CRIMINAL PROCEDURE OUTLINE

SPRING 2019 – MAY 3, 2019

I. 4TH AMENDMENT
a. The right of the people to be secure in their person, property, papers, and effect against unreasonable searches and seizures, shall not
be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the
place to be search, and the person or things to be seized.
i. Is there a State action?
ii. Does the individual have standing?
iii. Does individual have reasonably legitimate expectation of privacy in a protected space?
iv. Was there an unreasonable search or seizure of evidence?
v. Is the evidence presented tainted? Directly related to illegal conduct.
vi. Exceptions to being excluded.

School Searches
A. School officials are considered to be a state official, and thus, must act within the realm of the Fourth Amendment
B. In N.J. v. TLO, the court held that when searching a student under their authority, school officials do not need a warrant.
1. Rather, they need to use a reasonable balancing test and balance the student’s expectation of privacy and the need for
school officials to keep order in the school.
2. The court held that students have a lesser expectation of privacy in the school.
3. Exclusionary Rule – evidence unconstitutionally obtained must be suppressed and cannot be used in criminal proceedings
C. In Safford United School District v. Redding, the court held that a school-related strip search of an adolescent conducted without
probable cause is unlawful.
1. The court held that under a standard of reasonableness, a search is permissible if the measures adopted are reasonably
related to the objectives of the search and if it is not excessively intrusive in light of the age and sex of the child, and the
nature of the infraction.
2. The court also held that the school officials must have a moderate suspicion that they will find evidence of wrongdoing.
 Content of suspicion must match the degree of intrusion
3. The court also held that school officials are can use qualified immunity to be shielded from liability

Development of Exclusionary Rule

A. In Weeks v. U.S., the court held that the Fourth Amendment applies to the federal government and its agencies and that federal agents
are prohibited from executing unreasonable searches and seizures.
1. They held that the evidence was obtained in violation of the Constitution and had to be returned.
2. This was the first time that the exclusionary rule was applied to federal agents.
B. In Silverthorne Lumber Co., physical evidence was taken from the lumber company’s premises. The U.S. Marshals made copies of
the evidence and tried to use the information contained as part of their case. The court held that the knowledge gained by the
government’s own wrong cannot be used by it in its case.
1. Fruit of the Poisonous Tree Doctrine = evidence obtained illegally and anything that flows from it cannot be used at all,
evidence is tainted (evidence obtained from a completely independent source is okay to use)
C. In Wolf v. People of the State of Colorado, the court held that it is a violation of the 14th Amendment for state actors to gather
evidence through unreasonable searches and seizures, but that this evidence does not need to be excluded.
1. In this instance, the court chose not to apply the exclusionary rule to the states.
D. In Rochin v. People of California, the court held that law enforcement may not procure physical evidence by forcible extraction of a
defendant’s stomach contents.
1. The court said that it was unreasonable for officers to behave in this way and that their behavior shocked the conscience.
2. For the court to affirm this behavior would be to affirm brutal police conduct.
3. The court used the 14th Amendment to suppress the evidence as a violation of due process.
E. In People v. Cahan, under the California Constitution, the court applied the exclusionary rule as a deterrence of police misconduct.
F. In Jones v. U.S., case involved a defendant who was staying in a friend’s apartment when he was arrested for possession.
1. The court held that the charge of possession was enough to give someone standing under FRCrP 41(e); instead of forcing
someone to admit that the drugs were theirs or denying and risk not having standing.
2. This case gave automatic standing to someone charged with a crime but was later overturned.
G. In Mapp v. Ohio, the court overturned Wolf and held that the exclusionary rule and the Fourth Amendment applies to all states
through the 14th Amendment.
H. In Linkletter v. Walker, the court stated that Mapp is not retroactively applied. When a case became final, meaning after all appeals,
after Mapp, then Mapp applied retroactively.
I. In One 1958 Plymouth Sedan v. Commonwealth, the court said that because forfeiture actions are associated with criminal law and
criminal in nature, the exclusionary rule applies to them.
J. In Bivens v. 6 Unnamed Agents of the Federal Bureau of Narcotics, the court created a civil cause of action under the 4th
Amendment, which can be brought when a person’s constitutional rights have been violated.
K. The theories behind the exclusionary rule include personal rights, judicial integrity, and the most popular, the deterrence theory.
L. The exclusionary rule has led to two doctrines: the fruit of the poisonous tree doctrine and the independent source doctrine.
1. The fruit of the poisonous tree doctrine holds that evidence illegally seized is suppressed and any evidence derived from
the illegally seized evidence is suppressed as fruit of the poisonous tree.
2. The independent source doctrine holds that if evidence was found independent of the illegal action, it is an independent
source of admissible evidence.

Places and Interests Protected by 4th Amendment

 A. To determine if something is protected by the 4th Amendment, the court looks at 1) whether the person has a subjective expectation of
privacy and 2) whether society is willing to view it as reasonable. (FL v. Riley)
B. Places
1. In Florida v. Riley, the court held that when a person knowingly exposes something to the public, it is not protected by the
4th Amendment.
a. Commonwealth v. Oglialoro: Aerial search of barn with clear plastic walls
b. FL v. Riley: Something viewable on property by helicopter
c. CA v. Greenwood: things placed in garbage bags and put on the curb
i. No reasonable expectation of privacy in these items because they were put on the side walk
2. In State v. Dunn, the court held that questions regarding the curtilage of the home should be resolved by looking at four
factors:
a. Proximity of the area claimed to be the curtilage of the home
b. Whether the area is included within an enclosure surrounding the home
c. The nature of the uses to which the area is put
d. The steps taken by the resident to protect the area from observation of people passing by
3. The open fields doctrine provides that the area outside the curtilage and in the open field is not constitutionally protected

Interests
C. Board of Education v. Earls: student privacy interest
1. School district drug testing policy for extracurriculars was not unreasonable intrusion into privacy interests
a. The court balanced the nature of the privacy interest with character of intrusion and nature and
immediacy of the government’s concern
i. Court said this constituted a minimal intrusion on students given the serious drug problems in the school
D. Student Athletes: Veronia
1. The school here was testing students participating in athletics
2. Court said this was constitutional because there was a serious drug problem and previous measures had not worked.
Additionally, student athletes were already subject to less privacy.
E. Train Drivers
1. Constitutional to test driver to see if he was on drugs at time of serious train accident
F. Custom service people
1. Constitutional to drug test law enforcement or people handling weapons or classified information
G. Public officials
1. Chandler v. Miller: drug testing public officials not constitutional because nothing in the record calls into question an
official’s judgment or integrity or jeopardizes the discharge of public function
H. Hospital drug tests
1. In Ferguson v. City of Charleston, the court held that because a hospital constituted a state actor, its actions needed to
comply with the Fourth Amendment.
a. This meant that drug testing pregnant women to turn the results over to law enforcement was unconstitutional
because it turned into an investigatory purpose.
b. While some cases involve a special need, here the hospital was just acting as an extension of police.
I. Prisoners
1. U.S. v. Cohen: search by corrections officers to find evidence to give to prosecutor was unconstitutional
a. Although under Hudson v. Palmer prisoners have lower expectations of privacy because of security concerns,
here security concerns were not at issue.
b. The security concerns suggested as reason for the search were just a pretext to look for criminal activity.
J. Wiretap
1. U.S. v. White: Wiretap monitoring is permissible under the 4th Amendment so long as one person consents
a. If law enforcement monitors without any consent: this is wiretapping
i. Extensive process for this to be okay
2. Hoffa False Friend Doctrine: 4th Amendment does not protect the misplaced belief that a person to whom he voluntary
confides his wrongdoing will not reveal it
3. Other cases: no warrant is needed if making an undercover buy or if an undercover agent records defendant’s words and
evidence is later offered
4. GPS monitoring requires a warrant
5. Commonwealth v. Blood: Case concerned monitored conversations; the state gave the conversation more protection under
the state constitution by suppressing evidence
a. New Federalism: federal constitution provides a minimum floor of rights; while states are free to provide more
protections under their own
b. Before exclusionary rule, silver platter doctrine
i. Federal agents asking state police to do things for them
c. Reverse silver platter doctrine because states may grant more rights
i. State police asking federal agents to do things for them

Types of Searches
K. Bond v. U.S.: A visual inspection was appropriate under the Fourth Amendment, but an inspection that involved physical
manipulation was held to be more intrusive because of the exploratory manner of the inspection.
1. When the manipulation came before the consent, the court held that the request to search was tainted by the 4th
Amendment.
L. U.S. v. Place, court held that dog’s sniffs are not a search
 M. Florida v. Jardine: dog sniff onto front porch was an invasion of a 4th Amendment protected area because the front porch is part of
the curtilage
N. U.S. v. Jacobsen: second search doctrine + field test
1. When a private search occurs and then a second search is done by law enforcement and does not go further than the first
search, evidence will not be suppressed
a. The rationale is that the second search reveals no more than the first search
b. If the second search goes further, however, then it does not fall under the second search doctrine and will
probably be suppressed
c. Reasonableness of search is determined by the degree to which they exceeded the scope of the private search
i. Court will look at the privacy interest and whether it was frustrated only by the second search
2. Field test disclosing whether a substance is a drug does not compromise any legitimate interests in privacy because there
are no privacy interests in illegal substances
Consent
O. Kyllo v. U.S.: Where the Government uses a device that is not in general public use to explore details of the home that would
previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a
warrant
1. Ex: Thermovision; heat detection constitutes a search
P. Schneckloth v. Bustamante
1. 6 men in vehicle; one man consented to a search of the car; search of the trunk revealed three stolen checks
2. Fourth Amendment prohibition does not apply when voluntary consent has been obtained
3. Voluntary consent is determined by looking at totality of the circumstances; no requirement to inform people of rights that
they can decline to consent and have protected 4th Amendment rights
Q. Illinois v. Rodriguez: Court held that police could rely on apparent consent where woman appeared to own/live in the apartment even
though she could not be there without defendant present
1. Police reasonably, objectively believed that the woman had authority to consent to the search
2. Hill v. California: Court has also upheld a search incident to arrest even though the arrest was of the wrong person
because officers believed in good faith
3. U.S. v. Matlock: a cohabitant can give consent to a search of mutually used property
a. Vicarious consent
R. Georgia v. Randalf: if co-occupant gives permission to enter, but another physically present occupant refuses to permit entry, police
cannot enter because there is no consent
S. Fernandes v. CA: When defendant said police could not enter, after he was arrested, woman gave oral and written consent for police
to enter.
1. GA v. Randalf does not extent when consent is given after defendant has been removed
2. If not physically present, OK to enter
T. Parent has authority to consent to search of minor’s room; but children do not have any type of authority to consent to search of
parent’s quarters
U. Florida v. Ameno: scope of search must be objectively reasonable
V. U.S. v. Stoner: hotel clerk has neither actual nor apparent authority to consent to search of guest room
1. If cleaning person sees something, the police must be notified and a warrant must be issued
2. If person gives up hotel room, there is no 4th Amendment right to protect in the room because they have left

Warrants
A. Arrest warrants
1. May be used to arrest an individual
2. Valid indefinitely
3. Can be used as a communication device between jurisdictions
4. Can be used to get inside the home of the individual who is subject of arrest warrant
5. Knock-notice required upon entering a building to execute an arrest warrant
6. Probable cause is needed to arrest person on the street
B. Dunaway v. N.Y.: Officers picked up suspect knowing they did not have enough for warrant; he is taken to police headquarters in a
patrol car and detained there. Court said this violated the 4th and 14th Amendments because they did not have probable cause
1. Detention for custodial interrogation intrudes so severely on interests protected by the 4th Amendment as necessarily to
trigger safeguards against illegal arrest.
2.
C. Search warrant
1. Must be executed within ten days
2. Knock-notice required upon entering building to execute search warrant
3. Probable cause needed to issue search warrant
D. Chimel v. California: The court held that a search incident to a lawful arrest is valid, but that it may only include
1. 1. Search of the individual, or
2. 2. The grabbing area
 The area where a person could get a weapon or destroy evidence
 U.S. v. Robinson
 Policy: destruction of evidence and safety
3. Search was invalid because went beyond person and area from which he might have obtained weapon or destroyed
evidence
4. Case does require that arresting officers must get a search warrant for the remainder of the home once drugs are found on
the arrestee
E. Steagold v. U.S.: To cross the threshold of the home, there must be one of the following present:
 1. Search warrant
2. Arrest warrant for person that lives in the home
 Payton v. N.Y.
3. Consent
4. Exigent circumstances
 Danger to persons: death or serious bodily injury
 Destruction of evidence
 Hot pursuant
5. Court held that a police officer may not search for the subject of an arrest warrant in the home of a third party without first
obtaining a search warrant.
F. Kirk v. Louisiana reinforced the ideas in Payton that police officers need either a warrant or probable cause plus exigent
circumstances in order to make lawful entry into the home.
1. Person is a public place may be arrested without an arrest warrant
2. Hot pursuit – has probable cause to arrest someone who then runs away into a home, no arrest/search warrant required to
enter the home
3. Person is danger of death or serious bodily injury – police can enter a home without a warrant, okay even if reasonably
mistaken
4. Destruction of drugs or other evidence
G. Michigan v. Summers: If there is a valid search warrant, detention of persons during the search is permissible
H. Ybarra v. Illinois: law enforcement may not search everyone on the premises because there is no probable cause search incident to
arrest
I. Coolidge v. New Hampshire: plain view doctrine
1. Officers that come upon additional contraband or evidence while searching for items specified in the warrant and the plain
view doctrine permits them to seize such items if they come upon them inadvertently without exceeding the scope of the
authorized search
J. Maryland v. Buie: arresting officers do not need probable cause or reasonable suspicion to look in closets and other spaces
immediately adjoining the place of arrest from which an attack could immediately be launched
1. Protective sweeps
K. Roe v. Arrow: if informant is not part of the transaction that defendant is charged with, informant’s identity does not need to be
disclosed
L. Hudson v. Michigan: Evidence does not need to be excluded when police violate the knock and announce rule
1. Court held that the exclusionary rule does not apply for evidence obtained after a knock and announce violation because
the interests violated by the abrupt entry of the police have nothing to do with seizure of evidence
2. Knock and announce is to prevent violence, property damage, and impositions of privacy
 Not to prevent police from conducting a search for which they have a valid search warrant
M. U.S. v. Salgado: Inevitable discovery rule: Evidence that would have been discovered anyway disregards any illegal search
1. This is narrowly construed
2. Police arrested and searched homes of two defendants, officers searched while other officers went to get a search warrant
3. Court said that whether there is an interim illegal seizure of evidence is irrelevant to the issue of exclusion, provided there
is (as there is here) very great confidence that the evidence would have been obtained for use at trial even if there had been
that seizure
 Key of case: There was an independent source that is valid
 If any information from what was seen in the illegal search was used in order to obtain the warrant, the warrant
would have been tainted by an illegal search, rendering it invalid
N. U.S. v. Ross: In order to search a vehicle, probable cause is needed to believe that the automobile contains contraband, but a warrant
is not required
1. Court said that warrants are not required because of 1) the mobility of a car and 2) because there is less expectation of
privacy in a car than there is in a home
O. California v. Acevedo: Police can search an automobile and containers in it when probable cause is present
P. Wyoming v. Houghton: Probable cause to search a vehicle justifies the search of the purse of a passenger who is not herself under
suspicion
Q. Illinois v. McArthur: Law enforcement restricted defendant from entering home until the officers got a search warrant based on ex-
wife’s comments to police that he had marijuana inside
1. Court said the restriction at issue was reasonable and lawful
 1. They had probable cause to believe the home contained evidence of a crime and contraband
 2. Police had reason to fear that unless restrained, defendant would destroy drugs before officers returned with
warrant
 3. Police made reasonable efforts to reconcile law enforcement needs for demands of personal privacy
 4. Police imposed restraint for a limited period of time, namely, two hours
R. Colorado v. Bertine: Officers had inventory procedures when arresting and impounding cars for DUI.
1. Court said that reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth
Amendment, even though courts might be able to devise other reasonable rules with different procedures as part of
hindsight.
 This rule was based on Illinois v. Lafayette where the court stated that the personal effects on a person may be
searched after an arrest.
 Both rules are to safeguard the defendant’s property and to protect the police department from false claims.
 This case requires for a procedure to be in place for an inventory search to be valid under the Fourth
Amendment
 As opposed to Florida v. Wells, where the department did not have a policy concerning the opening
of closed containers found in an inventory search when the search occurred.
  Case does not require that police go into the less intrusive manner in dealing with a situation.
S. Michigan v. Clifford:
1. (1) The Cliffords retained reasonable privacy interests in their fire-damaged home;
2. (2) the post-fire search of the basement was not a mere continuation of the earlier entry to extinguish the blaze;
3. (3) the arson investigator therefore should have obtained an administrative warrant before entering; and
4. (4) the search of the upper portion of the house (after the cause of the fire was known) was for the purpose of gathering
evidence of arson and thus required a criminal search warrant.
5. Accordingly, all the challenged evidence was inadmissible except the single fuel can found in the driveway.
6. Firefighters may remain on the premises for a reasonable time to investigate the origin of the fire (this is because the
firefighters are lawfully still on the premises from fighting the fire).
7. The problem in the case at bar is the fact that the firefighters left the premises and returned without exigent circumstances
that would have been necessary to justify their return.
T. Thompson v. Louisiana: The 911 call for help did not diminish defendant’s expectation in privacy because search exceeded the plain
view after the victim or suspect search
1. No homicide exception to search warrant requirement
2. No exigent circumstances present because searching the drawers for drugs taken was not justified because defendant
already taken to hospital and no need to look for suspects or victims
U. Griffin v. Wisconsin: Probationer subject to rules and regulations of probation, rules and regulations satisfy 4th Amendment
reasonableness requirement
1. Warrant is not required
 Otherwise probation officials could not act quickly
2. Probation officers have an interest in protecting public and interest of the probationer’s welfare, therefore, a lesser standard
is required allowing for a quick intervention of probation officers who can exercise their expertise
3. Probation more likely to violate law
V. U.S. v. Knights: Court held that reasonable suspicion for the search of the apartment did not require warrant requirement
W. NOT SCOTUS: Frazier v. State of Florida: Where homicide detective wanted to search apartment in connection with robbery and
other detective was searching it because of narcotics
1. Court held that it didn’t matter that homicide detective used narcotics search warrant to accomplish what he could not have
done otherwise
2. Court said that piggyback searches are allowed; because narcotics warrant was legitimate, homicide detective was allowed
to search for evidence of homicide
3. Not SCOTUS
4. Searches and seizures to be examined under standard of objective reasonableness
X. Arizona v. Gant Vehicle Search
1. Court held that police may search a vehicle of its recent occupant only if it is reasonable to believe that the arrestee might
access the vehicle at the time of the search or that the vehicle contains evidence of the offense of the arrest
 When defendant is already handcuffed and placed in patrol car, justifications do not apply
Y. Zurcher v. Stanford Daily: Police obtained warrant for newspaper premises and the court held that a search warrant can be obtained
for a person or the residence of a person not involved in criminality
1. The First Amendment provides no additional Fourth Amendment protections when newspapers are involved
2. Police are not required to take less intrusive means to obtain the negatives
 Element of surprise in search warrant is not present if have to use subpoena; evidence could be destroyed
Z. U.S. v. Torres: court can validly authorize television surveillance of a business because search of the interior of a business is less
intrusive while the social benefit of the invasion is greater because intruding on a bomb safe house
1. If government conducts television surveillance in conformity with requirements of particularity that Title III imposes on
electronic eavesdropping, government has also conformed to requirements of particularity in Fourth Amendment’s warrant
clause
Search Incident to Arrest Overview
 Robinson: even if a person is being arrested for a revoked driver’s license, the person can still be searched
 Belton: when a person is arrested in a car, the interior of the car may be searched
o Includes glove compartment
o Excludes the trunk
 Chimel: searching the grabbing area is permitted
Vehicle Searches Overview
 Ross/Acevedo: if there is a probable cause to believe that the vehicle has contraband, the vehicle may be searched without a
search warrant
 Chimel/Belton: A search incident to a lawful arrest allows the officer to search the person, grabbing area, passenger
compartment, and glove box
o Does not include trunk
 Bertine: inventory searches in accordance with agency procedure are permitted
 Schneckloth: consent of search based on totality of the circumstances
 Michigan v. Long: when officers have a reasonable suspicion that a person is dangerous, the vehicle may be searched

Probable Cause/Particularity
A. Aguilar/Spinelli Rule
1. The court held that an officer may not properly issue a warrant to search a private dwelling unless he can find probable
cause from facts or circumstances presented to him under oath or affirmation
2. Mere affirmance of belief or suspicion is not enough
3. Two Part test
 a. Magistrate must know underlying circumstances
i. Does the person know the information
b. Reliability of the information
i. Reliability usually established by a statement that the informant has given information in the past
and has lead to the arrest and convictions of individuals
o The information given does not have to be true; but the officer must believe it is true
 If false statement is provided, suppression hearing might be held later
ii. McCray v. Illinois: The identity of the informant does not have to be disclosed to establish
reliability
o When the informant’s name is disclosed, reliability does not become an issue
B. Four corners rule: probable cause must be found by the magistrate within four corners of the affidavit
C. Illinois v. Gates: abandons Aguilar/spinelli
1. The court provided that the new test for probable cause is based on the totality of the circumstances to determine fair
probability that items will be found
2. However, because of new federalism, many states employ the A/S test to give their citizens more rights
3. Case sent to state system from U.S. Attorney where state constitution is applied and federal agents testifying will use A/S
D. U.S. v. Grubbs
1. Court said that under Fourth Amendment’s particularity requirement, a warrant need not set out the conditions that trigger
it, only the place to be searched and the persons or things to be searched for
2. The fact that triggering events that would validate the warrant were not included in the warrant was not unconstitutional; it
was enough for them to be in the affidavit
E. U.S. v. Celio: 7th Circuit
1. Court held that a search by Illinois State Police was supported by probable cause because the DEA’s collective knowledge
could be imputed to the officers under the collective knowledge doctrine
a. Collective knowledge doctrine: one agency has knowledge and asks another agency to take action
F. Andresen v. Maryland: Court held that general warrants are prohibited under the 4th Amendment
1. Officer must articulate what he is looking for; but that other evidence of crimes is permitted to be seized
a. Ex: defrauded one plot of land, but found evidence of fraud with 3 other plots
2. Frazier was appellate court decision, so this one is binding

Detention and Search of the Person

A. Tiers of Police Citizen Contact
1. No Fourth Amendment Intrusion: Police may come up and communicate with citizens
2. Detention: Terry detention requires reasonable suspicion
3. Arrest: requires probable cause
B. Terry v. Ohio: An officer can detain (stop and frisk) a person if the officer has reasonable suspicion that the person has a weapon
 Only applies to weapons
C. Sibron v. NY: stop and frisk was unlawful because officer searching person had no reason to believe he had weapons
D. Minnesota v. Dickerson: Court held that officer frisk of the defendant to feel vile of crack cocaine was unconstitutional because there
was manipulation by the officer
1. Plain feel doctrine holds that if contraband is felt in the search, without manipulation, it can be seized
2.
E. Dunaway v. N.Y.: Officers picked up suspect knowing they did not have enough for warrant; he is taken to police headquarters in a
patrol car and detained there. Court said this violated the 4th and 14th Amendments because they did not have probable cause
1. Detention for custodial interrogation intrudes so severely on interests protected by the 4th Amendment as necessarily to
trigger safeguards against illegal arrest.
F. N.Y. v. Harris: Court held that a confession made at home was illegal because the police entered the home for probable cause to
arrest, but without a warrant. Police gave him his Miranda rights and took him to the police station where he admitted his guilt once
again. Court held the second statement was admissible because it was attenuated under FPT.
G. U.S. v. Sokolow: Case involved a man flying from portal cities with no wallet, no luggage, acting sketchy, having a lot of cash and
agents searched and detained him because they thought he was sketchy; search warrant was found the next day. The court held that
based on the totality of the circumstances reasonable suspicion was established and detention was lawful. Detention cannot be
based on police profiles.
H. Florida v. Bostick: Court said that bus searches and consent to search must be looked at under voluntary consent
1. Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that
individual, ask to examine the individual’s identification, and request consent to search his or her luggage—as long as the
police do not convey a message that compliance with their requests is required.
2. Test for voluntary consent: Whether a reasonable person would feel free to decline the officers’ requests or otherwise
terminate the encounter. . . . Where the encounter takes place is one factor, but it is not the only one.
I. U.S. v. Drayton: Although Officer Lang did not inform respondents of their right to refuse the search, he did request permission to
search, and the totality of the circumstances indicates that their consent was voluntary, so the searches were reasonable.
1. Officers do not have to advise bus passengers of their right not to cooperate with a bus check fro drugs
2. Case involved 4th Amendment intrusion of person, instead of cases involving consent to search a bag
J. Kaupp v. TX: Seizure occurs when person within the meaning of the Fourth and Fourteenth Amendments occurs when, “taking into
account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that
he was not at liberty to ignore the police presence and go about his business.”
1. Kaupp’s “Okay” in response to Pinkins’s statement is no showing of consent under the circumstances. Pinkins offered
Kaupp no choice, and a group of police officers rousing an adolecent out of bed in the middle of the night with the words
“we need to go and talk” presents no option but “to go.” . . . It cannot seriously be suggested that when the detectives
 began to question Kaupp, a reasonable person in his situation would have thought that he was sitting in the interview room
as a matter of choice, free to change his mind and go home to bed.
2. This was an arrest because more than a detention occurred
3. To purge the taint: look at observance of Miranda rights, temporal proximity of the arrest and the confession, presence of
intervening circumstances, and the purpose and flagrancy of the official misconduct
4. Because only a Miranda warning was given, not sufficient to purge the taint
5. Confession given while in detention was illegal
6. Versus Harris; where there was probable cause, but no warrant was obtained. Entry into house was illegal, not the
questioning
K. Delaware v. Prouse: In order to pull a car over, officer must have reasonable suspicion or probable cause to believe the driver has
committed a traffic violation of a commission of a crime has just taken place (cannot be just for simple traffic routine w/total officer
discretion)
L. U.S. v. Whren: Police officers had probable cause to believe that defendants violated traffic code where they turned without signaling
and were speeding. Court said it didn’t matter if the officers subjectively intended to pull the car over to check for drugs; the court
will just look at whether the officers had an objectively reasonable suspicion to believe that a traffic offense had been violated
M. Atwater v. City of Lago Vista: Once a person is lawfully arrested, they can be taken into custody and searched
1. This implicates Chimel, Belton, Robinson, Bertine
N. U.S. v. Avizu: Reasonable suspicion that forms the basis for a traffic stop is looked at on the basis of totality of the circumstances
1. Do not examine each factor individually
O. Florida v. Royer: There is reasonable suspicion to detain in this case but there is no probable case. Taking Royer’s ticket away from
him and then bringing him into a room for questioning constituted an arrest (for which there was no probable cause present for). Thus,
the arrest in this case was unlawful and the confession was not admissible because it was the fruit of the poisonous tree.
1. Distinguished from Mendenhall
 This case is the same scenario as Royer, except the officer gave the ticket back to the defendant, advised him of
his right to decline consent.
 Holding in this case was that this was not an arrest and the confession was admissible.
P. PA v. Mimms: Officer is permitted to order driver and passengers out of the car during traffic stop;
1. Case allowed officer to frisk driver and passenger, but this conflicts with other cases
Q. U.S. v. Hensley: Police officer may stop and briefly detain a person who is a subject of a wanted flyer while waiting to run a warrants
check if
1. Flyer objectively read and supported by reasonable suspicion on part of issuing department justifies length and
intrusiveness of the stop and detention that occurred
R. California v. Hodari D: If the seizure took place when the chase began, reasonable suspicion would have been required. If the officer
did not have reasonable suspicion, the course of the chase (the running away) would be an unlawful detention. Thus, the abandonment
of the drugs would have been the fruit of an illegal seizure.
1. If the seizure took place when the arrest occurred at the end of the chase, the drugs would have been considered abandoned
property under Able and the evidence would have been lawfully obtained.
2. Holding: The seizure did not take place until the person is actually physically detained. There was probable cause (court
uses probable cause to be on the safe side) to detain the individual at the end of the chase because of the abandoned drugs
found by the officers in the course of the chase.
3. Under new federalism, some courts hold that the seizure takes place once the chase begins in order to afford persons
greater protection.
S. Illinois v. Wardlow: Flight alone does not give rise to reasonable suspicion; must have other additional factors
1. Additional factors were that they were in high crime area, flight was unprovoked, and furtive movements
T. Florida v. JL: An anonymous tip lacking indicia of reliability of the kind contemplated in Adams and White does not justify a stop
and frisk whenever and however it alleges the illegal possession of a firearm.
1. An anonymous tip alone does not give rise to reasonable suspicion.
2. According to White, this anonymous tip can be corroborated with other evidence of suspect’s conduct. If the police verify
this evidence of conduct, the tip can then give rise to reasonable suspicion.
U. U.S. v. Montoya de Hernandez: Routine border searches; at the nation’s borders, nothing is required to search an individual—no
probable cause or reasonable suspicion
1. Holding 1: The detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is
justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably
suspect that the traveler is smuggling contraband in her alimentary canal.
2. Holding 2: The detention was not unreasonably long because the respondent was responsible for much of the duration and
discomfort of the seizure.
V. City of Indianapolis v. Edmond: The court held that because the checkpoint program was indistinguishable from general interest in
crime control, the checkpoints violate the Fourth Amendment
1. Before Delaware v. Prouse: police could stop cars for any reason
2. Delaware v. Prouse: need reasonable suspicion or probable cause that a crime has been committed, even traffic offenses
W. Michigan v. Sitz: Court held that a checkpoint for DUI drivers with no individualized suspicion was constitutional because it did not
require officers to be selective
X. Remember: cases that do not require individualized suspicion to pull over a car
1. Related to highway safety M v. S.
2. Border searches

Retreat from Exclusionary

A. Stone v. Powell: Where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state
prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure
was introduced at his trial.
 B. U.S. v. Ceccolini: Constitutional violation (an illegal search) that leads to a live witness will not exclude live witness testimony. This
is a question of whether there is enough attenuation between the illegality and the evidence being used.
1. Substantial period of time had lapsed; no coercive testimony; evidence found not used in questioning
C. Rakas v. Illinois
1. This case overruled Jones, no longer giving defendant automatic standing
2. Court held that you must have a property or possessory interest in order to have standing to make a motion to suppress
evidence under the exclusionary rule
a. Just being on the premises searched does not give someone legitimate expectation of privacy in areas searched
3. This new rule was decided based on U.S. v. Salvucci which stated that a defendant should not have to give evidence that
would incriminate him on the merits in order to establish standing to challenge search; and Simmons v. U.S. which held
that testimony given to establish standing could not be used against him in trial.
4. These cases eliminated the dilemma that the automatic standing rule in Jones was implemented to protect.
D. Rawlings v. KY: Rawlings leaves drugs in woman’s purse and police found drugs and charged him. Court said he did not have
standing to make motion to suppress because no property or possessory interest in Cox’s purse.
E. U.S. v. Payner: No standing to object to stolen items from bank officer because no interest.
F. U.S. v. Padilla: Standing does not apply to every coconspirator, only to those with a property or possessory interest
G. Minnesota v. Carter: occupying another’s apartment for 2.5 hours for purpose of bagging cocaine does not create property interest
H. Minnesota v. Olson: an overnight guest has a legitimate interest in the privacy of the home
1. But, person merely legitimately on the premises does not
I. U.S. v. Havens: Suppressed evidence under the 4th Amendment can be used for impeachment purposes only
1. Derived from Harris: 5th Amendment case where Harris’ confession that he committed crime was suppressed because of
violation of Miranda and 5th Amendment rights
2. Statement in Harris admitted in order to impeach testimony
J. James v. Illinois: cannot use defendant’s illegally obtained statement in order to impeach another witness’ testimony
K. U.S. v. Leon: When there is an objectively reasonable reliance on a subsequently invalidated search warrant, the good faith exception
will apply.
1. Policy: marginal benefits of suppression do not justify substantial cost of exclusion
2. Does not serve deterrent effect when mistake was made by court system/magistrate
3. *New Federalism: some states, including PA, do not accept this exception under their constitutions
L. Mass v. Sheppard: A reasonable police officer would have concluded, as O’Malley did, that the warrant authorized a search for the
materials outlined in the affidavit. Suppressing evidence because the judge failed to make all the necessary clerical corrections despite
his assurances that such changes would be made will not serve the deterrent function that the exclusionary rule was designed to
achieve. Accordingly, federal law does not require the exclusion of the disputed evidence in this case.
M. Illinois v. Krull: If a statute authorizing the arrest is valid at the time of the arrest, the search is valid even if the statute is
subsequently found to be invalid
N. Arizona v. Evans: Good faith exception applies when police officers rely on warrants that contain clerical errors of court employees
O. U.S. v. Tejada: The exclusionary rule does not prevent judges from considering illegally obtained evidence at sentencing

Entrapment and Outrageous Inducement

A. Outrageous inducement—there is a constitutional violation of due process under the 5th Amendment. The government conduct was "so
outrageous that it violates due process."
B. Entrapment—an affirmative defense brought by the defendant (as a practical matter, the defendant has to admit to committing the
crime).
o Once entrapment defense is raised, other predisposition evidence otherwise inadmissible is now admissible
C. U.S. v. Russell: In the federal court system, the focus is on the predisposition of the defendant as opposed to the action by the
government
o There is only entrapment where the police implant the idea into the defendant’s mind
D. Matthews: Court held that defendant does not have to admit to committing the crime before an entrapment defense can be raised
E. Jacobsen v. U.S.: Where the government has induced an individual to break the law and the defense of entrapment is at issue, the
prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being
approached by Government agents.
F. U.S. v. Green: 5th Amendment Circuit Court case, which held that government’s behavior was outrageous when government
supplied the equipment and told the defendant to set up a still and government was defendant’s only customer. Violated due process
because conduct was so outrageous
G. U.S. v. Twig: 5th Amendment Circuit Court case, The government informant sets up a speed laboratory and asks the defendant to
help him with the making of the drugs, resulting the defendant's arrest. Court holds that this is a violation of due process because the
conduct of the government was so outrageous.

II. 5TH AMENDMENT

a. Requires that no person be denied life, liberty, or property without due process of law, and grants each person a privilege against
compelled self-incrimination
i. Is person in custody?
ii. Is there an interrogation?
iii. Has the person been told of Miranda rights?
iv. Has the person invoked right to counsel or refusal to talk?

Self-Incrimination and Right to Counsel

A. Moran v. Burbine: A pre-arraignment confession preceded by an otherwise valid waiver is not to be suppressed either because the
police misinformed an inquiring attorney about their plans concerning the suspect or because they failed to inform the suspect of the
attorney's efforts to reach him
 B. Commentary
1. Accusatorial: defendant is accused and given rights
2. Inquisitorial: judge controls the entire trial, calls and questions witnesses, attorneys able to ask questions at the end
a. Defendant called in beginning of trial to explain story; defendant is tried, not the crime
C. Ohio v. Reiner: The 5th Amendment privilege's protection extends only to witnesses who have "reasonable cause to apprehend danger
from a direct answer."
1. A person charged, potentially charged, or the person's culpability is being called into question has the 5 th Amendment
privilege of refusal of self incrimination available to him.
2. Babysitter had reasonable cause to apprehend danger

III. 6TH AMENDMENT

a. Requires that in all criminal prosecutions the accused has the right to: assistance of counsel; public trial; cross examine; confront
witness against them; and be present at defendants’ own trial.

D. Gideon v. Wainwright
1. Overruled Betts v. Brady
2. 6th Amendment right to counsel applies to defendants in state court through the 14th Amendment
E. Anders v. CA: court appointed counsel on appeal
1. [Court appointed counsel on appeal's] role as advocate requires that he support his client's appeal to the best of his ability.
Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the
court and request permission to withdraw. That request must, however, be accompanied by a brief (Anders brief) referring
to anything in the record that might arguably support the appeal.
F. Alabama v. Shelton: If the defendant’s sentence does not include jail time, he does not have a right to counsel
1. But, if defendant is given a suspended sentence, violation of which can result in jailtime, he has a right to counsel
G. Caplin & Drysdale, Chartered v. U.S.: Sixth Amendment right to counsel does not entail counsel of choice, but ensures a right to
adequate court appointed counsel
1. One cannot use money acquired through illegal activity or used in connection with illegal activity in order to purchase legal
services
H. Strickland v. Washington: standard for reversal for violation of RTC
1. Interference with counsel's ability to make decisions, and
a. prime example—conflicts of interest
b. more courts are prone to finding reversible error in this case
2. Fails to render adequate legal assistance—2 prong test
a. 1st must show counsel's performance was deficient. There is a high level of deference to counsel's decisions here
because they involve strategic judgment calls AND
b. Must be outcome determinative But for counsel's deficient performance, the outcome would have been different.
I. Holloway v. Arkansas: 1 lawyer representing 3 defendants in same trial; Court’s failure to inquire into need for separate
representation was unconstitutional because it endangered the right to counsel
J. Cuyler v. Sullivan: 1 lawyer representing 3 defendants in one case in 3 separate trials; no one objected to multiple representations and
nothing indicated there would be conflicting defenses; trial court had no constitutional duty to inquire into possible COI
K. Nix v. Whiteside: Court holds that a defendant is not deprived of effective assistance because counsel refused to do something illegal
or unethical.
1. Decisions to be made by the defendant (attorney can still advise the defendant)
a. how to plea
b. whether to testify
c. whether to waive a jury trial
2. If defendant comes to lawyer and says they are going to lie on the stand
a. Lawyer must ask if criminal defendants are lying
 3 choices: put them on the stand, report it to the court, withdraw
b. Lawyer must remonstrate the client
 Talk them out of it
L. Glover v. U.S.: Court held that an increase in prison sentence can be considered as ineffective assistance of counsel because if he had
done the right work, he would have gotten a lower sentencing order
M. Faretta v. CA: defendant in a criminal case has constitutional right to represent himself at trial
N. Martinez v. COA of CA: although court may allow defendant to represent himself, the government’s interests in a fair and efficient
trial may outweigh appellant’s interests in self-representation; no right to represent yourself on appeal
Confessions from Brown to Miranda
A. Corley v. U.S.: Reinforced McNabb v. Mallory rule which interpreted Rule 5(a)’s provision that an arrestee must be taken before a
magistrate without undue delay as being 6 hours
B. Malloy v. Hogan: applied the 5th Amendment to the states through the 14th Amendment
C. Massiah v. U.S.: 6th Amendment case; The court held that the right to counsel attaches after formal charging or indictment,
whichever comes first
1. Anything said without counsel cannot be used against the defendant, bu can be used against others
D. Miranda v. Arizona: 5th Amendment case; In order to protect a defendant’s right against self-incrimination, procedures must be
followed. Once a defendant requests a lawyer, all questioning must seize. Police, however, are not required to actually go and supply a
lawyer to the defendant.
1. The 5th Amendment right can be waived. Silence does not waive the 5 th Amendment right.
2. In order to protect the 5th Amendment right against self-incrimination, the accused must be advised of his rights when
placed in “custodial interrogation.” The key is that the Miranda warnings only attach as a custodial interrogation.
a. Custodial: the accused must be in police custody
 b. Interrogation: The police must be questioning the witness
Identification Cases
A. U.S. v. Wade: The court held that 5th Amendment applies only to evidence that is testimonial or communicative in nature. Therefore,
it does not apply when someone stands in a line up, when someone is required to wear a shirt, when someone is required to give a
blood sample, or when someone is required to speak the words spoken by the perpetrator; because all of these things are for purposes
of identification.
1. The 6th Amendment right to counsel applies to a post-indictment line up because it is a critical stage in the prosecution’s
case.
a. A subsequent in-court identification is permitted if it comes from an independent source (not line up)
b. Critical stage does not include being fingerprinted, giving hair samples, or showing the victim a photo spread
B. Kirby v. Illinois: This case added the formal charging aspect to 6th Amendment.
1. Wade rule did not apply to a police station show-up that took place after the arrest, but before the defendant had been
indicted or otherwise formally charged with a criminal offense.
C. Scenarios
1. Photo identification: no right to counsel
2. Pre-indictment lineup: no right to counsel
3. Post-indictment line up: right to counsel
4. In-court identification: allowed if there is an independent source for identification that does not rely on inadmissible lineup
D. Neil v. Biggers: Even if a lineup is suggestive, it will not violate due process if it is reliable, i.e., there was no substantial likelihood if
irreparable misidentification
E. Stovall v. Denno: suggestive lineups violate due process and may be suppressed
1. EX: if suspect looks different than everyone else in line up
F. Perry v. New Hampshire: Due process clause does not require a preliminary judicial inquiry into the reliability of an eyewitness’
identification unless the identification was procured under unnecessarily suggestive circumstances, arranged by law enforcement
1. Due Process will only prohibit introduction of evidence when inclusion of evidence is so extremely unfair that its inclusion
would violate fundamental concepts of justice
G. PA v. Muniz:
1. 5th Amendment: questions of height, weight, etc., are covered by routine booking questions and are not protected under
Miranda
2. Slurred speed is not covered by Miranda
3. Asking about birthday required a mental process, therefore it is testimonial/communicative and covered by Miranda
4. Saying too drunk to take Breathalyzer is not part of interrogation and not covered by Miranda

Post-Miranda
A. 6th Amendment
1. Temporal
2. Charge specific
3. Critical stage
B. U.S. v. Mesa 3rd Circuit: During a hostage negotiation, because law enforcement had no control over Mesa’s actions and Mesa
controlled the conversation, Mesa was not in custody and the Miranda warnings were not required to be given
1. Whether the suspect was in custody: whether he was free to leave
C. Rhode Island v. Innis: The term “interrogation” under Miranda refers not only to express questioning, but also to 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. The latter portion of this definition focuses primarily upon the perceptions
of the suspect, rather than the intent of the police.
D. U.S. v. Henry: The defendant’s 6th Amendment right to counsel was violated because the government deliberately elicited
incriminating statements from Henry within the meaning of Massiah.
1. Three factors are important
a. First, Nichols was acting under instructions as a paid informant for the Government;
b. Second, Nichols was ostensibly no more than a fellow inmate of Henry;
c. Third, Henry was in custody and under indictment at the time he was engaged in conversation by Nichols
E. Kuhlmann v. Wilson: Informant was told to keep his ears open
1. Court held that a defendant does not make out violation of Massiah by showing that an informant reported his
incriminating statements to police. Rather, defendant must demonstrate that the police and their informant took some
action, beyond merely listening, that was designed deliverately to elicit incriminating remarks
F. Illinois v. Perkins:
1. 5th Amendment case involving Miranda rights. Police learned from informant that prison inmate—Perkins had admitting to
murdering Stephenson, the murder being unknown to police. An undercover policeman posed as an inmate and obtained a
confession from Perkins relating to the murder.
2. This is not a 6th Amendment problem— Massiah-Henry rule is not applicable—because defendant was not charged with
homicide, which is the crime which he gave statements regarding.
3. There was no police dominated atmosphere, therefore, there was no custody, meaning no violation of the 5th Amendment.
G. Edwards v. Arizona: If a defendant requests a lawyer, all questioning must stop
1. In order to waive Miranda rights, the waiver must be down voluntarily and knowingly/intelligently
H. Michigan v. Moseley: Court held that although the first interrogation stopped because defendant invoked his right to counsel, it did
not violate right to counsel when the police resumed questioning after the passage of a significant period of time when the second
interrogation was preceded by a fresh set of warnings and restricted to a crime that was not the subject of the first interrogation
1. When a person says “I won’t talk” questioning can continue once Miranda warnings are issued
2. WHY? Not the same as wanting a lawyer
I. Orozco v. TX: police officers questioning defendant in his bedroom at 4:00 a.m. constituted custody
J. Oregon v. Mathiason: a defendant is not in custody when he accepts an invitation to come to the police station for questioning, but
was not under arrest
K. Davis v. U.S.: If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to
stop questioning him
1. Ambiguous comment is not adequate assertion
L. U.S. v. Hammad: Attorney for one party cannot directly communicate with opposing party client when that opposing party is
represented by counsel -> can only communicate with counsel
1. Violation of disciplinary rules; some jurisdictions say grounds for suppression
M. Arizona v. Roberson:
1. Defendant had stated that he wanted to talk to a lawyer before answering questions following his arrest for burglary. Three
days later, a different police officer who was unaware of the request for counsel administered the standard Miranda
warnings and questioned Roberson about a different burglary, obtaining an incriminating statement. The Supreme Court
held that the Edwards rule required excluding this statement even though the second interrogation was by a different officer
and for a different crime. The majority distinguished Michigan v. Moseley because “a suspect’s decision to cut off
questioning, unlike his request for counsel, does not raise the presumption that he is unable to proceed without a lawyer’s
advice.”
N. Maryland v. Shatzer:
1. Court said that because there was a break in Miranda custody lasting more than 2 weeks before the first and second
attempts at interrogation regarding the same case, Edwards does not mandate suppression of his 2006 statements.
2. Appropriate period is 14 days which provides ample time for the suspect to get reacclimated to his normal life, consult with
friends and counsel, and shake off any residual coercive effects of prior custody
3. Here, release back into general prison population was a break in Miranda custody
a. Needs to be Miranda custody regarding the same case
O. Montejo v. Louisiana: overruled Michigan v. Jackson
1. Montejo was charged with first degree murder and court ordered the appointment of counsel; Montego was read his rights
and subsequently agreed to show police where the weapon was and wrote an apology to the victim’s wife
a. Did not meet his counsel until he returned
b. Trial court admitted the letter, state supreme court affirmed
2. Court overruled Michigan v. Jackson; held that Montejo should be given a chance to challenge the admissibility of the
letter under Edwards
a. Under Miranda, any suspect subject to custodial interrogation must be advised of his right to have a lawyer
present; under Edwards, once a defendant has invoked that right, interrogation must stop
b. Minnick v. Mississippi: no subsequent interrogation may take place until counsel is present
3. Dicta: seems to say person can waive right to counsel with Miranda warning
a. Before this, could not waive right to counsel through Miranda because it was a 5th Amendment case
 Potential issue: police can go to an unrepresented defendant, advise them of rights, and if they waive
they can waive right to counsel
 Ethics rules: cannot talk to a represented person (Hammad issue)
 Asserting 5th and 6th Amendment rights in advance by letter so that it’s clear they shouldn’t be
talking to your client
o Court in Montejo says in dicta you can’t assert rights in anticipation
P. Michigan v. Harvey: Impeachment exception to the exclusionary rule also applies to statements obtained in violation of the Massiah-
Henry 6th Amendment Right to Counsel
1. Compare with Havens which applied to 4th Amendment
2. Compare with Harris v. NY which applied to 5th Amendment
Q. Colorado v. Connelly: statements are only involuntary if they are the product of coercive conduct by police
1. Must be an essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant
R. Colorado v. Springer: When the suspect is given his Miranda rights, he does not need to be advised of all possible subjects of the
interrogation because the Miranda rights give notice that anything he says can and may be used against him
S. NY v. Quarles: Public safety exception to Miranda warning requirements
1. Ex: loaded gun in supermarket; having a bomb in school
T. Oregon v. Elstad: We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby
disabled from waiving his rights and confessing after he has been given the requisite warnings
1. When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations,
and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession.
2. We must conclude that, absent deliberate coercive or improper tactics in obtaining the initial statement, the mere fact that a
suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of
Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the
conditions that precluded admission of the earlier statement.
U. Arizona v. Fulminante: The first confession was coerced through the threat of prison violence; second confession was closely tied
and Court dismissed both.
1. If there is a constitutional violation, the government must prove beyond a reasonable doubt that it was harmless
V. Miller v. Fenton: Voluntariness of confession is determined by looking at totality of the circumstances
1. In this case, court looked at education level, age, criminal record, whether Miranda warnings were given, and the length of
interrogation
W. Allen v. Illinois: 5th Amendment right against self-incrimination applies to civil proceedings only if the purpose of the proceeding is
punitive in nature. It will not apply if the purpose of the proceeding is the safety of the defendant or others.