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Super-Crim-Pro 1



• DEFINING A CRIMINAL CASE___________________________________________________________

o United States v. L.O. Ward (1980)
 Facts: Penalty imposed upon persons discharging hazardous substances into navigable waters
 Holding: Criminal designation is a question of statutory construction
 Note: The court has continued to apply a high degree of deference to the legislature’s intention
o Kansas v. Hendricks (1997)
 Facts: D was committed under an involuntary civil commitment of sexual predators act just
before he was to be released from prison.
 Holding: The legislature’s manifest intent will only be rejected with the clearest proof that
the statutory scheme is so punitive in purpose or effect to negate its civil intention
 Reasoning: Confinement is not based on either of the fundamental criminal goals of retribution
and deterrence b/c it is based on danger to society and the mentally impaired cannot be deterred
 The court is not punishing Hendricks for the act, they are holding him because he is dangerous.
They are merely using the evidence of the past crime to show that he is dangerous.
 Cannot deter a state of mind; you have to treat it.
o Smith v. Doe (2003)
 Facts: Version of “Megan’s Law,” which required convicted sex offenders to register and have
information about their offenses made available to the public over the internet
 Holding: Megan’s Law registering of sex offenders is not criminal punishment
 Reasoning: There is no reason to believe that the legislature had any other intentions than to
protect the public from sex offenders
• Purpose is not to punish, but to protect the community.
 Dissent: The registration system is punitive b/c: (1) it is tantamount to probation or supervised
release; (2) based on the conviction of a past crime: (3) portions of the statute are in the State’s
criminal code; (4) is comparable to traditional “shaming” punishment
 Note: The law can always be changed by electing new representatives b/c statutes and state
constitutions can always grant citizens protection that exceed those provided by the Constitution
• THE INCORPORATION DOCTRINE_______________________________________________________
o Incorporation: When a constitutionally based decision binds both the Federal government and the
governments of the individual States
 The vast majority of criminal investigations are conducted at the State level
 The incorporation debate asks whether State government and actors are bound by Supreme Court
o Incorporation Timeline...
 Barron v. Baltimore (1833): The Bill of Rights applies only to the Federal government and not
against the States
 Civil War: Adoption of the 13th, 14th, and 15th Amendments
 Hurtado v. California (1884): California could permit criminal proceedings to be initiated by
information rather than grand jury indictment
 Twining v. New Jersey (1908): The federal privilege against self-incrimination is not binding on
 Powell v. Alabama (1932): Denial of counsel in a capital case denied the defendant of due
process guaranteed in the 14th Amendment
Super-Crim-Pro 2
 Palko v. Connecticut (1937)
• Facts: State passed legislation contrary to the Double Jeopardy Clause of the 5th Amendment
prohibition of government appeals and retrying of criminal cases
• Holding (Cardozo): The Bill of Rights is not completely absorbed into the 14th
Amendment; but particular amendments that are found to be so implicit in the concept
of ordered liberty are valid against the States through the 14th Amendment
• Note: Cardozo did not find the Double Jeopardy Clause to be such an implicit concept of
ordered liberty
 Warren Court (1960’s): Notoriously liberal court began to incorporate more and more of the
Bill of Rights into the 14th Amendment
o Duncan v. Louisiana (1968)
 Facts: State constitution contrary to 6th Amendment in limiting jury trials to cases in which
capital punishment or hard labor may be imposed
 Holding (White): If State law conflicts with a fundamental Federal principle, then the
Federal law is incorporated and translates “jot for jot” or “in-or-out” from Federal law to
State law (“Selective Incorporation”)
 Reasoning: The right to trial by jury is a fundamental right
 Note: This approach differs from Cardozo’s “fundamental fairness” analysis because it depends
on the perceived importance of the Federal law rather than a comparison between the Federal
and State laws
 Note: This is the modern Supreme Court perspective
 Concurring (Black): The 14th Amendment makes the Bill of Rights fully incorporated to the
States (“Full Incorporation”)
 Reasoning: Willing to support selective incorporation b/c it will eventually achieve the same
result by applying Federal case law “jot for jot”—not too many Federal rights are going to be
considered unimportant
 Note: Blacks’ analysis was correct. The only exceptions are that under Hurcado grand jury
indictment is not required in the States, and the 8th Amendment right to bail has never been ruled
on by the Supreme Court
 Dissenting (Harlan): The court should determine the principle on a case by case approach and
permit State laws to conflict with Federal laws when they are equally fair (“Fundamental
Fairness”) - non-incorporation
• The Bill of Rights is not necessary for fundamental notions of liberty – look to what is
fundamentally fair (ordered concepts of liberty)
 Reasoning: Provides a beneficial opportunity for State experimentation in criminal procedure
 Professor:
• Civil Libertarian likely would believe that people have more protection through full
incorporation, but perhaps they have less b/c the only way to allow States to experiment is to
lower the protection afforded by the Constitution, and the decision of 9 justices has a broad
• Perhaps w/o incorporation, criminal procedures would be more protective and the State
courts would look to the Supreme Court for guidance
 Impact of Duncan:
• When something is unconstitutional under the Bill of Rights, it binds all jurisdictions
• When the State is more protective than the Federal government, only the State actors are
• When the State is more protective than the Federal government, the amount of Federal
investigations will increase
o Graham v. Connor (1989)
Super-Crim-Pro 3
 Facts: Substantive Due Process claims against police officers for excessive force in making an
 Holding: In the criminal context, when there is a provision of the Bill of Rights that
appears to govern the rights at issue—that provision governs and the defendant cannot
seek further protection under the guise of general “due process”
 Reasoning: The 4th Amendment provides and explicit textual source of constitutional protection
for citizens faced w/arrest
 Exception: The Exclusionary Rule—when the police violate your rights the evidence gets

o In General
 US Constitution 4th Amendment: “The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.”
 US v. Verdugo-Urquidez (1990): “The People” as a Limiting Term
• Facts: Mexican citizen/resident apprehended by Mexican police and transported to US for
trial on federal drug charges. US officials, working w/Mexican police, conducted
warrantless searches of the defendant’s Mexican residence
• Holding (Rehnquist): The 4th Amendment does not apply to a search of property that is
owned by a non-resident alien and located in a foreign country
• Reasoning: “The people” is a term of art that refers only to a class of persons who are part of
the national community or have otherwise developed sufficient connection w/the US to be
considered part of the community
• Note: 5 Justices indicated they would have held that the 4th Amendment applies to searches
of illegal aliens conducted within the US
 State Action Requirement: The 4th Amendment is interpreted to only provide protection against
intrusion perpetrated by the government and those acting in conjunction with the government
 “Search” and “seizure” are legal terms of art that impair different interests
• Search: The part of the government action that is investigative; impairs privacy
• Seizure: Government exerts physical control over a person or property; impairs possession
or freedom of movement
• The 4th Amendment only applies to searches and seizure—if neither then no constitutional
o THE THRESHOLD QUESTION: IS IT A SEARCH?___________________________________________
 Katz v. United States (1967)
• Facts: Police Officers thought that D was transmitting information related to illegal gambling
from a public phone booth and recorded the conversations with an electronic listening device
attached to the outside of the booth without a warrant.
• Holding: The 4th Amendment governs not only the seizure of tangible items, but extends to
the use of electronic surveillance equipment
• Concurring (Harlan): In order to be recognized as a search or seizure: (1) a person
must have exhibited an actual (subjective) expectation of privacy and; (2) that
expectation must be one that society is prepared to recognize as reasonable
• Reasoning: The 4th Amendment protects people, not property. The government was not
certain that his activity was illegal until they listened to the conversation—potentially
invading the legitimate privacy and possessory interests of the innocent.
• Note: Harlan’s concurrence set the “expectations of privacy” standard. Prior to Katz, the
threshold search and seizure question focused on property rights
Super-Crim-Pro 4
• Note: Eventually, Justice Harlan reconsidered his own formulation b/c he believed the
objective prong of the standard could become impossible to meet if the government
regularly engaged in intrusive behaviors

• This case provides the governing standard of “What is a search”

• Two notions of reasonableness regarding the 2nd prong of Harlan’s Test.
o Empirical Reality – What does a typical person think about this? Does the typical person think
this should be public or private? Typically, arithmetically, statistically.
o Normative – What should people expect? What do the people have a right to expect from their

 Applications of the Katz Principle: Curtilage v. Open Fields

• Note: This line of cases began w/the property rights paradigm prior to Katz, holding that
curtilage is subject to 4th Amendment protection whereas open fields are not.
• Oliver v. United States (1984)
o Facts: POs drove past D’s farm to investigate reports that he was growing marijuana. POs
followed a footpath next to a gate w/a “No Trespassing” sign on it. Several hundred yards down
the road the POs found a field of marijuana.
o Holding: An individual has no legitimate expectation of privacy in activities conducted
outdoors except in the “curtilage” area surrounding the home
o Reasoning: There is no societal interest in protecting privacy of what goes on in an open field
(normative). Everyone knows that “no trespassing” signs really don’t prevent people in rural
areas from going on the fields (empirical).
o Note: “Open Field” really designates anything on a piece of property that is not cartilage

• US v. Dunn (1987)
o Facts: D’s ranch was surrounded by exterior and interior barbed wire fences. POs crossed both
fences and then noticed the smell of chemicals used in manufacturing narcotics coming from a
barn. POs approached barn, shined light through netting and observed a drug lab inside.
o Holding: In determining whether property is inside curtilage, the court should consider
factors including: (1) proximity of the area to the home; (2) whether the area is included
within an enclosure surrounding the home; (3) nature of the uses the area was put to; and
(4) steps taken by the resident to protect the area from the observation of passerby
Reasoning: Barn was 60 yards from hose, outside of the area enclosed by inner fence, no
objective indication that barn was used for private (e.g. romantic) interests, and there was
no protection from observation of passerby in surrounding open fields where POs stood
o Caution: Visual observation from area outside curtilage alone does not permit physical search
into the home, curtilage, or any other unclear area

 Applications of the Katz Principle: The Illegality Rule

• US v. Place (1983)
o Facts: D was detained at an airport for 90 minutes and narcotics sniffing dog was brought to the
scene. The dog indicated that contraband was inside the briefcase.
o Holding: If the only information that a search can possibly reveal is illegal activity, then
there is no reasonable expectation of privacy and the search does not invoke the 4th
o Reasoning: Very unobtrusive, does not subject D to the embarrassment and inconvenience
entailed in less discriminate investigative methods
Super-Crim-Pro 5
• US v. Jacobsen (1984)
o Facts: Federal agent obtained powder from a package opened by a Fed-Ex employee, suspected
narcotics, and performed a chemical field-test
o Holding: Warrantless chemical field-testing is not a search
o Reasoning: A chemical test that merely discloses whether or not something is cocaine does not
compromise any legitimate public interest in privacy
o Note: While the field test was found not to be a search, it was a seizure b/c the field test
destroyed the sample tested. This seizure was found to be reasonable b/c only a minimal amount
was destroyed and agent had clear indication prior to testing it was contraband

• Skinner v. Railway Labor Executives Ass’n (1989)

o Holding: Drug testing of urine samples is a search under the 4th Amendment
o Reasoning: Chemical analysis of urine, like that of blood, can reveal a host of private medical
facts and the visual or aural monitoring of the act of urination is a function traditionally
performed without public observation

 Applications of the Katz Principle: The Public Exposure Doctrine

• California v. Greenwood (1988)
o Facts: POs asked trash collector to pick up garbage bags D left on curb and turn over to them.
POs found items indicating narcotics use inside—used to obtain a warrant
o Holding: No reasonable expectation of privacy exists for objects and information exposed
to the public capable to render government scrutiny a search or a seizure
o Reasoning: Even if you subjectively believe that your privacy will be protected by throwing your
trash on the curb, society is not prepared to objectively find this belief reasonable due to the
possibility of people or animals going through it
o Professor: Jurisprudence in this area bases its decisions alternatively on notions of empirical
(what most people expect) and normative (what people have a right to expect) reasonableness—
never explicitly stating which is appropriate

• California Bankers Ass’n v. Shultz (1974) “Financial Records”

o Facts: POs suspected D was committing financial crimes and obtained his record from the bank
absent a warrant.
o Holding: Under the public access doctrine, any relinquishment of private information to a
public entity, even out of necessity, renders an otherwise reasonable subjective expectation
of privacy objectively unreasonable
o Reasoning: The depositors gave the banks access to their records out of necessity, precluding the
expectation that the government would not have access
o Note: Smith v. Maryland extended this rationale to find that pen registers do not constitute a
search because no legitimate expectation of privacy occurs when voluntarily conveying numeric
information to the phone company

• US v. White (1971) “False Friend cases”

o Facts: Government cooperator engaged D in conversation overheard by government agent using
a radio receiver
o Holding: No reasonable expectation of privacy exists when an individual unknowingly
exposes information to the public through a conversation with a government informant
o Reasoning: People shouldn’t expect privacy when they reveal sensitive information (normative)
o Policy: One contemplating illegal activities assumes the risk that a coconspirator may be
reporting to the police
Super-Crim-Pro 6

• California v. Ciraolo (1986)

o Facts: POs observed that D was growing marijuana inside his property while flying overhead,
despite two fences of 6 and 10 ft. respectively.
o Holding: Measures taken to restrict some views does not preclude a PO’s observation from
a public vantage point where he has a right to be and which renders the activities clearly
visible to the public
o Reasoning: Any member of the public flying in the public airspace could have peered into the
o Note: The government can fly over property and look down, even into what is the curtilage, and
it does not constitute a search

• Florida v. Riley (1989)

o Facts: POs needed to use a low-flying helicopter to obtain information on D’s property obscured
by a greenhouse
o Holding: Information is exposed to the public when it is legally possible for citizens to
conduct themselves in the manner employed by the government
o Reasoning: FAA regulations permit the flight of helicopters at the altitude police hovered, no
injury to the property was made, no intimate activities in the house or curtilage were observed
o Concurring (O’Connor): The proper test should be whether the public ordinarily has access to
the information sought by the POs, not whether it is legally possible for the public to do so
o Professor: 5 Justices (Concurrence + Dissent) that foreseeability should be the standard

• Bond v. US (2000)
o Facts: D was a passenger on greyhound bus which was stopped for a border check. The PO
checked immigration status, then began to walk up the aisle and gently squeeze all soft packages
in the overhead compartments including D’s. D admitted the bag was his own, consented to a
search, and PO found a brick of methamphetamine.
o Holding: An individual has a reasonable expectation of privacy from exploratory touching
of bags accessible to the public
o Reasoning: The public doesn’t ordinarily touch luggage in this manner (foreseeability)
o Professor: This likely would have come out differently if the PO touched the bag w/a flat palm in
the manner the public does
o Note: If D told the PO it was not his bag, then that equates to abandonment and opening it is not
a 4th Amendment protected search

• Kyllo v. US (2001)
o Facts: Acting on a tip that D grew marijuana, POs used a thermal imaging device outside the
house on public property and confirmed that abnormal heat consistent w/hydroponic lamps was
emanating from the home
o Holding: The use of sense-enhancing technology to obtain information regarding the
interior of the home that could not otherwise have been obtained without physical intrusion
constitutes a search
o Reasoning: Sanctity of the house, technology not in the public domain
o Professor:
 This case breaks from public-access precedent and it is unclear whether the crucial
fact was the technology or the home.
 Not clear how the court will reconcile Place w/Kyllo if the drug-sniffing dog is
brought to the house?
Super-Crim-Pro 7
 Reliance on the foreseeability of intrusive technology as the test for reasonable
expectations reiterates Harlan’s criticism of his own test, and the novelty of the
technology at the given date s a poor test b/c a case can last for years w/o resolution
in the judicial system before resolution

O THE THRESHOLD QUESTION: IS IT A SEIZURE? __________________________________________

 US v. Mendenhall (1980)
• Facts: D was suspected of being a drug courier and was observed by plain clothed DEAs at
an airport. The DEAs approached D, announced their identity, and asked to see her ID. D
produced a valid license and a ticket under a false name. D became very nervous. DEAs
asked D to accompany them to their airport office and D consented. DEAs asked D if she
would allow a search of her person. Drugs were found pursuant to a strip search.
• Holding: A person has been “seized” within the meaning of the 4th Amendment only if,
in light of the totality of the circumstances, a reasonable person in D’s position would
have believed he was not free to leave
• Reasoning:
o Actions that would lead a reasonable person to believe they were not free to leave include: (1)
the presence of several threatening officers; (2) the display of a weapon; (3) a form of physical
touching; and (4) the use of forceful tone of voice
o In this case, even if D didn’t actually know she was free to leave, a reasonable person would
have believed they were b/c the DEAs returned the ticket and license and asked for permission
• Note: POs can approach an individual in a public place and ask questions w/o invoking the
4th Amendment. However, an individual can decline to answer, is free to leave, and refusal
does not create sufficient reasonable suspicion to detain the individual even momentarily.
• Professor: The “free to leave” test is based on the normative assumption that individuals are
aware of their right to decline cooperation with law enforcement.
 Florida v. Royer (1983)
• Facts: Suspected drug courier as in Mendenhall, except that this time POs kept D’s ticket and
license within their possession and retrieved his luggage w/o consent
• Holding: An individual is effectively seized when POs gain possession of the individual’s
property in a show of official authority
• Reasoning: D was effectively seized b/c he could not leave w/o his license, ticket, and
 US v. Drayton (2002)
• Facts: Ds were traveling on a greyhound and when the bus stopped to refuel the driver
permitted POs to engage in a routine drugs and weapons interdiction effort. One officer
monitored the front exit w/o blocking the aisle, another went to the back, and another went
from row to row asking for consent to search luggage. PO noticed that Ds were wearing
baggy clothing and jackets in warm weather, got consent to search and found narcotics. Ds
made a motion to suppress on the grounds that they were unaware they were free to leave,
and that POs should have informed them.
• Holding: There is no per se rule that POs must inform individuals they are free to leave
and decline cooperation with law enforcement
• Reasoning: POs requests for consent are actually a factor in favor of the government’s claim
that an objectively reasonable person would have felt free to leave
 Brower v. County of Inyo (1989)
Super-Crim-Pro 8
• Facts: POs set up a blind roadblock to stop D as he went around a curve. D didn’t have
time to stop and crashed into it—killing himself. In this wrongful death action D’s family
contended he was illegally seized by the roadblock.
• Holding (Scalia): A seizure only exists when the government terminates an individual’s
freedom of movement through means intentionally applied
• Reasoning:
o Seizure does not occur whenever there is a governmentally caused termination of an individual’s
freedom of movement, nor when the government desires such a termination
o In this case, the POs placed the roadblock w/the intent of stopping D and it did just that—even
though he wasn’t stopped in the way desired.
 California v. Hodari D. (1991)
• Facts: PO observed a group of youths huddled around a car that fled when they saw him. PO
chased D, who threw a rock before being tackled by the PO. The rock was crack. D
motioned to suppress on the ground that the pursuit was a seizure.
• Holding:
o A nonphysical show of authority by a government actor is only a seizure if: (1) a reasonable
person would not feel free to leave; and (2) the citizen actually submits
o An intentional physical touching or grabbing by a government actor is always a seizure
• Reasoning: Suspects should not be rewarded for noncompliance w/law enforcement
• Policy: Danger of abuse is slight b/c POs do not issue orders expecting them to be ignored
• Note: Momentary hesitation and direct eye contact prior to flight does not constitute a
submission to authority (Hernandez)

o WARRANTS______________________________________________________________________
 Constitutional Interpretation
• Natural reading of the 4th Amendment seems to lead to the conclusion that warrants aren’t
necessary, but if they are used then probable cause is needed
• However, the Supreme Court reads the 4th Amendment under the assumption that the drafters
believed searches would only take place w/warrants, and therefore that a warrant and
Probable Cause are required unless an exception applies
• Although the people who argue for warrants won the syntax debate, the “reasonableness”
argument has won the pragmatic argument b/c the vast majority of searches/seizures will fall
into the exceptions category (probable cause is not always necessary, reasonableness is)
 The Reason for the Warrant Requirement
• Johnson v. United States (1948)
o Facts: POs received information that D was smoking opium in his hotel room. An hour later, PO
searched the apartment w/o a warrant
o Holding: Barring exceptional circumstances, police need to obtain warrants from neutral
magistrates prior to searches
o Reasoning: Preserve the record and prevent POs from building probable cause after the fact
o Policy: Protect the competing interests of citizens against POs in the heat of search
 Check the PO’s discretion
 Make the warrant approval objective
 Warrants set forth the specific terms of the search
 Affidavit creates a record
 Demonstrating Probable Cause
• Aguilar v. Texas (1964)
Super-Crim-Pro 9
o Facts: POs executed a search warrant which was issued upon a PO’s affidavit that he had
“received reliable information from a credible person and do believe” that narcotics were being
illegally stored on the described premises.
o Holding: A conclusory statement absent a description of the underlying circumstances
sufficient for a neutral magistrate to make an independent determination of validity is
inadequate to establish probable cause
• Spinelli v. United States (1969)
o Facts: FBI to obtained a search warrant on the basis of an application stating that a reliable
informant told the FBI that D was a bookie who used two phone numbers out of an apartment in
Missouri corroborated by evidence he traveled from Illinois to a Missouri apartment w/two
phone numbers
o Holding:
 If the veracity and basis of knowledge both exist, then probable cause exists to
issue a warrant based on an informant’s tip
 If either veracity or basis of knowledge do not exist, then the magistrate can use
the information in addition to significant PO corroboration to conclude that
sufficient probable cause exists to issue a warrant based on an informant’s tip
o Two-Part Test:
 Reliability: Veracity (Trustworthiness)
• Established by: (1) Generally believable; (2) Proven record as an informant; (3)
Motive to be helpful to the police; (4) Accomplices’ statements against interest
 Credibility: Basis of knowledge
• Established by: (1) Disclose of the source (e.g. observation, rumor, etc...); (2)
Self-verifying detail
o Professor: Under Aguilar-Spinelli, an argument can be made that the corroborative information
must itself be incriminating in order to satisfy probable cause.
o Caution: The rigid Aguilar-Spinelli two-prong test has been overruled by Gates. However, NY
and several other states have retained it and it is still used by Federal courts as a factor under the
Gates test
• Illinois v. Gates (1983)
o Facts: POs received an anonymous letter that Ds made their living by trafficking in drugs, had
drugs in their house, and set forth a modus operandi of how they obtained the drugs and gave
dates for the next purchase. POs were able to confirm that Ds’ activities were as predicted in the
letter (wife drove her car to Florida, checked into room, husband had reservations to fly to
Florida, car headed north the day after the husband arrived). Search warrant was issued, executed
and revealed drugs and weapons
o Holding: Although the Aguilar-Spinelli two-prong test is a highly relevant factor in
determining whether probable cause exists, a magistrate’s decision is to be based on a
common sense analysis of the totality of the circumstances rather than conformity to a rigid
set of rules
o Reasoning: The anonymous letter alone would not provide sufficient basis for probable cause
under Aguilar-Spinelli b/c it provided nothing from which the POs or magistrate could conclude
reliability or credibility. However, the high degree of detail in the corroboration is enough for a
common sense decision that probable cause existed
o Professor: Gates makes it easier to get warrants in two circumstances particularly: (1) If one
prong of the Spinelli test is very strong, it salvages the weak prong; and (2) Makes it clear that
corroboration of innocent facts is sufficient to bolster the inference of culpability
• Maryland v. Pringle (2003)
Super-Crim-Pro 10
o Facts: PO pulled over a car for speeding at 3:15 am, there were three occupants, when D
reached for his registration in the glove compartment, PO observed a large roll of cash. PO
asked D if there were any drugs or weapons in the car, D said, “no” and consented to a search
that revealed $763 and five glassine bags containing cocaine found behind the back-seat armrest.
None of the three men offered any information regarding the ownership of the drugs or money,
and all were arrested and transported to the station
o Holding: If sufficient probable cause would exist to arrest a single suspect, then sufficient
probable cause exists to arrest multiple suspects when it is a reasonable inference absent
“singling out” information that any of the suspects had particular knowledge of the crime
or exercised dominion over the incriminating evidence
o Professor: The quantum of suspicion necessary for Probable Cause is clearly less than a
preponderance of the evidence
• Whitley v. Warden (1971)
o Holding: Once a PO demonstrates to a magistrate that probable cause exists to arrest a
suspect, any other PO can make the arrest on the assumption that the warrant is valid
absent independent knowledge
o Policy: Practicality
o Note: This is known as the rule of “collective knowledge”
 The Types of Things That Can Be Searched or Seized
• Warden v. Hayden (1967)
o Facts: D was convicted of armed robbery based, in part, on the introduction of a cap, a jacket,
and trousers, which had been discovered during a search of D's home. The clothing matched the
description of clothing having been worn by the perpetrator of the armed robbery. D received
federal habeas corpus relief (throwing out the conviction) from the Circuit Court b/c at the time
the Fourth Amendment permitted only the “fruits and instrumentalities” of a crime to be
admitted and not “mere evidence”
o Holding: Probable cause must be examined in terms of the nexus b/w the item to be seized
and criminal behavior creating cause to believe that the evidence sought will aid in
apprehension or conviction – mere evidence can be seized (in addition to fruits,
instrumentalities, and contraband)
o Reasoning: POs could reasonably believe that the items would aid in the identification of the
o Professor: In practice, probable cause that defendant committed a crime will almost always
provide sufficient Probable Cause for a magistrate to issue a warrant to search defendant’s home
o Notes: rejecting the “mere evidence” rule expands for PO’s and prosecutor’s the parameter’s of
acceptable searches.
• Zurcher v. Stanford Daily (1978)
o Facts: D was a newspaper photographer suspected of having photos of demonstrators who
attacked POs. Warrant authorized POs to search his office, including other employee’s cabinets
and files.
o Holding: There is nothing special about an innocent third party’s premises—the question
remains whether there is probable cause to believe that evidence of a crime will be found in
the place specified
o Reasoning: Often POs do not know the identity of the criminal early in an investigation, and the
innocent third party may not be innocent at all
• Winston v. Lee (1985)
o Facts: D shot during the course of committing a robbery. POs obtain court order forcing D to
undergo surgery to remove bullet lodged 3 cm below the surface of his skin—involving disputed
medical risks
Super-Crim-Pro 11
o Holding: A search may be so intrusive and extreme that it is unreasonable even though
pursuant to a warrant based on probable cause
o Reasoning: Although pursuant to a warrant and Probable Cause, reasonableness is always
required, and the intrusiveness in the absence of a compelling need for the bullet was
o Note: Additionally, a magistrate may find a warrant application unreasonable even if probable
cause exists when the scope is too broad
o Technical Requirements of a Warrant
 Requirement 1: Neutral (Detached) Magistrate
• Coolridge v. New Hampshire (1971)
o Facts: Warrant issued by the State Attorney General
o Holding: Warrants must be issued by members of the judicial branch
o Reasoning: The State’s head of law enforcement is not “neutral and detached”
o Note: Members of the judiciary are not neutral and detached when they are paid more for issuing
warrants or where they act as a “rubber stamFp” and do not read the application
• Shadwick v. Tampa (1972)
o Facts: Warrants issued by judicial clerks w/o legal training
o Holding: Clerks, and any member of the judiciary, qualify as fair and neutral even if they
do not have any legal training
o Reasoning: Our legal system has long entrusted non-lawyers to evaluate the most complicated
burdens of proof including beyond a reasonable doubt
 Requirement 2: Reasonable Particularity
• Technical precision is not required under the 4th Amendment, only reasonable particularity is
o Policy Behind the Particularity Requirement
 Particularity of the premises prevents general searches (a practice used by England
against the colonies) of a whole block by requiring that the PO identify a specific
 Particularity of the things to be seized is necessary to create a record for the
determination if the POs execution of the warrant was reasonable
o Professor: In practice, prosecutors will often make sure that the warrant contains some “little
things” (e.g. bullets used in the gun) in order to expand the permissible scope
• Maryland v. Garrison (1987)
o Facts: Warrant authorized the search of a 3rd floor apartment, although there in fact where two
apartments on the 3rd floor. POs were unaware of this b/c utility company and phone records
only indicated one residence, and upon examination the POs only observed one buzzer for the 3rd
floor in the lobby. Before realizing they were in the wrong apartment, POs found contraband in
D’s apartment which led to his conviction
o Holding: Reasonable particularity is determined by the nature of the item sought or place
to be searched and the information that the PO had or reasonably should have had prior to
the warrant application
o Reasoning: Warrant upheld because the police conducted an appropriate investigation and
reasonably believed there was only one residence on the 3rd floor
o Note: A mistaken street address will render a warrant defective if there is no description of the
premises on the warrant
o Note: A warrant to search a house permits the search of any containers on the premises or in the
curtilage which reasonably could contain the item specified in the warrant
 Requirement 3: Reasonable Execution
• Wilson v. Arkansas (1995)
Super-Crim-Pro 12
o Holding: The Framers intended the warrant clause’s reasonableness standard to include
the practice of knocking and announcing absent exigent circumstances
o Policy: (1) Actually safer to knock and announce then to run the risk of a mistaken home
invasion; (2) Prevents the unnecessary destruction of property; (3) Protects the individuals
privacy rights (not caught while fucking on the living room couch)
o Exigency Policy: (1) Safety of the officers and suspect; (2) Destruction of Evidence; (3) Flight of
the suspect
o Note: It is D’s burden to establish a prima facie case that entry was unannounced
• US v. Banks (2003)
o Facts: POs knock and announce, waited 15-20 seconds, then busted through the door. D was in
the shower and didn’t hear them until they busted in.
o Holding: Exigency is determined from the perspective of the government
o Reasoning: It was reasonable for POs to believe D was in the process of destroying evidence
o Caution: This does not create a per se narcotics exception b/c if the amount of drugs was very
large, then the exigent circumstances after knocking would not exist
o Note: Magistrates may issue no-knock warrants when sufficient cause can be demonstrated to do
so ahead of time
• The Patriot Act, “Sneak and Peek” Warrant
o Permits government agents to covertly enter suspected terrorist affiliated individual’s home or
office w/o notice and search their belongings on an ongoing basis
o Policy: The new law enforcement model is proactive rather than reactive and shifts the focus to
conspiracy laws and other earlier interventions
o Criticism: The only check on the sneak and peak executing searcher is the judiciary absent an
adversarial process

o EXCEPTIONS TO THE WARRANT REQUIREMENT_______________________________________

 In General
• Some exceptions dispense only w/the warrant requirement while retaining the probable cause
requirement. Others dispense w/both the warrant and the probable cause requirement
• However, the Supreme Court has been careful to never dispense w/the reasonableness
• In general, a PO must have probable cause that a crime has been committed and that the
suspect has committed it in order to obtain a warrant for the suspect’s arrest
• US v. Watson (1976)
o Facts: PO arranged a meeting b/w D and CI at restaurant; CI indicated D was in possession of
stolen credit cards, PO arrested D w/o a warrant.
o Holding: Warrantless arrests in public places are constitutional under the 4th Amendment
when based on Probable Cause, even absent exigent circumstances
o Reasoning: Historically, no warrant is required in a place open to the public if there is probable
cause that D has committed a felony or a misdemeanor was committed in the officer’s presence
o Concurring (Powell): This rule is anomalous b/c it sets up more rules for the seizures of things in
public places than it does for persons
o Professor: Despite Watson, many arrest warrants still do issue in order to gain a psychological
advantage and to reinsure POs that Probable Cause exists in close calls
• Atwater v. City of Lago Vista (2001)
o Facts: PO arrested soccer-mom D for a minor traffic offense, and instead of getting a ticket she
was detained and brought to the police station
Super-Crim-Pro 13
o Holding: Warrantless arrests for minor misdemeanor offenses are constitutional under
the 4th Amendment when based on Probable Cause, even absent exigent circumstances
o Reasoning: It is too difficult to distinguish among offenses that could justify custodial arrest and
those that could not
o Note: The decision to proceed by summons or arrest is totally within the PO’s discretion
• Payton v. New York (1980)
o Facts: POs established Probable Cause that D committed murder but did not obtain a warrant.
They went to D’s apartment to arrest him, knocked on his door and he did not answer. They
broke into his apartment, and although D was not found, a .30 caliber shell was that was used
against him at trial. D objects on the grounds that a search warrant was necessary.
o Holding: The 4th Amendment requires an arrest warrant and reasonable suspicion that the
suspect is home in order to arrest a suspect in his home (and break down his door if he
doesn’t answer)
o Reasoning: An individual has an objectively reasonable expectation of privacy in his own home
that he does not have in public, and Probable Cause alone is insufficient protection
o CAUTION: An arrest warrant is different from a search warrant in that a search warrant must be
location specific under the particularity rule.
 Probable cause for a search warrant: Magistrate must sign off that a crime was
committed, D committed it, and D is likely to be found on particular premises b/c...
(e.g. the lights were on, the music is on)
 Probable cause for an arrest warrant: Magistrate must sign off that crime was
committed, D committed it
o Policy: Payton finds that an arrest warrant is protection enough b/c requiring a search warrant is
not feasible due to the fact that people are mobile by nature
o Professor: Reconcile Watson and Payton by thinking that the suspect becomes “arrestable” once
probable cause exists that a crime was committed and he did it. In other words, it is not the
suspect’s expectation of freedom from arrest that requires the warrant for an arrest in his home—
it is the reasonable expectations of privacy within the house.
o Note: Payton does not apply to common hallways or Ds visible at the threshold of the door
• Steagald v. US (1981)
o Facts: POs obtained an arrest warrant for suspect, whom informant told them was staying on
third party’s (D) premises. POs searched D’s house looking for suspect fugitive, but only found
drugs used to incriminate D. POs only had an arrest warrant and not a search warrant
o Holding: Absent exigent circumstances or consent, a search warrant is necessary to look for
a suspect in the home of a third party
o Reasoning: Necessary to protect the privacy interests of the third party in his home and protect
against police manipulation resembling the use of general warrants
o Note: Probable Cause must be shown and signed off on by a magistrate that the suspect is in the
home of the third party
o CAUTION: The remedy for a Steagald violation is a civil action and suppression of any
incriminating evidence against the third party. The suspect does not have standing for a motion
to suppress
o CAUTION: Third-party co-residents choose to live w/the suspect, so Payton governs—you do
not have the same reasonable expectation of privacy (assumption of the risk argument, “you
should know better”). Additionally, the risk of a general warrant is not present b/c the search is
limited to a single premises.
o Professor: Watson, Payton, and Steagald are not intended to protect the individual’s interest in
liberty b/c liberty is overruled by probable cause for the arrest warrant. Instead these rules
protect the privacy interest of the area in which the suspect is located
Super-Crim-Pro 14
• Minnesota v. Olson (1990)
o Holding: An arrest warrant is required under Payton to arrest an overnight guest in the
home of a third person
o Note: An overnight guest has standing to suppress incriminating evidence found by POs during
the warrantless search of a third-party homeowner’s premises
o Policy: An overnight guest has a legitimate expectation in privacy
o Professor: It is unclear whether Payton or Steagald govern the admissibility of evidence against
the homeowner when the overnight guest has a reasonable expectation of privacy. Scalia’s view
that Olson is the outer limit of reasonable expectations of privacy suggests that only an arrest
warrant would be required under Payton. However, if you were advising the POS you would
have to insist on a search warrant under the black-letter Steagald rule in order to be certain you
are not violating the homeowner’s rights
• Minnesota v. Carter (1998)
o Facts: D made a motion to suppress incriminating evidence found during the warrantless search
of an apartment he was only in for several hours for the limited purpose of cutting up cocaine
o Holding (Rehnquist): No warrant is required to arrest a temporary visitor in a third
party’s home, and the visitor has no standing to suppress incriminating evidence found
during the warrantless search
o Reasoning: No reasonable privacy interest existed due to the commercial nature of the
transaction engaged in, the limited time period on the premises, and the lack of any previous
connection to the home
o Concurring (Scalia): Minnesota v. Olson represents the outermost limit of what the Supreme
Court will recognize as a temporary residence coming under Payton protection
o Dissenting (Ginsburg): A guest should share the homeowner’s shelter against unreasonable
searches and seizures
• Gerstein v. Pugh (1975)
o Holding: Although an individual is entitled to a prompt judicial hearing of probable cause
after warrantless arrest, no adversarial safeguards are required
o Reasoning: While a warrant is not necessary for a public arrest, post-arrest protections are
necessary to minimize the harm to a person arrested w/o Probable Cause. These protections
should not exceed that provided when a neutral magistrate issues a warrant prior to arrest.
• County of Riverside v. McLaughlin (1991)
o Facts: Riverside was one of many jurisdictions that consolidated the informal Probable Cause
determination w/the formal arraignment proceedings. A Probable Cause hearing was required
within 2 days of arrest, but excluded weekends and holidays from the computation. For this
reason, suspects would often be detained for 4 days or more w/o a hearing.
o Holding:
 A judicial determination of probable cause within 48 hours of arrest is immune
from systemic 4th Amendment challenges, but delays within 48 hours may be
found unreasonable if for the purpose of gathering additional information to use
in the Probable Cause determination or motivated by ill will
 If a probable cause determination is not received within 48 hours then it is
presumed unreasonable and the burden shifts to the government to demonstrate
the existence of an emergency or other bona fide emergency
o Reasoning: The court goes to lengths to avoid acting as the legislature by characterizing this as a
“burden shift rule”
• Terry v. Ohio (1968)
Super-Crim-Pro 15
o Facts: Experienced PO becomes highly suspicious that D is “casing” a store and plans to stick
it up. PO approached D and identified himself, physically spun D around, patted him down,
removed his jacket, and seized a concealed gun.
o Holding: Reasonable suspicion suffices to justify a police officer to stop an individual for
further inquiry and frisk the individual’s person w/o a warrant as long as the scope of the
frisk is limited to protect the PO’s and public safety
o Reasoning:
 In certain situations it is not reasonable to obtain a warrant, and therefore the
reasonableness clause gets invoked over the warrant clause
 Ds actions warranted a suspicion necessitating further inquiry and the PO was entitled
to frisk D for the limited purpose of protecting his safety in pursuing the inquiry
o Policy: The governmental interest in crime prevention, the detection of criminals, and the safety
of the public and POs outweighs the private interest in freedom from minimally intrusive
governmental searches
o Professor:
 Remember, whenever a PO accosts an individual and restrains his freedom to walk
away, a “seizure” of the person has taken place
 This case was a compromise b/c it diminishes the warrant requirement yet excludes
evidence exceeding the scope of a stop and frisk

• Adams v. Williams (1972)

o Facts: Informant, whom PO knew by name and to be reliable, told PO that D was sitting in
nearby car w/a gun in his waistband and a large quantity of heroin in his possession. PO tapped
on car window and asked D to open the door. D only opened his window. PO reached into the
car and grabbed a gun from D’s waistband.
o Holding: A PO’s forcible stop is reasonable under the 4th Amendment if based on suspicion
derived from a reliable source and a frisk is permissible whenever the officer reasonably
fears for his safety
o Professor: This case was potentially distinguishable from Terry b/c reasonable suspicion was not
based on personal observation and there was no victim in the sense of Terry
• Penn. v. Mimms (1977)
o Facts: POs observed D driving w/an expired license plate and pulled him over in order to issue a
summons. PO ordered D out of the car according to recommended PO procedure. All the police
know about D prior to telling him to get out of the car is that he committed a traffic violation (no
reasonable suspicion armed and dangerous). PO noticed a large bulge in D’s jacket which he
believed to be a weapon. PO frisked D and discovered a loaded revolver.
o Holding:
 (Narrow) In the course of a legal stop of an automobile, POs have an automatic
right under Terry to order the driver out of the vehicle
 (Broad) If a search/seizure is minimally intrusive, the court will analyze the
reasonableness of the POs actions through a balancing of governmental v.
private interests rather than formally require PC and a warrant
o Reasoning: The court is very deferential to PO claims to the safety of this procedure in
preventing assaults and driver-side traffic injuries. This interest in PO safety outweighs the
minimal invasion in liberty
o Professor: The empirical data out there doesn’t really matter. POs testify differently in each
case, and the holding would be identical if POs ordered suspects to stay in the car
• Maryland v. Wilson (1997)
Super-Crim-Pro 16
o Holding: The bright line rule of Mimms applies to passengers as well
o Reasoning: On balance, the POs legitimate concern for safety from assaults is greater even
though the concern for traffic safety is less, and the passenger has very little interest since the car
is stopped anyway.
o Burke: CT says nothing about the consequences of the passenger attempts to leave the situation
– do the PO have the authority to force the passenger to stay
 Doctrinally, if the PO did, in fact, force the passenger to stay, that constitutes a
seizure, therefore, the PO would have to have reasonable suspicion for forcing the
passenger to stay
 However, it is likely that if a passenger attempted to leave, a PO would view that as
being suspicious thereby creating reasonable suspicion
• New York v. Class
o Facts: D was stopped for a routine traffic violation and the POs could not inspect his Vehicle
Identification Number (VIN) b/c it was covered by papers on the dashboard. The PO entered the
car to move the papers and discovered a gun.
o Holding: In order to observe a VIN, a PO has the automatic right to reach into a vehicle to
move obstructions after the passenger has exited the car
o Reasoning:
 The POs need to see the VIN to run checks on the automobile, and removing
obstructions from the dashboard is de minimus intrusive
 There is no justification to enter the car if the VIN is visible
o CAUTION: The NY Constitution rejects Class on the grounds that the interest in observing a
VIN is insufficient to outweigh privacy

 Demonstrating Reasonable Suspicion

• In General
o The analysis is similar to that used for Probable Cause
o The analysis looks to: (1) the source of the suspicious information; and (2) the quality of the
• Source of Suspicious Information
o Remember:
 Terry: 1st Hand Experience is reliable
 Adams: Known informant is reliable
o Alabama v. White (1990)
 Facts: PO received anonymous tip that D would be leaving specific apartment in a
specific model car with a broken taillight, drive to a specific motel, and carry brown
attaché case containing cocaine. POs corroborated car and destination, but D was not
carrying brown case. POs stopped D short of the hotel, and D consented to a search
of the brown attaché case in her car. Case contained marijuana. Cocaine found in D’s
 Holding: Reasonable suspicion sufficient to justify a Terry stop can be
established through an anonymous informant if the tip demonstrates “future
behavior” or other inside information that displays a special familiarity with the
defendant’s affairs
Super-Crim-Pro 17
 Reasoning: The standard for meeting the “reasonable suspicion” standard requires
a lesser showing than the Gates totality of the circumstances approach, which focuses
on the veracity and basis of an informant’s knowledge
 Note: This would not pass probable cause muster
o Florida v. J.L. (2000)
 Facts: POs received call from anonymous informant that a young black male standing
at a bus stop wearing a plaid shirt was carrying a gun. 2 POs responded. At the bus
stop, they observed three black men, one wearing a plaid shirt (D). POs did not
observe the firearm and did not notice the D or others make any threatening or
suspicious movements. POs stopped and frisked D, found a gun and seized it.
 Holding: There is no firearms exception that provides reasonable suspicion on
the basis of anonymous tips corroborated by apparent innocent conduct
 Reasoning: There is no information regarding the informant’s veracity, nor predictive
information to corroborate
 Policy: Too much of a danger for harassment of innocents
 Dicta: Reasonable suspicion would exist off of anonymous tips alone to Terry stop
and frisk suspects if the tip is: (1) of a substantially great danger (e.g. terrorism,
bomb); or (2) relates to quarters where the expectation of privacy is traditionally
diminished (e.g. airports, schools)
o US v. Sokolow (1989)
 Facts: POs found that D matched a drug courier profile in that he was traveling under
an alias, carried little luggage, and stayed for a short time at his destination before
taking a return flight. POs stopped and frisked D and found drugs. D claimed that
the profile was insufficient to establish reasonable suspicion.
 Holding: The facts that give rise to a profile match may establish reasonable
suspicion if the POs can articulate the suspicious behavior these facts suggest
 Reasoning: A profile does not create reasonable suspicion, the facts do
 Note: Under the collective knowledge doctrine, a PO doesn’t need to have
independent subjective reasonable suspicion if he is informed that reasonable
suspicion exists
 Policy: Practicality—otherwise only one PO could arrest a fugitive
• Quantum of Suspicion
o In general, Reasonable Suspicion is as amorphous a concept as Probable Cause
 Must be more than a hunch, but less than probable cause
 Depends on the totality of the circumstances
o US v. Arvizu (2002)
 Facts: During a shift change, border patrol PO was alerted by magnetic sensor that an
automobile was driving in a location frequented by drug smugglers attempting to
circumvent checkpoints. PO drove to the location the next senor went off and
observed D’s automobile. D slowed down dramatically upon seeing the PO. The
driver became stiff, and the PO noticed that the children in the back seat’s knees were
unusually raised. The children waived in a very mechanical, coached way. PO
pulled D over, D consented to a search, and PO discovered 128.85 pounds of
marijuana worth $99,080 under the children’s feet. 9th Circuit held the traditional
view that facts with otherwise innocent explanations couldn’t establish reasonable
 Holding: Reasonable suspicion determinations must be based on a common
sense analysis of the totality of the circumstances w/deference to PO experience
Super-Crim-Pro 18
rather than an isolated viewing of suspicious facts to determine whether any
innocent explanation exists
 Reasoning: It is possible that the minivan might just be a family car registered to a
smuggling location, the driver might just be nervous around POs, and the kids just
like to wave. It’s a lot more likely that it is a smuggling car owned by smugglers who
feel nervous b/c they’re guilty and try to cover it up by making their kids wave.
o Relevance of the Race of the Suspect on Reasonable Suspicion
 Acceptable: Physical description of perpetrator
 Controversial: POs don’t have a description, but race makes individual appear more
suspicious (e.g. Mexicans in a car at the border)
 Lower Courts are split
o Illinois v. Wardlow (2000)
 Facts: PO caravan converge on high crime area. POs observe D running in the
opposite direction. POs chase him, catch him, frisk him, discover gun and seize it.
 Holding: There is no per se rule that flight from POs creates reasonable
suspicion—it is only a factor in the totality of the circumstances
 Reasoning:
• Flight is not necessarily indicative of wrongdoing—but it is suggestive of it
• In this case, the flight occurred in a high crime neighborhood and therefore
reasonable suspicion existed
 Professor: Ironically, the court’s finding of reasonable suspicion on only flight and a
high crime area resembles a per se rule
 Note: The court distinguishes refusing to engage in a mere encounter, which is
presumed innocent under Mendenhall, from unprovoked flight which common sense
indicates is suspicious
 Criticism: The court is essentially saying that “reasonable people don’t run from the
police,” but if Terry stops happen to the same community frequently enough, then it
is reasonable for them to run the next time

 The Line Between a Terry Stop and an Arrest

• In General
o 4th Amendment Review
 Not a seizure (Hodari): No 4th Amendment protection
 Terry Stop: Requires Reasonable Suspicion
 Arrest: Requires Probable Cause
o Paradigm
 The quintessential Terry stop is brief in duration and minimally intrusive
 The quintessential arrest involves confrontational demeanor and handcuffs
• Determinative Factors
o US v. Sharpe (1985)
 Facts: POs stop one car, the other keeps going. Due to the logistics of this stop, the
stop took longer than the normal Terry stop
 Holding: Where there is no undue temporal delay and POs acted w/due
diligence, then a stop is generally permissible under Terry
 Note: Undue delay results in a de facto arrest
o Davis v. Mississippi (1969)
Super-Crim-Pro 19
 Facts: POs rounded up a group of 20 African American males, including D, for
questioning and fingerprinting to match a print left on the window sill of a rape
 Holding: The movement of an individual to a police stationhouse for the purpose
of fingerprinting is sufficiently similar to arrest to require probable cause
o Hayes v. Florida (1985)
 Facts: POs had reasonable suspicion but not probable cause that D was the perpetrator
of a rape. POs escorted D to the stationhouse, against his consent, for purposes of
 Holding: Whenever POs forcibly move an individual to the stationhouse w/o
consent, they are making a seizure that must be considered an arrest requiring
probable cause
 Dicta: Field test fingerprints would be permissible under Terry if short in duration
 Note: Permissible Terry movement includes order D out of car and driving suspect to
the scene of crime for show-up ID
o Hiibel v. 6th Judicial District of Nevada (2004)
 Facts: POs received a call reporting that a man had assaulted a woman inside a red
and silver GMC truck on a particular road. PO arrived at the scene and observed a
truck matching the description on the side of a road. A man (D) was standing outside
the truck and a woman was inside. The PO approached D and indicated he was there
investigating a fight, then he requested ID. The man refused, grew agitated, and the
PO arrested him pursuant to a Nevada “stop and identify” statute compelling
disclosure of identification to a PO upon request.
 Holding: Although the 4th Amendment cannot require a suspect to answer PO
questions, the principles of Terry permit a State to impose penalties for the
failure to disclose identification in the course of a Terry stop
 Reasoning: Questions concerning a suspect’s ID are an accepted part of Terry stops,
and they promote legitimate government interests in determining if a suspect is
wanted for other offenses, has a record of violence or mental disorder, and may
actually clear innocent suspects. The penalty ensures that this request is not a nullity.
o Ohio v. Robinette (1996):
 Facts: PO stopped D w/reasonable suspicion of a traffic violation. PO gave D a
verbal warning, checked his registration, than asked “One question...you have any
illegal contraband on you?” D said no, consented to search and drugs were found
 Holding: There is no bright line requirement that a PO inform a suspect that he
is free to go after a Terry stop has ended before beginning a consensual
encounter regarding a suspicionless matter
 Scope of the Frisk under Terry
• In General, justification for the frisk is the safety of the PO, therefore the PO is only justified
to search the individual for weapons to determine if “armed and presently dangerous”
• Minnesota v. Dickerson (1993)
o Facts: PO conducted a lawful stop and frisk. During the pat-down, PO felt a small hard object in
D’s pocket. PO determined it was not a weapon, but continued to squeeze the object until
determining it was crack. PO seized the crack.
o Holding: Terry frisks are justified only for protective purposes and searches for evidence
are impermissible
o Note: This becomes a credibility issue if PO claims he thought evidence was a weapon
• Michigan v. Long (1983)
Super-Crim-Pro 20
o Facts: D was stopped after swerving and driving into a ditch. D was outside of his car when
approached by POs and did not respond to request to obtain driver’s license. POs observed a
knife and conducted a protective search that revealed marijuana in D’s glove compartment
o Holding:
 When a suspect is Terry stopped in a car, POs may “frisk” the car for weapons
in any are where an individual might gain immediate control of a weapon
 Any evidence found within the scope of a lawful frisk is admissible
o Note: The POs search must be limited to a search for weapons (a weapon must reasonably be
able to fit in the area searched) AND within the individual’s reach (search of trunk is not
o CAUTION: NY rejects that it is reasonable to search the car when the defendant is not inside
• Ybarra v. Illinois (1979)
o Facts: POs frisk D b/c he is a patron in a public bar where they have reasonable suspicion to
believe the bartender to be a drug dealer
o Holding: The mere presence of an individual in a public establishment where a third party
is suspected of criminal activity is insufficient to form reasonable suspicion that the
individual poses a risk of harm to the officers requiring a frisk for weapons
• Maryland v. Buie (1990)
o Facts: POs had probable cause that D committed an armed robbery along with an associate. POs
arrested D at his home and had reasonable suspicion, but not probable cause, to believe that a
dangerous person could be hiding in the premises. POs conducted a “protective sweep” (a quick,
limited search incident to an arrest for the purpose of the POs safety) and discovered clothing
that tied D to the robberies but no associate
o Holding: Along the same reasoning as Terry and Long, a protective sweep is justified by an
officer’s reasonable suspicion that the area swept may harbor an individual posing danger
to the officers or others
o Reasoning: The sweep is a limited intrusion b/c it may extend only to those places where a
person may be found and can last no longer than what is necessary to dispel the reasonable
suspicion of danger
o Professor: Protective Sweeps are different from Terry b/c it is a search for people, not weapons
and is not a frisk of the person


• In General
o Justification: Based on the concern over access to weapons (like Terry) AND the destruction of
o Scope: Weapons AND Evidence
o Requirement: Probable cause (rather than reasonable suspicion needed for Terry)
• Chimel v. California (1969)
o Facts: POs entered D’s apartment w/arrest warrant for the burglary of a coin shop. D’s wife
opened the door and allowed the POs to wait 15 minutes for D to return home from work. When
D entered, POs arrested him and asked for permission to search the premises—which was
denied. POs informed D that they would nonetheless conduct a search on the basis of a lawful
arrest. POs looked through D’s entire house and seized incriminating coins. The entire search
lasted 45 minutes.
Super-Crim-Pro 21
o Holding: Searches incident to arrest are limited to the arrestee’s person and the “area
within his immediate control” from which he may gain possession of a weapon or destroy
o Reasoning: It is reasonable when a defendant is being arrested to search for weapons and
evidence that can be destroyed
o Policy: To construe “area within the defendant’s possession and control” more broadly would
obviate the protection afforded by a search warrant
o Dissent: Reasonableness clause should apply b/c arrestee’s friends can destroy evidence
o Note: The arrest warrant is only sufficient under Payton to enter the house and arrest Professor:
In this case, the majority went back to the original justifications for the exception and were
cautious in their decision out of respect for the warrant clause
• Knowles v. Iowa (1998)
o Facts: PO stopped D for speeding, could have arrested or issued a citation—opted for citation.
PO then conducted a full search of D’s car and discovered marijuana under the driver’s seat w/o
consent or probable cause
o Holding: A search incident to arrest is only justified upon a lawful custodial arrest
o Reasoning: The threat to PO safety articulated in Robinson is drastically minimized
• US v. Robinson (1973)
o Facts: PO pulled D over and arrested him for operating his car w/o a permit. PO pats down D,
feels object he does not recognize, pulls out and discovers it is a crumpled cigarette packet,
opens and finds heroin
o Holding: A search of the arrestee’s person and containers within the arrestee’s grab area is
automatically permissible incident to arrest
o Reasoning: In the overwhelming majority of cases, there will be justification for the search and
to hold otherwise would create unnecessary administrative problems
o Dissent Incentive to make custodial arrests solely for search incident to arrest
o Professor: Once Probable Cause is present for a lawful arrest, neither Probable Cause nor
reasonable suspicion is required for a search of the person and opening of containers
• Atwater v. City of Lago Vista (2001)
o Facts: P was arrested for violation of a seatbelt statute that was only punishable by a fine
o Holding: If a PO has probable cause to believe that an individual has committed even a
very minor criminal offense, then he may arrest the offender and has the automatic right to
search incident to arrest
o Reasoning: Drawing a line as D proposes b/w minor crimes and “jailable” crimes requires a PO
to possess knowledge not readily ascertainable on the street (e.g. repeat offender, drug’s weight)
o Note: The distinction b/w the legislature’s label of the offense as a “misdemeanor” rather than a
“violation” is dispositive of the arrest power—not whether it is jailable
• Washington v. Chrisman (1982)
o Holding: The searchable grab-area moves along w/the arrestee while the PO is maintaining
custody over the arrestee
o Reasoning: The grab-area is determined from the perspective of the PO
o Professor: This case recognizes that an arrest and booking is not spontaneous
o Note: POs cannot create grab-areas by moving D near what they want to search
• The Automobile Cases
o New York v. Belton (1981)
 Facts: PO pulled D over, smelled marijuana, asked for ID and registration. PO saw
an envelope on the floor w/“Supergold” on it—which he associated w/marijuana. PO
informed D he was under arrest, ordered 4 occupants out of car, searched envelope
Super-Crim-Pro 22
and confirmed marijuana inside, then patted each down. PO picked up leather
jacket in passenger compartment belonging to D and discovered cocaine inside it
 Holding: Whenever a PO makes a lawful custodial arrest of the occupant of an
automobile, he may search incident to that arrest the passenger compartment of
the automobile and examine the contents of all containers found within the
passenger compartment
 Reasoning: A bright line rule is reasonable b/c if the PO had the authority to search
the jacket while D was within the car, then they should be permitted to remove him
from the car for safety reasons and still search
 Professor: This case subordinates the warrant clause to reasonableness
 Note: POs may not search the trunk, and hatchbacks become a factual issue as to
whether reachable as part of the passenger compartment
 Note: Lower courts have generally permitted opening of locked containers
o US v. Thornton (2004)
 Facts: PO sees D while he is in car, and realizes the ID does not match. By the time
the encounter takes place, D is no longer in his car. D consents to search of his
person and PO finds drugs. PO arrests D, then searches D’s car and finds gun.
 Holding: Belton applies whenever the defendant is in close proximity to his car
when arrested
 Concurring (Scalia):
• Questions the bright-line rule rationale of Belton b/c the government actually
argued that Thornton must be harmonized b/c in almost every case the POs order
the Ds out of the car, arrest them, secure them, then conduct the search incident to
• If this is the empirical truth, then Belton’s assertion that in the vast majority of
cases the bright-line rule will be reasonable is a fallacy and the POs should have
to articulate a reason for their search of the car instead
 Professor: The Justice’s disposition indicates that this rule will change
• Temporal Limitations
o Generally, courts are unconcerned w/ the technicality of whether the arrest or the search came
first when both are roughly simultaneous and probable cause to arrest existed before the search
was conducted (Rawlings v. Kentucky)
o Chambers v. Maroney (1970)
 Facts: POs searched an automobile that had been impounded after the lawful arrests
of its occupants
 Holding: If the arrestee is in custody, then a search is not incident to the arrest
and requires a search warrant

o US v. Edwards (1974)
 Facts: D arrested for attempting to break into a post-office at midnight. Next day,
after inspecting window D tried to break in through, POs noticed that the paint was
chipped. POs seized D’s shirt and trousers the morning after he was arrested and
subjected them to lab analysis which reveled matching paint chips
 Holding: POs may search incident to arrest following arrest when it is
impractical to search simultaneous w/arrest
 CAUTION: This case is an anomaly and is founded on the “booking” rationale
 Burke: anomalous case – timing for search must usually be close to simultaneous
to the arrest
Super-Crim-Pro 23
• Whren v. US (1996)
o Facts: UC POs out looking for drugs in a high-crime area. Observe 4 young black men (Ds) in
their car, grows suspicious b/c looking down in passengers lap. POs turn to follow car, and Ds
begin to speed. POs pull over car w/probable cause of a moving violation, identify themselves as
POs. PO claims to observe 2 bags of crack in D’s lap. Ds concede violation of a minor traffic
violation, but argue that UC POs only pulled over b/c they were subjectively looking for drugs.
o Holding: Pretextual stops/arrests for the purpose of triggering exceptions to the warrant
clause (e.g. Terry, searches incident to arrest) are permissible under the 4th Amendment
o Reasoning:
 Subjective intentions play no role in ordinary probable cause 4th Amendment analysis
 Law enforcement practices involve so many variables that they cannot be properly
assessed by a judge
o Professor: Under Whren, DAs instruct POs to make pretextual stops when they are not sure if
they have reasonable suspicion
o Criticism: Empirical Data has supported the claim that POs stop based on race and scholars have
linked unfruitful pretextual stops within a community to a greater likelihood of jury nullification
o Note: This is not really an exception to the warrant requirement
o CAUTION: The officer still must have reasonable suspicion or Probable Cause to believe that
the motorist actually committed a traffic violation
• In General
o Many of the other exceptions to the warrant clause are grounded on the exigency exception’s
rationale (e.g. Search incident to arrest is somewhat justified on the position that arrestees may
destroy evidence)
o Exigency is an exception to the warrant requirement, NOT to Probable Cause
o Requirements
 Probable Cause to search/seize
 Articulated explanation why it was unreasonable to obtain a warrant in the
circumstances due to: (1) possible imminent destruction of evidence; (2)
officer/public safety (e.g. domestic violence investigations); or (3) suspect flight (the
“hot pursuit doctrine”)
• Illinois v. McArthur (2001)
o Facts: POs informed from D’s wife that D had marijuana under his couch—creating probable
cause that would be sufficient to obtain a warrant. POs detain D from reentering his house for 2
hours, during which time they obtain a search warrant.
o Holding: Under minor exigent circumstances, POs may prohibit suspects from interfering
w/evidence, maintain the status quo, and then obtain a warrant
• Welsh v. Wisconsin (1984)
o Facts: POs receive tip that D was driving erratically, swerved his car off the road, and walked
home. POs go to his w/o a warrant (Peyton problem), he refuses to submit to a breathalyzer, and
is arrested for DWI.
o Holding: Minor offenses do not justify the exigency exception
o Reasoning: In 1984, DWI was not considered as serious as it is today
o Professor: Exigency is an exception to most rules of criminal procedure in that the “seriousness”
of the crime has a bearing on the degree of exigency
• Richards v. Wisconsin (1997)
o Facts: POs had a warrant to search the premises of a suspected large scale drug operation, but
didn’t want to knock and announce b/c of the possibility of destruction of evidence and reports
that Ds were armed and dangerous
Super-Crim-Pro 24
o Holding: The exigent circumstances exception applies both to the warrant requirement
and to the knock-and-announce requirement
o Note: Although there is no per se exigent circumstances in a large scale narcotics case, exigent
circumstances will almost always be found
• Impermissibly Created Exigency
o A common defense to the application of the exigency exception is that “the POs created the
exigent circumstances” for the purpose of avoiding the warrant requirement (e.g. POs conduct a
“knock and talk” and then claim exigent circumstances)
• In General
o Distinguishable from: (1) Terry frisk of a car; and (2) Search incident to arrest in the automobile
o CAUTION: This is its own exception to the warrant requirement where Probable Cause is
required for the search not for the arrest
• Carroll v. United States (1925)
o Facts: Ds driving in a known bootlegger area stopped, Probable Cause existed to believe alcohol
was in the car b/c Ds were known perpetrators. POs search car w/o warrant and find the booze
o Holding (Taft): POs may search an automobile w/o a warrant whenever probable cause
exists to search the automobile
o Reasoning: Not practical to secure a warrant due to the cars ability to move out of the
• Chambers v. Maroney (1970)
o Facts: Ds pulled over b/c car matches description of one leaving robbery. D is wearing same
clothes as witnessed, and Ds are arrested. Car is brought back to station and searched w/o a
warrant. Gun is discovered.
o Holding (White): No difference b/w searching a car at the station and at the time of stop b/c
the POs could have searched w/o a warrant at the time of arrest
o Reasoning: Exigency like rationale, even though realistically the car isn’t going anywhere
o Professor: White is known for not valuing the warrant clause
• Coolidge v. New Hampshire (1971)
o Facts: POs seize a car parked outside D’s house, bring back to station, then search on several
o Holding (plurality): Carroll is inapplicable to parked cars b/c there is no exigency concern
o Reasoning (Stewart): A parked car is no more mobile than luggage
o Dissent (White): This case is indistinguishable from Chambers
o Professor:
 If you were to decide this case based on Justice White’s logic in Chambers , then the
search would be permissible (keep in mind that the disposition of the court changes
over time and as alliances are formed)
 Notably, Justice Stewart’s narrow interpretation of “mobility” requiring the police to
see the car in motion when seized has never garnished a majority vote
o CAUTION: This case was overruled by Cardwell
• Cardwell v. Lewis (1974)
o Facts: Parked car seized from a public lot
o Holding: Carroll applies to parked cars b/c cars are inherently mobile
o Reasoning: Expressly rejects Stewart’s reasoning in Coolidge
• Michigan v. Thomas (1982)
Super-Crim-Pro 25
o Holding: For the purposes of the automobile exception, a case-by-case analysis is not
required to determine whether an automobile is “mobile.”
o Reasoning: Preference of a bright line rule
o Note: Limits Coolidge to its facts—only applies to cars parked at owner’s residence
• California v. Carney (1985)
o Facts: POs had a tip that D was using his motor home as a sex-for-drugs trading point. POs set
up an observation post and establish probable cause after seeing several individuals leaving his
establishment in a short period of time. POs enter w/o a warrant.
o Holding (Burger): The automobile exception to the warrant requirement is justified by the
“ready mobility” of the automobile AND the diminished expectation of privacy in one’s car
o Reasoning:
 Mobility is determined under White’s broader “it’s movable, not it’s moving”
 Harmonizes Coolidge on the additional expectation of privacy grounds
o Note: The court had to come to the conclusion in this case that the motor home was more car
than house b/c D didn’t have it docked and plugged in to a generator.
• In General
o Although the warrant clause is theoretically still the predominant clause of the 4th Amendment,
the Supreme Court has applied the reasonableness clause to searches conducted for purposes
other than traditional criminal law enforcement (E.g. School discipline, public safety)
o General Rule: If the governmental search or seizure is designed to effectuate special needs
beyond criminal law enforcement, then the Court engages in a balancing of interests under the
reasonableness clause to determine what safeguards must apply
• On the Basis of Reasonable Suspicion Rather then Probable Cause
o New Jersey v.. T.L.O. (1985)
 Facts: School official searched the handbag of a student w/reasonable suspicion to
suspect cigarettes in purse. Drugs found.
 Holding: Reasonable suspicion is sufficient to conduct a “special needs” non-
criminal search
 Reasoning: Conducted by a school official not a PO, punished under a school
regulation not a crime, diminished privacy expectations in a school
 Minors have reduced expectations of privacy at school
• Suspicionless Searches
o Skinner v. RR Labor Executives Ass’n (1989)
 Facts: Program mandating drug tests of all RR personnel involved in train accidents
 Holding: The government’s interest in regulating the conduct of RR employees
to ensure safety presents special needs beyond law enforcement that justify a
departure from the usual Probable Cause or reasonable suspicion requirements
 Note: This case marks a trend towards the application of the special needs doctrine to
suspicionless, programmatic, nondiscretionary searches
o Board of Ed. of Pottawatomie County v. Earls (2002)
 Facts: Program mandating drug testing of all students who participate in competitive
extracurricular activities (e.g. future farmers, band, choir, athletics)
 Holding: The government’s interest in regulating the drug abuse problem in
schools presents special needs beyond law enforcement that justify suspicionless
searches of student participants in extracurricular activities
Super-Crim-Pro 26
 Reasoning: Securing order of the national youth drug abuse problem in the school
environment requires greater control than those appropriate for adults, and
participation in extracurricular activities further diminishes expectations in privacy
 Note: The required individualized suspicion to drug test political candidates b/c there
was less of a public safety concern and the inherent safeguard of public scrutiny
(Chandler v. Miller)
o Ferguson v. City of Charleston (2001)
 Facts: State hospital began drug-testing prenatal mothers in response to the “crack-
baby” epidemic. Positive tests were forwarded to law enforcement for prosecution
 Holding: Although the ultimate goal of a suspicionless search presents special
needs beyond law enforcement, if the immediate objective is to generate evidence
for law enforcement purposes then the special needs exception does not apply
 Reasoning: The prevention of drug-induced birth complications presents a special
need, but its advancement relied on traditional law enforcement means
• In General
o Routine Border searches are automatically reasonable and do not require Probable Cause
or reasonable suspicion
o Justification:
 This exception has been in place since the drafting of the 4th Amendment as a
protection of sovereignty
 People entering the country have a diminished expectation of privacy
o Note: This is an exception to the warrant AND the reasonableness clause
• Non-Routine Border Searches
o US v. Montoya de Hernandez (1985)
 Facts: D, traveling from Columbia, matches drug courier profile and strip search
reveals bulge in her abdomen. D refuses to consent to X-rays and is detained to pass
 Holding: Non-routine border searches of an individual’s person require
reasonable suspicion
 Reasoning: Reasonable suspicion existed to believe she was a balloon swallower
 Note: Lower courts developed a line of cases where searches exceeding a routine
search are unreasonable without reasonable suspicion (e.g. body cavity, tearing car
o US v. Flores-Montano (2004)
 Facts: POs pick out D’s car for a random search and dismantle his gas tank w/o
reasonable suspicion. The government stipulated that no reasonable suspicion existed
 Holding: Reasonable suspicion is not required for the non-routine border search
of an automobile—it is automatically reasonable
 Professor:
• The reasoning raises questions b/c the court explicitly states that Montoya-
Hernandez did not require reasonable suspicion—it merely existed
• The court distinguishes between highly intrusive searches of persons and highly
intrusive searches of automobiles.
• Additionally, the court distinguishes between highly intrusive searches of
automobiles and highly intrusive searches that cause a destruction of property
o Border Searches Away From the Border
 Almeida-Sanchez v. US (1973)
Super-Crim-Pro 27
• Facts: D car was stopped while 25 miles from the Mexican border. POs had no
reasonable suspicion or Probable Cause. Search discovered marijuana.
• Holding: A discretionary stop by a roving patrol conducted away from the
border requires reasonable suspicion and a search requires Probable Cause
(traditional 4th Amendment rules apply)
• Reasoning: A person being stopped has no notice, and there is always a potential
for abuse when stops are made on a discretionary basis
 US v. Ortiz (1975)
• Facts: POs stopped D’s car at a fixed checkpoint away from the border where cars
were stopped and searched on a discretionary basis.
• Holding: A discretionary search at a fixed checkpoint away from the border
requires Probable Cause
• Reasoning: The risk of abuse of discretion is just as great as a roving patrol
 US v. Martinez-Fuerte (1976)
• Facts: Car given notice of fixed checkpoint stop
• Holding: Non-discretionary stops of automobiles at fixed checkpoints away
from the border do not require reasonable suspicion or Probable Cause
• Reasoning: Suspicionless checkpoint stops away from the border are necessary
law enforcement tools and the great public interest outweighs minimal intrusions
• In General
o Similar to the border checkpoints, but the governmental interest is not the special exception for
protecting the border
o Rather, the governmental interest is law enforcement (e.g. DWI, drugs)
• Delaware v. Prouse (1979)
o Facts: No roadblock. D pulled over on PO’s discretion absent reasonable suspicion.
o Holding: Discretionary stops absent reasonable suspicion are unreasonable
o Dicta: Non-discretionary roadblocks may be reasonable w/o reasonable suspicion
o Dissent (Rehnquist): The court’s suggestion that a roadblock is better than discretionary stops is
based on “misery loves company” equal protection rationale
• Michigan Department of State Police v. Sitz (1990)
o Facts: PD program permitted POs to set up checkpoints at their own discretion and briefly stop
drivers for questioning and examination of intoxication
o Holding: Only reasonable suspicion is required to stop automobiles at fixed checkpoints
and conduct minimally intrusive searches
o Reasoning:
 Although the court claimed not to be relying on special needs, the court did note the
state’s heavy interest in eradicating drunken driving
 This case is an extension of Terry
o Professor: After this case, it seemed that POs could set up any roadblock they wanted if the cars
were stopped non-discretionarily and the search was minimally intrusive
• Indianapolis v. Edmond (2000)
o Facts: Drug interdiction checkpoint where car would be stopped, license and registration asked
for, visible inspection of car, look for signs if driver is under the influence, car sniffed by drug-
sniffing dog
o Holding (O’Connor): If the primary administrative purpose of a checkpoint is to uncover
evidence of ordinary criminal wrongdoing, then the roadblock exception does not apply
Super-Crim-Pro 28
and the government’s interest does not outweigh the intrusiveness to the individual
under a special needs analysis
o Reasoning: There is no non-law-enforcement connection b/w drugs and roads
o Note: Distinguishes Whren when the government’s purpose is “programmatic” rather than based
on the individual PO’s subjective purpose
o Dicta:
 A checkpoint with the primary purpose of preventing a terrorist attack or catching a
fleeing criminal would be reasonable w/o Probable Cause or reasonable suspicion
 A checkpoint with a law enforcement secondary purpose would be permissible
o Professor:
 This case is problematic b/c Sitz is decided under Terry rather than special needs, and
the level of intrusion is the same b/c under Place drug sniffing dogs do not even
constitute a search
 Edwards is completely avoidable and the only reason the government lost is that they
were stupid enough to stipulate that drug interdiction was their primary purpose
• Illinois v. Lidster (2004)
o Facts: Informational roadblock a week after a hit and run death. Set up in same place as death, at
roughly same time. Car would be stopped for 10 to 15 seconds, asked information pertaining to
the accident, handed a flyer requesting assistance, and permitted to drive off. D approached the
roadblock, swerved, PO smelled alcohol on his breath, conducted sobriety test and arrested for
o Holding: The government’s interest in roadblock’s with the primary purpose of
informational gathering present special needs beyond law enforcement the ordinary
requirements of reasonable suspicion or Probable Cause
o Reasoning: This case falls under Edmond’s re-characterization of the roadblock stop as a special
o Professor: The Supreme Court’s emphasis on the government’s objectives, while well-meaning,
is dependent on what the government says, not what it is actually doing.
• In General
o Scenario: : In most jurisdictions, it is standard procedure for POs to inventory the contents of
automobiles and other containers held in their custody
o Justification: Protect the police from property claims, protect the individual’s property, protect
the POs and public from dangerous items
o Professor: This exception arises from the “community caretaking function” of POs viewed under
a special needs reasonableness balancing
• Cady v. Dombrowski (1973)
o Facts: PO1 in accident. PO2 searches car to prevent gun from getting into wrong hands. PO2
found evidence implicating PO1 in murder.
o Holding: Searches conducted for a community caretaking function are distinguishable
from law enforcement searches and are permissible absent reasonable suspicion or
Probable Cause
o Note: The courts have extended this “community caretaking function” to inventory searches
 Used to check for valuables to protect police against fake property claims
 Used to return valuables to the property owner (protects property owner)
 Protects the public and police from anything dangerous that could be in the car
• S. Dakota v. Opperman (1976)
Super-Crim-Pro 29
o Facts: Warrantless inventory search of a car impounded for a parking violation. The search
was pursuant to the jurisdictions standard police procedures. POs broke open the lock of D’s car,
searched glove compartment, found marijuana.
o Holding: An inventory search pursuant to department regulations is reasonable in light of
legitimate state interests that outweigh the owner’s diminished expectations of privacy in
his automobile
o Note: Extended to inventory searches of an arrestee’s person prior to incarceration (Illinois v.
o Professor: Inventory searches pursuant to regulations is a “special need” b/c the policy governs
the PO’s conduct and is evidence that the search is not conducted under traditional law
enforcement purposes
• Florida v. Wells (1990)
o Facts: POs opened a locked suitcase during an inventory search. The PD had no policy
concerning the opening of locked containers
o Holding: An inventory search is invalid if it is not pursuant to PD regulations, but doesn’t
have to be all or nothing if the POs discretion is limited by a standard
o Reasoning: It is equally permissible to have a policy permitting or denying the opening of all
closed containers, or a policy allowing the opening of all containers the PO cannot examine the
interior of from viewing the exterior
o Policy: A requirement that POs open all containers or none at all is not attractive to the PD b/c it
would be an inefficient use of scarce resources
o Dissent: The POs still have the discretion over whom to arrest, and therefore who will be
subjected to inventory searches
o CAUTION: If POs find evidence of criminal wrongdoing during an inventory search they must
continue to follow inventory regulations for the rest of the car
• In General
o POs will almost always ask for consent, even if they have a reasonable basis to believe that the
requirements of another exception exist
o Courts actively encourage POs to pursue consensual searches
o Professor: When the government has multiple grounds to support a search during a suppression
hearing, it seems that courts prefer to find the search lawful through consent b/c the presumption
that reasonableness requires a warrant is unnecessary when an individual voluntarily submits
themselves to a search
• Schneckloth v. Bustamonte (1973)
o Facts: PO stopped car w/burned out headlight. PO ordered D out, asked if he could search the
trunk. D said “sure, go ahead” and opened the trunk. PO discovered 3 stolen checks. D motions
to suppress on grounds he was unaware of right to deny consent.
o Holding:
 Consent to search is determined from the totality of the circumstances and there
is no per se requirement that POs indicate the right to deny consent
 Voluntary consent is determined by whether an objectively reasonable PO
would believe consent to search
o Reasoning:
 The concept of waiver, used for absolute Constitutional rights, is distinguishable from
consent to search because the 4th Amendment’s protection is only against
“unreasonable searches and seizures.” If a consent is voluntary, then a search is
Super-Crim-Pro 30
 Relevant Factors In Determining Voluntariness: (1) Custodial status; (2) Police
demeanor; (3) Defendant’s demeanor; (4) Defendant’s education and intelligence; (5)
Use of threats and trickery; (6) Repeated requests
o Note: If the court viewed consent to search as a waiver of Constitutional rights, then POs would
have to secure a knowing an intelligent waiver requiring notification
o Note: A refusal of consent cannot itself be viewed as suspicious behavior, however it can be if it
is done suspiciously
• Distinction b/w Empty and Legitimate Threats
o Rule: If a PO threatens actions he cannot lawfully subject a defendant to, then consent to
search is involuntary
o Rule: However, if a PO threatens actions he can lawfully subject a defendant to, the
consent to search is voluntary
o Professor: Police are often very aggressive in the use of legitimate threats to get consent where
police have the discretion, as in Atwater, to arrest for low level offenses
• Trickery
o Professor: Depends on whether you look at it from the defendant’s perspective or if the lie
negates the possibility to voluntarily consent
o Note: No Supreme Court precedent on point
• Third Party Consent
o US v. Matlock (1974)
 Facts: D was arrested in the front yard of his house. POs obtained consent from a
woman who shared the house w/D. D was the exclusive legal owner of the house.
 Holding: Actual authority exists to consent to the search of a defendant’s
property when the third party has joint access or control of the property
 Reasoning: Third party consent is not determined by the laws of property
 Policy: A defendant assumes the risk that a joint user will consent to the search of
shared property
 CAUTION: POs must inquire into the extent of a third-party’s authorized access
when it seems unlikely that the property is actually shared
o Stoner v. California (1964)
 Facts: POs obtain consent to search D’s hotel room from the hotel clerk. POs
believed that the clerk had actual authority.
 Holding: A search premised upon an erroneous view of the law of actual
authority is unreasonable
 Reasoning: The hotel clerk doesn’t really share the property
o Illinois v. Rodriguez (1990)
 Facts: POs obtained consent to search D’s apartment from ex-girlfriend who had
moved out of his apartment a month earlier and retained a key w/o permission. She
refereed to the premises as “our apartment” to the POs and they believed she still
lived with the defendant.
 Holding: Consent to search is lawfully obtained by “apparent authority” when it
is reasonable for POs to believe that a third party has actual authority although
in reality the third party does not
 Reasoning: The 4th Amendment assures reasonableness, and reasonableness is
determined by the POs actions not whether the defendant consents
• Scope of Consent
o Florida v. Jimeno (1991)
Super-Crim-Pro 31
 Facts: PO stops D in his car, informs him that he is looking for drugs, and asks for
permission to search the car. D consents to the search, the PO comes across a paper
bag, opens it, and finds drugs. D contends that he only consented to a search of the
car and that additional consent should be required for a search of specific containers.
 Holding: The scope of a search pursuant to consent is limited by the expressed
object of the PO’s request and where an individual would reasonably expect a
PO to search for that object
 Reasoning: It is reasonable for a PO to believe that when a defendant consents to a
search of his car for drugs he consents to a search of unlocked containers in the car
 Policy: A container by container requirement would result in fewer consents and run
contrary to the community’s interest in encouraging cooperation w/law enforcement
 Note: it is up to the citizen to clarify any ambiguity concerning the scope of consent
• In General
o Plain View Doctrine Requirements
 Must observe object from a lawful vantage point
 Must have physical access to the object to be seized
 Must be apparent that the object is seizable without even the slightest search
• Hourton v. California (1990)
o Facts: PO determines that Probable Cause exists to search D’s house for the weapons used to
effectuate a robbery as well as the proceeds of the robbery. Magistrate limits the search to the
proceeds (3 rings). PO searches D’s house, doesn’t find the rings, but comes across the weapons
and seizes them. PO testifies that he was looking for the weapons during the course of his search
and they were not “inadvertently” found.
o Holding: POs do not have to inadvertently come across evidence in order to seize it
pursuant to the plain view exception to the warrant requirement which permits the seizure
of evidence discovered in plain view during the course of a lawful search if Probable Cause
exists for its seizure
o Reasoning: The plain view doctrine does not create a general warrant b/c the scope of the search
is limited to areas the specified items could reasonably be found and the duration is limited until
those items are found
o Policy: 4th Amendment standards should be objective and are not determined by the subjective
motivations of individual POs
o Note: The plain view doctrine is not limited to evidence discovered in the course of executing a
search warrant. It may arise in every other context and exception to the warrant requirement
permitting a PO to conduct a lawful search.
o CAUTION: The plain view doctrine does not permit a “search” without a warrant b/c the police
must be somewhere they already have a lawful right to be. The possessory interest is implicated,
not the privacy interest b/c it is already in plain view. It would be wrong in any example to claim
that the POs were justified to enter a house or search a car pursuant to the plain view doctrine
• Arizona v. Hicks (1987)
o Facts: POs entered D’s apartment after a bullet went through his floor and injured a man in the
apartment below—creating Probable Cause to look for a shooter or weapons. One PO noticed 2
expensive stereo sets in the otherwise shitty apartment, and he moved the turntable so he could
read the serial number. He then phoned in the number, discovered the stereos were stolen, and
seized them.
o Holding: The plain view doctrine cannot be used as the basis for even cursory investigatory
searches to establish Probable Cause to seize evidence
o Reasoning:
Super-Crim-Pro 32
 The plain view doctrine only applies after it is apparent that the thing is seizable
(instrumentalities, evidence, proceeds)
 This search was only based on reasonable suspicion, and therefore its scope is limited
to the officer safety justifications of Terry and the stereo presented no threat
• Minnesota v. Dickerson (1993)
o Facts: PO lawfully stopped and frisked D pursuant to Terry after he saw him come out of a
known drug dealing establishment. In the course of searching for a weapon, PO felt a hard, pea
shaped object in D’s front pocket, determined that it was not a weapon, continued to prod it and
determined it was crack in a cellophane bag. PO seized the object, and it turned out to be crack.
o Holding: A plain touch exception to the warrant requirement exists whenever a PO
lawfully pats down a suspect’s person or property and feels an object whose contour or
mass makes its identity immediately apparent and establishes Probable Cause that would
render application for a warrant impractical
o Reasoning: Although the court found such an exception to exist, it found the POs actions in this
case unlawful b/c of the continued prodding after it was already determined that no weapons
were on D
o Note: Lower courts have extended this rationale to “plain hearing” and “plain smell”
• In General
o The 4th Amendment only applies to governmental actors
o The government cannot avoid the 4th Amendment by engaging private actors as agents
• Skinner v. Railway Labor Executives Ass’n (1989)
o Facts: Drug testing procedures promulgated by private RR companies pursuant to Federal
regulations granting authority to do so and a strong preference for making the results accessible
to the government.
o Holding: The 4th Amendment may be implicated if the government indirectly compels a
search by a private party as its agent through legislation
o Reasoning: The governments clear endorsement and participation in the program
o Note: Federal regulations make private airport security government agents
• Walter v. US (1980)
o Facts: FBI agents received a package of films form a recipient to whom it was misdelivered by a
private carrier. The recipient had opened the package but did not view the films. The FBI
viewed the films.
o Holding: If a private actor searches an individual’s property and then notifies the law
enforcement, the governmental search cannot exceed the intrusion conducted by the
private actor absent a warrant
o Reasoning: A partial invasion of privacy cannot justify a total
• US v. Jacobsen (1984)
o Facts: FedEx accidentally tore open a package w/a fork lift and a manager who examined the
package for damage found it to contain a tube wrapped w/silver duct tape. The manager cut
open the tube and discovered a series of zip-lock bags containing white powder. They resealed
the tube and called the DEA, who reopened the tube, opened one zip-lock bag, conducted a field-
test, and confirmed that the powder was cocaine.
o Holding: A government agent may reopen a container previously opened by a private actor
o Reasoning: The agent’s reopening of the package enabled the government to learn nothing more
than what was learned during the private search, and the field test was permissible b/c a citizen
has no reasonable expectation of privacy in contraband
• Illinois v. Andreas (1983)
Super-Crim-Pro 33
o Facts: Border control agents conduct a legal search of a wooden crate and find drugs in the leg
of a table. They repackage the crate and conduct a surveillance process known as a controlled
delivery. POs see D drag the crate into his apartment and reemerge with it 30 to 45 minutes
later. The agents then researched the crate w/o a warrant.
o Holding: The simple act of resealing a container to enable government agents to make a
controlled delivery does not revive or restore privacy rights lawfully invaded
• Foreign Officials
o Rule: Evidence obtained by foreign police official from searches conducted within their country
is admissible regardless of compliance w/the 4th Amendment
o Exceptions: (1) The circumstances of the foreign search and seizure are so extreme they shock
the judicial conscience; or (2) the foreign search is a joint venture w/US agents.

o THE EXCLUSIONARY RULE________________________________________________________

 In General
• The exclusionary rule suppresses the “fruits of the poisonous tree” or any incriminating
evidence found subsequent to an unlawful search/seizure
• Exceptions: (1) Standing; (2) Attenuation; (3) Independent source; (4) Inevitable discovery;
(5) Impeachment; and (6) Good Faith
• Policy Arguments:
o Pro: (1) Preserves judicial integrity by insulating the courts from tainted evidence; (2) Prevents
the government from profiting from its own wrong; (3) Only excludes what should never have
been obtained in the first place; (4) Necessary to deter PO misconduct
o Con: (1) Judicial integrity is threatened by excluding evidence that will help the justice system
reach a true verdict; (2) Society better profits when those who truly commit crimes are duly
convicted on the basis of reliable evidence; (3) The more guilty you are, the more you benefit.
The guilty receive a windfall while there is no remedy for the innocent; (4) Promotes routine PO
 Historical Background
• The exclusionary rule is a remedy for violation of the 4th Amendment, however, it was not
born contemporaneously with the 4th Amendment
• Weeks v. US (1914)
o Facts: US Marshall seized D’s letters from his house w/o a warrant for his arrest or a search of
the premises.
o Holding: Evidence obtained in violation of the 4th Amendment is excluded from the Federal
o Policy: Deterrence and judicial integrity
o Note: At this time, the 14th Amendment did not incorporate constitutional rights including the 4th
Amendment to the states
• Wolf v. Colorado (1949)
o Holding: The 14th Amendment does not incorporate the Federal exclusionary rule to forbid the
admission of evidence obtained by an unreasonable search and seizure in state courts
o Reasoning: Federalist endorsement of alternative methods of deterrence passed by State
• Mapp v. Ohio (1961)
o Facts: POs wanted to search D’s house for a bombing suspect. D refuses her consent after
calling attorney, POs come back three hours later w/o warrant, show her a piece of paper and
pretend it is a warrant. D takes the paper and puts it down her shirt to show to her attorney. POs
wrestle it back, break in, damage door, search her house and find some 1st Amendment protected
Super-Crim-Pro 34
materials. The 4 Amendment violation issue is only raised in an amicus curiae brief.
Funnily enough, D’s lawyer wasn’t even aware of the issue.
o Holding: The remedy for 4th Amendment violation provided by the Federal exclusionary
rule is necessarily incorporated by the 14th Amendment. The constitution requires
suppression as a remedy. The exclusionary rule applies to the states.
o Policy: Deterrence and judicial integrity
o Professor: From the time of Weeks through Mapp, the Supreme Court saw many examples of
egregious police conduct and Due Process was insufficient protection
• Rochin v. California (342 U.S. 165 (1952))
 PO did not have warrant to enter ∆’s home, PC is also questionable. PO goes to ∆’s
house in middle of the night, opens bedroom door while ∆ sleeping. ∆ swallows pills
on nightstand. PO’s jump on top of ∆ and try to get pills out of ∆’s mouth. PO’s take
∆ to hospital and get stomach pumped. ∆ argues 4th amendment violation. ∆ wins 4th
amendment argument, but did not move for suppression. ∆ then argues that due
process violated. Court agrees with that argument stating that the case “shocks the
conscience… this is a straight due process violation”. This allows for suppression of
• In General: 4th Amendment rights are personal rights, therefore a defendant is not entitled to
the exclusion of evidence unless his own personal rights were implicated by the
government’s search and seizure
• Simmons v. US (1968)
o When a ∆ testifies at a suppression hearing, the government may not use his testimony against
him on the question of guilt or innocence
o Leaves the impeachment question open (Can statements during suppression hearing be used
against the ∆ to impeach him at trial?)
• Jones v. US (1960)
o Facts: POs conducted an unlawful search of D’s friends apartment and found drugs on D
o Holding: Automatic standing exists for possession offenses and whenever a person is
legitimately in the premises of another person that is unlawfully searched
o Note: Overruled by Rakas
• Rakas v. Illinois (1978)
o Facts: D was a passenger in a vehicle stopped and searched. The unlawful search yielded the
discovery of a shotgun and shells used against D in a robbery case. D proposed to expand the
automatic standing rule to whenever the individual is the target of the search. He also claims that
he was legitimately in the car under Jones.
o Holding: The exclusionary remedy only applies to individual’s whose reasonable
expectations of privacy under the 4th Amendment have been violated. The ∆ has to point to
his OWN 4th Amendment violation (he must have his own poisonous tree)
o Reasoning:
 D had no legitimate expectation of privacy b/c he was just a one-time passenger
 The court found that bright-line automatic standing rules would not reflect the
majority of legitimate privacy interests
o Note: The court justified the decision in Jones as an appropriate remedy for a 4th Amendment
violation b/c there the D was an over-night guest
o Professor:
 This really is grounding the standing question under the Katz standard of subjective
and objective expectations of privacy
 The court does is not concerned w/the judicial integrity concerns espoused in Mapp
Super-Crim-Pro 35
• US v. Payner (1980)
o Facts: POs set up an unlawful search of a third party to obtain evidence against D. D had no
standing to complain, but asked the court to prohibit under its supervisory power.
o Holding: The supervisory power does not authorize the suppression of otherwise
admissible evidence on the ground that it was seized unlawfully from a third party not
before the court
• Minnesota v. Olsen (1990)
o Holding: Overnight guests have standing to argue that the fruits of an unlawful search of
their host’s house should be excluded
o Reasoning: Overnight guests have legitimate expectations in privacy
• Minnesota v. Carter (1998)
o Holding:
 Temporary visitors have no standing to argue that the fruits of an unlawful
search of their host’s house should be excluded
 The burden of proving a legitimate expectation of privacy for the purposes of
asserting standing rest with the defendant
o Concurring (Scalia and Thomas): Olson is the absolute floor of 4th Amendment standing and
reasonable expectations of privacy, b/c the language of the Amendment protects the right “in
your premises.” It’s up to the homeowner to assert his rights through civil suits
o Concurring (Kennedy): Almost all social guests have legitimate expectations of privacy, but not
the crack packager guy in this case
o Dissenting (Ginsburg): Hosts confer their expectations of privacy on all their guests—including
crack man.
o Professor: The court’s disposition does not give much guidance as to brief social visits
o Criticism: The record is often minimal in drug cases as to standing b/c D’s don’t want to
incriminate themselves
• Simmons v. US (1968)
o Holding: Defendants can testify during their suppression hearing on the question of
standing without any of the information being used against them at trial
o CAUTION: Hearing testimony can be used to impeach D’s credibility as a witness
• Wong Sun v. US (1963)
o Facts: Toy is illegally arrested. He gives a confession that leads the POs to Yee. Yee is
searched, drugs are found on him, and he gives a statement that implicates Toy with a drug
dealer. Confronted w/this statement, Toy gives a statement that Wong Sun is the drug dealer.
POs arrest Wong Sun w/o an arrest warrant, and he is arraigned and released on his own
recognizance. Two days later, Wong Sun comes back and confesses. Then he decides his
confession should be suppressed as the fruit of an unlawful search.
o Holding: Evidentiary fruits that would not have been discovered but for an unlawful
search are too attenuated from the unlawful search to be tainted by its poison when they do
not arise from a violation of personal substantive rights.
o Reasoning:
 Toy: Yee’s statements and the drugs found on Yee are suppressed b/c both are fruits
of his unlawful arrest
 Wong Sun: Cannot suppress Toy’s statements, Yee’s statements, or the drugs found
on Yee b/c none of that incriminating evidence arise from a violation of his personal
substantive 4th Amendment rights. He does have standing to argue that his confession
is the fruit of his unlawful arrest w/o a warrant. However, this evidence is not
suppressed b/c his free will in coming back 2 days later purged the primary taint
Super-Crim-Pro 36
o Professor: This is a seminal case b/c it illustrates the importance of identifying the defendant’s
individual poisonous tree and its subsequent fruits to determine attenuation
• People v. Harris (1990)
o Facts: POs had Probable Cause to arrest D and made a warrantless in-home arrest in violation of
Payton. D was brought to the stationhouse, read his Miranda warnings, waived his rights, and
o Holding: When Probable Cause exists to make an arrest, the evidentiary fruits of a
warrantless in-home arrest in violation of Payton are too attenuated from the unlawful
search too be tainted by its poison and are admissible
o Reasoning: Payton was designed to protect the physical integrity of the home, not to protect
statements made by arrestee’s outside their premises when the POs have Probable Cause to
o Professor: The poisonous tree of a Payton violation is the illegal search of the home, not the
lawful arrest
• In General: Many people think of this as an exception to the poisonous tree doctrine. It is
better to think of it as an alternative tree.
• Murray v. US (1988)
o Facts: POs get a tip from informant and conduct surveillance of a warehouse. They see two men
drive in w/trucks. Two other men drive out w/the trucks. The DEA stops the trucks and finds
drugs. They then storm into the warehouse and discover bales of marijuana. The agents don’t
touch the drugs. Instead, they apply for a warrant based on information independent of the
illegal initial entry into the warehouse.
o Holding: Evidence otherwise excludable as a product of an illegal search or seizure may be
submitted into evidence if: (1) it is also the product of an untainted warrant based on
Probable Cause; and (2) the POs can logically explain that they would have gotten a
warrant based on the independent source anyway
o Reasoning:
 The information contained in the affidavit for the warrant will is relevant to the first
element. Lower courts have even found the warrant legal when some of the
information in the affidavit is tainted so long as there is sufficient lawful information
 Empirical data will be relevant to the logical explanation element to see if the POs
actually have applied for warrants in similar past scenarios
o Policy: The point of the exclusionary rule is to put the POs in the same position they were in
before their illegal conduct—not to put them in a worse position
o Note: This case was potentially distinguishable from Segura v. US (1984) b/c in that case the
POs did not discover the evidence subsequently found pursuant to a lawful search. In this case,
the POs were trying to get in the same evidence discovered in the illegal search
o Dissent: The majority’s ruling provides the adverse incentive to conduct “confirmatory searches”
(Deterrence rationale).
o Professor: Although the court tried to avoid the messy business of PO’s subjective intent in
Whren, the independent source doctrine puts them right back into the same position
• In General
o The inevitable source doctrine is really an extension of the independent source doctrine based on
a judicial determination that hypothetically it was inevitable that an independent source would be
o This is clearly an exception to the fruit of the poisonous tree doctrine
• Nix v. Williams (1984)
Super-Crim-Pro 37
o Facts: POs obtain a confession from D in violation of his 6 Amendment right to counsel. The
statement leads to the body of a murdered young girl. The statement gets suppressed. D seeks to
suppress the body as the fruit of the illegal confession. The government argues that even if they
did not get the statement, inevitably they would have discovered the body b/c a massive search
effort was underway that would have uncovered the body in the location it was found
o Holding:
 The evidentiary fruits of an unlawful search are admissible if the government
can prove by a preponderance of the evidence that the challenged fruits would
have been discovered through an independent source
 Bad faith is irrelevant to the inevitable discovery doctrine
o Reasoning:
 Limiting the exclusionary rule so as no to put the police in a worse position than they
would have been in if they hadn’t conducted the unlawful search
 Bad faith is irrelevant b/c the exclusionary remedy is restitutionary, not punitive
• Walder v. US (1954):
o Facts: D wins suppression of heroin illegally seized from his house. D testified on direct that he
had never possessed drugs in his life. Government impeached his credibility with the heroin
o Holding: The government may use the fruits of an unlawful search to impeach a
defendant’s credibility as a witness on cross-examination when the defendant opens the
door on direct
Reasoning: The evidence is not permitted to come in substantively as probative towards
guilt, but only to attack the witness’s credibility as a truth teller
o Policy: Fair play. The government should not have to bear the indignity of perjury.
• US v. Havens (1980)
o Facts: Stash pocket evidence suppressed as the fruit of an unlawful search. D testifies
generically on direct. Prosecution asks the defendant specifically about the suppressed evidence
on cross-examination, D lies, prosecution uses the evidence to impeach
o Holding: Illegally seized evidence may be used to impeach a defendant’s testimony elicited
during cross-examination or any other manner
o Reasoning: Prevents permitting a defendant to perjure themselves.
o Policy: Empirically, it is unlikely that the POs would intentionally conduct unlawful searches
and seizures solely for impeachment purposes.
o CAUTION: The prosecutor’s question during cross-examination must be logically related to the
defendant’s direct testimony
o Professor: The impeachment exception does not eradicate the exclusionary rule b/c, as a
threshold matter, suppression may prevent the prosecution from even bringing the case before a
jury. If they do, a smart lawyer would council his client not to testify in order to prevent opening
the door. This is the cost of winning the motion to suppress.
• James v. Illinois (1990)
o Facts: D is arrested w/o Probable Cause for a shooting. After the shooting, he admits to dying
his hair to change his appearance. The confession is suppressed as the fruit of the poisonous
tree. D calls a witness to testify that his hair has always been the color he dyed it. Prosecution
impeaches w/the confession.
o Holding: The government may not impeach defense witnesses with the evidentiary fruits of
an unlawful search
o Reasoning: Necessary to avoid the impeachment exception from preventing the defendant from
making any case
Super-Crim-Pro 38
o Policy: Fair play. D cannot be expected to control a witness from opening the door
• US v. Leon (1984)
o Facts: POs obtain a search warrant on the basis of an informant’s tip. A large amount of drugs
are found on D’s premises. Lower court decides that there was no Probable Cause, but that the
issue was close. The government appeals solely on the PO’s good faith, not on the issue if
Probable Cause existed.
o Holding: The evidentiary fruits of an unlawful search conducted in good faith reliance
upon a warrant that subsequently is found invalid are admissible if: (1) a reasonably well
trained PO would reasonably have relied on the warrant as valid; and (2) the warrant
issuing magistrate was neutral and detached
o Reasoning:
 The Supreme Court explicitly de-constitutionalizes the exclusionary rule and
concretely establishes that the courts do not further violate the 4th Amendment by
permitting illegally obtained evidence in court
 The judiciary is not motivated to violate 4th Amendment rights in the adversarial law
enforcement role, and exclusion will not be a deterrent
o Policy: The police should be entitled to reasonably rely on the judiciary
o Dissenting (Brennan): (1) Provides a 2nd bite at the apple; (2) Freezes the development of
Probable Cause case law in close cases; (3) Damaging to judicial integrity
o CAUTION: New York rejects the good faith exception
o CAUTION: The good faith exception does not apply when:
 Affiant knows, or is reckless in not knowing, that the information provided or omitted
in the warrant application is false and the information is necessary for Probable Cause
 The warrant is facially invalid for lacking particularity
 Magistrate acts as a rubber stamp for the POs
 Bare bones affidavit
 POs mistakenly believe Probable Cause exists during a warrantless search
• Illinois v. Krull (1987)
o Facts: PO relies on a state statute permitting searches of motor vehicle dealers w/o a warrant.
After the search, the statute is found unconstitutional
o Holding: The good faith exception applies whenever a PO reasonably relies on a neutral
o Note: Extended to reasonable reliance on a mistaken computer entry made by a judicial clerk
indicating that an arrest warrant was outstanding (Arizona v. Evans)
Super-Crim-Pro 39

• SELF-INCRIMINATION AND CONFESSIONS________________________________________________

o In General
 5th Amendment: “No person should be compelled in any criminal case to be a witness against
 The very language of this Amendment suggests an exclusionary rule that is self-operating
 The court has not interpreted the Amendment narrowly as a prohibition of calling a defendant to
the stand to testify against himself. It applies to any questioning that may expose criminal
liability, including pre-trial statements
 Policy Arguments
• Pro-confession
o Remorsefulness shows an attempt to make good
o Confessions are the product of stellar investigatory work
• Anti-confession
o Confessions are heralded as the most powerful evidence of guilt, but innocent people sometimes
confess under pressure
o It’s stupid for the defendant to confess, so improper police practices must be doing something
o Coerced statements are not trustworthy
 Schmerber v. California (1966)
• Facts: POs seize D’s blood against his will while he is in the hospital after a car accident.
POs had reasonable suspicion he was intoxicated.
• Holding: The 5th Amendment only applies to testimonial evidence, not compelled
physical characteristics
• Reasoning: The 5th Amendment has never been construed so that nothing of probative value
can be seized without consent
• Note: Extends to compelled fingerprint samples, voice exemplars, and intoxication detectors
 Pennsylvania v. Muniz (1990)
• Facts: POs have reasonable suspicion that D was driving intoxicated. POs ask him what the
date of his 6th birthday is. He slurs his speech, can’t remember, then confesses to being
• Holding: Evidence is testimonial if it provides the basis for incriminating inferences
regarding the defendant’s mental state
• Reasoning: The slurred speech is not testimonial, but the answer to the birthday question is
because a wrong answer provided the jury with the incriminating inference of impaired
mental faculties
• Policy: Defendants should not be faced w/the “cruel trilemma” of deciding b/w being
punished for not answering, incriminating themselves, or committing perjury.
• Professor: The 5th Amendment protects the defendant’s mind
 General Rule: Testimonial information cannot be compelled
 Hiibel v. 6th Judicial District of Nevada (2004)
Super-Crim-Pro 40
• Facts: D challenges his penalization under a statute which requires individuals to respond
to PO requests for name identification
• Holding: Compelled disclosure of a defendant’s name does not violate the 5th
• Reasoning: A person’s name is generally not incriminating and the state has a great interest
in obtaining a defendant’s name
• Dicta: Compelled disclosure may violate the 5th Amendment if the defendant can show that
it is a link in the chain of evidence needed to convict
 Brogan v. US (1998)
• Facts: D is asked if he ever received illegal payments. He just said “no.” This was a lie, and
D was tried for perjury. D argues that the spirit of the 5th Amendment should permit a
defendant just to answer “no” when a question has the potential to incriminate.
• Holding: The 5th Amendment does not confer the privilege to answer no when it is a lie
• Reasoning: The defendant has the option to refuse to answer law enforcement’s questions
• Concurring (Ginsburg): Provides the prosecution with the incentive for overreaching by
prosecuting people who are not aware that lying to a federal agent is incriminating
• Professor: Ginsburg’s suggestion to separate an exculpatory no from an incriminating lie is
unworkable. The only possible solution is to provide a warning that a false statement will
subject you to prosecution.
 Griffin v. California (1965)
• Facts: Prosecution comments that the defendant did not take the stand to contradict the
people’s evidence
• Holding: The prosecution cannot point to the defendant’s invocation of the 5th
Amendment right to silence in order for the jury to draw an adverse inference
• CAUTION: The trend in the lower courts is that the prosecution can comment that the
people’s case is uncontradicted by any witnesses when it is feasible to believe that other
witnesses would be available. However, in a case where the defendant is the only other
witness (e.g. a date rape case) the prosecution could not make these comments
• Note: A defendant is entitled to a jury instruction not to draw an adverse inference from the
fact that the defendant did not testify (Carter v. Kentucky)
 Mitchell v. US (1999)
• Facts: Federal judge used the fact that D did not testify during sentencing as an explicit factor
in determining that the quantity of drugs in question met the higher statutory requirement
• Holding: An adverse inference cannot be drawn against a defendant during sentencing
based on the fact that the defendant didn’t testify
• Dicta: The court left open the question of whether the defendant’s silence can be used in
determining whether the defendant is contrite
• Professor: This is limited to judicial fact-finding pursuant to sentencing guidelines
 In General
• A defendant can lose the privilege of 5th Amendment silence unilaterally if the prosecution
provides immunity
• Transactional Immunity: Broad immunity from future prosecution of any transaction the
defendant testifies about
• Use and Derivative Use Immunity: Limited immunity that only prohibits prosecuting the
defendant with his own testimony
 Kastigar v. US (1892)
Super-Crim-Pro 41
• Holding: Use and derivative use immunity is all that is necessary for a defendant to
lose the 5th Amendment privilege unilaterally
• Professor: Procedurally, if a defendant refuses to testify they are held in contempt of court
until they testify or the government gives up
 US v. North (1990)
• Facts: Oliver North, a member of the Iran-Contra scandal, was given use and derivative
immunity and testified before congress on live TV. The Independent Counsel who brought
the case was not exposed to the testimony and had their evidence sealed. The witnesses in
the case were not sealed.
• Holding: Use and derivative immunity is violated whenever evidence is tainted by the
immunized testimony, regardless of how or by whom it was exposed
• Reasoning: Insufficient “wall” b/w the immunized evidence and prosecution
 New Jersey v. Portash (1979)
• Holding: Immunized testimony cannot be used against a defendant for impeachment
purposes in a subsequent trial
 US v. Apfelbaum (1980)
• Holding: Evidence that an immunized witness lied during their testimony can be used
to prosecute the witness for perjury, false statements, or obstruction of justice
o CONFESSIONS AND DUE PROCESS_____________________________________________________
 Brown v. Mississippi (1936)
• Facts: 3 African-American Ds disclaim involvement in a murder. A group of white
vigilantes were assisted by the POs in beating and whipping the Ds into confessing.
• Holding:
o Confessions obtained from a defendant involuntary violate due process
o Voluntariness of confessions is determined by the totality of the circumstances
• Reasoning: Confessions extracted by torture violate due process
• Policy: (1) Confessions obtained in this manner are unreliable; (2) Deterrence of police
• Professor: At this point in the Supreme Court’s history, the Due Process clause was not used
in its sense of “incorporation.” Therefore, State actors were not governed
 Spano v. New York (1959)
• Facts: PO conduct that elicited D’s statement was far less physically coercive than in Brown
• Holding: Psychological factors may render a confession involuntary under the totality
of the circumstances
• Reasoning: Little education, young, immigrant, length of questioning, nature of leading
questioning, multiple government agents in an interrogation room while D is kept
• Professor: The concurrence moves toward a 6th Amendment analysis and the role of counsel
as an alternative bright line method of regulating confessions elicited by state police.
 Arizona v. Fulminante (1991)
• Facts: D was suspected of killing his stepdaughter and was already in prison for a different
crime. Another inmate, who was a paid informant of the FBI, suggested he would protect D
if told him the truth about what had occurred.
• Holding: A credible threat of violence by a government actor may render a confession
involuntary under the totality of the circumstances
• CAUTION: A credible threat of the death penalty does not implicate Due Process b/c it is not
imminent and is subject to legal constraints
 Colorado v. Connelly (1986)
Super-Crim-Pro 42
• Facts: D walks up to PO and starts confessing to murders in a different state. PO then
provides Miranda warnings. D is disoriented the next day and claims that the confessions are
a product of his mental illness.
• Holding: A defendant’s involuntary confession is admissible if it is not the product of
coercive police misconduct
• Reasoning: Voluntariness is determined by the government’s actions
 Lynumn v. Illinois
• Facts: POs threatened that D was going to lose his kids if he didn’t confess.
• Holding: A confession is rendered involuntary when obtained subsequent to a false
promise by a governmental agent
• Professor: There is no bright line rule against promises of leniency
 Frazier v. Cupp (1969)
• Holding: Use of “false friend” and “game is up” trickery does not render a confession
 The Continuing Relevance of Due Process Protection
• The 6th Amendment does not apply until the suspect has been formally charged
• 5th Amendment Miranda applies only during police custodial interrogation. Additionally, if
Miranda rights are waived or a Miranda exception applies, then the only protection
remaining for the defendant is the Due Process involuntariness test.
o CONFESSIONS AND THE 5 AMENDMENT _______________________________________________

 In General
• Miranda is a product of the Supreme Court’s desire to regulate confessions prior to formal
charges by resorting to the alternative rationale of the privilege against self-incrimination
• This was only possible after the 5th Amendment was incorporated to the States in Malloy v.
Hogan (1964).
 Miranda v. Arizona (1966)
• Facts: 4 cases were consolidated. D’s were arrested, formally or de facto, and the suspects
were detained in police custody at the station house. None were informed of their privilege
against self incrimination
• Holding: Custodial interrogation triggers the necessity to inform the defendant of
o The right to remain silent, AND
o That anything he says can be used against him in court, AND
o That he has a right to an attorney, and if he is indigent than an attorney will be provided
for him
• Reasoning: Confessions that violate the 5th Amendment prohibition of self incrimination are
distinguishable from the Due Process “voluntariness” test
• Policy: Fairness. The 5th Amendment is concerned with the incommunicado psychological
pressures placed on a defendant
• Dissenting: The majority’s rule reflects a general distrust of confessions and the assumption
that the police must be doing something to make defendant’s act against their own interest
• Professor: The majority provides for the new right to an attorney prior to formal charges.
This was the most controversial aspect b/c it brings the adversarial disposition of court to the
 Dickerson v. US (2000)
• Facts: Congress attempts to supersede Miranda with 18 U.S.C. § 3501
• Holding (Rehnquist): Miranda is a constitutional decision and cannot be overruled by
an Act of Congress
Super-Crim-Pro 43
• Reasoning: Both Miranda and two other cases interpreting it were applied to proceedings
in state courts, over which the Supreme Court does not hold supervisory power. This is
evidence of its Constituional power
• Dissenting (Scalia): Several members of the majority have themselves stated that Miranda is
not a Constituional right but merely a prophylactic rule
• Professor:
o This case is problematic b/c it came after the long jurisprudence of Miranda exceptions
(impeachment, public safety, fruits) where the court justified its decisions on the basis that the
Miranda is merely a prophylactic rule and not constitutionally mandated
o Many argue that the Rehnquist Court’s decision was influenced by concern over the public
criticism the infamously conservative court would face if Miranda was overruled

 Requirements To Trigger the Necessity of Miranda Warnings

• Requirement 1: Custody
o Berkemer v. McCarty (1984)
 Holding: Terry stops are not custodial for Miranda purposes
o Orozco v. Texas (1969)
 Facts: D was formally under arrest, but not yet at the police station when he confessed
 Holding: When a defendant is deprived of his freedom in a significant way, then
he is in custody and Miranda warnings are required
o Oregon v. Mathiason (1977)
 Facts: D came to the police station on his own free will and consented to questioning
after being informed he was free to leave. D was not read his Miranda rights
 Holding: Questioning at a police station is not custody per se, and Miranda
warnings are not automatically necessary
 Professor: Ultimately, “custody” requiring Miranda warnings is determined by the 4th
Amendment jurisprudence drawing the line b/w Terry stops and de facto arrests
• Requirement 2: Interrogation
o Rhode Island v. Innis (1980)
 Facts: D was identified as the perpetrator of a murder and was arrested and given his
Miranda warnings. D invokes his right to counsel and is placed in a patrol car to
transfer him to the stationhouse. The POs in the car have a conversation over their
concern that the gun D used is loose on the street and handicapped children in the
area might hurt themselves if they find it.
 Holding: Interrogation exists whenever a person in custody is subjected to
express questioning or its functional equivalent and the POs reasonably should
know that it is likely to elicit an incriminating response from the subject
 Reasoning:
• Focuses primarily upon the perceptions of the suspect rather than the intent of the
• In this case, the POs had no indication that D was particularly sympathetic to
handicapped children
 Dissenting (Marshall): The test is good, but the application is wrong b/c an appeal to
sympathetic children is highly likely to elicit an incriminating response
 Professor: A potential distinction in this case comes from the 6th Amendment case
Brewer where D was known to be a religious zealot. The assumption is that the
criminal mind has no sentimentality unless the POs know for certain that D does.
Super-Crim-Pro 44
 Note: Interrogation is more likely to be found when the defendant is confronted
w/incriminating evidence (Edwards v. Arizona)
o Arizona v. Mauro (1987)
 Facts: POs arrest D, he invokes right to counsel, wife wants to speak with him, only
allowed if accompanied by PO who has tape recorder. D makes confesses to wife.
 Holding: Volunteered statements are not the result of PO interrogation
o Pennsylvania v. Muniz (1990)
 Facts: D stopped on suspicion of drunk driving. During booking, asked height,
weight, name. Gives incorrect answers, and then confesses to being drunk.
 Holding: Routine booking questions are not interrogation
 Note: CT said the “booking” exception would not apply if such questions were
“designed to elicit incriminatory admissions.”
o Illinois v. Perkins (1990)
 Facts: POs place UC in D’s cell. D boasts about his crime to the UC. D argues for
 Holding: Undercover investigations are not interrogation for Miranda purposes
 Reasoning: The Miranda policy concerns over the pressures of a PO dominated
atmosphere are not present when D doesn’t even know that he is speaking to a PO.
o Berkemer v. McCarty (1984)
 Holding: Express questioning of a defendant in custody for a misdemeanor
offense is interrogation for Miranda purposes
 Reasoning: POs don’t know all the factors that will determine the offense D is
charged w/by the DA
 Waiver of Miranda Rights
• Miranda v. Arizona (1966)
o Holding: The accused may waive the rights to silence and counsel if under all the
circumstances the rights are waived voluntarily, knowingly, and intelligently
o Professor: The Miranda court thought that waiver would be difficult. They never anticipated
that empirically many defendants would simply waive their rights.
o CAUTION: The modern court presumes a waiver of rights unless the defendant invokes them.
• N. Carolina v. Butler (1979)
o Holding: Waiver of Miranda rights need not be explicit or written
o Reasoning: Waiver is determined from the totality of the circumstances
o Professor: The Due Process analysis determines the voluntariness of waiver
• Moran v. Burbine (1986)
o Facts: D gets arrested, waives his rights. D’s sister gets him an attorney who is waiting at the
stationhouse. The POs do not inform him he has a lawyer, and they tell the lawyer that he will
not be questioned until the next day. He is questioned that night.
o Holding: Events occurring outside of the presence of the suspect and entirely unknown to
him have no bearing on the defendant’s capacity to comprehend and knowingly waive
Miranda rights
o CAUTION: NY law confers an indelible right to counsel whenever there is significant judicial
involvement, and the Moran facts would likely trigger this right
• Connecticut v. Barrett (1987)
o Facts: D is read his Miranda rights, and agrees to talk to the POs but will not let the POs record
his statement.
o Holding: A defendant’s subjective ignorance of the full consequences of waiver of Miranda
rights does not render the waiver involuntary
Super-Crim-Pro 45
• Oregon v. Olsted (1985)
o Facts: POs get two confessions, one pre-Miranda and one post wavier of Miranda rights
o Holding: A defendant’s subjective ignorance that pre-Miranda confessions cannot be used
against him does not render waiver involuntary
o Dissenting (Brennan): D likely thought that the cat was already out of the bag
• Colorado v. Connelly (1986)
o Facts: Crazy guy confesses after waiving his rights b/c the voice of God told him to.
o Holding: The voluntariness of waiver of Miranda rights is determined by the absence of PO
overreaching, not the defendant’s subjective free choice
o Professor: This displays a convergence b/c Due Process and Miranda
 Invocation of Miranda: The Right to Remain Silent
• Michigan v. Mosley (1975)
o Facts: D informs POs he wants to invoke right of silence. POs immediately respect. 2 hours
later, D is read rights again by a different PO and is asked if wants to talk about a different crime.
He confesses.
o Holding: Invocation of the right of silence is not permanent, and a defendant may be asked
if he is willing to waive his rights again if his right to remain silent is scrupulously honored
o Reasoning: Important determinative facts included (1) a cooling off period b/w Miranda
readings; (2) only two requests; (3) different crimes; (4) different POs
 Invocation of Miranda: The Right to Counsel
• Edwards v. Arizona (1981)
o Facts: D is arrested, Mirandized, and invokes his right to counsel. No counsel is summoned.
Hours later, POs initiate questioning, D is re-Mirandized, and he confesses.
o Holding: Once the right to counsel is invoked, a valid waiver of that right cannot be
established by a response to further custodial interrogation even if re-Mirandized, UNLESS
the accused initiates further communication
o Professor: The difference b/w the right to silence and counsel is logical b/c the decision to speak
w/an attorney present is permanent while the decision not to talk might be temporary
• Arizona v. Roberson (1988)
o Facts: D is arrested, invokes right to counsel. Three days later he is asked about a different
crime. He is re-Mirandized and provides a confession w/o an attorney present.
o Holding: Edwards protection is not offense-specific
• Oregon v. Bradshaw (1983)
o Facts: D clearly invokes his right to counsel. As he is being transported to the station he asks
“what will happen to me now?” The PO indicates the procedures, and suggests that D take a lie
detector test. D does, he fails, and confesses.
o Holding: A defendant initiates further communication after invoking his right to counsel
when he evinces a willingness and a desire for a generalized discussion about the
o CAUTION: After the defendant initiated further communication, they must still knowingly,
voluntarily, and intelligently waive their rights. This does not require a second Miranda
warning, but it might be helpful.
• Davis v. US (1994)
o Facts: D is arrested an Mirandized. He is questioned and says, “Maybe I should talk to a
lawyer.” POs ask clarifying questions, D says he does not invoke, and then confesses.
o Holding: Ambiguous invocation of the right to counsel is insufficient to trigger Edwards
and the police officers may continue questioning the defendant without clarifying if the
defendant intends to invoke his right to counsel
Super-Crim-Pro 46
o CAUTION: Davis does not apply to inarticulate defendants
• Smith v. Illinois (1984)
o Facts: D is Mirandized and says “Uh, yeah, I’d like that.”
o Holding: An inarticulate yet clear invocation of the right to counsel triggers the protections
of Edwards
• In General
o The original basis for the exceptions to Miranda was that the warnings were a prophylactic rule
o Then Dickerson comes around and holds that the Miranda warnings are a constitutional right that
cannot be overruled by Congressional action
o The court re-characterized the exceptions as exceptions to the constitutional right
• Exception 1: Impeachment
o Harris v. NY (1971)
 Facts: D makes a statement in violation of Miranda that implicates his knowledge he
was selling drugs. D testifies at trial that he thought he was selling fake-drugs. The
prosecution uses the confession to impeach his credibility.
 Holding: Confessions obtained in violation of Miranda are admissible to impeach
a defendant’s credibility as a witness
 Reasoning:
• Justifies that the Miranda warnings are not require by the constitution (NOT
valid after Dickerson)
• The statement is voluntary under Due Process, and therefore the reliability of the
confession is legitimate
 CAUTION: Confessions in violation of Due Process cannot be used for impeachment
o Doyle v. Ohio (1976)
 Facts: D was Mirandized when arrested, then chooses to remain silent. He gave
exculpatory testimony at trial, and the prosecution aimed to use his post-arrest silence
to impeach his credibility
 Holding: After Miranda warnings are given, the Due Process clause prohibits the
use of the defendant’s silence for impeachment
 Policy: Fundamental notions of fairness
o Jenkins v. Anderson (1980)
 Facts: D stabs and kills victim. He is apprehended two weeks later. At trial he claims
self-defense, prosecutor aims to impeach his credibility w/pre-arrest silence.
 Holding: Impeachment by the use of pre-arrest silence does not violate Due
 Reasoning: No government action induced D to remain silent
o Fletcher v. Weir (1982)
 Facts: D was arrested, but hadn’t yet been Mirandized. Before any interrogation took
place, D remained silent. Prosecutor aims to use his silence to impeach his self-
defense claim at trial
 Holding: Impeachment with post-arrest, pre-Miranda silence does not violate
Due Process
• Exception 2: Fruits of a Miranda Violation
o Michigan v. Tucker (1974)
 Facts: POs give defective Miranda warnings. Statement is suppressed, but the
information regarding an alibi witness leads the POs to the supposed alibi—who turns
government witness against D.
Super-Crim-Pro 47
 Holding: The fruits of a Miranda violation are admissible
 Reasoning:
• The exclusion of the fruits of the poisonous tree is only justified if a constitutional
right is violated, and Miranda is not a constitutional right (NOT valid after
• The suppression of the confession itself is enough of a deterrent b/c POs will not
purposefully violate Miranda in the hope of obtaining fruits of the poisonous tree
o Oregon v. Elstad (1985)
 Facts: POs get an initial confession from D that violates Miranda. They then bring
him back into the station, his is re-Mirandized, and get a second confession. The
prosecution uses the 2nd confession only at trial. D challenges the 2nd confession as
the fruit of an illegal confession.
 Holding (O’Connor): The fruits of a Miranda violation are admissible, even
when they are only a reiteration of a confession suppressed for violating
 Dissent (Brennan): This is a crippling blow to Miranda because it provides an
incentive to POs to get an unlawful confession, then read Miranda rights in order to
trick the defendant into repeating the confession.
o US v. Patane (2004)
 Facts: D gave a Miranda defective statement to POs which lead to a gun used against
him at trial.
 Holding: The physical evidence fruits of Miranda defective confessions are
admissible in court
 Reasoning (Plurality): The privilege against self-incrimination is a trial right, and
Miranda violations don’t occur until the Miranda defective evidence is admitted into
 Professor: These cases indicate that there is no consensus among the Supreme Court
as to how to deal w/Dickerson.
o US v. Seibert (2004)
 Facts: POs stipulate it is department practice to intentionally violate Miranda for the
first confession in order to obtain a confession pursuant to the Elstad loophole.
 Holding (Plurality): Midstream Miranda warnings given between confessions
violate Miranda and are ineffective
 Reasoning:
• Miranda warnings have to be effective, and a midstream Miranda warning is not
• Distinguishable from Elstad because of the break in time, different officers
 Concurring (Breyer): We should just use the fruits of the poisonous tree analysis
 Concurring (Kennedy): Fruits of the poisonous tree should be excluded if the POs
violate Miranda in bad faith
 Dissenting (O’Connor): Elstad binds the court to a different result, and Kennedy’s
test about subjective intentions is unworkable
 Professor:
• The Majority goes to lengths to avoid analyzing this as a fruits of the poisonous
tree case, but the reasoning looks like an attenuation analysis
• The intellectual disparity b/w Patane and Seibert is frustrating, but essentially
Seibert is limited to the facts of midstream Miranda warnings
• Regardless of the confusion, the result is the same. All fruits of Miranda
defective confessions are admissible
Super-Crim-Pro 48
• Exception 3: Emergency/Public Safety
o NY v. Quarles (1984)
 Facts: POs are approached by a woman who says she was raped by a man that has a
gun and is in a nearby supermarket. POs go to the supermarket, draw their guns on
D, frisk him, notice that the gun is missing from his shoulder holster, and demand him
to tell them where the gun is. Without being Mirandized, D confesses that the gun is
in a nearby box.
 Holding: A Miranda defective confession is admissible when obtained during an
emergency situation that made the Miranda warnings impracticable
 Policy: Public safety prevails over the defendant’s 5th Amendment rights against self-
 Note: Absent the emergency exception, the defendant wouldn’t get the gun
suppressed anyway under Patane.


 Massiah v. US (1964)
• Facts: D is arrested on conspiracy charges and indicted. D obtains a lawyer and is released
on bail. A co-conspirator flips, wears a wire, and D makes incriminating statements.
• Holding:
o Once formal proceedings have been initiated against a defendant, no “deliberate
elicitation” may occur in the absence of counsel
o Formal proceedings is a bright line rule determined by the filing of formal charges by
means of a complaint, grand jury indictment, preliminary hearings, an information, or
arraignment (dependent on the jurisdiction)
• Reasoning:
o The 6th Amendment only applies after formal proceedings have been initiated
o The government may continue to investigate subsequent to formal proceedings, however they
may not deliberately elicit statements from the defendant’s own mouth to use against him at trial
• Policy: Massiah recognizes that once the government has brought formal charges against an
individual, the adversary relationship b/w the parties is cemented
• Professor: If this was just during the investigatory stage and D was not indicted, then...
o D loses under the 4th Amendment b/c of public exposure
o D loses under Due Process b/c there was no police coercion
o D loses under 5th Amendment b/c he is not in custody and Miranda doesn’t apply
• CAUTION: The 6th Amendment right to counsel is offense specific and the government
controls the point at which it will be implicated through formal proceedings
 Brewer v. Williams (1977)
• Facts: A ten year old girl disappears from her parent’s sight on Christmas Eve and is
abducted by an escaped mental patient (D) who then kills her. D obtains counsel, then turns
himself in and is formally arraigned. POs are aware of D’s strong religious beliefs and give
him the “Christian burial speech” which influences him to lead them to the girl’s body.
• Holding: Deliberate elicitation of incriminating statements after formal proceedings
have commenced AND in the absence of counsel violate the 6th Amendment
• Reasoning: The POs deliberately set out to elicit information from D by appealing to his
known religious beliefs
• Policy: The 6th Amendment derives from the trial right to counsel, and the bright line rule is
in recognition of the need for counsel once formal adversarial proceedings are initiated
Super-Crim-Pro 49
• Professor: If there were no formal proceedings or judicial involvement other than a
warrant, then this case would have to be decided under Miranda on the issue of whether or
not D “initiated conversation.”
 US v. Gouveia (1984)
• Facts: POs place Ds in administrative detention for a period of months prior to their being
indicted. D’s were not questioned and were denied counsel.
• Holding: The 6th Amendment does not provide defendant’s with the right to a counsel
pre-indictment solely because they are in custody
 Fellers v. US (2004)
• Facts: D is indicted and the POs go to his house, arrest him, and tell him about an outstanding
warrant for 4 other individuals. D confesses that he knows the four people are involved in
drug sales and that he did drugs with them. POs take D back to the station, Mirandized him,
and he confesses again.
• Holding: “Deliberate elicitation” under the 6th Amendment is a more protective
standard than Edwards 5th Amendment “initiated further communication” standard
• Professor: Scholars have suggested that deliberate elicitation looks more to what the POs
subjectively intended than to the objective 5th Amendment standard
 US v. Henry (1980)
• Facts: D is indicted and POs place an FBI informant in his jail cell. POs do not tell the
informant to elicit information, but the informant had a continuing relationship w/the FBI
where he was paid as an informant.
• Holding: The 6th Amendment is violated by undercover tactics whenever the
government deliberately creates a situation likely to lead to an elicitation of information
• Professor: To avoid implicating the 6th Amendment, the informant must either
o Be in place prior to formal proceedings against D
o Be nothing more than a “listening post” and not ask any questions
o Be a purely private actor not working for the government at the time the information was
obtained from the accused
o Only ask D about a different offense for which he has not yet been formally charged
• CAUTION: Informants and UC officers are permissible under Miranda, but are prohibited in
the 6th Amendment context
 Kuhlman v. Wilson (1986)
• Facts: D is arraigned, but prior to his arrival at jail POs enter into an agreement with an
inmate where the inmate would listen to D’s conversations and report them, but would ask no
questions and simply “keep his ears open.” Without prompting, D told the inmate informant
that he was present during the robbery.
• Holding: To prove a 6th Amendment violation, a defendant has the burden of proving
that the government took some action, beyond mere listening, that was deliberately
designed to elicit incriminating statements
• Reasoning: There is a vast difference between placing an “ear” in the suspect’s cell and
placing a “voice” in the cell to encourage conversation
 Maine v. Moulton
• Facts: D and co-defendant are formally charged with the theft of automobiles. Co-defendant
flips on D and tells the POs that D wants to kill witnesses. The cooperator wears a wire and
questions D only on the uncharged crime of conspiracy to obstruct justice. D rejects the idea
of killing the witnesses, but implicates himself in the theft.
• Holding: Incriminating statements pertaining to pending charges are inadmissible at
trial when the police attempt to elicit information pertaining to uncharged offenses and
the defendant offers information relating to the pending charges
Super-Crim-Pro 50
• Reasoning: Exploitation of an opportunity to confront the accused without counsel is as
much a breach of the 6th Amendment as is the intentional creation of such an opportunity
 Patterson v. Illinois (1988)
• Facts: D is indicted by a grand jury but has not yet been arraigned and no lawyer has been
appointed. D is Mirandized, agrees to waive his rights, and confesses.
• Holding: Proof of waiver of the 5th Amendment right to counsel after Miranda
warnings is sufficient to waive the 6th Amendment right to counsel
• Reasoning: Miranda makes defendants sufficiently aware of their right to a lawyer
• Professor: Silence following Miranda warning equates to a waiver of both the 5th and 6th
Amendment rights to counsel
• CAUTION: A waiver of the 5th Amendment right to counsel may not be sufficient to waive
the 6th Amendment right to counsel where an attorney is attempting to contact the defendant
• CAUTION: Patterson is distinguishable from the right to counsel at trial, where copious
warnings must be conveyed to the defendant before waiver is effectuated
 Michigan v. Jackson (1986)
• Facts: D formally requests counsel at the point of arraignment. Subsequently, he is
interrogated about the very crimes he is charged with. D is Mirandized , voluntary waives
his right to counsel and confesses.
• Holding: Once formal proceedings are initiated and the right to counsel has been
invoked, any subsequent interrogation is presumed unlawful, UNLESS the defendant
initiates conversation and then waives his 6th Amendment rights
• Reasoning: This is the Edwards rule in the 6th Amendment context
• Note: In most cases, invocation of the right to a lawyer occurs at the arraignment stage
 McNeil v. Wisconsin (1991)
• Facts: D is formally charged with armed robbery and invokes his right to counsel. No lawyer
is summoned and POs interrogate D concerning other armed robberies and a murder he has
not been charged with. D is Mirandized, waives his rights, and confesses.
• Holding: An invocation of the 6th Amendment right to counsel is only offense specific
and the government can initiate interrogation on other offenses absent counsel
• Reasoning: Just as the 6th Amendment right to counsel is offense specific, so is the Michigan
v. Jackson effect of invalidating subsequent waivers in PO initiated interrogations
• CAUTION: Arizona v. Roberson does NOT apply to the 6th Amendment right to counsel
• CAUTION: The defendant cannot insulate himself from interrogation on other offense by
making an anticipatory Miranda invocation at arraignment b/c Miranda is not triggered until
custodial interrogation.
 Texas v. Cobb (2001)
• Facts: D was a suspect in a case where a mother and a baby were missing from a home that
was burglarized. D confesses to burglary, but denies killing the victims. D is only formally
charged w/burglary and invokes his 6th Amendment right to counsel. D is released on bail
and tells his father he killed the victims. His father tells the POs and he is arrested for the
murders. D is Mirandized and confesses to the murders.
• Holding: When a defendant is formally charged for a specific offense and other charges
are withheld pending further investigation, the 6th Amendment right to counsel does
not attach to the uncharged offenses unless the statutory elements of both offenses are
the same or the uncharged offense is a lesser included offense
• Reasoning:
o The court applied the Blockburger double-jeopardy test which permits a defendant to be tried for
two separate offenses that include common elements when each offense has at least one separate
individual element
Super-Crim-Pro 51
o The court found this bright-line rule to be better than a discretionary evidentiary rule such as
“factually interwoven”
• Dissenting: This definition is unnecessarily technical
• Professor: This is a very formulistic statutory analysis and provides a great potential for
prosecutorial abuse. If the prosecutor chooses to keep one count unindicted, it seems that
under Cobb they can interrogate w/o counsel and use any evidence obtained against the
defendant at trial. Expect a bad faith exception in the future.
 Michigan v. Harvey (1990)
• Facts: D invokes right to counsel at arraignment. POs initiated interrogation absent counsel.
D is Mirandized, waives his rights, and confesses. D’s confession is suppressed. D opens
the door on direct testimony.
• Holding: Incriminating statements obtained in violation of Michigan v. Jackson are
admissible for impeachment purposes if: (1) defendant is formally charged and invokes
his right to counsel; (2) the government initiates further interrogation absent counsel;
(3) defendant is Mirandized; and (4) defendant voluntarily waives his 6th Amendment
right to counsel through the waiver of his Miranda rights
• Reasoning:
o Valid waiver of 6th Amendment rights under Patterson b/c he waived his Miranda rights
o Only a violation of the prophylactic rule imported from the 5th Amendment, and therefore the
Harris v. New York 5th Amendment exclusionary exception applies
o This is the only exception to the 6th Amendment exclusionary rule, and it only applies where the
defendant waives his rights.
o Statements directly in violation of the 6th Amendment (Massiah) are excluded from the
prosecutions case in chief, fruits, and for impeachment purposes

• EYEWITNESS IDENTIFICATION_________________________________________________________
o In General
 Eyewitness identification has traditionally been considered very strong evidence
 There are several risks that contribute to wrongful convictions
• Risk 1: Police Suggestibility
• Risk 2: Witness conviction
• Risk 3: Difficult to recreate eyewitness identifications and impeach at trial
 US v. Wade (1967)
• Facts: D is arrested and arraigned for bank robbery. The FBI arranges for D to stand in a
lineup w/decoys absent counsel. Both eyewitnesses identify D at the lineup and at trial. D
attempts to suppress the witness identification at trial.
• Holding:
o After formal charges, a lineup identification absent counsel violates the 6th Amendment
and is inadmissible at trial
o An in court identification subsequent to a lineup identification is admissible if an
independent source exists for the witness’ identification sufficient to purge the taint of the
poisonous tree
• Reasoning:
o Once formal charges have been initiated, the out of court identification is a critical stage of the
proceeding and the defendant should have a right to the presence of counsel
Super-Crim-Pro 52
o The prosecution can apply Wong Sum to argue that the eyewitness identification is based on
the “independent source” of the witness’ own recollection
o Reliability Factors:
 Prior opportunity to observe the alleged criminal act
 Discrepancy between pre-lineup description and the defendant’s actual physical
 Identification prior to lineup of another person
 Identification by picture of the defendant prior to the lineup
 Failure to identify the defendant on a prior occasion
 Lapse of time between criminal act and identification
• Professor: The court’s concern for unfairness and per se solution that lawyers must be present
absent waiver is reminiscent of Miranda
• CAUTION: Wade is not applicable to the processing of scientific evidence b/c the defendant
can either retest it themselves or replicate it in court in a sufficient manner to attack the
prosecution’s case in chief on cross examination
 Gilbert v. California (1967)
• Facts: Companion case to Wade
• Holding:
o Out of court identifications in violation of Wade are per se excluded
o In court identifications in violation of Wade are presumed excluded and the prosecution
has the burden of establishing the independent source of a reliable recollection
• Professor:
o The court’s picture of the lawyer’s role was as more active than reality, where the lawyer is only
an observer and a deterrent
o In practice, if the defense attorney observes a flaw in the lineup then they are likely to keep it to
themselves as grounds to exclude or impeach the identification at trial

 Kirby v. Illinois (1972)

• Holding: A defendant has no Wade right to counsel during eyewitness identification
procedures until formal charges
• Professor: This is a major limitation that greatly diminishes the impact of Wade
 US v. Ash (1973)
• Holding: A defendant has no right to counsel during photographic identification
procedures conducted before or after formal charges
 In General: Due Process protects the defendant’s right to a reliable identification procedure
prior to formal charges.
 Stovall v. Denno (1967)
• Facts: D is linked to the murder and stabbing of a married couple. POs bring D to the victim
in the hospital. D is the only individual brought before the victim (a “show-up”
identification), and he is the only black man in the room.
• Holding: An unnecessarily suggestive identification procedure is admissible when the
identification is fundamentally fair under the totality of the circumstances
• Reasoning: The court applies an exigency rationale and determines that the suggestive lineup
was necessary b/c she might die
 Neil v. Biggers (1972)
Super-Crim-Pro 53
• Facts: POs perform a show-up identification, claiming they could not find any individuals
that matched the unique physical characteristics of the defendant. The rape victim makes a
positive ID.
• Holding: Unduly suggestive identification procedures are admissible when an
independent source exists for the witness’ positive identification
• Reasoning: The rape victim had the independent source of her own recollection that purged
the taint of the unduly suggestive identification procedure
• Test for admissibility under the Due Process Clause:
 Whether the witness had a picture of the ∆ in his/her mind before the police
suggestiveness occurred, and whether that suggestiveness altered that picture in any
 Determining this, a CT must investigate into how clear the witness’ pre-identification
picture was. Which is determined by such factors as:
• How good a look the witness got during or before the crime
• How attentive the witness was
• Whether memory loss has faded the picture in the witness’ mind by the time of
the identification
• Inferences are drawn about the clarity in the witness’ mind by descriptions given
by the witness:
o By whether the witness has mistakenly identified another person as the
o By whether the witness’ description fits the person that is identified
o By the certainty of the witness at the time the ∆ is identified

 Manson v. Braithwaite (1977)

• Facts: UC buys drugs from D outside D’s apartment. UC testifies that he was 2 ft away, the
hall was light with natural sunlight, and that he has special training in making detailed
identifications. UC makes positive identification of D from unduly suggestive single
photograph identification procedure.
• Holding: Reliability is the lynch-pin in determining the admissibility of unduly
suggestive identification procedures and permits admission if the identification is
reliable under the totality of the circumstances
• Reasoning: This is an ad hoc approach that limits the societal costs imposed by a sanction
that would exclude relevant evidence from consideration and evaluation by the trier of fact
 Foster v. California (1969)
• Facts: POs conduct a lineup of 2 short people and a tall man (D). Only D is wearing the
jacket the perpetrator was allegedly wearing during the crime. The witness cannot ID. D is
removed and placed in show up. Witness still doesn’t ID. Two weeks later, D is placed in
another lineup and is finally identified.
• Holding: Identification procedures violate Due Process and may not be admitted when
they are so impermissibly suggestive as to create a substantial risk of mistaken
• Professor: This is the only identification procedure the Supreme Court has ever found to
violate Due Process. This procedure was ridiculously suggestive.
• CAUTION: Under the 6th Amendment, an out of court ID can be suppressed but an in court
ID may be permissible. Under Due Process, the out of court and in court IDs rise and fall
together b/c the exclusion is based on reliability

• CRIMINAL DISCOVERY______________________________________________________________
Super-Crim-Pro 54
o In General
 Discovery in the criminal context is nothing like the “liberal rules of civil discovery” where both
parties have a duty to fully disclose all information in order to whittle down to the truth
 There is no mutual obligation to share information in the criminal context because there is no
symmetry at trial: (1) Instead of the preponderance standard, the burden is on the prosecution; (2)
The defendant has the right to remain silent and avoid incriminating himself; (3) The prosecution
has an interest in protecting witnesses from retaliation
 F.R.Crim.P. Rule 16
• Limited discovery under the federal system
• Not constitutionally based
 Independent Investigation
• NY has a Grand Jury preceding where the evidence against the defendant is kept secret
• Other jurisdictions have adversarial preliminary hearings that can be used as an opportunity
for discovery
 Many prosecutors will choose to give discovery that is not required in order to: (1) Create
leverage to plead the case out; (2) Avoid appeal by erring on the side of safety; (3) Protect ethical
o Brady v. Maryland (1963)
 Facts: Defense attorney asks to see statements of the defendant’s accomplice and the prosecutor
doesn’t turn over one of the statements where the accomplice admits to doing the killing
 Holding: The prosecution has a constitutional obligation under the due process clause to
disclose exculpatory evidence during discovery
 Note: After this case, defense attorneys flooded prosecutors with vague Brady requests
o US v. Agurs (1976)
 Facts: Defendant is a prostitute that stabbed and killed a man and claimed self-defense. The
prosecution did not turn over the victim’s criminal record of assaults w/knives. D was unaware
of this information and made no requests. Challenged as a Brady violation after conviction.
 Holding:
• If the government knowingly puts on perjured testimony then it is usually grounds for
reversal unless the government can prove that the lack of evidence was harmless
• If the government fails to disclose evidence in response to a vague request for
exculpatory evidence or Brady material then the prosecutor only has the affirmative
duty to disclose evidence the defendant shows would have created a reasonable doubt
 Reasoning:
• A vague request is equivalent to no request at all
• In order to determine whether a piece of evidence was potentially exculpatory, the court
looks to the four corners of the record and weighs the value of the evidence
• In this case, the victim’s criminal record seems like it is material but the court concludes it is
not b/c the defense already knew that the knife was the victim’s
 Professor:
• This was a compromise b/c it created an affirmative duty on the prosecution to disclose
absent a request, but it did not require the prosecution to disclose their entire work-product
• The materiality test is the most paradoxical aspect of Brady because it is defined in a
hindsight manner based on a review of the entire record
o US v. Bagley (1985)
 Facts: D requests discovery of any deals the government made w/witnesses. The government did
not disclose an informant. D claims Brady violation b/c impeachment could change outcome.
 Holding:
Super-Crim-Pro 55
• Nondisclosure of impeachment evidence is governed by the materiality standards of
• Undisclosed evidence is material only if there is some reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been
different and the confidence of the outcome would have been undermined
• The more specific the request, the more likely that the suppression will be material in
the Brady sense
 Reasoning: The court backed away from the Agurs test
 Professor: The standard is helpful to appellate courts, not to lawyers at trial
o Wood v. Bartholemew (1995)
 Facts: Prosecutor gives a polygraph to some witnesses and they fail. Nevertheless, the
prosecutor puts the witnesses on stand and doesn’t inform the defense of the failure. Polygraph
testimony is inadmissible in court. The defense cries Brady violation because it would have
changed the trial strategy.
 Holding: Evidence of speculative exculpatory value is immaterial under Brady
 Professor: The court avoids flatly declaring that inadmissible evidence is never material, but it is
hard to come up with any inadmissible evidence that would be
o US v. Ruiz (2002)
 Facts: As a condition of the defendant’s guilty plea, he waived his Brady rights to impeachment
 Holding: The government is not required to disclose exculpatory information under Brady
during guilty plea negotiations
 Reasoning: If the defendant knowingly and voluntarily pleads guilty then potentially exculpatory
information is immaterial to his guilt
 Professor: Prior to this case, the question about disclosing that your only witness died before trial
was in the air. The death of the witness changes nothing about the facts of the offense.
o California v. Trombetta (1984)
 Facts: The government failed to keep an intoxication result on the machine.
 Holding: No Brady violation exists unless the evidence at issue would have played a
significant role in the defense
o Arizona v. Youngblood (1988)
 Facts: Government fails to preserve a semen sample on the victim’s clothing. Defendant argues
that had the semen been preserved, then it would have been exculpatory under Brady
 Holding: Lost or destroyed evidence is not governed by the Brady materiality standard,
rather the defendant has the burden of proving that lost or destroyed evidence was lost or
destroyed in bad faith
 Reasoning: There is no reason to believe that lost evidence is exculpatory unless it is lost in bad
 Professor: This issue is rare, and only comes up with sloppy police work or old cases. The court
looks to the totality of the circumstances to asses the reasonableness that the evidence was lost or
 Note: If the defendant does not have sufficient evidence to prove bad faith, they may request the
“State’s Best Evidence” jury instruction that the government lost their best evidence, and the jury
may infer that the lost evidence would have helped the defendant
o Williams v. Florida (1970)
 Facts: A Florida rule required defendants to submit notice to the prosecution that they intended
to use an alibi witness
 Holding: Defendants may be required by statute to disclose that they intend to use a
specific alibi witness
Super-Crim-Pro 56
 Reasoning: Discovery of alibis is needed to prevent the defendant from blind-siding the
government with a fabricated story withheld until trial
 CAUTION: The only claims the defendant may be required to disclose by statute are alibi and
insanity b/c either one can be completely fabricated and advance notice can verify legitimacy
o Wardius v. Oregon (1973)
 Holding: The prosecution has a duty to disclose in advance any rebuttal evidence
discovered pursuant to a notice of alibi discovery statute
o US v. Nobles (1975)
 Facts: Defense investigator interviews two prosecution witnesses prior to trial who back away
from the statements that they eventually make at trial. D wants to call the investigator to
impeach the witnesses, and the prosecution demands discovery of the investigator’s files.
 Holding: Witness’ out of court statements must be disclosed to the opposing party after a
witness other than the defendant has testified on direct examination
 Reasoning: Even if this was protected by the work product doctrine, it was waived by the
investigator testifying at trial
 Note: This rule was codified by Fed.R.Crim.P. 26.2