CRIMINAL PROCEDURE OUTLINE

The Exclusionary Rule

I.

The exclusionary rule involves excluding otherwise admissible evidence because it was obtained in
violation of an individuals 4th, 5th, 6th, or 14th amendment rights.
a.

The exclusionary rule applies not only to evidence obtained as a direct result of a constitutional
violation, but also to evidence indirectly derived from the violation.

b.

There are limits to this chain of causation - see exceptions to the exclusionary rule.

II.

The most prominent and frequently invoked exclusionary rule bars evidence secured as a result of
unreasonable searches and seizures.

III.

The exclusionary rules are the sanctions or remedies that are imposed on the government (prosecution)
when there has been a constitutional violation by a government officer.
a.

Rationale for the Exclusionary Rule

i. The main rationale is deterrence of future constitutional violations - See Mapp v. OH
ii. Unlawful searches and seizures will be discouraged when the law enforcement community
realizes they cannot use the evidence obtained through unconstitutional means.
iii. In addition to deterrence, the Mapp Court suggested that the imperative of judicial
integrity requires that courts not soil their hands with unlawfully seized evidence.

The Current State of the Exclusionary Rule

IV.

It is clear that deterrence has become the main rationale for the exclusionary rule.

V.

Other means of solving illegal intrusions into individual privacy have failed.
a.

Civil liability for police officers has failed. At best, the citizen can get very limited damages, and not
many lawyers want to bring these kinds of suits against police officers. Irregardless of the lawyers
willingness, most plaintiffs cannot afford to bring such suits.

b.

District Attorneys are also unwilling to bring suits against the police as a result of the close working
relationship they must maintain with the police in filing criminal charges.

c.

Uphoff thinks the best way to assure constitutional protections is to pay police officers more money
and provide them with better training and supervision.

THE THRESHOLD OF THE 4TH AMENDMENT: WHAT CONSTITUTES A 4TH AMENDMENT SEARCH? ARE ALL
GOVERNMENT INTRUSIONS SEARCHES?
I.

TEST for whether a search has occurred: Harlans concurrence in Katz

a.

Subjective Question: Did the person exhibit an actual expectation of privacy?

b. Objective Question: Is society prepared to recognize that expectation as reasonable?

i. Secondary Inquiry: Even if the court determines that a court has occurred, it still has to
determine whether the search was reasonable or unreasonable.
II.

Limitation recognized in Katz - What a person knowingly exposes to the public, even in his own
home or office, is not subject to 4th Amendment protection. Protection is afforded only for what he
seeks to preserve as private.

III.

Burdeau v. McDowell, 256 U.S. 465 (1921):

a.

Rule: The 4th Amendment applies only to action by the government, not to private conduct by
private individuals. Thus, a search only really occurs when conducted by or at the behest of the
government.

i. Exception: When a private individual acts at the direction of a government agent or

pursuant to an official policy, the search will be deemed public, and consequently within
the coverage of the 4th Amendment. (AGENCY THEORY)
1.

Factors taken into consideration in determining whether the private individual is

acting as an agent a.

The degree of government encouragement, knowledge, and/or

acquiescence with regard to the private actors actions, and

b. The purpose underlying the private partys action (was he pursuing a

government interest, or did he act to promote his own objectives?)
2.

Exception: An otherwise private search may be transformed into one that is

subject to constitutional constraints if the governmental recipient of the items
subjects them to additional experimentation.
a.

Such further examination or testing must be substantial in order to

trigger constitutional protection.

b.

Inescapably, one contemplating illegal activities must realize and risk

that his companions may be reporting to the police.

IV.

Rule: Misplaced reliance on the loyalty of another is not an expectation entitled to constitutional
protection.

V.

Rule: If the conduct and revelations of an agent operating without electronic equipment do not invade
the defendants constitutionally justifiable expectations of privacy, neither does a simultaneous
recording of the same conversation made by the agent or by others from transmissions received from
the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.
a.

Related Rationale: The Court stated that it would be irrational to consider the activities and
reports of the police officer acting without a warrant to be reasonable under the 4th Amendment,
and then view the same officer acting with a recorder or transmitter to be engaging in
unreasonable activity under the 4th.

b. Assumption of Risk Rationale: One contemplating illegal activities must realize and risk that his
companions may be reporting to the police. Such information is accurate and relevant to the
prosecution, and the defendant does not have a justifiable expectation of privacy.
VI.

Hoffa v. United States (1966) - Similar to White, the Court held that where an informant reported his
conversation to government agents, this was not a violation of the 4th Amendment.

VII.

Open Fields Doctrine: Permits police officers to enter and search an open field without a warrant,
as an individual has no reasonable expectation of privacy in such places.
A.

An individual may not legitimately demand privacy for activities conducted outdoors in open
fields, except in the area immediately surrounding the home.

B.

There is no societal interest in protecting the privacy in open fields, as such areas are typically
accessible to the public.
I.
II.

The special protection afforded by the 4th Amendment to people in their persons, houses,
papers, and effects is not intended to cover open fields.
K Determination: Did the police search in open fields or in the curtilage surrounding
the defendants home? Does the defendant have a reasonable expectation of privacy in
the search area?

iii. Exception: An individual does have a reasonable expectation of privacy in the area
immediately surrounding the home (curtilage). Such area is considered an extension of
the home itself, although it is subject to less protection than the home itself.

1.

Dunn Factors: The 4 variables pertinent to determining whether an area is

within the scope of the curtilage in a particular case are a.

The areas proximity to the home,

b. The existence of an enclosure around the area,

c.

The nature of the uses to which the area is put, and

d. The precautions taken to exclude others from the area.

iv. The Big Picture: Oliver proves that actual, subjective expectation of privacy does not
count for much in the grand scheme of 4th Amendment protection. What is most
important is the reasonableness of the expectation of privacy, which is really determined
by the 9 Justices of the Supreme Court.
VIII.

Issue: Whether police observation from an airplane constitutes an unreasonable search?

a.

Holding: Where the observations take place within public navigable airspace in a physically nonintrusive manner, this is not an unreasonable search.
I.

There is no reasonable expectation of privacy, as members of the public could observe

the same thing from a plane.

ii. Rule in relation to Oliver: Even if the landowner is within fenced curtilage, not all
reasonable expectations of privacy will be honored.
iii. Possible Exception: If the police were to conduct aerial surveillance from a lower
ceiling, this might be classified as a search of the area. The Court would then have to
determine whether this search was reasonable.

B.

2.

The flight of the police was within the legal parameters of the FAA (400 ft), did
not interfere with the normal use of the greenhouse, and did not reveal any
intimate details connected with the use of the defendants home.

3.

Compare Kyollo: Where the defendant boarded up his windows, he had an

actual expectation of privacy that the court was willing to recognize. He did not
expose the information to the publics naked senses as in Riley.

Similarly, the Court has determined that thermal imaging of a defendants property is
not a search - the heat was emitting from the house, and the thermal imaging was nonintrusive, gaining only limited information.

Issue: Whether a passenger on public transportation has a reasonable expectation of privacy for his
belongings.
a.

X.

The routine nature of air travel rendered his expectation of privacy unjustified.

The Court has determined that a dog sniff of luggage is not a search for purposes of the 4th
Amendment.
I.

IX.

1.

Holding: The Court applied the Harlan test, and found that this was an unreasonable search under
the 4th Amendment.
I.

The average passenger does not expect that other passengers or employees will feel their
belongings in an exploratory manner. Thus, the passenger has a subjective expectation of
privacy.

II.

Although a passenger on public transportation expects that other passengers or employees

might handle or move his bag, he does not expect that they will feel the bag in an
exploratory manner. Thus, this is an expectation that society should recognize as
reasonable and legitimate.

Holding: The Court held that trash abandoned at the curb was not covered by the 4th Amendment,
because the owner had no reasonable expectation of privacy.

A.

The defendants public exposure of the trash forfeits any reasonable expectation of privacy he has
in the contents, and

B.

Once the trash is conveyed to third-party collectors, the homeowner assumes the risk that they
will turn the bags over to the police.

C.

Respondents exposed their garbage to the public sufficiently to defeat their claim to 4th
Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of
a public street are readily accessible to animals, children, scavengers, snoops, and other members
of the public. Moreover, respondents placed their refuse at the curb for the express purpose of
conveying it to a third party who might himself have sorted through the trash or permitted others,
such as the police, to do so.

d. Where else is there a reasonable expectation of privacy?

I.

An administrator at a state hospital was held to have a reasonable expectation of privacy

in his office even though others might have frequent access to the office. See OConnor
v. Ortega (1987).

II.

A student has a reasonable expectation of privacy in the public school setting. See New
Jersey v. T.L.O. (1985).

III.

K Factors: In analyzing the issue of whether a search implicating the 4th Amendment
has occurred, attention must be paid both to the setting observed and the vantage point
from which the observation is made.
1.

e.

Variables that are relevant to reasonableness:

I.

II.

XI.

The definition of a search is not so much a legal question as it is a basic value

judgment as to what type of police conduct should be subject to constitutional
scrutiny.

Did the defendant voluntarily disclose information to a third party who was
cooperating the police? If so, this decreases the reasonableness of the expectation of
privacy. (White)
Did the defendant fail to take precautions to safeguard privacy and/or public
disclosure of his activities? Is so, this decreases the likelihood that the expectation of
privacy was reasonable.

THE STANDING DOCTRINE

a.

Introduction: A constitutional violation does not inevitably lead to the permanent suppression of
all evidence discovered, as the Supreme Court has developed a number of doctrines that restrict
the scope of exclusion. This is primarily a result of the Burger Court.

b. The Standing Rule: Suppression of the product of a 4th Amendment violation can be
successfully urged only by those whose rights were violated by the search itself, NOT by those
who are aggrieved solely by the introduction of damaging evidence.
I.
II.
III.

C.

Co-conspirators and co-defendants have been accorded no special standing, as it is not

their own personal rights that have been invaded by unconstitutional searches.
K: Protection of individual (personal) rights and liberties.
Congress or state legislatures may extend the exclusionary rule and provide that
illegally seized evidence is inadmissible against anyone for any purpose. The Supreme
Court merely sets the minimum standard of protection that must be afforded.

Example: When A and B are having a conversation and the government illegally intercepts the
conversation, C cannot exclude the conversation from evidence, even if it implicates him in a
crime, because he has no standing to challenge such introduction. Conversely, if A or B were
implicated in the crime, either one would have standing to challenge the introduction of the
evidence.

I.
II.

Cs 4th Amendment rights have not been violated by an unreasonable search and seizure.
A and B were the ones whose personal rights were violated, as they were the actual
parties to the conversation.
1.

XII.

Rule: Ownership of property seized as a result of a search does not, by itself, entitle an individual to
challenge the search (not a dispositive fact).
I.
II.

XIII.

The defendant has no reasonable expectation of privacy in the place searched (the purse),
and thus, his rights were not implicated in the search.
The Court emphasized the following facts in reaching this conclusion:
1.

The defendant had known his companion for only a few days at the time of the
sudden bailment.

2.

He had never sought or received access to the purse before the incident.

3.

He had no right to exclude others from access to the purse.

4.

He admitted that he had no subjective expectation of privacy that his

companions purse would be free from government intrusion.

Rule (Simmons): A defendants admissions at a suppression hearing could not be used as substantive
proof of guilt at a subsequent trial.
A.

XIV.

Rule: In order to claim the protection of the 4th Amendment, a defendant must
demonstrate that he personally had an expectation of privacy in the place
searched, and that his expectation was reasonable (i.e., one which has a source
outside the 4th Amendment, either by reference to concepts of real or personal
property or to understandings that are recognized and permitted by society).

This helped do away with the bind that a defendant would put himself in if he claimed ownership
of seized property to establish standing which statement could later be used against him at trial
to establish guilt.

Rule: In general, an overnight guest has a legitimate expectation of privacy in his hosts home, which
entitles the guest to object to a warrantless entry to arrest him.
A.

Because society recognizes that a houseguest has a legitimate expectation of privacy in his hosts
home, an overnight guest is entitled to a legitimate expectation of privacy despite the fact that he
has no legal interest in the premises and does not have the legal authority to determine who may or
may not enter the household.

b. Compare: Although an overnight guest in a home may claim the protection of the 4th Amendment,
one who is merely present with the consent of the owner may not.

c.

1.

The majority said that this case was somewhere in between legitimately on the
premises and the overnight guests in Olsen, who were afforded standing.

2.

Because of the purely commercial nature of the transaction here, the relatively
short period of time on the premises, and the lack of any previous connection
with the apartment or its owner, the defendants were denied standing.

3.

Burger Rule: An expectation of privacy in commercial premises is different

from, and less than, a similar expectation in an individuals home.

Rule: Lacking a possessory interest in, or a close connection to the place searched, defendants will
not be permitted to pursue a claim of unconstitutional search or seizure.

PROBABLE CAUSE & THE WARRANT REQUIREMENT

I.

The determination of the requisite level of cause necessary to justify a search or seizure represents an
effort to balance the interest of effective law enforcement on the one hand and individual liberty on
the other.

a.

Probable cause is required for full-scale intrusions, including searches, seizures, and arrests.
i. Note: Even though most searches and arrests occur without a warrant, the law
enforcement officers still must have probable cause.

b. Definitions of Probable Cause

i. Objective Standard: Would a reasonable person knowing all the facts and circumstances
that are known to the officer reach the same conclusion?
ii. Probable Cause to ARREST exists when the facts and circumstances within the
officers knowledge, and of which he has reasonably trustworthy information, are
sufficient in themselves to warrant a man of reasonable caution in the belief that an
offense has been or is being committed by the person arrested. In essence, probable
cause to arrest a person requires that there be a certain quantum of likelihood that:
1.

A particular individual

2.

has committed or is committing a particular offense.

iii. Probable Cause to SEARCH exists if the facts and circumstances within the officers
knowledge, and of which he has reasonably trustworthy information, are sufficient in
themselves to warrant a man of reasonable caution in the belief that an item subject to
seizure will be found in the place to be searched. In essence, probable cause to search an
area demands that there be a certain quantum of likelihood that:

IV.

1.

An item that is properly subject to seizure by the government (i.e., contraband,

or fruits, instrumentalities, or evidence of a crime)

2.

is presently

3.

in the specific place to be searched.

There is a staleness problem with regard to search warrants< Because items relating to
crimes are often transportable, establishment of probable cause to search requires a
showing that the items sought are presently at the place to be searched.
1.

Probable cause is dependent on incriminating evidence still being at the place to

be searched when the police show up to conduct the search. Otherwise, the
defendant should be smart enough to dispose of the incriminating evidence
before the police get there.

2.

K Inquiry: How likely is it that the items will still be in the place to be
searched?
A.

c.

More easily moveable items increase the staleness problem as opposed

to items that were be more difficult to move (i.e., carpet fibers).

Hearsay and Informants: Special problems arise when the information was not acquired firsthand by the officer or other individual who relayed the information to the magistrate in
determining probable cause.
I.

Aguilar-Spinelli Test: Establishes the structure for evaluating probable cause based on
information supplied to the police by a confidential informant 1.

Basis for Knowledge: What are the underlying circumstances about the
information given by an informant that suggests that he has reached an accurate
conclusion about the story he is reporting?
A.

This only comes into play when information comes from an

anonymous tipster, as it is more difficult to credit this type of
information.

B.

K: Is this enough information to justify the search? Is it reliable? How

do we know that the evidence is valuable information?

c.
2.

First-hand basis of knowledge will be credited more than information

gained further down the line.

Veracity/Reliability: Why should we believe this particular individual? What is

it about this person that makes her credible?
A.

Police tend to trust citizen informants with concrete information.

Where the citizen informant speaks from her own personal knowledge,
the courts have generally credited the information. (U.S. v. Freitas,
1983)

B.

This only comes into play when there is an anonymous tipster - more
difficult to credit this type of information. Where a tip comes from an
anonymous tipster, the police must independently probe into the
situation to determine the reliability of the information.
I.

Independent corroboration by the police of specific facts

asserted by the informant can be a factor in satisfying either
prong of the test. (Draper v. U.S., 1959)

C.

Ex-con informants are typically not considered reliable until they prove
their reliability over time.

D.

Where the police are relying on a sniff-test by a dog, we would want to

know how reliable the dog has been in the past also. We would also
want to know what the dog was trained to sniff for.

3.

K: Both prongs of the test are important, as its not only important that we are
getting information from a particular source. We also want to know how this
person got the information and whether he is a credible person. See Spinelli v.
United States (1969).

4.

Although this test was later overruled by Illinois v. Gates, Uphoff thinks this
test is best for providing guidance to magistrates in determining whether
probable cause exists.

ii. Holding: The Court held that there was probable cause, and replaced the two-part
Aguilar-Spinelli test with a totality of the circumstances test for probable cause.

III.

1.

The two prongs of the Aguilar-Spinelli test are collapsed in the totality test,
and treated as interrelated.

2.

In determining the overall reliability of a tip, a deficiency in one of the prongs

may be compensated for by a strong showing as to the other, or by some other
indicia or reliability.

3.

The Court suggested that if a particular informant is known for the unusual
reliability of his prediction of certain types of criminal activities in a locality, his
failure, in a particular case, to thoroughly set forth the basis of his knowledge
surely should not serve as an absolute bar to a finding of probable cause based
on his tip.

4.

The revised standard must be met whether there is a fair probability that
contraband or evidence of a crime will be found in a particular place.

5.

This is not a clear standard to apply, but depends on the facts and circumstances
of each particular case.

Aguilar-Spinelli remains important for 2 reasons:

1.

It delineates the 2 fundamental factors to be considered in weighing information

received from an informant.

2.
II.

Several states have adhered to the traditional 2-prong test in interpreting their
own constitutional provisions regarding searches and seizures.

Rule: Where an officer has probable cause justifying a particular intrusion, the fact that the officer may
have acted for ulterior reasons is irrelevant.
A.

The legality of the search is determined solely by the existence of probable cause for the stop.

B.

If the circumstances, viewed objectively, justify the police action, the stop is legitimate.

C.

This helps justify racial profiling practices by the police.

i. Rule: A passenger has the right to leave the car during a traffic stop if the stop occurred
solely as a result of the drivers actions. (Brown v. Texas)
ii. Rule: Whren authorizes the police to engage in a pretextual stop if there is any objective
basis for the stop. However, the police are only allowed to detain someone for the time it
would take to issue the traffic ticket. If the police engage in searching the car and take
longer, this will be deemed an illegal detention. If the search continues after this cut-off
time, the items seized will be subject to suppression.

d. Rule: Where the police order someone to take something out of his pocket, and he refuses, there
must be probable cause independent of the exercise of privacy to search and/or seize.
UNREASONABLENESS & THE WARRANT REQUIREMENT
I.

In order to be lawful, a warrant must beet the following requirements A.

It must be issued by a neutral and detached magistrate.

B.

There must be presented to the magistrate an adequate showing of probable cause (either to
search or to arrest) supported by oath or affirmation. This is usually in the form of a sworn
affidavit from a police officer.

C.

The warrant must describe specifically and accurately the place to be searched and the items
or persons to be seized.
I.

The officer with a search warrant can, with reasonable effort, ascertain the identity of the
place to be searched.

II.

This standard requires that nothing be left to the discretion of the officers executing the
warrant.
1.

II.

This protects the citizen against the unilateral action of the overly zealous law
enforcement officer.

The Warrant Requirement and Searches of Persons, Homes, Papers, and Effects
a.

Per Se Rule: The right to privacy in the home necessitates a warrant, unless the case falls into one
of the clearly defined exceptions (later). This is true regardless of whether there is actual probable
cause.
i. Rule: If the initial search violates the 4th Amendment, it will taint any subsequent search
conducted during the same encounter.
ii. Exceptions to the rule are numerous, so there is no longer much of a rule left at all.

III.

The Warrant Requirement and Seizure of Persons

a.

Rule: An arrest is a seizure of a person and is unreasonable unless it is supported by probable

cause.
I.
II.

However, no warrant is needed for a public felony arrest.

Even if there is ample time to secure an arrest warrant, an officer can reasonably arrest a
person in a public place so long as she has probable cause to believe the arrestee
committed a felony.

1.

The common law that predated the 4th Amendment tolerated warrantless public
arrests of felons.

iii. Rule: A search or arrest warrant is needed to enter a dwelling to arrest a felon, because
the entry is a search that triggers the privacy rationales that underlie the search warrant
requirement.
b. Rule: Even if the court found that Atwater was illegally arrested, this does not mean that the case
would be dismissed. Rather, only the effects of the illegal arrest (i.e., seized evidence) would be
subject to suppression as the products of an illegal arrest.
The Issuance, Content, and Execution of Warrants - The Particularity Requirement
I.

In order for a search warrant to be issued it must describe with particularity the items to be searched
and seized.
a.

II.

III.

Timing of Warrants Preference for day-time searches, as the police and magistrate must specifically
provide for a nighttime search in the warrant form.
A.

Searches during the day are less intrusive to the person who is subject to the search, and less risky
for the police conducting the search.

B.

There must be a specific rationale for issuing a nighttime search stated when procuring the
warrant. This is because it is thought to be more of a constitutional violation to search at night.

Scope of Search: The scope of the search (i.e., digging up the yard, using specific technology)
depends entirely on the item(s) for which the police are searching.
A.

IV.

The level of particularity required can depend on the complexity of the case.

The Knock and Announce Rule

a.

V.

Rule: If the Court determines that a search warrant was overly broad, this is grounds to have the
warrant stricken. If any evidence is seized pursuant to such warrant, the defendant has grounds to
suppress the evidence.

Knock-and-Announce Rule: The police must know and announce their presence before entering
the place to be searched, UNLESS there is a reasonable showing that such action would harm the
investigation or be dangerous or futile. This is a determination to be made by the lower courts
(finding of fact).
I.

In this case, the Court held that the common law knock and announce rule forms a part
of the reasonableness inquiry (in assessing the reasonableness of the search or seizure)
under the 4th Amendment.

II.

Richards Rule: In felony drug cases, there is no categorical exception to the knock
and announce rule The Court said that you have to make a reasonable showing on a case
by case basis. However, in many cases where guns and drugs are involved, the knock
and announce rule will be dispensed with.

Reasonable Mistakes in Executing the Search

a.

Holding: The search was upheld despite the ambiguity in the warrant and the officers mistake in
executing it. The Court held that this mistake did not violate the particularity requirement of the 4 th
Amendment.
1.

The warrant must be analyzed based on the information known at the time the
warrant is issued. The subsequent discovery that the warrant was flawed will not
retroactively invalidate the warrant.

2.

The mistake made by the officers in executing the warrant was objectively
understandable and reasonable.

3.

The Court recognized the need to allow some latitude for honest mistakes that
are made by officers in the dangerous and difficult process of making arrests and
executing search warrants.

VI.

Rule: If the police are standing on your doorstep, and look inside and see incriminating evidence, they
cannot just walk in and seize it. They are required to go obtain a warrant from a magistrate.

VII.

Misrepresentations by the Police

a.

Rule: A warrant will be voided if the party who is seeking the invalidation proves by a
preponderance of the evidence that -

II.

1.

A false statement was included in the affidavit,

2.

The false statement was included knowingly and intentionally or with reckless
disregard for the truth, and

3.

With the false statement excised, the remaining information does not support a
finding of probable cause.

If the defendant can make a showing of the first two elements, he is entitled to a full
evidentiary hearing.
1.

In the event that the allegation of perjury is established, the affidavits remaining
content is examined to see if it can establish probable cause standing without the
perjured statements.

2.

If probable cause is still found, absent the false statement, the evidence can be
used. If not, the search warrant must be voided, and the fruits of the search
excluded from evidence.

EXCEPTIONS TO THE WARRANT REQUIREMENT

I.

II.

Introduction: There are 3 basic questions regarding the exceptions to the warrant requirement A.

What are the characteristics common to cases in this category that justify circumvention of the
warrant requirement?

B.

What requirements must be met for the specific exception to apply?

C.

What is the permissible scope of the search within the exception?

D.

General Rule: Because a search without a warrant is presumptively unreasonable, the government
has the burden of showing that the search falls within an exception to the general warrant rule.

Search Incident to Arrest

A.

General Rule: This exception permits the search of the person and the area immediately
surrounding the subject of the arrest.
I.

The authority to search incident to arrest has only been recognized in situations of
custodial arrest, as the rationale for the exception is closely tied to the fact of custody

II.

Probable cause to search is not necessary under this exception, as the search is justified
by the exigencies of the situation.

B.

General Rule: The arrest must precede the search, because it is the arrest that justifies the search.

C.

General Rule: A search incident to arrest is limited to (1) the person of the arrestee, (2) the area
within the immediate control of the arrestee, and (3) for arrests within dwellings, the areas
immediately adjacent to the place of arrest.

D.

Prerequisites for the Exception:

I.

The underlying arrest must be lawful (based on probable cause to believe the subject has
committed the crime), AND

II.

If the arrest is made in a private building, the arrest warrant must be valid.

III.

In the case of a misdemeanor committed outside the presence of the officer, an arrest
warrant may also be necessary.

IV.

Bright-line rule that we allow officers to search the person and the area within the
immediate control of the arrestee.

E.

The showing needed to conduct a search incident to arrest - The police need only establish that
they lawfully arrested a suspect and took him into custody.

F.

Rule: The officers can seize and open any items found within the immediate control of the
arrestee.
I.

G.

Rule: The Court also reasoned that the officers subjective fear (or lack of fear) that the defendant
might have a weapon plays no role in this determination.
I.

H.

Bottom Line: Police have the ability to arrest anyone for a minor traffic violation and
once arrested, the arrestee is subject to a full custodial search.

Holding: Neither (1) the need to disarm the suspect in order to take him into custody nor (2) the
need to preserve evidence for later use at trial justifies a full search incident to a traffic citation.
I.

II.
III.

I.

Rationale: Once you are subject to custodial arrest, the additional privacy violation of
allowing the police to go through the items on your person is not sufficiently great such
that we are going to interfere with the officers ability to conduct a full search.

Rationale: Once a driver is stopped for speeding and issued a citation, all the evidence
necessary to prosecute that offense has been obtained. No further evidence of speeding is
going to be found on the person or in the car.
Critique: If this decision is given full weight, officers could usurp this limitation on
searches by always choosing to arrest the driver.
If the officer believes the driver is engaged in other criminal activities, the officer can
arrest the driver and conduct a search of the person, the car, and any containers in the car
(except the trunk). See NY v. Belton.

Holding/Rule: When a police officer has made a lawful custodial arrest of the occupant of an
automobile, he may, as a contemporaneous incident of that arrest, search the passenger
compartment of that automobile (but not the trunk). The police may also examine the contents of
any containers found within the passenger compartment, whether the container is open or closed.
1.

This rule applies even if the occupants have already been removed from the
vehicle. Articles within the relatively narrow compass of a passenger
compartment of a vehicle are generally within the area into which an arrestee
might reach in to grab a weapon or other evidence.
A.

Police may not search the trunk of an automobile incident to arrest of

the automobiles occupants. This is considered outside the scope of the
search.

B.

The Court was attempting to create a bright-line rule for easier

application by the police and the courts.
I.

2.

This rule is not necessarily so bright, as there are still issues

surrounding the search of locked glove boxes, hatchbacks, and
behind door panels.

Brennans Dissent: Brennan argues that the jacket was not within the
immediate control of the defendant, and under Chimel, not subject to search.
The crucial question under Chimel is not whether the arrestee could ever have
reached the area that was searched, but whether he could have reached it at the
time of arrest and search.

ii. Pennsylvania v. Mimms Rule (1977) - The police have the right to order you out of your
car when engaged in a legal stop. If you refuse to get out, this subjects you to an arrest.
iii. Hayes v. Florida Rule (1985) - Usually, taking someone to the station is an arrest, unless
the person agrees to go voluntarily.
iv. Rawlings v. Kentucky Rule (1980): A lawful arrest is a necessary predicate for a valid
search incident to arrest. The probable cause to arrest cannot be supplied by the search
alleged to be incident to that arrest. However, if an officer has probable cause to arrest,
she may conduct a valid search incident to arrest prior to formally taking the suspect
into custody.
v. Payton v. New York, 445 U.S. 573 (1980) -- Normally, an entry of a private dwelling
requires a search warrant. The privacy of the home is the quintessential interest protected
by the search warrant rule. Nevertheless, a partial exception to the search warrant rule
may apply when officers search a private dwelling in order to arrest a felon.
1.

The officers must have a valid arrest warrant for a felony. The warrant must be
based on probable cause and must meet the other requirements for a valid
warrant.

2.

The officers must also have probable cause to believe that the suspect is
presently in the home.
A.

3.

This showing does not have to be made before the magistrate when
securing the arrest warrant.

If both conditions are satisfied, the police may enter the home to make the arrest.
No search warrant is needed to invade the home privacy interest of the alleged
felon.
A.

This exception was created because of concerns about the mobility of

suspects and the time it would take to go get a warrant and come back.

4.

Scope of the Exception: Officers may enter the residence of the suspected felon
to arrest her. They may only look in places where the alleged felon could be
found. Spaces too small to harbor a person are outside the scope. Moreover,
once the arrestee is found or it is determined that she is not present, the officers
must terminate their search.

5.

Note: In 99% of cases, the police would nevertheless go into the house and seize
Payton (wanted for murder). Under New York v. Harrison, he can still be
prosecuted so long as there is independent evidence obtained independently of
the illegal arrest. The only evidence that would be suppressed is the evidence
obtained at the time of the illegal arrest.

vi. Steagald v. United States, 451 U.S. 204 (1981) - Entries into the dwellings of
innocent third parties not included in the partial exception
1.

Facts: The police entered the home of the Steagalds to arrest Lyons, someone
who did not live in the home. The police did not have an arrest warrant to arrest
Lyons.

2.

Holding/Rule: A search warrant is required to arrest a suspect when he is in

the home of a third party. A search warrant shows that there is probable cause
that the suspect is actually in the home of the third party.
A.

The innocent home-dwellers constitutional rights are violated by an

entry without a search warrant. Their privacy rights should not be
diminished because there is no proof that they were involved in
criminal activity, nor is there any proven likelihood that the suspect is
going to be in the home.

3.

VII.

Note on Standing: A felon who is arrested in a third partys home does not have
standing to challenge the constitutionality of the search. The arrestee must
demonstrate that her own constitutional rights were violated, which requires
both a showing that the entry of the home infringed upon her own rights and that
it did so unreasonably.
A.

To prove that her own constitutional rights were infringed upon, she
must show she had a privacy interest in the home that was invaded by
the entry.

B.

The felon cannot rest her challenge on the invasion of the third party
home dwellers constitutional privacy rights.

Shared Dwellings: In some cases, both the felon and an innocent party have privacy
interests in a home. Payton holds that the police can enter the dwelling of a felon with a
valid arrest warrant. However, Steagald holds that the police must procure a search
warrant to enter the home of an innocent party to arrest a suspected felon. It is arguable
that a person who is sharing a dwelling with a suspected felon is not wholly innocent, and
this act diminishes the innocent partys constitutional protection. Thus, it would be
reasonable to search the third partys home on the basis of a felony arrest warrant plus
probable cause to believe that the suspect is in the home.

viii. United States v. Watson Rule (above): The police do not need an arrest warrant if the
suspect is arrested in public.
1.

Applicability to Hotel Rooms - The police can arrest a suspected felon outside
of his hotel room without a warrant. If the defendant was suspected of
committing a misdemeanor outside of the presence of the police, the police
would need a warrant. In reality, the police would likely try to get the defendant
to come out of the hotel room and then illegally arrest him. Any evidence
obtained at that time would be suppressed, but he could still be prosecuted.

ix. United States v. Santana, 427 U.S. 38 (1975): A suspected felon who stands precisely on
the threshold of the front door of her home is subject to a warrantless arrest, as this is
considered public area. She was not merely visible to the public, but was as exposed
to public view, speech, hearing, and touch as if she had been standing completely outside
her house.
X.

J.

Curtilage remains an unresolved question, and will be dependent on the facts and
circumstances of each case. Courts have split on whether the police need an arrest
warrant to arrest a suspected felon in the curtilage of his home.

Exigent Circumstances Exception to the Warrant Requirement

I.

Introduction: Where exigencies of the situation compel the police to act immediately,
risk imminent danger to themselves or others, risk the destruction of evidence, or the
escape of a suspect, it would be unreasonable to require them to resort to the warrant
process.
1.

2.

The prerequisites for a warrantless search or arrest under this exception are A.

The circumstances presented the police with a sufficiently compelling

urgency, making resort to the warrant process both impracticable and
risky, AND

B.

The police had justification amounting to probable cause to believe

that items relating to the crime would be found (in the case of a search)
or that the suspect had committed a crime (in the case of an arrest).

Objective Standard: The police must be faced with circumstances that would
cause a reasonable person to believe that the entry was necessary to prevent
harm to the officers or other persons, the destruction of relevant evidence, the

escape of the suspect, or some other consequence improperly frustrating to

legitimate law enforcement efforts. The exigencies must be view from a totality
of the facts known to the officers at the time of the warrantless intrusion.
3.

The scope of the search is strictly limited to the exigencies of the situation.

4.

Common situations where the exigency exception applies A.

Evidence sought is in danger of immediate destruction.

B.

Safety issues for the officers.

C.

Fleeing suspects.

ii. Warden v. Hayden, 387 U.S. 294 (1967) - Hot Pursuit Doctrine
1.

Facts: Two cab drivers who had witnessed an armed robbery followed the
suspect to a particular house and summoned the police. The officers arrived
within minutes, entered the house and proceeded to search for the robber. While
looking for him, the police discovered and seized evidence connected to the
robbery as well as two guns. In the process, Hayden was located and arrested,
and the items seized were later offered in evidence.

2.

Holding: The items were properly admissible in evidence, because the entry
into the home, although warrantless, was reasonable under the exigent
circumstances to prevent the escape of a fleeing suspect.
A.

Rule: Once inside, the officers could lawfully search for the suspect
and seize any items found in plain view.

B.

The officers needed probable cause to believe that the defendant had
committed the crime AND that he was in the particular dwelling.

C.

Rationale: The volatility of a hot pursuit situation increases the

likelihood that force will be used. Also the increased risk of flight
increases the risk to others in the house where the suspect is hiding.
I.

3.

To the extent there is any risk the suspect has been alerted that
the police are looking for him, there is an increased
justification for the hot pursuit doctrine due to increased
risk to the police and the risk that the suspect will flee.

Scope of the Search: Although the search in Chimel was restricted to the area
where the suspect could reach or grab, the scope of the search in a hot pursuit
situation is broader. The police can look where they reasonably believe a person
could be hiding as well as anywhere a weapon could be hidden.
A.

Rule: When the exigencies of the situation subside, the police cannot
continue the search.

iii. Vale v. Louisiana, 399 U.S. 30 (1977)

1.

Facts: The officers conducted a warrantless entry and search of the suspects
home after they had arrested him outside of his home. The police entered and
searched the home based on a belief that persons inside the home would destroy
narcotics believed to be in the house.

2.

Holding: The Court held that the officers conduct in this case was
unreasonable.
A.

Rule: The exigency in any given situation must arise in the natural
course of things and cannot be the result of deliberate police action.
The exigency must be supported by clearly defined indicators of
exigency that are not subject to police manipulation or abuse.

I.

B.

To the extent the police are to blame for exigent

circumstances, they cannot profit from that creation. In other
words, the police cannot create the exigency to expand the
scope of the search.

Under the circumstances in this case, the police could easily have
secured the residence while other officers went to get a warrant.

iv. Welsh v. Wisconsin, 466 U.S. 740 (1984) - The government relied on exigent
circumstances to justify a warrantless nighttime entry of a home to arrest a resident.
Welsh had been seen driving erratically earlier in the night, and he had swerved off the
road and into a field. Welsh left on foot for home, and the police later investigated the car.
They discovered that it was registered to Welsh, and went to his home to arrest him
without procuring a warrant.
1.

K.

Holding: The Court disallowed the exigent circumstances exception in this case,
as the application of the exigent circumstances exception in the context of a
home entry should rarely be sanctioned when there is probable cause to believe
that only a minor offense . . . has been committed.
A.

The Court rejected the hot pursuit rationale because there was no
immediate and continuous pursuit from the scene of the crime.

B.

Because Wisconsin had chosen to classify DWI as non-criminal, it

indicated that it did not have a major interest in arresting such
offenders. Thus, there was no substantial need to preserve bloodalcohol evidence in entering the defendants home without a warrant.

Vehicle and Container Searches

I.

Introduction: This exception has led to the highest number of Supreme Court cases, as it
is more confusing than other exceptions.
1.

Prerequisite Rule: The police must have probable cause to engage in a search
of the vehicle. The only possible exception is where the car is parked on the
owners own curtilage.
A.

The exception applies to all vehicles, such as airplanes, boats,

motorcycles, and mobile homes.

B.

To invoke the exception, the vehicle must be readily mobile by the turn
of an ignition key. If a vehicle is disabled in some way and not readily
mobile, there is insufficient need for warrantless action.
I.

If the police can prove they had no reason to know of

immobility of the vehicle, they can rely on this exception.

2.

Rule: The car can be searched at the scene or at the station. Under Johns, the
search at the station does not have to occur expeditiously.

3.

Rule: After Acavedo, it is clear that probable cause to search justifies a search of
either a car or a container in the car.

4.

Rationale: The warrantless search permitted by this exception is not based

entirely on exigency or need to act. It also rests on the diminished 4th
Amendment privacy interest in vehicles.

ii. Carroll v. United States - A warrantless search could be conducted of a vehicle if the
officers had probable cause to believe there was contraband or other evidence of criminal
activity in the vehicle. This was premised on the concern about mobility of vehicles, as it
was not likely the vehicle would be in the same place after the police obtained a warrant.
iii. Chambers v. Maroney, 399 U.S. 42 (1970)

1.

Facts: After a description of the robbery suspects car and the robbers was
broadcast over the police radio, the police saw a station wagon meeting the
description. The police stopped the vehicle. The occupants were arrested and the
car was driven to the police station and subsequently searched.

2.

Holding: The Court held that the warrantless search of the vehicle at the station
was legitimate and not a violation of the 4th Amendment.

3.

4.

A.

Because the police had probable cause to believe that the car contained
evidence of a recent robbery, and thus, could have been lawfully
searched when stopped (Carroll), it was constitutionally permissible to
conduct the delayed search as well.

B.

For constitutional purposes, there is no difference between seizing the

car and holding the car before presenting the issue to a magistrate.
Given probable cause, either course of action is reasonable.

Rationale for not requiring a warrant A.

A search at the scene may not be as efficient or thorough as one done

later at the station house.

B.

If the car is at the station house, it is no longer mobile, which is one of

the primary rationales for this exception. The majority now says that
there is no appreciable difference in terms of an additional loss of
privacy. The additional intrusion is minimal, and thus, we dont
require the police to obtain a warrant.

Change from Carroll - The police no longer have to make a showing that they
needed to act quickly. It is now clear that the police can conduct a search at the
scene or at the station house.
A.

Possible Limitation: It is one thing if the defendant loses access to his

car for 30 minutes, and an entirely different situation if he loses access
for 3 days. There is a much greater interference with possessory rights
when the car is seized and taken to the station. If the police perform the
search in an expeditious manner, there may not be a problem. However,
the longer they take, the greater the interference with the defendants
possessory interest.

iv. Coolidge v. New Hampshire, 403 U.S. 443 (1971) Rule: If a search of a vehicle is
conducted on private property, the police need a warrant.
1.

Rule: This exception exempts from the warrant requirement vehicles that are on
the highway. It also includes vehicles found stationary in a public place, and
vehicles found stationary on the private property of someone other than the
vehicle owner.

2.

Exception: This exception may not apply to vehicles that are found stationary
on private property (or curtilage of the vehicle owner. However, later cases have
cast doubt on the current validity of the Coolidge rule. See Kilgore and Carney
(below).

v. Pennsylvania v. Kilgore, 518 U.S. 938 (1996) 1.

Facts: Officers developed probable cause to believe that narcotics would be

found in a truck owned by Kilgore. The truck was parked on the driveway of a
farmhouse that belonged to another individual. Without obtaining a warrant,
police officers searched the pickup, finding cocaine on the floorboard.

2.

Holding: The Court held that the search was not in violation of the 4th
Amendment, as there was probable cause to search the truck, the truck was

readily mobile, and the individual has a reduced expectation of privacy in an

automobile.
A.

Given this explanation, this casts doubt on the validity of Coolidge.

vi. California v. Carney, 471 U.S. 386 (1985) - Officers engaged in a warrantless search of a
mobile home after securing probable cause that the owner was giving marijuana to youths
for sex.
1.

Holding: The Court allowed the search as consistent with the 4th Amendment.
Here, the court focused on the individuals reduced expectation of privacy in any
vehicle.

2.

Rule: If a car is readily mobile and probable cause exists to believe that it
contains contraband, the 4th Amendment permits the police to search the vehicle
without a warrant.
A.

VII.

Again, this casts serious doubt on Coolidge.

Scope of the Permissible Search: The scope of a search under this exception is limited
only by the nature of the probable cause to search.
1.

2.

Areas of the vehicle to which the probable cause extends - This exception
allows officers to search any part of the vehicle that there is probable cause to
search. California v. Acevedo (1991).
A.

Example: If the facts supporting probable cause focus on one specific

portion of the vehicle, such as the trunk, the search must be limited to
the trunk. Similarly, if the item being sought is too large to fit within a
given space, such as the glove compartment, a search of that space is
impermissible.

B.

Rule: Locked compartments of the vehicle may be searched. A lock

would clearly not preclude a search pursuant to a warrant, and the
scope of this warrantless search is as broad as would be permitted if
officers had a warrant to search. See United States v. Ross (1982).

Separate containers within the vehicle - Officers are also permitted to search
every separate container within the vehicle that could contain the object of their
search. California v. Acevedo. There is authority to search such a container both
when officers have probable cause to search an entire vehicle and when they
have probable cause to search only a container that is inside the vehicle.
A.

Note: Officers might have probable cause to search a container that is

not inside a vehicle. A warrantless search is not permitted of a
movable container outside the vehicle (i.e., luggage). However, the
officers can seize and immobilize the container pending application for
a search warrant. United States v. Chadwick. In sum, searches of
moveable container found outside vehicles are not exempt form the
warrant requirement. However, a specific showing that a seizure would
be impracticable or dangerous would support an exigent
circumstances search of such a container.

3.

Location of the search: Officers may search a vehicle at the place where it is
stopped or found. They are also permitted to take the automobile to the police
station (or another place of impoundment) and conduct a warrantless search
there. Texas v. White (1975), Chambers v. Maroney (1970).

4.

Timing of the search: Officers may conduct a warrantless search immediately

upon finding the vehicle or as soon as they arrive at the police station. They
are also permitted to delay the warrantless search for an undefined period of
time. According to the controlling rule, a later search is unreasonable if the

officers delay indefinitely. If may also be unreasonable if an individual were

to prove that the delay in conducting the warrantless search adversely affected
a privacy or possessory interest. United States v. Johns (1985).
L.

Inventory Searches of Vehicles and Arrestees

I.

II.

Introduction: These searches are not conducted to investigate or detect crime, but rather,
to inventory - determine and document the contents of - a particular area. Warrantless
inventories are reasonable because they protect property interests of vehicle owners or
arrestees, protect officials against false or true claims of lost or stolen property, and
protect the police and those in jail against dangerous instrumentalities.
Inventory Searches of Vehicles: Under certain conditions, warrantless inventory
searches of vehicles without probable cause are reasonable.
1.

Necessary Showing: The prerequisites for a valid vehicle inventory are a

lawful impoundment and standard police procedures. See South Dakota v.
Opperman.
A.

Lawful Impoundment: The justifications for conducting an inventory

only arise when officers take the vehicle into custody. Without
official possession, there is no obligation to protect an owners
belongings, no basis for fearing liability, and insufficient reason for
concerns about danger. The 4th Amendment demand that such seizures
be reasonable gives rise to the lawful impoundment requirement for
valid inventory searches.
I.

When is an impoundment lawful? An impoundment is

lawful if there is adequate reason to take possession of the
vehicle.

II.

The question is whether there is a sufficient state interest in

removing the vehicle from where it is and taking it into
official custody.

III.

1.

There is an adequate interest if a vehicle is impeding

traffic or threatening public safety and convenience.
See South Dakota v. Opperman. Thus, cars parked in
violation of city ordinances or broken down in the
middle of public streets may be impounded.

2.

Vehicles whose drivers are arrested may ordinarily

be taken into custody.

An impoundment is not lawful if the official decision to

impound is entrusted to the unfettered discretion of the officer.
1.

B.

Impoundment decisions do not have to be guided by

rigid policies or inflexible formulas. Some discretion
to decide is allowed so long as it is exercised
according to standard criteria and on the basis of
something other than suspicion of evidence of
criminal activity. See Colorado v. Bertine (1987).

Standard Police Procedures: Police departments must have standard

procedures that guide and regulate their officers inventory searches.
See South Dakota v. Opperman. The decision to inventory cannot be
left to the officers unfettered discretion. See Florida v. Wells (1990).
I.

There is no need to take away all discretion from the officers

conducting the inventories. Officers may be allowed
sufficient latitude to determine whether a particular

container should or should not be opened in light of the

nature of the search and characteristics of the container
itself. A policy that allows the exercise of judgment based on
concerns related to the purposes of an inventory search does
not violate the 4th Amendment. See Florida v. Wells.
C.

Opportunity to Make Other Arrangements: Since Opperman, the

Court has made it clear that officers do not have to extend the owner an
invitation to make other arrangements. See Colorado v. Bertine.
I.

2.

Scope of a valid vehicle inventory: Standard police procedures are one source
of limitation on the scope of a proper inventory. The more significant question is
what independent restrictions the Constitution imposes. The question should be
answered by referring to the justifications for warrantless inventories.
A.

Scope authorized by the standard procedures: If the standard

procedures regulating an officers inventory search limit the places
where an officer may look, a search beyond those places would be
outside the inventory exception and violate the 4th Amendment.

B.

Scope allowed by the 4th Amendment: Assuming that the standard

procedures authorize an inventory search, the question is whether the
search authorized in consistent with the 4th Amendment.
I.

II.

III.

III.

An owner might request permission to make other

arrangements. She might seek to have someone else take
possession of her vehicle or might ask for the opportunity to
remove items before an inventory is performed. It is
uncertain whether officers are constitutionally permitted to
deny such a request. If officers do grant an owners request to
go through the vehicle prior to an inventory, but still have
reason to retain custody of the vehicle, the reasoning of the
inventory cases suggests that it would be reasonable to then
conduct an inventory of the vehicle.

Rule: The 4th Amendment does allow officers to look

thoroughly through all generally accessible areas of the
passenger compartment, including closed spaces such as glove
compartments and consoles. They may also inventory trunks.
The fact that an area is locked probable does not preclude a
valid inventory. However, if officers cannot search a locked
area without causing significant property damage, it is
arguably impermissible to conduct an inventory.
Inventories of some parts of vehicles may be constitutionally
forbidden. Generally inaccessible spaces such as the areas
beneath rear seats, behind door panels and roof liners, and
underneath the dashboard could be outside the scope of a
reasonable inventory. Further, the area under the hood of a
vehicle, or perhaps some parts of that area, might be outside
the scope.

Inventory Searches of Arrestees: Under certain conditions, warrantless inventory

searches of arrestees without probable cause are reasonable under the 4th Amendment.
1.

Showing Necessary to Inventory an Arrestee: A valid inventory of an arrestee

requires a lawful arrest of someone who is going to be incarcerated according
to standard police procedures. See Illinois v. Lafayette.

A.

Lawful Arrest: The justifications for inventories of arrestees only arise

because a person has been taken into custody.
I.

B.

Incarceration: Inventories of arrestees are only permitted when an

arrestee is going to be incarcerated for some period of time. The
property protection, false claims, and safety rationales underlying
inventories are irrelevant to cases in which arrestees are released
without being confined in jail.

C.

Standard Police Procedures: An inventory of an arrestee is not

reasonable unless the officer conducting it is acting pursuant to
standard procedures.
I.

2.

An officer cannot have unfettered discretion to decide who

will be searched. However, discretion is constitutionally
acceptable if it is exercised on the basis of standard criteria
and not for investigatory purposes.

Scope of valid arrestee inventory: Both the departments standard procedures

and the 4th Amendment limit the scope of a proper arrestee inventory.
A.

Arrestee: Officers may thoroughly search the person of the arrestee,

removing all belongings. In circumstances of particular need, officers
might be allowed to require an arrestee to remove his or her clothing,
but such instances would be rare.

B.

Personal Belongings and Containers: Officers also may open and

look through any article or container found on the person or in the
possession of an arrested person who is to be jailed.
I.

C.

There is no need to take the less intrusive alternative of

storing closed containers intact in secure facilities.

Time and Place of the Inventory: An inventory of an arrestee will

typically occur at the police station or jailhouse, prior to the
individuals introduction into a jail cell. Nonetheless, there is no reason
why it cannot be performed at an earlier time and different place if all
other elements of the exception are met.
I.

M.

If the seizure of the person is unreasonable, an inventory that

follows will be unconstitutional. Consequently, the inventory
may only occur after a lawful arrest. Illinois v. Lafayette.

In Lafayette, the Court indicated that it could be proper to

inventory a belonging just before giving it back to an arrestee
who is being released.

Consent Searches
I.

Introduction: If a person with authority validly consents, the 4th Amendment allows an
officer to conduct a search without a search warrant and without probable cause. Even if
the person giving consent lacks authority, a warrantless search may still be reasonable.

II.

Showing Necessary for a Consent Search: To invoke the consent exception, the
government must demonstrate a voluntary consent by a person with common authority.
1.

Actual Consent: A consent search requires evidence that consent was actually
given. Explicit permission to search is not required. Rather, a persons actions
can provide a basis for inferring a grant of such permission.
A.

Consent should not be inferred when a person simply acquiesces in or

fails to resist an official demand for permission to search.

2.

Voluntariness: The government must show, by a preponderance of the

evidence, that consent was in fact voluntarily given, and not the result of duress
or coercion, express of implied. See Schneckloth v. Bustamonte.
A.

3.

Standard Employed: Voluntariness is determined by the totality of

the circumstances. Bustamonte. Relevant circumstances fall into two
general categories I.

External coercion or pressure brought to bear on the

individual, and

II.

Internal, subjective strength of will possessed by the

individual.

B.

Facts that evince coercion (or lack thereof) are relevant - for example,
the nature of the law enforcement conduct preceding the consent and
the setting in which it occurred are relevant. Likewise, facts that bear
on a persons strength of will or vulnerability are also relevant - for
example, native intelligence, educational level, maturity, prior
experience with law enforcement, intoxication, and knowledge of the
right to refuse consent.

C.

Some amount of official coercion is almost certainly necessary for

consent to be deemed involuntary. Consent that is involuntary
because of purely subjective forces operating internally within the
individuals mind is most properly valid. See Colorado v. Connelly.

D.

Consent coerced by the conduct is also probably a valid basis for a

search. Connelly (a private partys coercion does not render a
confession coerced or involuntary for purposes of the DP Clause).

e.

Bumper v. North Carolina: Where the police falsely claim that they
have a warrant, and this prompts the occupant to let them in, consent is
invalid.

Knowledge of the Right to Refuse: While knowledge of the constitutional right

to refuse consent is relevant to voluntariness, it is not an absolute necessity.
A.

Rule: Officers do not have to warn a person of the right to refuse

consent. Moreover, consent given by a person who was ignorant of the
right to refuse is not invalid.

4.

Advice to Seized Individuals: The 4th Amendment does not require that a
lawfully seized individual be advised that he is free to go before consent can
be found voluntary. See Ohio v. Robinette. Consent that is voluntarily given is
not rendered invalid by the failure to provide such advice. This is the case
whether the lawful seizure is continuing or has been completed at the time the
consent is given.

5.

Authority to Give Consent: Consent is valid only if it is given by a person who

has authority to consent. Third parties - persons other than the person who
objects to the search later - may give valid consent if they have common
authority. See United States v. Matlock.
A.

Common Authority Rule: To have common authority to consent to

the search of a place, an individual need not have a property interest. In
fact, a property interest alone is insufficient for common authority.
I.

Common authority rests on mutual use of the property by

person generally having joint access or control for most
purposes. The degree and the extent of access or control that

are required to satisfy this standard cannot be specified with

precision.
6.

Scope of an Individuals Authority: The scope of an individuals authority to

give valid consent is determined by the extent of that persons mutual use and
joint access or control.
A.

Rule: A person who uses and has access to some spaces does not have
authority to consent to the search of related or nearby, but distinct,
spaces.
I.

B.

Example: A person does not have authority to consent to a

search of every portion of a dwelling simply because he uses
certain, limited parts of that dwelling. Similarly, someone with
mutual use of and joint access to a room does not necessarily
have authority to consent to the search of every distinct private
belonging within that room.

Rule: There are some private spaces that are treated as unitary for
purposes of authority to consent. For such spaces, whenever a person
uses and has access to any part of the unitary space, he gains authority
to consent to a search of the entire space.
i. Frazier v. Cupp Example: A young man had permission to
possess his cousins duffel bag and to use some compartments
in it. The Court held that he had authority to consent to the
search of the entire duffel bag as a result.

III.

Scope of a Valid Consent Search: If a person with authority has given valid consent, an
officer is entitled to search any area to which the consent extends. Because consent
searches are reasonable only because officers have secured permission, the scope of a
consent search cannot be broader than the scope of the permission granted.
1.

IV.

If a consenting party expressly limits the allowable search, officers must abide
by that limitation. However, the consenter may not be explicit about the scope of
the permission she intends to grant. In that case, the standard for measuring the
scope of a suspects consent is that of objective reasonableness - what a
reasonable person would have understood by the exchange between the officer
and the person giving consent. See Florida v. Jimeno.
A.

If it is reasonable for an officer to consider consent to include a

particular area, that area falls within the scope of the consent given.

B.

If it is reasonable to understand the consent as extending to a particular

area, there is no need for an officer to confirm that understanding by
inquiring or seeking express permission to search the area.

C.

The objective, reasonable person standard for determining the scope of

consent requires each case to be judged on its own facts.

The Apparent Authority Doctrine: In some cases, officers search based on consent
given by a person who, in fact, does not have common authority. In those cases, the
searches do not fall within the consent exception. Because the consenter lacks authority,
the consent is not constitutionally valid.
1.

A warrantless search performed under these circumstances may nevertheless be

reasonable under the apparent authority doctrine. If a person who gives
consent does not have authority, the search is still reasonable if officers have an
objectively reasonable belief that the person who has given consent has
common authority. See Illinois v. Rodriguez.

N.

2.

Circumstances K: Officers do not always have to inquire about a persons

authority or relationship to the place searched. In some situations, they can have
an objectively reasonable belief in authority without inquiring. In others, the
circumstances may be such that an officer could not reasonably believe that a
person had authority without asking.

3.

Even in cases where a person affirmatively asserts that she has authority to
consent, it may not be reasonable to believe that assertion. The question is
always whether, in the particular circumstances, a belief in authority is
objectively reasonable.

4.

Even if an officer conducts a search in circumstances that render it unreasonable

to believe that a person has authority to give consent, the search will be
constitutional if the person does in fact have actual authority to consent. Illinois
v. Rodriguez.

The Plain View Doctrine

I.

II.

III.

IV.

Introduction: The plain view doctrine does not actually authorize a search of any sort.
Rather, it merely allows officers to seize effects in certain circumstances without first
obtaining a warrant. See Horton v. California. The circumstances that justify a
warrantless seizure are:
1.

Lawful arrival at the place from which the object can be plainly viewed,

2.

Lawful access to the object seized, and

3.

An object whose incriminating nature is immediately apparent.

4.

Rationale: The police should not be put to the inconvenience of leaving the
place of the original search to procure a specified warrant to seize contraband or
evidence that is immediately apparent as criminal in nature.

Lawful Arrival at the Place from which the Object can be Plainly Viewed: If officers
violate the 4th Amendment in arriving at the place that enables them to view an object, the
violation will taint a subsequent seizure. The lawful arrival criterion reflects the
principle that an otherwise lawful seizure will be tainted if it is the product of a prior
illegal search.
Lawful Access to the Object Seized: Officers must justify their presence in the place
where they seize the object.
1.

If the item is in a public place, no grounds are needed to justify access because
the 4th Amendment does not restrict officers access to public places.

2.

If the item is in a private place, officers need either a warrant or an exception to

the warrant requirement to justify the entry that gives them access to the object.
A.

No amount of probable cause can justify a warrantless search. If lawful

plain view of an incriminating object permitted intrusion into a private
place to seize the object, the plain view doctrine would undermine the
search warrant rule.

B.

Rationale: By demanding an independent justification for such a

search, the lawful access demand guarantees that the warrant rule
will not be undercut by the plain view doctrine.

Immediately Apparent Incriminating Nature: This criterion reflects a fundamental 4th

Amendment restraint on seizures of effects - the general rule that officers may not seize
an object unless they have probable cause to seize it. See Arizona v. Hicks.
1.

In Hicks, the police had to lift stereo components to read the serial numbers on
the equipment to determine whether the stereo was stolen. The Court held that

this action was beyond the plain view doctrine, even though the inspection was
cursory.

V.

III.

A.

To move the stereo components constituted a search for which the

police needed probable cause. Where they had to move the stereo
components to read the serial numbers, and then call in to see if the
stereo was stolen, this proved that the stereo was not immediately
apparent as incriminating in nature.

B.

Compare: If the serial numbers had been in plain view, there would be
no constitutional violation.

2.

This reflects a notion that the probable cause to seize the object cannot be the
product of a search or seizure undertaken to investigate the nature of the object.
Officers who have some level of suspicion about an object in plain view, but
lack probable cause, ordinarily may not conduct a search or seizure for the
purpose of determining the character of that object. If they do so, and their
search or seizure generates probable cause that leads them to seize the object,
the seizure cannot be justified by the plain view doctrine because it is tainted by
the preceding illegal search or seizure.

3.

United States v. Place: In this case, the police temporarily seized a suitcase in
public to bring a drug dog in to sniff for drugs. The Court allowed this action,
which suggests that the police can make a temporary seizure based on
reasonable suspicion if the search takes place in public, where citizens have a
decreased expectation of privacy.

Rejection of an Inadvertence Requirement: The plain view doctrine previously could

not justify the seizure of an object unless the discovery of that object was inadvertent. A
discovery was inadvertent when it was not anticipated; where the police did not know in
advance the location of the item and intended to seize it. See Coolidge v. New Hampshire:
No longer good law.
1.

In Horton v. California, the Court rejected the inadvertence requirement, holding

that an object is subject to seizure under the doctrine whether or not it has been
inadvertently discovered.

2.

Current Rule: Even though officers have probable cause to seize an item in
advance and have time and opportunity to secure a search warrant for that item,
they do not have to obtain a warrant. So long as the other requirements for a
plain view seizure are satisfied, they may reasonably seize the item.

THE STOP AND FRISK DOCTRINE: TERRY V. OHIO

A.

The Basic Doctrine

I.

II.

With this doctrine, we are evaluating the reasonableness of a search or seizure by

balancing the magnitude of an intrusion on the individual against the governmental
interests claimed to justify that intrusion.
Stop and Frisk occurs when an officer confronts a citizen who she reasonably
suspects might be involved in criminal activity. In addition to briefly detaining the
individual, the officer may also briefly frisk the suspected criminal for weapons.
1.

The Court determined that stop and frisk still has 4th Amendment implications,
because a stop is a seizure of the person, and a frisk does qualify as a
search.
A.

2.

A stop and seizure can occur simultaneously.

Neither probable cause nor a warrant is necessary for a stop and frisk. The
officer need only have a reasonable suspicion, which is a lower showing than

probable cause. However, the officer must have more than an unarticulable
hunch.
A.

The Court would allow a more full-blown search only upon a showing
of probable cause.

3.

TEST: When an officer subjects a suspected criminal to a stop and frisk, the
officer needs specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant the intrusion. The officer must
demonstrate facts that lead him to reasonably conclude, in light of his
experience, that criminal activity may be afoot and that the person with whom
he is dealing may be armed and presently dangerous.

4.

The Court applied the balancing approach in Terry in articulating this test A.

On one side of the balance is the nature and extent of the intrusion on
the individual subjected to the detention and frisk, and the extent of the
individuals interest in liberty and privacy.

B.

On the other side of the balance is the governments interest in stopping

and ferreting out crime.

C.

The Court must decide, based on the balance, whether the search and
seizure are reasonable.

D.

The totality of the circumstances must also be taken into account in

determining whether a stop and frisk was permissible in light of the
4th Amendment.

iii. Terry v. Ohio (1968): Officer McFaddens attention was drawn to two men on a
Cleveland street corner that appeared to the experienced officer to be casing a store for
a robbery. They walked back and forth roughly 24 times, pausing to stare in the store
window and confer with each other. Acting on his suspicions, McFadden approached the
men and asked them to identify themselves. When they mumbled something in response,
McFadden patted the men down, felt a pistol on each man, and removed the guns. The
men were then placed under arrest for possession of concealed weapons. Prior to the trial,
the defendants moved to suppress the guns as the product of an unreasonable search.
1.

Holding: In appropriate circumstances and in the appropriate manner, police

officers may briefly detain a person for purposes of investigating possible
criminal activity, even though there is no present probable cause to make an
arrest. Here, the Court created a compromise solution between the governments
position that this was not a search or seizure, and the defendant position that
this was a full-blown arrest and search.
A.

2.

3.

Rule: If the police cannot articulate what crime it is that the individuals
were about to commit, Terry is inapplicable.

Why not require a warrant in these situations?

A.

It is not practical to get a warrant in these impulse situations.

B.

If the officer sees something that is suspicious, and has observed these
individuals for a reasonable time period, based on his experience, it
may seem clear that they are about to engage in criminal activity. Based
on these observations, it would be impossible and impracticable for the
officer to stop surveillance in an attempt to summon other officers and
obtain a warrant.

The rationale for eliminating the probable cause requirement is more

controversial -

A.

In Terry, the Court said that a full search of a person is a substantial

depravation of the persons liberty and property interest and in their
dignity.
I.

If the person is arrested and subject to a full-blown search,

there is a greater intrusion than if the person is subjected to a
temporary stop and frisk.

B.

The Court stated that it is reasonable to allow the police, if they have a
reasonable, articulable belief that the suspect is about to engage in
criminal activity, and if they reasonably believe that the individual is
presently armed and dangerous, to allow some prompt and brief action
to dispel with the officers immediate concern.

C.

In such situations, the governments interest in immediately stopping

crime outweighs the individuals right to be free from a temporary stop
and frisk.

iv. Dunaway v. New York (1979) - The suspect in a stop and frisk was taken to the station
house and detained for extensive questioning. The Court held that this was the functional
equivalent of official arrest, and thus, the police needed probable cause for such action.
Reasonable suspicion is not adequate in such circumstances.
1.

B.

K: Duration and imposition placed on the detainee are factors in determining

whether this is a stop and frisk situation or more like an official arrest,
requiring probable cause (see below).

The Threshold Question: When is a Person Seized?

I.

II.

The 4th Amendment regulates only encounters in which law enforcement officers seize
individuals. Not all personal intercourse between policemen and citizens involves
seizures of persons. Terry.
1.

Because seizures are regulated by the 4th Amendment, they are

unconstitutional unless the government can show reasonableness.

2.

Because encounters that are not seizures are not governed by the 4th
Amendment, they can be undertaken for any reason or no reason at all - there is
no requirement that the government justify encounters as reasonable.

Intent Requirement: A seizure cannot be effected accidentally. A 4th Amendment

seizure does not occur whenever there is a governmentally caused termination of an
individuals freedom of movement,, but only when there is a governmental termination
of freedom of movement through means intentionally applied. See Brower v. City of
Inyo (1989).
1.

III.

A seizure requires that an officer act with the intent of terminating the freedom
of the individual.

Physical Force or Show of Authority Requirement: An officer cannot seize a

person unless he either applies physical force to the person or displays a show of
authority. See California v. Hodari D. (1991).
1.

Seizure by Physical Force: Any actual physical contact with a person will
qualify as physical force. Hodari D. Consequently, an officer satisfies the
physical force criterion whenever she merely touches a person with her hand,
another part of his person, or an object.
A.

The use of physical force is apparently sufficient in itself to complete

a seizure - at least when the officers purpose is to detain the suspect.
I.

The suspect does not have to submit to the force, although

flight will end the seizure.

II.

2.

Note: The Hodari D. Court strongly indicated that the

reasonable person requirement applicable to seizures by
shows of authority has no application when physical force is
used.

Seizure by a Show of Authority: Two things are necessary for a show of

authority by an officer to result in a seizure: (1) a show of authority that would
make a reasonable person feel not free to leave, and (2) submission by the
suspect.
A.

Mendenhall Standard - Would a reasonable person feel free to

leave? - In Mendenhall (1980), DEA agents in plain clothes
approached the defendant as she proceeded through an airport terminal.
They identified themselves and requested to see her identification and
ticket, which she gave them. The agents asked several questions about
her travel plans, and returned the papers. At the agents request, the
defendant accompanied them to a nearby office in the airport, where
she was searched.
I.

Rule: If the police have reasonable suspicions sufficient to

stop the suspect, stopping her also gives the police the right to
ask the defendant for identification and to ask questions to
confirm or dispel their reason for the stop. These exchanges
are considered perfectly reasonable.

II.

Rule: A person can be seized by a show of authority only if,

in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free
to leave. This is an objective standard.
1.

Unless the show of authority displayed by the officer

is of such a character that it satisfies this objective,
the infringement on liberty is insufficient to amount
to a 4th Amendment seizure.

iii. United States v. Dayton (2002) makes clear that it is not

determinative if the police officer gives a warning about the
individuals right to refuse consent. This applies in all contexts
of Terry searches.
B.

Sometimes an individual does not feel free to leave a location because

of self-imposed restraints on her liberty. In that situation, the
appropriate inquiry is whether a reasonable person would feel free to
decline the officers requests or otherwise terminate the encounter. See
Florida v. Bostick.
I.

In Bostick, armed and uniformed officers approached Bostick

as he sat in the cramped confines of a bus. They asked to
inspect his ticket and identification, advised him that they
were searching for narcotics, and requested to inspect his
luggage, to which he consented.

II.

Holding: In order to determine whether a particular encounter

constitutes a seizure, the Court must consider all of the
circumstances surrounding the encounter to determine whether
the police conduct would have communicated to a reasonable
person that the person was not free to decline the officers
request or otherwise terminate the encounter.
1.

The Court rejected the claim that the passenger was

seized simply because a reasonable person in that

setting would not feel free to leave. That feeling was

the result of the passengers own decision to travel of
the bus. In such circumstances, a seizure can only
occur if the officers conduct would make a
reasonable person feel not free to decline their
requests or otherwise terminate the encounter.
2.

Rule: No seizure occurs when the police ask

questions, ask for identification, or request consent to
search a bag, as these actions do not compel the
person to speak to the police - insufficient
compulsion.
A.

C.

Note: Uphoff thinks this is complete crap.

Submission by the Suspect: For a seizure to be completed, the

individual must also submit to the show of authority. If the suspect
flees or walks away, no seizure has occurred.
i. California v. Hodari D. (1991): The defendant was chased on
foot by the police. He tossed away a rock of cocaine before the
police caught him and place any physical restraint upon him.

C.

1.

Holding: The defendant had not been seized when he

tossed the cocaine, as he had not yet submitted to the
officers show of authority.

2.

Rule: A seizure of a person occurs in the context of a

pursuit only where there is either an actual
application of force on the subject or where there is a
submission to police authority.

Justification for Stops and Frisks: A Reasonable Suspicion

I.

Since Terry, the showing needed for a stop and frisk has been explained and described as
a reasonable suspicion. The reasonable suspicion needed to stop or detain a suspect is
different and distinct from that needed to conduct a frisk.

II.

In Illinois v. Wadlow (2000), a majority of the Court rejected the following per se rules 1.

Unprovoked flight always gives rise to reasonable suspicion.

2.

Unprovoked flight in a high crime area always gives rise to reasonable

suspicion.

3.

Unprovoked flight never gives rise to reasonable suspicion.

4.

Rather, the Court stated that the proper test was to look at the totality of the
circumstances. Thus, if the stop occurs in a high crime area, this is only one
factor that the court should take into consideration.
A.

III.

This is a very abstract concept to apply, as it is difficult to determine

whether the officer is acting on a hunch or under circumstances that
warrant a reasonable suspicion.

The showing needed for a stop or temporary detention of a person 1.

Stops or temporary detentions are permissible in order to detect and prevent

ongoing or imminent crimes. In those situations, officers must have a
reasonable suspicion that criminal activity is afoot or that the suspect is
engaging in criminal activity. See Alabama v. White.
A.

In Alabama v. White (1990), the police received a tip that White would
be leaving a particular apartment at a particular time in a particular

vehicle, and that she would be going to a particular motel in possession

of cocaine. The police proceeded to the apartment, observed a woman
matching the defendants description leave the building and enter the
described car, and followed her to the specified hotel before stopping
her.
B.

Holding: The Court held that, because the police corroborated the
predictions of the caller, they were justified in stopping and detaining
the defendant outside of the motel. K: Police corroboration established
sufficient reliability to establish reasonable suspicion.
I.

2.

C.

The Court also found reasonable suspicion in Florida v. J.L. (2000),

where an anonymous tipster told police that there would be some
young black males on a street corner, and that one of them would have
a gun.

D.

In United States v. Arvizu (2002), the Court stated that a number of

seemingly innocent factors, when weighed together in the totality of the
circumstances, may amount to reasonable suspicion.

Such stops or detentions are also permissible in order to detect and apprehend
those who have engaged in past, completed crimes. In those situations, an officer
must possess a reasonable suspicion that an individual was involved in or is
wanted in connection with a completed felony. See United States v. Hensley.
A.

IV.

V.

Note: Where an informant is shown to be correct about some

thing, this increases the probability that she is right about other
facts that she has asserted.

It is undecided whether a stop for a completed offense is permissible

for any past crimes that are less serious than felonies.

The showing needed for a frisk or weapons pat-down of a person 1.

To conduct a limited pat-down of outer clothing of a suspect for weapons frisk - an officer must have a reasonable suspicion that the suspect who is
being detained is armed and presently dangerous. See Minnesota v. Dickerson.

2.

Note: The authority to frisk does not follow automatically from the authority to
detain, but instead requires this independent showing of objective grounds for
believing that the suspect could pose a danger to the officer during a detention.

3.

Richards v. Wisconsin: Rejects the categorical assumption that drugs = guns. K:

There must be an individualized showing that the person is likely to be armed
and dangerous (cannot infer).

Reasonable Suspicion - Probable cause is not required for a stop and frisk, but an
inchoate and unparticularized suspicion or hunch will not suffice. See United States v.
Sokolow. A reasonable suspicion is required - a level of likelihood somewhere in
between that engendered by a hunch and that required for probable cause.
1.

To establish a reasonable suspicion, an officer must point to articulable and

objective facts.

2.

The level of likelihood required to establish a reasonable suspicion is somewhat

less than a fair probability.

3.

The information that establishes grounds to sop or frisk can be different in

quantity or content than that required to establish probable cause, and can also
be less reliable than that required to establish probable cause. See Alabama v.
White.

4.

D.

Judges must make their own independent determinations of reasonable

suspicion, and cannot simply defer to the judgments of officers or to officers
reliance on profiles prepared by law enforcement agencies. See United States
v. Sokolow.
A.

Conversely, the fact that factors may be set forth in a profile does not
somehow detract from their evidentiary significance as seen by a
trained agent. Thus, judges must not discount facts simply because they
appear in profiles.

B.

Although they must not simply defer to officers judgments, courts

should make an effort to credit the experience and training of the
officers in evaluating the significance of the factors.

5.

Even though no single fact directly describes ongoing criminal activity, the
totality of the facts can still support a reasonable suspicion of criminal activity.
Sokolow. None of the individual facts relied on to establish a reasonable
suspicion need be inherently suspicious or indicative of criminal activity when
judged in isolation.

6.

Rule: The fact that a suspect walks away from the police or refuses to answer
the questions of a police officer cannot be used to gain a reasonable suspicion.

Scope of Terry Stops: Limits on Temporary Detentions of Person

I.

To qualify as a stop, the intrusion on a suspects freedom of action must be markedly

less than that associated with an arrest. Several factors are relevant 1.

Temporal Factor: How long may a temporary detention last?

A.

Investigative stops cannot continue indefinitely. At some point, they

become de facto arrests. See United States v. Sharpe. However, there is
no bright-line rule as to how long the detention may last to qualify as a
stop.

b.

United States v. Sharpe (1985): Officers were following 2 vehicles

suspected of involvement in drug trafficking, but initially were only
able to stop one of the cars. The driver was detained for a period of 40
minutes, which was the amount of time it took to overtake and stop the
2nd driver and return him to the location of the 1st driver.
I.

C.

Holding: This detention was a stop rather than an arrest,

because the duration did not exceed the time necessary to
complete the preliminary field investigation.

A detention is reasonable in duration when the police diligently pursue

a means of investigation that is likely to confirm or dispel their
suspicions quickly, during which time it is necessary to detain the
suspect. Sharpe.
I.

Rule: The officers intrusion in the stop and frisk must be as

limited as possible to confirm or dispel their suspicion.

II.

If the police are dilatory in their investigation, or

unnecessarily prolong the detention, the stop is unreasonable
in scope.
1.

Even a very brief stop can be unreasonable if officers

delay unnecessarily and do not diligently pursue their
suspicions.

2.

A stop can usually last as long as is reasonably

necessary to conduct the investigation.

2.

Location Factor: May a suspect be moved during a Terry detention?

A.

Rule: A suspect may not be transported to the police station on the

basis of a mere reasonable suspicion. The line between an
investigative detention and an arrest is cross when the police forcibly
remove a person from his home or other place in which he is entitled to
be and transport him to the police station, where he is detained, even
briefly, for investigative purposes. See Hayes v. Florida.
i. Hayes v. Florida (1985): The police visited Hayes at his home
in connection with a burglary to obtain his fingerprints. The
police had no warrant, but Hayes agreed to accompany him to
the station where he was fingerprinted and later placed under
formal arrest.

B.

II.

Holding: Transportation of a suspect to the police station

requires more than a reasonable suspicion alone. The
transportation is reasonable if the officer has probable cause
to arrest the suspect.

III.

Possible Exception: It may also be permissible for certain

limited purposes, such as fingerprinting, if the officers obtain
judicial authorization for the seizure of a person on less than
probable cause. Hayes.

Limited movements of a suspect during a stop are probably allowed if

they are reasonably necessary to accomplish the purposes of the stop.
See Florida v. Royer.
I.

C.

3.

It is unclear whether a suspect can even be moved a

substantial distance during an investigative detention. An
eyewitness may be at the scene of the crime several miles
away from the point of detention or a victim may be
hospitalized across town from the site. In those cases, whether
it is reasonable to take a properly detained suspect to the scene
or hospital is arguable.

During the lawful detention of a vehicle, an officer may as a matter of

course order both the driver and passengers to exit the vehicle pending
completion of the stop. The incremental intrusion on liberty caused
by the order to get out of the vehicle is per se reasonable and requires
no additional justification. See Pennsylvania v. Mimms, Maryland v.
Wilson.

How much may official conduct intrude on a suspects liberty?

A.

Duration and the movement of the suspect are relevant because they
increase the infringement on the suspects liberty. Other actions by
officers that intrude on or restrict a suspects liberty are also relevant
and can turn a detention into an arrest.

B.

An officer might ask a large number of questions, ask questions of an

accusatory nature, or use a demanding tone. She might administer a
sobriety test or initiate an encounter in an isolated or threatening
setting. All such factors can increase the intrusiveness of an encounter.

C.

Taking fingerprints during an investigative stop is permissible if there

is reason to believe that the fingerprinting with confirm or dispel a
suspicion. See Hayes v. Florida. Nonetheless, fingerprinting and similar
investigative techniques bear on the intrusiveness of an encounter and

could contribute to a finding that the border between detentions and

arrests was crossed.
D.

E.

Handcuffing might in and of itself support a conclusion that a de facto

arrest has occurred. Even if it is permissible to use handcuffs during a
detention, they will significantly increase the infringement on a
suspects liberty.

Scope of Terry Stops: Temporary Detention of Effects

I.

II.

When an individual is detained based on a reasonable suspicion of criminal activity, the

personal effects that he is carrying are also necessarily detained. No independent
justification is required to detain those effects. An officer, however, might wish to
detain personal effects independently of the seizure of the person. The question here is
the constitutionality of such an independent seizure on less than probable cause.
Permissibility of and grounds for seizing effects 1.

In United States v. Place, the Court concluded that a limited, independent

detention of an effect is permissible in some circumstances.
a.

United States v. Place (1983): The police detained luggage which was
seized from an individual where the police had reasonable suspicion to
believe that there were narcotics in the luggage. The police seized the
luggage for a period of time to bring in dogs for a sniff test.
I.

Holding: Reasonable suspicion that a package or piece of

luggage contains contraband or evidence of a crime has been
held to justify a temporary seizure. Here, the police held the
luggage for 90 minutes, which was held to be an unreasonable
detention.

II.

Rule: Reasonable suspicion does not give the police the right
to open the luggage - for that action, they need probable cause.
1.

2.

III.

Probable cause would arise if the dogs alerted that

there were drugs inside. However, where the luggage
has already been seized, the police would need a
warrant, as there are no exigent circumstances. See
Chadwick.

In Arizona v. Hicks, the Court made clear that limited seizures of effects are not
always reasonable when officers have a reasonable suspicion that the effect is
somehow involved in criminality.
A.

In Hicks, an officer suspected that a turntable was stolen. He lifted it to

examine the serial number. The Court held that this limited seizure (and
search) could not be justified on less than probable cause. The majority
observed that a limited seizure of an inanimate object on less than
probable cause is allowed only when the seizure is minimally intrusive
and special operational necessities render it the only practicable means
of detecting certain types of crime. Temporary seizures of objects
suspected of containing narcotics satisfy both of these criteria.

B.

It is unclear whether any ground other than a reasonable suspicion of

the presence of contraband can justify the independent, temporary
detention of an effect. Both the seriousness of the offense at issue and
the difficulty of detecting that offense would be relevant variables.

Allowable Scope of Seizures of Effects - The question here is what an officer can do
with an object that she has seized based on a reasonable suspicion. There is no bright-line
rule.

1.

2.

3.

Variable intrusiveness of seizures of effects: Seizures of property can vary in

intrusiveness on the suspects property interest. See United States v. Place.
A.

A piece of luggage seized from an individual not only intrudes on the

persons possessory interest in the item, it also impinges on that
persons liberty.

B.

Conversely, if a container were seized from a shipment, the only harm

might be a limited deprivation of a possessory interest in the item.

C.

To determine whether the seizure of an effect is sufficiently confined in

scope, one must first determine the character of the seizure and the
nature and extent of the intrusions that result.

Temporal Factor: How long may a seizure of an effect last?

A.

If an object is seized from the custody of an individual, the seizure may

last no longer than a seizure of the person. Such a seizure may not last
indefinitely and may not exceed the time that it takes for a diligent
pursuit of a course of investigation likely to confirm or dispel the
official suspicion.

B.

If the effect is no in a persons custody, and therefore does not restrict

personal liberty, a longer seizure might be permissible. A seizure that
was longer than reasonably necessary for the diligent pursuit of
suspicions might still be reasonable because of the limited infringement
of constitutionally protected interests caused by the unnecessary delay.

What can be done with the seized effect

A.

Rule: Officers are allowed to subject an effect to a canine sniff

designed to determine whether it contains contraband narcotics. Such a
sniff of a container sitting in a public place is not considered a search.
See United States v. Place.
I.

B.

Officers may also request consent to search.

Rule: Officers may not open a container based on reasonable suspicion.

They are also probably barred from performing even a less intrusive
search, such as manually manipulating the exterior of a soft container
as a means of pursuing their suspicion. See Minnesota v. Dickerson.
i. Minnesota v. Dickerson (1993): While conducting a pat-down
search, the officer felt a lump in the defendants front pocket.
The officer examined it with his fingers, slid it around, and
thought it was a lump of crack cocaine. The officer then
reached inside the defendants pocket and seized the rock.
1.

Holding: The officer exceeded the scope of a Terry

search by manipulating the lump with his fingers.
A.

Only where the officer immediately

recognizes the object as contraband can he
seize the object without exceeding the scope
of Terry.

B.

This also suggests that officers no longer

need reasonable and articulable suspicion to
believe that the person is armed and
dangerous in order to frisk him, which is
what Terry originally required.

II.

C.

Potential Exception: A lesser search of a container taken

from a detainee, and perhaps even the opening of such a
container, might be permissible as an extended frisk of the
person if officers have a reasonable suspicion that the
container is harboring a dangerous weapon.

Whether and when officers may transport an effect to another location

in order to carry out an investigation remains unclear.
I.

If the object has been seized from the custody of a person, it is

most likely that the effect could not be taken to a police
station, but might properly be taken to another location if
necessary for an effective investigation.

II.

Except to the extent that it extends the duration of the seizure,

movement of an object does not necessarily increase the harm
to the liberty interests of the individual from whom it is taken.
Movement of an object to a police station might be no more
intrusive than movement to any other location.
1.

III.

F.

It is arguable that officers can transport an inanimate

object to a police station and any other place so long
as they diligently pursue and do not unnecessarily
prolong the investigation.

For objects that have not been taken from the custody of the
person, the argument in favor of allowing officers to transport
them to other locations is even more compelling.

Scope of Terry Frisks

I.

II.

During an investigative detention, if an officer has a reasonable suspicion that a suspect is

armed and presently dangerous, she is authorize to conduct a pat-down of his outer
clothing to detect large weapons such as guns, knives, and clubs.
While the officer may thoroughly explore all areas of the person, she must stay on the
outer surface of the suspects clothing. If she intrudes beneath the surface (i.e., into a
pocket), the frisk will be deemed unreasonable in scope. See Sibron v. New York.

iii. Sibron v. New York (1968): Officers watched Sibron converse with several known drug
addicts over an 8-hour period. After Sibron entered a coffee shop, the police approached
him and told him to come outside. Once they were outside, the officer told him you
know what I am after. When the man reached into his pocket, the officer thrust his hand
into the pocket and extracted packets of heroin.
1.

IV.

Holding: The Court concluded that the officer did not have reasonable grounds
to believe that the Sibron was armed and dangerous. Mere association with
drug addicts did not give rise to a reasonable fear of life or limb on the part of
the police officers. Thus, the Court held that it was unconstitutional for the
officer to stop and frisk Sibron. Furthermore, the Court noted that even if there
had been adequate grounds for detention and frisk, the search conducted by the
officer had exceeded the limited bounds of the pat-down authorized by Terry
(for weapons only).

Exception: Where it is impracticable for the officer to pursue the suspicion by remaining
on the outer surface of the clothing, she may intrude further.
A.

Example: Where an officer reached directly into the waistband of the

suspect seated in a car to remove a weapon, this was held permissible
when the officer had reason to fear for his safety and the suspect
refused to comply with the officers request to get out of the car. Adams
v. Williams.

V.

If the officer feels a weapon during a proper frisk, it is reasonable to reach below the
surface of the suspects clothing to extract it.

VI.

If the officer determines that the suspect is not in possession of a weapon, the frisk must
end. Even if the officer has a reasonable suspicion that an object felt during a frisk is
contraband, the officer may not manipulate it with his fingers to determine its identity.
See Minnesota v. Dickerson.

VII.

Officers may also conduct a limited weapons search of vehicles based on a reasonable
suspicion that a suspect is dangerous and may gain immediate control of weapons from
the vehicle. See Michigan v. Long.
1.

Michigan v. Long (1983): Police saw a car swerve into a ditch and, after
stopping to investigate, made observations that the driver was intoxicated and
noticed that there was a large hunting knife on the floorboard of the car.
A.

Holding: The police were justified in searching the passenger

compartment and frisking the driver, because they were aware of
specific facts that would warrant reasonable officers in believing that
the suspect is dangerous and might gain immediate control of
weapons.
I.

B.

Three Reasons for allowing a Passenger Compartment Search I.

II.
III.

G.

Requisite Showing: Although there is some ambiguity about

what the police must show to justify such a search, most
scholars agree that the police must show that the person is
dangerous and that there is a particularized belief that there is
a weapon in the car.
Concern that the defendant could break away from the police
and enter the car to obtain a weapon.
The police may allow the defendant to re-enter the car to
obtain a drivers license, insurance, etc.
Concern that if the police let the defendant go free, and he has
a weapon in the car, he might retaliate against the police or
others.

2.

Rule: The suspect need not be inside the vehicle at the time of the search.

3.

Limitation: A vehicle weapons search must be restricted to those areas over

which the suspect would generally have immediate control, and that could
contain a weapon. This includes a limited area search of the passenger
compartment and includes the authority to search accessible containers found
within the passenger compartment if they could hold a weapon such as a gun,
club, or knife.

4.

However, most scholars agree that this is another diminution of the 4th
Amendment, as the Court has provided for a wholesale search of the car where
less intrusive measures could be taken.

Protective Sweeps of Homes: Maryland v. Buie

I.

II.

In certain circumstances, arresting officers are empowered to look through or sweep a

home in order to protect themselves against dangers that might arise from others who are
present in the home. Maryland v. Buie (1990)
Showing Needed to Conduct a Private Sweep of a Home
1.

Lawful Arrest - A lawful arrest requires probable cause to arrest, and possibly a
warrant.

2.

The arrest must occur in a home. Arrests outside of the home do not trigger the
protective sweep authorized by Buie.

3.

Officers must also have a reasonable, articulable suspicion that the house is
harboring a person posing a danger to those on the arrest scene.
A.

III.

Scope of Sweep Permitted

1.

IV.

This requires a reasonable belief based on specific and articulable facts

that others are present in the home and that they pose a danger.

Three Limitations on Scope A.

Officers may search only the areas to which their reasonable

suspicion extends. If there are grounds to believe that a dangerous
person is present in a basement, the second floor of the home would be
outside the scope of a proper sweep.

B.

The sweep may not be a full search of the premises, but may extend
only to a cursory inspection of those places where a person may be
found. Thus, officers may not look in spaces too small to harbor a
person and may not continue to examine spaces after ascertaining that
no person is present.

C.

The sweep may last no longer than is necessary to dispel the

reasonable suspicion of danger and in any event no longer than it
takes to complete the arrest and depart the premises. Officers cannot
linger in rooms after determining that no one is present. Moreover, they
cannot conduct a sweep if the justification for doing so arises only after
an unreasonable delay in completing the process of arresting the
individual and leaving the home.

BALANCING APPROACH TO 4TH AMENDMENT REASONABLENESS

A.

Balancing in other contexts: In certain situations, the Court has permitted otherwise
unconstitutional searches based on the special needs inherent in the situation after balancing the
governments and societys interest in the search against the individuals privacy and dignity
rights.

B.

Detention of Individuals Present During Searches of Premises: During the search of a place,
officers may have an interest in investigating the involvement of individuals present at the time by
detaining them.
i. Michigan v. Summers (1981) Rule: An officer is allowed to detain an occupant of
premises while she conducts a search of those premises pursuant to a valid warrant to
search for contraband.

II.

1.

The person detained must be an occupant or resident of the premises searched.

Mere casual visitors or guests may not be detained.

2.

This doctrine does allow an officer to require a resident found outside his home
to enter and remain there during the duration of the search. While it is likely that
the authority to detain occupants does not extend to those found any substantial
distance from their homes, it is unclear where this boundary lies.

3.

Whether occupants are subject to detention during a warrantless search based on

exigency remains an open question - the Summers rule only clearly applies
where the police are searching under a valid search warrant.

4.

It is also uncertain whether the Summers rule would apply where the search
warrant merely authorized a search for evidence as opposed to contraband.

Permissible Scope: Occupants or residents may be properly detained while a search is

being conducted. For that duration, the detention is presumptively reasonable.

Accordingly, if a detention lasts longer than the time it takes for a proper search, it is
unreasonable.
1.

C.

There may be instances where a detention that lasts only as long as the search
could be found to be unreasonable. Perhaps if the premises were so extensive
that a proper search would take a very long time, a detention during that time
would be too prolonged. Likewise, if an individual had a special need to leave
the premises (i.e., for a doctors appointment or other meeting), a court might
find an otherwise reasonable detention to be unreasonable under the
circumstances

Searches of Individuals Present During Searches of Premises: If a valid warrant were to

authorize the search of a particular person for an item properly subject to seizure, a search of that
person would be constitutional. The search of a person found in a particular place pursuant to a
warrant that authorized the search of all occupants or all persons present in the specified place
might also be constitutional. It is arguable, however, that such a warrant would be invalid because
the phrases all occupants or all persons present do not particularly describe the place to
searched. The question raised here is whether a person can ever be subject to search by virtue of a
valid warrant or sufficiently exigent circumstances.
i. Ybarra v. Illinois (1979): The patrons of a tavern were frisked when the police came to
search pursuant to a search warrant. Neither the affidavit in support of the warrant nor the
warrant itself made reference to any unlawful activity of customers in the tavern.
1.

2.

D.

Holding: The frisk of the patrons in the tavern was unlawful. In this situation,
the government action and the fear of safety of the officers did not justify the
interference with personal liberty of the patrons of the bar.
A.

Rule: A customer or client who is present in a commercial

establishment at the time of a warranted search for contraband may not
be searched simply because he is within the confines of the area that
may legitimately be searched. Such an individual is a separate and
distinct place clothed with his own constitutional protection.

B.

Such a search is valid only if officers acquire probable cause to search

the particular person for contraband. Reasonable suspicion will not
justify even a frisk for contraband or drugs. Thus, even if officers have
information that gives rise to a reasonable suspicion that the contraband
that is the object of the warrant will be found on the person, they may
not search or frisk him.

Rationale: When police have a valid warrant for a search of the bar, why are the
other people in the bar not just receptacles where drugs could be hidden? Why
cant the police frisk Ybarra for drugs just as they can search drawers and other
places in the bar?
A.

The 4th Amendment protects people, not places.

B.

Drawers in the bar are different from an individuals pockets, as the 4th
Amendment protects the individuals privacy interests in his person.

C.

Just because there is probable cause to believe there are drugs in the bar
does not tell us anything about the particular patrons in the bar. There is
no probable cause to believe that his privacy interest should be violated
in a search for drugs in the bar.

D.

The majority also says that we are not going to jump to the categorical
assumption that because you are at a site where there are suspected
drugs, you also have drugs on your person or are a dangerous person.

Permanent or Temporary Checkpoints or Roadblocks: Ordinarily, any seizure of a person

requires at least a reasonable suspicion that the particular person is or has been involved in

criminal activity. In certain circumstances, seizures effected at traffic checkpoints are reasonable
even though officers possess no individualized suspicion with respect to the person seized. Such
random seizures at both permanent and temporary checkpoints can be constitutional.
i. Michigan Department of State Police v. Sitz (1990): In this case, the Court engaged in
the balancing test in the context of a fixed sobriety checkpoint.
1.

2.

Balancing Approach: The Court balanced the interference with the individuals
right to travel against the governments interest in stopping drunk driving.
A.

Here, the checkpoints were fixed at specific sites where there was
advance notice to drivers that the checkpoint was ahead.

B.

According to Sitz, the objective magnitude of the intrusion is

measured by the duration of the seizure and the intensity of the
investigation. This is important in weighing the individuals privacy
interest in the situation.

C.

The subjective magnitude of the intrusion is measured by the

checkpoints potential to general fear and surprise in motorists. The
potential to generate such emotions can be diminished by visible signs
of the officers authority, the fact that other motorists are being stopped,
and other restrictions on the officers discretion to choose the methods
used during the stop.

Holding: The stop and temporary seizure of drivers in this case was held to be
constitutional due to the minimal intrusion on drivers as compared to the
weighty interest in stopping drunk driving.
A.

3.

A seizure in such instances is authorized without any individualized

suspicion of a particular person. The person stopped is not reflecting
any particular suspicious conduct, just traveling down a particular street
with a checkpoint.

Dissent: The dissent agreed that the government interest in stopping drunk
driving was important, but argued that there was no evidence that the
checkpoints were actually effective in stopping drunk driving.
A.

Effectiveness is a factor in the reasonableness balance: This points

out the key battleground in this area, because the more effective a
particular solution is, the more likely it will be found to be reasonable.
I.

II.

Note: Relatively small percentages of solvency have been

considered sufficiently effective. In Sitz, a 1.5% drunken
driver arrest rate was considered sufficient to render the
checkpoint constitutional.
The Sitz majority also made clear that courts should hesitate to
invalidate checkpoints based on their assessments of need or
effectiveness. Rather, the decision as to which among
reasonable alternative law enforcement techniques should be
employed to deal with a serious public danger is best entrusted
to the legislature.

ii. City of Indianapolis v. Edmond (2000) Rule: Checkpoints are not allowed to the extent
they are used to ferret out general crime. Rather, there must be a specific showing that the
checkpoint is being used to eliminate a specific evil, such as drunk driving or stopping
the entry of illegal aliens.
E.

Higher Standards of Reasonableness: Unlike the above situations, interest balancing can also
lead to the opposite conclusion - that a particular search or seizure may require more than
probable cause and a search warrant. In these situations, the balancing process can lead to

elevated standards of 4th Amendment reasonableness. The settings in which standards have been
elevated involve more serious intrusions on 4th Amendment privacy or liberty interests than those
occasioned by ordinary searches and seizures.
I.

Use of Deadly Force to Arrest - Tennessee v. Garner (1985)

1.

Rule: The use of deadly force to apprehend a suspect is a 4th Amendment

seizure.
A.

2.

3.

Ordinarily, probable cause to believe that a person has committed a

felony is sufficient to render a full seizure of the person reasonable (i.e.,
arrest). However, because it is more intrusive than an ordinary arrest, a
seizure by means of deadly force is not reasonable every time an officer
has probable cause to believe a suspect has committed a felony. Such
seizures are only reasonable in a limited category of cases.

What are the interests were balancing in such circumstances?

A.

Individuals Interest: In using deadly force, the officer is potentially

depriving the individual of his life, which is the largest degree of
intrusion there is. Furthermore, even if there is probable cause to
believe that a suspect has committed a crime, he is still just a suspect that should not give him the death sentence. According to our CJS, it is
better to let a guilty person go free than to convict an innocent person,
so this is in line with that trend of thought.

B.

Governments Interest: Effective law enforcement, catching those

who might be about to flee, deterrence message to other felons who
might choose to submit to police authority if they knew they could be
shot.

Rule: Deadly force may be used only when it is necessary to apprehend a

limited category of suspects who pose a risk of serious physical harm. In some
cases, a warning is also a prerequisite to the use of deadly force.
A.

Present Threat or Past Offense Involving or Threatening Serious

Physical Harm: An officer may use deadly force to apprehend a
suspect if the suspect threatens the officer with a weapon or where
there is probable cause to believe that he has committed an offense
involving the infliction or threatened infliction of serious physical
harm.
I.

II.

An officer may use deadly force to protect herself against a

threat from a suspect wielding a weapon. Here, the risk of
harm is immediate and apparent to the officer.
An officer may also use deadly force to capture a suspect who
is believed to have committed an offense that caused or
threatened serious physical harm. Here, the suspects past
conduct provides evidence of a future risk of serious physical
harm.
1.

III.

When an officer uses deadly force to capture a

suspect believed to have committed an offense that
caused or threatened serious physical harm, the
officer needs only probable cause to believe that the
suspect committed the qualifying offense.

In any other situation, the officer is not permitted to use

deadly force. For example, the mere fact that a suspect is
fleeing from the police is not sufficient to allow the use of
deadly force.

B.

Necessity to use Deadly Force and the Issuance of a Warning: Even

in situations involving suspects who pose risks of serious physical
harm, deadly force may be used only if necessary to prevent escape
and if, where feasible, some warning has been given.
I.

C.

4.

II.

Because the intrusion on an individual is so serious, deadly

force may only be used as a last resort. An officer must have
no reasonable alternative means of preventing the suspects
escape.

Where the suspect may be threatening a 3rd party with immediate

serious physical harm, it seems unlikely that the use of force in this
situation would be held to be unreasonable.

Deadly Force: Traditionally, deadly force has included more than force that
actually results in death. According to the MPC, deadly force is force which the
actor uses with the purpose of causing or which he knows to create a substantial
risk of causing death or serious bodily harm. Given the language of Garner, it
is likely that the restrictions on the use of force apply whenever an officer uses
deadly force, whether or not he actually inflicts harm.

Intrusions into the Human Body: A search inside a human body - drawing blood or
performing surgery - may be more intrusive than a normal search. Evaluation of the
intrusiveness of such a search must be done on a case-by-case basis, taking into account
the threats to privacy, dignity, and health interests. Searches of human bodies that prove
to be sufficiently more intrusive must satisfy higher than normal 4th Amendment
standards.
1.

2.

Magnitude of the Intrusion: Threats to privacy, dignity, and health A.

The nature of the information that is revealed might be more intimate

or private than an ordinary search situation. The search might disclose
particularly personal facts about an individuals life.

B.

A bodily intrusion can infringe on an individuals dignitary interest in

personal privacy and bodily integrity.

C.

Bodily intrusions might threaten the safety or health, or may endanger

the life of the individual. Procedures that invade a persons body may
well entail risks of physical harm.

Schmerber v. State of California (1966): The Court determined that the drawing
of blood by medical authorities to determine the defendants blood alcohol
content was no more intrusive than an individual search. Because it was based
on probable cause (the defendant driver had just been involved in an accident)
plus the exigency created by the ongoing dissipation of the blood alcohol level,
the blood drawing was reasonable despite the lack of a warrant.
A.

The Court found the exigent circumstances of the dissipating evidence

to be compelling, but also felt that this was a minor intrusion on the
individual - it was done in a hospital by a licensed physician, and the
prick of the needle was a superficial invasion.

B.

After balancing, the scales tipped in favor of the government, and the
intrusion was deemed significantly minor when weighed against the
government interest in obtaining the evidence.

C.

Note: A warrant would have been required if the objective had been to
determine whether a more enduring characteristic was present in the
persons blood, such as to determine his blood type or DNA makeup.

3.

V.

Winston v. Lee (1985): The government wanted a doctor to probe surgically for
a bullet though to be lodged beneath the skin of the defendant. In an adversarial
hearing, the government had shown ample probable cause to believe that the
bullet was present and that it would provide evidence of the suspects
involvement in an attempted robbery.
A.

Holding: The Court concluded that the medical risks, though not
extremely sever, were disputed and uncertain and that the harm to
privacy interest occasioned by drugging the man into a state of
unconsciousness and searching beneath his skin for evidence was
severe. Furthermore, the state could not demonstrate compelling need
for the evidence, because it already had substantial evidence of the
origin of the bullet. Thus, the proposed surgery was deemed
unreasonable.

B.

Rule: Notwithstanding the existence of probable cause, a search for

evidence of a crime may be unjustifiable if it endangers the life or
health of the suspect.

C.

Note: Not all surgeries require more than probable cause, as there are
some surgeries that could be performed if the government showed a
sufficiently compelling need for evidence, and the risk and intrusion for
the individual subjected to the surgery was minimal in comparison.

CONFESSIONS AND DUE PROCESS

A.

Problems with False Confessions: In most criminal cases, there is no hard evidence (i.e., DNA or
other forensic evidence), and the prosecution has to rely on eyewitness testimony and confessions.
Studies suggest that we cannot safely assume that everyone who confesses is guilty of committing
the crime to which they confessed.
I.

II.

B.

Research suggests that jurors place a lot of weight on confessions, which increases the
problem with false confessions and increased convictions of those who are actually
innocent.
Uphoff suggests that the best way to deal with these issues is to videotape any
interrogations and police interactions with suspects. Minnesota and Alabama, as well as
England, requires such practice. Through videotaping, protection is provided to both the
individual and the police.

Due Process Doctrine: The Due Process Clause prohibits confessions coerced by government
officials. The determination of which confessions violate due process must be made based on the
totality of the relevant circumstances - including both the external pressures applied and the
internal weaknesses of the defendant.
I.

Rationale: Coerced confessions are barred because of their potential for unreliability and
their inconsistency with principles of accusatorial fair play and a desire to deter coercive
methods of obtaining confessions.

II.

Rule: The Due Process Clause is not concerned with all questionable confessions. Its sole
concern is involuntary or coerced confessions. The dispositive question is whether an
individual confessed because his will was overborne. See Arizona v. Fulminante.
1.

c.

This is to be determined according to an objective standard - would a

reasonable person in the situation feel compelled to confess. BUT, there is a
subjective twist, because we also look at the internal weaknesses of the
defendant.

Ashcraft v. Tennessee (1944): The defendant was subjected to a 36-hour interrogation with only a
five-minute break, which eventually caused him to confess to killing his wife.

I.

Holding: The Court held that this interrogation was so inherently coercive that it
rendered the confession involuntary, even though no official physically threatening
coercive measures were taken by the police.
1.

II.

d.

Physical torture or brutality create inherent coercion.

B.

Mental or psychological torture can also generate inherent coercion. In

fact, this was the case in Ashcraft.

In some respects, Jackson is right in that every attempt by the police to get a
suspect to talk will be a form of coercion. It is difficult to draw a line at which
forms of coercion we will tolerate and which we will not.

K: The totality of the circumstances of the interrogation must be investigated to

determine whether the defendants will was overborne, which makes the confession
involuntary.

McNabb-Mallory Rule: A device used in federal courts to minimize police interrogations of

suspects. Under this rule, federal officers are required to bring the defendant before a magistrate
within a prompt time period, before questioning the defendant. This is designed to decrease the
likelihood of prolonged interrogations of suspects in custody - confessions obtained during a
period of unnecessary delay in bringing the arrested suspect to a magistrate are automatically
inadmissible. (CB: 497-98)
I.

e.

A.

Jacksons Dissent: Jackson argued that there ought to be a line drawn between violent
tactics used by the police and prolonged interrogations. Here, he argued that the
defendants will was not overborne, as prolonged interrogation is a legitimate tactic used
by the police to get a statement from someone who doesnt want to talk.
1.

III.

Inherent Coerciveness: Some actions in certain settings can generate so much

pressure to confess that they are deemed inherently coercive. Such situations
give rise to an irrebutable presumption of coercion. As a result, examination of
the particular attributes of the individual is unnecessary.

In United States v. Alvarez-Sanchez, the Court held that this does not apply to statements
made by a person who is being held solely on state charges.

Spano v. New York (1959): Two weeks after shooting another bar patron, the 25 year old, foreign
born defendant turned him in to the authorities. He was subjected to questioning from a number of
authority figures, repeatedly was denied access to his attorney, and subjected to questioning from a
false friend on the police force. After a number of attempts to get him to confess, he finally did.
I.

Holding: The Court held that the defendants will was overborne and that the confession
was therefore involuntary.

II.

Rationale: The Court looked at a number of factors that it felt sufficiently coercive to
suppress the defendants confession - the petitioners will was overborne by official
pressure, fatigue, and sympathy falsely aroused after considering all the facts in the postindictment setting. The Court also found it significant that the defendant was foreignborn, had a low level of education, and probably a low I.Q. Finally, the fact that the
defendant had asked for and was denied counsel on a number of occasions served to
render the confession involuntary.

III.

Relevance of Promises and Trickery

1.

Both true and false government promises and deception or trickery by

government agents can be relevant factors in the totality of circumstances that
bear on the involuntariness of a confession. A promise or deception might create
pressure to confess or might weaken the resistance of the suspect.

2.

In Spano, the Court relied in part on representations to the effect that the
suspects telephone call had gotten the officer in trouble, and that his job was in
jeopardy as a result. This deceptive effort at gaining sympathy added to the other

pressures brought to bear on Spano and contributed to a finding that his

confession was involuntary.
3.

Rule: The fact that a promise was used to secure a confession does not
necessarily render a confession involuntary. Even if the government fails to keep
a promise, a confession that results will not always be coerced. The same is true
for trickery. A statement produced by deceptions, misrepresentations, or other
dishonest ploys is not automatically inadmissible under the Due Process Clause.

4.

Brady v. United States (1970): In dicta, the Court indicated that even a mild
promise of leniency may render a confession involuntary because of its
potentially coercive effect.
A.

f.

Colorado v. Connelly (1986): Connelly initiated contact with the police when he approached an
officer on the street, and without any prompting, stated that he had murdered someone and wanted
to talk about it. The officer gave Connelly his Miranda rights and asked him several questions.
Connelly confessed to murdering a young girl in 1982, and told the officer the exact location of
the murder. To the officer, it seemed as though Connelly was acting rationally. After being held
overnight in jail, Connelly became visibly disoriented, and later stated that he was following the
voice of God when he confessed. He moved to suppress his confession, arguing that his psychosis
motivated his confession, rendering it involuntary.
I.

Holding: The Court ruled that the admission of the confession did not violate the Due
Process Clause, because it was not the product of overreaching by the police.
1.

Rule: Coercive police activity is a necessary predicate to the finding that a

confession is not voluntary within the meaning of the Due Process Clause.
A.

2.

While mental condition is surely relevant to an individuals

susceptibility to police coercion, mere examination of the confessants
state of mind can never conclude the due process inquiry.

Rule: Due process is not violated unless the source of coercion is a state agent.
The most outrageous behavior by a private party seeking to secure evidence
against a defendant does not make the evidence inadmissible under the Due
Process Clause.
A.

VI.

The K question is whether a particular promise or trick engendered

pressure that overbore the will of the suspect. A promise or trick is
pertinent only insofar as it forces a confession from a suspect. If it
merely induces the suspect to speak or deceives him into deciding to
speak, the Due Process Clause is not offended.

If the defense can prove that the private party was acting at the behest
of the police or the prosecution as an agent, then the normal rule would
apply.

THE MIRANDA RULE

A.

The Four Miranda Warnings I.

II.

B.

You have the right to remain silent.

Anything you say can and will be used against you in a court of law.

III.

You have the right to an attorney present during any questioning.

IV.

If you cannot afford an attorney, one will be appointed to represent you.

The Effect of Miranda

I.

After Miranda was decided, there was a huge firestorm as to whether this was going to
make any difference in the operation of the criminal justice system. There is still some

debate about how much difference it has made, but most scholars agree that the decision
has made virtually no impact at all.
II.

Almost no defendants actually invoke their right to have counsel appointed.

1.

III.

c.

Even if the defendant says she wants an attorney present during questioning, the
police rarely immediately call a public defender and ask them to come to the
station.

Why is it that so few defendants actually invoke their Miranda rights?

1.

Many defendants talk because they think they can outsmart the police and talk
their way out of trouble.

2.

If a police station is an inherently coercive environment, giving the warnings

will not decrease the coerciveness of that situation. The warnings really do not
lessen the coerciveness, and defendants still feel intimidated and isolated in a
situation where they fell compelled to talk.

3.

People are focused on trying to figure out a way of getting out of the situation.
They do a cost-benefit analysis, and think that talking to the police might get
them out.

4.

Police are good at giving warnings in such a way that the suspect wont actually
understand what is contained therein. The significance of the warnings is never
communicated to them, and they are usually in a state of shock.

Miranda v. Arizona (1966): The Court specifically dealt with the admissibility of statements made
during custodial interrogation under the 5th Amendment privilege not to be compelled to
incriminate oneself.
I.

Rationale: Because compulsion is inherent in custodial interrogation settings,

statements made in these settings cannot truly be the product of free choice. The use of
statements to obtain convictions would violate the constitutional command against selfincrimination.
1.

Prophylactic Rule: Unless adequate protective devices are employed to dispel

the compulsion inherent in custodial settings, statements obtained from suspects
are not admissible at trial. Thus, the various procedural safeguards prescribed
by Miranda are intended to be protective devices. If they are employed,
compulsion is dispelled and any statement obtained is then admissible.

2.

This is interrelated with the fact that the court doesnt know what goes on
behind closed doors - possibility of physical or psychological coercion that the
voluntariness test cannot sort out.
A.

II.

d.

Again, Uphoff thinks that videotaping would be the best solution to this
problem.

Note: If a court concludes that there was a Miranda violation, this does not necessarily
mean that evidence obtained will be excluded. A number of lower courts dont use the
exclusionary rule where there has been a Miranda violation and nothing else (i.e., no
fruit of the poisonous tree exclusion.).
1.

The exclusionary rule only comes into play when there has been a
constitutional violation. Until Dickerson (below), the argument was that
Miranda was simply a prophylactic rule that was not constitutionally mandated.

2.

Compare: If a statement is obtained in violation of the Due Process Clause

(above), all fruit of the poisonous tree will be excluded. This is an important
distinction.

New York v. Quarles (1984) - The Public Safety Exception

I.

Exception to Miranda: Even though a suspect is in custody, if officers wish to ask

questions reasonably prompted by a concern for public safety, they do not have to recite
the Miranda warnings or secure a waiver of the suspects rights. Any statements made in
response to such questions are not subject to exclusion under Miranda.
1.

II.

III.

Objective, reasonable officer standard: An officers subjective motivation is

irrelevant to the applicability of the public safety exception. The exception may apply
even though it is not shown that the officer was in fact motivated by a concern for the
public safety. So long as the questions are reasonably prompted by a public safety
concern, the exception is applicable. Apparently, the relevant question is whether a
reasonable officer could have been motivated to ask questions in order to protect the
public safety.
Nature and Magnitude of the Public Safety Interest: Serious risks to the life or health
of one or more individuals are certainly sufficient. Whether other sorts of potential harm
suffice and what those harms might be are unanswered questions.
1.

VII.

In fact, it is unclear why the Court chose Quarles to create this exception. In
Quarles, the police claimed they were concerned about a gun in the parking lot
of a grocery store. It was late at night and the store was virtually empty.

IV.

Immediate and Future Threats to Public Safety: If the threat of harm is immediate and
can be prevented only by swift action, the exception is clearly applicable. If there is no
need to act quickly because the threatened harm will not occur until some future time, it
is uncertain whether the exception applies. Arguably, the rationale behind the exception
supports application of the exception even when the threatened harm is not immediate.

V.

The exception only clearly applies to a failure to give Miranda warnings in the first place,
not in situations where the defendant has already invoked his rights. Furthermore, in
cases of actual compulsion, the exception has no applicability. The privilege against
compulsory self-incrimination commands in absolute terms that no person shall be
compelled to be a witness against himself.

VI.

e.

Rationale: The delivery of Miranda warnings in public safety situations could

deter a suspect from speaking, thereby frustrating the interest in ensuring public
safety.

Where the prosecution argues that the exception to protect the defendant himself,
courts have split on the issue.
1.

One court has extended the exception because of concerns about protecting the
individual defendant.

2.

Other courts have refused to extend the exception, arguing that the defendant is
the person in the best position to choose whether he wants help after being read
his Miranda rights.

3.

You need to balance the individuals interest against self-incrimination against

the individuals safety.

Dickerson v. United States (2000): In this case, the Court stated that Miranda is constitutionally
based, but did not suggest the rationale behind that conclusion. Thus, the Court held that Congress
cannot legislatively supercede Miranda given its constitutional basis. The Court also refused to
overrule Miranda despite arguments that it has not changed much in the criminal justice system.

CUSTODY
a.

Miranda applies to all crimes: A suspect is entitled to the procedural safeguards of Miranda,
regardless of the nature or severity of the offense of which he is suspected or for which he was
arrested. See Berkemer v. McCarty.

b.

Berkemer v. McCarty (1984): The defendant was pulled over after an officer saw him swerving in
and out of traffic in his car. The officer noticed that he was having trouble standing, and gave him

a field sobriety test. The defendant did not pass, he made some incriminating statements about
smoking weed and drinking, and the officer placed him under arrest and took him to the station
house. At no point were Miranda warnings given to the defendant.
I.

Holding: The incriminating statements made by the defendant were properly admitted at
trial because the interrogation was not custodial.
1.

Custody Rule: Custody requires a significant deprivation of physical freedom.

Moreover, a person is in custody only if she is subjected to either formal arrest
or its functional equivalent.
A.

2.

A formal arrest occurs when a person is explicitly told that she is being placed
under arrest. The functional equivalent of a formal arrest occurs when a
suspects freedom of action is curtailed to a degree associated with a formal
arrest or when he is subjected to restraints comparable to those associated with
a formal arrest. This determination must be made from the standpoint of a
reasonable person in the suspects position.

c.

Stansbury v. California (1994) Rule: 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. Likewise, the subjective belief of the suspect has no place in the analysis of
whether is in custody.

d.

Oregon v. Mathiason (1977): When a suspect comes voluntarily to the police station in response
to an invitation by the police, he will not necessarily be in custody.
I.

II.

e.
VIII.

A lesser infringement on a suspects liberty, such as a mere traffic stop

or Terry-type detention does not constitute custody.

Facts: The defendant, a parolee, came to the police station after the police asked him (via
phone) to come down so that they could discuss something. When the defendant came
down to the station, he was told that he was no under arrest. Later, the officer falsely told
the suspect that his fingerprints had been found at a burglary scene; the defendant then
confessed.
Holding: The Court held that Miranda warnings were not required because the suspect
had come to the station voluntarily, was informed that he was not under arrest, and had
not been restricted in his freedom to depart.

Hayes v. Florida & Dunaway v. New York suggest that if the suspect is brought to the police
station by officers without his consent, he will be in custody within the meaning of Berkemer.

INTERROGATION
A.

Introduction: The Miranda protections are triggered by interrogation of a suspect, defined as

questioning initiated by law enforcement officers. Statements volunteered by the defendant with
no such questioning are not covered by the Miranda doctrine.

b.

Rhode Island v. Innis (1980): Two officers, while transporting the suspect to the police station,
engaged in a conversation in which they discussed the compelling need to locate a shotgun
believed to have been the weapon used by the suspect in a recent robbery/murder. Referring to a
nearby school, one officer expressed concern that one of the children might find the weapon and
hurt himself. The suspect interrupted the officers conversation and stated that he would show
them where the gun was located, which he proceeded to do.
I.

Holding: The Court held that the defendants statement was outside the scope of
Miranda because the officers could not reasonably have expected their conversation to
elicit an incriminating statement from Innis.

II.

Rule: Interrogation includes 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. This, too, is an
objective standard.

1.

Relevant Factors in this Inquiry:

A.

The officers intent to elicit an incriminating statement - though

important, this factor is not dispositive. An officers intent to elicit does
not necessarily establish that the officer should have known that her
actions were reasonably likely to succeed.

B.

Police knowledge of the unusual susceptibility of a suspect to a

particular form of persuasion.
I.

C.

c.

II.

Holding: The Miranda protections did not apply, because the defendant did not perceive
himself as being under interrogation, and thus, did not feel the coercive pressures that
trigger the protections.
1.

The essential ingredients of a police dominated atmosphere and compulsion

are not present when an incarcerated person speaks freely to someone that he
believes to be a fellow inmate.

2.

Rule: Miranda safeguards are triggered only when interrogation is conducted

by a state agent who is known to the suspect to be a state agent.

Note: This does NOT mean that police agents are free to do whatever they want without
concern for the Constitution. There are still 2 other constitutional concerns that affect
activities by undercover agents posing as fellow inmates 1.

6th Amendment: If the defendant had already been charged with a crime, this
would be a violation of the defendants 6th Amendment right to counsel. (See
Below)

2.

Due Process: If an undercover state agent uses actual coercion to obtain a

statement from a suspect, that statement is barred by both the Due Process
Clause and the privilege against compulsory self-incrimination. See Arizona v.
Fulminante (holding that the suspects incriminating statement was involuntary,
as he felt compelled to talk out of fear for his own physical safety).

Duckworth v. Eagen (1989) - Form of Miranda Warnings

I.

Facts: A stationhouse officer told the defendant that he had a right to speak with an
attorney before and during questioning, and that he had the right to the advice and
presence of a lawyer even if he could not afford to hire one. Reading from a form, the
officer added, we have no way of giving a lawyer, but one will be appointed for you, if
you wish, if and when you go to court.

II.

Holding: In a 5-4 opinion, a majority of the Court held that this was a sufficient warning
under Miranda. Miranda does not require that attorneys be producible on call, but only
that the suspect be informed that he has the right to an attorney before and during
questioning and that an attorney would be appointed for him if he could not afford one.
1.

IX.

The probability that the police conduct will lead to an incriminating

statement by the suspect.

Illinois v. Perkins (1990): An undercover agent was posing as a fellow prisoner in the defendants
cell in order to elicit an incriminating statement, and this ploy did get the defendant to make
incriminating statements.
I.

d.

Individual traits that officers neither know of nor should know

of are not relevant factor in this consideration.

WAIVER

Uphoff thinks this is a troubling result that undercuts the 4th Miranda warning
requirement. However, this is a product of the Courts underlying dislike for
Miranda in the first place.

A.

Introduction: Miranda held that if a statement is obtained from a suspect during custodial
interrogation following provision of the required warnings, the statement may be admitted into
evidence only if the prosecution demonstrates that the suspect knowingly, intelligently, and
voluntarily waived his privilege against self-incrimination or the right to counsel.
I.

Rule: A valid waiver will not be presumed from the silence of the accused after the
warnings are given.

II.

Knowing and Intelligent: The focus is on whether the waiver was made with an
awareness of the rights being abandoned and the consequences of abandoning those
rights.

III.

b.

Voluntary: The waiver must be the product of a free and deliberate choice on the part
of the suspect, rather than the result of intimidation, coercion, or deception.

North Carolina v. Butler (1979): Butler was administered the Miranda warnings and responded
that he understood these rights. He refused to sign a written waiver form presented to him, but
nevertheless agreed to talk about the robbery he was being held for and proceeded to admit
participation in it. When his statement was offered against him at trial, Butler claimed that the
statement could not be used, as he had not expressly waived his rights.
I.

Holding: A waiver may be found in the absence of an express statement if the suspects
words and actions implicitly constitute a decision to forego his rights.
1.

Rule: The defendants silence coupled with an understanding of his rights and a
course of conduct indicating waiver may suffice. Here, the burden is on the
prosecution to prove that the defendant impliedly waived his rights.
A.

2.

II.

c.

Mere silence on the part of the defendant is NOT ENOUGH to

effectuate a valid waiver.

The Court directed trial judges to look at the particular facts and circumstances
of the case, including the background, experience, and conduct of the accused.
Totality of the circumstances.

Brennans Dissent: He argued that it would be easier if we just required an express

waiver in all cases. The suspect should have to sign a written waiver or give an oral
statement that he is, in fact, waiving his rights. This would eliminate unnecessary
litigation on the issue.

Colorado v. Spring (1987): Spring was arrested by federal agents in Missouri on a firearms
charge, read his Miranda warnings, and signed a written waiver form. The focus of the
interrogation changed from the firearms transaction to an unresolved murder in Colorado to which
Spring ultimately confessed. Spring moved to suppress the confession, arguing that he could not
have knowingly waived his right to remain silent when he was unaware that he would be
questioned about an unrelated crime.
I.

Holding: The Court rejected Springs defense, holding that the suspect need not be aware
in advance of all the possible subjects of the interrogation in order to make a valid waiver
of his rights.
1.

II.

Note: The information withheld by the police might go to the wisdom of the
waiver, but not to its essentially voluntary and knowing nature.

Marshalls Dissent: Marshall argued that the defendant clearly would not have talked to
the police without a lawyer if he realized that they intended to question him about a
murder charge. As such, the police were essentially tricking him into confessing.
1.

Majoritys Response: The suspect may be surprised at the change in

questioning, but as long as he knows that he can cut off questioning whenever he
wants, his rights are not violated. In this case, the police would have had to
cease questioning if the defendant told them that he did not want to discuss the
Colorado murder.

2.
III.

d.

II.

Holding: The polices actions did not undercut the validity of the suspects written
waiver of his rights.
1.

Events occurring outside the presence of the suspect, and entirely unknown to
him, surely can have no bearing on the capacity to comprehend and knowingly
relinquish a constitutional right.

2.

Once it is determined that a suspects decision to waive his rights was not
coerced, that he knew he could invoke his rights thereafter at any time, and that
he was aware of the states intention to use his statements against him at trial,
this completes the analysis and the waiver is valid as a matter of law.

3.

K: There is a distinction between official police trickery and the failure to

disclose. This case proves that a failure to disclose information to the suspect
will not undermine the validity of the suspects waiver. However, police trickery
might.

Note: A number of state courts have rejected Moran, and have disallowed confessions
where the police deceived the suspects attorney.

Connecticut v. Barrett Rule: To validly waive Mirandas protections, a suspect needs no

knowledge other than the matters contained in the basic Miranda warnings to knowingly waive
his rights. A suspects ignorance of other matters, including the full consequences of his
decisions, will not render his waiver insufficiently knowing.
I.

X.

Note: Normally, proof that a suspect was aware of the minimum facts needed for a
knowing waiver is supplied by the recitation of adequate Miranda warnings, as this is all
that the suspect must be aware of. In a case where a suspect could not understand English
or had mental impairments that precluded a basic understanding of the content of the
warnings, a waiver should probably be considered insufficiently knowing. Even if an
officer was not aware of the suspects limitations, the actual lack of the minimal
knowledge needed should render the suspects waiver invalid.

Moran v. Burbine (1986): The police failed to inform the suspect that an attorney had been
retained by a relative and was trying to see him at the police station. The police had assured the
attorney that the suspect would not be questioned until the next day, but proceeded to interrogate
him.
I.

e.

Rule: Failure to inform the suspect about all of the crimes he is going to be
questioned about does not amount to police trickery.

Note: The fact that a suspects decision to forego Miranda protections is unwise, contrary
to the suspects best interests, or illogical is irrelevant and does not render the waiver
invalid.

INVOCATION OF MIRANDA RIGHTS: 5TH AMENDMENT INVOCATIONS

A.

Introduction: Miranda mandates that if an individual [under interrogation] indicates in any

manner, at any time prior to or during questioning, that he wishes to maintain silent, custodial
interrogation must cease. Likewise, if [upon being administered the Miranda warnings] the
suspect states that he wants the assistance of counsel, then interrogation must cease until an
attorney is present.

INVOCATION OF THE RIGHT TO SILENCE

b.

Michigan v. Mosley (1975): Mosley was arrested for robbery, read his Miranda rights, and
declined questioning by the police. Two hours later, another officer gave him a fresh set of
Miranda warnings and Mosley agreed to talk about an unrelated murder.
I.

Holding: The defendants right to cut off questioning had been scrupulously honored,
because the police had immediately ceased questioning when he exercised his right to
remain silent. Police only resumed questioning after a significant passage of time by a

different officer about a different crime in a different location in the jail with a fresh set of
warnings.
II.

Rule: If the police scrupulously honor the invocation of the right to remain silent and
then obtain a valid waiver, statements made in response to custodial interrogation will be
admissible.

III.

Proof: If the prosecution seeks to introduce a statement from a suspect who has initially
invoked his right to remain silent, it must be demonstrated that:

IV.

V.

VI.

1.

His right to remain silent, once invoked, was scrupulously honored, AND

2.

A knowing, intelligent, and voluntary waiver of his invocation subsequently

occurred.

Where it is shown that the police failed to cease interrogation immediately, or engaged in
repeated efforts to get the suspect to change his mind, his right to cut off questioning will
be considered not to have been honored, and his resulting statements will be deemed
inadmissible.
This is a very fact-specific inquiry. Although no one factor is determinative, the courts
consider a number of factors, including:
1.

The amount of time that has elapsed between interrogations.

2.

The provision of a fresh set of warnings.

3.

The subject matter and scope of the second interrogation.

4.

The officers zealousness in attempting to pursue the questioning after the

suspect has invoked his right to silence.

Whites Concurrence: White argued that the focus ought to be on the voluntariness of
the defendants second waiver. If that waiver is voluntary, there should be no further
inquiry into whether his rights were scrupulously honored.

INVOCATION OF THE RIGHT TO COUNSEL

c.

Edwards v. Arizona (1981): Police officers questioning the defendant ceased interrogation after he
asserted his right to counsel. He was taken to a jail cell where, the following morning, two other
detectives sought to talk to him, but he refused. A guard then told Edwards that he had to talk to
the detectives, and took him to meet them. The detectives read Edwards his rights again, and then
played a taped statement of an alleged accomplice who had implicated him in a crime. He then
indicated a willingness to talk to the detectives, and later made incriminating statements.
I.

II.

III.

IV.

Holding: The Court concluded that the playing of the tape constituted the functional
equivalent of interrogation under Innis, and ruled that his incriminating statement was
inadmissible.
Rule: After the suspect invokes his right to counsel, the police can only resume
interrogation in the absence of counsel if the suspect himself initiates such
communication with the police.
Proof: If the prosecution seeks to introduce a statement from a suspect who has invoked
his right to counsel, it must be demonstrated that:
1.

Counsel was made available to him, OR

2.

The suspect himself initiated the further communication, AND

3.

That a knowing, intelligent, and voluntary waiver subsequently occurred.

If the authorities initiate the communications, any statements that are the product of the
custodial interrogation will be deemed inadmissible. Even if the suspect gives what

would otherwise qualify as a valid waiver in such situations, the waiver will be presumed
invalid.
d.

Oregon v. Bradshaw (1983) Rule: Initiation by a suspect occurs only if the suspect demonstrates
a desire to open up a more generalized discussion relating directly or indirectly to the
investigation.
I.
II.

e.

g.

In Bradshaw, the defendant had invoked his right to counsel and later approached the
officers, asking whats going to happen to me now? The Court held that this was an
initiation on the part of the defendant such that the police were then free to seek a waiver
of the defendants right to counsel.

Davis v. United States (1994) Rule: A suspects request for counsel must be clear and
unambiguous.
I.

Rule: The suspects ambiguous or equivocal reference to an attorney has no legal effect,
and poses no additional impediments to custodial interrogation by the police.

II.

Rule: Police officers are under no affirmative obligation to clarify an ambiguous request
for counsel, and do not have to stop questioning where such request is unclear.

III.

f.

Initiation occurs when a suspect evinces a willingness and a desire for a generalized
discussion about the investigation.

Objective Standard: A suspect must articulate his desire to have counsel present with
sufficient clarity that a reasonable police officer in the circumstances would understand
the statement to be a request for an attorney.

Minnick v. Mississippi (1990) Rule: Interrogation may continue only if an attorney is present or if
the suspect initiates further communication with the authorities.
I.

Rule: Presence means presence at the interrogation. The fact that a suspect has
consulted with an attorney following a request for counsel is not a basis for permitting the
authorities to initiate further interrogation. Only the presence of counsel at the subsequent
interrogation will suffice.

II.

Rationale: A consultation with counsel is not enough to remove the pressures inherent to
custodial interrogation. The need for counsel to protect the 5th Amendment privilege
comprehends not only a right to consult with counsel prior to questioning, but also to
have counsel present during any questioning if the defendant so desires.

Smith v. Illinois Rule: Once a suspect invokes his right to counsel with sufficient clarity under
Davis, his post-request responses to further interrogation may not be used to cast retrospective
doubt on the clarity of the initial request.

h. Arizona v. Roberson Rule: When the right to counsel is asserted an officials initiate further
communication with the suspect, the fact that the later interrogation was conducted by a different
officer is irrelevant. The fact that the interrogating officer was unaware of the suspects request for
counsel is also irrelevant.
I.
II.

i.

XI.

Rule: Officials have the responsibility to insure that they learn of requests for counsel
before interrogating a suspect.
Rule: The fact that the topic of a later interrogation is a different offense from the one
that was the subject of an earlier interrogation usually does not matter. Unless the suspect
makes it clear that her desire for counsel is offense specific, the presumption is that
she desires assistance of counsel for all custodial interrogations, regardless of the
specific offense.

Fare v. Michael C. Rule: A suspects request to have the assistance or presence of any individual
other than an attorney does not affect this issue. It raises no additional safeguards against custodial
interrogation and does not automatically constitute an invocation of the right to remain silent.

CONFESSIONS AND THE RIGHT TO COUNSEL: 6TH AMENDMENT PROTECTIONS

A.

Introduction: The 6th Amendment guarantees the accused the right of assistance of counsel in his
defense Although this guarantee was originally a right to assistance at trial, it has been extended
to certain pretrial stages of the criminal process.
I.

II.

b.

Note: Always look first to see whether its a pre-indictment or post-indictment situation.
The rules below only apply in post-indictment situations.

Massiah v. United States (1964): The prosecution admitted into evidence incriminating statements
that Massiah had made to a co-defendant, Colson. Unbeknownst to Massiah, Colson was
cooperating with the government and had initiated the conversation at the request of federal
agents, who recorded the conversation. The conversation occurred after both men had been
indicted, retained counsel, pled guilty, and were released on bail.
I.

II.

c.

Purpose of the Right to Assistance of Counsel: The American criminal justice system is
adversarial in nature. Fundamental fairness requires, among other things, rough equality
between the two sides. Accordingly, the assistance of counsel is indispensable to the fair
administration of the adversary system, because counsel is essential to ensuring this
equality. Without the assistance of counsel, the state could use its superior strength to
overpower to accused.

Holding: Once adversary judicial proceedings have commenced against an individual,

governmental efforts to deliberately elicit statements from him in the absence of his
attorney violate the 6th Amendment, whether done intentionally or surreptitiously.
1.

Deliberately Elicit: The government agent must actively elicit incriminating

statements. The right to counsel does not apply unless a government agent takes
some action, beyond merely listening, that was designed deliberately to elicit
incriminating remarks. The mere passive reception of information cannot qualify
as a deliberate elicitation of incriminating statements.

2.

Affirmative, direct questioning will qualify as deliberate elicitation, but is not

necessary. Merely engaging in conversation with an accused or having some
conversations with an accused satisfies the deliberate elicitation requirement. In
addition, the fact that the accused was first to raise the subject of the crime under
investigation, or who was the one who instigated the meeting with the
government is irrelevant. See Maine v. Moulton.

Rationale: The right to assistance of counsel at trial would be rendered meaningless if

the prosecution could obtain incriminating statements from an uncounseled defendant
prior to trial.
1.

After the defendant has been indicted, if the government wants to interrogate the
defendant, it must go through the defendants retained counsel.

2.

Compare Hoffa: In Hoffa, the suspect was wiretapped by the government, and
the Court allowed this evidence as legitimate. The difference in that case was
that the government had not yet formally filed charges against the suspect,
whereas in Massiah, the defendant had already been indicted, and the adversary
system had been put into play.

Brewer v. Williams (1977): Williams, a suspect in a child murder in Des Moines, surrendered to
the police in Davenport, following the issuance of a warrant for his arrest. He spoke by telephone
to an attorney in Des Moines, and was advised not to make any statements to the police. After
Williams was booked, arraigned, and advised of his Miranda rights, he was transported to Des
Moines, 160 miles away. The police officers who escorted him expressly promised his attorney
that he would not be questioned in route. During the trip, however, one of the officers gave a
Christian burial speech that prompted Williams to lead the police to the victim and make other
incriminating statements.

I.

d.

United States v. Henry (1980): The FBI arranged to have Nichols, a paid informant, placed in
Henrys cell as a cellmate. Although the agents instructed Nichols not to question Henry about his
crime, he was told to report incriminating statements to them (for payment), which he did.
I.

II.

e.

Holding: The government had intentionally set up this situation likely to induce Henry to
make incriminating statements, and thus, violated the 6th Amendment.
1.

K: Nichols was determined to be more than just a passive listener, and he was
paid for the information that he gave to the FBI. In essence, he was no more than
a paid agent of the government. The fact that he was paid is a factor that courts
tend to credit heavily in making the determination.

2.

Rule: To trigger the right to counsel, the individual engaging in the elicitation
must be working for (or as an agent of) the government. The individual does not
have to be an official employee, nor does she have to be compensated for her
work.

Note: The 6th Amendment does not apply to situations in which an informant goes to the
police on his own recognizance after learning incriminating information from a fellow
inmate.

Kuhlman v. Wilson (1986): An informant was placed in the defendants cell, but did nothing to
stimulate the conversation in which the defendant made incriminating statements.
I.

II.

XII.

Holding: Williams had been denied his 6th Amendment right to counsel when, after the
initiation of judicial proceedings (arraignment), the police deliberately elicited
information from him without affording him the opportunity to consult with his attorney.

Holding: Because the informant was merely a passive listener, the government did not
deliberately elicit information from the defendant. Thus, there was no violation of the
defendants 6th Amendment right to counsel.
Note: The defendant cannot make a valid 6th Amendment violation argument simply by
showing that an informant, either through prior arrangement or voluntarily, reported his
statements to the police. Rather, it must be shown that the police and the informant took
deliberate action (beyond merely establishing a passive listening post) that was
designed to elicit incriminating statements from the defendant.

IDENTIFICATION AND THE RIGHT TO COUNSEL

A.

Introduction: Eyewitness fallibility and false identifications account for most innocent
convictions as a result of mistaken identifications. Accordingly, the defendants 6th Amendment
right to counsel attaches to such procedures, as this is considered a critical stage in the trial
preparation. The defendant is in no position to protect herself at this stage in the adversarial
process and needs counsel to aid the defendant and be a neutral observer in the identification
process.
I.

B.

Humans are not perfect recorders of information and events.

II.

Circumstances surrounding the crime itself have an effect on witnesses, as they may have
been focused on something else at the time of the event, rather than the person actually
committing the crime.

III.

There is also a problem with racial profiling, because if an eyewitness sees a person of a
particular race commit the crime, it will be easier to pick any person of that race out of a
line-up, regardless of whether it is the actual perpetrator of the crime.

Courts have struggled with a number of ways in which to deal with the problems associated with
eyewitness identifications I.

For a while, the courts relied on cross-examination to reveal problematic identifications.

1.

II.

It has become more common for expert witnesses to testify as to the circumstances that
might affect the accuracy of an identification. This is used as a basis to try to educate lay
individuals on the problems inherent with this process.
1.

III.

IV.

C.

1.

The more positive the eyewitness is in the identification, the more likely it is
that the members of the jury with believe him.

2.

Problem: Research also shows that there is virtually no correlation between the
confidence that the eyewitness asserts in the identification and the accuracy of
that identification.

Some courts have tried to use tailored jury instructions to inform jurors there might be
reasons to be suspicious of an eyewitness identification.
Problem: Jurors often discount jury instructions as given to them.

The End Solution: Because of these systemic problems, the Court in Wade held that we
must protect against subjectivity in the identification process by providing defendants
with counsel during a live line-up.

There are 2 constitutional sources to protect the suspect in the identification process I.
II.

d.

Problem: Jury researchers have found that lay people, and indeed many judges,
place a high degree of confidence in eyewitness identifications, even where such
confidence may be misplaced.

Research also shows that jurors place tremendous weight on an eyewitness who states
with confidence that they believe the defendant is the perpetrator of the crime.

1.
V.

Problem: The research conducted on this issue suggests that it is difficult to

effectively cross-examine a witness who honestly, but mistakenly, believes they
have picked the right person out of a line-up.

6th Amendment right to counsel - The defendant has the right to have counsel present at
lineups after the initiation of formal criminal proceedings.
Due Process - Some identifications may be so unnecessarily suggestive and conducive to
mistaken identifications that the defendant is denied due process of law.

Wade v. United States (1967): The FBI conducted a line-up without notifying the defendants
attorney. The defendant was picked out of this line-up, and later complained that his lawyer was
not present when the line-up was conducted.
I.

II.

Holding: The procedure was in violation of the 6th Amendment rights of the defendant, as
this is considered a critical stage of the adversarial process in which the defendant
needs effective assistance of counsel.
The Court analyzed this case by looking at it both under the 5th and 6th Amendments.
1.

2.

Under the 5th Amendment, the Court held that the line-up did not violate the
defendants right against self-incrimination.
A.

The 5th Amendment does not protect against the use of some physical
characteristics of the defendant. X/A Schmerber where the Court held
that the police could draw the defendants blood to obtain evidence.

B.

The physical characteristics of the defendant are allowed, because they

are not testimonial in nature. Such characteristics are more in line with
something that the defendant willingly exposes to the public.

C.

Rule: The contents of a defendants statement are protected by the 5th

Amendment, but not the defendants voice.

Under the 6th Amendment, the Court held that the defendants right to assistance
of counsel was violated because counsel was not present during the live line-up.

e.

The Court essentially equated a pre-trial identification proceeding with

the defendant right to assistance of counsel at trial. If we allow live
line-up identification procedures and the defendants lawyer is not
present, there is no effective way for the lawyer to undue that which
was done before trial.

B.

As this is a critical stage, the defendant is entitled to the presence and

assistance of counsel. Even if the lawyer does not actively participate
in the line-up procedure, he can passively observe what occurs and later
use such evidence at trial in defense of the defendant.

Kirby v. Illinois (1972) Rule: Counsel is not required at a pre-indictment line-up.

I.

Any pre-trial confrontation is still scrutinized under the 5th and 14th Amendments, which
forbid a line-up that is unnecessarily suggestive and conducive to irreparable mistakes.

II.

Note: Uphoff thinks this is dumb, because suggestive procedures in line-ups are just as
problematic in pre-indictment procedures. It poses the same risk to the defendant as in a
post-indictment line-up in the long run.

III.

f.

A.

1.

After this line of cases, the police will simply delay the charging process and do
a line-up before the indictment.

2.

Better Solvency: Use the DOJs set of guidelines and procedures to be used by
law enforcement officers. These guidelines are aimed at making procedures
more reliable and at minimizing the dangers of suggestibility that occur when
poor police procedures are employed. Currently, New Jersey has adopted these
guidelines and other states are considering them.

Brennans Dissent: The witness is not likely to go back on his previous identification
made during a line-up later at trial. If suggestive procedures are used by the police at this
stage, this may cause irreparable harm to the defendant in the long-run.

United States v. Ash (1973) Rule: Counsel is not required at a photographic array identification.
I.

II.

III.

The Court stated that a pretrial display of photographs for the purpose of identifying the
accused does not constitute a critical stage of the prosecution at which the accused is
constitutionally entitled to the presence of counsel.
Rationale:
1.

There is no opportunity to take advantage of the accused during a photo array, as

the defendant is not present at this process. Because the defendant is not present,
the attorney does not need to be present either.

2.

There is less difficulty in reconstructing what went on at a photographic array, as

the evidence is readily available for viewing by the defense attorney.

3.

Uphoff thinks this is more a problem of expense, as it is costly to provide

counsel for all line-ups.

Brennans Dissent:
1.

It does not matter that the defendant is not present when a photo array is
conducted; it only matters that his interests are infringed upon.

2.

There is much more room for suggestibility with photographs than with live
line-ups.

3.

We need counsel present at such line-ups to ensure that the process is not overly
suggestive or violative of the defendants rights. Because no one is present at a
photo array, there will be no one to complain about suggestive procedures used
by the police.

IV.

G.

H.

Reality: Even though live line-ups are more accurate than photo arrays, because such
line-ups require the presence of the defendants attorney, police are more likely to
conduct a photo array.

The Department of Justice Proposed Guidelines

I.

The person conducting the line-up should not know the identity of the actual suspect,
because if the person knows the suspect, it is more likely that he will give off suggestive
signals.

II.

The eyewitness should be told that the suspect might, or might not, be present in the lineup. Thus, the eyewitness should not feel compelled to make an identification if she
doesnt actually see the perpetrator.
1.

Double-blind line-ups: Conduct one line-up with the suspect and one without
and see if the eyewitness can pick out the right person.

2.

Research shows that the witness will pick out the person that looks most like
the perpetrator. This person may or may not be the actual perpetrator. If the
witness feels pressured to pick someone out, this is the risk that is run.

III.

The suspect should not stand out in any way at any line-up. There should be absolutely
not distracters that point-out this person to the eyewitness.

IV.

Obtain a confidence statement at the time of the identification attesting to how confident
the witness is in her initial identification.

Suppressing the In-Court Identification

I.

II.
III.

Although the out-of-court identification may be suppressed on account of constitutional

violations of the 6th Amendment, there is a separate issue as to whether the witness will
be allowed to make an in-court identification of the defendant.
The Court will allow the witness to make an in-court identification if there is an
independent source for such identification.
Whites Dissent in Wade: It will be almost impossible for the prosecution to show that
there is an independent source, as research shows that witnesses have a difficult time
erasing their identification from the out-of-court line-up process. As such, it should be
extremely difficult for the prosecution to use this witness at trial.
1.

Reality: After pre-trial preparation, the government will put the witness on the
stand and the witness will say that they can make the ID based on their
independent recollection of the defendant from the scene of the crime. The trial
court has to make a finding of fact on this issue, but in 99% of cases will allow
the government to use the witness at trial and allow the in-court identification of
the defendant.

2.

Because of the government can usually use an in-court identification, there is

virtually no motivation for a defense attorney to move to suppress the out-ofcourt identification testimony.
A.

The main thing that will hurt a defendant is the in-court identification
by the eyewitness, as research shows that juries place a lot of weight in
such IDs.

B.

The only way to combat the in-court ID is to show improper procedure,

coercion, or suggestiveness at the out-of-court ID line-up and argue that
this subsequently tainted the in-court ID by the eyewitness. The defense
attorney wants to argue that there is no real independent basis for
assessing the reliability of this testimony, because the eyewitnesss
memory has been tainted by the out-of-court procedures employed by
the government. In other words, the defense counsel wants to make the

jury understand the original context of the line-up as suggestive and

improper.
XIII.

DUE PROCESS AND THE RIGHT TO COUNSEL

A.

Introduction: Utilizing a totality of the circumstances approach, the Court must determine
whether the procedures employed were:
I.
II.

b.

Unnecessarily suggestive, and

Likely to lead to mistaken identifications
1.

This has become more important recently given the concern about reliability of
identifications.

2.

In reality, a Court rarely finds a violation on due process grounds.

Stovall v. Denno (1967): Stovall was arrested and arraigned after a doctor was stabbed to death
and his wife was critically wounded. After he was arraigned, the officers took him to the wifes
hospital room without counsel, because the wife couldnt be transported to the station for a line-up
and the officers were concerned that she would die before she got a chance to identify the
defendant. The defendant was the only black person in the room, and he was handcuffed to an
officer. The officer asked if this was the guy, and the wife said yes. The wife testified at trial that
this was the man, and made an in-court identification of the defendant and also testified that she
had made an out-of-court identification of the defendant.
I.
II.

Issue: Whether the defendants due process rights had been violated by this
identification testimony.
Holding: Although the Court condemned such one-on-one identifications as being
suggestive and unreliable, the Court held that the defendants due process rights were not
violated.
1.

III.

c.

The Court used a balancing test (per se test) to come to this determination.
Although this was a suggestive procedure, given the emergency situation that
confronted the police, they had no other way to confirm or deny that this was the
assailant. If they had waited and the woman had died, they would have no way
evidence concerning the identity of the perpetrator. Therefore, necessity dictated
that they engage in this process in this particular situation.

Focus: The Stovall test focuses on whether the suggestive procedures used are really
conducive to irreparable misidentification. If the procedures are so unduly suggestive that
they are likely to create a misidentification, they can be suppressed.
1.

Rule: An identification procedure threatens due process if it is unnecessarily

suggestive and conducive to irreparable mistaken identification. If a process
either is not suggestive or is suggestive only in ways that are necessary, it cannot
violate due process.

2.

Simmons v. United States: There must be sufficient suggestion to give rise to a

very substantial likelihood of misidentification.

Manson v. Braithwaite (1977):

I.

Rule: The government does not violate due process when it subjects a suspect to an
unnecessarily suggestive ID method and secures an identification from a witness. A
violation of fundamental fairness can occur only when the suggested identification is
used at trial to obtain a conviction.
1.

Suggestive identification processes are constitutionally questionable because

they give rise to substantial likelihoods of irreparable misidentification. They
create the risk that an eyewitness will erroneously identify a person at the ID
session and that this error will lead the same witness to later mistakenly ID the
defendant at trial.

A.

2.

II.

Both an initial identification and any subsequent identification are

presumptively inadmissible at trial.

Per Manson, this is a rebuttable presumption. If the government can establish

the identifications reliability (either the initial ID or subsequent IDs), it can be
used at trial. To overcome the presumption of inadmissibility, the government
has the burden of proving reliability by a preponderance of the evidence.

Here the Court shifted to a totality of the circumstances approach to see if there is a
substantial likelihood of misidentification due to unreliability of the original
identification by the eyewitness. It focused on the factors that tend to show or disprove
reliability in the identification process. These factors include 1.

The opportunity of the witness to view the criminal at the time of the crime:
The better the witnesss opportunity to see the offender at the time of the
offense, the more likely it is that her identification is the result of observations at
the crime scene A weak opportunity to observe makes it more likely that the
governments suggestion prompted the identification.

2.

The witnesss degree of attention: The greater the witnesss attention at the time
of the crime, the stronger the likelihood that the identification is reliable. If the
witness paid limited attention, her identification is less likely to be reliable.

3.

The accuracy of his prior description of the criminal: If a witness gives a

description of an offender prior to making an identification and that
identification is consistent with the identified individuals actual characteristics,
it is more likely that the identification by the witness was the product of
observations at the crime scene. Material differences between a description and
a persons actual appearance indicate that the governments suggestion
influenced the witnesss identification.

4.

The level of certainty demonstrated at the identification confrontation: The

more certain the witness is that the person she is identifying is the person she
saw commit the offense, the more likely it is that he ID is based on recollections
form the crime. Tentativeness or uncertainty indicates susceptibility to
suggestion and, therefore, a greater likelihood that an ID was produced by
governmental suggestion.

5.

The time between the crime and the subsequent confrontation: The Court
assumes that memories fade continuously over time. Consequently, the longer
the time between the original viewing of the offender and the ID of the
individual, the weaker the case for the IDs reliability. Shorter time periods
enhance the case for reliability.

6.

These factors are to be weighed against the corrupting effect of the suggestive
identification itself. The degree of suggestiveness in the ID process: The more
suggestive the ID process, the less likely it is that the government will be able to
establish that an ID was the product of observations made at the crime scene
rather than the product of improper suggestion.
A.

A minimum amount of suggestion is required to trigger due process

scrutiny.

B.

The degree of suggestion is also an important factor in the reliability

calculation.

C.

Note: The relevance of suggestion to the reliability of an ID means that

the defendant should emphasize every suggestive facet of a process
while the government ought to maintain that the suggestiveness of a
process was actually quite limited.

III.

Although the Court suggests that the identification evidence should be analyzed
independent of any other evidence presented to secure the defendants guilt, as a practical
matter, judges look at all of the other evidence in the case and try to figure out if the
identification should be used.

IV.

Uphoff thinks this is a troubling result, as we have moved from a per se test to a totality
of the circumstances test to determine if there is a substantial likelihood of
misidentification.
1.

Stovall focused on whether the suggestive procedures really are conducive to an

irreparable misidentification. If the procedures are unduly suggestive such that
they are likely to create a misidentification, all identifications should be
suppressed as violative of due process.

2.

Braithwaite now says that our focus must be on reliability. What were really
telling the police is that if the identification turns out to be reliable, then well
set the testimony in at trial regardless of whether the procedures were unduly
suggestive.
A.

XIV.

Scholars have criticized this test as one that is so wishy-washy that its
likely to allow virtually all IDs to pass the test. We also have no way of
showing to the jury just how risky this endemic problem is.

LIMITATIONS TO THE EXCLUSIONARY RULE

A.

Exclusionary Rule: Direct and indirect (derivative) products of constitutional violations are
excluded from admission as evidence at the defendants trial.

B.

Standing Exception: Remember that the standing doctrine states that the only person who can
complain about a constitutional violation is the person who is actually aggrieved by that violation.
The defendant needs standing to protest the violation before the exclusionary rule can come into
play.

C.

Impeachment Exception: If the police take a confession in violation of Miranda, the prosecutor
cannot use that statement in its case in chief. However, the prosecution can use the statement as
rebuttal evidence if the defendant testifies in a way that is contradictory to the initial statement at
trial. See Harris v. New York.

D.

Independent Source Doctrine

I.

II.

III.

Rule: Even if and illegal act committed by the government leads to certain evidence, if
the government can show that there was an independent source to discover such
evidence, it can introduce such evidence at trial.
1.

The government must prove this independent source by a preponderance of the

evidence.

2.

This really isnt an exception to the exclusionary rule, because evidence

gained from an independent constitutional source wouldnt be excluded by
operation of the exclusionary rule in the first place.

The rule typically applies in two situations 1.

If certain information is learned in an illegal way and then the very same
information is learned by independent legal methods, it is admissible because it
was derived from a source independent of the illegality.

2.

If the very same information is discovered twice, once legally and the other
illegally, so long as the legal means of discovery truly is independent of the
illegal discovery, the evidence will fall within the independent source doctrine.

Note: Government conduct will not qualify as an independent source if there is a causal
connection between the illegality and the allegedly legal conduct.

1.

If illegally gained information is used to justify otherwise legal conduct or if

officers decide to take legal action based on what they learned from an illegality,
the doctrine will not apply.

2.

If the illegal action enables or facilitates the success of the legal conduct, the
legal conduct should not qualify as an independent source. But see Murray.

iv. Silverthorne Lumber Co. v. United States (1920) established the independent source
rule: In order to claim the exception of the independent source rule, the government has
to prove that there truly is an independent source for the discovery of the evidence sought
to be introduced.
1.

If the government can show an independent source for the information, it makes
sense that it ought to be able to use the evidence at trial, because there is no
causal connection between the illegal conduct and the evidence.
A.

Rationale: If the government can prove an independent source, it

ought not be placed in a worse position than it would have been in had
it not committed the illegal act in the first place.

v. Murray v. United States (1988): The police illegally entered a warehouse without a
warrant and observed bales of marijuana. Without disturbing the bales, they left to secure
a search warrant. In their affidavit, the relied solely on the information they would later
contend they had prior to the illegal entry. The officers neglected to mention the illegal
entry in their affidavit. The warrant was issued and executed and the bales were seized as
evidence.
1.

Holding: The Court found that the bales could properly be admitted into
evidence if there was an independent basis for their discovery. The case was
remanded to determine whether the warrant-authorized search of the warehouse
was an independent source of the challenged evidence.

2.

The independent source here would be the warrant. If the officers could have
secured a warrant to search the warehouse based on evidence independent of the
illegal entry, there would be an independent source for their discovery.
A.

3.

K: The Court doesnt want to place the government in a worse position

than they would have been in had the illegal entry not occurred. Thus,
if the warrant provides an independent source for the discovery, the
bales can properly be admitted into evidence.

The majority also felt that there were a number of other safeguards in place so
as not to encourage the police to disregard the warrant requirement of the
Constitution.
A.

Uphoff thinks this is a bunch of crap, as police officers will not likely
be reprimanded for unconstitutional behavior if it leads to evidence that
can later be used at trial.

B.

Marshalls Dissent: Marshall agrees with Uphoff in that what this

exception encourages is unconstitutional behavior on the part of the
police. If police know that the evidence likely wont be excluded at
trial, this encourages them to go in, see if there is incriminating
evidence, and then radio in to the station to tell others to secure a
warrant. This actually undercuts the warrant requirement if the police
can simply claim that they would have secured a warrant despite the
illegal entry.

C.

The key battleground between the majority and the dissent is based
around the deterrence incentive provided to the police due to operation
of the exclusionary rule. How you come out in this debate is a function

of how much confidence you have in police honesty in executing

searches and seizures.
E.

Inevitable Discovery Doctrine

I.

Rule: Even if evidence is found to have been illegally obtained (or the fruit of illegal
activities), the government can still use such evidence if it can prove that the evidence
inevitably would have been discovered by lawful means.
1.

Proof: To rely on the doctrine, the government must show by a preponderance

of the evidence that the item sought to be introduced ultimately or inevitably
would have been discovered by lawful means.

2.

Bad Faith of the Officers Irrelevant: The exception applies even if the officers
knew that there actions were unlawful, knew that there was a lawful alternative,
and deliberately chose the unlawful route because it would expedite the
discovery of the evidence.

3.

Difference from Independent Source Doctrine: Here, the evidence actually

was obtained through illegal means and admissible despite that illegality. This
truly is an exception to the general exclusionary rule, where the independent
source doctrine is not.

ii. Nix v. Williams (1984): The defendants 6th Amendment right to counsel was violated
when an officer gave the Christian Burial Speech that prompted (deliberate elicitation)
the defendant to show him where the body of his murder victim was located. At the time,
there was an independent search for the dead girls body, and members of the search party
testified that they would have located it in a short time period had the defendant not led
the police to the body.
1.

Holding: Despite the direct causation between the constitutional violation and
the evidence, the Court allowed admission of the evidence at trial because the
body inevitably would have been discovered by the volunteer search party
within a short time period. Because temperatures were extremely cold, the
physical evidence taken from the body itself would have been in substantially
the same condition had the defendant not led the police to the site of the murder.

2.

The Court indicated that the government must prove a readily verifiable basis in
fact that the evidence would have inevitably been discovered despite the
illegality.

3.

Dissent: The dissent agreed that this was an appropriate doctrine, but disagreed
on the appropriate burden of proof. The justices in the dissent argued that the
government should have to prove the inevitable discovery by clear and
convincing evidence, rather than by a preponderance of the evidence.
A.

F.

This again shows a difference on the importance of deterrence in the

eyes of the justices. The dissent argues that this exception creates a
disincentive for police to follow the Constitution (goes back to
deterrence). We should be more concerned with respecting
constitutional mandates.

The Attenuation Doctrine

I.

Rule: If the taint of the original constitutional violation becomes too attenuated, the
Court will not exclude the evidence at trial. There comes a point at which the
connection between the evidence and the unlawful conduct becomes so attenuated as
to dissipate the taint.

ii. Wong Sun v. United States (1963): James Toy was illegally arrested (no probable cause)
on suspicion of narcotics trafficking. At the time of his arrest, Toy made a statement to
the police implicating Johnny Yee. The police illegally arrested and searched Yees

apartment. They discovered narcotics in his bedroom, and he made a statement

implicating Wong Sun. Wong Sun was then illegally arrested, released on his own
recognizance, and several days later made an incriminating statement implicating himself
in the narcotics transactions.
1.

Holding: Toys statement must be suppressed because it was the product of an

unlawful arrest. Yees statement and the narcotics found at his apartment must
also be suppressed as a direct product of the unlawful arrest. However, Wong
Suns statement was held to be admissible, because its connection to the initial
illegality was sufficiently attenuated.
A.

Wong Sun had been released on his own recognizance and had
voluntarily returned days later to make the incriminating statement.
These were the factors that the Court found important in determining
that the evidence was sufficiently attenuated.

B.

Rule: We cannot attenuate evidence that is the direct product of police

misconduct or an unconstitutional action. We can only attenuate
evidence that is a derivative or indirect product of such violation.

iii. Brown v. Illinois (1975): This case gives additional meaning to the attenuation doctrine
by laying out four factors to assess in determining whether the evidence is sufficiently
attenuated from the original illegality so as to be admissible at trial 1.

Giving of Miranda warnings - Although Miranda warnings alone do not

dissipate the taint, this is a factor that courts consider.

2.

Proximity in time between the arrest and confession - The longer the time
period between the misconduct and the discovery of the evidence, the stronger
the case for attenuation.

3.

Intervening circumstances - Any significant event in the chain of events

leading from the illegal conduct to the discovery of the disputed evidence
weakens the connection between the two. In other words, the Court will look at
what happened between the illegal act and the subsequent admission, etc.

4.

A.

A defendants arraignment in court, the receipt of Miranda warnings, or

some independent action of a third person could qualify as an
intervening circumstance that enhances the case for attenuation.

B.

Free will is a kind of intervening circumstance that can weaken the

causal chain between an illegality and the acquisition of evidence.
However, the mere fact that an individual was not forced to act is not a
sufficient exercise of free will to attenuate automatically a connection
between any earlier illegality and the evidence discovered through the
individual.

c.

United States v. Ceccolini (1978): Live-witness testimony is treated

differently from other kinds of evidence. Courts are more ready to find
attenuation when the illegally obtained evidence is live-witness
testimony.

Purpose and flagrancy of the police misconduct - Evidence that is the product
of an intentional or egregious illegality is less likely to fall within the exception
than evidence that is the product of carelessness or a reasonable mistake about
the legality of a particular act.

iv. Oregon v. Elstad (1985): Officers custodially interrogated a suspect without giving
Miranda warnings or obtaining a waiver. The suspect made incriminating remarks.
Shortly thereafter, the officers again conducted a custodial interrogation after warning the
suspect and securing a waiver. The suspect again incriminated himself.

1.

Issue: Because the first confession was in violation of Miranda, can the second
confession be used?

2.

Holding: The Court held that any connection between an initial failure to warn
and a subsequent statement made after compliance with Miranda was
speculative and attenuated at best. Although the first statement must be
excluded, the second statement made after compliance with Miranda does not
have to be excluded.
A.

Rule: If there has been an involuntary confession followed by a second

confession, that second confession is presumptively excludable. Thus,
there is a difference between an unwarned Miranda violation and an
involuntary confession (i.e., in violation of the defendants due process
rights).

B.

Note: This case is confusing, as it suggests that Miranda is merely a

prophylactic rule rather than a constitutional right. However, Dickerson
held that Miranda was a constitutional right.

3.

Brennans Dissent: There is a substantial causal connection between the two

confessions, as there was only an hour difference between the two. Furthermore,
once a suspect confesses once, it is unlikely that they will revoke that confession
in later statements, as the suspect will feel as though he already let the cat out
of the bag. Brennan points to interrogation practices of the police that suggest
that once a suspect confesses once, it is easier to get further confessions from
him after that point. As such, allowing the police to cure the defendant of an
earlier Miranda failure will only create a disincentive for police to follow
Miranda at all.

4.

Unanswered Questions from Elstad A.

Does this rule applies to other kinds of Miranda violations such as an

Edwards violation?
I.
II.

B.

Lower courts have split on the issue of whether Elstad applies

in such contexts.
Clearly if the authorities use actual coercion to obtain a
statement, the later statement is presumed to be inadmissible
even if the authorities have complied with Miranda.

Does this rule extend to other kinds of derivative fruits?

I.

If the police make an illegal arrest under the 4th Amendment,

take a statement from the suspect, and that statement leads to
other physical evidence, these are all derivative fruits of the
illegal arrest. Unless the government can show sufficient
attenuation, this evidence will be suppressed.

II.

It is not clear that the derivative fruit doctrine applies in the

5th Amendment context. If, in Elstad, the police took an
unwarned confession that led them to discovery of a gun,
would they be able to introduce the gun into evidence?
1.

G.

Brennan argues that the reasoning of the majority

would gut the derivative evidence doctrine in this
context.

The Good Faith Exception

I.

Introduction: Because the primary purpose of the exclusionary rule is deterrence, that
objective is best achieved when the violation is knowing and deliberate rather than the
result of an honest mistake. However, this exception seems to fly in the face of the 4th

Amendment, as it allows unconstitutional searches and seizures to be used against the

defendant.
1.

Note: This exception only applies in the 4th Amendment context.

2.

Rule: Operation of good faith exception authorizes the government to use

both primary and derivative evidence that has been acquired by illegal means.

3.

Rule: The exception applies only when officers search or seize on the basis of a
warrant. It does not permit the admission of evidence acquired as a result of a
warrantless search or seizure. The controlling question is whether a reasonable
officer would have believed that the search or seizure authorized by the warrant
was constitutional.

ii. United States v. Leon (1984): The police conducted a search pursuant to a warrant issued
by a magistrate. The warrant was subsequently found to have been issued without an
adequate showing of probable cause, as the affidavit was based on the word of a
confidential informant of unproven reliability. The defendants moved to suppress the
evidence obtained in the search.
1.

Holding: Because the police were deemed to have reasonably relied on the
warrant (in good faith) in the execution of the search, the Court concluded that
there was no point in excluding the evidence at trial.
A.

2.

Objective Standard: The objective standard adopted in this case and

in Sheppard (below) requires officers to have reasonable knowledge of
what the law prohibits. If an officer is actually ignorant of what the law
prohibits, but a reasonable officer would have been aware, the
exception does not apply.

Rationale: There is a minimal possibility of deterrence for future violations in

this context, as the exclusionary remedy is aimed at police, not judges and
magistrates, who are the ones making the final warrant determination. As a
result, it doesnt make sense to exclude evidence based on a mistake of the
magistrate.
A.

The rationale behind the exclusionary rule is outweighed by the

substantial costs of suppressing the evidence, as the suppression
interferes with the truth-finding function of the jury. We are also
concerned with the fear of freeing those who are guilty based on
mistakes of the magistrate.

B.

Note: A number of state courts have rejected this exception and will
suppress evidence if procured by a defective warrant, irregardless of
whose fault the mistake was.

3.

Stevens Concurrence: The founding fathers of the Constitution would have

been shocked to find out that the Court created this exception, as the 4th
Amendment was designed to protect against unreasonable warrants being used
to search where there is no probable cause. This is exactly what the majority is
endorsing in enacting this exception to the exclusionary rule. In essence, the
majority has turned history on its head.

4.

Brennans Dissent: The 4th Amendment operates to disable the procurement of

evidence in violation of the Constitution. Though some evidence will be thrown
out and some criminals will go free by operation of this Amendment, this is the
price we pay for living in a free society. In essence, its not the exclusionary rule
that creates this problem, but rather, the Constitution itself.

5.

Underlying Tension with Gates: The Court has already relaxed the standards
for procuring a warrant in Gates, which liberalized the ability for police to
secure warrants. In Gates, the Court essentially created a rule in which probable

cause will be found UNLESS no reasonable person would have found probable
cause. If no reasonable person would have believed that there was probable
cause, then how can a reasonable police officer rely on a warrant that is
objectively unreasonable?
A.

This seems to create a disconnect, as it fosters disrespect for the

Constitution and encourages magistrates to be a rubber stamp for the
police who execute the warrants.

iii. Massachusetts v. Sheppard (1984): Officers conducting a homicide investigation applied

for a warrant to search Sheppards residence for evidence connecting him to the murder
of his girlfriend. Because it was a Sunday, the only standard application form the officers
could find was for a narcotics search. In their affidavit, the police described the items
sought as the murder weapon and the rope used to bind the victim. The judge forgot to
modify the warrant form, and ended up authorizing narcotics as a target of the search.
The warrant was executed and the homicide evidence was discovered.
1.

Holding: The Court held that the police acted reasonably in this situation and
refused to suppress the evidence procured by the defective warrant.
A.

IV.

V.

We refuse to rule that an officer is required to disbelieve a judge who

has just advised him, by word and by action, that the warrant he
possesses authorizes him to conduct the search he has requested.

Four Instances in which the Good Faith Exception does not apply 1.

Knowing or reckless falsehood provided to the magistrate in the affidavit

2.

A magistrates abandonment of his judicial role

3.

Seriously deficient probable cause showings

4.

Seriously facially deficient warrants

Two Variations on the Good Faith Exception 1.

Illinois v. Krull (1987): The Court concluded that even though a search,
authorized by statute, was constitutionally unreasonable, the evidence obtained
was admissible because the officers had acted in objectively reasonable reliance
upon the statute authorizing the search. The error is that of legislators who, like
judges, do not need to be and are no likely to be deterred by the exclusion of
evidence. When officers have acted in reasonable reliance upon a statute there is
no police error to deter.

2.

Arizona v. Evans (1995): The Court concluded that if an officer arrests an

individual based on a computer record that erroneously indicates the existence
of an outstanding arrest warrant, evidence found as a result of that unreasonable
arrest is admissible if the officer acted in objectively reasonable reliance on the
erroneous computer record and if court employees are responsible for the
erroneous computer record. Again, the exclusionary rule is not designed to affect
the behavior of court employees and there is no reason to attempt to deter
objectively reasonable behavior of law enforcement officers.