Search and Seizures

1. 4th Amendment
 protects people against gov. intrusion
 against unreasonable searches and seizures
 the persons, house, papers and effects
 warrants based on probable cause, supported by oath describing places to be
searched and person or thing to be seized
 Analysis
 Government action?
 Search?
 Unreasonable?
1. If no to the above, no 4th A. violation
2. Other non-constitutional issues may apply- e.g. evidence rule
 If yes to all three above, then warrant usually required unless exceptions to the
warrant requirement applied
2. What is a Search – Reasonable expectation of privacy
 Katz –expectation of privacy
 Fed agents bugged phone w/o a search warrant and used Katz's conversation as evidence.
 The 4th Am protect people and not places
 If a person knowgly expresses something to the public – no expectation of privacy
 However protection applied to “what he seeks to preserve as private” including “uninvited
ear” inside phone booth
 Two part test
1. The person must show an actual, subjective, expectation of privacy
2. The expectation must be one that society recognizes as being
reasonable
 Open fields – Oliver
 Officers without search warrant entered private property, ignored “No
Trespassing” signs, walked around either a locked gate or a stone wall, and
observed marijuana plants that were not visible
 Open filed does not provide the setting for those intimate activities that the
Amendment is intended to shelter from govt interference or surveillance
1. Unless immediately surrounding the home and used for intimate
activities
 Curtilage – Dunn
 D owned a ranch enclosed by a fence. Another fence surrounded D’s ranch
house. Approximately fifty yards beyond the latter fence were two barns, each
enclosed by its own fence
 Curtilage – the land immediately surrounding and associated with the home
Three part test
1. The proximity of the land to the home
2. Whether the area is included within enclosures surrounding the house
 3. The nature of the use to which the area is put
4. The steps taken by the resident to protect the land in question from
observation
 Aerial Searches
 Rule – anything the police can see with the naked eye falls within the “plain
view” docrine as long as the aircraft is in public, navigable airspace)
1. Gov surveillance of activities occurring within the curtilage of a house
does not constitute 4th Am search if the surveillance
a. Occurs from public navigable airspace
b. Is conducted in a physically nonintrusive manner
c. Does not reveal intimate activities traditionally connected with the
use of a home or curtilage
 Ciraolo –
1. Surveillance from navigable airspace at 1000 feet of fenced-in backyard
within curtilate of home
2. Subjective test was satisfy because of the fence- at least from the stree-
level views
3. Objective test – not satisfied
4. Curtilage does not preclude observation from public vantage point
a. It was a public airspace where anyone could have seen it
b. And the search was not intrusive or harmful
5. “What a person knowingly exposes to the pubic, even in his own home or
office, is not a subject to the 4th Am protection.”
 Riley
1. Aerial surveillance at 400 greenhouse inside curtilage. Plants seen
through partially open roof, warrant obtained
2. White – no search because helicopter in lawful airspace
a. It was significant that the record did not reveal that intimate details
connected with the use of the home curtilage were observed, and
there was no undue noise, no wind, dust or threat of injury
3. O’Connor – issue is not whether flight was lawful, but whether
expectation of privacy was reasonable. D still failed to
a. If the public is generally expected to travel over residential
backyard at an altitude of 400 feet, D cannot reasonably expect his
curtilage to be free from such aerial observation
 High-tech devices not in general public use:
 If govt obtains special high techs devices, not in general vicilian use, an
employs them from public places to gain views that could not be had by the
naked eye, the use of such devices will be considered a search
1. Kyllo
 Trash and other abandoned property will normally not be material as to which the
owner has a reasonable expectation of privacy.
 Beeper Monitoring
 Knotts – surveillance of a car while on the highway
 1. Beeper did not violate the 4th because did not provide the police with any
info that they could not have secured by visual surveillance
2. The beeper did not reveal info about D’s movements within any private
place
 Karo – beeper on a container inside various homes as well as in public places
1. Indiscriminate monitoring of property that has been withdrawn from
public view would present far too serious a threat to privacy interests in
the home to escape entirely some sort of 4th A.
 Pen Register
 Police installed and used a pen register by the telephone company to record
telephone numbers dialed from a private residence
1. Not a search b/c the device gave only limited info, nor are there identities
of the people that call
2. Subjective test - No expectation of privacy b/c the telephone company (a
3rd party) has all the numbers dialed anyways
a. No expectation of privacy in the numbers people call
3. Objective test- no reasonable expectation of privacy in any info that the
individual voluntarily turns over to a third person
 Dog sniff
 Place: canine sniff of closed luggage is not a search (at the airport)
1. Does not require opening
2. Sniff only reveals contraband (not lawful activity)
 Caballes : dog sniff during traffic stop is not a search
1. Stopped for speeding, other officers brought the dog, it was not requested
by the officer that stopped the
 Is it search
 No search
1. No trespass
2. Observable facts
3. Info/stuff disclosed to a third party
4. Protection against actual, not just possible
5. Observation of intimate activity
6. No REP in criminal activity
7. No REP in criminal activity
8. No REP unless ownership/control
 Search
1. Privacy/REP decouple from trespass
2. Lines drawn based on privacy, decency, civility
3. Manner of observation/date collection matters: limits to use of sense
enhancing technology to obtain info on interior of home
4. Protection against possible not just actual, observation of intimate home
activity
5. REP decoupled from criminal enforcement
  Is it reasonable – unfeasible without a warrant, unless it falls within an
exception.
3. PROBABLE CAUSE – “PC”
 P/C applies to get a warrant, and if it is circumstance where a warrant is not required,
a police officer generally can search or arrest only if there is probable cause.
 “whether the facts and circumstances before the officer are such to warrant a
man of prudence and caution in believing that the offense had been
committed” Carrol v. U.S.
 Definition
1. More than bare suspicion, but less than evidence which would justify
conviction
 Requirements:
 For arrest: it must be reasonably likely that:
1. A violation of the law has been committed; and
2. The person to be arrested committed the violation
 For search: it must be reasonably likely that:
1. The specific items to be searched for are connected with criminal
activities; and
2. These items will be found in the place to be searched.
 What is Sufficient Belief to Meet the Standard for Probable Cause
 Info from Informant - Illinois v. Gates
1. Facts: Gates dealers, live in condos on greenway, most buys done in
Florida, Sue drives to Florida, leaves car to be loaded with drugs, fields
back, Lance flies to FL, drives back in loaded car, Sue driving today,
Lance flying in few days to drive back, Car willl be loaded with 100,000
in drugs,
a. Observed facts: found driver’s license for Lance and current
address, confirmed on flight to Fl on May 5, observed Lance arrive
in FL and taxi to Holiday inn, room registered to Susan…
2. Aguillar-Spinelli test
a. Tip fails A-S test
i. Was the info Credible
ii. Was the info reliable
1. Unclear whether author is hones and info reliable
2. Does not covey basis for knowledge and predictions
iii. The tip standing alone did not satisfy the two pronged
Aguilar test
b. No more A-S test, but Totality of Circumstances analysis
“balanced assessment of the relative weights of all the various
indicial of reliability and unreliability attending an informant’s
tip”
i. The facts in A-S test “basis of knowledge and veracity
remain highly relevant in determining the value of the
 informant’s tip, but strong showing on one of these factors
can make up a weak showing on the other one
ii. PC is fluid, nontechnical, common sense conception, based
on factual and practical consideration of everyday life on
which reasonable and prudent men, not legal technicians,
act.
iii. Corroboration: provides basis for crediting tip with predicted
facts
iv. P/C can be based on innocent behavior
v. Factual reason to believe that criminal contraband will be
found in the place that the tip specified – there is P/C in the
tip itself
 Maryland v. Pringle
1. Car stopped for speeding, diver/owner opened the glove box and officer
saw roll of cash, consent to search the car, drugs and money, all 3
questioned about drugs, all silent, all arrested. Pringle (not driving, drugs
in back) confesses it is his, moved to suppress the confession as fruit of
illegal arrest
2. To determine whether an officer had a P/C to make an arrest, the court
must examine the events leading up to the arrest, and then decide
a. “whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to P/C
3. In these facts, it was reasonable for an officer to infer that any person in
the car had knowledge and dominion and control over the drugs
 Whren – Subjective intent does not matter, as long as there is P/C to make
a traffic stop
1. Officers stopped a vehicle that stopped at a stop sign for unusually long
time and after the officers turned back their vehicles, the vehicle turned
without a turn signal at high speed. The officers stopped the truck, and
saw two large plastic bags that contained crack cocaine.
2. All traffic stops constitute seizure of persons and police officers must
have probable cause to believe that a traffic violation has occurred
a. Subjective intent alone does not make otherwise lawful conduct
illegal or unconstitutional.
b. Court’s test: a traffic stop is valid if an objectively reasonable
officer would have found P/C to believe a traffic violation has
been committed.
 Arresting officer’s state of mind irrelevant to the existence of P/C – Alford
v. Devenpeck
1. Mismatch b/w stated basis for arrest (recording w/o consent of both
parties does not equal crime) and possible basis for arrest (impersonating
an officer equals crime) is OK “as long as the cir. Viewed objectively,
justify the action”
 2. So under Whren and Alford, if a police officer has a hunch, he can follow
the D until he makes a traffic violation and arrest him on P/C for traffic
violation. The motive of the officer is irrelevant as long as there is P/C
for the stop
 Warrants Requirements
 Standard for getting a warrant for arrest or search
1. “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 t be seized”
 Is a warrant required::
1. A warrantless search presumptively unreasonable, unless fits an
exception to warrant requirements
2. Trend: reasonableness analysis, W is part of that analysis
 Process:
1. Agent swears out application with 4 elements
2. Judge puts agent under oath to consider & sign warrant
3. Agent executes, presenting warrant
 What Form Must the Warrant Take?
1. Andresen
a. Warrant for offices of att. Investigated for real estate fraud
regarding Lot 13T
b. Issue: did broad language “together with other fruits,
instrumentalities and evidence of crime at this (time) unknown”
convert this to a general warrant
c. Court: 4th prohibits “exploratory rummaging” so nothing left to
officer’s discretion. But this was not a “general” warrant
2. Groh-
a. Warrant failed to list the items to be search and seized, and instead
described two-story blue house in space for describing
person/property to be seized.
b. Majority: Lack of description rendered warrant “facialy invalid”
and thus “warrantless”
 Anticipatory warrants
1. Defined: warrants contingent on predicted event
2. Court allows under Grubbs (got a warrant that will be executed only after
a controlled delivery of contraband to that location), subject to 2 part
probable cause analysis
a. Fair probability that triggering event/condition will occur
b. Probability that items/contraband will be found in place described
 Executing Warrant
1. Ok to detain those present during search (b/c preventing flight by the
individual in case incriminating evidence if found, minimizing the risk of
harm to the police, and helping the police complete the search in the
event that questions arise) – Michigan v. Summers
 2. Muehler v. Mena:
a. Ok to handcuff and detain for 3 hours those present during
execution of warrant and question about immigration status, so
long as questioning does not prolong the detention
b. Under Summers, authority to detain incident to search is
categorical – the authority to use reasonable force to effectuate the
detention
i. Here the force used was reasonable because the warrant
authorized a search for weapons and a wanted gang member
c. Questioning Mena during detention:
i. Circuit: reasonable suspicion required for questioning
ii. Court: no R/S required for “mere police questioning” not an
additional seizure, questioning did not prolong seizure
 Knock and Announce
1. Knock and Announce is part of the Reasonableness analysis of the 4th –
Wilson v. Arkansas
a. Facts: police executing a search warrant to drugs at home found
man door open, pushed open unlocked screen door and enterd
b. The knock and announce was created to
i. Avoid break ins, damages, assumes compliance
ii. Exceptions: threat of violence, retreat for escapee, possible
destruction of evidence
2. Case by case, exception to K&A is based on Reasonable Suspicion that
K&A would be dangerous, futile, inhibit investigation – Richards v.
Wisconsin
a. Facts: Got a warrant, the judge crossed out the exception to K&A,
but when the police went to the motel and D saw the police he
closed the door and the police knocked down the door.
b. The court stated that under these circumstances the police has
reasonable suspicion that D will destroy the evidence, and it did
not matter that the judge crossed out the exception.
i. The K&A reasonable suspicion exception is at the time of
the execution of the warrant and not at the time of signing
the warrant.
3. No Violation when police wait only 15-20 min – Banks
4. No exclusionary rule for K&A violation – Hudson
 Mistake when executing a warrant
1. Factual mistake does not invalidate warrants – Maryland v. Garson
a. Police got a warrant for McWebb’s apartment and believed that
there was only one unit based o the investigation (verified
informant’s info, exterior exam of building, inquiry to utility
company). When the police executed the warrant, they went to
Garrison unit and found drugs, cash, paraphernalia before
discovery the mistake.
 b. The Court stated that the validity of the warrant must be assessed
on the basis of the info that the officer had at the time of issuance
(when they got the warrant).
c. Further the mistake was “objectively understandable and
reasonable” and thus did not violate the particularity requirement
of the 4th
2. Rettele
a. Facts: after 3 months investigation (investigation on home, dmv
records, mailing address, listings, outstanding warrant, internet
telephone directory), W obtained for 2 houses for evidence of
fraud & identity theft. Entered the house, held the naked
homeowners at gun point for 3-4 minutes before alloed to cover up
and discovering mistake.
i. Compared to Garson here the police got info from outdated
or possibly outdated sources
b. Court said no violation of the 4th b/c safety concerns, race not
immediately apparent, not “prolonged detention”
i. Timing was of importance in this case.
ii. Unreasonable actions include the use of excessive force or
retrains that cause unnecessary pain or are imposed for a
prolonged and unnecessary period of time
 Exceptions to Warrants
 Search Incident to an Arrest
1. Immediate area – Chimel
a. Facts: Arrest warrant, no search warrant, no consent, but searched
the whole house and seized any coins they found.
b. Cournt stated that a police officer may search the person arrested
to remove weapons and prevent concealment or destructin of
evidence.
i. Search is limited to area “within his immediate control” –
area that he might gain possession of a weapon or
destructible evidence
ii. Must occur at the time of the arrest
2. Search a person incident to arrest regardless of the crime that led to
the arrest – Robbinson
3. No full search for incident to a traffic citation – Knowles v. Iowa
a. Traffic violation, stopped- citation, under Iowa law he could have
been arrested, no P/C or consent to search
b. Court: actual arrest must occur for full search,
i. Routine traffic stop is a brief encounter, patdown for
weapons permitted if justified by reasonable suspicion that
occupant is armed/dangerous
 Hot Pursuit
1.
 2. Ok to enter a home without a warrant to make arrest to pursue suspect
matching description of armed robber after crime – Hayden
a. Ok to search whole house, seizing items in washing machine,
under mattress, and in bureau drawer
b. Seizures occurred “prior to or immediately contemporaneous” with
Hayden’s arrest
i. “They acted reasonably when they entered the house and
began to search for a man of the description the had been
given and for weapons which he had used in the robbery or
might use against them.”
c. Scope: as broad as may reasonably be necessary to prevent the
dangers that suspect may resist or escape
d. The police must have probable cause to believe the subject has just
committed a crime and that he is in the particular dwelling.
3. Police cannot make warrantless entry to home for routine felony arrest -
Payton
a. No warrant, broke in, found shell casing in plain view
 Plain View
1. Three requirements
a. The officer’s original intrusion is lawful – wither has a warrant, of
hot pursuit, or search incident to an arrest
b. The item is observed while the officer is confining her activities to
the permissible scope of the intrusion (sometimes referred to as a
lawful right of access to the object)
c. It is immediately apparent that the item is contraband or evidence
of crime, without the necessity for any further examination of
search
2. Plaint view will not turn an initially valid and therefore limited search
into a “general” one
3. Police may use all of their apparent senses when they are lawfully present
4. Plaint view is only triggered after the officers have otherwise lawfully
entered the premises; it does not provide justification for the entry -
Coolidge
5. Executing warrant for stole good, including 3 rings. Inside police
discover weapons in plain view and seize – Horton
a. Not only plain view, but also incriminating character must be
immediately apparent
b. Not only lawfully located in a palace from which the object can be
seen, but he must also have a lawful right of access to the object
itself
6. If not immediately apparent that it is contraband, then P/C required
– Hicks
a. Moving stereo equipment to obtain serial numbers was a distinct
search no probable cause before number seen
 7. No continued exploration to gain probable cause to believe item is
contraband– Dickerson
a. Pat down, feels an object that is immediately apparent, no invasion
of suspect’s privacy beyond that already authorized by the officer’s
search for weapons, then contraband may be seized
b. However if there is manipulation of the object felt during the pat
down, then no right to seize object
 Automobile Exception
1. Carroll- Allows warrantless search by prohibition-era agents to search
car (moving vessel/vehicles)
a. Suspected of transporting alcohol (probable cause)
b. Because the vehicle can be quickly moved out of the jurisdiction in
which the warrant must be sought (exigent circumstances)
2. Chambers – exception applies when car at station, post-arrest. “No
difference” b/w holding and getting a warrant, or searching immediately
without a warrant
a. Car looked like the car involved in robbery, stopped, after police
saw that the suspected looked like the robber, arrested him, took
the car, and then they searched the car
3. Carney – Authorizes warrantless search of mobile home based on
probable cause and mobility exigency
a. Lesser - expectation -of privacy because of the readily mobility of
the automobile
i. Home – warrantless search unreasonable
1. Home attributes: private dwelling, intimate activities
2. Mobile home attributes: curtains, doors make private,
intimate activities, used as a dwelling
ii. Car – probable cause justifies warrantless search
1. Car attributes: moves, main purpose is transportation,
open to public view, extensively regulated
2. Mobile home attributes: mobile, key, ignition,
primary purpose is situational
 Containers in Automobiles
1. Containers, such as luggage, can be searched without a warrant only if
there are exigent circumstances
2. But if there is probable cause to search a vehicle, the court has said that
the probable cause extends to the containers within it
a. Limited only by the size and nature of the items for which there is
probable cause to search
3. Court allows warrantless search of containers in automobile based on P/C
to believe contraband/evidence exists, plus exigency of disappearance or
destruction
4. Chadwick: Ok to seize container in trunk based on P/C, but need a
warrant to search it
 5. Arkansas v. Sanders: Ok to search taxicab for luggage based on probable
cause, but need warrant to open luggage
6. Ross: Ok to search paper bag found in car trunk, when police had
probable cause to believe drugs in trunk
a. If there is probable cause t search a stopped vehicle, that search
may extend to any part of the car (truck, glove compartment,
interior of upholstered seats) and any package, luggage, or other
containers that might contain the object of the search.
i. Search for a person, may not give the right to open glove
compartment
7. Acevedo: Ok to search all containers in trunk based on P/C to search
vehicle
a. Facts: Coleman follows Saza home, Acevedo emerges from Daza’s
apartment with brown paper bag, places in car trunk.
i. Therefore, P/C to search the trunk for paper bag
b. The police is not required to obtain a warrant to open a container
found in a car even if their probable cuase to search is limited to
just that container, and not the car itself
c. Police may search an automobile and any containers within it when
they have probable cause to believe contraband or evidence of
crime is present anywhere inside, but only where the item might be
hidden (size and shape of the object is the only limitation on
searches)
8. Houghton – no individualized P/C required to search passenger’s purse if
P/C for car
a. As long as passenger’s belongings are capable of concealing the
object of the search, and the police has P/C to search the car, then
passenger’s belongings can be searched
 Search Incident to Arrest: Automobile Exceptions
1. P/C to search car for evidence/contraband
2. Contraband inside car: probable cause to search car/containers in it (or
trunk, with P/C)
3. Search Incident to Arrest
a. Arrest person (P/C) -> search car and containers
b. Belto – a police officer may, contemporaneous to the arrest of an
occupant of an automobile, search the passenger compartment and
all containers found therein, whether the containers are open or
closed.
i. Facts: speeding, stop, smell of burned marijuana in the
vehicle and the officer observed an envelope on the floor of
the car marked “Super-gold” and associated with marijuana.
Removed the 4 occupants from the car, each occupant at
each corner of the car, opened the envelop, and searched the
car including the passenger compartment.
c. Thornton- Belton extended to D that have recently occupaid the car
before officer initiated contact.
i. Thorton followed in car, parks, exits, stopped by police,
patted down, questioned about buldge in pocket & answer
Yes to drugs, arrested for drugs, handcuffed, in back of
patrol car, car searched and gun found.
d. After Belto & Thorton
i. NOTE: the trunk and engine compartment fall outside the
bright-line rule of Belton
ii. Applies when:
1. The arrestee was an occupant or a recent occupant of
the vehicle at the time of the initial contact with the
police
2. Substantially contemporaneous – search need to not
take place when the arrestee is in the automobile, as
long as he and the vehicle are still at the scene when
the search occurs.
3. The warrantless search may occur even if the car
occupants are now handcuffed and in custody in the
police car
4. The bright line rule applies even if there are four or
five officers and the arrestees are secured
e. Gant – No vehicle search incident to arrest after arrestee has been
secured & cannot access interior of the vehicle
i. Ok to search for evidence of arrest offense
ii. Facts: Grant arrested for suspended driver license, cuffed,
locked in patrol car. Police found gun & drungs in his car
iii. Court
1. Belton/Chimel allow search of vehicle if arrestee
unsecured, not within reaching distance of passenger
compartment
2. Belton: occupants unsecured, arrested for drugs
(Thornton, too)
3. Here, unlike Belton, Thornton – no evidence of
offense justification
4. Search may be justified by “additional circumstances”
as to safety/evidence
f. After Grant
i. Exception limited to Chimel justifications (whole passenger
area)
ii. Recent occupants: No exigency if occupant secured, out of
reach
iii. Unclear about containers
 iv. New Ok to search for evidence of offense or if P/C of
another offense
 Inventory Searches
1. Police take vehicle into custody under their “community care talking
function” for public safety, traffic reasons, and to preserve evidence
a. Invenstory searches prevent danger, protect property in police
custody, and prevent lost property claims
b. Police must follow proper procedure, usually governed by
state/local law.
2. This is not an investigatory search and no legal justification, like P/C is
required
 Border Search Basics
1. Border searches require no suspicion, no warrant
2. Searches include cars, computers, mail
a. Ok ot take apart/resemble gas tank
b. Ok to question individual on legal status, but detention and body
cavity search require reasonable suspicion, - Montoya-Hernandez
c. Ok to search international mail without justification
d. Many lower courts allow computer searches
3. Rational for searches
a. Sovereign’s power to exclude people and things is at is zenith at
the international border
4. Montoya – Hernandez
a. Basis for suspicion: 5000 cash, no wallet, no hotel, only 1 pair of
shoes, retail shopping, profile: Bogota=source city dozens of
balloon swallowers from same flight in past
b. Court
i. R/S needed to detain beyond the scope of a routine customs
search and inspection
ii. Does not appear to given strip search or require warrant
iii. Duration: until R/S verified or dispelled
 Checkpoints
1. Issue: Can police stop cars absent individualized suspicion?
a. Ok for sobriety test
i. Balance government interest against intrusion
ii. Here: public safety vs. stop is public, brief, notice given
iii. Dissent: sobriety checkpoints are not effective
b. Ok for investigation of recent fatal hit and run:
i. Primary purpose = gathering info, not accusatory
c. Not Ok for general narcotics interdiction
i. Primary purpose = “traditional law enforcement”
 Consent
1. N exception: if a person consents to search, neither P/C nor a warrant is
required
2. To be a valid consent:
a. Must be voluntary, Schnecklot
b. By person with authority to consent, Randolph
c. Government’s burden to establish valid consent
3. No suspicion required to ask for consent
4. Consent can be refused, or limited
5. Scheneckloth v Bustamonte –
a. Facts: occupants of an automobile stopped by police were asked by
the officer if he could search the car, and one agreed
b. Justifications for consensual searches:
i. Consensual
ii. Valuable police tool
iii. May eliminate need for arrest & add’l procedures
c. Limits: must be voluntary, not from “duress or coercion, express or
implied”
d. Constitutional right to refuse to consent to search- NO
i. If right to refuse, valid consent would require a valid waiver
– No Miranda- like warning on right to refuse consent
ii. Need not be known and intelligent
e. Voluntariness= Totality of Circumstances
i. Is suspect in custody
ii. Did he have knowledge of a right to refuse
iii. Look at the tactics used by the police to secure consent as
well as the particular vulnerabilities of the subject (age,
intelligence, level of education, emotional state) to
determine whether the consent was coerced or voluntary
iv. Treat, pressure, intimidation, or harassment
v. Presents of a large # of officers, repetitive requests for
consent after an initial refusal
6. Drayton – the consent to search the person @ bus
a. Facts: 3 officer, 1 in Driver’s seat, 2 working through the aisle,
officers stand with each passenger, ask about travel plans &
luggage, passengers “free” to not cooperate or exist bus
b. The court stated that the consent of the second person, Drayton,
was valid consent even though he stated he did not feel free to
refuse since his friend was already caught with drugs after giving
consent
c. Court looked at the factors to conclude valid consent
i. Nothing coercive or confrontational
ii. No application of force
iii. No brandishing of weapons
iv. No blocking exits
v. No threat, command, authoritative voice
vi. Bus setting does not change character of encounter
 vii. Reasonable person may feel even more secure with
witnesses present
7. Georgia v. Randolph – for consent to be valid, person must have
authority to consent
a. Facts: Husnband “unequivocally refused consent, wife readily
consented before withdrawing it, officer saw straw, but did not get
it before conset withdrawn, got warrant, husband syas warrant
relied on view gained with invalid consent
b. Generally co-occupant has authority to consent to search but a
“physically present co-occupant’s stanted refusal to permit entry
prevails”
i. Authority and access to the property.
ii. The third party need not have actual authority over the area,
but apparent authority will suffice.
c. Court ruled the search unreasonable and ordered the evidence
suppressed, but the court stated that there I limit to that rule, where
the police could enter if:
i. Need for protection inside the house – domestic violence
ii. Exigent circumstance, destruction of evidence
8. Admin Searches
a. Camara v. Municipal Court of City
i. Facts: resident prosecuted for failure to allow inspection
ii. Justification: need to enforce regulations and safety, health,
etc.
iii. Concerns: absent warrant, occupant has no way of knowing
(1) authority for inspection under code, (2) limits on scope;
(3) whether inspection has authority
iv. Test: Occupant can refuse consent and insist on warrant
based on code
1. No specific knowledge required, passage of time
sufficient
2. Exception: emergency, consent
b. Burge- no warrant needed to inspect junkyard for bus, license &
police book
i. 3 criteria for commercial inspection exception:
1. substantial government interest (regulating vehicle
theft)
2. Search = necessary (yes)
3. Constitutionally adequate substitute for warrant:
authority, scope, no discretion
a. He law contains “time, place and scope”
restrictions
9. Drug Testing
a. Employment
 i. Yes: railroad workers after accidents (ok to prosecute, too)
1. Customs workers doing rug interdiction
ii. No
1. Customs workers handling documents
2. Political candidates (symbolic, not special)
b. Schools- special needs b/c warrant requirement would interfere
with “swift and informal” discipline process
i. Yes: students in athletic events, Veronica School Dist.
ii. Yes: Students in all extracurricular activities- Pottowatomie
c. Redding: school officers could search a student’s purse based on
Reasonable Suspicion; measures must be reasonably related to
objective and not excessively intrusive in light of the age & sex of
student and nature of infraction
i. Here: need R/S danger or that drugs concealed in underwear
before search involved “exposure to intimate parts”
1. Savana denies items in her planner are hers
2. Denies knowledge about iuprofen pills
3. Referred to nurse for pull out/share out search of
underwear & bra
4. Ok to search backpack & outer cloths
5. For quisi-strip search, generalized suspicion
insufficient
d. Ferguson- court says crack screening of pregnant women does not
meet special needs test because although ultimate goal is child and
mother health, immediate objective is to generate evidence for law
enforcement
 Exigency
1. Hot Pursuit
a. Ok to enter/search home for recent armed robber and weapon not
Ok to enter home without warrant for routine felony arrest
b. Gravity of underlying offense is very important factor
i. Nor non immediate, continuous pursuit for crime scene – no
hot pursuit
2. No blanket warrant exception to investigate murder scene, Mincey
3. Ok for police to enter home if reasonable basis to believe person inside is
seriously injured or imminently threatened. Brigham City
4. Seizures & Arrests
 Arrests must be based on probable cause, & warrant is not required so long as there is
probable cause
 The police must have adequate cause to seize the individual and, in case of an
arrest in a home, must usually have an arrest warrant. With arrests or other
seizures tantamount to an arrest, P/C required. With less intrusive seizures, a
lesser standard – reasonable suspicion – is satisfactory, and in relatively few
circumstances, the police may briefly seize a person w/out any suspicion at all
  P/C that a person has committed a felony
 A misdemeanor or felony was committed in his presence
 Watson: Ok to arrest Watson for possession of stolen credit cards
1. P/C in this case to believe that Watson had violated §1708, the officers
were acting strictly in accordance with the governing statute and
regulations
 When is a person seized?
 Seizure = officer, by means of physical force or show of authority, has
restrained in some way liberty of a citizen
 Arrest, stop & frisk
 Mendenhall – seizure if a reasonable person under the circumstances
would believe that he or she was not free to leave
1. Facts: two police officer approach D, ask to see her identification and
airline ticket, saw different name on ticket, when agent identify himself
as federal narcotics agent, D became shaken, extremely nerveous, then
returned ticket and asked her to accompany him to the DEA office for
further questioning, D consented
2. No seizure occurred when the police first accosted D, and then D gave
her consent
3. example of cir. That might indicate a seizure
a. Threatening presence of several officers, the display of a weapon
by an officer, physical touching of the person of the citizen, or the
use of language or tone of voice indicating that compliance with
the officer’s request might be compelled
 Hodary – a suspect fleeing police pursuit is not “seized” until restrained
by physical force or show of authority
1. Facts: D saw police, started running, officer chased him, at the time of
encounter D drops drugs, and then he is tackled. Questions was whether
D was seized the moment the pursuit begins, or only if and when he is
captured.
2. Free to leave test is modifies “show of authority”
a. Seizure would not occur by show of authority, even if D believes
that he is not free to end the encounter as he wishes, unless and
until D actually submits to the officer’s authority. (so ordering to
stop, or even firing a gun in the air might not be sufficient for an
actual seizure).
 Free to Leave
 Test for seizure during consensual search requires on bus: whether a person
would feel free to decline the officer’s requires or otherwise terminate the
encounter- Florida v. Bostick
 But in Drayton, no seizure “if a reasonable person would feel free to terminate
the encounter, then or she has not been seized.
  Passengers are seized when they are riding n a car stopped officers (and may
challenge stop) – Brendlin
 For What Crime May a Person be Arrested?
 Atwater – Ok to make custodial arrest for “even a very minor criminal
offense” (bright line rule)
1. Soccer mom arrested for 50 seat belt violations
2. All 50 states + DC allowed warrantless arrest for misdemeanor offenses
w/o breach of peach
5. Stop & Frisk – Reasonable Suspicion

 Reasonable suspicion that criminal activity is afoot

 Totality of circumstances – the detaining officer must have a particularized and objective
basis for suspecting the particular person stopped of criminal activity
 Due regard is granted to the officer’s unique experience and training
 Or based on info received from an informant, but does not need to rise to the level of
reliability as in probable cause analysis
 May be based upon an anonymous telephone tip as long as the police are able to
corroborate certain of its details
 Since a frisk or a path down constitutes a further intrusion, it requires additional justification:
reasonable suspicion that the suspect may be armed and dangerous
 Restricted to that which is necessary to discover weapons – usually an initial pat-down of
the suspect’s clothing to determine whether he is carrying a weapon, followed by a reach
into pockets or other hidden areas if (and only if) the pat-down reveals the likely presence
of a weapon

 Terry v. Ohio
 Facts:
1. Before the stop
a. Officer plainclothes, 2:30 p.m., 2 unknown men standing on the
corner, who did not look right, each man vies store 2 times &
confers, 12 tips (24 views); 3rd man arrives, confers, leaves, down
Euclid Ave., after 10-12 min, 2 men walk off down Enclid,
suspects 2 are “casing a job, a stick up” & “may have a gun”
2. Stop
a. 2 men by Zucker’s store, officer approaches, Id’d himself, asked
names, the men “mumbled something”, officer grabbed Terry,
spun & pated down outer clothing, felt a pistol, reached in pocket,
unable to retrieve, ordered men in store, removed Terry’s coat,
removed gun from pocket, patted down outer clothing of other
men, finds gun on Chilton
 Structure/Theory
 1. Balancing interest view: spectrum of police encounters with escalating
set of flexible responses
2. Narrow, rigid view: P/C for seizure, seizure= arrest
a. Stop & frisk is not a seizure
i. However, stop & frisk does fall within the 4th A. The court
stated that Terry was seized, although less intrusively than if
he had been arrested, at least as soon as the officer initiated
physical contact with Terry in order to search him
ii. However, since this was a “rubric of police conduct –
necessarily swift action predicated upon the on-the-stop
observations of a police officer on the beat- which
historically has not been, and as a practical matter could not
be, subjected to the warrant procedure,” and therefore this
falls outside the Warrant Clause that requires P/C.
iii. Here the inquiry is “the reasonableness in all the
circumstances of the particular gov invasions of the citizen’s
personal security.
3. Precise issue: reasonableness of pad down here for officer safety absent
P/C
a. Immediate interest assuring that the suspect was not armed with a
weapon that could unexpectedly and fatally be used against the
officer
b. “certainly it would be unreasonable to require that police officers
take unnecessary risks in the performance of their duties. American
criminals have a long tradition of armed violence”
4. Application:
a. Nature and timing of seizure and search
b. Practical implications of approach
c. Balancing Gov’t interest against intrusion
 Terry Test
1. When an officer has reasonable suspicion “observes unusual conduct
which leads him reasonably to conclude in light of his experience that
criminal activity may be afoot and that the persons with whom he is
dealing may be armed and presently dangerous”
a. Officer acts reasonably is not upon a hunch but “on specific
reasonable inferences which he is entitled to draw from the facts in
light of his experience”
2. And that suspicion is not dispelled in encounter
3. He may frisk “carefully limited search of the outer clothing… to discover
weapons”
a. The purpose of Terry search is limited: to determine whether the
suspect is armed. Unlike a search incident to an arrest, a Terry-type
search “is not justified by any need to prevent the disappearance or
destruction of evidence of crime.”
 4. Any seized weapons may be introduced into evidence
 Stop v. Arrest
 Arrest:
1. Custodial interrogation at station, Dunaway
a. The police took D into custody at his neighbor’s home, and
transported him to a police station for questioning. Although told
not under arrest, the Court treated the seizure as a de facto arrest
2. Taking suspect from the public area of an airport to small room at airport,
Royer
a. The difference from Mendenhall where the Court ruled that it was
not an arrest, is that in Royer the police held the tickets & ID of the
D and they asked whether he can accompany them to room
3. Fingerprinting at station, Hayes
a. But fingerprinting in field unclear
4. Detaining luggage 90 min = arrest, Place
 Stop = detaining suspects for DEA agent to arrive, Shape
1. The court emphasized that there was no delay “unnecessary to the
legitimate investigation on the law enforcement agents.”
a. (1) the officer “pursued his investigation in a deligent and
reasonable manner”
b. (2) the method of investigation was likely to confirm or dispel the
officers’’ suspicions quickly
c. (3) the detention lasted no longer than was necessary to effectuate
the purpose of the stop
2. Necessary time to complete the preliminary field investigation – in
Hernandez (the balloon swallower 16 hours was the time necessary to
await a bowel movement)
3. Ordering people in a car to step out of the car requires no additional
justification assuming he initial seizure was lawful

Summary – Standard of Justification required at each step of encounter of a citizen by the

police
2. If police merely question an individual on the street without detaining her against her will,
the 4th A is not implicated
3. At the point at which a reasonable person would believe she is no longer free to leave and is
being detained, a stop has occurred and 4th A is triggered, requiring that the officer have
reasonable suspicion that criminal activity is afoot.
4. To support the additional intrusion of a pat-down frisk, the officer must have reasonable
suspicion that the subject is armed and dangerous
5. If the nature and duration of the detention rise to the level of full scale arrest or its
equivalent, P/C must be shown
 What May Police do When they Stop an Individual
 Ok to do limited search for weapons within reach area accessible after stop,
Michigan v. Long
 Ok, incident to arrest, to conduct a limited protective sweep of those areas of a
house in which officer reasonably suspects dangerous person may be hiding –
Michigan v. Buie
 Ok to ask person to ID himself – Hiibel
 Ok to search student’s backpack and outer clothing – NJ v. TLO
 Hiibel
1. Facts: Domestic violence, man at his truck, asked for ID, refused, D
convicted of failing to identify himself during a stop under “stop &
identify” law
2. Court’s reasoning: The court has recognized that a law enforcement
officer’s reasonable suspicion that a person may be involved in criminal
activity permits the officer to stop the person for a brief time and take
additional steps to investigate further.
a. Terry stop must be limited, and the officer’s actions must be
“justified at its inception, and…. Reasonably related in scope to the
cir. Which justified the interference in the first place.”
3. Justification:
a. Name is useful, reasonably related to stop
b. Name request is limited, routine
c. Ok that refusal to answer may be a crime
d. Name request does not alter nature of stop itself
 What is Sufficient for Reasonable Suspicion?
 R/S for Stopped Cars
1. Arvizu – totality of circumstances test, even if all the factors alone
may be susceptible of innocent explanation, taken together may
provide R/S
a. Facts: @ inland border check point, a minivan set two sensors off
at the same time as weeks ago, minivans are used by smugglers,
driver slowed, stiff, avoided eye contact, kinds’ feet propped up,
all waived, avoided checkpoint,
b. Justification
i. R/S that criminal activity “may be afoot”
ii. Totality test, no set rule
iii. Rejects “divide & conquer” strategy on innocent conduct
 R/S based on Informant’s Tip
1. Satisfied on basis of a lesser quantum of evidence, but also on the basis
of info that is less reliable than that required to show probable cause
a. Same factors as in P/C – the informant’s basis of knowledge and
her veracity
2. White: Prediction of future events & info that police could
corroborate
 a. Facts: Tip by caller, D would leave apartments at specific time, in
Plymouth wagon w/ broken taillight, to Dobey’s Motel, with
cocaine in case
i. Observed: D left empty-handed in wagon, stopped just
before Dobey’s, marijuana inside case, 3mg cocaine on her
b. Rationale: Sufficient for R/S
i. Court focused on the predictability of future actions
ii. When significant aspects of the caller’s predictions were
verified, there was reason to believe not only that the caller
was honest but also that he was well informed, at least well
enough to justify the stop
3. J.L- it is not enough that the informant merely knows something non-
criminal (location & appearance) about the suspect
a. Facts: Tip by called- a young black male at particular bus stop
wearing plaid shirt is carrying a gun. No audio, no fact on tipster
i. Observed: black males “just handing out” at bus stop; J.L.
(15 y) in plaid shirt
ii. Police frisk J.L, seize gun
b. Court: no sufficient reliable tip
i. Just because a tip provided an accurate description of a
particular person at a particular location, does not mean it is
reliable info
ii. Essential to the case is “predictive info that the police could
corroborate” holding in White
 R/S based on a Peron’s Trying to Avoid a Police Officer
1. Unprovoked flight motivated by the presence of a police, and a high
crime area is sufficiently suspicious to justify the seizure of a fleeing
individual, at least in the absence of special cir. That render the flight
innocent in appearance
2. Illinois v. Wardlow – innocent behavior can be sometimes a
justification to stop a person
a. Facts: officers in a police caravan in a havy drug trafficking area,
D starding next to a building, in possession of an opaque bag, w
started running, officer
b. Court: Terry accepts the risk that officers may stop innocent
people, the place of the event was a relevant factor, and the
unprovoked flight from the police was also a factor into raising a
R/S for a justified Terry stop.
 R/S based on Profiles
1. Agent must articulate suspicion based on observed facts. “Profile” does
not detract from evidentiary significance of those observations
6. Exclusionary Rule
 Provides that evidence obtained by violating D’s constitutional rights may not be
introduced by the prosecution at D’s criminal trial, at least for purposes of providing
direct proof o D’s guilt
 Judge made rule, not statutory rule
 Not required by the Constitution
 Before Hudson
 Weeks (1914) evidence obtained in violation of the 4th A excluded in federal
prosecutions
 Wolf: 4th A incorop., but not exclusionary rule
 Mapp: exclusionary rule incorporated
1. Justifications:
a. Exclusion deters constitutional violation by police
b. Deters use by States of unconstitutionally seized evidence
c. Serves “the imperative of judicial integrity
 Leon: the “good faith” exception
1. Rule: court will not suppress evidence obtained in “good faith” reliance
on invalid warrant
2. Suppression if:
a. Police misled magistrate with false information
b. Magistrate wholly abandoned his judicial role
c. Warrant is “so lacking in indicia of P/C as to render official belief
in its existence entirely unreasonable”
d. Warrant facially deficient, not particularized
 Hudson -No exclusionary remedy for evidence obtained in violation of K&A
requirement
 Rationale:
1. Exclusionary rule is only used as “last resort, not our first impulse”
2. The exclusionary rule has never been applied except where its deterrence
benefits outweigh its substantial social cost
3. There is a danger that if the police wait too long they may lose evidence
4. K&A does not apply if R/S that knocking futile, dangerous
5. Deterrent value limited
6. Other deterrents are there for violation of K&A: civil suits,
professionalism of police, internal discipline
 Herring- No exclusion of evidence seized based on outstanding warrant that is
wrong due to police error:
1. Deterrent effect must outweigh harm to justice system
2. No suppression fo NEGLIGENT error
3. Oss. Suppression for systemic error or deliberate/rickelss disregard of
constitutional requirements
 Culpability/Deterrence Value
1. Whose error was it?
2. How culpable was the error?
 4th Amendment Standing
 In general, D may assert the exclusionary rule only to bar evidence obtained
through violation of his own constitutional rights. D may not keep out
evidence obtained through police action that was a violation of X’s rights but
not a violation of D’s own rights
 Old: must be “target” of search includes “anyone legitimately on premises”
Jones
 Now:
1. D must allege own 4th A violation
2. “4th Am standing” = D must have legitimate expectation of privacy in the
place searched
 Challenging the illegality and analysis of standing should be separate -> first
analyze standing, and then illegality
 Rakas: car passengers cannot challenge search because
1. No property/possessory interest in car or seized gun
2. No legitimate expectation of privacy in glove box & under seats
3. Facts: robbery, description of a car, police stopped a car, ordered all
passengers to exit the car, search the car and discovered a box of rifle
shells in the glove compartment. The petitioner moved to suppress the
evidence, but they were not the owners of the seized items or the car
4. “a person who is aggrieved by an illegal search and seizure only through
the introduction of damaging evidence secured by a search of a third
person’s premises or property has not had any of his 4th A rights
infringed”
 Guest in home
1. Minnesota v. Olson – overnight guest have standing
a. The Court reasoning that society recognized a guest’s expectation
of privacy in the host’s home in such a situation
2. Jones- Friend using apparent as sole occupant has standing
3. Carter- drug dealers for 3 hours to package drugs do not have
standing
a. Commercial activity less protected
b. The court said no expectation of privacy because of the purely
commercial nature of the transaction, the relatively short period of
time on the premises, and the lack of any previous connection b/w
respondents and the householder
 Occupant in a Vehicle-
1. Brendlin - when the police stop a vehicle, both the driver and any
passenger have standing to challenge the constitutionality of the
vehicle stop

a. Facts: w/o P/C, a police officer pulls over a vehicle driven by the
driver and a passenger. Police asks passenger to get out of the car,
pats him down, and finds an illegal weapon.
 b. Even though the passenger did not have possessory interest in the
car, the passenger has standing to challenge the initial stop of the
vehicle, since the stop acted as a seizure on the passenger’s person
i. Reasonable person on Brendlin’s position should have not
believe that he can terminate the encounter b/w him and the
police officer when the car was stopped = seizure under
Mendenhall
 Exception to the Exclusionary Rule
 Even if there is 4th A violation, there are certain situations that the
exclusionary rule does not apply
 Independent Source
1. when the police have two paths leading to info, and only one of these
paths begins with illegality, the evidence is not deemed fruit of the
poisonous tree, and is not barred by the exclusionary rue
a. Segura – agents unlawfully entered the D’s apartment and
remained there until a seach warrant was obtained. But the court
held that evidence found for the first time during the execution of
the valid and untained search warrant, was admissible b/c it was
discovered pursuant to an “independent source”
2. Murray - evidence derived from illegal search excluded, unless so
attenuated as to dissipate the taint
a. Facts: the police got info from informant, federal officers have
been surveiling the petitioner and the co-conspirators, the police
entered the warehouse, saw in plain view numerous burlap-
wrapped bales that were later found to contain marijuana, got a
warrant not based on the observation, and then went to the
warehouse and seized the plain view evidence
b. General Rule: evidence derived from illegal search excluded,
unless so attenuated as to dissipate the taint
i. Whether the search pursuant to warrant was in fact a
genuinely independent source of the info and tangible
evidence at issue
1. So if the illegal evidence prompts the officer’s
decision to seek the warrant, or if info obtained during
the illegal entry was presented to the Magistrate and
affected his decision to issue the warrant
c. Justification: “exclusion… would put the police in a worse position
than absent any error” – b/c they are risking the exclusion of all
evidence
d. Factual Question: was the search “genuinely independent”?
i. No, if decision to seek warrant motivated by illegal search
ii. No, if tainted info presented & affected decision to issue W
 Inevitable Discovery
 1. Evidence may be admitted if it would inevitably have been discovered by
other police techniques had it not first been obtained through the illegal
discovery
2. Nix v. Williams- Govt must “establish by a preponderance … that
info would have been discovered by lawful means”
a. Facts:
i. Police promised not to question D
ii. En route: Christian burial speech – violation of Miranda
iii. Body found “within the area to be searched”
b. Govt must “establish by a preponderance … that info would have
been discovered by lawful means”
c. No absence of bad faith needed
 Fruit of the Poisonous Tree
1. The exclusionary rule applies if there is a substantial causal connection
b/w the illegal police behavior and the evidence. ALL EVIDENCE
THAT IS TE PRODUCT OF ILLEGAL POLICE ACTIVITY must be
EXCLUDED
2. Wong Sun
a. Police illegally broke into the house, handcuffed D and held him at
gunpoint, D confessed, arrested, charged, and released on his own
recognizance, then questioned after Miranda
i. @ the time of the arrest confession must be excluded b/c his
arrest was illegal and the confession was the fruit of the
illegal arrest
ii. second statement was not excluded b/c the earlier illegal
police activity “became so attenuated as to dissipate the
taint”
3. Brown
a. Facts: 8pm – illegal search and arrest of Brown, 9 pm- at station,
M warning and 1 statement, left station, arrested co-d, returned, 2-
3 am- at station, M warnings, 2nd statement
b. Court: 1st and 2nd statement = fruit of poisonous tree
i. Miranda alone does not deter a 4th A violation.
1. This would encourage that evidence derived there
from could well be made admissible at trial by the
simple dependent of giving Miranda
ii. To break causal chain must show statement “was
sufficiently an act of free will to purge the primary taint of
the unlawful invasion”
iii. Case by case, burden on govt
1. Facts to consider
a. Temporal proximity of the arrest and the
confession
 b. The presence of intervening cir, and
particularly the purpose and flagrancy of the
official misconduct are all relevant
2. The voluntariness of the statement is a threshold
requirement
4. After Brown
a. Rawlings v. KY
i. Admissible: statements made during illegal seizure at home
when police left to get a warrant
ii. Factors: lack of flagrant misconduct, lack of coercive
atmosphere, statements spontaneous to discovery of
evidence
b. NY v. Harris
i. Admissible: statement at station, after illegal home search
1. Suppressed 1st statement at home
2. Admitted 2nd statement at station
3. Suppressed 3rd statement after Harris wanted to end
interrogation
ii. Justification
1. Under Brown, P/C for arrest
2. 2nd statement not “product” of warrantless arrest
3. 4th A protects evidence & statements inside home
iii. Factors statements v. evidence, different place & time
c. US v. Patane
i. Admissible: Physical evidence obtained in violation of
Miranda
5. Franks hearing
a. To get a Franks hearing
i. Must allege that affidavit for search warrant contains
deliberate falsehood or reckless disregard for the truth
ii. Offer proof, affidavit and reasons
iii. Must specify false statements
iv. Affiant = sole focus, not confidential informant
b. No hearing if sufficient other content in affidavit to support
issuance of warrant
7. Fifth Amendment
 No person shall be compelled in any criminal case to be a witness against himself
 Confessions
 Due Process (5th A./14th A/) A person is denied due process of law if an
involuntary statement, a statement obtained as the result of undue police
pressure, is used against her at a criminal trial
1. Voluntary
 Right Against Self-Incrimination (5th A.)
1. Miranda violation?
  Right to Counsel (6th A) – this right attaches when court proceedings begin
1. Massiah issues
 Involuntary Confessions
 Hopt: involuntary confessions are unreliable and untrustworthy
 Barm: violation of 5th A. right against self-incrimination
1. But a confession, in order to be admissible, must be free and voluntary;
that is must not be extracted y any sort of threats or violence, nor
obtained by any direct or implied promises however slight, nor by the
exertion of any improper influence
 Brown: violate due process – tortured the defendant to give confession for
several days
 Are inadmissible (all of the above)
 Voluntary?
 Totality of circumstances approach
1. Length of interrogation & denial of basic bodily functions
a. Denial of sleep (Ashcraft) or food (Payne)
2. Use of force and threats of force
a. Police Brutality, Brown
b. Threat of physical violence, Fulminante
3. Psychological pressure, Spano
4. Deception
a. Threat of long prison and children taken away, Lunumn
5. Age, Level of Education/Intelligence, Mental Condition
a. Spano, Columbe
b. But “coercive police activity a necessary predicate” Connelly
 Fulminante – Credible threat of physical violence made confession
involuntary
1. Facts: in jail, undercover cop promises protection from “rough treatment”
in prison, if D confessed to him.
2. Court: it was fear of physical violence, absent protection from his friend
the gov. agent, which motivated Fulminante to confess.
a. It does not need to be physical threat, it can be mental too
 Spano – psychological pressure renders confession involuntary
1. Killed boxer, D friend was in the police academy, D refused to speak to
the police for 5 hours, then his friend was send to the room and finally D
admitted to the killing, they took a drive to find the weapon with D.
2. Court: looked to the age of petitioner, the education (one-half years into
high school), criminal history, emotional stability (history of emotional
instability), duration of interrogation (8 hours before he confessed, the
questioning was not during normal business hours.)
 Miranda
 Miranda confessions
1. “salient features”
 a. incommunicado interrogation
b. police-dominated atmosphere
c. resulting in self-incrimination without full warnings
2. Modern custodial interrogation:
a. “exacts a heavy toll on individual liberty and trades on the
weakness of individuals”
3. Before the court was focusing on the due process right – interfered with
fundamental conceptions of liberty
a. The 5th A is more specific and creates a bright line rule and it is not
so flexible as the voluntary statement test
b. Is applies to all people
c. If you have an affirmative right like the 5th A – then a person can
actually waive the right
4. The privileges are fully applicable during a period of custodial
interrogation
a. The court backed up the rights that are fundamental to a trial to the
point of interrogation
b. No warnings are necessary unless custodial interrogation
5. Waiver must be voluntary – mere silence is not a sign of waiver.
6. Procedure
a. Warnings:
i. Right to remain silent
ii. Anything you say can be used against you
iii. Right to have an attorney with you during questioning
iv. Right to appointed counsel
b. Procedure
i. No warnings unless, interrogation
ii. No interrogation unless in custody
iii. Interrogation must stop if invoke the right of counsel
 Confession Analysis
1. Step #1 Violation of Protections/Procedures
a. Miranda is 5th A- based
b. Miranda creates custodial interrogation procedure
c. 6th A provides right to counsel in a pending case
2. Step#2 Voluntariness test (must show that the police subjected the
suspect to coercive conduct, and the conduct was sufficient to
overcome the will of the suspect [given the particular vulnerabilities
and the conditions of the interrogation] thus inducing an involuntary
statement)
a. Due Process- based
b. Concern: will overborne by official pressure
c. Totality analysis
 i. Suspect’s peculiar characteristics and vulnerabilities – age,
level of education, mental stability, state of sobriety, and
familiarity with the criminal justice process
ii. Manner in which the police conducted the interrogation –
length of the suspect’s detention, the duration and intensity
of the questioning, the use of trickery, deception, threats, or
promises of leniency, the deprivation of access to family,
friends, or nourishment
 Traditional
 Voluntariness Analysis
1. Factors:
a. Age, duration, Education, IQ, capacity, deprivations, threats
2. Miranda
a. Warnings, silence, counsel
 Other concerns
1. Videotape
2. Manipulation of technology
3. Fact-feeding
4. Evidence to corroborate confession
5. Form of confession
a. Yes/No
b. Narrative
c. Drafter
6. Internal Inconsistencies
7. Strength of evidence of guilt
 Other Alternatives
 Damages suits
1. But only if criminal case results
 Witnesses to confessions (station lawyers/ombudsmen)
 Broaden due process standard
 Critiques:
 Ineffective
 Too effective
 Not in text of constitution
 Congressional Reaction 18 US.C. §3501
 Attempted to overrule Miranda
 “A confession shall be admissible in evidence if it is voluntarily given”
 Warnings are just a factor
 (b) the trial judge in determining the issues of voutariness shall take into
consideration all the circumstances surrounding the giving the confession,
including
1. (1) timing elapsing between arrest and arraignment
2. (2) whether D knew the offense
 3. (3 ) whether D “was advised or knew” any such statement could be used
against him
4. (4) whether D “had been advised” of right to counsel; and
5. (5) whether had counsel
 Dickerson
 The court held that Miranda is a constitutional decision of the court, and it
may not be overruled by an act of Congress
1. States may have laws that provide more protections then Miranda, but not
less or modify it
 When is person In Custody
 Whether there is either a formal arrest or restraint on freedom to
movement of the degree associated with a formal arrest
 Orozco: in custody when “under arrest” at home at 4 am
 Oregon v. Mathiason- Merely being in a police station does not make one
in custody but whether deprived from his freedom to leave
1. Facts: burglary in a house, neighbor said who she suspected, police went
to D’s house, left their business card, D called and accepted their
invitation to go to the police station; told not under arrest, door closed,
told truthfulness might be considered, lied to about incriminating
evidence, confessed within 5 min, questioned 30 min told not under
arrest, relased
2. Court: “by custodial interrogation, we mean questioning initiated
by[police] after a person has been taken into CUSTODY or otherwise
DEPRIVED of his FREDOM of action in any significant way
a. D not in custody because he was free to leave, was told not under
arrest, left after the interview.
b. Just b/c he was questioned by police that might be intimidating, or
questioned in the police station does not require Miranda warnings
 Beckwith: taxpayer not in custody at IRS interview on criminal tax
violations
1. The pressure associate with a police dominated station house
interrogation were absent when IRS in home to question
 Murphy: probation not in custody at meeting with probation officer
 Alvarado – a person is in custody if from an objective perspective the
person is under arrest or otherwise not free to leave
1. Facts: 17 y old interrogated at station in murder case; parents brought
him to the station, he was interviewed for two hours, recorded with D’s
knowledge, appealed to his sense of honesty, police asked D if he wants
to take a break two times; the interrogation focused on his friend’s
actions and not his
2. Court: habious review- the DC decision was reasonable-
a. Framing issue by the Circuit court:
i. Whether a reasonable 17 years old, with no prior history of
arrest or police interviews would perceive
 b. Court: this is not objective enough
i. Age & experience not a factor in Miranda
ii. Characteristics are a factor in voluntariness analysis
iii. Custody inquiry is an objective rule designed to give clear
guidance to police
iv. Individualized characterizes create subjective inquiry
 J.D.B v. North Carolina
1. Question presented:
a. Whether a court may consider a juvenile’s age in a Miranda
custody
b. Analysis in evaluating the totality of the circumstances and
determining
c. Whether a reasonable person in the juvenile’s position would have
felt
d. He or she was not free to terminate police questioning and leave
 Traffic Stop: No Miranda Warnings
 Berkemer
1. Facts: followed the car, stopped, asked to leave the vehicle, D was not
told that he would be taken under custody, police asked D to perform the
sobriety test & asked if D has been drinking
2. Miranda applies to all custodial interrogations, regardless of offense
a. But persons detained during an ordinary traffic stop are not “in
custody” for Miranda purposes
i. Brief, temporary, public
ii. Less police-dominated than interrogation at station
iii. More like a Terry stop, with questions to determine identity,
confirm/dispel suspicion
 Interrogation
 Miranda covers “interrogation”
 Does not cover:
1. Volunteered statements, Miranda
2. Statements to wife in police presence, Mauro
3. Statements to undercover agent, Perkins
 Innis – functional equivalent to questions could be sufficient to have
interrogation
1. Facts: cap driver reported robbery, police found the suspect, arrested him,
and while in the wagon the police started having a conversation with each
other without involving D, they appealed to D’s emotion by mentioning
the handicap children in the area and the gun, D told them to turn around
and showed them where was the gun.
2. Interrogation = express questioning or its functional equivalent, any
words or actions by police that they should know are reasonably likely to
elicit incriminating response (based on suspect’s, not officer’s,
perceptions)
 3. No interrogation here because no express questioning & dialogue not
:functional equivalent”
 Perkins – Miranda warnings not required before statements to
undercover agent
1. Non police-dominated atmosphere
2. Same pressures do not exists when suspect unaware of police
3. Strategic deception based on mislplaced trust
4. D spoke based on desire to impress, at own peril
8. Fruits of Miranda unusually admitted
 Illegal confession -> leads/witnesses
 Exclusionary rule does NOT APPLY (Michigan v. Tucker)
 Illegal confession -> later confession
 Exclusionary rule does NOT apply (Oregon v. Elstad)
1. Facts: arrest warrant, went to house, mom opened the door, D went with
police to the living room, police asked if D knew they were there, D said
no, then they asked if he knew Gorss and he said yes and admitted he was
at the robbery. 1 h later at police station- given warnings
2. Later, Warned Confession admissible
a. First, unwarned confession excluded
i. 1st excluded under Miranda even if “voluntary”, thus no
“constitutional” violation
b. Second, warned confession at station admissible
i. Miranda warnings after “voluntary but unwarned statement”
ordinarily sufficient
ii. 2nd statement must be knowing & voluntary
iii. If 1st one coerced, did coercion taint 2nd statement?
1. Look at the time that passes between confessions, the
change in place of interrogations, and the change in
identity of the interrogation all bear on whether that
coercion has carried over into the second confession.
3. Court said “unwarned questioning did not abridge D’s constitutional
privilege, but departed oly from the prophylactic standards later laid
down by the Court”
a. No infringement of const. rights, not controlled by Wong Sun
 Unless police deliberately evade Miranda (Missouri v. Seibert)
1. Facts: mom and teens that burned the house to cover the body of the child
with cerebral palsy, mom was arrested, interrogated for 20-30 min, after
she confessed given a cigarette and coffee break, and then given
warnings and officer stated “Rice, we’ve been talking for a little while
…..” Officer made conscious decision to used the technique : question
fist, warn post-confession
a. First unwarned confession excluded
b. Second warned confession also excluded
 c. Deliberate attempt to evade Miranda using two-step technique
rendered Miranda warnings ineffective
2. How does the Court distinguish Elstad?
a. Here: one interrogation punctured by Miranda
b. Same location, same officer, overlapping content, use of unwarned
confession to secure warned confession
3. What is the the Seibert test for excluding warned statements?
a. Deliberate use of 2-step technique
b. Absent “curative measures”
 Illegal confession -> physical evidence
 Exclusionary Rule does NOT apply (Patane)
1. Facts: arrested D at his house, started Miranda, but D said he knew his
rights; officer asked about the gun that was in violation of the right to
posses firearm b/c felony, D told him where the gun was.
2. Court: b/c Miranda is only a prophylactic rule that sweep beyond the
actual protection of the Self-Incrimination Clause, any further extension
of these rule must be justified by its necessity for the protection of the
actual right against compelled self-incrimination
a. Mere violation of Miranda does not, by itself, violate a suspect’s
const. right or even the Miranda rule
b. Unlike unreasonable searches under the 4h A. or actual violation of
the Due process clause or the Self-Incrimination Clause, mere
failure to warn does not justify application of the fruit of the
poisonous tree
9. Analysis
 Are Miranda warnings required
 Custodial + Interrogation = warnings required
 Were the warnings adequate
1. Must cover bases, no magic words
 Is there a Miranda violation
 Yes. Exclude the unwarned statement
 No. No exclusion
 Was the statement voluntary
 Yes. Admit physical evidence, witnesses, statements
 No. Analyze “fruits” for taint & dissipation
10. Miranda Exceptions
 Impeachment
 Harris v. NY
1. Prosecution can not use unwarned statements in case in chief, but can use
them to impeach D
2. When D chooses to testify, he waives his 5th A. right and is sworn to
testify truthfully
3. Limit: can not impeach if statements involuntary
 Emergency
 New York v. Quarles
1. Facts: in custody, asked about gun without Miranda
2. Court: Creates public safety exception: Miranda not required before
interrogation if questions reasonably prompted by a public safety
concern… immediate need to find weapon in supermarket
3. Admit: 1st statement, gun, and 2nd warned statement
 Booking
 At booking, no Miranda warnings required before asking DOB, name, age,
weight, height, eye color
 Pennsylvania v. Muniz
1. Asking suspect to calculate 6th birth date does not fit booking exception
2. Slurred speech of DUI suspect not testimonial – physical evidence or
observation of physical characteristics are not testimonial
 Waiver of Miranda rights
 Miranda:
1. Heavy burden on prosecution to prove
2. Knowing & intelligent waiver
3. A valid waiver will not be presumed from silence after warnings
4. Or the fact that a confession was in fact eventually obtained
 Implied waiver, OK – N.C. v. Butler
1. Waiver can be clearly inferred from the actions and words of the suspect
2. D agreed to talk, refused to sign waiver, never requested counsel or
attempted to halt questions
3. Whether D in fact knowingly and voluntarily waived the rights delineated
in the Miranda case, not a question of form of waiver
a. Mere silence is not enough, but once you have a silence plus an
understanding of his rights and a course of conduct indicating
waiver- may indicate waiver
 Waiver test: totality of circumstances
1. Consider age, experience, education, intelligence, background, and
conduct of accused, Edwards
 Waiver after invoking rights
1. Right to Silence
a. Michigan v. Mosley
i. Robbery: arrested, warned, invoked silence, interrogation
ceased, put in cell later: warned, waived, questioned on
murder, confessed
ii. Right to cut off questioning must be honored & was here
iii. Invoked right, interrogation ceased, time passed, fresh
warnings, different crime
2. Right to Counsel
a. Edwards
 i. Facts: arrested, warned, waived, gave alibi, after “I want an
attorney before making a deal” interrogation ceased. Next
day: warned, waived, confessed (but not on tape)
ii. After right to counsel invoked, no interrogation until counsel
provided, or the accused himself initiates further
communication, exchanges, or conversation with the police
b. Davis: Request for counsel must be “unambiguous”
i. If “ambiguous or equivocal” questioning may continued
1. “requires, at a minimum, some statement that can
reasonably be construed to be an expression of a
desire for the assistance of an attorney”
ii. Equivocal = “Maybe I should talk to a lawyer”
iii. Followed by “No, I do not want a lawyer”
iv. Rationale: need for bright line
c. Schatzer: After suspect invoked right to counsel, interrogation
must cease for 14 days
 Berghuis
1. Rejects argument that D invoked silence
a. Relies on Davis: invoking silence must be unambiguous
2. Finds Implied Waiver:
a. Must be voluntary & intelligent
b. Where warnings given and understood, uncoerced state ment is
sufficient to establish implied waiver
c. Yes answer were:
i. Course of conduct indicating waiver
ii. Options: say nothing unambiguously invoke
iii. Not coerced
3. Dissent
a. New “clear-statement” rule requires speech to invoke silence
b. Flips rules:
i. Miranda allows silence ot be invoked “in any manner”
ii. Miranda creates presumption against waiver
c. Waiver:
i. No waiver from actions & words “course of conduct”
ii. Dilutes govt’s burden of proof
d. Exercised Silence: would not reach
11.Identification
 Eyewitnesses are often wrong
 Corss-racial ID’s especially inaccurate
 Id Methods
 Line-up: suspect presented in group
 Show-up: suspect presented on-on-one
 Photo spread/Photo line up
 Concerns:
  Unreliable
 Suggestive practices increase risk of unreliability
 Powerful incriminating evidence
 Lineups
 5th A. – No violation in suspect being live line-up and giving voice sample
 6th A – post-indictment line-up: right to counsel
1. not at pre-indictment line-up
2. not at photo lineup
 Wade
 Id problems:
1. Mistaken, suggestive methods (intentional and not), crystallized ID for
future reference, ID format important, victims may be biased, jury likely
to believe police
 Counsel’s Role
1. Privacy “results in a gap of knowledge as to what in fact goes on”,
difficult to reconstruct, ID process at trial, ID may be the “trial”, counsel
may avert prejudice & assure confrontation at trial, substitute counsel
may avoid delay
 Exclusion
 Govt gets opportunity to prove by clear & convincing evidence that in-court
IDS were based on observations “other than the line-up”
 No per se exclusion if evidence of ID not used at trial
 Test for “independent origin/source”
1. Factors:
a. Opportunity to observe crime
b. Accuracy/discrepancy in description
c. ID of another person
d. Failure to ID
e. Time b/w crime and line-up
 Gilbert
 Use at trial?
1. Manager ID is guilt phase – possibly “independent
2. 8 witnesses testified to line-up ID at penalty phase – state can not show
independent sources
 Remdies?
1. If #1 = independent, then guilty phase OK, redo penalty
2. If #1 not independent/harmless, retrial on guilt
 Due Process
 Rule: suggestive ID procedures violate Due Process
1. Foster
 Exceptions:
1. ID procedure “necessary” Stovall
2. The witness has an independent source for the ID – Neil v. Biggers
 a. Rule: admission of a show-up not per se DP violation
b. Issue: whether the totality of the circ’s was reliable even though ID
procedure was suggestive
3. Sufficient indicia of reliability exist, Braithwaite
 Necessary
 Hospital confrontation in Stovall
 Photo line-up using snapshots in Simmons:
1. Totality of Circumstances analysis
2. Use cross-examination to expose possible mis-ID
3. Necessary to “swiftly determine” if “on the right track” … “hardly less
compelling” than Stovall
4. Little change of mis-ID