officer at the moment of the intrusion persuade a man of reasonable caution to believe that the action taken was appropriate? iii. The purpose of a Terry stop is to permit an officer to investigate the facts on which reasonable suspicion is based in order to determine whether the suspect is involved in criminal activity. iv. A Terry stop must end when the reason for the stop has come to an end. c. A Terry Frisk i. Officers need reasonable suspicion that the suspect is armed and dangerous in order to conduct a Terry frisk. 1. The sole justification of a Terry frisk is officer and public safety. ii. Why is probable cause not required for a frisk? 1. Because a Terry frisk is not an unreasonable search or seizure. 2. Court conducted a balancing test between police investigative powers and individual liberty. iii. A search made for law enforcement purposes requires probable cause and cannot be justified under Terry. d. Impact of Terry i. The Court permitted limited searches and seizures on less than probable cause and explicitly invoked the reasonableness clause over the warrant clause as the governing standard. 2. Applying Terry a. Adams v. Williams (U.S.S.C. 1972) (p. 202) i. Reasonable suspicion required for a stop and frisk can be based on information supplied by an informant as well as the officers personal observations. ii. Factors 1. Reliability of informant 2. Source of informants information 3. Immediate corroboration by officer at scene? b. Pennsylvania v. Mimms (U.S.S.C. 1977) (p. 204) i. Do police have an automatic right under Terry to order a driver out of the vehicle during a traffic stop? 1. Yes, as long as they had reasonable suspicion to stop the driver initially.

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2. Officer safety is more important than the drivers privacy interest in remaining in his vehicle. ii. Do police have an automatic right under Terry to frisk the driver? 1. No, officer must have reasonable suspicion that the driver is armed/dangerous. c. Maryland v. Wilson (U.S.S.C. 1997) (p. 207) i. Do police have an automatic right under Terry to order a passenger out of the vehicle during a traffic stop? 1. Yes; passengers pose just as much of a threat to officer safety as drivers. d. Arizona v. Johnson (U.S.S.C. 2009) (p. 208) i. When a driver has been lawfully detained, any passengers may be frisked as long as there is reasonable suspicion that they are armed and dangerous. e. New York v. Class (U.S.S.C. 1986) (p. 208) i. After a lawful traffic stop, an officer may enter a car to observe a VIN if it is obscured in some way. 1. There is an important governmental interest in obtaining a VIN from a driver who has committed a traffic violation. 2. Driver has a diminished expectation of privacy in a VIN. ii. Officer does not have to allow driver to re-enter the car and remove the obstruction himself. Officer safety reasons under Mimms are implicated. f. Hiibel v. 6th Judicial District of Nevada (U.S.S.C. 2004) (p. 272) i. After a lawful Terry stop, an officer has a right to demand identification. ii. The reasonableness of a seizure under the 4th Amendment is determined by balancing its intrusion in the individuals 4th Amendment interests against its promotion of legitimate governmental interests. 1. Two governmental interests in establishing identification: a. Investigating the crime; and b. Assuring officer and public safety. 3. The Line Between Encounter and Detention/Stop a. Issue: Determining whether a stop has occurred when police conduct is not as affirmatively coercive or as physically intrusive as in Terry. b. A detention occurs when an officer restrains a persons liberty by means of physical force or show of authority. c. U.S. v. Mendenhall (U.S.S.C. 1980) (plurality) (p. 212) i. The Mendenhall Free to Leave Test 1. A person has been seized within the meaning of the 4th 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. d. Florida v. Royer (U.S.S.C. 1983) (plurality) (p. 213) i. Where the validity of the search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given. 1. This burden is not satisfied by showing a mere submission to a claim of lawful authority. ii. Failure to cooperate in a consensual encounter cannot be treated as suspicious conduct that would justify a Terry stop.

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iii. s airplane ticket and DL had been taken from him seizure. e. I.N.S. v. Delgado (U.S.S.C. 1984) (p. 216) i. Majority adopts Mendenhall free to leave test. 1. This conduct should have given the employees no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer. ii. Simple police questioning is unlikely to result in a 4th Amendment violation. f. U.S. v. Drayton (U.S.S.C. 2002) (p. 220) i. Applies rule from Florida v. Bostick: 1. 4th Amendment permits officers to approach bus passengers at random and to request their consent to searches, provided a reasonable person would understand that he is free to refuse. ii. Officers do not have to inform passengers of their right to refuse. 1. Bostick inquiry: Whether a reasonable person would feel free to decline the officers request or otherwise terminate the encounter. a. This is an objective test that requires TOC analysis. 2. Even when officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggageprovided that they do not induce cooperation by coercive means. iii. It is beyond question that had this encounter occurred on the street, it would be constitutional. 4. Limited Searches for Police Protection Under Terry a. Minnesota v. Dickerson (U.S.S.C. 1993) (p. 261) i. Terry frisks may not be used to search for evidence. ii. Once an officer determines that the suspect is not armed and dangerous, he cannot continue searching under Terry. b. Protective Searches Beyond the Suspects Person i. Michigan v. Long (U.S.S.C. 1983) (p. 264) 1. Terry permits a limited examination of an area from which a person, who police reasonably believe is dangerous, might quickly gain control of a weapon. c. Protective Sweeps i. Maryland v. Buie (U.S.S.C. 1990) (p. 268) 1. A protective sweep is a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of officers and others. 2. A protective sweep can be justified by an officers reasonable suspicion that the area swept harbors a dangerous individual. 3. Protective sweep may extend only to a cursory inspection of those spaces where a person may be found. ii. Protective Sweep Other Than During an Arrest 1. Lower courts have held that if officers are acting in the course of legal activity and they have reasonable suspicion to believe that a person in the area can obtain access to a weapon and use it on the officers they are permitted to conduct a protective sweep for weapons. 5. Suspicion Required to Support the Right to Frisk

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a. People v. Russ (N.Y. 1984) (p. 262) i. A frisk requires reliable knowledge of facts providing reasonable basis for suspecting that the individual to be frisked is armed and may be dangerous. ii. Anonymous tip that woman had passed a gun to man did not provide reasonable suspicion to frisk. b. U.S. v. Rideau (5th Cir. 1992) (p. 263) i. Gives considerably more deference to police concerns about the risk of harm involved in making a stop. ii. Late at night, high crime area, suspect looked nervous and backed away. 1. Yes, reasonable suspicion! Reasonable Suspicion 1. Reasonable suspicion is the degree of suspicion required to make a lawful stop. 2. Two questions to determine reasonable suspicion: a. The court must investigate the source of the information upon which reasonable suspicion is based; and b. The court must evaluate whether that information is sufficiently suspicious to justify a stop. 3. On the question of credibility, substantial deference must be given to the findings of the trial court. 4. Source of Information a. Alabama v. White (U.S.S.C. 1990) (p. 232) i. Holding: An anonymous informants tip that is significantly corroborated by an officers investigation provides reasonable suspicion. 1. An anonymous tip by itself does not provide reasonable suspicion because it fails to show that the informant is reliable and and it gives no indication of the informants basis of knowledge. ii. Reasonable suspicion can arise from information that is less reliable than that required to show probable cause. iii. Court implies that the informants ability to predict the defendants future behavior was important because it demonstrated inside knowledgea special familiarity with defendants affairs. iv. Court in J.L. calls this a close case. b. Florida v. J.L. (U.S.S.C. 2000) (p. 234) i. Issue: Whether an anonymous tip that a person is carrying a gun is sufficient for an officer to conduct a Terry stop and frisk. ii. Holding: No. 1. The anonymous tip concerning J.L. provided no predictive information and therefore left the police without means to test the informants bases of knowledge or credibility. 2. The fact that the informant made an accurate description of the suspect and of his location does not show that the informant has knowledge of criminal activity. a. A tip must be reliable in its assertion of illegality. 3. Under Adams and White, indicia of reliability is critical.

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iii. Reasonable suspicion must be measured by what the officers knew before they conducted the search. (Duh.) iv. This holding does not diminish an officers prerogative under Terry to conduct a protective search of a person who has already been legitimately stopped. c. U.S. v. Wheat (8th Cir. 2001) (p. 238) i. An anonymous tip alleging reckless driving creates reasonable suspicion, even if uncorroborated by police investigation. 1. A drunk driver is like a mobile bomb. Public safety concern is high. 5. Degree of Suspicion a. Analytical framework used by courts to assessing reasonable suspicion i. A common sense analysis of the facts presented; ii. Give deference to the expertise of law enforcement officers; iii. Consider the TOC; and 1. While each fact may seem innocent if considered individually, the facts considered in their totality may not be easily explained away. iv. Not expect officers to be infallible. b. U.S. v. Cortez (U.S.S.C. 1981) (p. 241) i. Based on TOC, detaining officer must have a particularized and objective basis for suspecting the detained person of criminal activity. ii. Two elements of particularized suspicion 1. Assessment must be based on TOC. 2. TOC assessment must raise a suspicion that the individual is engaged in wrongdoing. c. U.S. v. Arvizu (U.S.S.C. 2002) (p. 243) i. Applied Cortez TOC test. 1. When making reasonable-suspicion determinations, courts must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting wrongdoing. 6. Reasonable Suspicion of a Completed Crime a. U.S. v. Hensley (U.S.S.C. 1985) (p. 253) i. Unanimous decision. ii. Issue: Can a Terry stop be made on the basis of reasonable suspicion to believe that the suspect has already committed a crime? iii. Holding: Yes. A Terry stop can be made where police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony. 7. Reasonable Suspicion and Flight from the Police a. Illinois v. Wardlow (U.S.S.C. 2000) (p. 259) i. Issue: If a person runs upon seeing the police, does that alone give rise to reasonable suspicion? ii. Holding: Yes. Headlong flight is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is strongly suggestive of such. 1. Unprovoked flight is not a mere refusal to cooperate.

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The Line Between Stop and Seizure/Arrest 1. Terry allows a stop upon a standard of proof less then probable cause, in part because a stop is less intrusive than an arrest. An arrest requires probable cause. 2. Forced Movement of the Suspect to a Custodial Area a. Florida v. Royer (U.S.S.C. 1983) (p. 269) i. Probable cause is required if the officer forces the suspect to move in order to further the investigation or to place more pressure on the suspect. 1. If moving the suspect is for security or safety reasons, thats different. ii. Plurality Royer was arrested. 3. Forced Movement for Identification Purposes a. Lower courts have found that if reasonable suspicion exists, it is permissible to transport the suspect a short distance for the purposes of identification by witnesses. i. This is still a stop and not an arrest. 4. Reasonable Suspicion as to Other Crimes a. If in the course of a lawful Terry stop to investigate Crime A, an officer obtains reasonable suspicion to investigate Crime B, then the detention can be extended to investigate Crime B even though the initial justification for the stop no longer exists. i. This is a stop, not an arrest. 5. Consensual Encounters After a Stop Has Ended a. Ohio v. Robinette (U.S.S.C. 1996) (p. 274) i. The test for whether an encounter is consensual is based on TOC, not whether officer has informed suspect he is free to leave. 6. Interrogation Beyond the Scope of Terry a. Dunaway v. New York (U.S.S.C. 1979) (p. 275) i. Police cannot detain a suspect and transport him to the station for questioning without probable cause (even if under state law this doesnt constitute an arrest.) ii. Detention for custodial interrogation intrudes so severely on interests protected by 4th Amendment as to necessarily trigger traditional safeguards against illegal arrest. (Probable cause. Warrant. Gerstein hearing.) 7. Fingerprinting a. Davis v. Mississippi (U.S.S.C. 1969) (p. 275) i. Holding: A round-up of 25 black youths for questioning and fingerprinting violated 4th Amendment. ii. Because of the unique nature of the fingerprinting process, such detentions might (under narrowly defined circumstances) comply with the 4th Amendment even though there is no probable cause in the traditional sense. 1. Fingerprinting is minimally intrusive, can be done at a reasonable time, and does not offer opportunities for harassment. b. Hayes v. Florida (U.S.S.C. 1985) (p. 276) i. When police forcibly remove a suspect to the station to be fingerprinted, they are making a seizure that amounts to an arrest and must be supported by probable cause.

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8. Time Limits on Terry Stops a. U.S. v. Sharpe (U.S.S.C. 1985) (p. 276) i. It is appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly during which time it was necessary to detain the suspect. 9. Show of Force During a Terry Stop a. Courts have routinely relied on Terry and Adams to uphold the use of handcuffs and guns where there is reasonable suspicion to believe that they are necessary to protect the officer from harm during the course of a stop. 10. Detention of Property Under Terry a. Some detentions of property can occur upon reasonable suspicion. b. U.S. v. Van Leeuwen (U.S.S.C. 1970) (unanimous) (p. 279) i. Detention for this limited time was conducted promptly and diligently and was indeed more prudent than letting the packages enter the mail and then, in case reasonable suspicions were confirmed, trying to locate them en route. ii. The privacy interest in the packages was not disturbed until the approval of a magistrate was obtained. c. U.S. v. Place (U.S.S.C. 1983) (p. 280) i. It is often necessary to seize property upon reasonable suspicion while an investigation of criminal activity continues. ii. But if a suspect is traveling with his property, then a seizure of that property intrudes on both the suspects possessory interest in his [property] as well as his liberty interest in traveling. iii. Rule: The limitations applicable to investigative detentions of the [traveling] person should define the permissible scope of the persons luggage on less than probable cause. iv. Officers should be diligent in their investigation and try to do things as quickly as prudently possible. 11. Limited Searches for Evidence Under Terry a. Arizona v. Hicks (U.S.S.C. 1987) (p. 282) i. Search for evidence must be justified by probable cause, even if the search is cursory and minimally intrusive. Search Incident to Arrest 1. A warrantless search incident to a valid arrest was an accepted practice at the time the Bill of Rights was adopted. 2. U.S. v. Robinson (U.S.S.C. 1973) (p. 297) a. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the 4th Amendment. i. Therefore, a search incident to arrest is also a reasonable intrusion and requires no additional justification. b. Search incident to arrest is allowed in order to secure: i. Weapons that might endanger the officer; and ii. Evidence that might be concealed or destroyed.

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3. Spatial Limitations a. Chimel v. California (U.S.S.C. 1969) (p. 288) i. After a lawful arrest, officers may search the arrestee and area within the arrestees immediate control (the area from which he might gain possession of a weapon or destructible evidence or grab area) without a warrant. ii. Grab area is determined through multi-factor analysis: 1. Number of officers in relation to arrestee; 2. Where arrestee is arrested; 3. Size and strength of arrestee; 4. Nature of the area is question. iii. Some courts determine the grab area based on where the arrestee was at the time of the search, others at the time of the arrest. 1. Gant might be read to favor the former approach. 4. Temporal Limitations a. Arrest and search must be roughly contemporaneous. b. Search can take place before arrest if officer already has probable cause to arrest. i. Search CANNOT take place before arrest if the officer only gets probable cause through the search. 5. Searches Incident to Arrest Applied to Automobiles a. N.Y. v. Belton (U.S.S.C. 1981) (overruled by Gant) (p. 309) i. Passenger compartment of a car constitutes part of the grab area and can be searched incident to arrest. (Does not include trunk.) ii. Officers may also open any containers found in passenger compartment. iii. It is hard to justify a Belton search under the rationale of Chimel, which had to do with officer safety and preserving evidence. b. Arizona v. Gant (U.S.S.C. 2009) i. Belton does not authorize a vehicle search incident to a recent occupants after the arrestee has been secured and cannot access the vehicle. ii. Circumstances unique to the automobile context justify a search of the vehicle incident to arrest when it is reasonable to believe that evidence of the offense of the arrest might be found in the vehicle. iii. Chimel authorizes police to search a vehicle incident to arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. Plain View and Plain Touch Seizures 1. The plain view doctrine is best understood not as an independent exception to the warrant clause, but simply as an extension of whatever the prior justification for an officers access to an object might be. 2. Horton v. California (U.S.S.C. 1990) (p. 336) a. Issue: Whether the warrantless seizure of evidence of a crime in plain view is prohibited by the 4th Amendment if the discovery of the evidence was not inadvertent. b. Holding: No. Even though inadvertence is characteristic of most legitimate plain view searches, it is not a necessary condition.

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3. Arizona v. Hicks (U.S.S.C. 1987) (p. 339) a. An officer must have probable cause to seize an item that he views during the course of legal activity. b. Probable cause must be readily apparentit must exist without the necessity of a further search. 4. Minnesota v. Dickerson (U.S.S.C. 1993) (p. 340) a. The rationale of the plain view doctrine is that if contraband is left in open view and is observed by an officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no search has taken place within the meaning of the 4th Amendment. b. If an officer lawfully pats down a suspects outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspects privacy. Exigent Circumstances 1. If police have probable cause to search or arrest, in some cases they have to work quickly because delay: a. could give the suspect the opportunity to escape; b. could give the suspect or others an opportunity to take up and use weapons; or c. could give the suspect or others an opportunity to destroy evidence. 2. Besides needing initial probable cause, the officer must also have probable cause to believe that the person or items to be searched or seized might be gone or that some other danger would arise before a warrant could be obtained. 3. Hot Pursuit a. If officers are in hot pursuit of a suspect, they do not need an arrest warrant to apprehend him, and they do not need a search warrant when a search of an area must be conducted in order to find or apprehend the suspect. i. It is unrealistic to expect police officers to stop in the middle of a chase and procure a warrant. b. Warden v. Hayden (U.S.S.C. 1967) (p. 362) i. Officers had the right in these emergency circumstances, to search the washing machine to look for weapons, and thus the seizure of the incriminating clothing was permissible under the plain view doctrine. c. Welsh v. Wisconsin (U.S.S.C. 1984) (p. 362) i. The hot pursuit doctrine cannot apply when the suspect is unaware that he is being pursued by officers. 1. No exigent circumstances when officers made a warrantless entry into a home to arrest a DWI suspect, also without a warrant. d. U.S. v. Santana (U.S.S.C. 1976) (p. 363) i. The hot pursuit doctrine serves to ensure that a suspect may not defeat an arrest which has been set in motion in a public place...by the expedient of escaping into a private place. 4. Officer and Public Safety a. A warrant is excused if the delay in obtaining it would result in a significant risk of harm to officers or the public.

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b. Brigham City v. Stuart (U.S.S.C. 2006) (p. 364) i. Issue: Whether police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury. ii. Holding: Yes. Officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. 1. An action is reasonable under 4th Amendment, regardless of an individual officers subjective motivation, as long as the circumstances when viewed objectively justify the action. 5. Risk of Destruction of Evidence a. If evidence will be destroyed in the time it takes to obtain a warrant, the warrant requirement is excused. b. Factors to determine whether officers are confronted by an urgent need to make a warrantless entry: i. Gravity or violent nature of suspected offense; ii. Whether the suspect is reasonably believed to be armed; iii. Probable cause to believe the suspect committed the crime; iv. Strong reason to believe that the suspect is at the premises; v. Likelihood that the suspect will escape if not swiftly apprehended; vi.Peaceful circumstances of the entry. U.S. v. MacDonald (2d Cir. 1990). c. Vale v. Louisiana (U.S.S.C. 1970) (p. 239) i. Court emphasized fact-based nature of exigency inquiry. d. Richards v. Wisconsin (U.S.S.C. 1997) (p. 239) i. Exigent circumstances exception applies to knock-and-announce rule as well as the warrant requirement. e. Mincey v. Arizona (U.S.S.C. 1978) (unanimous) (p. 370) i. Issue: Could an offense be so serious that exigency should be deemed automatic, without regard to the actual risk of evidence destruction? ii. Holding: No. State must always make a factual showing of exigency. iii. A warrantless search must be strictly circumscribed by the exigencies which justify its initiation. f. Welsh v. Wisconsin (U.S.S.C. 1984) (p. 362) i. An important factor when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. 1. It is difficult to conceive of a warrantless home arrest that would not be unreasonable under the 4th Amendment when the underlying offense is extremely minor. 6. Impermissibly Created Exigency a. When officers act in an entirely lawful manner, they do not impermissibly create exigent circumstances. i. This gets into an analysis of the officers subjective intent, which is not appropriate in 4th Amendment analysis. b. Kentucky v. King (U.S.S.C. 2011) (Supp.) i. Holding: Officers did not impermissibly create an exigency when they smelled marijuana, knocked on the door and announced their presence, heard

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movement inside the apartment that they reasonably thought might be an attempt to destroy evidence, and kicked in the door. ii. Officers only create exigency when they engage or threaten to engage in conduct that violates the 4th Amendment. 1. Subjective intent of the officer does not matter if the circumstances, viewed objectively, would justify the action. iii. Officers do not create exigency when they act in a lawful and reasonable manner. iv. Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue. 7. Prior Opportunity to Obtain a Warrant a. If officers can foresee that an exigency will arise at a certain time in the future and have a strong case of probable cause and ample time to obtain a warrant before that exigency occurs, then the opportunity to obtain a warrant precludes the invocation of the exigent circumstances exception. b. Officers are not required to obtain a warrant at the moment that probable cause could be said to arisethey have the right to continue their investigation and strengthen the showing of probable cause. c. Missouri v. McNeely (U.S.S.C. 2013) i. Holding: Natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment's search warrant requirement for nonconsensual blood testing in all drunk-driving cases. Instead, exigency in this context must be determined case by case based on the totality of the circumstances ii. When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. 1. Circumstances may make obtaining a warrant impractical such that the alcohol's dissipation will support an exigency, but that is a reason to decide each case on its facts, not to accept the considerable overgeneralization that a per se rule would reflect. 8. Seizing Premises in the Absence of Exigent Circumstances a. Murray v U.S. (U.S.S.C. 1988) (p. 377) i. It is permissible to seize a premises for a reasonable period of time while diligent efforts are being made to obtain a warrant. ii. Seizing a premises means that occupants are kept out in order to protect against the destruction of evidence or a risk to public safety. b. Illinois v. McArthur (U.S.S.C. 2001) (p. 378) i. Issue: Whether officers, who had probable cause to believe that a man had hidden marijuana in his home, violated the 4th Amendment when they prevented the man from entering his home for two hours while a warrant was being obtained. ii. Holding: No, officers acted reasonably. 1. Officers had probable cause to believe the trailer contained contraband.

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2. Officers had good reason to fear that, unless restrained, suspect would destroy the evidence. 3. Officers made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy. 4. Officers imposed the restraint for a limited period of time. 5. Officers diligently obtained a warrant in a reasonable amount of time. Automobiles and Other Movable Objects 1. The police may search an automobile without a warrant, so long as they have probable cause to believe it contains evidence of any criminal activity. 2. Carroll v. U.S. (U.S.S.C. 1925) (p. 342) a. Automobiles are mobile, and evidence is likely to disappear. b. Cars driving on public roads are subject to government regulation. c. Privacy of expectation in a vehicle is less than that of a home. 3. Chambers v. Maroney (U.S.S.C. 1970) (p. 343) a. A warrantless search of an auto may be conducted after the auto has been immobilized, as long as there is probable cause to believe it contains evidence of criminal activity. b. There is no difference between seizing and holding a car before presenting the probable cause issue to the magistrate and carrying out an immediate search without a warrant. i. Given probable cause, either course is reasonable under 4th Amendment. 4. Coolidge v. New Hampshire (U.S.S.C. 1971) (plurality) (p. 345) a. Issue: Whether the potential mobility of the car justified the warrantless seizure (and therefore justified the warrantless search under Chambers.) b. Holding: Warrantless search was not permissible because there was no exigency. i. Coolidge had been arrested, wife removed from premises, police had control of the car, and there was ample time to get a warrant. 5. California v. Carney (U.S.S.C. 1985) (p. 347) a. Rationale of automobile exception i. Inherent mobility of automobiles (Carroll doctrine); and ii. Expectation of privacy in car is significantly less than expectation of privacy in a home. 1. Automobiles are subjected to pervasive and continuing governmental regulation and control. 6. Maryland v. Dyson (U.S.S.C. 1999) (p. 348) a. The automobile exception has no separate exigency requirement and that the probable cause finding alone satisfies the automobile exception to the 4th Amendments warrant requirement. 7. Movable ContainersIn and Out of Cars a. U.S. v. Chadwick (U.S.S.C. 1977) (p. 349) i. The mobility of a footlocker justified its seizure upon probable cause, but a warrant was required to search the locker, unless emergency circumstances rendered a seizure insufficient to protect the state interest (i.e. if the locker was ticking.)

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ii. Diminished privacy of expectation in cars does not apply to movable containers. 1. Luggage is not open to public view. 2. Luggage is not subject to regular inspections or official scrutiny. 3. Luggage is primarily a repository of personal affects. b. Arkansas v. Sanders (U.S.S.C. 1979) (p. 350) i. A warrant was required to search a suitcase in the trunk of a taxi. ii. Police had probable cause to search the suitcase, but no probable cause to search anywhere else in the taxi. c. U.S. v. Ross (U.S.S.C. 1982) (p. 350) i. Court upheld a warrantless search of a paper bag and pouch found during the search of a car. ii. Officers had probable cause to search the entire car, unlike in Chadwick and Sanders. d. California v. Acevado (U.S.S.C. 1991) (p. 351) i. Issue: Whether the 4th Amendment requires the police to obtain a warrant to open a sack in a movable vehicle simply because they lack probable cause to search the entire car. ii. Holding: No. The 4th Amendment does not compel separate treatment for an automobile search that extends only to a container within the vehicle. 1. Officers may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained. 8. Delayed Search of Containers a. U.S. v. Johns (U.S.S.C. 1985) (p. 357) i. Issue: Whether there are any temporal limitations on the power to search containers in a car without a warrant. ii. Holding: Searches of containers discovered in the course of a vehicle search are not subject to temporal restrictions not applicable to the vehicle itself. 9. Search of Passengers Property a. Wyoming v. Houghton (U.S.S.C. 1999) (p. 357) i. Issue: Whether an officer can make a warrantless search of a passengers property. ii. Holding: Search of passengers purse was permissible because there was probable cause to believe that drugs were in the car in which the purse was located. (Bright line rule.) 1. Officers with probable cause to search a car may inspect passengers belongings found in the car that are capable of concealing the object of the search. iii. The critical element in a reasonable search is not that the owner of the property is suspected of a crime, but that there is probable cause to believe that the specific things to be searched for and seized are located on the property to which entry is sought.

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Administrative Searches and Seizures 1. U.S.S.C. applies the reasonableness clause of the 4th Amendment to searches conducted for purposes other than traditional law enforcement methods. a. Balancing test: Special need for the particular search/seizure vs. degree of invasion upon personal rights. i. In these cases, there is usually a reduced expectation of privacy, anyway. b. Warrant is not well-suited for the variety of scenarios. 2. An expectation of privacy is commercial premises is less than a privacy expectation in a home, especially in closely regulated industries. a. AUTOMOBILES, liquor industry, pawnshops, etc. 3. The warrantless inspection of a closely regulated industry is reasonable when three elements are met: a. There must be a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made. b. The warrantless inspection must be necessary to further the regulatory scheme. c. The inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant. i. The inspection program must perform the two basic functions of a warrant: 1. it must advise the owner of the commercial premises that the search is being made in accordance with the law and has a properly defined scope; and 2. it must limit the discretion of the inspecting officers. 4. New York v. Burger (U.S.S.C. 1987) (p. 384) a. Issues i. Whether a warrantless search of a junkyard (conducted pursuant to a statute authorizing such a search) falls within the administrative search exception to the warrant requirement. ii. Whether an otherwise proper administrative search is unconstitutional when the motive of the search is to deter crime: the same motive of the penal laws. b. Holding i. Yes, it does. Junkyard is a closely regulated business, and the warrantless inspection complied with all three elements required for a reasonable search. ii. No, it is not. 1. Administrative statutes and penal laws may have the same ultimate purpose of remedying a social problem. a. An administrative statute establishes how a particular business in a closely regulated industry should be operated, sets forth rules to guide an operators conduct, and allows government officials to ensure that the rules are followed. b. A penal law punishes an individual for specific acts of behavior. 2. An administrative search is not unconstitutional because in the course of enforcing it the inspecting officer discovers evidence of crimes, beside violation of the administrative statute itself. 3. The fact that a police officer performs an administrative search does not make the search unconstitutional.

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Searches and Seizures of Individuals Pursuant to Special Needs 1. Searches and Seizures on the Basis of Reasonable Suspicion a. New Jersey v. T.L.O. (U.S.S.C. 1985) (p. 395) i. The search of a students handbag for cigarettes implicated special needs beyond ordinary law enforcement: the States need to keep schools safe. ii. The reasonable suspicion standard was sufficient to protect the students diminished expectation of privacy while permitting school officials to maintain school discipline. 1. If probable cause were required, school officials would be unable to regulate disciplinary problems before they became serious and intractable. iii. T.L.O. standard of reasonable suspicion applies to offices of government officials and to the homes of probationers. b. School District v. Redding (U.S.S.C. 2009) (p. 396) i. Issue: Whether a 13 yo students 4th Amendment rights were violated when she was subjected to a strip search by school officials acting on reasonable suspicion that she brought contraband to school. ii. Holding: Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, the search was unconstitutional. iii. A school search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. 2. Suspicionless Searches of Persons on the Basis of Special Needs a. Skinner v. Railway Labor (U.S.S.C. 1989) (p. 401) i. Where the privacy interests implicated by the search are minimal and where a substantial government interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable even in the absence of such suspicion. ii. There was no indication that the suspicionless testing was a pretextual means of enforcing criminal law. iii. Testing was an effective means of deterring drug use among R.R. workers, which implicates public safety. b. Union v. Von Raab (U.S.S.C. 1989) (p. 403) i. Drug testing customs employees serves the special need to ensure that customs employees responsible for controlling the flow of drugs into the country are not on drugs themselves. ii. The event that triggered the testing was the employees decision to apply for a covered position. So there is no factual question for a magistrate to decide, meaning there is no need for a warrant. c. Chandler v. Miller (U.S.S.C.1997) (p. 406) i. Government interest is not substantial. 1. No evidence of drug use among Georgia public officials. 2. Does not further public safety goals. ii. Does not further the government interest. 1. With a 30-day notification, candidates could easily circumvent the test.

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d. Board of Education v. Earls (U.S.S.C. 2002) (p. 411) i. Holding 1. Drug testing of students who participate in extra-curricular activities effectively serves the School Districts interest in protecting the health and safety of its students. 2. Students affected by the drug testing policy have a reduced expectation of privacy. e. Ferguson v. City of Charleston (U.S.S.C. 2001) (p. 419) i. Issue: Whether a state hospitals performance of a diagnostic test to obtain evidence of a patients criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure. ii. Holding 1. The immediate objective of the drug-testing regime was to generate evidence of law enforcement purposes in order to reach the ultimate objective of helping pregnant women get off drugs. 2. Regime was designed to obtain evidence of criminal conduct that would be turned over to the police and that could be admissible in subsequent criminal prosecutions. a. This case does not fit within the closely guarded category of special needs. f. Maryland v. King i. Maryland statute to collect DNA samples from arrestees. 1. Limited to violent felonies. 2. Done at time of booking. 3. DNA cannot be uploaded until after arraignment/probable cause hearing. 4. If individual is not convicted, DNA samples are destroyed. 5. DNA samples can only be used for purposes of identification. ii. Special needs applies. iii. Does the individual have a reduced expectation of privacy? 1. Yes. When you are in government custody, you have a reduced expectation of privacy. Consent Searches 1. A search based on voluntary consent is reasonable even in the absence of a warrant or any articulable suspicion. 2. Voluntary Consent a. Schneckloth v. Bustamonte (U.S.S.C. 1973) (p. 462) i. Whether a consent to a search was voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the TOC. ii. A suspects knowledge of his right to refuse consent is relevant in determining voluntariness, but absence of a warning of the right to refuse consent is not dispositive.

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b. U.S. v. Prescott (9th Cir. 1978) (p. 463) i. A person cannot be penalized for exercising the right to refuse to consent to a search, and that passive refusal to consent to a warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing. c. U.S. v. Watson (U.S.S.C. 1976) (p. 464) i. The absence of consent warnings or of proof that knew he could withhold consent was not dispositive when had been arrested and was in custody, but his consent was given while on a public street, not in the police station. ii. To hold that illegal coercion is made out from the fact of arrest and absence of consent warnings would be inconsistent with Schneckloth. iii. While the persons custodial status is relevant to TOC inquiry, it is not dispositive. d. Bumper v. North Carolina (U.S.S.C. 1968) (p. 464) i. Burden of proof that consent was voluntary is on the government, and burden cannot be discharged by showing no more than an acquiescence to a claim of lawful authority. e. U.S. v. Gonzalez-Basulto (5th Cir. 1990) (p. 465) i. Non-exhaustive list of factors relevant to voluntariness of consent 1. voluntariness of s custodial status; 2. presence of coercive police procedures; 3. extent and level of s cooperation with police; 4. s awareness of his right to refuse consent; 5. s education and intelligence; and 6. s belief that no evidence will be found. f. U.S. v. Duran (7th Cir. 1992) (p. 466) i. Empty threats to obtain a warrant may render subsequent consent involuntary. ii. If police could actually obtain a warrant and they threaten to do so, subsequent consent is not rendered involuntary. g. Ohio v. Robinette (U.S.S.C. 1996) (p. 467) i. The test for whether a search is consensual is based on TOC, not whether officer has informed suspect he is free to leave. h. More TOC Factors i. Threats 1. Empty threats to get a warrant make consent involuntary. 2. BUT: it is permissible for police to threaten to get a warrant, so long as they could actually get one. Duran. a. This will still be considered under TOC. 3. It also matters whether we are talking about consent to search a house v. consent to search a car. ii. Deception 1. Deception as to identity of officers does not render consent involuntary . 2. But if they are presenting themselves as officers and then lie about the reason for the search or lie to get the person to submit to their authority, then consent is likely to be found involuntary.

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iii. s background and state of mind 1. Education, intelligence, state of mind, understanding English, etc. 2. Does understand consequences of his actions? iv. Awareness of right to refuse 1. Relevant but not dispositive. Schneckloth. 2. Same goes for right to terminate encounter. Robinette. v. Cooperation + Location of Evidence 1. Level of cooperation with police helps establish voluntariness. 2. Was the evidence difficult to find? 3. Third Party Consent a. Frazier v. Cupp (U.S.S.C. 1969) (p. 468) i. Court upheld search of s duffle bag when his cousin, a joint user of the bag, voluntarily consented. ii. assumed the risk that his cousin would allow others to see inside the bag when he allowed the cousin to use it. b. U.S. v. Matlock (U.S.S.C. 1974) (p. 469) i. The consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person with whom that authority is shared, ii. Justification of third-party consent does not rest on property law, but on the mutual use of the property by persons generally having joint access or control for most purposes. iii. Joint users have actual authority to permit a search. c. Illinois v. Rodriguez (U.S.S.C. 1990) (p. 469) i. Issue: Whether a search is valid when based on consent of a third party who has apparent authority but not actual authority. ii. Search is valid if officers have a reasonable belief that the third party has authority to consent. 1. Mistake of fact is excused. d. Stoner v. California (U.S.S.C. 1964) (p. 470) i. The rights protected by the 4th Amendment are not to be eroded by unrealistic doctrines of apparent authority. ii. Mistakes of law are not excused. 1. An investigators erroneous belief that landlords are generally authorized to consent to a search of the tenants premises could not provide the authorization necessary for a warrantless search. e. U.S. v. Dearing (9th Cir. 1993) (p. 471) i. A live-in babysitter lacked apparent authority to consent to a search of his employers bedroom. ii. Police are not allowed to proceed on the theory that ignorance is bliss, and they should have inquired into the extent of the babysitters authorized access into the bedroom. f. Georgia v. Randolph (U.S.S.C. 2006) (p. 471) i. Issue: Whether a consent search is lawful with the permission of one occupant when the other (later seeking to suppress the evidence) is present at the scene and expressly refuses consent.

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ii. Holding: A physically present co-occupants stated refusal to permit entry to the police invalidates the consent of the other co-occupant and renders the warrantless search unreasonable and invalid as to him. 1. There is no common understanding that one co-tenant has a right or authority to prevail over the express wishes of another. 2. This is a narrow holding. 4. Scope of Consent a. Scope of consent is determined by asking how a reasonable person would have understood the conversation between the officer and the suspect when consent was given. b. Florida v. Jimeno (U.S.S.C. 1991) (p. 479) i. The scope of a consent is determined by a standard of objective reasonableness. ii. s general consent to search the car included consent to search containers in the car that might contain drugs because the scope of a search is generally defined by its expressed object. iii. Distinguish 1. If an officer is given consent to search the trunk of the car and finds a locked briefcase, he cannot open the briefcase. It is very likely unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase in the trunk. 2. But a paper bag is different. c. It is up to the citizen, not the officer, to clarify any ambiguity concerning the scope of consent. i. Would you be concerned that by limiting the scope of the search, you will direct the officers attention to the very area that you want to exclude from the search? Yes. d. It is also likely that a search will be beyond the scope of consent if it involves destructive activitysuch as breaking open a briefcase. i. Before an officer may actually destroy or render completely useless a container which would otherwise be within the scope of a permissive search, the officer must obtain explicit authorization, or have some other, lawful, basis upon which to proceed. 5. Withdrawing Consent a. Revocation of consent must be clear and explicit. b. U.S. v. Carter (D.C. Cir. 1993) i. The constitutional right to withdraw ones consent would be of little value if the very fact of choosing to exercise that right could serve as any part of the basis for finding the reasonable suspicion that makes consent unnecessary. ii. However, if a s retracting of consent is peculiar, then the suspicious conduct may be taken into account under TOC.

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The Exclusionary Rule 1. The criminal is to go free because the constable has blundered.J. Cardozo 2. Weeks v. U.S. (U.S.S.C. 1914) (p. 495) a. Court started to use exclusion as a remedy for 4th Amendment violation. i. It was supposed to deter officers from violating the 4th Amendment. ii. It also protects judicial integrity: courts should not sanction illegal searches by admitting their fruits into evidence. 3. Mapp v. Ohio (U.S.S.C. 1961) (p. 498) a. Exclusionary rule is a constitutionally requiredeven if judicially appliedremedy which which the 4th Am. would be reduced to a form of words. b. Four points in favor of exclusionary rule i. Rule preserves judicial integrity by insulating courts from tainted evidence. ii. Rule prevents government from profiting from its own wrong. 1. A government of laws, not of men.John Adams iii. Rule is not costly because it only excludes what should never have been obtained in the first place. iv. Rule is necessary to deter police misconduct. 4. Exclusion no longer follows automatically upon finding of a 4th Amendment violation. a. Good faith exception b. Standing limitation c. Attenuation doctrine d. Impeachment exception e. Non-criminal proceedings exception 5. Good Faith Exception a. U.S. v. Leon (U.S.S.C. 1984) i. Holding 1. If police act in good faith in obtaining a defective warrant, the exclusionary rule does not apply. a. Acts as an incentive for officers to obtain a warrant. 2. A good faith claim must have an objective basis. ii. Rationale 1. Deterrent effect of exclusionary rule on police conduct does not apply in this situation; officer was acting in good faith. 2. Deterrent effect does not operate on magistrates; they are not involved in the trial, etc. They are impartial. 3. Cost/benefit analysis of exclusionary rule. iii. Four limits to good faith exception 1. Officer deliberately provides false information to magistrate. 2. Officer definitely knows that issued warrant is not supported by PC. 3. Warrant is too generallacking in particularity. 4. Magistrate is obviously not neutral or detached when he issues warrant. 6. Good Faith Exception and Warrantless Searches a. Illinois v. Krull (U.S.S.C. 1987) (p. 530) i. Good faith exception applied to warrantless searches. ii. Legislature made the constitutional error, not the officer.

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1. Deterrent effect of exclusionary rule doesnt apply to legislatures. b. Arizona v. Evans (U.S.S.C. 1995) (p. 531) i. Issue: Whether the government official who makes the mistake that leads to an illegal search or seizure can be deterred by operation of the exclusionary rule. ii. Court clerk made a clerical error. Deterrent effect doesnt apply to court clerk. iii. Concurrence: An officer cannot reasonably rely on a computer system if it is systematically rife with error. c. Herring v. U.S. (U.S.S.C. 2009) (p. 533) i. The question of exclusion turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. ii. Exclusionary rule is to deter deliberate, reckless or grossly negligent police conduct. 1. Negligent error is not enough by itself to require the extreme sanction of exclusion. iii. There are remedies for people whose 4th Amendment rights have been violated, but it is not the exclusionary rule. It is found in U.C.C. 1983. d. Davis v. U.S. (U.S.S.C. 2011) i. Officers relied on Belton when making the search incident to arrest. Then Gant was decided. ii. Officers reasonably relied on binding precedent and did not act deliberately, recklessly or grossly negligently. 1. No deterrent effect would be achieved. iii. Good faith exceptions for warrantless searches where the error was made by the searching officer himself? 1. He was wrong, but reasonable minds could differ about whether he was wrong. a. Example: Officer thought there was voluntary consent, exigent circumstances, etc. 2. Should the exclusionary rule apply, or should the officer be excused since he was acting in good faith? 7. Standing to Assert 4th Amendment Violation a. For to be entitled to the exclusion of evidence, he must establish that his own personal rights were affected by the governments search or seizure. b. While ownership of property does not automatically provide the right to object to a search, it does provide the right to object to a seizure of that property because, by definition, a seizure is an intrusion on a possessory interest. c. Rakas v. Illinois (U.S.S.C. 1978) (p. 542) i. does not have standing simply because he was the target of an investigation that produced the unlawfully seized evidence. ii. must have a legitimate expectation of privacy in the area searched. 1. A person can have a legitimate expectation of privacy in areas other than his own home, entitling them to 4th Amendment protection.

d. Rawlings v. Kentucky (U.S.S.C. 1980) (p. 547)

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i. Evidence used against was obtained from his companions purse. ii. had no right to object to the search of the purse because he had no legitimate expectation of privacy in it. e. Minnesota v. Carter (U.S.S.C. 1998) (p. 548) i. Lessees friends did not have a reasonable expectation of privacy in her apartment. 1. They were essentially present for a business transaction. 2. They were only in the home for a matter of hours. 8. Causation and Attenuation a. Issue: Whether there is a sufficient causal connection between proffered evidence and an illegal search and seizure to justify exclusion. b. Factors i. Time between violation and search/seizure/confession ii. Intervening events iii. Flagrancy and purpose of violation iv. Miranda warnings c. Brown v. Illinois (U.S.S.C. 1975) (p. 558) i. In order for the causal chain between the illegal arrest and the statements made subsequently, Wong Sun requires that: 1. The statement meet the 5th Amendment standard of voluntariness; and 2. The statement be sufficiently an act of free will to purge the primary taint. ii. The question whether a confession is the product of free will under Wong Sun must be answered on the facts of each case. iii. There were two hours between s illegal arrest and confession. d. Dunaway v. New York (U.S.S.C. 1979) (p. 561) i. was arrested without probable cause, taken to the station, and confessed two hours later after receiving Miranda warnings. ii. Court is concerned that officers would violate the 4th Amendment with impunity, safe in the knowledge that they could wash their hands in the procedural safeguards of the 5th. e. Taylor v. Alabama (U.S.S.C. 1982) (p. 561) i. was arrested without probable cause, searched, fingerprinted, interrogated and put in a line up. then signed a Miranda waiver and confessed, six hours after the arrest. ii. A difference of a few hours is not significant where, as here, was in police custody, unrepresented by counsel, interrogated, fingerprinted and subjected to a line up. f. Rawlings v. Kentucky (U.S.S.C. 1980) (p. 563) i. Statements were not tainted by an illegal detention when: 1. Miranda warnings were given; 2. 45 minute detention was in a congenial atmosphere; 3. Statements were apparently spontaneous reactions to the discovery of evidence rather than the product of the illegal detention; and 4. Police action did not involve flagrant misconduct. g. New York v. Harris (U.S.S.C. 1990) (p. 563)

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i. confessed at police station after a warrantless in-home arrest, which was in violation of Payton. 1. Confession made one hour after illegal arrest and after had received Miranda warnings and waived his rights. ii. Payton was designed to protect the privacy of the home. iii. A Payton violation results in an illegal search, but not an illegal arrest, as long as there is probable cause to arrest. h. Hudson v. Michigan (U.S.S.C. 2006) (p. 564) i. Is exclusion the remedy for a violation of the knock-and-announce rule? 1. No. Knock-and-announce rule protects: a. officer and resident safety; b. property from destruction; and c. a chance for a resident to have privacy and dignity 2. These interests have nothing to do with the seizure of evidence described in a warrant. ii. Suppression of evidence has always been our last resort, not our first impulse. 1. Exclusion only applies when its deterrence benefits outweigh its substantial social costs. iii. Civil liability is an effective deterrent of knock-and-announce violations. i. Consent as Breaking Chain of Causation i. To determine whether s consent was an independent act of free will, breaking the causal chain, courts look to three factors: 1. Time between violation and consent 2. Intervening events 3. Flagrancy and purpose of violation ii. U.S. v. Hernandez (279 F.3d 302) (p. 570) 1. voluntarily consented to a search of luggage after officer illegally prodded it and felt a hard package inside. 2. s consent did not cure the 4th Amendment violation caused by officers manipulation of luggage. j. Witness Testimony After Illegal Searches and Seizures i. Witnesss voluntary decision to testify is ordinarily enough to break any causal connection between the illegality and the testimony. ii. The exclusionary rule should only apply if there is a very close and direct link between the illegality and the witnesss testimony. iii. Factors 1. Time 2. Willingness of witness to testify 3. Whether witness was aware of violation 4. Flagrancy of violation

9. Independent Source Doctrine

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a. Evidence will not be excluded if it is obtained independently and without reliance on any illegal police activity. b. Segura v. U.S. (U.S.S.C. 1984) (p. 572) i. Police officers illegal entry upon private premises did not require suppression of evidence subsequently discovered at those premises when executing a search warrant obtained on the basis of information wholly unconnected with the initial illegal entry. c. Murray v. U.S. (U.S.S.C. 1988) (p. 572) i. Independent source doctrine applies to evidence initially discovered during or as a consequence of an unlawful search, but later obtained independently from activities untainted by the initial unlawful search. 1. While the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied. ii. Inquiry 1. Was the magistrate influenced by the illegal search? a. No. 2. Was the officers decision to seek a warrant prompted by the illegal search? a. Cant tell. Remanded for fact finding. 10. Inevitable Discovery a. Inevitable discovery exception has been termed the hypothetical independent source exception. i. For the exception to apply, the government must show that the illegally obtained evidence would have been discovered through legitimate means independent of the official misconduct. b. The independent source doctrine and the inevitable discovery doctrine are related. i. Both doctrines limit the exclusionary rule so that the government is not denied evidence it would have had even without the officers illegal activity. c. Inevitable discovery is not limited to cases where the officer acted in good faith. i. Sufficient deterrence from violating 4th Amendment comes from the fact that officers cannot know in advance whether the government will be able to prove inevitable discovery. d. In deciding whether the inevitable discovery exception applies, courts must focus on what the officers actually would have done, not on what they could possibly have done. e. Nix v. Williams (U.S.S.C. 1984) (p. 577) i. Exclusion will not apply if government can show by a preponderance of the evidence that illegally obtained evidence would have been discovered through lawful means independent of the official misconduct. f. U.S. v. Andrade (9th Cir. 1986) (p. 579) i. Inevitable discovery through hypothetical inventory search. 1. Even if the search could not be justified as incident to arrest, the evidence was still admissible because it would have been inevitably discovered through a routine inventory search.

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ii. State still has to prove that the search conducted would have been admissible under the inventory standards. g. U.S. v. Brown (7th Cir. 1995) (p. 580) i. Police: We would/could have obtained a warrant. ii. What makes a discovery inevitable is not probable cause alone, but probable cause plus a chain of events that would have led to a warrant or another justification independent of the illegal search. iii. To excuse the failure to obtain a warrant merely because the officers had probable cause and could have inevitably obtained a warrant would completely obviate the 4th Amendments warrant requirement. 11. Use of Illegally Obtained Evidence Outside the Criminal Trial Context a. Grand jury proceedings b. Civil tax proceedings c. Civil deportation proceedings d. Habeas corpus proceedings e. Parole revocation proceedings f. Sentencing proceedings 12. Use of Illegally Obtained Evidence for Impeachment Purposes a. Walder v. U.S. (U.S.S.C. 1954) (p. 588) i. If opens the door on direct examination, illegally obtained evidence may be used to impeach him. ii. Exclusionary rule is not a license for perjury. b. U.S. v. Havens (U.S.S.C. 1980) (p. 588) i. Illegally obtained evidence can be used to impeach s testimony no matter when it is elicited, including cross examination (as long as the questions put to the are plainly within the scope of the direct examination. ii. Dissent: This will discourage s from testifying on their own behalf. c. James v. Illinois (U.S.S.C. 1990) (p. 589) i. Illegally obtained evidence cannot be used to impeach defense witnesses. ii. s would be afraid to present their own witnesses. iii. Unlike s, witnesses are sufficiently deterred from perjury by threat of prosecution. iv. Unlike s testimony, which can be tailored to avoid impeachment, defense witnesses cannot be so controlled. Privilege Against Self-Incrimination 1. No person...shall be compelled in any criminal case to be a witness against himself. a. Person i. Corporations cannot claim this privilege. b. Compelled i. Must rise to the level of compulsion. 1. Denial of a benefit is not a penalty, and is therefore not compulsion. 2. What rises to compulsion? a. Contempt of court. b. Having current contracts canceled and future ones denied.

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c. Interrogating an individual in police custody. d. Allowing the jury to draw an adverse inference from silence of . 3. What doesnt rise to compulsion? a. Clemency proceedings b. Transfer to maximum security prison and reduction of privileges in prison. c. Criminal case i. Applies in any case where there is a threat of subsequent criminal prosecution. 1. Grand jury 2. Forfeiture 3. Sentencing 4. Juvenile delinquency ii. When incarceration is not available as a penalty, a legislative determination that a proceeding is civil is likely to be upheld. d. Witness i. When provides incriminating, testimonial evidence, he is acting as a witness against himself. ii. Does not apply when statements are never admitted as evidence in a criminal prosecution. iii. Does not apply to physical evidence because it is not the kind of evidence a witness would provideso it is not testimonial. 1. Handwriting, voice prints, fingerprints, DNA, line-up, sobriety tests. 2. Policies Behind the Privilege a. Deterring perjury. b. Encouraging adversarial system. c. Discouraging uncivilized police interrogation tactics. d. Protecting individuals from cruel trilemma. i. Cruel trilemma: Choice between truth-lies-silence (or self-incrimination, perjury or contempt.) e. Protecting possibly innocent defendants who testify badly. 3. Commenting of the Invocation of the Privilege a. Griffin v. California (U.S.S.C. 1965) (p. 615) i. An adverse comment to the jury on s election not to testify constitutes punishment for invocation of silence, which is tantamount to compulsion. 1. s refusal to take the stand cannot be held against him. b. Carter v. Kentucky (U.S.S.C. 1981) (p. 615) i. If requests, judge must instruct the jurors that they were not to draw an adverse inference from s failure to testify. c. Lakeside v. Oregon (U.S.S.C. 1978) (p. 615) i. Griffin is concerned with adverse comment; the jury instruction is the opposite of an adverse comment. 1. It is designed to dispel the compulsion that might otherwise exist due to the negative inferences that could be drawn from s failure to testify. d. U.S. v. Robinson (U.S.S.C. 1988) (p. 615) i. Holding: Prosecutor properly pointed out in closing argument that had an opportunity to testify.

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1. This was in response to s closing argument that had not been permitted to tell his side of the story. e. Mitchell v. U.S. (U.S.S.C. 1999) (p. 616) i. cannot be subjected to an adverse inference when invoking the privilege at a sentencing proceeding. 1. A sentencing hearing is part of the criminal casethe explicit concern of the self-incrimination privilege. 2. The concerns which mandate the rule against adverse inferences at trial apply with equal force at sentencing. The stakes are high. ii. Dissent: An adverse inference cannot be said to compel anyone to testify. Criticism of Griffin. f. Baxter v. Palmigiano (U.S.S.C. 1976) (p. 617) i. Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them. g. Borgan v. U.S. (U.S.S.C. 1998) (p. 618) i. Exculpatory no doctrine 1. A simple denial of guilt should not be punished criminally because of the 5th Amendment. ii. Court REJECTS this doctrine. 1. s are not compelled to deny guilt. They could have remained silent. 4. To Whom Does the Privilege Belong? a. The privilege against self-incrimination is a personal right, belonging only to the person who is himself incriminated by his own testimony. i. It may not be asserted vicariously. b. Fisher v. U.S. (U.S.S.C. 1976) (p. 619) i. s 5th Amendment rights werent violated when their attys were served with summonses, directing them to produce tax records given to them by clients. 1. Enforcement of summonses would not compel s to do anything, let alone be witnesses against themselves. 2. The ingredient of personal compulsion against s is lacking. ii. Policy: It is extortion of information from the accused himself that offends our sense of justice. 5. What is Protected by the Privilege? a. Schmerber v. California (U.S.S.C. 1966) (p. 622) i. The privilege protects an accused only from being compelled to testify against himself or otherwise provide the State with evidence of a testimonial or communicative nature. 1. Privilege only applies when the State seeks to obtain evidence against the accused through the cruel, simple expedient of compelling it from his own mouth. ii. Privilege does not protect against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. 1. Withdrawal of blood and analysis of sample did not involve compulsion of testimonial evidence, but only physical evidence. Privilege does not apply.

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b. U.S. v. Wade (U.S.S.C. 1967) (p. 624) i. Compelling to participate in a line-up does not violate 5th Amendment. ii. Compelling to utter the words purportedly used by the robber in front of a prosecution witness does not violate 5th Amendment. 1. was compelled to use his voice as an identifying physical characteristic, not to speak his guilt. c. The Cruel Trilemma i. Pennsylvania v. Muniz (U.S.S.C. 1990) (p. 625) 1. The line between testimonial and non-testimonial evidence is determined by whether the witness faces the cruel trilemma in disclosing the evidence. a. Whenever is asked for a response requiring him to communicate an express or implied assertion of fact or belief, confronts the trilemma of punishment for truth-falsity-silence. (Or incrimination-perjury-contempt.) ii. Doe v. U.S. (U.S.S.C. 1988) (p. 627) 1. A statement must be capable of being true or false in order to be testimonial. a. Otherwise, there is no risk of perjury and no cruel trilemma. 2. s compelled signature on a bank form was not testimonial because there was no assertion of fact. a. A simple authorization does not expose to truth-falsity-silence trilemma. d. Documents and Other Info Existing Before Compulsion i. Contents of voluntarily prepared documents are never protected by 5th Amendment. 1. Such documents cannot be said to contain compelled testimony. ii. Andresen v. Maryland (U.S.S.C. 1976) (p. 628) 1. Holding: Use at trial of s business records, seized pursuant to a valid warrant, did not violate 5th Amendment. 2. Records were voluntarily prepared by before the search. a. Seizure of records did not compel to say or do anything. iii. Fisher v. U.S. (U.S.S.C. 1976) (p. 629) 1. Holding: A subpoena served on a taxpayer requiring him to produce documents does not compel oral testimony. a. Documents were prepared voluntarily. b. 5th Amendment is not violated by the lone fact that the papers on their face might incriminate the taxpayer. 2. Production of evidence in response to subpoena can be communicative. a. Act of producing documents communicates that: i. The documents exist; ii. They are under the control of the person producing them; and iii. They are authenticthat they are in fact the documents described by the subpoena. b. If any of those communications are self-incriminating, privilege applies.

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iv. U.S. v. Doe (U.S.S.C. 1984) (p. 631) 1. Holding: The owner of several sole proprietorships properly invoked his privilege in response to grand jury subpoena for business documents and records. a. Presumably because they were cooked books or something, and the act of production would be self-incriminating. e. When is the Act of Production Self-Incriminating? i. Production of a document would be incriminating if a person had previously testified, under oath, that the document did not exist. ii. Even in cases where the act of production would be incriminating, the 5th Amendment will not apply if its existence, control and authentication are a foregone conclusion. 1. State has substantial independent evidence that the records exist, that controls them, and that the records are authentic. a. This can be established through other witnesses. Procedural Aspects of Self-Incrimination Claims 1. When the privilege is invoked by a witness other than , court must determine whether the witness, by answering a particular question, would subject herself to the risk of incrimination within the meaning of 5th Amendment. 2. Hoffman v. U.S. (U.S.S.C. 1951) (p. 642) a. The risk of incrimination is determined by whether it is perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken and that the answers cannot possibly have [a] tendency to incriminate. b. Privilege extends to answers that would in themselves support a conviction, but also those which would furnish a link in the chain of evidence needed to prosecute. 3. Hibel v. 6th Judicial Court of Nevada (U.S.S.C. 2004) (p. 643) a. Officers are permitted to determine an individuals identity in a lawful Terry stop. b. s disclosure of his identity to the police does not tend to incriminate him, nor does it tend to furnish a link in the chain of evidence needed to prosecute him. 4. Ohio v. Reiner (U.S.S.C. 2001) (p. 644) a. Holding: An individual can face a risk of self-incrimination by claiming innocence; therefore the grant of immunity was lawful. i. Under cross-examination, a bad witness who is claiming innocence might still say something incriminating. ii. This is why immunity needs to be granted: so that your witness can testify, and you can catch the bigger fish. 5. Immunity a. If a person is guaranteed that no criminal prosecution having anything to do with statements given to the government will take place, then there is no possibility of self-incrimination. i. A person who receives immunity has no right to refuse to testify and may be held in contempt of court for doing so.

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b. Kastigar v. U.S. (U.S.S.C. 1972) (p. 646) i. Use-fruits immunity: No testimony or other information compelled from the order to testify (or any information directly or indirectly derived from such testimony or information) may be used against the witness in any criminal case except a prosecution for perjury or otherwise failing to comply with the order. 1. Use-fruits immunity is a rational accommodation between the imperatives of the privilege and the legitimate demands of the government to compel citizens to testify. ii. After immunity is granted, the burden is on the government to prove that the evidence it proposes to use in a subsequent criminal case is derived from a legitimate source wholly independent of the compelled testimony. 6. Waiver of the Privilege a. Minnesota v. Murphy (U.S.S.C. 1984) (p. 650) i. Burden is on the witness to assert to privilege. 1. If witness fails to assert the privilege, courts presume that the witness was speaking voluntarily (without compulsion). b. Salinas v. Texas (U.S.S.C. 2013) (Westlaw) i. Facts: had a non-custodial interview with police, where he answered all of their questions except one. When asked if his shotgun would match the bullets found at crime scene, did not answer. After a moment, police resumed questioning and resumed answering their questions. ii. Holding: A witness does not expressly invoke the privilege by remaining silent. 1. His silence can be used against him at trial. iii. Requiring an express invocation of the privilege puts the government on notice that the witness intends to rely on the privilege, so that they can either argue that the testimony is not self-incriminating or offer immunity. iv. What happens if halfway through your testimony you try to assert the privilege? 1. Once you start answering questions about a subject matter within the scope of direct examination, you have to keep answering. 2. Otherwise, courts will get a distorted version of the truth. Confessions and Due Process 1. Before 5th Amendment was incorporated against the states, the Court used the DP Clause of 14th Amendment in order to regulate confessions. a. Brown v. Mississippi (U.S.S.C. 1936) (unanimous) (p. 652) i. s were sentenced to death, within a week of the crime, on the basis of confessions obtained through torture. ii. It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.

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b. What constituted involuntariness pre-Miranda? i. Fact-based totality of circumstances analysis. ii. Factors 1. Personal characteristics of accused. 2. Physical deprivation or mistreatment. 3. Psychological pressure. 4. Presence of legal counsel. 5. Whether a warning was given. c. Spano v. New York (U.S.S.C. 1959) (p. 656) i. TOC analysis 1. was young, foreign-born, relatively uneducated, emotionally unstable and unfamiliar with the criminal justice system; 2. did not make a narrative statement in his confession, but answered the leading questions of a skilled prosecutor in a question-and-answer confession; 3. was questioned incessantly throughout the night, by many different officers; 4. Officers did not halt questioning upon s request for counsel; 5. Officers did not allow to contact his atty; and 6. Officers used s friend to extract the confession from him by making false statements. ii. Holding: Confession was involuntary. s will was overborne by official pressure, fatigue and sympathy falsely aroused. iii. Concurrence: Once a person is formally charged by indictment or information, his constitutional right to counsel begins. d. Green v. Scully (2d Cir. 1988) (p. 662) i. Holding: Confession was not involuntary when confessed because he was afraid that he would black out and kill someone again. ii. The presence of a direct or implied promise of help or leniency alone does not bar the admission of a confession. 2. Police Conduct or Misconduct a. Deception i. Police can lie about evidence to the suspect during interrogation. 1. It changes if police begin forging documents to show the suspect. ii. Some courts find involuntariness if an officer makes a very specific promise that he knows he cannot keep. iii. Courts split on whether officers can lie about the law with impunity. b. Using TOC Factors i. Police cannot use s personal characteristics in order to manipulate into a confession. 1. Were police aware of vulnerable characteristics? Did they trade on them? c. Arizona v. Fulminante (U.S.S.C. 1991) (p. 666) i. Credible threat of physical violence is sufficient to render a confession involuntary. 1. Even an innocent person might confess to avoid physical harm.

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d. Colorado v. Connelly (U.S.S.C. 1986) (p. 667) i. Due Process analysis should focus primarily on police misconduct, rather than the suspects state of mind. ii. Holding: Coercive police activity is a necessary predicate to a finding that a confession is not voluntary within the meaning of the Due Process clause. 1. Suppressing a statement in the absence of police coercion would serve absolutely no purpose in enforcing constitutional guarantees because it would not deter future police conductwhich is what the exclusionary rule is for. e. U.S. v. Rutledge (7th Cir. 1990) (Posner) (p. 668) i. A better inquiry is whether the government has made it impossible for to make a rational choice as to whether to confess. Fifth Amendment Limitations on Confessions 1. 5th Amendment is a good way to regulate confessions because it is not temporally limited to criminal prosecutions (unlike 6th Amendment); and because the threshold for official pressure on a suspect that is required to trigger 5th Amendment protection is substantially less than the pressure to trigger due process protections. 2. Miranda v. Arizona (U.S.S.C. 1966) (p. 671) a. Holding: State may not use statements, exculpatory or inculpatory, stemming from custodial interrogation unless it demonstrates the use of procedural safeguards that are effective to secure the privilege against self-incrimination. b. Prior to any [custodial] questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. i. may waive these rights, provided the waiver is made voluntarily, knowingly, and intelligently. 1. Government bears the burden of proof on this. ii. A valid waiver of Miranda rights will not be presumed from the silence of the accused or from the fact that a confession was eventually obtained. c. An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion [of trained police officers] cannot be otherwise than under compulsion to speak. d. Once warnings have been given, subsequent procedure is clear: i. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease; ii. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. e. Why does Miranda include the right to counsel from the 6th Amendment? i. The warning makes the waiver more intelligent and more likely to be voluntary. f. Why does the Court think Miranda warnings are an improvement over the voluntariness test? i. It is difficult after the fact to figure out what happened during custodial interrogation: whether there was compulsion or not.

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ii. If a has received Miranda warnings, it will be easier for the Court to find voluntariness or involuntariness. iii. Miranda is a bright-line rule that stops the courts from engaging in the factually-based TOC analysis. iv. The threshold for official pressure on a suspect required to trigger 5th Amendment protection is substantially less than the pressure required to trigger Due Process protections. 3. Dickerson v. U.S. (U.S.S.C. 2000) (p. 691) a. Issue: Is Miranda constitutionally-based, thus preventing it from being overruled by Congress? i. Congress passed a statute trying to reinstate fact-based TOC voluntariness analysis. b. Holding: Yes; language in Miranda suggests constitutionality AND it has been applied to the states through the 14th Amendment. Also, stare decisis. i. U.S.S.C. does not have supervisory authority over state courts unless the issue is based on the Constitution. c. Congress does not have the power to supersede Supreme Court decisions that interpret and apply the Constitution. d. Dissent (Scalia) i. Miranda is obviously not constitutionally required. ii. By disregarding congressional action that does not violate the Constitution, the Court flagrantly offends the fundamental principles of separation of powers, and arrogates to itself prerogatives reserved to the elected representatives of the people. Exceptions to Mirandas Exclusionary Rule 1. In certain circumstances, confessions made during custodial interrogation are admissible, even though Miranda warnings have not been given or the suspects invocation of Miranda have not been respected. 2. Impeaching the Defendant-Witness a. Miranda-defective statements can be used to impeach a defendant-witness. i. Assuming that the exclusionary rule has a deterrent effect on the offensive police conduct, sufficient deterrence is achieved by making the statements unavailable to the prosecution as evidence in its case-in-chief. b. They CANNOT be used to prove guilt. But the ordinary juror might not be able to follow that instruction from the judge. c. Harris v. New York (U.S.S.C. 1971) (p. 700) i. took the stand in his own defense and on cross-examination was asked if he had made statements to the police immediately after his arrest that partially contradicted his direct testimony. ii. Shield provided by Miranda is not a license to use perjury by way of a defense. d. Oregon v. Hass (U.S.S.C. 1975) (p. 700) i. received Miranda warnings and asked to call a lawyer. Officer said he could not call a lawyer until they got to the police station. Subsequently, made inculpatory statements before he was given an opportunity to call a lawyer.

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1. Statements were admissible to impeach defendant-witness, who offered direct testimony that conflicted with inculpatory statements, knowing that they were inadmissible. e. Mincey v. Arizona (U.S.S.C. 1978) (p. 702) i. If a confession is involuntary, as opposed to merely Miranda-defective, it cannot be admitted even for impeachment purposes. ii. Due Process clause prohibits the use of involuntary confessions for any purpose. f. Doyle v. Ohio (U.S.S.C. 1976) (p. 702) i. After Miranda warnings are given, Due Process Clause prohibits the State from using s silence against him, even for impeachment purposes. 1. ...it would be fundamentally unfair and a deprivation of due process to allow the arrested persons silence to be used to impeach an explanation subsequently offered at trial. ii. had been given Miranda warning and chose to remain silent at the time of the arrest. At trial, took the stand and gave an exculpatory narrative. On cross examination, he was asked why he hadnt given the exculpatory statements to the police at time of arrest. Jury was instructed to that it could consider s silence as bearing on his credibility. g. Jenkins v. Anderson (U.S.S.C. 1980) (p. 703) i. Impeachment by use of pre-arrest silence does not violate Due Process. ii. No governmental action induced to remain silent before arrest. Failure to speak occurred before was taken into custody and given Miranda warnings. 1. Fundamental unfairness present in Doyle is not present in such a case. h. Fletcher v. Weir (U.S.S.C. 1982) (p. 704) i. can be impeached with his post-arrest, but pre- Miranda silence. 1. The arrest by itself does not implicitly induce a suspect to remain silent. ii. testified at trial that he acted in self-defense. Prosecution was allowed to refer to s post-arrest, pre-Miranda silence, asking why he did not tell the police his self-defense story at the time of arrest. 3. Admitting the Fruits of a Miranda Violation a. Possible fruits of a Miranda-defective confession: i. investigative leads pursued as a result of the confession; ii. physical evidence; and iii. a second confession. b. Michigan v. Tucker (U.S.S.C. 1974) (p. 704) i. was given a defective Miranda warning and subsequently gave the police a lead to his friend. Friend gave information that tended to incriminate . ii. Holding: Confession must be excluded, but not Friends testimony. 1. The costs of exclusion (loss of reliable evidence) outweighed the benefit of exclusion (deterring future Miranda violations). 2. Sufficient deterrence is achieved by excluding s confession from the prosecutions case-in-chief. iii. But if s confession had been involuntary, within the meaning of Due Process Clause, as opposed to merely Miranda-defective, then DP Clause would require exclusion of the confession and its fruits.

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c. Oregon v. Elstad (U.S.S.C. 1985) (p. 704) (Facts on p. 709) i. s second confession resulted from a Miranda-defective confession. 1. First confession was made in s home in response to a casual question by an officerhardly coercive, custodial settings. ii. Cost/benefit analysis of exclusion. d. Missouri v. Seibert (U.S.S.C. 2004) (plurality) (p. 706) i. Plurality opinion 1. When Miranda warnings are inserted in the midst of a coordinated and continuing interrogation, they are likely to mislead and deprive of knowledge essential to understand the nature of his rights and the consequences of abandoning them. 2. Factors that bear on whether an inserted Miranda warning is effective a. Completeness and detail of the questions and answers in the first interrogation; b. Overlapping content of statements/confessions; c. Timing and setting of both interrogations; d. Continuity of police personnel; e. Warning that pre-Miranda statements cannot be used against ; and f. Degree to which interrogators questions treat the second questioning as continuous with the first. 3. Congress cant overrule Miranda, and neither can police officers through these kinds of tactics. ii. Concurrence (Breyer) 1. Courts should exclude the fruits of the initial, pre- Miranda statements only when officer acts in bad faith (as they did in this case). iii. Concurrence (Kennedy) (narrowest holding) (lower courts like it) 1. One of Mirandas strengths is its clarity: test proscribed by plurality might undermine its clarity. 2. Elstad should continue to guide admissibility of second confessions, unless officers deliberately use two-step interrogation strategy. a. In that case, second confession should be barred unless curative measures are taken between the confessions. b. Curative measures should be designed to ensure that a reasonable person in the suspects situation would understand the importance of Miranda warning and the effect of waving Miranda rights. iv. Lower courts 1. Confession made after Miranda-defective confession is admissible unless: a. The officers acted in bad faith in not giving the warning before the first confession; and b. The second confession proceeded directly from the first. e. U.S. v. Patane (U.S.S.C. 2004) (plurality) (p. 714) i. If a voluntary but Miranda-defective statement leads to physical evidence, the physical evidence can be admitted. ii. Miranda protects against violations of the 5th Amendment. 1. 5th Amendment is not implicated by the introduction at trial of physical (and therefore non-testimonial) evidence resulting from voluntary statements.

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f. New York v. Quarles (U.S.S.C. 1984) (p. 719) i. Overriding considerations of public safety can justify an officers failure to provide Miranda warnings. 1. This is like exigent circumstances exception to 4th Amendment. ii. An unwarned confession obtained under such circumstances is admissible in the States case-in-chief, despite Miranda. Open Questions After Miranda 1. The presence of both a custodial setting and official interrogation is required to trigger the Miranda right. 2. What is Custody? a. The test for custody is objective: whether a reasonable person would feel deprived of his freedom of action in any significant way, given the circumstances. i. Factors determining custody under Miranda (U.S. v. Brown, 8th Cir. 1993). 1. Whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or to request the officers to do so, or that the suspect was not considered under arrest. 2. Whether the suspect possessed unrestrained freedom of movement during questioning. 3. Whether the suspect initiated contact with officers or voluntarily agreed to answer questions. 4. Whether strong arm tactics or deceptive strategies were used during questioning. 5. Whether the atmosphere of the questioning was police dominated. 6. Whether the suspect was placed under arrest at the termination of the questioning. b. Orozvo v. Texas (U.S.S.C. 1969) (p. 723) i. If is under formal arrest, he is in custody. c. Beckwith v. U.S. (U.S.S.C. 1976) (p. 723) i. If is not in an inherently coercive atmosphere, Miranda is not triggered. d. Stansbury v. California (U.S.S.C. 1994) (unanimous) (p. 723) i. An officers subjective and undisclosed view concerning whether the person being interrogated is a suspect is irrelevant to the assessment of whether the person is in custody. ii. An officers subjective views regarding the nature of the interrogation or the culpability of the individual being questioned has no relevance unless these views were manifested to the individual and would affect how a reasonable person in that position would perceive his freedom to leave. e. Yarborough v. Alvarado (U.S.S.C. 2004) (p. 724) i. A teenager who was brought to the station by his parents, at the request of the police, was not in custody when he was interrogated in the police station for two hours. 1. His personal characteristics (including his youth) were irrelevant for purposes of determining custody. ii. Courts standard of review was very deferential because it was a habeas case.

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f. Mathis v. U.S. (U.S.S.C. 1968) (p. 725) i. -prisoner was in custody when questioned about a crime unrelated to the reason he was in jail. Thus, Miranda warnings were needed. ii. Lower courts 1. Proper inquiry is whether prison officials conduct would cause a reasonable person to believe his freedom of movement had been further diminished. g. J.D.B. v. North Carolina (U.S.S.C. 2011) (Westlaw: 131 S.Ct. 2394) i. Holding: A juvenile suspects age properly informs the Miranda custody analysis, so long as the child's age was known to the officer at the time of questioning, or would have been objectively apparent to a reasonable officer. 1. Children will often feel bound to submit to police questioning when an adult in the same situation would not. a. Courts can account for this reality without damaging the objective nature of the custody analysis. 2. Children are even more likely than adults to confess to crimes they did not commit when they are in custodial interrogation. h. Oregon v. Mathiason (U.S.S.C. 1977) (p. 726) i. An individual questioned at a police station is not, per se, in custody. ii. went to station voluntarily, was told he was not under arrest, and was allowed to leave the station after his confession. i. California v. Beheler (U.S.S.C. 1983) (p. 726) i. An individual is not in custody, per se, when he agrees to accompany police to the station for questioning. j. Minnesota v. Murphy (U.S.S.C. 1984) (p. 727) i. Holding: Miranda was not violated when probation officer called -probationer to her office and questioned him about the rape/murder of a teenage girl. 1. was never in custody or arrested. The requirement that he meet with the officer did not change this. k. Berkemer v. McCarty (U.S.S.C. 1984) (p. 727) i. Holding: Terry stops are non-custodial for Miranda purposes. 1. They are typically brief in duration. 2. Questioning is limited because officer can only ask a moderate number of questions to determine identity and to obtain information confirming or dispelling the officers suspicions. 3. Individual is not obliged to respond (except to provide ID). 4. Unless probable cause arises in a short time, individual must be released. ii. However, if the stop escalates to an arrest, Miranda applies. 3. What is Interrogation? a. Rhode Island v. Innis (U.S.S.C. 1980) (p. 730) i. The test for interrogation under Miranda is an objective one. 1. Express questioning by police, or any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

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ii. Conversation that elicited s incriminating response was nothing more than a brief dialogue between two officers to which no response from was invited. 1. Officers did not carry on a lengthy harangue in the presence of . iii. Dissent: Majority takes a dim view of the consciences of s. b. Arizona v. Mauro (U.S.S.C. 1987) (p. 734) i. Holding: No interrogation where confessed to his wife in the presence of officers who were known to be recording the conversation. 1. No evidence that officers sent wife to see her husband for the purpose of eliciting statements. ii. Dissent: It was not only likely, but highly probable, that would make a statement that prosecution would seek to introduce at trial. 1. Police conduct makes it clear that was subjected to the functional equivalent of deliberate, direct interrogation. c. U.S. v. Calisto (3d Cir. 1988) (p. 735) i. Holding: No interrogation when remark about arresting s daughter was not directed at , was the kind of remark an officer would normally make in the circumstances, and the remark was not made in a provocative manner. 1. Even if it could be said that reasonable officers would expect to protest when hearing the remark, it cannot be said that it was reasonable to expect to make an incriminating remark. d. Edwards v. Arizona (U.S.S.C. 1981) (p. 735) i. is interrogated when he is presented with incriminating evidence. 1. We can hardly imagine a more prototypical example of the functional equivalent of interrogation when a suspect is shown a video in which he is depicted as engaging in a criminal act. U.S. v. Green, (3d Cir. 2008). e. Booking Exception i. Created in Rhode Island v. Innis. ii. Pennsylvania v. Muniz (U.S.S.C. 1990) (plurality) (p. 737) 1. was asked his name, address, height, weight, eye color, DOB, and age. a. stumbled over the answers and got some of them wrong. b. s answers were admitted at trial as evidence of his drunkenness. 2. Holding: s answers to the questions were admissible, even though in response to custodial interrogation, because they fell within the routine booking question exception which exempts from Mirandas coverage questions made to secure biographical data necessary to complete booking or pre-trial services. iii. Scope of Booking Exception 1. Lower courts have looked to objective factors: a. Whether there was a proper administrative purpose for the question. b. Whether the question is asked by officer who routinely books suspects. c. Whether officer needs to know the information for booking purposes. 2. Questions about gang affiliation can be asked because they have implications in prisoner safety. 3. Questions and statements made during routine custodial procedures (sobriety tests, fingerprinting, transportation) are unlikely to be considered interrogation.

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4. Does Miranda Apply to Undercover Activity? a. Illinois v. Perkins (U.S.S.C. 1990) (p. 739) i. s un-Mirandized statements were admissible because Miranda was not meant to protect suspects from boasting about their crimes in front of persons they believe to be their cellmates. ii. Miranda is concerned with the pressures on a suspect in a police-dominated atmosphere. If does not know he is speaking to an officer, no such pressure can be said to exist. iii. If there is an undercover operation, Miranda is completely inapplicable. 1. Bright line rule. 5. Does Miranda Protection Depend on Seriousness of Offense? a. Berkemer v. McCarty (U.S.S.C. 1984) (p. 740) i. There is no distinction between misdemeanors and felonies under Miranda. ii. Such a distinction would adversely affect the clarity of the rule. 6. How Complete and Accurate Must the Warnings Be? a. Whether the warnings given to reasonably conveyed his rights as required by Miranda. b. California v. Prysock (U.S.S.C. 1981) (p. 741) i. Police should be given some flexibility about the wording of the warning, so long as they provide the suspect with the gist of the warning. c. Florida v. Powell (U.S.S.C. 2010) (Supp.) i. Catch-all provision at the end of the warnings satisfied Miranda. 1. Officers have little incentive to to assume the risk of litigation by experimenting with Miranda formulations. Waiver of Miranda Rights 1. The accused may waive his rights to silence and counsel, but only if, under all the circumstances, the waiver is made voluntarily, knowingly, and intelligently. a. Valid waiver will not be assumed from the silence of the accused after the warnings are given, nor from the fact that a confession is eventually obtained. 2. North Carolina v. Butler (U.S.S.C. 1979) (p. 743) a. Neither an express statement of waiver nor a written waiver is requiredso long as there is evidence that understood his rights and voluntarily waived them. b. The question is not one of form, but rather whether in fact knowingly and voluntarily waived his Miranda rights. 3. Knowing and Voluntary a. Moran v. Burbine (U.S.S.C. 1986) (p. 743) i. Two requirements for valid waiver: 1. Waiver must be voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. 2. Waiver must be made with full awareness both of the nature of the rights being waived and the consequences of the decision to waive the rights. b. Tague v. Louisiana (U.S.S.C. 1980) (p. 743) i. Waiver of rights was not proven by an officers testimony that he read a suspect his rights from a card and the suspect then confessed.

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1. Officer could not remember whether he asked if he understood the rights or whether he made an effort to determine if the suspect was literate or otherwise capable of understanding his rights. ii. Waiver will not be assumed by subsequent confession. c. U.S. v. Frankson (4th Cir. 1996) (p. 744) i. s subsequent willingness to answer questions after acknowledging his Miranda rights is sufficient to constitute an implied waiver. ii. Even though never formally waived his rights, such cooperation, when coupled with acknowledgement of his rights, constituted a valid waiver. d. Colorado v. Connelly (U.S.S.C. 1986) (p. 744) i. Voluntariness of the waiver of the privilege against self-incrimination, whether in the context of Miranda or the DP Clause, depends on the absence of police coercion. 4. Knowing and Intelligent a. Several lower courts have held that people who are deranged or mentally defective cannot knowingly and intelligently waive their Miranda rights. b. Smith v. Zant (11th Cir. 1989) (p. 745) i. State did not satisfy burden of showing that was capable of understanding his Miranda rights when had an IQ of 65, was under extreme stress, and the warnings were read to him only once, very quickly. c. U.S. v. Garibay (9th Cir. 1998) (p. 745) i. State did not satisfy burden of showing that was capable of understanding his Miranda rights when s first language was Spanish, he received D+ grades in high school English classes, he was borderline-retarded with extremely low verbal-English comprehension skills, and had no previous experience with criminal justice system. ii. Result would have changed if had been given the warnings in Spanish or had signed a waiver form in English. 5. Conditional Waivers a. Connecticut v. Barrett (U.S.S.C. 1987) (p. 746) i. received warnings and signed a form indicating his willingness to talk to police about a sexual assault investigation. said he would talk about the assault, but would not give a written statement. ii. Holding: knowingly and voluntarily waived his rights. Officers complied with his conditions by never seeking to obtain a written statement. b. says he will talk about X but not about Y. i. If police question him about Y, they violate his Miranda rights because never waived them with respect to Y. 6. Information Needed for an Intelligent Waiver a. Colorado v. Spring (U.S.S.C. 1987) (p. 747) i. s awareness of all possible subjects of questioning in advance of interrogation is not relevant in determining whether validly waive his rights. b. Oregon v. Elstad (U.S.S.C. 1985) (p. 748) i. gave a Miranda-defective confession, received warning, signed a waiver and confessed again.

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ii. Police were not required to tell that his first confession was inadmissible when giving the Miranda warnings. Thus, made a valid waiver. c. Moran v. Burbine (U.S.S.C. 1986) i. s waiver was valid, despite the fact that he was not informed an attorney sought to contact him. ii. Events occurring outside of the presence of the suspect and entirely unknown to him can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. iii. Burbine has been rejected by state courts as a matter of state constitutional law. 7. Waiver after Invocation of Miranda Rights a. When has initially invoked his rights, U.S.S.C. has show far greater sensitivity to the waiver issue than in cases where there was no invocation. b. Invocation of Right to Silence i. Michigan v. Mosley (U.S.S.C. 1975) (p. 752) 1. was arrested, given warnings, and invoked his right to remain silent. Officer stopped the questioning. Two hours later, warnings were given again and a different officer questioned about a different topic. signed a waiver and then made an incriminating statement, which was used at trial. 2. Holding: Miranda does not mean that interrogation is forever barred simply because invoked his right to silence at some point. a. Officers must scrupulously honor the right to silence. i. Cooling off period. (Most important.) ii. Giving the warnings again. (Most important.) iii. Using a different officer. iv. Different topic of interrogation. ii. U.S. v. Banks (7th Cir. 1996) (p. 755) 1. Officers are not required to scrupulously honor s right to silence unless the s invocation of that right is clear and unequivocal. 2. Holding: When presented with a waiver form, said, I dont got nothing to say. This was found to be equivocal and thus not an invocation. iii. U.S. v. Rambo (10th Cir. 2004) (p. 755) 1. answered No when asked whether he wanted to talk about this stuff. 2. Holding: There is no nuance or context to vary the unequivocal meaning of s single word, monosyllabic response. His response, no, could only mean an invocation of his right to be silent. iv. Berghuis v. Thompkins (U.S.S.C 2010) (Supp.) 1. An accused must invoke right to silence clearly and unambiguously. a. Silence alone does not invoke the right to remain silent under Miranda. 2. A waiver of Miranda rights can be implied through s silence, coupled with his understanding or acknowledgement of his rights, and a course of conduct indicating waiver (such as answering questions.) 3. Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent. c. Invocation of Right to Counsel

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i. Davis v. U.S. (U.S.S.C. 1994) (p. 754) 1. Police can continue questioning a suspect when the suspect has made an ambiguous or equivocal invocation of Miranda right to counsel. 2. must articulate his desire to have counsel present sufficiently clearly that a reasonable officer in the circumstances would understand the statement to be a request for an attorney. ii. Edwards v. Arizona (U.S.S.C. 1981) (p. 756) 1. When expresses his desire for counsel, he cannot be subject to further questioning until counsel has been made available to him, or himself initiates further communication, exchanges or conversations with police. 2. But if police-renewed contact does not rise to custodial interrogation, then neither Miranda nor Edwards applies. iii. Oregon v. Bradshaw (U.S.S.C. 1983) (plurality) (p. 757) 1. Two step analysis to determine whether a suspect waives his rights after invoking his right to counsel: a. Bright-line prophylactic safeguard of -initiation requirement; and b. TOC analysis of a knowing and voluntary waiver. iv. Arizona v. Roberson (U.S.S.C. 1988) (p. 762) 1. An invocation of the right to counsel prevents police from questioning about any crime. a. Miranda is not offense-specific, unlike 6th Amendment. 2. To a suspect who has indicated his inability to cope with the pressures of custodial interrogation by requesting counsel, any further interrogation without counsel present will surely exacerbate whatever compulsion to speak the suspect may be feeling. a. Invoking right to counsel = cry for help v. Minnick v. Mississippi (U.S.S.C. 1990) (p. 764) 1. The protection of Edwards continues even after the suspect has consulted with an attorney. a. Bright-line rule in Edwards provides clarity and certainty; and b. Edwards rule ensures that suspects will not be harassed by officers. 2. Police-initiated interrogation after an invocation of counsel may only occur if counsel is actually present during the interrogation. 3. Dissent: Majority cares too much about s. They SHOULD confess and receive their punishment. vi. McNeil v. Wisconsin (U.S.S.C. 1991) (p. 765) 1. An accused who is arraigned and asks for counsel is invoking his 6th Amendment right to counsel, rather than the Miranda right to counsel. 2. Miranda and Edwards do not apply under 6th Amendment. 3. We have never held that a person can invoke his Miranda rights anticipatorily, in a context other than custodial interrogation. vii. Maryland v. Shatzer (U.S.S.C. 1. Break in custody of 14 days = police can re-approach you after invoking your right to counsel. a. Bright-line rule. Confessions and 6th Amendment Right to Counsel

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1. 6th Amendment prohibits a government agent from deliberately eliciting incriminating information from an accused in the absence of counsel or a waiver. 2. Massiah v. U.S. (U.S.S.C. 1964) (p. 767) a. Holding: was denied basic protections of 6th Amendment when there was used against him at trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of counsel. b. Rationale: 6th Amendment recognizes that once the government has brought formal charges against an individual, the adversarial relationship between the parties is cemented. Once retains an attorney to act as his representative in the adversarial process, the government may not try to circumvent the protection afforded by the presence of counsel during questioning. i. Circumvention interferes with the parity required by the 6th Amendment. c. Massiah right is basically a constitutionalized version of a rule of professional ethics: an adverse party, in advance of litigation, may be contacted only through her attorney. 3. Brewer v. Williams (U.S.S.C. 1977) (p. 771) a. Holding: did not waive his right to counsel: after arraignment, he secured attorneys at both ends of the automobile trip, both of whom, acting as his agents, had made clear to police that no interrogation was to occur during the trip. i. Police knowingly isolated from the protection of his lawyers, and, in a skillful and effective form of interrogation, deliberately elicited incriminating statements from . b. Dissent: knew about his right to counsel. He had invoked it several times. He obviously waived it when he started talking to the police. 4. U.S. v. Gouveia (U.S.S.C. 1984) (p. 778) a. 6th Amendment right to counsel starts only when adversarial proceedings begin. b. Holding: Prison officials did not violate the right to counsel of inmates suspected of murders when the officials placed them in administrative detention for periods of 19 and 8 months prior to their being indicted. c. Rationale: The purpose of the right to counsel is not to provide with a preindictment private investigator. 5. Deliberate Elicitation a. Bey v. Morton (3d Cir. 1997) (p. 778) i. initiated conversation with corrections officer and in the course confessed to the murders of two women. ii. Holding: No deliberate elicitation of incriminating information. 1. Officer did not behave like someone who intended to secure incriminating statements from . a. Didnt take notes or compile a report. b. Didnt disclose information to anyone for five years. c. Only reluctantly testified to s statements.

b. Maine v. Moulton (U.S.S.C. 1985) (p. 784)

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i. Deliberate elicitation is found whenever the officers should have known that their investigative tactic would lead to incriminating information from a charged in the absence of counsel. c. Fellers v. U.S. (U.S.S.C. 2004) (p. 779) i. Deliberately elicited standard is different from the interrogation standard. 6. Use of Undercover Officers and Informants a. 6th Amendment limits the use of undercover tacticsunlike Miranda, which only applies if the suspect knows he is speaking to an officer. b. U.S. v. Henry (U.S.S.C. 1980) (p. 780) i. Holding: By intentionally creating a situation likely to induce to make incriminating statements without the presence of counsel, the government violated s 6th Amendment right to counsel. did not waive this right. ii. Deliberateness inquiry 1. Cell-mate was acting under instructions as a paid informant for the state; 2. Cell-mate was ostensibly no more than a fellow inmate of s; 3. Cell-mate was not a passive listener; and 4. was in custody and under indictment at the time he was engaged in conversation by cell-mate. iii. The concept of a knowing and voluntary waiver of 6th Amendment rights cannot apply in the context of communications with an undercover informant acting for the government. iv. Dissent (Rehnquist): There is not constitutional or historical support for concluding than an accused has a right to have his attorney present whenever an accused has an inclination to reveal incriminating information to anyone who acts to elicit such information at the behest of the prosecution. c. Kuhlmann v. Wilson (U.S.S.C. 1986) (p. 782) i. Distinguishes Henry. ii. Holding: No 6th Amendment violation when police put a jailhouse informant in close proximity to , and made statements to the informant without any serious effort on the informants part to elicit the statements. 1. To prove 6th Amendment violation, must show that the police took some action, beyond merely listening, that was deliberately designed to elicit incriminating remarks. d. U.S. v. York (7th Cir. 1991) (p. 783) i. Holding: No deliberate elicitation when informant responded with neutral comments when incriminating topics were brought up by . ii. Rationale: Informants are not required to risk revealing their status by refusing to participate in the natural flow of conversation. e. Is the Informant a State Agent? i. U.S. v. Watson (D.C. Cir. 1990) (p. 783) 1. Informant did not act as a state agent when: a. No evidence that DEA encouraged informant to talk to ; and b. Informant didnt relay incriminating statements until they were made. 2. Informant may have hoped to make a sale to the government, but that does not make the government responsible for his actions. ii. U.S. v. Johnson (10th Cir. 1993) (p. 783)

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1. We decline to handicap legitimate investigations by assuming that any time the government is approached by a would-be informant, an implicit agency relationship is established. 7. Continuing Investigations a. Maine v. Moulton (U.S.S.C. 1985) (p. 784) i. Holding: Incriminating statements pertaining to pending charges are inadmissible at the trial of those charges, notwithstanding the fact that the police were also investigating other crimes if, when obtaining the evidence, the State violated 6th Amendment by knowingly circumventing the accuseds right to assistance of counsel. 1. Statements made by a suspect can be used in a later trial for the separate crimes. Waiver of 6th Amendment Protections 1. 6th Amendment right to counsel may be waived as long as the waiver is voluntary, knowing and intelligent. 2. Brewer v. Williams (U.S.S.C. 1977) (p. 785) a. To prove waiver of 6th Amendment rights, State must show more than simply that received warnings and elected to speak. i. Limited by subsequent case law. 3. Patterson v. Illinois (U.S.S.C. 1988) (p. 786) a. was indicted, given Miranda warnings, signed the waiver, and confessed. He argued that his waiver, while voluntary, was not knowing because he only received Miranda warnings and these warnings did not adequately inform him of his 6th Amendment right to counsel. b. Holding: Waiving Miranda rights is generally enough to waive 6th Amendment right to counsel. i. Miranda warning conveyed to the sum and substance of his 6th Amendment rights. ii. States decision to commence formal adversarial proceedings does not substantially increase the value of counsel to the accused at questioning, or expand the limited purpose that an attorney serves when the accused is questioned by authorities. iii. himself could not articulate what other information he would need to be fully informed of his 6th Amendment right to counsel. c. Dissent: Majority underplays the significance of formal proceedings and the role of an attorney after indictment. 4. Waiving 6th Amendment Right to Counsel After Invoking It a. If an accused invokes his 6th Amendment right, officers remain free to approach him and seek a knowing and voluntary waiver. i. Unlike 5th Amendment, wherewhen suspect invokes his right to counsel under Mirandathere can be no waiver unless initiates a new conversation with the officers.

b. Montejo v. Louisiana (U.S.S.C. 2009) (p. 788)

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i. Holding: Overrules Jackson. Edwards protection does not apply in 6th Amendment context. ii. Police are free to re-approach after he invokes his 6th Amendment right to counsel, but they still have to get a knowing and voluntary waiver. 6th Amendment Exclusionary Rule 1. Kansas v. Ventris (U.S.S.C. 2009) (p. 794) a. Remedy for violation of 6th Amendment should be the same as for the violation of the 4th Amendment or of Miranda: exclusion from prosecutions case-in-chief, but admissible for impeaching s inconsistent testimony.

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