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Criminal Procedure Outline

Due Process/14th Amendment

Osborne [DNA dispute]
Procedural due process: Argument that if the state has agreed to provide something
to its citizens, it must provide that in a procedural fair way, in this case it’s a claim about
AK’s statute to provide post-conviction DNA testing available to some people, it must
distribute that right in a procedurally fair way. Alaska’s 3 part test.

Substantive due process I:. If the evidence will show actual innocence, state can’t
punish me. Not a challenge to the procedure that the outcome is reached, challenge to
the outcome itself. Osborne is saying that no matter how AK decided this, I have a right
to this DP claim. Roberts says that he obliquely refers to this and rejects it, and if there
is such a claim it must be brought under habeas.

Substantive due process II: (top of page 51) Crux of the dispute – a right to DNA
evidence, innocent or not.

4th Amendment

 Was there a search?
• Was there a reasonable expectation of privacy? (Katz) [What a person knowingly
exposes to the public, even in his own home or office, is not a subject of 4th A
protection, need a warrant for a wiretap]

• No REOP in statements made to 3rd parties (White) [Concealed radio transmitters

worn by informants do not require a warrant, extend use of technology to Hoffa,
done with informer’s consent]

• No REOP in abandoned property (Greenwood) [garbage put outside curtilage of

your home, even if mandated to do it, no warrant needed]

• No REOP on curtilage of property (normally protected) if there is a public

airspace overhead (Riley) [helicopter, no warrant needed]

• No REOP in contraband, test of presence or absence of contraband is not a

search (Caballes, Place) [dog sniff]

• Tracking with a beeper, that reveals information not available by visual

surveillance is a search, need warrant (Karo) [beeper on ether cans]

• Thermal imaging device which reveals information that would have only been
obtainable from physical intrusion into interior of home is a search, need warrant
• Non-defendants not protected from SWs, interest is in obtaining evidence, not
just suspects (Zurcher) [search of newspaper office]

 Standing?
• No REOP if not overnight guest in home (Carter) [OG can’t be there for business
purposes, must be accepted as guest, length of stay relevant, Olson]

• Individual must own the evidence in question to have a 4th A claim (Rakas)

 Was there a seizure?

• If a reasonable person doesn’t believe they are free to leave, then they have
been seized (Mendenhall)

• Removing from public space to private room unreasonable seizure, TOC similar
test to that in Yarborough for custody determination (Royer) [airport, scope of
seizure exceeded level of suspicion]

• Search of a bus not a seizure (Drayton) [bus search]

• Seizure must be through means intentionally applied (Brower) [18 wheeler

roadblock in car chase]

• No seizure unless suspect stops (Hodari)

• Passengers of cars are seized in a traffic stop (Brendlin) [passenger with

outstanding ]

• Seizure of property = seizure of person, subject to Terry standards (Place)

[airport detention, cops take suitcase for 90 min with only RS]

 Was the search/seizure reasonable

 Warrant?
• Known informant tip creates PC when there’s a (1) basis of knowledge and (2)
veracity of info (credible/reliable) (Spinelli) [tip corroborated by FBI investigation ≠
PC, invalid warrant]

• If anonymous tip, is corroborated (usually by verifiable predicative behavior) form

“substantial basis” for PC, warrant valid (Gates) [lowers Spinelli standard, but test
still good]

• Anonymous tip alone cannot create RS (J.L.)

• Un-verified informant whose tip on specific details/predicative behavior is verified

by police investigation, creates RS (Draper)
• Warrant/PC to search a place ≠ PC to search individual, PC must be
particularized with respect to that person (Ybarra) [warrant for tavern does not
authorize search of all patrons of tavern]

• Exception if objective PO acted in good faith, minimum amount of due diligence

in looking at a warrant, and “close enough” PC (Leon) [invalid SW, magistrate
mistake, no PC]

 Properly executed?
• Timing: Police can enter home to execute AW only if they have reasonable belief
suspect is home (Payton) [cannot enter home without AW or exigent

• Even with valid AW, absent exigent circumstances, police cannot enter B’s home
to arrest A, need separate SW (Steagald)

• If arresting A at B’s house, B can’t be charged for contraband found (Steagald)

• Knock and announce required in executing AW (Wilson) [incorporated]

• When police have RS that K&A would be dangerous to officers or lead to

destruction of evidence, then they may make a no-knock entry (Richards)
[exigent circumstances exception to K&A, case by case analysis]

• Violation of K&A does not require the suppression of the evidence found during a
search (Hudson) [no exclusionary rule for K&A violation]

• Warrant/PC to search a place ≠ PC to search individual, PC must be

particularized with respect to that person (Ybarra) [warrant for tavern does not
authorize search of all patrons of tavern]

• Where police reasonably believed/had good faith to believe SW was valid

during issue/search execution, no violation (Garrison) [SW for wrong apartment]

• With valid SW police can enter home without owner present

 If no warrant, was it reasonable?

 Consent?
• Knowledge to refuse consent not required to give consent (Schneckloth)
[voluntariness test = objective TOC test]

• Consent must come from someone who has, or appears to have, authority
• If one occupant is present and refuses to give consent, there is no consent
(Randolph) [2 co-occupants, 1 consents, another refuses, police search]

 Stop and Frisk? NEED RS

• PO can stop and frisk to see if armed and dangerous with just RS, TOC including
officer’s experience (Terry) [scope of seizure v. degree of suspicion]

• Anonymous tip alone cannot create RS (J.L.)

• Running from PO in high crime area creates RS, TOC (Wardlow) [flight from
cops in high crime area with paper bag]

• Suspicion-less search of parolee valid (Samson) [parolee has no REOP]

 Arrest in public place? NEED PC

• Warrantless arrests allowed in criminal cases, in public space with PC (Watson)
[usually crime committed in officer’s presence, TOCs]

• Drugs and money found in car gives PC for arrest for 3 passengers (Pringle)
[immediate presence of contraband and # of people makes a difference,
“engaged in common enterprise,” 1/3 chance is enough]

• Any traffic violation is enough to create PC and stop a car and do a plain view
search of car, regardless of police pretextual motives (Whren)

• Officer’s discretion to make custodial arrest (Atwater) [soccer mom]

• No exclusion if S&S was Constitutionally acceptable (PC), even if in violation of

more protective state law (Moore) [VA law outlaws arrest for certain crimes]

 Search incident to arrest?

• SILA of person is fine and can happen before arrest as long as not fishing
(Robinson) [if no custody, doesn’t apply]

• SILA of home limited to grabbing area (Chimel) [limited by Buie which allows
protective sweep of home incident to arrest, depending on RS and seriousness
of crime]

• Search of house after public arrest not allowed (Vale) [PC of drugs in home not
enough to search, street arrest doesn’t create exigent circ.]

• SILA of car limited to grabbing area (Gant)

• No search of car allowed if arrestee is secured and can’t access the vehicle
• PO “reasonably believes” car has evidence related to driver’s crime, can search
car (Gant) [doesn’t apply to Gant, arrested for susp. license]

 Exigent circumstances? (immediate danger, hot pursuit,

destruction of evidence)
• Absent an AW or exigent circumstances, police can’t enter home to make an
arrest, even with PC (Payton)

• Absent a SW, blood sample OK because of exigent circumstances (Schmerber)

[destruction of evidence]

• Absent a SW, arrest on street doesn’t create exigent circumstances to search

home (Vale)

• Absence exigent circumstances, police cannot enter B’s home to arrest A even
with valid AW (Steagald) [hot pursuit, must get a SW for B’s house]

• Objective officer’s reasonable basis for believing need for Emergency Aid is
enough (Brigham City) [PO enters house during fight, arrests suspect]

 Plain view?
• (1)PO has to have right to be there, warrant (2) PO must have physical access to
what (3) is immediately recognizable as contraband or evidence (Horton)
[contraband found in course of search for X not listed in warrant]

• PO can’t move objects to determine if it’s contraband/evidence (Hicks)

 Automobile?
• No warrant needed in search of mobile home with PC (Carney) [obvious mobility
of home a factor]

• No warrant needed to search container/compartment in car with PC to think

container is in car (Acevedo) [police stop car after FedEx pick up]

• Can frisk car, compartments to look for weapon with RS that any one in the car
is dangerous or has a weapon (Long) [frisk is limited search to where weapon
could be]

• Can search car for evidence with PC to believe car contains evidence of criminal
activity (Ross)

• SILA limited to grabbable area (Gant) [search of Gant’s car was illegal; officer
can search for weapons or evidence that could be destroyed]
• No search of car allowed if arrestee is secured and can’t access the vehicle
• PO “reasonably believes” car has evidence related to driver’s crime, can search
car (Gant) [doesn’t apply to Gant, arrested for susp. license]

• Arrest of driver does not allow search of body of passenger (Di Re)

• PO with PC to search car may search passenger’s belongings found in car if

capable of containing object of search (Houghton) [purse search]

• PO have the right to order people out of the car in traffic stop (MD v. Wilson)

• PO can frisk passenger out of car if RS they are armed (AZ v. Johnson)

 Inventories?
• Absent warrant or PC, inventory exception to allow search for police
administrative caretaking (Bertine) [search of impounded car, finds drugs, ONLY
okay if car already impounded, no fishing expedition]

 Admin/Special needs?
• No road blocks /check points for general crime control (Edmond) [need
particularized suspicion, no special needs, admin or specific wrong doing here –
just narcotics check point]

• With RS school administrators can search student (T.L.O.) [special needs]

• Extent of special needs search (intrusion) must be balanced with degree of

suspicion (Redding) [strip search for ibuprofen in school]

• Suspicion-less search of parolee valid (Samson) [parolee has no REOP]

 Was search/seizure executed reasonably?

 Use of Force Doctrine SEIZURE
• PO may not use deadly force to make arrest if no threat to officer or others
(Garner) [must have threat to PO, warning, necessary to stop escape, bright line]

• Deadly force a TOC test (Harris) [in starting car chase, suspect was partly
culpable, case by case]

 Use of Force Doctrine SEARCH

• Forced blood sample OK if intrusion minimal, no threat to health/safety of
individual are outweighed by benefit of evidence (Schmerber)

• Surgery to remove bullet not OK for factors listed in Schmerber (Winston)

 If yes, and 4th amendment right violated is there a remedy in exclusion?
• Evidence obtained unconstitutionally excluded from crim. proceedings (Mapp)
[deterrence of police misconduct, incentive to follow law/rules]
• Evidence that is derived (fruit) from evidence gotten by a constitutional violation
(tree) is excludable (Silverthorne Lumber)

 Is an exception to exclusion applicable?

 Good Faith?
• Exception if objective PO acted in good faith, minimum amount of due diligence
in looking at a warrant, and “close enough” PC (Leon) [evidence not excluded,
invalid SW, magistrate mistake, no PC]

• Good faith does not apply to facially invalid warrants (Groh) [warrant didn’t
specify place to be searched, evidence excluded]

• Database or record keeping error is GF exception (Herring) [evidence not


• No good faith exception when action is deliberate, reckless, grossly negligent or

in SOME CASES systemically negligent (subjective) (Herring)

 Fruit of poisonous tree?

• If evidence can be obtained from (1) independent source, (2) inevitable discovery
or (3) is sufficiently attenuated from taint there is an exception to exclusion
(Wong Sun) [written statement “dissipated from taint” admissible]
5th Amendment
Threshold requirements:
• No compulsion, had right to plead 5th, waived that right (Mandujano) [GJ
testimony, no Miranda, made incriminating statements on stand – outside of
police custody write to 5th is waived if not invoked]
• Does not require answers that would themselves support a conviction, but
suspects that have appreciate fear that it would incriminate or would provide a
link in the chain towards incrimination (Hoffman) [once witness invokes 5th, up to
court to decide whether silence justified]
• Mere identification to police is not incriminating (Hiibel)
• Compelled testimony is fine if not used to incriminate (Allen) [rehabilitation
proceedings, labeled as civil in penal code, are not criminal]
• If not used in criminal proceedings, can’t be incriminating (Chavez)
• Testimony must communicate witnesses state of mind, disclose information, or
contain a factual assertion
o Physical evidence is not testimony (Schmerber) [blood sample]
o If only for identification purposes, not testimony (Dionisio) [voice
exemplars]; (Doe v. U.S.) [signature]; (Holt) [trying on blouse]
o Documents are not testimony, can be compelled (Fisher); unless
producing them requires a disclosure of info or state of mind (Hubbell)

 Immunity as a way around incrimination; scope of required immunity

• Must invoke 5th A BEFORE taking immunity, or it is waived
• Use and derivative use immunity are equal to a 5th A protection, burden is on
government in future prosecution to prove no use or derivative use (Kastigar)
• Immunity extends to both state and federal cases (no silver platter) (Murphy)

• Compulsory production of private papers to establish a criminal charge is
tantamount to search and seizure (Boyd) [Integration of 4th A into 5th A, not good
• 4th A does impose reasonableness of search if subpoena is too broad (Hale v.
• If only for identification purposes, not testimony (Dionisio) [voice exemplars]
• Outside of police custody, right to 5th A is waived if not invoked (Mandujano)
• Kastigar
• Fisher
• Hubbell

6th Amendment
(as applicable to interrogations and identifications)
Threshold Requirements:
 Right to counsel?
• 6th RTC for indigent in felony (criminal) cases at judicial proceedings (Gideon)
• 6th RTC in any criminal cause that has the possibility of actual imprisonment
(Argersinger, Scott) including suspended jail sentence w/probation (Shelton)

Has the right to counsel attached?

• 6th A attaches at judicial proceedings (Rothgery) [indictment, arraignment, etc]
• Moment of attachment need not be the same moment in which a lawyer is
appointed, just in a reasonable amount of time (Rothgery)
• 6th RTC is offense specific

 Was there a critical stage?

• 6th RTC in custodial interrogation confined to facts of Escobedo (1) focus on
suspect; (2) in custody; (3) interrogation; (4) no warnings of RTS; (5) requested
and denied counsel [Miranda turns into 5th A case]
 Deliberate elicitation
• Use of undercover agent by police to deliberately elicit information is protected by
6th RTC (Massiah) [co-def. acts as police agent, after D’s indictment]

• Massiah applies exclusion only to statements elicited by undercover agent about

crime for which D indicted (Moulton) [no safety exception to Massiah]

• Police statements, though not questions, deliberately elicited information from D,

protected by RTC (Williams) [Christian Burial Speech]

• Truly passive listener ≠ deliberate elicitation, no protection from 6th A (Kuhlman)

[police informant in cell with suspect, listening post doctrine]

 Corporeal identification (line ups)?

• RTC in post-indictment in-person line-up (Wade)
• NO RTC in pre-indictment in person line-ups, or maybe show-ups (Kirby)
• NO RTC for photo array (Ash) [before and after indictment]

 Remedy to RTC violation at line-up?

 What evidence is being admitted?
 Pre-Trial Identification
• If violation of RTC, per se exclusion (Gilbert)
 In-Court Identification
• If RTC at a pre-trial ID proceeding was violated in-court ID is excluded, unless
there’s an independent source (TOC test) (Wade-Gilbert)
o Test of Reliability of in court statement: (1) witness opportunity to view the
attacker; (2) the degree of attention; (3) accuracy of description; 4) level of
certainty and (5) the time elapsed
 Remedy to Due Process violation?
• DP violation can occur if ID so “unnecessarily suggestive and conducive” as to
be unreliable (Stovall) decided on TOC (Manson)

 Waiver Standard
 Knowing and intelligent
• Waiver only with intentional relinquishment or abandonment of right or privilege
(Williams) [no waiver because suspect repeatedly asked for counsel, burden on
government to prove waiver]
• 6th A RTC Waiver valid if made “knowing and voluntary” (Montejo) [was K&V b/c
never made “cry for help” by asking for counsel, mere appointment of
counsel≠bar on interrogation, reviewed on case by case basis—No bar to waiver
after 6th A right attaches – what constitutes waiver not yet decided]
DUE PROCESS: Fairness standard
Focus on reliability; TOC test
 Custody?
 Voluntariness
• Confession obtained after 36 hours of interrogation is “inherently coercive”
involuntary, excluded (Ashcraft) [unreliable confession]
• Confession though corroborated, obtained after 6 days of interrogation is
“inherently coercive,” excluded (Watts) [again reliability issue]

6th A Right to Counsel Protection

• 6th RTC in custodial interrogation confined to facts of Escobedo (1) focus on
suspect; (2) in custody; (3) interrogation; (4) no warnings of RTS; (5) requested
and denied counsel (suspect asks for counsel, counsel in station house barred
from seeing his client)


Was there custody?
• Subjective mindset (age, etc) not a factor in determining custody (Yarborough)
[minor, no Miranda, questioned in police station after brought there by parents]
• Seizure≠custody (Berkemer)
o Reasonable Person Think They Were in Custody Test: (1) told free to
leave? (2) unrestrained movement during questioning? (3) suspect
initiated contact? (4) police strong arm or deceptive? (5) atmosphere
police dominated? (6) placed under arrest at end?
o Plus Berkemer: (1) length of time? (2) in public view? (3) 2 officers not
really enough to be coercive [roadside detentions]
• Prison≠custody (Perkins)
• If encounter ends without an arrest, it’s not custody (Maherson)

Was there interrogation?

• Any act, statements etc. that the police "should know is reasonably likely to
evoke an incriminating response from a suspect” is interrogation (Innis)

• Undercover agent questioning is okay under Miranda (Perkins)

• Questioning by undercover agent ≠ interrogation, b/c no coercion (Perkins)

[statements elicited by undercover inmate, no custody]
• Statements made to undercover agent, under conditions where there was a
threat of physical violence suppressed (Fulminante)

 Waiver?
Knowing and intelligent
• If given Miranda, don’t invoke and sign statement waiving rights, or make
express statement waiving rights

Presumption against waiver (before Miranda given or after RTC invoked)

• Government has burden to prove waiver, in Miranda this burden is “heavy” but
subsequent cases said that this was just a preponderance of the evidence
Relevance of invocation of right to silence, right to counsel
• RTS invocation, police don’t have to give up for good, can wait awhile and try
again as long as RTS is “scrupulously honored” (Mosley)
• MRTC invocation must be unambiguous (Davis) and made by suspect (Moran) to
trigger Edwards-Minnick and has to occur in police custody. No anticipatory
invocations (Montejo).
• Once suspect has invoked MRTC, no further interrogation without an attorney
physically present, unless suspect re-initiates conversation (Edwards-Minnick)

Relevance of re-initiation
• After MRTC invoked, “What is going to happen to me now?” counts as reinitiating
(Bradshaw) [asking for polygraph test, asking possible sentences also
reinitiating, PO asks if he knows he doesn’t have to talk, talks anyway]

 Exclusion a remedy?
Public safety exception
• Can be an exception to Miranda in issues of public safety (Quarles) [limited
holding, usually applied in cases with similar facts]

The continuing dispute over Miranda’s constitutional status:

• Statements obtained in violation of Miranda can be excluded, but evidence
derivative from that violation is a-okay (Elstad) [violation of Miranda occurs when
statements are used in Court, so no fruit can come from that tree]

• There is no middle ground in police custody where a suspect can be ignorant of

his rights and waive them, under Miranda (Dickerson) [prophylactic; Congress
can’t take away Miranda rights]

• Confessions that are “fruits” of unwarned statements may be inadmissible

(Seibert) [Elicit statement without Miranda, warn then ask to waive rights, elicit
second statement, inadmissible here but TOC/case by case test]

• Physical evidence that is fruit of unwarned statement admissible (Patane) [shows

Elstad still good after Dickerson, lack of warnings still not Constitutional violation]

5th and 6th Right to Counsel Compared

 When does it apply?

 5th : Custodial Interrogation
 6th: After formal judicial proceedings have begun, at any “critical stage”

 What is interrogation?
 5th: Express question or functional equivalent (words/conduct that officer
should know are likely to elicit an incriminating response). Suspect must know
he’s being interrogated in order for 5A RTC to apply.
 6th: Officer (or an undisclosed agent) deliberately elicits incriminating
statements. Purely passive listening does not constitute interrogation. Mental
state of officer is at issue, not suspect.

 Offense specific?
 5th: No
 6th: Yes

 Default waiver standard?

 5th: “Knowing and intelligent”
 6th: “Intentional relinquishment or abandonment of known right or privilege”
(Williams) or “knowing and voluntary” (Montejo) – can’t really invoke 6th A
rights, so invocation no longer really relevant.

 Waiver, post-invocation?
 5th: None without presence of counsel, unless suspect reinitiates
 6th: Same “intentional relinquishment” standard, but assertion of right to
factor in determining validity of subsequent waiver.
Policy Issues
4th A protects both innocent and guilty; 5th A only protects guilty people

Balancing Tests 4th Amendment:

Government interest v. Personal rights/REP
Police safety v. REP
Effective Law enforcement/need for evidence v. REP
Competitive task of law enforcement v. REP
Officer's good faith/intent v. Level of injury

Balancing test of Exclusion:

Cost benefit of analysis:
Guilty going free v. loss of individual rights
Value of evidence v. value of deterrent
Cost of guilty going free v. unconstitutional action
Idea of deterrent is to preserve individual rights
Good faith analysis: Is deterrence effective here? Answer: No

Balancing Tests of the 5th Amendment:

right to everyman's evidence v. right against self-incrimination
GJ as sword (can issue subpoenas anyone's evidence, can override 5th A) v. GJ as
shield (barrier between suspect and prosecution-- not so effective anymore bc now run
by prosecution)

Balancing Tests of the 6th Amendment:

Adversarial system v. inquisitorial system
Fairness v. efficiency
Reliability of case/evidence

Purposes and Balancing Tests of Miranda:

Ensure reliability of evidence/confessions
Prevent badgering
Deterrence of coercive interrogation
Coercive nature of interrogation v. Cry for help
Constitutional purpose v. Prophylactic purposes
Can't waive for Miranda without being knowing and intelligent (want smart suspects)

Due Process
Backstop to other Constitutional violations
Shocks the conscience -- protects against significant infringements on anything inherent
to ordered liberty
Totality of the circumstances

Policy behind Gates-Spinellli

Basically so you can't implicate someone in a crime
By identifying themselves they open themselves to perjury

Policy of Katz: Initial about what seeks to protect as private even if its in an
area that’s available (Upholding of Katz: Karo and Kyllo) (Deterioration of
Katz: Greenwood because he was seeking to protect as private by putting in
opaque bag, Riley has fence up); Constitutional theory from founders.