CRIMINAL PROCEDURE OUTLINE

I can do everything through him who gives me strength. (Phil. 4:13)

THE 4TH AMENDMENT RIGHT TO BE SECURE AGAINST

UNREASONABLE SEARCHES AND SEIZURES
I.

4TH AMENDMENT CHECKLIST

A.
B.
C.
D.

Does D have standing to raise a 4th Amendment challenge to the specific item of evidence in question?
Did the police activity in question implicate a person, house, paper or effect?
Did the police activity constitute a search and/or seizure?
Were the search and/or seizure reasonable or unreasonable?
1. Did the police have adequate grounds to conduct the search and/or seizure?
2. Did the police act on the basis of a search warrant and/or arrest warrant?
E. If yes to previous question, then ask:
1. Did the police conduct the search and/or seizure on the basis of a warrant later declared to be invalid?
a. If yes, then consider good-faith exception.
2. Is there evidence that is a fruit of the poisonous tree?
a. If yes, fruits of poisonous tree inadmissible subject to two exceptions: the inevitable discovery
doctrine, and the attenuated-connection doctrine.
II.

THE THRESHOLD REQUIREMENT WHAT IS A SEARCH, WHAT IS A SEIZURE?

A. GENERAL CONSIDERATIONS
1. 4th Amendment protects against unreasonable searches and seizures. If the government activity is neither a
search nor a seizure, it not regulated by the 4th Amendment and need not be reasonable
2. Interests Protected
a. Search interest in maintaining personal privacy
b. Seizure interest in:
i. Seizure of Person Being free from governmental interference / physical disruption and
inconvenience (look at stop and frisk)
1) an innocent person subject to a bodily seizure suffers a 4th Amendment intrusion even
though he had nothing to hide
ii. Seizure of Property Retaining possession of property
1) Rarely an issue because is obvious
3. There are 3 legitimate interests, held by all citizens that can be impaired by a government intrusion:
a. Keeping control over an use of his property free from unreasonable seizures of property
b. Keeping information that may be personal or embarrassing private, even though not indicative of
criminal activity
B. WHAT IS A SEARCH BEFORE KATZ Needed physical intrusion in order to violate 4th Amendment
1. Boyd v. US
a. An order requiring an individual to produce business invoices was a search because it was a
material ingredient and effected the sole object and purpose of a search, which was forcing from a
party evidence against himself.
2. 2 Classifications
a. False Friends: If you go about talking to people secrets it is foreseeable and as an assumption of
risk; you dont reasonably expect that when you tell somebody something that it is confidential and
run the risk that they will tell.
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i. On Lee v. US (1952): informants electronic transmission of statements to a nearby law

enforcement officer was not a search because the speakers consent to the presence of the
informant precluded a trespass and because the speaker was talking confidentially and
indiscreetly with one he trusted, and he was overheard.
ii. Lopez v. US (1963): a known Internal Revenue Service agents recording of a bribe offer not
a search because the suspect had consented to the agents presence in his office, and had
taken the risk of recording and reproduction in court by willingly speaking to the agent.
iii. Hoffa v. US (1966): informant who listened to, reported, and testified about Hoffas
inculpatory remarks did not search because no interest legitimately protected by the Fourth
Amendment was involved. Hoffa had not relied upon the security of his hotel room, for
he had allowed the informant to enter and listen. Rather, he had relied upon his misplaced
confidence that the informant would not reveal his voluntary confided wrongdoing.
b. Physical Intrusions:
i. Olmstead v. US (1928): wiretapping from outside a building was not a search because,
unlike the typical searches known to our Constitutions Framers, there was no actual
physical invasion and no trespass upon a protected location.
ii. Goldman v. US (1942): placing a detecta-phone against the outer wall and listening to
conversations inside the building not a search.
iii. Silverman v. US (1961): inserting a spike mike into a party wall and picking up
conversations passing through heating ducts was a search because the physical intrusion was
sufficient to cross the constitutional threshold, even though it did not effect a technical
trespass.
iv. Clinton v. Virginia (1964): attaching a listening device to a wall by means that caused a
thumbtack-sized penetration was a search.
C. WHAT IS A SEARCH AFTER KATZ 2 Pronged Test
1. Katz v. United States (1967)
a. Facts: The government (P) thought that Katz (D) was transmitting by phone, from a public phone
booth, information related to illegal gambling activities. Although no warrant was sought or
received, officers intercepted and recorded D's side of the phone conversations with an electronic
listening device attached to the outside of the booth.
b. Issue: Whether listening and recording conversations with an electronic listening device attached to
the outside of a public phone booth constitutes a "search and seizure," subject to 4th Amendment
protections.
c. Holding: Yes. One who enters a public telephone booth is "entitled to assume that the words he
utters into the mouthpiece will not be broadcast to the world
d. Rationale:
i. 4th Amend. protects people, not places
ii. What a person knowingly exposes to the public, even in his own home or office, is not a
subject of Fourth Amendment protection. But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected.
iii. What he sought to exclude when he entered the booth was not the intruding eye -- it was the
uninvited ear.
iv. One, who occupies it, shuts the door behind him, and pays the toll that permits him to place a
call is surely entitled to assume that the words he utters into the mouthpiece will not be
broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that
the public telephone has come to play in private communication.
2. Katz Test:
a. (1) that a person has exhibited an actual (subjective) expectation of privacy and
b. (2) that the expectation is one that society is prepared to recognize as reasonable
i. Factors against reasonableness include:
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Voluntary disclosure of information to a third party who was cooperating with the
government
2) The failure to take precautions to safeguard ones privacy and/or the public exposure
of ones activities
3) The fact that a refusal to recognize a privacy entitlement would compromise nothing
that society has any interest in protecting
4) The fact that the government is almost certain to learn nothing at all, nothing of
significance, or nothing legitimate in the search (United States v. Jacobson, 466
U.S. 109 (1984)
Agents reopening of a package that had been previously opened by Fed Ex
employees who qualified as private parties
1. Did not violate a legitimate privacy expectation because the removal
and visual inspection of the contents enabled the agent to learn
nothing that had not previously been learned (and communicated to
him) during the private search
A chemical field test that identified a substance found inside the package as
cocaine
1. Was outside 4th Amendment control because it could disclose only one
fact previously unknown to the agent (whether a suspicious white
powder was cocaine), which could not compromise any legitimate
interest in privacy because:
o The fact that a substance is something other than cocaine is
nothing of special interest, and
o The fact that a substance is cocaine is not something in which
one can have a legitimate privacy interest
D. APPLICATION OF KATZ PRINCIPLES
1. False Friends
a. United States v. White (1971)
i. Facts: narcotics agents electronically overheard several conversations between a
government informer, who was carrying a concealed radio transmitter, and White (D) while
they were in the informers home without a warrant.
ii. Holding: 3rd party electronic monitoring without warrant violate the 4th Amendment. 4th
Amendment offers no protection to a wrongdoer's misplaced belief that one to whom he
voluntarily confides will not reveal his words.
iii. Rationale: No justifiable and constitutionally protected expectation that a person with whom
one is conversing will not then or later reveal the conversation to the police. Undercover
agent may write down his conversations with a DF, and later testify concerning his
recollection of such conversations without first obtaining a warrant. No different result if
agent recorded or transmitted those conversations instead of immediately writing them down.
iv. Policy: Use of false friends is essential to the detection of otherwise inaccessible information
about crime
v. Different from Katz: In Katz, the person on the other side of the phone was not the one who
talked to the police, or was even an agent. The police recorded a conversation between Katz
and a third person. If we say that the 4th Amendment offers no protection to a wrongdoer's
misplaced belief that one to whom he voluntarily confides will not reveal his words, it is the
risk that the other person will turn to the police (or that the other person is an agent) what is
not protected. Nevertheless it is a risk that is measured by the persons judgment over the
character of another. When police overhears conversations that were never revealed to it, it is
depriving the individual of the chance to make the judgment and the risk is not that the
person will turn to the police (or is an agent), but the risk is that the conversation will be
heard by the police without justification.
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vi. According to the professor, both, Katz and White, involve the same risk that the other
person would turn against them and that the government would get the information
b. Hoffa v. US (1966) The minute you speak to another party youve lost control of those words. No
reasonable expectation of privacy in the ideas or words conveyed to X because you are knowingly
exposing these thoughts or ideas, therefore there is no search and no 4th amendment protection
whatsoever.
2. Pen Registers
a. Smith v. Maryland (1979)
i. Facts: police installed a pen register, without a warrant, at the central telephone system in
order to determine the identity of the numbers that the suspect was dialing
ii. Holding: Installation of the pen register was not a search and no warrant was required.
No legitimate expectation of privacy on the numbers DF dialed because those were
automatically turned over to 3rd party (telephone co.).
iii. Rationale: Everyone knows the phone co. knows which numbers someone dialed from the
house; therefore, there is no reasonable expectation of privacy. DF assumed the risk that the
company would reveal to police the numbers he dialed
iv. Notes:
1) 4th amendment only triggered by government action.
2) Private actors are considered government agents if:
act at the direction or request of the government
act pursuant to government policy or regulation
act with the knowledge, acquiescence, or encouragement of the government
act with a purpose or motivation to be a government actor
3. Open Fields and Curtilage
a. Oliver v. United States (1984) (Open Fields)
i. The 4th Amendment is not extended to open fields.
ii. Did not hold that 4th Amendment protection ceases once one passes beyond the walls of the
home, there is a distinction between open field and curtilage (the land immediately
surrounding and associated with the home).
iii. Steps taken to protect privacy, such as planting the marihuana on secluded land and erecting
fences and No Trespassing signs around the property, do not establish that expectations of
privacy in an open field are legitimate.
iv. The fact that the government's intrusion upon an open field is a trespass at common law does
not make it a search in the constitutional sense. In the case of open fields, the general
rights of property protected by the common law of trespass have little or no relevance to the
applicability of the Fourth Amendment.
b. United States v. Dunn (Factors to Determine Curtilage)
i. the proximity of the area to the home
ii. whether there is an enclosure that surrounds both the home and the area
iii. the nature of the uses to which the area is put
iv. the steps taken to protect the area from observation
c. A warrant may be required to search curtilage, but no warrant is ever required to look through an
open field it is not even a 4th amendment search because there is no expectation of privacy
(Oliver and Ciraolo)
4. Access by Members of the Public
a. Aerial Observations
i. California v. Ciraolo (1986) (Aerial Observation of Curtilage)
1) Facts:
Police received an anonymous telephone tip that DF was growing marijuana
in his backyard, which was enclosed by two fences (10 feet high) and shielded
from view at ground level.
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Officers were trained in marijuana identification. They flew in a private

airplane over DFs house, within navigable airspace, at an altitude of 1,000
feet, and identified and photographed the marijuana plants growing in the
yard.
They obtained a search warrant on the basis of one of the officer's naked-eye
observations (although the photograph was attached as an exhibit, the warrant
was not based on it because the officer said that it did not depict a true
representation of the color of the plants) and seized the evidence.
2) Holding: Observations of illegal activity within the curtilage, from a public vintage
point, are not protected because there is not an expectation of privacy that society is
prepared to honor.
3) Rationale:
Although defendant's yard was within the curtilage of his home, this did not
bar police observation.
4th Amendment does not require officers to shield their eyes when passing by a
home on public streets.
10-foot fence around his yard did not preclude an officer's observations from a
public vantage point where he had a right to be and which rendered activities
clearly visible. Fence might not shield from the eyes of a citizen or policeman
perched on top of a truck or a two-level bus.
DFs expectation that his yard was protected from observation was
unreasonable and not an expectation that society was prepared to honor. DF
had no reasonable expectation of privacy because he ought to know that
planes flying above his house could see his backyard from the air.
Observations of illegal activity within the curtilage, from a public vintage
point, are not protected because there is not an expectation of privacy that
society is prepared to honor
ii. Florida v. Riley (additional note)
1) Court said surveillance in helicopter at the height of 400 feet not search because even
though planes at this height would violate FAA rules, helicopters would not and can
expect that anyone in helicopter can observe marijuana on this curtilage.
2) According to the court, it would have been a different case if flying at that altitude
would have been contrary to law or regulation.
b. Squeeze Search (Manipulation of Bag in Public Transit)
i. Bond v. US (2000)
1) Facts: Border Patrol Agent Cantu boarded a bus in Texas to check the immigration
status of its passengers. As he walked off the bus, he squeezed the soft luggage which
passengers had placed in the overhead storage space. He squeezed a canvas bag above
DFs seat and noticed that it contained a "brick-like" object. After petitioner admitted
owning the bag and consented to its search, Agent Cantu discovered a "brick" of
methamphetamine. DF was indicted on federal drug charges.
2) Holding: the agent's manipulation of the bag was a search. his personal luggage was
protected because he had a privacy interest in it. The court held that the search
violated the Fourth Amendment because petitioner sought to preserve privacy in the
luggage by using an opaque bag and placing that bag directly above his seat and
because the agent's physical manipulation of the bag went beyond the handling that
petitioner could reasonably have expected.
3) Rationale: Although a bus passenger clearly expects that other passengers or bus
employees may handle his bag, he does not expect that they will feel the bag in an
exploratory manner.

4)

Note: Ciraolo search more like a search with a specific purpose behind it,
whereas in Bond, it was a random search

5. Technology to Enhance Inspection

a. Kyllo v. US (2001)
i. Facts: Agents used a thermal imaging device to scan the triplex to determine if the amount
of heat emanating from it was consistent with the high-intensity lamps typically used for
indoor marijuana growth. Based in part on the thermal imaging, a Federal Magistrate Judge
issued a warrant to search Kyllo's home, where the agents found marijuana growing.
ii. Issue: Whether the thermal-imaging aimed at a private home from a public street, constitutes
a search under the Fourth Amendment
iii. Holding: Obtaining information regarding the interior of the home that could not otherwise
have been obtained without physical intrusion into a constitutionally protected area, such as
petitioner's private residence, constituted a search, at least where the technology was not in
general public use. Since thermal imaging technology was not in general public use, such
surveillance was a search and was presumptively unreasonable without a warrant. Whether
the search warrant was supported by probable cause without the surveillance evidence was
for the trial court to determine in the first instance.
iv. Rationale: the 4th Amendments protection of the home has never been tied to measurement
of quality or quantity of information obtained. All details in the home are intimate details,
because the entire area is held safe from prying government eyes. The Fourth Amendment
draws "a firm line at the entrance to the house." That line, we think, must be not only firm
but also bright -- which requires clear specification of those methods of surveillance that
require a warrant.
v. Rule: Where the Government uses a device that is not in general public use, to explore
details of a private home that would previously have been unknowable without physical
intrusion, the surveillance is a Fourth Amendment "search," and is presumptively
unreasonable without a warrant.
E. WHAT IS A SEIZURE (look at Chapter 5 stop and frisk)
1. Interests Protected:
a. Seizure of Property Retaining possession of property
i. Rarely an issue because is obvious
b. Seizure of Person Being free from governmental interference / physical disruption and
inconvenience
i. an innocent person subject to a bodily seizure suffers a 4th Amendment intrusion even though
he had nothing to hide

III. PROBABLE CAUSE

A. GENERAL CONSIDERATIONS
1. The substance of the protection provided by the 4th Amendment is contained within 2 separate clauses: first,
the unreasonableness clause, and second, the warrant clause.
2. Probable cause to arrest requires that there be a certain quantum of likelihood that:
a. That particular individual
b. Has committed or is committing a particular offense
3. Probable cause to search requires that there be a certain quantum of likelihood that:
a. something that is properly subjected to seizure by the government, i.e., contraband or fruits,
instrumentalities, or evidence of a crime
b. is presently
c. in the specific place to be searched
4. Probable cause does not require certainty, but only a sufficient likelihood. The question is, what is the
necessary quantum or level of probability required by the 4th Amendment
a. There is an inherent demand for current information in determinations of probable cause:
i. The object of the search must be sufficiently likely to be in the place to be searched at the
time of the search.
ii. The mere passage of time is likely to diminish the probability that an item that was in a
particular place still remains in that location.
iii. Information that forms the basis for a determination of probable cause to search is subject to
challenge as too stale, which means that it is no longer sufficiently supportive of the
conclusion that the sought item is currently located in the place to be searched.
5. One of the concerns inherent in the early stages of the 4th Amendment was not the there were warrantless
searches; rather it was that the warrants were too broad and the judges and police had too much discretion.
6. One thing to think about is that everyone could know details about another person
B. INFORMATION FROM INFORMANTS
1. Draper v. US (1959)
(known and reliable informant + verification)
a. Facts: Agent was given information by a known informer who had proved reliable in the past, that
DF would arrive from a specific train on either of two days, wearing certain clothing, and carrying a
tan zipper bag, and would be walking fast, and carrying narcotics. The agent observed DF who
fitted the description arriving from one of the named trains and arrested him without a warrant. A
search of DF turned up two envelopes containing heroin and a search of his bag revealed a syringe.
b. Issue: Is there probable cause for arrest?
c. Holding: Yes. Where agent is given info by a known and reliable informer and agent verified the
information, there is probable cause. Therefore, the heroin discovered in search incident to lawful
arrest which agent effected after so observing defendant was competent evidence.
d. Rationale: The informant was known to be accurate and reliable and the police could independently
verify every facet of the tip
e. This was a loose test. If someone tips some details and there are enough details that match, the
police could get a warrant and conduct a search.
2. Spinelli v. US (1969)
(Higher Threshold than Draper)
a. Facts: DF was convicted for traveling to Missouri from Illinois with the intention of gambling. He
challenged the search warrant. Warrant was based on: 1) The FBI had tracked DF for 5 days, during
four of which he traveled from Illinois to a certain apartment house in Missouri, and on one day he
was tracked to a specific apartment; 2) 2 phone numbers were associated with the specific
apartment; 3) The government officials stated that this person was a known bookie; and 4) A reliable
informant told the FBI that DF was a bookie and used the 2 phone numbers associated with the
apartment in Missouri.
b. Issue: Whether the informants tip provide probable cause.
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c. Holding: No. Informants tip does not provide probable cause for a search warrant if the tip (1)
does not state reasons why the informant is reliable and (2) does not include specifics regarding the
facts known by the informant in sufficient detail so that the Magistrate may independently judge the
validity of the informants information.
d. Rationale: In this case, there are no facts provided in the informant's tip to explain why the
informant thought D was involved in gambling. Also the affiant-officers failed to support their claim
that their informant was "credible" or his information reliable.
e. Aguilar-Spinelli Test. The informant must:
i. Declare the basis of knowledge or basis of information the particular means by which he
came by the information. He can do so by declaring either:
1) That he has himself seen or perceived the fact or facts asserted, or
2) That his information is hearsay, but there is a good reason for believing it
ii. Provide facts sufficiently establishing either the veracity of the affiants information, or,
alternatively, the reliability of the informants report
f. Notes:
i. Why did the Court adopt the two-pronged test? What is so wrong in that the police search
our homes with a warrant, even if they are nice?
1) In our society, people do not expect the government to come in and search our
houses, regardless of whether there is something or not in the house.
2) The test might help define what judges must require from the officers and at the same
time protect the Court from being overturned because of an unsubstantiated warrant.
ii. Spinelli constitutes a significant development of the doctrine in Aguilar; Aguilar dealt only
with hearsay alone, while Spinelli involved a factual mixture of hearsay and police
investigation. The 2 together gave rise to the Aguilar-Spinelli two-pronged test.
3. Illinois v. Gates (1983) (Going back totality of circumstances, Spinelli only a factor)
a. Facts:
i. Police received an anonymous letter stating that the DFs made their living by trafficking in
drugs. It set forth a modus operandi of how they obtained the drugs and gave dates for the
next purchase. It indicated that DF had $100,000 worth of drugs stored in their house.
ii. Police were able to confirm that DFs activities were as predicted in the letter, i.e., the wife
drove her car to Florida and checked into a room and that the husband had reservations to fly
to Florida. Police surveillance confirmed that the couple and car headed north the day after
the husband arrived in Florida.
iii. Based on this information, a search warrant was issued. The car search revealed marijuana,
and the search of D's house revealed drugs, weapons, and other contraband.
b. Procedure: Illinois Supreme Court suppressed the evidence because the search warrant was based
on a confidential informant's tip that did not satisfy the Aguilar-Spinelli "veracity" and "basis of
knowledge" prongs for probable cause.
c. Issue: Is an anonymous letter alleging criminal activity with detailed modus operandi, coupled with
a policeman's affidavits confirming activity conforming to aspects of the modus operandi, sufficient
to constitute probable cause even if Aguilar-Spinelli test is not satisfied?
d. Holding: Yes. Court abandoned the rigid Aguilar-Spinelli two-pronged test and adopted a
totality-of-the-circumstances approach. Informant's recitation of detailed facts, though relating to
innocent activities, when corroborated by observation by police officers, afforded probable cause to
believe that respondents had drugs in their possession.
e. Rationale: The informant's veracity, reliability, and basis of knowledge are all highly relevant
considerations in the totality-of-the-circumstances analysis. But strong evidence as to one prong can
make up for the weakness on the other prong.
f. Notes:
i. Gates adopts a totality of the circumstances approach. To describe what it entails, the
Court says 2 things:
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The task of the issuing magistrate is simply to make a practical, common-sense

decision whether, given all the circumstances set forth in the affidavit before him,
including the "veracity" and "basis of knowledge" of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a crime will be
found in a particular place. And the duty of a reviewing court is simply to ensure that
the magistrate had a substantial basis for concluding that probable cause existed.
2) An affidavit must provide the magistrate with a substantial basis for determining the
existence of probable cause
Why did the Court eliminate the Aguilar-Spinelli rule?
1) Majority said that the Aguilar-Spinelli test was being over-technically applied and the
magistrates were over broadly denying warrants
2) The informants do not always fit both parts of the test
3) Officers would rather take their chances and conduct a warrantless search, expecting
to fall under one of the exceptions, rather than going to a judge to get a warrant
4) Court is almost saying that this test is too difficult for the people to follow
What are the protections afforded by the new rule?
1) Remember Prof. Ronners example of student accusing her of dealing drugs, because
she failed the student, based on normal conduct but describing specific details
about her. Does the new test afford protection against untrue assertions?
Despite Gates, a number of state courts continue to adhere to the Aguilar-Spinelli doctrine
State courts are free to grant their citizens the greater privacy and liberty protection afforded
by the Aguilar-Spinelli two-pronged test.
Massachusetts v. Upton, 466 U.S. 727 (1984)
1) Court explained that the SC had not merely refined or qualify the two-pronged test.
Rather, the court rejected it as hyper-technical and divorced from the factual and
practical considerations of everyday life on which reasonable and prudent men, not
legal technicians, act.
1)

ii.

iii.

iv.
v.

C. THE NATURE OF PROBABLE CAUSE OBJECTIVE TEST

1. Whren v. US (1996)
(Probable Cause is Objective Analysis)
a. Facts: Officers saw DFs car stop 20 seconds in a high drug area. It then made a right turn without
making a turn signal and then drove off at unreasonable speed (traffic violations). They stopped
the car and as one officer walked to the car, he spotted 2 large plastic bags of drugs and arrested DFs.
b. DFs Arguments: Officers traffic-violation ground for stopping the truck was pretextual. What the
officer really wanted was to conduct investigation of a crime the officers had no probable cause for.
The test should be whether a police officer, who acted reasonably, would have stopped the car for the
given reason
c. Holding: The temporary detention of a motorist upon probable cause to believe that he has violated
the traffic laws does not violate the Fourth Amendment's prohibition against unreasonable seizures,
even if a reasonable officer would not have stopped the motorist absent some additional law
enforcement objective
d. Rationale:
i. Temporary detention of individuals during the stop of an automobile by the police, even if
only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within
the meaning of this provision. As a general matter, the decision to stop an automobile is
reasonable where the police have probable cause to believe that a traffic violation has
occurred; subjective intentions play no role in ordinary, probable-cause 4th Amendment
analysis.
e. Notes:
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i. Scalia believes that the 4th Amendment does not protect against racial discrimination, the
Equal Protection Clause does. Therefore, he says, if an officer is using racial profiling, you
can bring a 1983 action in civil court. However, the Equal Protection Clause is inefficient
and impractical because:
1) You must prove that the officer had intent to discriminate it is very hard to prove it.
2) Victims of such conduct dont file a suit for this because they feel they dont have the
time, resources, etc, to conduct a case where the police didnt find anything
3) Most dont know it exists
4) If the person lives in a high crime zone, is it wise for you to bring an action against
the police? Usually, that person would not like to be the person that caused the police
to get mad at the neighborhood

IV. SEARCH WARRANTS

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A. GENERAL CONSIDERATIONS
1. Fourth Amendment text does not explicitly demand a warrant to search or to seize.
2. Also, historical origins of the Amendment do not reveal a concern with threats posed by warrantless
searches or seizures. However, it does reveal that it was not the prospect of warrantless searches and
seizures, but, rather, the abusive use of warrants to search and seize, that troubled the Framers of the
Constitution.
3. The second clause of the Fourth Amendment the warrant clause was designed to prevent the threats
and eliminate the abuses.
4. The SC has also discerned certain implicit restrictions upon the issuance and execution of warrants. The
warrant must reasonable in its
a. Issuance
i. Neutral detached magistrate (Johnson, Connally, Coolidge)
ii. Probable cause
1) Judged in light of the information available to the officers at the time they obtained
the warrant (Garrison)
iii. Particular place to be searched (Garrison)
iv. Particular things to be seized (Andersen, Groh)
b. Execution:
i. Whether the officers' failure to realize the over-breadth of the warrant was objectively
understandable and reasonable (Garrison)
ii. Knock and announce (Wilson)
B. WARRANT REQUIREMENTS
1. The Neutral and Detached Magistrate Requirement
a. Johnson v. US (1948)
i. Facts: Police received information from a confidential informer that unknown persons were
smoking opium in a hotel. They went to there and recognized the strong odor of burning
opium, which led them to DFs room. Officers knocked on the door, DF let them in and the
police talked to her, and asked her about the opium smell, which defendant denied noticing.
The officers arrested her and searched the room, turning up incriminating opium and
smoking apparatus.
ii. Issue: Whether police needed a warrant to enter the room
iii. Holding: Yes.
iv. Rationale:
1) Entry to defendants living quarters was demanded under color of office. It was
granted in submission to authority rather than as an understanding and intentional
waiver of a constitutional right.
2) At this time, the officers needed evidence which a judge might have found to be
probable cause for a search warrant and get the warrant from him.
3) This was not a search incident to an arrest because the officers did not have probable
cause to arrest before entering the room and even if they did, there were no exigent
circumstance to enter.
4) 4th Amendments protection consists in requiring that those inferences be drawn by a
neutral and detached magistrate instead of being judged by the officer engaged in the
often competitive enterprise of ferreting out crime. Police cannot make assumptions
to what a judge would decide, because it would reduce the 4th Amendment to nullity
and leave the people's homes secure only in the discretion of police officers.
But look at the Good Faith Exception
v. Rules: When the right of privacy must reasonably yield to the right of search is to be
decided by a judicial officer, not by a policeman or government enforcement agent. An
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officer gaining access to private living quarters under color of his office and of the law must
then have some valid basis in law for the intrusion.
vi. Per se Rule: Police need a warrant to search, especially if it is in a home. Belief, however
well founded, that an article sought is concealed in a dwelling house furnishes no
justification for a search of that place without a warrant. Such searches are held unlawful
notwithstanding facts unquestionably showing probable cause.
b. Connally v. Georgia (1977) magistrate who received $5 for issuing a warrant was not constitutionally
qualified.
c. Coolidge v. New Hampshire (1971) The individual must also not be affiliated with law enforcement.
Warrant issued by state Attorney General in his capacity as a justice of the peace was
unconstitutional.
d. While individuals that issue the warrants need not be trained lawyers, they must be capable of
determining whether probable cause exists for the arrest or search.
2. Probable Cause Facially Sufficient Affidavit (look at section on Probable Cause)
a. A warrant is not validly issued unless it is supported by probable cause. Probable cause does not
require certainty; a fair probability will suffice. Consequently, a probable cause showing is not
invalidated by the fact that the conclusions it supports turn out to have been mistaken.
b. A warrant is subject to a Fourth Amendment challenge if the officer supplying the basis for the
warrant intentionally or recklessly furnishes false information to the issuing magistrate.
i. In the event that at the hearing the allegation of perjury is established by a preponderance of
the evidence, and, with the affidavits false material set to one side, the affidavits remaining
content is insufficient to establish probable cause, the search warrant must be voided and the
fruits of the search excluded to the same extent as if probable cause was lacking on the face
of the affidavit.
3. Particular Description of Things to be Seized
a. Andersen v. Maryland (1976)
i. Facts: DF acting as a settlement defrauded the purchase of some land. The investigators
obtained warrants to search DFs offices. The warrants listed specified items pertaining to
Lot 13T to be seized and every item finished with the phrase: "together with other fruits,
instrumentalities and evidence of crime at this [time] unknown." At trial, a number of the
seized items (including documents pertaining to a lot other than Lot 13T but located in the
same subdivision and subject to the same liens as Lot 13T) were admitted in evidence
ii. Issue: Whether the descriptive terms of the search warrants were so broad as to make them
impermissible general warrants, in violation of the Fourth Amendment
iii. Holding: No. The "together with" phrase must be read as authorizing only the search for and
seizure of evidence relating to the crime of false pretenses with respect to Lot 13T.
iv. Rule: General warrants are prohibited by the Fourth Amendment, since it requires particular
description of the things to be seized; nothing is left to the discretion of the officer executing
the warrant.
v. Notes:
1) The warrant did not se forth the list of the contraband and did not say that it would
adopt and incorporate the list in the application
2) There is a balance. On one hand, you dont want to give a warrant so broad that
would equate to warrantless. However, on the other hand, you want to give the law
enforcement some leeway to find evidence in such complex matters.
3) Should search warrants that contain both sufficiently particular and too general
sections be treated as severable and, therefore, partially valid, or should they be
considered wholly invalid due to the general portion.
SC has not addressed the question, but see

12

1. US v. Kow (9th Cir. 1995) warrant could not be severed when the
valid part of the warrant was a relatively insignificant part of a search
that was otherwise invalid
2. US v. Brown (10th Cir. 1993) warrant contained language which was
overbroad, but that it could be severed from the rest of the valid
warrant
3. US v. George (2d Cir. 1992) warrant could be severed but severance
would not be appropriate if no portion of the warrant was sufficiently
particularized
b. Groh v. Ramirez (2004)
i. Facts: Although the application described the contraband that was sought (automatic
firearms, automatic weapon parts, destructive devices, and receipts pertaining purchase of
those items), the warrant itself did not; it only said the magistrate was satisfied with the
affidavit in order to find probable cause (but the affidavit was not attached to the warrant
either).
ii. The search uncovered no illegal weapons or explosives but the owners of the ranch filed a
1983 civil action claiming violation of Fourth Amendment rights.
iii. Holding: Warrant was invalid and that the search was unreasonable because the warrant
itself did not specify the items to be searched nor had attached the affidavit.
iv. Reasoning: 4th Amendment requires particularity in the warrant, not in the supporting
documents. Furthermore, the warrant did not incorporate other documents by reference, nor
did either the affidavit or the application accompany the warrant.
v. Rule: Searches whose only defect is a lack of particularity in the warrant are presumptively
unreasonable.
1) Unless the particular items described in the affidavit are also set forth in the warrant
itself (or at least incorporated by reference, and the affidavit present at the search),
there can be no written assurance that the Magistrate actually found probable cause to
search for, and to seize, every item mentioned in the affidavit.
2) A particular warrant also assures the individual whose property is searched or seized
of the lawful authority of the executing officer, his need to search, and the limits of
his power to search.
vi. Compare with US v. Leon and Massachusetts v. Sheppard (Good Faith Exception). The
Court makes 2 distinctions, saying that in Groh:
1) The warrant described none of the items to be seized and did not cross-referenced it
with the affidavit. It seems that this would make unreasonable any reliance on the
warrant.
2) The mere fact that the Magistrate issued a warrant does not necessarily establish that
he agreed that the scope of the search should be as broad as the affiants request. Even
though petitioner acted with restraint in conducting the search, the inescapable fact is
that this restraint was imposed by the agents themselves, not by a judicial officer.
In Sheppard, the judge had assured the officers that he would take the steps
necessary to fix the warrant to constitutional requirements. Thus, it was not
unreasonable for the police in that case to rely on the judges assurances that
the warrant authorized the search they had requested.
In this case, by contrast, officer did not alert the Magistrate to the defect in the
warrant that he had drafted, and therefore we cannot know whether the
Magistrate was aware of the scope of the search he was authorizing.
Finally, since there were no items described, it would not have been
reasonable under Leon for the officer to rely on a warrant that was so patently
defective, even if the Magistrate was aware of the deficiency.
4. Particular Description of Place to be Searched AND Reasonable Execution of the Warrant
13

a. Maryland v. Garrison (1987)

i. Facts: Officers obtained warrant for a third floor apartment. The warrant was ambiguous
based on the info that the police submitted to the Magistrate. They believed that there was
only 1 apartment on the third floor but in fact there were 2. One owned by the person owner
of the apartment in the warrant and the other by the DF. Before the officers became aware
that they were in respondent's apartment, they discovered the contraband.
ii. Issue: Whether the seizure of the contraband in DFs apartment, not described by the
warrant but reasonably believed by the police, was prohibited by the Fourth Amendment
iii. Holding: The warrant was valid when it was issued and the officers' execution of the
warrant reasonably included the entire third floor, and their conduct was consistent with a
reasonable effort to ascertain and identify the place intended to be searched
iv. Rationale/Rules:
1) Validity of the warrant must be judged in light of the information available to the
officers at the time they obtained the warrant. The discovery of facts demonstrating
that a valid warrant was unnecessarily broad does not retroactively invalidate the
warrant.
2) The validity of the search depends on whether the officers' failure to realize the overbreadth of the warrant was objectively understandable and reasonable, and it
unquestionably was. The facts available to the officers at the time suggested no
distinction between the 2 apartments on the 3rd floor.
v. Notes:
1) Dissent argued that there were 7 mailboxes and the officers rang the 7 door bells
waiting for someone to open up and let them in they should have known that it was
possible that there was more than one apartment on the third floor
2) One possible repercussion is that the police might slack off in the future and rely on
what they know or should have known at the time the warrant was issued, rather
than investigating thoroughly. Most importantly, however, this rule could be abused
and will likely result in extended searches on multi-family buildings usually
occupied by poor people and minorities.
Same effect as Atwater, Leon and Sheppard.
police may detain a person during search of residences
o limited in that it is only for warranted search and contraband

C. EXECUTING THE WARRANT

1. Knock and Announce Requirement
a. Wilson v. Arkansas (1995)
i. Facts: Police officers, in executing a search warrant, entered through an unlocked screen
door without first knocking or announcing their presence. DF asserted that the search of her
home was invalid because the police had violated the common-law principle requiring them
to announce their presence and authority before entering.
ii. Holding: The common-law knock and announce principle forms a part of the Fourth
Amendment reasonableness inquiry and a search or seizure of a dwelling might be
constitutionally defective if police officers entered without prior announcement
iii. Rationale:
1) Given the longstanding common-law endorsement of the knock and announce
practice there is little doubt that the Framers thought that whether officers announced
their presence and authority before entering a dwelling was among the factors to be
considered in assessing a searchs reasonableness
2) However, countervailing law enforcement interests may establish the reasonableness
of an unannounced entry. Examples:
the threat of physical harm to police,
14

the fact that an officer is pursuing a recently escaped arrestee, and

the existence of reason to believe that evidence would likely be destroyed if
advance notice were given

iv. Notes:
1) This is a case-by-case analysis, not a bright-line rule. Reasonableness is the key.
2. Exceptions to the Knock and Announce Requirement Entry Without Notice or by Force
a. What Justifies an Exception to the Knock and Announce Requirement?
i. Richards v. Wisconsin (1997)
1) Trial court imposed a per se exemption on cases involving felony drug investigation
2) SC reversed
Court reasoned that there were 2 serious concerns with creating exceptions:
1. Overgeneralization
2. The reasons for creating an exception in one category could, relatively
easily, be applied to others
3) Rules:
There is no per se exception to the knock-and-announce requirement, the
court must determine whether the facts and circumstances of the particular
entry justified an exception in that case
What justifies an exception to the knock and announce requirement?
1. reasonable suspicion that knocking and announcing their presence,
under the particular circumstances,
2. would be dangerous or futile, or
3. would inhibit the effective investigation of the crime by, for example,
allowing the destruction of evidence
Note: this standard (as opposed to a probable cause requirement) provides a
balance between the legitimate law enforcement concerns in the execution of
search warrants and the individual privacy interests affected by no-knock
entries.
Allowing Magistrates to issue warrants that authorize officers to enter without
knocking and announcing seems reasonable when sufficient cause to do so
reasonable suspicion that entry without prior announcement will be
appropriate in a particular context can be demonstrated ahead of time.
4) Note: The courts do not want per se rules regarding exigent circumstances
b. What if Officers Must Brake In or Damage Property?
i. United States v. Ramirez (1998)
1) Facts: Police officers entered DFs house without knocking and announcing by
braking a window in DFs garage
2) Procedure: 9th Circuit held imposed a heightened standard. The SC reversed.
3) Issue: Whether the reasonable suspicion standard applies when the entry results in
the destruction of property, or whether there is a heightened standard.
4) Holding: The reasonable suspicion in Richards does not depend on whether police
must destroy property in order to enter.
5) Rationale/Rules:
Unannounced entry is permissible based on a reasonable suspicion, and the
constitutionality of the entry is not altered by the fact that property was
damaged or destroyed during the entry.
The seizure involved in excessive or unnecessary destruction of property in
the course of a search during a no-knock entry could be constitutionally
unreasonable and could support a claim for damages (civil suit). However,
the entry itself is lawful and the fruits of the search not subject to suppression.

15

US v. Ritelli unclothed couple case where the court said the search was
reasonable because cops could have thought they were associated with the
suspects.

3. Exigent Circumstances After Knocking When can the Officers Brake In After Knocking?
a. United States v. Banks (2003)
i. Facts: Officers executing a warrant for cocaine knocked on the door and, after waiting 15 to
20 seconds, and with no indication whether anyone was home, broke open the front door
with a battering ram (D was in the shower).
ii. Procedure: Trial court denied Ds motion to suppress. The Court of Appeals reversed,
setting forth 8 factors that officers should consider in deciding when to enter and delineated 4
categories of intrusion following a knock and announcement, concluding that different
standards of reasonableness applied to each category. SC reversed.
iii. Issue: Whether the entry was constitutional where the police only waited 15 to 20 seconds to
brake in after they knocked and announced.
iv. Holding: Yes; after 15 to 20 seconds without a response, police could fairly suspect that the
cocaine would be disposed of if they were waited any longer.
v. Rules:
1) Reasonableness of warrant execution must be determined case by case based on the
totality of the circumstances
2) The identical reasonable suspicion standard dictates whether officers are exempt
from the ordinary obligation to wait before entering premises following a knock and
announcement.
3) The facts known to the police are what count in judging reasonable waiting time.
vi. Note: there are other 2 general observations from Banks:
1) When officers justify an entry after a knock and announcement on the ground that an
occupants failure to admit them fairly suggested a refusal to let them in, the
reasonableness of suspecting refusal turns on whether an occupant has had time to get
to the door.
The time needed to respond will vary with the size of the establishment.
2) The need to damage property does play a role in assessing the reasonableness of
entry in cases with no reasons to suspect an immediate risk of frustration or futility in
waiting at all.
The need to damage property is a good reason to require more patience than it
would be reasonable to expect if the door were open.
4. Scope of Execution What is the Scope of Polices Authority?
a. Although a warrant is valid, the execution of the warrant might be unreasonable because of
officers have exceeded the scope of their authority under the warrant
i. Example: warrant to search stolen computer within the house where the computer might be
found searches of places too small to fit the computer are unreasonable
b. Wilson v. Layne (1999)
i. Facts: Officers invited representatives of the media while executing an arrest warrant in a
private home. Officers did not know that the address in the papers was in fact the suspects
fathers house. They arrived and subdued the father thinking it was in fact the suspect, while
the photographer was taking numerous pictures, although none were published. The father
filed a civil suit for damages for violations of his Fourth Amendment rights.
ii. Issue: Whether the police exceeded the scope of its authority under the arrest warrant by
permitting the media to accompany them during the execution of an arrest warrant.
iii. Holding: Yes. The presence of the photographer and reporter was not related to the
objectives of the authorized intrusion. It is a violation of the Fourth Amendment for police to
16

bring members of the media or other third parties into a home during the execution of a
warrant when the presence of the third parties in the home is not in aid of the execution of the
warrant.
iv. Reasoning: This was not a case in which the presence of the third parties directly aided in
the execution of the warrant. Although the media ride-along may further the law
enforcement objectives of the police in a general sense, this is simply not enough to justify
the intrusion into a private home.
v. Rule:
1) A search that is otherwise reasonable can be rendered unconstitutional because the
scope of the search exceeds that permitted by the terms of a validly issued warrant.
2) Fourth Amendment requires that police actions in execution of a warrant be related to
the objectives of the authorized intrusion.
D. WARRANT REQUIREMENT AND SEIZURE OF PERSONS
1. Arrests in Public
a. US v. Watson (1976)
i. Facts: Postal inspector received info from a known and reliable informant that DF was
stealing credit cards from the mail and had given one to him and agreed to give him more. At
the inspectors suggestion, a meeting was arranged DF and the informant. Upon a
prearranged signal from the informant that DF had the additional cards, postal officers made
a warrantless arrest, removed him from the restaurant, and gave him Miranda warnings.
When they could not find the cards on him, DF consented to a search of his car which was
nearby and the police found the stolen credit cards there.
ii. Issue: Whether the warrantless arrest was unreasonable under the 4th Amendment
iii. Holding: No. The arrest was based on probable cause; therefore, it did not violate the
Fourth Amendment. Since the arrest comported with the Fourth Amendment, DFs consent
to the car search was not the product of an illegal arrest.
iv. Rule: An officer is permitted to arrest without a warrant for (1) a misdemeanor or felony
committed in his presence as well as (2) for a felony not committed in his presence if there
was reasonable ground for making the arrest.
v. Notes:
1) The rule permits warrantless arrest where there is probable cause, even if the officer
had adequate opportunity to procure a warrant
2) This case deals with arrest in a public place, not the home
3) Why is it different from searches? Isnt an arrest more a pervasive deprivation of
liberty and privacy? Why dont the police need a warrant? Court says because that is
how it has been done throughout history
This resembles Justice Rehnquists acceptance of Miranda in Dickerson
4) Dissent argued that in history, felonies were only the horrific crimes. Today, the
ancient rule is not good because there are so many felonies that it is just not
reasonable.
5) Gerstein v. Pugh (1975) 4th Amendment requires a judicial determination of
probable cause as a prerequisite to extended restraint on liberty following arrest.
States must provide a fair and reliable determination of probable cause as a condition
for any significant pretrial restraint of liberty, and that determination must be made by
a judicial officer either before of promptly after arrest.
6) County of Riverside v. McLaughlin (1991) Judicial determinations of probable
cause within 48 hours of arrest complies with the promptness requirement. When it
takes more than 48 hours, the burden shifts to the government to demonstrate the
existence of a bona fide emergency or other extraordinary circumstance
b. Atwater v. City of Lago Vista (2001)
17

i. Facts: DF drove her truck in Lago Vista, Texas, with her small children in the front seat.
None of them was wearing a seatbelt (misdemeanor). The officer saw the violation, stopped
her, verbally berated her, and then arrested her.
ii. Holding: 4th Amendment does not forbid a warrantless arrest for a minor criminal offense,
such as a misdemeanor seatbelt violation punishable only by a fine.
Rationale:
1) Court rejected DFs request to mint a new rule of constitutional law forbidding
custodial arrest, even upon probable cause, when conviction could not ultimately
carry any jail time and the government can show no compelling need for immediate
detention for 4 reasons:
It is hard for the police officers to apply
It would be more work deficient administration
It would flood the courts of litigation
Legislature is the appropriate body to apply such a rule
2) The arrest satisfied constitutional requirements. It is undisputed that the officer had
probable cause to believe that DF committed a crime in his presence. The officer was
authorized (though not required) to make a custodial arrest without balancing costs
and benefits or determining whether Atwater's arrest was in some sense necessary
iii. Rule: If an officer has probable cause to believe that an individual has committed even a
very minor criminal offense (traffic violation) in his presence, he may, without violating the
Fourth Amendment, arrest the offender. Standard of probable cause applies to all arrests,
without the need to balance the interests and circumstances involved in particular situations.
iv. Notes:
1) This rule might give place for police officers racial profiling. The police can choose
who to arrest and who to be lenient with.
2) Although the majority conceded that Atwaters claim to live free of pointless
indignity and confinement clearly outweighs anything the City could raise against it
specific to her case, the Court found the arrest to be reasonable because it only
required probable cause that a she had committed a crime (traffic violation), without
weighing any interests.
2. Arrests in the House
a. Warrant may be required where the police wish to arrest a person in his home in the absence of
exigent circumstances
b. Payton v. New York (1980)
Entry of the house without any warrant
i. Facts: Officers had probable cause to believe that DF had murdered (a felony) the manager
of a gas station and went to his apartment without a warrant. They knocked but no one
responded, even though there was light and music in the apartment. 30 minutes later, the
police broke the door open and found there was no one there. However, they found, in plain
view, a .30 caliber shell casing, which was seized and used at a trial against Payton. Payton
moved to suppress the evidence.
ii. Issue: Whether an arrest warrant is required for an in-house arrest
iii. Holding: Yes. Absent exigent circumstances, the 4th Amendment bars warrantless,
nonconsensual entry into a home to make a routine arrest.
iv. Rationale:
1) Physical entry of the home is the chief evil against which the 4th Amendment is
directed.
2) To be arrested in the home involves not only the invasion of the person, but also an
invasion of the sanctity of the home, which is too substantial an invasion to allow
without a warrant, in the absence of exigent circumstances, even when probable cause
is present.
18

An entry to arrest and an entry to search for and to seize property implicate the same
interest in preserving the privacy and the sanctity of the home, and justify the same
level of constitutional protection.
4) It is true that the area that may legally be searched is broader when executing a search
warrant than when executing an arrest warrant in the home. See Chimel v. California,
395 U.S. 752. This difference may be more theoretical than real, however, because
the police may need to check the entire premises for safety reasons, and sometimes
they ignore the restrictions on searches incident to arrest. But the critical point is that
any differences in the intrusiveness of entries to search and entries to arrest are
merely ones of degree rather than kind. The two intrusions share this fundamental
characteristic: the breach of the entrance to an individual's home.
5) Cops want to search professors house on Tuesday at 5pm while she is teaching then
we can get a warrant to arrest her; can they do that? No because the professor was not
there and they needed to have probable cause that she is there.
6) Review in order for a search warrant you need probable cause and that the seizable
items will be on the property at the time of the search.
3. Arrests in the Curtilage
a. US v. Santana (1975) (See Exigent Circumstances)
i. Facts: One of the DFs was standing in the doorway of her house when the police arrested
her (with probable cause) without a warrant for possessing heroin with intent to distribute.
ii. Holding: Court held that the search was ok based on the hot pursuit. However, in order to
apply the hot pursuit, the first question is whether a warrant is needed.
iii. Note:
1) Does Santana overrule the curtilage protection cases?
No. The Courts determination seems to be that, under the 4 Dunn factors, the
doorway was not curtilage.
The same could be said about Ciraolo.
2) The holding about the propriety of a warrantless arrest in Santana is arguably a
narrow one, limited by the specific facts of the case
There was no barrier or obstruction that impeded the public from seeing,
speaking to, hearing, or even touching DF as she stood in her front doorway.
When the officers stopped their vehicle in front of the home, they were a mere
15 feet from that doorway.
3) The key question is whether the person is in a public place (or open fields) in view
of the factors in Dunn.
4. Arrests in a third partys house
a. Steagald v. United States (1981)Entry of a third partys house with arrest warrant
i. Facts: Police obtained an arrest warrant for Lyons, a federal fugitive wanted for drug
charges. Based on information received from a confidential informant, DEA agents entered
Steagalds home to search for Lyons without first obtaining a search warrant for Steagalds
home. In the course of searching the home the agents found cocaine and other incriminating
evidence but did not find Lyons. Steagald was arrested on federal drug charges.
ii. Issue: Whether the police need a search warrant to enter the house of a third party while
looking for the person described in the warrant
iii. Holding: Yes. A search warrant must be obtained to look for a suspect in the home of a third
party, absent exigent circumstances or consent.
iv. Rationale:
1) Two distinct interests were implicated by the search in this case -- Lyons' interest in
being free from an unreasonable seizure and DFs interest in being free from an
unreasonable search of his home. Because the arrest warrant for Lyons addressed
3)

19

only the former interest, the search of DFs home was no more reasonable than it
would have been without any warrant.
2) With only the arrest warrant, the Magistrates determination is that there is probable
cause to arrest a person, it doesnt specify the location. DFs only protection from an
illegal search was the agents personal determination of probable cause, and not that
of a neutral and detached magistrate, to believe that the subject of the warrant was
in DFs house.
3) Otherwise, the police could search all the homes of the individuals friends and
acquaintances with only one arrest warrant.
4) A search warrant requirement under the circumstances of this case will not
significantly impede effective law enforcement efforts. An arrest warrant alone
suffices to enter a suspect's own residence, and, if probable cause exists, no warrant is
required to apprehend a suspected felon in a public place. Moreover, the exigentcircumstances doctrine significantly limits the situations in which a search warrant is
needed. And in those situations in which a search warrant is necessary, the
inconvenience incurred by the police is generally insignificant.
v. Rule: A search warrant must be obtained, absent exigent circumstances or consent, for an
officer to search for the subject of an arrest warrant in the home of a third party.
vi. Note: Payton and Steagald are related to Watson (arrest in public) in that they involve felony
arrests. However, Payton and Steagald involve the validity of warrantless entries of
dwellings to perform such searches.
vii. Standing: Would Lyons (subject of the arrest warrant) have objected to the lack of search
warrant if the police had found him in the home?
1) Probably not, Steagald was worried with the owners privacy rights, not with the
visiting arrestee. Even if he can prove that he had a legitimate expectation of privacy
under Rakas, courts would usually hold that the arrestee cannot claim any greater
protection in the house of a third party than he possessed in his own home pursuant to
Payton.

20

V.

EXCEPTIONS TO THE WARRANT REQUIREMENT

A. OVERVIEW
1. Searches and seizures inside a man's house without warrant are per se unreasonable in the absence of some
one of a number of well defined "exigent circumstances.
2. Warrant requirement is subject to few, specifically established and well-delineated exceptions:
a. Searches incident to arrest
i. The rule was stated in Chimel
ii. The rule was expanded in Robinson and in Belton
b. Exigent circumstances searches
c. Automobile doctrine searches
d. Inventory searches
e. Consent searches
f. Plain view seizures
3. For each, 3 aspects should be identified:
a. WHY The underlying rationale of the exception
b. WHAT NEEDS TO BE SHOWN The precise showing necessary to invoke the exception
c. SCOPE The scope of the warrantless authority conferred by the exception
Exception
Search Incident to Arrest
Exigent Circumstances

EXCEPTIONS TO THE WARRANT REQUIREMENT

Rationale
Showing

Scope

Its unrealistic to expect

officers to stop in the
middle of a chase to get a
warrant. Suspect could
escape, destroy evidence or
create threat to public
safety

Automobile Searches
Inventory Searches
Consent Searches
Plain View Seizures
Stop and Frisk
B. SEARCHES INCIDENT TO ARRESTS
1. Spatial Limitations
a. Chimel v. California (1969) Area within arrestees immediate control
i. Facts: Officers, armed with an arrest warrant for an alleged burglary but not a search
warrant, were admitted to DFs home by his wife, where they awaited for him. When he
entered he was served with the arrest warrant. Although DF denied the officers request to
21

look around, they conducted a search of the entire house on the basis of the lawful arrest,
and seized evidence of burglary
ii. Issue: Whether the officers could perform a search, and if so, if they could do it of the entire
house as a constitutionally valid search incident to Ds arrest.
iii. Holding: Assuming the arrest was valid, the warrantless search of DFs house cannot be
constitutionally justified as incident to that arrest. The scope of the search here was
unreasonable under the Fourth and Fourteenth Amendments, as it went beyond DFs person
and the area from within which he might have obtained a weapon or something that could
have been used as evidence against him, and there was no constitutional justification, in the
absence of a search warrant, for extending the search beyond that area.
iv. Rationale: There is no justification for routinely searching any room other than that in
which an arrest occurs or for searching through all the desk drawers or other closed or
concealed areas in that room itself
v. Rule: Officer may search:
1) the arrestees person to discover and remove weapons and to seize evidence to
prevent its concealment or destruction, and
2) the area within arrestees immediate control, meaning the area from which he might
gain possession of a weapon or destructible evidence
vi. Note: This is a 2 prong test:
1) Weapons that could endanger officers
2) Destructibility of evidence
b. New York v. Belton (1981) Area where the DF is a recent occupant
i. Facts: DF was a passenger in an automobile that sped by a police officer at an excessive rate
of speed. In the process of discovering that none of the occupants owned the car or was
related to the owner, the policeman smelled burnt marihuana and saw on the floor of the car
an envelope that was marked Supergold, a name for marihuana. He directed the occupants
to get out of the car and arrested them for unlawful possession of marihuana. After searching
each of the occupants, he searched the passenger compartment of the car, found a jacket
belonging to DF, unzipped one of the pockets, and discovered cocaine.
ii. Holding: The items seized in the warrantless search of the vehicle's passenger compartment,
incident to defendant's lawful custodial arrest, were justifiably seized because of the
exigencies (lawful custodial arrest).
iii. Rationale:
1) The search of respondent's jacket was a search incident to a lawful custodial arrest,
and hence did not violate the Fourth and Fourteenth Amendments.
2) The jacket, being located inside the passenger compartment of the car, was within
the arrestee's immediate control within the meaning of Chimel.
3) Not only may the police search the passenger compartment of the car in such
circumstances, they may also examine the contents of any containers found in the
passenger compartment. And such a container may be searched whether it is open or
closed, since the justification for the search is not that the arrestee has no privacy
interest in the container but that the lawful custodial arrest justifies the infringement
of any privacy interest the arrestee may have.
iv. Rules: When a policeman has made a lawful custodial arrest of the occupant of an
automobile, he may, as a contemporaneous incident of that arrest, search (1) the passenger
compartment of that automobile and (2) the contents of any containers found within the
passenger compartment. He can search where the passenger was a recent occupant.
1) Passenger compartment is always within the arrestees immediate control
2) Containers in the arrestees grab area can be opened automatically
v. Dissent: The Court today turns its back on the product of the analysis in Chimel, formulating
an arbitrary "bright-line" rule applicable to "recent" occupants of automobiles that fails to
22

reflect Chimel's underlying policy justifications. The Chimel exception to the warrant
requirement was designed with two principal concerns in mind: the safety of the arresting
officer and the preservation of easily concealed or destructible evidence. Chimel standard
permits police officers who have effected a custodial arrest to conduct a warrantless search
"of the arrestee's person and the area 'within his immediate control' -- construing that phrase
to mean the area from within which he might gain possession of a weapon or destructible
evidence." When the arrest has been consummated and the arrestee safely taken into custody,
the justifications underlying Chimel's limited exception to the warrant requirement cease to
apply: at that point there is no possibility that the arrestee could reach weapons or
contraband.
vi. Notes:
1) Once arrested, the officer may search any area in which the arrestee was a recent
occupant. Although the passengers were outside from the car while they were
arrested, the court allowed the search of the car
2) 2 ways to look at this:
It only applies to cars
Intellectual Analysis Cases are stare decisis that can be applied to future
situations.
1. Extension of Rule 1: Passenger compartment is always within the
arrestees immediate control although it would be in obvious
conflict with Chimels case-by-case approach to an arrestees area of
immediate control
o Ex: search of dresser drawer in a motel room could be
deemed as within the arrestees control area, even though the
arrestee could be handcuffed and surrounded by officers at the
time of the search
2. Extension of Rule 2: Containers in the arrestees grab area can be
opened automatically although in conflict with Chadwick (search of
arrestees footlocker not justified because it had been brought to the
police station; there was no risk of destruction of evidence or peril to
officers)
o Container within arrestees immediate control even though the
arrest did not occur in or near a car
o Briefcases, even where a car is not involved
o What if someone has just left the house and is arrested outside
the house can Belton be applied to search the house where
the arrestee has been a recent occupant?
3) Purpose behind Belton to create a bright-line rule to tell the police how to behave
even if it means to sacrifice part of the 4th Amendment rights.
vii. Additional Notes:
1) The Belton majority asserted that it was providing a bright-line rule to guide
operation of the Chimel doctrine in the context of arrests of automobile passengers.
However, it doesnt clearly delineate the spatial and temporal boundaries of the
search.
c. Thornton v. United States (2004) Area within arrestees immediate control
i. Facts: Officer approached Thornton after he got out of his car and found marijuana in his
pocket. Officer searched the car after he had been handcuffed and placed in a police car.
ii. Issue: Whether the Belton rule applies when the officer first makes contact with the arrestee
after the DF has stepped out of his vehicle
iii. Holding: The span of the area generally within the arrestees immediate control is not
determined by whether the arrestee exited the vehicle at the officers direction, or whether the
23

officer initiated contact with him while he remained in the car. An arrestee is no less likely to
attempt to lunge for a weapon or to destroy evidence if he is outside of, but still in control of,
the vehicle.
iv. Rationale: The Court said that an arrestees status as recent occupant may turn on his
temporal or spatial relationship to the car at the time of the arrest and search. It declined to
address Thorntons argument that it should limit the scope of Belton to recent occupants who
are within reaching distance of the car, but intimated that his concession that he was in
close proximity, both temporally and spatially, to his vehicle when he was approached by the
officer made it likely that Thornton was within reaching distance at the time of the arrest.
v. Concurrence (Scalia)
1) Thought that the search could not have been justified to protect officer safety or
prevent the concealment or destruction of evidence, and agreed that Belton had led to
the approval of purely exploratory searches of vehicles during which officers are
allowed to rummage around in a car to see what they might find. He suggested that
if the Court was going to continue to allow Belton searches on stare decisis grounds,
it should at least be honest about why they are doing so.
2) Scalia would limit the Belton searches to cases where it is reasonable to believe that
evidence relevant to the crime of arrest might be found in the vehicle.
d. Washington v. Chrisman (1982) Post-Arrest Movements
i. Facts: Officer saw a man who appeared underage carrying liquor. He asked for id and the
DF said it was in his dormitory room. DF agreed that the officer could accompany him while
he went to get it. As DF entered the room, the officer stayed in the doorway and saw the
DFs roommate become nervous. He entered the room and saw seeds and a small pipe used
in marijuana smoking. The officer obtained consent to search the room and found LSD.
ii. Holding: Officer could enter the dormitory room of an arrested student without a warrant
because it is not unreasonable under the 4th Amendment for a police officer to monitor the
movements of an arrested person following the arrest.
iii. Rationale: Insofar as the monitoring requires a warrantless entry into a private place, an
exception is justified by the officers compelling needs to ensure his own safety and the
integrity of his arrest.
iv. Notes: Chrisman did not decide whether the rule would apply if an officer requested or
commanded an arrestee to enter a private area, or whether an officer has any authority to
search areas nearby within the immediate control of the arrestee who has entered the
private place while exercising the authority to monitor an arrestees movements.
2. Searches of the House Incident to Arrest (with an arrest warrant but not a search warrant)
a. Payton v. New York (1980)
i. Police need a warrant to arrest a DF in the home. But once they get the arrest warrant, they
can apply the Chimel, the extension of Belton, Thornton, and Chrisman doctrines to search
the house.
ii. Notes:
1) Why is an arrest warrant enough and not a search warrant?
2) While the officers are allowed to enter the house with an arrest warrant, they are
limited by Chimmel, Belton, etc.
3. Searches of the Person Incident to Arrest
a. Chimel v. California (1969)
i. Rule: Arresting office can search the arrestees person to
1) discover and remove weapons and
2) to seize evidence to prevent its concealment or destruction
b. United States v. Robinson (1973)
i. Facts: DF was pulled over by a police officer. The officer had probable cause to arrest
defendant for driving after his license had been revoked. He then made a full-custody arrest
24

ii.
iii.

iv.

v.

for such offense. In accordance with prescribed procedures, he then searched defendant and
felt an object under defendant's coat. The officer reached into the coat and pulled out a
cigarette package. He felt there was something in the package that was not cigarettes. The
officer opened the package and found what was later determined to be heroin.
Holding: In the case of a lawful custodial arrest a full search of the person is not only an
exception to the warrant requirement of the Fourth Amendment, but is also a reasonable
search under that Amendment.
Rationale:
1) A more extensive exploration of the suspect's person was authorized. This was to
protect the officer, but also to preserve evidence. The fact that defendant was to be
arrested for a driving offense did not lessen the officer's right to search defendant.
2) A search incident to a valid arrest is not limited to a frisk of the suspect's outer
clothing and removal of such weapons as the arresting officer may, as a result of such
frisk, reasonably believe and ascertain that the suspect has in his possession, and the
absence of probable fruits or further evidence of the particular crime for which the
arrest is made does not narrow the standards applicable to such a search.
3) A custodial arrest of a suspect based on probable cause is a reasonable intrusion under
the Fourth Amendment and a search incident to the arrest requires no additional
justification. Whether or not there was present one of the reasons supporting the
authority for a search of the person incident to a lawful arrest need not be litigated in
each case.
4) Since the custodial arrest here gave rise to the authority to search, it is immaterial that
the arresting officer did not fear the respondent or suspect that he was armed.
Dissent: In holding that "the fact of the lawful arrest" always establishes the authority to
conduct a full search of the arrestee's person, regardless of whether in a particular case "there
was present one of the reasons supporting the authority for a search of the person incident to
a lawful arrest," the majority's departs from our long tradition of case-by-case adjudication of
the reasonableness of searches and seizures under the Fourth Amendment
Notes: How do you reconcile this case with the 2 prongs of Chimel?
1) The only way to do it is to say that the justification is based on a reduced expectation
of privacy caused by the arrest.
The officer even conceded that the thing he felt was not a weapon. Moreover,
the search had nothing to do with the offense and the offense is not one that
requires search and seizure.
The Court cited Chimel as supporting its decision: it is entirely reasonable for
the arresting officer to search for and seize any evidence on the arrestee's
person in order to prevent its concealment or destruction.
However, in Chimel the arrest was based on burglary and therefore the 2
justifications applied. Here, DF was arrested for driving with a revoked
license, although the justification for search and seizure of weapons might
apply, there is nothing to support search for evidence that could be concealed.

vi. Gustafson v. Florida (1973)

1) DF tried to distinguish

Robinson on the basis that in his case there were no police

regulations requiring the officer to take him into custody and no police policies
requiring a full-scale body search of an arrestee.
2) The Court refused to follow that view and held that a warrantless search of the
arrestee equivalent to that authorized by Robinson was reasonable because the officer
had probable cause to arrest and he lawfully effectuated the arrest and placed the
defendant in custody
3) Rule: Police procedures are not dispositive.
4. NO Search Incident to Citation
25

a. Knowles v. Iowa (1998)

i. Facts: Officer stopped D for speeding. Iowa law authorized officer to either issue a citation
or arrest and if he decided to issue the citation, it also authorized him to conduct a search of
the same magnitude that he could conduct incident to the arrest of the offender. The officer
decided to give the driver a citation and, pursuant to the statute and without any articulable
reason to believe that anything incriminating would be found, he searched the driver and the
car. The officer discovered marijuana and a pot pipe under the passenger seat. DF
challenged the search claiming that the search incident to citation authorized by the statute
violated the 4th Amendment.
ii. Holding: The Court refused to extend the bright-line rule of Robinson to a situation where
the concern for officer safety is not present to the same extent and the concern for destruction
or loss of evidence is not present at all.
iii. Rationale:
1) There are 2 rationales for the search incident to arrest exception: 1) the need to disarm
the suspect in order to take him into custody, and 2) the need to preserve evidence for
later use at trial. Neither of these rationales for the search incident to arrest exception
is sufficient to justify a full search incident to a traffic citation.
2) While the concern for officer safety is not absent in the case of a routine traffic stop,
that concern does not by itself justify the intrusion attending a full field-type search.
3) Moreover, the need to discover and preserve evidence cannot justify a full search
incident to a citation for speeding because once a driver is stopped for speeding and
issued a citation, all the evidence necessary to prosecute that offense has been
obtained. No further evidence of excessive speed is going to be found on his person
or in the car.
4) As for destroying evidence of other crimes, the possibility that an officer would
stumble onto evidence wholly unrelated to the speeding offense seems remote.
5) But arent these the same concerns that the Court oversaw in Robinson???
iv. Rule: There can be no search incident to a citation.
v. Notes:
1) Atwater, however, restricts the significance of the Knowles holding because Atwater
authorizes arrests for all minor offenses. Therefore, an officer can avoid the strictures
of Knowles by arresting a minor offender. Moreover, Whren would allow this, even if
the officer decided to arrest an individual in order to exercise the authority to search
incident to that arrest, since it holds that subjective motives of the officer are
irrelevant and the arrest is good as long as there is probable cause violation of a law
provides that.
C. EXIGENT CIRCUMSTANCES
1. General Considerations
a. Here, courts address situations in which an officer had probable cause to search, but had insufficient
time to seek a warrant.
b. The exigent circumstances only excuse the officer from getting a Magistrates determination that
there is probable cause; it does not permit a search in the absence of probable cause.
c. The exception applies to searches and arrests.
d. Therefore, for example, although Payton requires a warrant to arrest a person in the home, the
exigent circumstances excuse the requirement.
2. Warden v. Hayden (1967) Hot Pursuit Exception (Decided before Chimel)
a. Facts: The police were informed that an armed robbery had occurred and that the suspect had
thereafter entered a certain house. Minutes later they arrived there and the DFs wife had no
objection to their searching the house. Some officers arrested DF in an upstairs bedroom. Others
simultaneously searched the first floor and basement and found weapons in a flush tank; they found
26

the clothes that DF had wore during the robbery in a washing machine while allegedly looking for a
man or the money, and found some ammunition.
b. Issue: Is a search warrant necessary to enter a house to search for a suspect that may have just been
involved in an armed robbery, and to conduct any subsequent search if incidental to the arrest.
c. Holding: The exigencies of the situation, in which the officers were in pursuit of a suspected armed
felon in the house which he had entered only minutes before they arrived, permitted their warrantless
entry and search.
d. Rationale:
i. Speed here was essential, and only a thorough search of the house for persons and weapons
could have insured that DF was the only man present and that the police had control of all
weapons which could be used against them or to make an escape.
ii. The permissible scope of search must, at least, be as broad as may reasonably be necessary to
prevent the dangers that the suspect at large in the house may resist or escape.
iii. The seizure of clothing occurred prior to or immediately contemporaneous with the DFs
arrest, as part of an effort to find a suspected felon, armed, within the house into which he
had run only minutes before the police arrived.
e. Rule: A warrant is not necessary if the exigencies of the situation make that course imperative, and
items which may relate to the crime can be seized.
f. Notes:
i. What allows the police to continue the search once he is found?
1) Police can find another exception, i.e., can search the immediate area for weapons.
ii. The police go in without an arrest warrant, search the house, go through the washing
machine, the flush tank, the rooms, under the mattress etc. Why is this right?
1) The home is a shield but not a sword once you flee into the house, the protections of
the warrant and its consequences should yield to police and societys interest.
2) Fourth Amendment protects from unreasonable searches and seizures, it protects the
innocent from the intrusion of the police. However, in the cases of hot pursuit, where
the pursuit is so close in time must yield and create a narrow corridor to enable the
police to catch crime
3) The court probably weighted the interests of society and individuals and concluded
that in hot pursuit cases, the balance should tip in favor of society.
iii. Payton does not apply to hot pursuits
iv. Although one may argue that Chimels restricts the meaning of this opinion by demanding
that the search could only be carried out in the areas of immediate control, one could argue
on the other hand that Belton re-established Wardens authority on the basis that they can
search the area where DF was a recent occupant. Because of the exigency in circumstances,
the police could reasonably believe that the DF was in many places of the house.
v. This is the classic hot pursuit exception the police is actually in process of chasing him and
went in the house a few minutes after the suspect
vi. Richards applies here the exigency in the circumstances excuses the police from knocking
and announcing justified by a reasonable suspicion that harm will occur if officers knock
and announce their presence and identity.
g. Policy: In a situation of a fleeing felon, and the police are literally following them, the suspect
cannot hide in his house.
h. Additional Research Based on the Book References:
i. Material considerations in considering whether the presence of an exigent circumstance is
present justifying a warrantless entry:
1) A grave offense is involved, particularly one that is a crime of violence (rather than
complacent crimes, like gambling)
27

The suspect is reasonably believed to be armed. Delay in arrest of an armed felon

may well increase danger to the community meanwhile, or to the officers at time of
arrest (this was present in Warden).
3) That there is, not merely the minimum of probable cause, but a clear showing of
probable cause, including reasonably trustworthy information to believe that the
suspect committed the crime involved (could be from reliable informant)
4) Strong reason to believe that the suspect is in the premises being entered (Warden).
5) A likelihood that the suspect will escape if not quickly apprehended.
6) The circumstance that the entry, though not consented, is made peaceably. Forcible
entry may in some instances be justified. But the fact that entry was not forcible aids
in showing reasonableness of police attitude and conduct. The police, by identifying
their mission, give the person an opportunity to surrender himself without a struggle
and thus to avoid the invasion of privacy involved in entry into the home.
7) Whether it is made at night
On the one, the late hour may underscore the delay (and perhaps
impracticability of) obtaining a warrant, and hence serve to justify proceeding
without one.
On the other hand, the fact that an entry is made at night raises particular
concern over its reasonableness, and may elevate the degree of probable cause
required, both as implicating the suspect, and as showing that he is in the
place entered
3. Welsh v. Wisconsin (1984) (The most important Exigent Circumstances Case limitations)
a. Facts: DF had driven a car while intoxicated; he swerved off the road and into an open field, and
abandoned his vehicle to walk to his house on foot. The police found the car and obtained the Ds
name and address from the vehicles registration. They went to his house, broke in and arrested him.
b. SC imposed a significant restriction upon the application of the exigent circumstances exception to
entries of homes, it said:
c. Rule: It is difficult to conceive of warrantless home arrest that would not be unreasonable under the
Fourth Amendment when the underlying offense is extremely minor. Application of the exigentcircumstances exception in the context of a home entry should rarely be authorized when there is
probable cause to believe that only a minor offense has been committed.
d. Welsh Prongs Analysis
i. Hot Pursuit: The governments hot pursuit contention was unsuccessful because there was
no immediate and continuous pursuit of the DF from the scene of the crime.
ii. Danger (Risk) of and Destruction of Evidence: The public argument failed because the
suspect had abandoned his car at the scene of the accident and posed little remaining threat to
public safety.
iii. Gravity of Offense = States Interest: Although the court didnt deny that the need to
preserve dissipating evidence could create an exigency, it said that since DUI was a noncriminal, civil forfeiture offense, for which no imprisonment was possible, the Legislature
did not have a major interest in arresting such offenders. Therefore, the court concluded that
an exigency based on the destruction of evidence could not justify the warrantless entry of
the Ds home.
e. Notes:
i. Isnt it like Warden? Police caught someone
1) What the court said, was that the prongs were not so strong that the individuals
interest should yield to the governments interest.
ii. The hot pursuit doctrine does not apply when the DF was never aware that he was being
pursued by the police until he got arrested.
2)

28

iii. The most relevant factor here is the risk of destruction of evidence (the intoxication).
However, the Court said that the States interest was so minor that it the police was not
excused from obtaining a warrant.
iv. Welsh Prongs:
1) Hot pursuit
2) Danger/destruction of evidence
3) Gravity of offense = States interest
4. US v. Santana (1975)
a. Facts: Officers approached DF while she was standing in the doorway of her home. They had
probable cause to arrest her. When DF saw the officers, she quickly retreated into her house. The
officers told her she was under arrest (when she was at the doorway) and then followed her into the
house and caught her.
b. Holding: Officers were permitted to follow DF into the house because they were in hot pursuit.
DF was subject to warrantless arrest under the Watson holding (warrantless arrest in public place)
and the hot pursuit arose when she ran inside.
c. Rationale:
i. Hot pursuit doctrine serves to ensure that a suspect may not defeat an arrest which has been
set in motion in a public place by the expedient of escaping into a private place. By
retrieving into her house, DF could not defeat an otherwise proper arrest that had been set in
motion in a public place. The fact that the pursuit ended almost as soon as it began did not
render it any less a hot pursuit.
ii. DF was in a public place while standing in the doorway.
1) This was not an area where she had any expectation of privacy. Further, she was not
merely visible to the public but was exposed to public view, speech, hearing, and
touch as if she had been standing completely outside her house.
2) Thus, when the police sought to arrest her, they merely intended to make a
warrantless arrest in a public place upon probable cause and did not violate the 4th
Amendment
d. Note: See Oliver and Dunn in Arrests in the Curtilage
5. Vale v. Louisiana (1970) (Decided before Chimel)
a. Facts:
i. Police officers, possessing warrants for DFs arrest, were watching the house where he
resided. They observed what they suspected was an exchange of narcotics between a man in
a car and DF outside of the house after DF had gone into the house and brought something
out to the man in the car. They arrested DF in front steps and told him they would search the
house. Within three minutes DFs mother and brother returned home carrying groceries and
they were informed of the arrest. The search revealed a quantity of narcotics.
b. Procedure: The lower court held that the search of the house did not violate the 4th Amendment
because it occurred in the immediate vicinity of the arrest and was substantially contemporaneous
with it.
c. Issue: Whether the search of the house was justified by the arrest that took place in the front steps
of the house.
d. Holding: No. The Court declined to hold that an arrest on the street outside of defendant's dwelling
justified a warrantless search of defendant's dwelling as providing its own "exigent circumstance" so
as to justify a warrantless search of defendant's house
e. Rationale:
i. If the search of the house is to be upheld as incident to an arrest, that arrest must take place
inside the house, not somewhere outside, whether 2 blocks away, 20 feet away, or on the
sidewalk near the front steps.

29

ii. Furthermore, there was no exigent circumstance in trying to prevent the destruction of the
evidence since, as the officers themselves saw, there was no one in the house when they first
entered.
f. Rule: If a search of a house is to be upheld as incident to an arrest, the arrest must take place inside
the house.
g. Notes:
i. The difference between this case and Santana is that in Santana the DF ran inside the house
and was arrested there.
ii. However, there is an argument that this case does not survive Santana and Belton?
(Implicitly)
1) Santana says that under certain circumstances, the doorway is not curtilage
2) Belton says that the police can extend the thorough search to any place where the
person was a recent occupant.
6. Illinois v. McArthur (2001)
a. Facts: Ds wife asked 2 officers to accompany her to the trailer where she lived with her husband to
keep the peace while she removed her belongings. The officers stayed outside of the trailer and
when the wife came out she told them that her husband had drugs inside. One of the officers left
with the wife to apply for a search warrant. The officer that remained in the trailer told the D, who
was standing in the porch, that he could not reenter the trailer unless he accompanied him (and
therefore they could seize evidence in plain view or Chrisman could apply as well). The other officer
returned in 2 hours with the search warrant and they found the marijuana inside.
b. Issue: Whether officers who had probable cause to believe that D had marijuana in his home, acted
in violation of the 4th Amendment when they prevented him from entering the home for about 2
hours while they obtained a search warrant.
c. Holding: No. The officers reasonably believed that the homes resident, if left free of any restraint,
would have destroyed the evidence, and they imposed a restraint that was both limited and tailored
reasonably to secure law enforcement needs while protecting privacy interests.
d. Rationale:
i. The warrantless seizure of the premises in here was not per se unreasonable because it
involved exigent circumstances (plausible claim of specially pressing or urgent law
enforcement need) and the restraint at issue was tailored to that need, being limited in time
and scope.
ii. Upon balancing the privacy-related and law enforcement-related concerns, the Court
concluded that the restriction at issue was reasonable based on the circumstances:
1) Police had probable cause to believe that the trailer home contained evidence of crime
and contraband
2) They had good reason to believe that, unless restrained, the D would destroy the
drugs
3) They made reasonable efforts to reconcile their law enforcement needs with the
demands of personal privacy because they did not search the trailer or arrest the D,
but imposed a significantly less restrictive restraint
4) They imposed the restraint for a limited period of time (Terry)
e. Note: The Court quoted Santana and said that a person standing in the doorway of a house is in a
public place, and that the distinction of porch versus front walk was insignificant as to the
reasonableness of the police restraint. (Basically said that a person standing in the porch is in a
public place).
D. LECTURE: VEHICLES AND CONTAINERS SEARCHES
1. Context: In the car container cases, the issue is whether there is probable cause that the car contains
evidence of criminal activity.
2. Carroll v. US (1921)
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a. Court held that police may search an automobile without a warrant, so long as they have probable
cause to believe it contains evidence of criminal activity.
b. The car is movable, the occupants are already alerted, and the cars contents may never be found it
the warrant is required.
c. Note: Note the relationship with Belton, under which a police can arrest a person for even a minor
traffic violation. The difference is that in Belton, the officer can search the car as a search incident to
an arrest and he only needs probable cause for the arrest. Under Carroll, however, the officer needs
probable cause for the search. I think the police would use Carroll when the he first decided to stop
the car and give the driver a ticket but then has a reasonable suspicion that there is something in the
car (since he cant arrest the person any longer once he decided to give him a ticket).
3. Chambers v. Maroney
a. Court said there was a constitutional difference between houses and cars.
4. Coolidge v. New Hampshire (1971)
a. This case is also discussed under the warrant requirement for a neutral and detached Magistrate (the
police had obtained warrant to search the car from the Attorney General).
b. Only case where a warrantless automobile search was held to be unconstitutional because of the
absence of exigency. However, the Court has narrowed Coolidge to its facts and rejected factspecific analysis.
c. DF had been arrested, his wife had been removed from the premises, and the police had control of
the car as it was parked outside DFs house.
5. California v. Carney
a. Police did not violate the 4th Amendment based on probable cause of a fully mobile home. The
mobile home was located in a public place.
b. Court said that all of the reasons to differentiate the cars from houses exist here: 1) mobile homes are
movable, 2) there is a lesser expectation of privacy, and 3) they are subject to a lot of regulations.
6. United States v. Chadwick (Burger)
a. Foot locker and luggage found in the car. Police seized it and then opened it and found marijuana.
b. The Court said that the factors that applied to cars in general do not apply to containers: things in
luggage are not visible to the public; it is not subject to regulation. The arrestees were entitled to a
warrant before their interests were invaded. While the officers could seize the locker, they could not
open it without a warrant to search it.
c. Containers in the car despite the lesser expectation of privacy in the vehicle, this lesser expectation
does not extend to containers
7. US v. Ross
a. Court rejected the distinction between a container and a package found inside the car.
8. California v. Acevedo
a. The Court eliminated the distinction made in Chadwick between the car and the containers found
within it and held that one rule would govern all: Police may search automobile and containers
within it when they have probable cause to believe that narcotics may be found inside.
9. Wyoming v. Houghton (1999)
a. Cops stopped the car for a broken tail light. Officer suspected drugs and search the passengers
purse.
b. Court said that police can search those.
E. LECTURE: INVENTORY SEARCHES
1. South Dakota v. Opperman (1976) Inventory of automobiles
a. Context: a car must be lawfully on police custody - on the basis other than suspicion of criminal
activity.
b. Unoccupied vehicle and police towed it. After inventorying, the officers found drugs.
31

c. Court said that, when vehicles are impounded police usually conduct an inventory routine which is
not unreasonable under the 4th Amendment.
2. Illionis v. LaFayete (1983) Inventory of arrestees
a. Suspect arrested for disturbing the peace. Police found drugs on her stuff.
b. Court stated that the police need to protect the property of arrestees and need to remove dangerous
instrumentalities from arrestees. It was not unreasonable.

F. CONSENT SEARCHES
1. Voluntariness
a. Schneckloth v. Bustamonte (1973)
i. Facts: Police stopped a car for traffic violation and obtained consent to search the car. They
discovered evidence and DF was convicted for unlawful possession of a check.
ii. Procedure: The appellate court reversed, holding that the prosecution had failed to prove that
consent to the search had been made with the understanding that it could freely be withheld.
iii. Holding: When the person subject of a search is not in custody, and the State attempts to
justify the search on the basis of his consent, the 4th Amendment require that it demonstrate
that the consent was in fact voluntary (but not knowledgeable). Voluntariness is to be
determined from the totality of the surrounding circumstances and while knowledge of a
right to refuse consent is a factor to be taken into account, the State need not prove that the
one giving permission to search knew that he had a right to withhold his consent.
iv. Rationale:
1) Consent searches are convenient and helpful for the police
2) The 4th Amendment does not rise to such protection and is not like the 5th Amendment
that requires knowledge and voluntariness. The 4th Amendment only requires
voluntariness.
v. Notes:
1) This case went from state court to federal court through collateral attack previously
called habeas corpus (Rule 3 in Fla.). Through this process, if you exhaust all the
resources in state court, you can file a habeas corpus and try to get the federal courts
to hear your objection.
2) Although the Courts holding included the fact that the person was not in custody, it
later held in United States v. Watson (1976) (same case of public arrest) that the
consent can be valid even if the person was arrested and in custody.
b. Ohio v. Robinette (1996)
i. Facts: After an Ohio deputy sheriff stopped respondent Robinette for speeding, gave him a
verbal warning, and returned his driver's license, the deputy asked whether he was carrying
illegal contraband, weapons, or drugs in his car. Robinette answered "no" and consented to a
search of the car, which revealed a small amount of marijuana and a pill.
ii. Procedure: The Ohio Supreme Court established a bright-line prerequisite for consent to
search that required that a lawfully seized DF must be advised that he was free to go before
his consent to search would be recognized as voluntary
iii. Issue: Whether the 4th Amendment requires that a lawfully seized defendant must be advised
that he is free to go before his consent to search will be recognized as voluntary.
iv. Holding: No. The Constitution does not require that a lawfully seized person be advised
that he is "free to go" before his consent to search will be recognized as voluntary.
Rationale:
32

4th Amendment analysis must avoid bright-line rules, instead of the fact-specific
nature of the reasonableness inquiry.
2) As in Bustamonte, it would be unrealistic to require police officers to always inform
detainees that they were free to go before consent to a search could be deemed
voluntary. Voluntariness is a fact question to be determined under the totality of the
circumstances.
v. Concurrence: States are free to impose greater restrictions on police activity than necessary
upon federal constitutional standards. It seems improbable that the Ohio Supreme Court
understood its first-tell-then-ask rule to be the Federal Constitutions mandate for the nation
as a whole. Rather, it is probable that it saw its rule as a measure made for Ohio. However,
the Ohio Supreme Courts opinion was ambiguous and on remand it should clarify the matter.
vi. Dissent: Agreed with the holding that the Constitution does not require an instruction that
the person is free to leave in order for his consent to be voluntary. However, it said that the
prophylactic rule announced by the Ohio SC was intended as a guide to the decision of future
cases rather than an explanation of the decision in this case. Dissent would affirm the
judgment of that court because it correctly held that DF consent to the search of his vehicle
was the product of an unlawful detention.
vii. Notes:
1) States can require its officers to give detained motorists the advice mandated by the
Ohio court.
2) The weird thing here is that the case was not even decided at all. The Ohio court said
that from thereon, it would require the police officers to tell the people that they were
required to tell them that they were free to go. However, the US SC said that what
the Ohio SC said was not required to do so under the Fourth Amendment look at
concurrence. There is no reason why the Ohio court could not do this.
3) Although the consent was consensual, it can be challenged as invalid because it was
the result of an illegal detention under Terry if the person would not feel that he/she
was free to go under Mendenhall (consent obtained during an illegal detention is
ordinarily ineffective to justify an otherwise invalid search a Florida v. Royer, 460
U.S. 491 (1983)). See Berkemer, where the Court said that Certainly few motorists
would feel free either to disobey a directive to pull over or to leave the scene of a
traffic stop without being told they might do so.
4) The SC, however, did not inquire into this and only focus on whether the consent was
voluntary.
5) LOOK AT FLORIDA V. RABB, 2005 WL 2218980 (2005)
Good discussion of all
cases and 4th DCA says dog sniff of curtilage was violation of Fourth Amendment.
2. Scope of Consent
a. Florida v. Jimeno (1991)
i. Facts: DF gave a general consent to search his car when the officers had made it evident that
they were looking for narcotics. Officers found the narcotics inside a container within the
car.
ii. Issue: Whether the consent to search the car gave authority to search the containers within it.
iii. Holding: The scope of a consent search is governed by a standard of objective
reasonableness. The question is what would a reasonable person have understood by the
exchange between the officer and the suspect?
1) The Court concluded that when a person gives officers a general, unrestricted consent
to search for narcotics in his car, it is reasonable to understand that consent to extend
to the vehicle itself and to any unlocked containers that are within the vehicle and
could contain the contraband.
iv. Rationale: If it is objectively reasonable to understand a person to be giving consent to
search her entire home, the entire home may be searched. If there are objective indicia that
1)

33

would indicate to a reasonable person that the person was only permitting the search of one
floor or one room in the home, the scope of the consent is limited to that floor or room.
3. Third Party Consent
a. US v. Matlock (1974)
(Actual Authority)
i. Facts: DF was arrested in the front yard of a house in which he lived along with a Mrs.
Graff (who was present at the time of the arrest) and others. The arresting officers did not ask
DF which room was his or whether he would consent to a search. However, they were then
admitted to the house by Mrs. Graff and, with her consent but without a warrant, searched the
house, including a bedroom in the 2nd floor, which Mrs. Graff told them was jointly occupied
by DF and herself. The officers found $4,995 in cash in a diaper bag in the only closet in the
room. DF was indicted for robbery.
ii. Procedure: The lower courts held that the third party consent depended upon not only the
reasonable appearance of authority to consent but also upon actual authority to consent and
that the State had failed to prove actual authority. SC reversed.
iii. Holding: The Court held that the government had proven the third partys actual authority.
iv. Rule: Police may seek consent from a third party who possessed common authority over or
other sufficient relationship to the premises or effects sought to be inspected. Common
authority means that the person has joint access or control.
v. Rationale:
1) Common authority rests rather on mutual use of the property by persons generally
having joint access or control for most purposes, so that it is reasonable to recognize
that any of the co-inhabitants has the right to permit the inspection in his own right
and that the others have assumed the risk that one of their number might permit the
common area to be searched
2) This is based on the theory of assumption of the risk it is reasonable to recognize
that any of the co-inhabitants has the right to permit the inspection in his own right
and that the others have assumed the risk that one of their number might permit the
common area to be searched
vi. Notes:
1) The Court found that there was actual authority. It did not reach the question whether
apparent authority was sufficient.
2) With this rule, the police dont need probable cause and dont need a warrant to
search, and is not even the DF consenting. This affects specially, and almost
exclusively, the poor who live with others. Same happens with the mobile homes and
the buildings sharing one floor where the police thinks its only one apartment.
b. Illinois v. Rodriguez (1990)
i. Facts: Fisher called the police from her mothers home in Chicago and told them that DF
had assaulted her earlier that day in an apartment in South California and that DF was still
there asleep. She consented to travel with them to the apartment in order to unlock the door
so that the officers could arrest him. Fisher referred to the apartment as our apartment and
said she had clothes and furniture there. They arrived at Rodriguezs apartment without an
arrest or search warrant and Fisher gave the officers permission to enter. The officers found
paraphernalia and containers filled with cocaine in the living room and in 2 open attach
cases in the bedroom where they arrested DF, who was charged with possession of a
controlled substance with intent to deliver.
ii. Procedure: trial court granted motion to suppress because the State had not satisfied its
burden of proving that Fischer had joint access or control for most purposes over DFs
apartment, as required under Matlock to establish common authority (she was not a usual
resident but rather an infrequent visitor; her name was not on the lease, she did not
contribute to the rent, was not allowed to invite others to the apartment on her own, did not
34

have access to the apartment when the defendant was away, and she had moved some of her
possession from the apartment).
iii. Issue: Whether the third partys consent to enter anothers home is valid upon officers
reasonable belief that the third party had common authority with the defendant to grant
consent.
iv. Holding: Yes. A warrantless entry is valid when it is based upon the consent of a third party
whom the police, at the time of the entry, reasonably believe to possess common authority
over the premises, but who in fact does not. Apparent authority is enough.
v. Rationale:
1) What DF is assured by the 4th Amendment is not that no government search of his
house will occur unless he consents; but that no such search will occur that is
unreasonable.
2) The reasonableness of a police determination of consent to enter must be judged
not by whether the police were correct in their assessment, but by the objective
standard of whether the facts available at the moment would warrant a person of
reasonable caution in the belief that the consenting party had authority over the
premises.
vi. Notes:
1) You dont need actual authority, only apparent authority.
2) If its an honest goof (mistake) it is ok. This is like Garrison in the execution of
warrants.
3) How do you reconcile it with Matlock?
Matlock says that if you choose a roommate, you run the risk that he/she will
permit people in. But here, DF doesnt live with the person giving authority.
The Court says that the police are not required to be perfect or to be right,
only to be reasonable.
4) Isnt this case telling the cops not to ask any questions to the consenter and therefore
avoid knowing whether the person really has authority?
5) Additional considerations:
Legal theory says that the cop has no reason to lie whereas the defendant is
trying to save his life. For that reason, the judge usually believes the cop and
not the defendant.
Judges want endorsement from the police benevolence society when they run
again for the position it takes a lot of guts to go against a police officers
testimony because it is almost a political suicide.
4. Tips for Exam:
a. Just explain what consent is and that it is an exception to probable cause and warrants.
i. Bustamonte backs out to consent requirement that you need to have knowledge that you
can refuse totality of circumstances coerciveness
ii. Matlock third party consent joint access or control
iii. Rodriguez apparent authority
iv. Scope: Part of the analysis is the overreaching of the police because that bias is included
within the Fourth Amendment.
G. PLAIN VIEW
1. Context:
a. Plain view doctrine underlies much of the law and practice under
i. The Terry doctrine
1) Ex: officers in Long seized weapons in plain view in Longs car during the course of
a search for self-protection under Terry
35

Ex: officer in Whren seized evidence that he saw in Whrens hands after making a
lawful traffic stop
ii. The arrest power rule
1) Ex: the officers in Robinson and Belton seized narcotics in plain view during the
course of a search incident to arrest
iii. During searches conducted pursuant to a warrant or another exception to the warrant
requirement
1) Ex: an officer searching pursuant to a warrant can seize contraband that comes into
view during the lawful course of that search
2)

2. Horton v. California (1990)

a. Facts: an officer determined that there was probable cause to search DFs home for the proceeds of
a robbery and the robbers weapons. The officers search warrant affidavit referred to police reports
that described both the weapons and the proceeds, but the warrant issued by the Magistrate only
authorized a search for the proceeds. Upon executing the warrant, the officer did not find the stolen
property but did find the weapons in plain view and seized them. At trial, the officer testified that
while he was searching for the rings, he also was interested in finding other evidence connecting the
D to the robbery (therefore the seized evidence was not discovered inadvertently).
b. Issue: Whether the warrantless seizure of evidence of a crime in plain view is prohibited by the 4th
Amendment if the discovery of the evidence was not inadvertent.
c. Holding: No. The 4th Amendment does not prohibit the warrantless seizure of evidence in plain
view even though the discovery of the evidence was not inadvertent. Although inadvertence is a
characteristic of most legitimate plain view seizures, it is not a necessary condition.
d. Rationale:
i. 2 flaws in the limitation stating that inadvertence requirement was necessary
1) Evenhanded law enforcement is best achieved by applying objective standards of
conduct, rather than standards that depend upon the officer's subjective state of mind.
2) The suggestion that the inadvertence requirement is necessary to prevent the police
from conducting general searches, or from converting specific warrants into general
warrants, is not persuasive because that interest is already served by the requirements
that an unparticularized warrant not be issued and that a warrantless search be
circumscribed by the exigencies which justify is initiation.
The search compromises the individual interest in privacy, while a seizure
deprives the individual of dominion over his or her person or property. If an
article is already in plain view, neither its observation nor its seizure would
involve any invasion of privacy. A seizure of the article, however, would
invade the owners possessory interest. Plain view justifies an exception of
seizures rather than searches.
The prohibition against general searches and warrants is based on privacy
concerns, which are not implicated when an officer with a lawful right of
access to an item in plain view seizes it without a warrant.
1. Here, the search's scope was not enlarged by the warrant's omission of
reference to the weapons; indeed, no search for the weapons could
have taken place if the named items had been found or surrendered at
the outset.
ii. Summary: In this case the items seized from petitioner's home were discovered during a
lawful search authorized by a valid warrant. When they were discovered, it was immediately
apparent to the officer that they constituted incriminating evidence. He had probable cause,
not only to obtain a warrant to search for the stolen property, but also to believe that the
weapons and handguns had been used in the crime he was investigating. The search was
36

authorized by the warrant; the seizure was authorized by the "plain view" doctrine. The
judgment is affirmed.
e. Rule:
i. In order for a warrantless seizure of an object in plain view to be valid, three conditions must
be satisfied
1) Essential predicate that the officer did not violate the 4th Amendment in arriving at the
place from which the object could be plainly viewed.
2) The item must be in plain view and the object's incriminating character must be
immediately apparent.
3) Third, the officer must be lawfully located in a place from which the object can be
plainly seen and must have a lawful right of access to the object itself.
f. Notes:
i. Horton recognizes that the Plain View doctrine is not an exception to the rule that warrantless
searches are per se unreasonable. The dissent says that it is an exception to the rule that
warrantless seizures are per se unreasonable.
ii. Dissent clears out that the Court is not deciding whether pretextual searches where the
officer enters a house pursuant to a warrant to search for evidence of one crime when he is
really interested only in seizing evidence relating to another crime for which he doesnt have
a warrant violate the 4th Amendment. The dissent says they do violate the Amendment.
3. Arizona v. Hicks (1987)
a. Facts: A bullet fired through the floor of DFs apartment and injured a man on the floor below.
Police entered DFs apartment to search for the shooter, for other victims, and for weapons, and there
seized three weapons and discovered a stocking-cap mask. One officer noticed two sets of
expensive stereo components and thought they were strange in the context of the ill-appointed
apartment and therefore suspected that they were stolen. He then moved some of the components,
including a turntable, in order to read and record their serial numbers, and then phoned in the
numbers to headquarters. Upon learning that the turntable had been taken in an armed robbery, he
seized it immediately. DF was indicted for robbery.
b. Holding: The officer's moving of the equipment constituted a "search" separate and apart from the
search for the shooter, victims, and weapons that was the lawful objective of his entry. Such a search
was not "reasonable" under the Fourth Amendment because it was not sustainable under the "plain
view" doctrine absent probable cause, which was not present by the State's admission.
c. Rationale:
i. The "plain view" doctrine does not render the search "reasonable" under the 4th Amendment.
ii. The search was invalid because the policeman had only a reasonable suspicion less than
probable cause to believe that the stereo equipment was stolen.
iii. Probable cause is required to invoke the "plain view" doctrine as it applies to seizures.
Probable cause to believe the equipment was stolen was also necessary to support the search
here, whether legal authority to move the equipment could be found only as the inevitable
concomitant of the authority to seize it, or also as a consequence of some independent power
to search objects in plain view.
iv. The policeman's action cannot be upheld on the ground that it was not a "full-blown search"
but was only a "cursory inspection" that could be justified by reasonable suspicion instead of
probable cause. A truly cursory inspection -- one that involves merely looking at what is
already exposed to view, without disturbing it -- is not a "search" for Fourth Amendment
purposes, and therefore does not even require reasonable suspicion. This Court is unwilling
to create a subcategory of "cursory" searches under the Fourth Amendment. Pp. 328-329.
d. Notes:
i. After Hicks, an officer must have probable cause to seize an item in plain view during the
course of legal activity. And that probable cause must be readily apparent, i.e., it must exist
without the necessity of a further search.
37

Examples of when probable cause was immediately apparent:

When the officer seized a marijuana plant in plain view since the officer had
taken classes on identifying marijuana
When officer seized an empty ammunition box was, where it was found
together with drugs and weapons: the ammunition box, unlike a cigar box, is
probative of weapons possession and drug dealing
When officer seized a notebook, as the victim of a robbery had told the officer
that the perpetrator had been disguised as a police officer and had recorded
information in a notebook during the robbery; the officer found the notebook
lying next to a police uniform in DFs car
H. STOP AND FRISK (Look at Stops and Frisks)
VI. THE BALANCING APPROACH TO 4TH AMENDMENT REASONABLENESS: STOPS, FRISKS, AND THE RIGHT TO BE
SECURE IN ONES PERSON, HOUSE AND EFFECTS
1)

A. CONSTITUTIONAL DOCTRINE AND ITS UNDERPINNINGS

1. Context:
a. On certain cases, either the government or the individual is claiming that the probable cause and
warrant norms are not appropriate measures of the reasonableness of the government conduct.
b. Each is rooted in an effort to balance societys interests against those of the individual. In most
cases, the government contends that the balance justifies diminution, while in others individuals
contend that the balance justifies elevation of the normal standards of reasonableness.
2. Terry v. Ohio (1968)
a. Facts: officer McFadden, based on his extensive experience, thought that the suspects were
casing a stickup and might be armed, and decided to follow and confront the three men as they
were conversing in front of a store. He identified himself and asked the suspects for their names.
When the men only mumbled something, the officer grabbed and spun Terry around and patted the
outside of his clothing. The officer felt a gun in his breast pocket, ordered the three of them to get
inside the store and removed Terrys overcoat in order to remove the gun. He made the three of
them stand against the wall, and a frisk of Chilton also uncovered a pistol; a frisk of the third man,
however, did not disclose that he was armed, and he was not searched further.
b. Procedure: Although the trial court rejected the prosecution theory that the guns had been seized
during a search incident to a lawful arrest, it denied the motion to suppress on a stop-and-frisk
theory.
c. Issue: Whether it is always unreasonable for a policeman to seize a person and subject him to a
limited search for weapons unless there is probable cause for an arrest.
d. Holding: Each case of this sort will, of course, have to be decided on its own facts. We merely hold
today that where a police officer 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, where in the course of investigating this behavior he
identifies himself as a policeman and makes reasonable inquiries, and nothing in the initial stages of
the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the
protection of himself and others in the area to conduct a carefully limited search of the outer clothing
of such persons in an attempt to discover weapons which might be used to assault him. Such a
search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be
introduced in evidence against the person from whom they were taken.
e. Reasoning:
i. Stops and frisks fall within the 4th Amendment
1) Whenever a police officer accosts an individual and restrains his freedom to walk
away (stops him), he has seized that person within the meaning of the 4th
Amendment.
38

A careful exploration of the outer surfaces of a person's clothing in an attempt to find

weapons is a "search" under the Fourth Amendment.
ii. Where a reasonably prudent officer is warranted in the circumstances of a given case in
believing that his safety or that of others is endangered, he may make a reasonable search for
weapons of the person believed by him to be armed and dangerous regardless of whether he
has probable cause to arrest that individual for crime or the absolute certainty that the
individual is armed.
1) Though the police must whenever practicable secure a warrant to make a search and
seizure, that procedure cannot be followed where swift action based upon on-the-spot
observations of the officer on the beat is required.
2) If this case involved police conduct subject to the Warrant Clause of the Fourth
Amendment, we would have to ascertain whether "probable cause" existed to justify
the search and seizure which took place. However, that is not the case. Instead, the
conduct involved in this case must be tested by the Fourth Amendment's general
proscription against unreasonable searches and seizures.
3) An officer justified in believing that an individual whose suspicious behavior he is
investigating at close range is armed may, to neutralize the threat of physical harm,
take necessary measures to determine whether that person is carrying a weapon.
4) A search for weapons in the absence of probable cause to arrest must be strictly
circumscribed by the exigencies of the situation.
5) An officer may make an intrusion short of arrest where he has reasonable
apprehension of danger before being possessed of information justifying arrest.
iii. The officer's protective seizure of petitioner and his companions and the limited search which
he made were reasonable, both at their inception and as conducted.
f. Summary: Limited "stop and frisk" searches for weapons are so substantially less intrusive than
arrests that the general rule requiring probable cause to make Fourth Amendment "seizures"
reasonable can be replaced by a test balancing the limited violation of individual privacy against the
opposing interests in crime prevention and detection and in the police officer's safety.
g. Rule: Courts must conduct a two part analysis to determine whether the detention was reasonable
under the Fourth Amendment:
i. Whether the officers action, i.e., the stop, was justified at its inception; and
ii. Whether the investigative detention was reasonably related in scope to the circumstances
which justified the interference.
h. Notes:
i. The Court decided that reasonable suspicion (less than probable cause) was sufficient for a
search and seizure.
ii. Terry stands for the proposition that:
1) If the officer has reasonable suspicion that there is (1) criminal activity and (2) fears
that the individual is armed and dangerous, the officer may frisk for weapons.
2) If in the course of a patdown, the officer does not feel a weapon, he must stop there.
However, if the patdown reveals anything that feels like a weapon, the officer can go
further and look for the weapon.
iii. The NAACP filed an amicus brief saying that a rule lessening the probable cause
requirement would result in discrimination against minorities. President's Commission on
Law Enforcement and Administration of Justice found that in many communities, field
interrogations are a major source of friction between the police and minority groups.
1) The Court dismissed this allegation by saying that application of the exclusionary rule
in this case would not serve to prevent discrimination against minorities.
iv. The problem with Terry is that it encourages certain wrongful conduct by the police. Now
the officers can say they have reasonable suspicion rather than probable cause.
2)

39

v. Terry did not address what happens when the officer has reasonable suspicion but does not
fear the individual is dangerous and armed. It neither addresses what happens if the officer
has reasonable suspicion, frisks the individual and feels something but is not a weapon.
3. Sibron v. New York (1968)
a. Facts: Officer watched man converse with several known narcotics addicts over the course between
4 and midnight. The man entered a restaurant and ordered pie and coffee and the officer approached
him and told him to come outside. The officer told him, You know what Im after. When the man
mumbled and reached into his pocket, the officer thrust his hand into the pocket and extracted
packets of heroin.
b. Holding: Court concluded the officer did not have reasonable grounds to believe that Sibron was
armed and dangerous.
c. Rationale:
i. Mere association with known narcotics addicts did not give rise to a reasonable fear of life
or limb.
ii. It was unconstitutional for the officer to stop and frisk Sibron.
iii. Not even if there had been adequate grounds for a detention and frisk, the search had
exceeded the limited bounds of the patdown authorized by Terry.
d. Concurrence: Harlan suggested that the authority granted by Terry is limited to necessitous
situations and can only be justified by a showing that there is a need for immediate action to
prevent a violent crime or some other imminent harm. However, in Adams v. Williams (1972), the
Court held that it was permissible under Terry to stop and frisk an individual suspected of possessing
narcotics and a concealed weapon.
4. Dunaway v. New York (1979)
a. Facts: An informant (jail inmate) supplied a possible lead that implicated DF in a murder during an
attempted robbery. The police questioned the informant but did not have enough information to get a
warrant for DFs arrest. Nevertheless, the detective ordered other detectives to pick up petitioner
and bring him in, so the officers located DF and took him into custody. Although he was not told
he was under arrest, he would have been restrained if he had attempted to leave. He was taken to the
police headquarters, and questioned after being given Miranda warnings. DF waived his right to
counsel and made incriminating statements.
b. Issue: Whether the police violated the 4th Amendment when they took the DF into custody,
transported him to the police station, and detained him there for interrogation without probable
cause.
c. Holding: Yes: (1) DF was seized when he was arrested and taken to the police station for
questioning; (2) seizure without probable cause violated the 4th Amendment, and (3) confession
given following the seizure and interrogation was inadmissible.
d. Rationale:
i. The detention here was in important respects indistinguishable from a traditional arrest and
different from the brief and narrowly circumscribed intrusions allowed by Terrys progeny
(Terry limited, on-the-street frisk for weapons, Adams v. Williams frisk for weapons on
basis of reasonable suspicion, and Pennsylvania v. Mimms order to get out of the car after
car lawfully detained for traffic violations and frisk for weapons after bulge observed in
jacket). Therefore, Terrys progeny do not support the application of a balancing test so as to
hold that seizures such as that in this case may be justified by mere reasonable suspicion,
but rather must be supported by probable cause.
1) This was not an on-the-street encounter.
2) DF was not questioned briefly where he was found but instead was taken from a
neighbors home to a police car, transported to a police station, and placed in an
interrogation room.

40

DF was never informed that he was free to go, rather he would have been
physically restrained if he had refused to accompany the officers or had tried to
escape their custody.
ii. Detention for custodial interrogation -- regardless of its label -- intrudes so severely on
interests protected by the 4th Amendment as necessarily to trigger the traditional safeguards
against illegal arrest.
iii. Any exception that could cover a seizure as intrusive as this one would threaten to swallow
the general rule that 4th Amendment seizures are reasonable only if based on probable cause.
e. Dissent (Rehnquist): Voluntary questioning not involving any seizure may take place under any
number of varying circumstances. It is often the case that individual agrees voluntarily to answer
questions either on the street, at the station, or in his house, and later regrets his willingness to
answer those questions. However, such morning-after regrets do not render involuntary responses
that were voluntary at the time they were made. In short, police behavior here was entirely free of
physical or show of authority and no involuntary detention for questioning was shown to have taken
place.
f. Notes:
i. The Court said that Terry does not apply here. It said that Terry was a narrow exception.
ii. The Court said that these factors do not support a Terry application:
1) Removal (from the neighborhood) not on-the-street
2) Not a short time (1 hour) rather than a brief questioning
3) Interrogation (at station)
iii. Also, note that here, the officers could have gotten a warrant or at least try. It was not the on
the bit (spot) encounter; the officers conducted some investigation prior to the encounter.
iv. Dunaway addresses 2 questions raised in Terry
1) Outer boundaries of the detentions validated by Terry:
Court says that for arresting a person or putting him/her into custody, the
police need probable cause
Florida v. Royer (1983) Court concluded that officers needed probable
cause to justify detaining a suspect and moving him from an airport concourse
to a police room a short distance away
2) Whether the balancing approach underlying Terry is the general rule, a rare exception,
or something in between.
Brennans majority suggested that interest balancing that leads to lesser
justifications should be reserved for a very limited and narrow realm of
official conduct.
Whites concurrence expressed disagreement that Terry is an almost unique
exception to a hard-and-fast standard of probable cause.
3)

B. WHEN DOES A SEIZURE OF PERSONS OCCUR? DIFFERENCE BETWEEN STOP AND ENCOUNTER
1. US v. Mendenhall (1980)
THE MENDENHALL TEST
a. Facts:
i. DF arrived at the Detroit Metropolitan Airport on a flight from Los Angeles, two DEA
agents, observing that her conduct appeared to be characteristic of persons unlawfully
carrying narcotics, approached her as she was walking through the concourse, identified
themselves as federal agents, and asked to see her identification and airline ticket. After DF
produced her driver's license, which was in her name, and her ticket, which was issued in
another name, the agents questioned her briefly as to the discrepancy and as to how long she
had been in California.
ii. After returning the ticket and driver's license to her, one of the agents asked respondent if she
would accompany him to the airport DEA office for further questions, and respondent did so.
41

b.

c.
d.

e.

iii. At the office the agent asked DF if she would allow a search of her person and handbag and
told her that she had the right to decline the search if she desired. She responded: "Go ahead,"
and handed her purse to the agent.
iv. A female police officer, who arrived to conduct the search of DFs person, also asked
respondent if she consented to the search, and respondent replied that she did. When the
policewoman explained that respondent would have to remove her clothing, DF stated that
she had a plane to catch and was assured that if she was carrying no narcotics there would be
no problem.
v. DF began to disrobe without further comment and took from her undergarments two
packages, one of which appeared to contain heroin, and handed them to the policewoman.
DF was then arrested for possessing heroin.
Procedure: The District Court denied the motion to suppress, concluding that the agents' conduct in
initially approaching the DF and asking to see her ticket and identification was a permissible
investigative stop, based on facts justifying a suspicion of criminal activity, that DF had
accompanied the agents to the DEA office voluntarily, and that respondent voluntarily consented to
the search in the DEA office. DF was convicted after trial, but the Court of Appeals reversed,
finding that she had not validly consented to the search.
Issue: Whether the police violated the 4th Amendment when they questioned her in the concourse of
the airport and in the DEA office after she agreed.
Holding: DF was not seized when she was approached by the federal agents who asked to see her
ticket and identification, even though she was not expressly told that she was free to decline to
cooperate with their inquiry (therefore, it falls outside of the scope of the 4th Amendment).
Furthermore, the totality of the circumstances supported the findings that DF voluntarily consented
to accompany the officers and consented to the search of her person freely and voluntarily.
Rationale:
i. During the initial approach, nothing suggests that the DF had hay objective reason to believe
that she was not free to end the conversation in the concourse and proceed on her way.
1) Events took place in a public place
2) Agents wore no uniforms and displayed no weapons. They did not summon the DF
to their presence, but instead approached her and identified themselves as federal
agents.
3) Agents requested, but did not demand to see her identification and ticket.
ii. DFs consent to accompany the agents to the DEA office was voluntary under the totality of
the circumstances and was not the product of duress or coercion:
1) DF was asked and not told to accompany the officers to the office
2) There were neither threats nor any show of force
3) She had been questioned only briefly and the officers had returned her identification
and ticket before they asked her to accompany them.
4) Argument that the fact that she was a 22 years old black woman, not graduated from
high school, was neither irrelevant nor decisive, and the totality of the evidence
shows that she voluntarily consented to accompany the officers.
iii. DFs consent to the search was freely and voluntarily given:
1) DF was 22 years old and had an 11th-grade education. Therefore she was capable of
knowing consent.
2) DF was expressly told twice that she was free to decline to consent to the search, and
she explicitly consented to it after that.
3) Although the 4th Amendment does not require knowledge of a right to refuse as the
prerequisite of an effective consent to a search, it is relevant to determine that there
had been consent. The fact that the agents told her twice substantially lessened the
probability that their conduct reasonably have appeared to be coercive to her.
42

f. General/Traditional Rule: A person is seized only when, by means of physical force or a show of
authority, his freedom of movement is restrained.
g. Mendenhall Rule: A person is seized only if, in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to leave.
h. Concurrence (Powell):
i. Assuming that the stop did constitute a seizure, the federal agents, in light of all the
circumstances, had reasonable suspicion that DF was engaging in criminal activity and,
therefore, did not violate the 4th Amendment by stopping her for routine questioning (under
Terry). Reasonableness of a stop turns on the facts and circumstances of each case with
emphasis on:
1) The public interest served by the seizure: Here, public has a compelling interest in
detecting those who traffic in deadly drugs for personal profit.
2) The nature and scope of the intrusion: Here, the intrusion here was quite modest, DF
could not reasonably have felt frightened or isolated from assistance
3) The objective facts upon which the law enforcement officer relied in light of his
knowledge and expertise: here DF matched the profile of drug trafficker
i. Dissent (White): The result is curious because a majority of the Court refuse to reject the conclusion
that Mendenhall was seized, while a separate majority (dissent) decline to hold that there were
reasonable grounds to justify a seizure.
j. Notes:
i. The Court rejected the argument that DF was seized during the first approach because she
was not expressly told by the agents that she was free to decline to cooperate with their
inquiry because the voluntariness of her responses does not depend upon her having been
informed so.
ii. It also rejected the argument that the only inference to be drawn from the fact that DF acted
in a manner so contrary to her self-interest was that she was compelled to answer the agents
questions.
iii. Court looks at place, tone of the officers, whether there are weapons and whether they are
used, and concludes that Mendenhall was not seized. The dissent says that as a matter of
appellate rules, since the seizure issue was not raised below, the court should assume that
Mendenhall was seized and the seizure was not justified under Terry because there was no
reasonable suspicion. Who is right?
iv. Examples of circumstances that might indicate a seizure, even where DF did not attempt to
leave?
1) Threatening presence of several officers,
2) the display of weapon by an officer,
3) some physical touching of the person, or
4) the use of language or tone of voice indicating that compliance with the officers
request might be compelled
2. Florida v. Bostick (1991)
BUS SWEEPS
a. Facts: DF was traveling on a bus from Miami to Atlanta and stopped in Ft. Lauderdale. The
Broward County officers boarded the bus, pursuant to a routine practice, and without any reasonable
suspicion, asked the DF for his ticket and identification. The ticket matched the name in the
identification. However, the officers persisted and explained their presence as narcotics agents and
they asked DF for consent to search his luggage. DF consented and the police found cocaine.
b. Procedural History: Florida Supreme Court reversed, holding that because DF was on a bus, he was
not free to leave the bus without the risk of being stranded, and his consent was involuntary. It
adopted a per se rule to that effect.
c. Issue: Whether DF was seized when the police encountered him on a bus and, without reasonable
suspicion, asked for his consent to search his luggage.
43

d. Holding: The appropriate test is whether, taking into account all of the circumstances surrounding
the encounter, a reasonable passenger would feel free to decline the officers' requests or otherwise
terminate the encounter. Because there was no finding by the lower court using that standard, the
court remanded the case. However, the Court rejected DFs argument that he must have been seized
because no reasonable person would freely consent to a search of luggage containing drugs, since the
"reasonable person" test presumes an innocent person.
e. Court's Rationale/Reasoning:
i. The crucial test is whether, under the totality of the circumstances, the police conduct would
have communicated to a reasonable person that he was not at liberty to ignore the police
presence and go about his business.
1) A consensual encounter does not trigger Fourth Amendment scrutiny.
Even when officers have no basis for suspecting a particular individual, they
may generally ask the individual questions, ask to examine identification, and
request consent to search luggage provided they do not convey a message that
compliance with their requests is required.
1. Thus, there is no doubt that if this same encounter had taken place
before DF boarded the bus or in the bus terminal, it would not be a
seizure
2) That this encounter took place on a bus is but one relevant factor in determining
whether or not it was of a coercive nature. The free to leave analysis is proper in
situations involving an encounter in the streets. However, when a person is seated on
a bus about to depart, has no desire to leave, and would not feel free to leave even if
there were no police present(because he has luggage there), that analysis is not a
proper measure of the encounters coercive effect. The more appropriate inquiry is
whether a reasonable passenger would feel free to decline the officers' request or
otherwise terminate the encounter.
This case is indistinguishable from INS v. Delgado, 466 U.S. 210 (1984),
where no seizure occurred when INS agents visited factories at random,
stationing some agents at exits while others questioned workers, because, even
though workers were not free to leave without being questioned, the agents
conduct gave them no reason to believe that they would be detained if they
answered truthfully or refused to answer. Such a refusal, alone, does not
furnish the minimal level of objective justification needed for detention or
seizure.
ii. Although the analysis was not conducted in the lower courts, the SC rejected the argument
that he must have been seized here.
1) Here, DFs movements were confined in a sense, but this was the natural result of his
decision to take the bus a factor independent of police conduct, which says nothing
about whether or not the police conduct was coercive.
2) It is important to note that the officers apparently did not show any use of authority or
displayed any weapons. However, the trial court did not make factual findings as to
the totality of the circumstances and therefore the case is remanded for that
determination. In that inquiry, the fact that the encounter occurred in a bus in a factor
but is not the only one.
f. Rules:
i. In order to determine whether a particular encounter constitutes a seizure, the test is whether,
under the totality of the circumstances, the police conduct would have communicated to a
reasonable person that he was not at liberty to ignore the police presence and go about his
business
ii. In the context of a bus, the appropriate inquiry is whether, under the totality of the
circumstances, the police conduct would have communicated to a reasonable person that the
44

person was not free to decline the officers' requests to search or otherwise terminate the
encounter
iii. Even when the officers have no basis for suspecting a particular individual, they may
generally ask questions of that individual, ask to examine his identification, and request to
search his luggage, as long as the police do not convey a message that compliance with their
requests is required.
g. Dissent: The dissent agrees with the test employed; however, it disagrees with the answer to the
question. The tactic used by the police is inconvenient, intrusive and intimidating. It occurs within
cramped confines, the officers enter the bus making a display of their badges, wearing bright green
raid jackets holding a gun in a recognizable weapons pouch, usually placing themselves in between
the passenger and the exit of the bus, and the passengers are in no position to leave the bus as a way
of evading the officers questioning since the bus is there only temporarily. Under these
circumstances a reasonable person would not feel free to decline the officers requests or terminate
the encounter.
h. Notes:
i. The Court, again, rejected DFs argument that he must have been seized because no
reasonable person would freely consent to a search of luggage that he or she knows contains
drugs. It reasoned that the argument failed because the reasonable person test presupposes
an innocent person.
ii. Where the restriction on freedom is not caused by the police, the DF has not satisfied the
Mendenhall test.
iii. The Court looked at the fact that the officers were requesting and not demanding, not
blocking the exit, etc.
1) The Court said that, yes, you are trapped, but not because of the polices conduct.
2) Apparently, Bostwick does not fall under the protection of the 4th Amendment because
he was trapped but not by the police. Therefore, the Terry analysis doesnt even come
up.
3. United States v. Drayton (2002)
BUS SWEEPS
a. Facts: Drayton and Brown were on a bus when 3 officers boarded at a gas stop. Two officers went
down the isle asking people to identify their bags and one stayed at the bus entrance. When they
reached DFs, they asked to check their bags and DFs said yes, then the officer asked to check their
person, and both DFs said yes. Both DFs were found to be carrying cocaine.
b. Procedure: District court denied motions to suppress and the 11th Circuit reversed based on 2 prior
decisions in which it had held that bus passengers do not feel free to disregard officers requests to
search absent some positive indication that consent could have been refused.
c. Holding: Officers gave the passengers no reason to believe that they were required to answer
questions.
d. Rationale:
i. The officers did not brandish weapons or make any intimidating movements, they left the
aisle free so that passengers could exit, and spoke to them one by one in a polite, quiet voice.
ii. Nothing the officer said would have suggested to a reasonable person that he was barred from
leaving or terminating the encounter.
iii. That the questioning took place on a bus did not on its own transform it into an illegal
seizure.
iv. The fact that the officers were not in uniform or visibly armed had little weight. The officer
asked the defendants first if they objected to a search. Even after arresting one DF, the
officer addressed the second defendant politely and gave no indication that he was required
to answer questions or consent to a search.

45

v. Although the officer did not inform the defendants of their right to refuse the search, he did
request permission to search. The totality of the circumstances indicated that the consent was
voluntary.
vi. This was a safer environment because eyes are on you from others in the bus and by that
the persons are protected by each other.
vii. Court rejected in specific terms the suggestion that police officers must always inform
citizens of their right to refuse when seeking permission to conduct a warrantless consent
search. While knowledge of the right to refuse consent is one factor to be taken into account,
the government need not establish such knowledge as the sine qua non of an effective
consent.
e. Dissent: When the attention of several officers is brought to bear on one civilian, the imbalance of
immediate power is unmistakable. The officers took control of the entire passenger compartment;
one officer accosted each passenger in extremely close and cramped areas; none was asked whether
he was willing to talk or take part. In short, the scene was set and an atmosphere of obligatory
participation was established so that no reasonable passenger could have believed that he could
refuse to cooperate or had a free choice to ignore the police.
f. Notes:
i. Normatively, people that ride the bus are people that cannot afford an airplane ticket.
ii. Maybe the eyes on you factor should go to the defense rather than the prosecution because
the fact that there are a lot of people puts pressure on the passengers to say yes.
iii. What is going on in Mendenhall, Bostwick, and Drayton?
1) Look at footnote 1 of the Bostwick dissent:
Detective Zaller testified that the factors initiating the focus upon the three
young black males in this case included: (1) that they were young and black.
The officers knew that the couriers, more often than not, were young black
males. Thus, the basis of the decision to single out particular passengers
during a suspicionless sweep is less likely to be inarticulable than
unspeakable.
4. California v. Hodari D. (1991) SUSPECT WHO DOES NOT SUBMIT
a. Facts: When the youths saw the officers car, they panicked and ran away. Hodari was looking
behind all the time as he ran but one of the officers took a short cut and waited for him straight
ahead. Hodari did not turn to see the officer until the officer was almost upon him, whereupon he
tossed away a small rock of cocaine. The officer tackled Hodari, handcuffed him and then recovered
the crack cocaine.
b. Procedure: Appellate Court reversed holding that Hodari had been "seized" when he saw the officer
running towards him; that, since the State had conceded that the officer did not have the "reasonable
suspicion" required to justify stopping DF, the seizure was "unreasonable" under the 4th Amendment;
and therefore that the evidence of cocaine had to be suppressed as the fruit of the illegal seizure.
c. Issue: Whether DF had been seized at the time he dropped the drugs when he saw an officer
running towards him. Whether, with respect to a show of authority as with respect to application of
physical force, a seizure occurs even though the subject does not yield.
d. Holding: No. A seizure does not occur where the subject does not yield to the show of police
authority. Where the DF does not stop, he is not seized until he is physically tackled.
e. Rule: To constitute a seizure of the person, just as to constitute an arrest, there must be either (1) the
application of physical force, however slight, or, (2) where that is absent, submission to an officers
"show of authority" to restrain the subject's liberty.
f. Rationale:
i. No physical force was applied in this case, since Hodari was untouched by the officer before
he dropped the drugs.
46

ii. Assuming that the officers pursuit constituted a "show of authority" enjoining Hodari to halt,
Hodari did not comply with that injunction. Therefore DF was not seized until he was
tackled.
iii. Thus, the cocaine abandoned while he was running was not the fruit of a seizure and his
motion to exclude evidence of it was properly denied.
g. Dissent: The deterrent purposes of the exclusionary rule focus on the conduct by the police officers,
in particularly in discouraging improper behavior on their part, and not on the reaction of the citizen.
The court in the present case defines a seizure as commencing not with the egregious police act but
rather with the submission by the citizen.
h. Notes:
i. Seizure under Hodari is either:
1) Physical touch, or
2) (a) A show of authority (b) that would make a reasonable person believe he was not
free to leave and (c) submission
ii. The Court said that the 4th Amendment didnt even come to play in the case because the
evidence was discovered while the DF was being chased (not seized) and he was not seized
until he was tackled down.
iii. How do you reconcile this case with the Courts consistent statement that you dont have to
answer to the request of the officers, you can walk away?
1) Is the problem that DF is running instead of walking away?
2) I believe the court says that you are free to walk away but only after the officers had
approached
C. GROUNDS FOR A STOP: REASONABLE SUSPICION
1. Quantum of Suspicion
a. United States v. Arvizu (2002) TOTALITY OF THE CIRCUMSTANCES
i.

The Court held that facts that are innocent when viewed in isolation may well be suspicious when viewed
together and observed that officers may draw on their won experience and specialized training to make
inferences that might well elude an untrained person.

b. Illinois v. Wardlow (2000)

i. Facts:
1) Uniformed officers Nolan and Harvey were driving the last car of a 4 car caravan
converging on an area known for heavy narcotics trafficking in order to investigate
drug transactions. They expected to find a crowd of people in the area, including
lookouts and customers. Officer Nolan observed DF Wardlow standing next to a
building holding an opaque bag. DF looked in the direction of the officers and fled.
2) Nolan and Harvey chased and stopped him, and conducted a protective patdown
search for weapons because in Nolans experience it was common for there to be
weapons in the near vicinity of narcotics transactions (although it is not addressed
whether the officer had reasonable suspicion that Wardlow was armed and
dangerous).
3) During the frisk, Nolan squeezed the bag and felt an object in the shape of a weapon;
he opened the bag and found a .38-caliber handgun.
ii. Procedure: Trial court denied DFs motion to suppress, finding the gun was recovered
during a lawful stop and frisk. Appellate Court reversed, concluding that the gun should
have been suppressed because Nolan did not have reasonable suspicion to justify an
investigative stop under Terry. Illinois Supreme Court affirmed, holding that sudden flight in
a high crime area does not create a reasonable suspicion justifying a Terry stop. It concluded
that flight may simply be an exercise of the persons right to go on his way, and, thus,
could not constitute reasonable suspicion.
iii. Issue: Whether sudden flight in a high crime area creates a reasonable suspicion justifying a
Terry stop.
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iv. Holding: Nervous, evasive behavior was a pertinent factor in determining reasonable
suspicion for a Terry stop, and headlong flight is the consummate act of evasion. The
determination of reasonable suspicion must be based on commonsense judgments and
inferences about human behavior. The officers were justified in suspecting that defendant
was involved in criminal activity based on his presence in an area of heavy narcotics
trafficking and his unprovoked flight upon noticing the police.
v. Rationale:
1) The Court looked at 2 things to determine whether, under the totality of the
circumstances, the officers had reasonable suspicion: (1) location and (2) unprovoked
flight (nervousness).
An individual's presence in a "high crime area," standing alone, is not enough
to support a reasonable, particularized suspicion of criminal activity, but a
location's characteristics are relevant in determining whether the
circumstances are sufficiently suspicious to warrant further investigation
Nervous, evasive behavior is another pertinent factor in determining
reasonable suspicion and headlong flight is the consummate act of evasion.
2) The reasonable suspicion determination must be based on commonsense judgments
and inferences about human behavior.
Here, it was Wardlow's unprovoked flight that aroused the officers' suspicion.
Officer Nolan was justified in suspecting that Wardlow was involved in
criminal activity, and, therefore, in investigating further.
Although people have a right to ignore the police and go about his business,
unprovoked flight is the exact opposite of "going about one's business."
3) While flight is not necessarily indicative of ongoing criminal activity, Terry
recognized that officers can detain individuals to resolve ambiguities in their conduct
and thus accepts the risk that officers may stop innocent people. If they do not learn
facts rising to the level of probable cause, an individual must be allowed to go on his
way.
But in this case the officers found that Wardlow possessed a handgun and
arrested him for violating a state law.
vi. Rule: While reasonable suspicion is a less demanding standard than probable cause and
requires a showing considerably less than preponderance of the evidence, the 4th Amendment
requires at least a minimal level of objective justification for making the stop. The officer
must be able to articulate more than an inchoate and unparticularized suspicion or hunch of
criminal activity.
vii. Concurrence/Dissent (Stevens): Agrees with the majority in refusing to adopt a per se rule
(Richardson). Reasonable suspicion must be determined by looking to the totality of the
circumstances. However, he feels the officers testimony did not justify the conclusion that
he had reasonable suspicion to make the stop.
viii.
Notes:
1) The Court set out 2 factors to determine whether there was reasonable suspicion here:
Location: high-crime area (inner city)
1. Majority held that the fact that an individual is present in a high crime
area is not by itself sufficient to justify a stop. However, it is among
the relevant considerations in determining reasonable suspicion
Unprovoked flight
1. majority rejected states proposed per se rule that unprovoked flight
always provides the reasonable suspicion, but at the same time rejected
the DFs proposed per se rule that it never did.
(Paper bag?)
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The 2 prongs may, in many circumstances, overlap unprovoked flight would usually
and almost always only happen in inner city neighborhoods. The only facts were: (1)
inner city and (2) someone running.
3) Is it really an unprovoked flight? There are many reasons why someone could take
off and run.
There are different reactions based on cultural background.
There might be other different reasons for an innocent person to run away
from a place where there is a caravan of police officers they might want to
evade being in the middle of trouble.
4) Essentially, the Court has made it more likely than not that certain people are going to
have reduced 4th Amendment protections; by virtue of these prongs, the net sweeps
certain economic classes. 4th Amendment now is an issue for only certain people.
The Court has even said that incongruity race out of place can be
reasonable suspicion. The result is a reduced 4th Amendment right.
5) Does the Courts holding that unprovoked flight in a high crime area constitute an
implicit adoption of an alternate per se rule? Probably not, rather, the Court seems to
want to let each case depend on its own facts.
6) The Court did not address whether the frisk was justifiable. Did the facts support a
reasonable suspicion that Wardlow was armed and dangerous?
7) Minority Groups Harassment Stevens concurrence said that this factor should be
taken into account. Is this relevant under the majoritys opinion?
2. Source of Information Anonymous Tips
a. Alabama v. White (1990) Generally
i. Facts:
1) Police received an anonymous telephone tip that DF White would be leaving a
particular apartment (235-C) at a particular time in a particular vehicle (brown
Plymouth station wagon with the right tail light broken), that she would be going to a
particular motel (Dobeys motel), and that she would be in possession of about one
ounce of cocaine inside a brown attach case.
2) The officers immediately proceeded to the apartment building, saw a vehicle
matching the caller's description, observed White as she left the building (although
she had nothing in her hands) and entered the vehicle. They followed her along the
most direct route to the motel and stopped her vehicle just short of the motel.
3) DF consented to a search of the vehicle and locked attach case, which revealed
marijuana and, after White was arrested, cocaine was found in her purse.
ii. Issue: Whether an anonymous tip may furnish reasonable suspicion for a stop.
iii. Holding: The anonymous tip, as corroborated by independent police work, exhibited
sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.
When the officers stopped DF, the anonymous tip had been sufficiently corroborated to
furnish reasonable suspicion that respondent was engaged in criminal activity. The
investigative stop, therefore, did not violate the 4th Amendment. When significant aspects of
the informant's predictions were verified, there was reason to believe that the informant was
honest and well-informed.
iv. Rationale:
1) An informant's tip may carry sufficient "indicia of reliability" to justify a Terry stop
even though it may be insufficient to support an arrest or search warrant. Moreover,
Illinois v. Gates adopted a "totality of the circumstances" approach to determining
whether an informant's tip establishes probable cause, whereby the informant's
veracity, reliability, and basis of knowledge are highly relevant. These factors are also
relevant in the reasonable suspicion context, although allowance must be made in
applying them for the lesser showing required to meet that standard.
2)

49

Standing alone, the tip here is completely lacking in the necessary indicia of
reliability, since it provides virtually nothing from which one might conclude that the
caller is honest or his information reliable and gives no indication of the basis for his
predictions regarding White's criminal activities.
3) However, reasonable suspicion can arise from information that is less reliable than
that required to show probable cause. Under the totality of the circumstances, the
informant's story was sufficiently corroborated by the police to furnish reasonable
suspicion.
4) What is more significant is the fact that the caller was able to predict DFs future
behavior, which demonstrates a special familiarity with her affairs.
v. Rules:
1) The "totality of circumstances" approach is used to determine whether an informant's
tip established probable cause or the reasonable suspicion required by an officer to
make a Terry stop.
2) The level of suspicion required for a Terry stop was less demanding than that required
for probable cause, and reasonable suspicion could arise from information less
reliable than that required to show probable cause.
2)

3. Florida v. J.L. (2000) Anonymous Tips Concerning Gun Possession

a. Facts: An anonymous caller reported to the Miami-Dade Police that a young black male standing at
a particular bus stop and wearing a plaid shirt was carrying a gun. Two officers went to the bus stop
and saw three black males, and one of them, the DF J. L., was wearing a plaid shirt. Apart from the
tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see
a firearm or observe any threatening or unusual movements. Nevertheless, one of the officers
frisked J. L. and seized a gun from his pocket.
b. Issue: Whether the anonymous tip exhibited sufficient indicia of reliability to provide the officers
with reasonable suspicion to stop and frisk the DF.
c. Holding: No. An anonymous tip that a person is carrying a gun is, without more, insufficient to
justify a police officers stop and frisk of that person.
d. Rationale:
i. Officers' suspicion that J. L. was carrying a weapon arose not from their own observations
but solely from a call made from an unknown location by an unknown caller.
ii. The tip lacked sufficient indicia of reliability to provide reasonable suspicion to make a Terry
stop because it provided no predictive information (essential to the holding in White) and
therefore left the police without means to test the informant's knowledge or credibility.
iii. The accurate description of DFs appearance was not enough the tip must be reliable in its
assertion of illegality, not just in its tendency to identify a determinate person.
e. Rule: A Terry "stop and frisk" search based only on an uncorroborated anonymous tip is invalid
under the 4th Amendment because it does not provide the officers with the sufficient indicia of
reliability to form a reasonable suspicion.
f. Notes:
i. The Court rejected the per se rule (Richardson) of a "firearm exception," under which a tip
alleging an illegal gun would justify a stop and frisk even if the accusation would fail
standard pre-search reliability testing.
ii. The Court emphasized that its holding spoke only of cases in which the officers authority to
make the initial stop was at issue.
iii. The Court left open the question of whether there could be circumstances under which the
danger alleged in an anonymous tip might be so great -- e.g., a report of a person carrying a
bomb -- as to justify a search even without a showing of reliability.
iv. White compared to J.L
50

In White: anonymous tip + official corroboration of anticipated behavior = sufficient

indicia of reliability to justify forcible detention
2) In J.L.: anonymous tip without anticipated behavior = not sufficient indicia of
reliability to justify forcible detention
1)

Does Anonymous Tip Provide Reasonable Suspicion? Predicative?!!!

WHITE yes reasonable suspicion
J. L. no reasonable suspicion
1. Leave apartment
1. Bus stop
2. Brown station wagon
2. Plaid Shirt
3. Going to Dobey Motel
3. Gun
4. Drugs
If one knows about some things, she is likely to know about
Not enough quantity, quality, no prediction of future behavior.
other things as well.
Accurate description of DFs appearance is not enough; tip
Specific facts, but mainly, predicted future behavior confirmed
must be reliable in its assertion of illegality, not in its tendency
by the police.
to identify a person
Court said that the grievance or fear that anyone could provide
Anyone could give this description and harass the individuals
certain information as in this case does not weight as much as
not reliable. Although reasonable suspicion is less than
in the case requiring probable cause.
probable cause, this is way too loose.

4. Airport Cases Regarding Reliance Upon Drug Courier Profiles:

a. Context: Court must make independent evaluations of reasonable suspicion showings and not simply
defer to an officers reliance on a combination of factors set forth in a profile.
b. Reid v. Georgia (1980) NO REASONABLE SUSPICION on the basis that DF:
i. had arrived on a flight from Ft. Lauderdale (alleged to be a principal place of origin of
cocaine)
ii. had arrived in the early morning, when law enforcement activity is diminished
iii. and his companion appeared to be trying to conceal the fact that they were traveling together
and had not luggage other than their shoulder bags
1) All but the last of these facts described a very large category of presumably innocent
travelers, who would be subject to virtually random seizures if the Court upheld the
search here.
c. Florida v. Royer (1983) YES REASONABLE SUSPICION on the basis that DF:
i. was young, casually dressed, pale and nervous
ii. had been looking around at other persons in the airport
iii. had paid cash for a one-way ticket
iv. had checked his suitcases by placing on each an identification tag bearing only a false name
and the name of the airport to which he was traveling. When officers approached him and
asked for id, they discovered that he was traveling under a fake name but doesnt the
reasonable suspicion must exist before the stop? Or is it before the search?
d. United States v. Sokolow (1989) YES REASONABLE SUSPICION on the basis that DF:
i. had paid $2100 for 2 round-trip tickets from a roll of $20 bills
ii. was traveling under a name that did not match the name under which his telephone number
was listed
iii. original destination was Miami, a source city for drugs
iv. had stayed in Miami only 48 hours, even though a round-trip from his point of origin,
Honolulu, to Miami takes 20 hours
v. appeared nervous during his trip
vi. checked none of his luggage obvious, only stayed for 2 days, he didnt need to check
luggage
1) Note: Agents stopped the suspect after becoming aware of all the facts listed
5. Reasonable Suspicion of Completed Criminal Activity

51

a. United States v. Hensley (1985) Court held that Terry detentions to investigate completed
criminal activity are constitutional if based upon a reasonable suspicion that a person was involved
in or is wanted in connection with a completed felony.
D. LECTURE: PERMISSIBLE SCOPE OF STOPS, FRISKS, AND SWEEPS
1. Protective Sweep Limited and protected search of premises to protect of dangers
a. Michigan v. Long
i. Court said that where the police reasonably suspected that the person is dangerous, the police
is allowed to do a limited search of the areas where the individual could obtain a weapon.
b. Maryling v. Bui
i. police had arrest warrant and went into DFs house and was arrested as he was coming up
from the basement. The officers conducted a search of the basement and found incriminating
evidence. Police was entitled to do more than Chimel they could search the basement
because the Court felt that the interest involved was a Terry interest maybe there was
someone in the basement hiding with a weapon, etc. Also, if the police finds things in plain
view the seizure is justified.
2. Plain Squeeze Doctrine If an officer is acting on the course of its responsibility, and can conclude
a. Minnesota v. Dickerson
i. officer was doing a Terry stop and search and felt a small pointing thing in the pocket. The
officer testified that he thought it was cocaine. He concluded that there was reasonable
suspicion that the pee shape thing was cocaine, he searched and found it. The problem was
that it wasnt a weapon. The Court said that if an officer determines that there is probable
cause, on the basis of touch while in the conducting a lawful Terry frisk, that there are drugs
on the suspect, the officer can get it because there has been no more But touch must be within
the scope of lawful activity.
ii. However, the Court held that the officer did not conduct the limited frisk authorized by Terry
and the incriminating nature was not immediately apparent and therefore the cocaine was
illegally obtained.
iii. The problem with this case is that if the officer is doing a lawful Terry frisk for weapons and
they touch something that gives them probable cause to know that it is an illegal substance,
the officer can search for it, remove it and it can be used as evidence.
E. LECTURE: SPECIAL BALANCING CONTEXTS SPECIAL NEEDS SEARCHES
1. Searches directed as students
a. NY v. TLO Warrantless search of student handbag was reasonable with reasonable suspicion but
not probable cause to believe he had cigarettes in his bag. SC said the State had a special need to
conserve obedience, etc.
2. Drug testing conducted by private employers but when government employees are tested or government
requires employees to be tested, the Fourth Amendment applies.
a. Air controller, etc can be drug tested
3. Border searches and seizures interest in protecting American borders and regulating who and what comes
into the country. Are authorized without probable cause, reasonable suspicion, and sometimes without any
suspicion at all.
4. Permanent fixed checks near the border
a. US v. Martinez Fuerte Court reasoned that the State interest in investigating and detaining flow of
illegal immigrants was greater than the individuals interest
5. Temporary fixed sobriety check points
a. Michigan Department of State Police v. Six temporary fixed sobriety check points are reasonable
balance of state interest and nature of intrusion has to yield. Court reasoned that it was dealing with
security issue.
52

b. City of Indianapolis Court invalidated a check point program with primary purpose of discovering
illegal drugs. Court said that it violated Fourth Amendment because the primary purpose was
indistinguishable from the general purpose of preventing crime. It would be like conducting a
random search, none of them triggering suspicion or probable cause.
i. Who knows how long this case will hold as it is the focus of the Court right now is
regarding terrorists but as soon as that passes, there is a question of whether this area would
take the heat.

CONFESSIONS
I.
A.

DUE PROCESS OF LAW AND CONFESSIONS

CONTEXT
1. Common law rule: confession forced from the mind by the flattery of hope, or the torture of fear, comes in
so questionable shape when it is to be considered as evidence of guilt, that no credit ought to be given to it;
and therefore it is rejected. Coerced confessions were excluded from evidence because of fear that they
would be untrustworthy.
2. Brown v. Mississippi, 297 U.S. 278 (1936) First case in which the Court overturned convictions based on
confessions obtained after DFs had been whipped until they agreed to confess to the statements as the
officers dictated because the convictions violated the Due Process of law.
3. Brown was entirely consistent with the common law rule. However, the Court developed additional
concerns and its later decisions could not be explained entirely on the basis of untrustworthiness.
4. In the mid-1960s Court held that both the Fifth Amendment Privilege Against Self-Incrimination and the
Sixth Amendment Right to Counsel also governed the constitutional admissibility of incriminating
statements Court turned to these additional guarantees in search of some automatic device by which the
potential evils of incommunicado interrogation could be controlled.
5. The 5th and 6th Amendment decisions did not completely displace the due process standard. They co-existed
with due process and still do. If youre defense counsel, Due Process can have advantage over Miranda.
A. In some cases, evidence must be excluded on Due Process grounds even though it was not obtained
in violation of Miranda.
B. If you go with Due Process, you may get a better exclusionary rule than if you argued that it was a
Miranda violation confession due process exclusionary rule is much stricter
I.
4th Amendment exclusionary rule is not constitutionally required. The 5th Amendment
(Miranda) exclusionary rule is required by has certain exceptions (impeachment,
good faith, attenuation Elstad). However, a violation of Due Process Clause carries
with it an automatic rule of exclusion.
C. Also, even if established that a statement has been obtained in violation of Miranda, determining
whether the statement would be admissible under the Due Process cases will often have important
practical consequences under Elstad.
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14th AMENDMENT CASES DETERMINING VOLUNTARINESS

1. Context:
a. The question in these cases is whether the DFs will was overborne. The Court employed a case-bycase analysis and considered both the police conduct in procuring the confession and the DFs ability
to withstand coercion.
b. The problem with the voluntariness analysis was that it provided no guidance to the police and
required a very extensive examination of the facts.
c. These cases present 2 fundamental interests of society: (1) its interest in prompt and efficient law
enforcement, and (2) its interest in preventing the rights of its individual members from being
abridged by unconstitutional methods of law enforcement.
There is no way of knowing how many confessions are false. Promises of leniency are not allowed. Vague Promises
are. Cops cannot pretend to be a lawyer or clergymen but they can pretend to be cellmates. You have the case of the
central park joggers who confessed to a rape while later a DNA test proved they were innocent.
2. Ashcraft v. Tennessee (1944)
a. Facts: DFs wife traveled at 3 a.m. from her home in Memphis, Tennessee, to Kentucky to visit her
mother. She was found dead a few miles out of Memphis with cut places inflicted by blows on her
head that caused her death. DF claimed that the alleged confessions used at trial had been extorted
from them by state law enforcement officers in violation of the 14th Amendment.
b. Holding: Upon undisputed evidence, this Court concludes that if the defendant Ashcraft made a
confession it was not voluntary but compelled, and that his conviction, resting upon the alleged
confession, must be set aside as in violation of the Constitution.
c. Rationale:
i. The evidence shows a situation so inherently coercive that is irreconcilable with the
possession of mental freedom by the DF.
ii. Factors:
1) PL was a citizen of excellent reputation 10 days' examination of the Ashcrafts
maid, and of several others, in jail where they were held, had revealed nothing
whatever against Ashcraft. Inquiries among his neighbors and business associates
likewise had failed to unearth one single tangible clue pointing to his guilt.
2) 36 hours of interrogation
3) Trapped, isolated
4) Without sleep or rest physically tired
5) Relays of questions by experienced investigators, and highly trained lawyers
6) From 7 p.m. on Saturday until 6 a.m. on Monday morning, Ashcraft denied that he
had anything to do with the murder of his wife.
7) At a hearing before a magistrate about 8:30 Monday morning Ashcraft pleaded not
guilty to the charge
d. Notes:
i. Basically, if the court found that the way that the interrogation was conducted violated the
principles of Due Process, the statement was involuntary.
ii. Although there were disputes of fact, the Court based its decision only in the undisputed
facts. Additionally, the Court seems to be against secret questioning from the police and
practices that the police was conducting at the time, which raised a number of stories of
people disappearing, etc.
iii. The reason that coerced confessions are not admissible as a result of police conduct is that
such confessions are untrustworthy and unreliable because some people would confess just in
order to get out of the coercive situation.
iv. Majority held that 36 hours of continuous custody and questioning was inherently
coercive. The dissent stated that 1 hour was inherently coercive, however it disagreed
with the majority because it said that, although duration and intensity of an examination was
B.

54

one relevant consideration, the ultimate question should be whether the confessor was in
possession of his own will and self-control at the time of the confession.
e. Unnecessary Delay
i. Federal government and many states have rules providing that people arrested must be
arraigned before a magistrate without unnecessary delay. One approach to restricting
interrogations of suspects in custody is to hold that confessions obtained during a period of
unnecessary delay in bringing the arrested suspect to a magistrate are automatically
inadmissible.
ii. US v. Alvarez-Sanchez
1) Court held that the federal statute does not apply to statements made by a person
being held solely on state charges. Therefore, confession to the US Secret Service
was admissible even though DF gave the confession after being arrested and held in
custody of local law enforcement for 3 days without being arraigned on either state or
federal charges.
f. Determination of Voluntary Statements
i. Jackson v. Denno, 378 US 368 (1964)
1) NY Procedure
If the judge determined that reasonable minds might differ as to whether the
confession was voluntary, he would submit the confessions to the jury and
instruct it that they could use if only if they concluded that it was voluntary. It
has been held to be unconstitutional.
2) Orthodox Procedure:
Judge resolves evidentiary conflicts and makes own determination of whether
the confession is voluntary. If he determines that it is voluntary, the
confession is introduced into evidence and the jury is instructed to consider it
along with the other evidence.
3) Massachusetts Procedure:
Same, except that, if the judge admits the confession, the jury is instructed as
to the definition of voluntary confession and told to consider the confession as
evidence only if it finds that it was voluntary.
The problem for the defense with a judge that follows this approach is that
sometimes the judge may not be sure as to whether the confession is in fact
voluntary and may decide to give it to the jury. However, the jury might not
be very prong to keep the statement out after they hear it.
3. Spano v. New York (1959)
a. Facts:
i. Grand Jury indicted the DF for first degree murder of the victim. DF called a childhood
friend, who was now in the police academy, and told him what had happened, and that he
was planning to get an attorney and turn himself in.
ii. DF arrived the next day at the station with his attorney, who advised him to answer no
questions, and turned himself in. DF was immediately questioned and he refused to answer
any questions for the next 8 hours, while he was denied his repeatedly requests to speak with
his attorney.
iii. After the police brought his friend to try to convince to confess, he agreed to make a
statement at 3:25 a.m. Thereafter, the officers also wanted DF to show them the bridge
where he had allegedly thrown the gun in and on their trip, they also elicited a statement form
DF that the deceased was always in his back, pushing him, and that he was not sorry he had
shot him.
b. Holding: The Court found that DFs confession was inconsistent with the 14th Amendment and
therefore was involuntary.
55

c. Rationale: DFs will was overcome by official pressure, fatigue, and sympathy falsely aroused in a
post-indictment setting. Court conducted a totality of the circumstances analysis. Factors:
i. Relays of questioning for nearly 8 hours.
ii. The questioning was not conducted during normal business hours, but began in early
evening, continued into the night, and did not bear fruition until morning.
iii. DF repeatedly asked for his lawyer
iv. Officers lied to DF by telling him that they could not find the lawyer in the phone book
v. Trickery Officers used DFs "childhood friend," now a police officer, to play upon his
sympathy.
vi. No high education level
vii. History of mental problems
viii.
DF was an immigrant
d. Concurrence: The more important ground of the decision is that the defendant was entitled to be
represented by counsel and, during perhaps the most critical period of the proceedings, the DF did
not have the aid of counsel in any real sense. The secret inquisition by the police when DF asked for
and was denied counsel was a serious invasion of his constitutional rights under the 14th Amendment.
It should be noted that this case deals not with a suspect but with a man who has been formally
charged with a crime; therefore, he was entitled to counsel.
e. Notes:
i. Court says that coerced confessions are not admitted into evidence, not only because they
have a concern for unreliability, but also because the police must obey the law while
enforcing the law, society cannot let the cops become the criminals
ii. The Concurrence set up what would later become the doctrine under the 6th Amendment.
4. Mincey v. Arizona, 437 US 385 (1978)
a. Facts: DF was seriously injured in a narcotics raid in which an officer was killed. A few hours later,
a detective questioned him in the intensive care unit of a hospital. Lying on his back in a bed,
encumbered by tubes, needles, and breathing apparatus, DF repeatedly expressed his whish not to be
interrogated. Officer continued to question him until DF answered questions by writing on a piece
of paper until he wrote this is all I can say without a lawyer.
b. Holding: The Court held that DFs confession was inadmissible because it was involuntary. The DF
wanted not to answer but weakened by the pain and shock, isolated from family, friends and counsel,
and barely conscious, his will was simply overborne.
5. Colorado v. Connelly (1986)
a. Facts: DF approached a police officer and, without any prompting, confessed to a murder. The
officer immediately advised him of his Miranda rights and DF said that he understood the rights.
After another police officer arrived, DF was again advised of his rights. DF was then held in custody
and proceeded to confess to a child's murder. The next day, DF stated for the first time that voices
had told him to confess.
b. Procedure: The trial court herd testimony a psychiatrist's testimony that DF suffered from a
psychosis that interfered with his ability to make free and rational choices and, although not
preventing him from understanding his rights, motivated his confession. Based on this testimony,
the court suppressed the statements since it held that they were "involuntary," notwithstanding the
fact that the police had done nothing wrong or coercive in securing the confession. The Colorado
SC affirmed.
c. Issue: Whether, in the absence of police coercion, a confession is involuntary where the DFs
mental state might have interfered with his ability to make free and rational choices.
d. Holding: No. There must be some sort of coercive police activity in order to find that a confession
is involuntary within the meaning of the Due Process Clause. The Court concluded that here, the
taking of DFs statements and their admission into evidence constituted no violation of that Clause.
e. Rationale: The Court reasoned that all cases in which the Court has held the statements involuntary
focused upon the crucial element of police overreaching an element of coercive police conduct. It
56

found that absent such conduct, there is simply no basis for concluding that any state actor has
deprived a criminal DF of due process of law. The court held that, although mental condition is
surely relevant to an individuals susceptibility to police coercion, mere examination of the
confessants state of mind, and apart from its relation to official coercion, can never conclude the due
process inquiry.
f. Rule: There must be some sort of coercive police activity in order to find that a confession is
involuntary within the meaning of the Due Process Clause.
g. Notes:
i. The problem here is State Action The Colorado Court approached it under Shelley v.
Kramer in that at the time that the issue is brought to the court, it becomes state action.
ii. The SC says that there is no state action because it focused on the polices actions, not the
DFs.
iii. This case shifts the focus to state conduct
1) Isnt it a violation of Due Process to use a confession by a person that was mentally ill
and which is the only evidence the government has to convict him.
2) There may be a case where the police, aware of the mental condition, use that
condition to get a confession; however, this case is different. The police did not know
about the mental condition until after the confession.
iv. The most surprising aspect of Connelly could be its rejection of reliability as a relevant
consideration for determining the admissibility of a confession.
v. In deciding whether police trickery renders a confession inadmissible under Due Process,
some lower courts have drawn a distinction between trickery that would be likely to induce a
false confession and trickery that would have the effect of inducing a true confession.
6. Promises by the Government
a. Brady v. US (overruled by Fulminante)
i. Court said in dictum that even a mild promise of leniency may render a confession
involuntary because of its potentially coercive effect.
b. Arizona v. Fulminante, 499 US 279 (1991)
i. The Court repudiated its past decision in Bram v. US (which held that in order to be
admissible, a confession must not be obtained by any direct or implied promises, however
slight) and held that its prohibition on confessions induced by government promises does not
state the standard for determining the voluntariness of a confession. Nevertheless, the Court
indicated that the effect of a government promise must be weighed in determining the
voluntariness of a confession. In other words, it is a factor but it is not determinative.
7. Final Notes
a. Just about every factor involved in the interrogation becomes relevant.
b. What is voluntary? Many times people would just confess in order to avoid the pressure and
harassment
c. Psychological torture can become tantamount to physical torture exemplified in domestic violence
cases
d. We can see the developments leading toward Miranda because every time there was a confession the
DF would later claim that it was involuntary and in violation of the Fourteenth Amendment. With
Miranda, the Court tried to prevent so much litigation and instead take out their golf clubs.

57

II.

THE 5TH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION AND CONFESSIONS

A.

INTRODUCTION
1. By the mid 1960s the Court was looking for new means to regulate police practices used to obtain
incriminating statements. The problem with Ashcraft and Spano (Due Process analysis) is that they were
based on the totality of the circumstances. The Court would put everything together, mix it up and come up
with a conclusion.
A. Problems: a) necessitate evidentiary hearings judicial resources, and b) they come out in different
ways maybe one case involved 35 hours of interrogation found the statement involuntary and
another case involving 47 hours of interrogation which found the statement voluntary.
2. The Miranda court saw these problems and saw that there was no predictability which helps people
govern their conduct and make decisions many times under the Due Process time, the officers would take
the risk and get the confession. The Court in Miranda set out measures that would prevent the behavior
from coming up.
3. Miranda v. Arizona held that the Fifth Amendment Privilege provides specific protections to suspects
subjected to custodial interrogation. Although Miranda has not been overruled, the Court today has a
different view from the Court that decided it.
4. Miranda also held that the police may not interrogate a suspect in custody unless he first waives his or her
constitutional protection against such interrogation. It also provided that certain additional protections come
into effect if the suspect invokes the right to remain silent or the right to an attorney. Despite the Courts
belief that the decision would eliminate much litigation regarding confessions, it has had the opposite effect
it has generated extensive litigation relating to each of the specific Miranda requirements; it has raised
issues of custody, interrogation, waiver, and invocation of other protections.

B.

CONSTITUTIONAL BASIS MIRANDA V. ARIZONA

1. Miranda v. Arizona (1966)
A. Facts:
58

DF while in police custody was questioned by police officers, detectives, or a prosecuting

attorney in a room in which he was cut off from the outside world. None of the defendants
was given a full and effective warning of his rights at the outset of the interrogation process.
In all four cases the questioning elicited oral admissions, and in three of them signed
statements as well, which were admitted at their trials.
II. The 4 cases share salient features: (1) incommunicado interrogation of individuals in a
police-dominated atmosphere, (2) resulting in self-incriminating statements (3) without full
warnings of constitutional rights.
III. Miranda was arrested and taken to the police station where officers questioned him for 2
hours. He signed a confession, which stated at the top, in a typed paragraph, that it was made
voluntarily and that D had full knowledge of his legal rights. DF was not in any way
informed of his right to consult with an attorney and to have one present during the
interrogation, nor was his right not to be compelled to incriminate himself effectively
protected in any other manner.
Holding: In each of these cases the statements were obtained under circumstances that did not meet
constitutional standards for protection of the privilege against self-incrimination.
Rationale:
I.
The prosecution may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation (questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant
way), unless it demonstrates the use of procedural safeguards effective to secure the Fifth
Amendment's privilege against self-incrimination.
1) The atmosphere and environment of incommunicado interrogation as it exists today is
inherently intimidating and works to undermine the privilege against selfincrimination. Unless adequate preventive measures are taken to dispel the
compulsion inherent in custodial surroundings, no statement obtained from the
defendant can truly be the product of his free choice.
Rules:
I.
In the absence of other effective measures provided by Congress or the States, the following
procedures to safeguard the Fifth Amendment privilege must be observed:
1) Prior to interrogation, the person in custody must be clearly informed that he has the
right to remain silent, and that anything he says will be used against him in court;
2) He must be clearly informed that he has the right to consult with a lawyer and to have
the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be
appointed to represent him.
II. The defendant may waive effectuation of these rights, provided the waiver is made
voluntarily, knowingly and intelligently (unlike the Fourth Amendment) after the warnings
were given. However:
1) If the individual indicates in any manner, prior to or during questioning, that he
wishes to remain silent or not be interrogated, the interrogation must cease;
2) If he states that he wants an attorney, the questioning must cease until an attorney is
present.
3) Where the individual answers some questions during interrogation he has not waived
his privilege and may invoke his right to remain silent or ask for an attorney to be
present thereafter.
III. Where an interrogation is conducted without the presence of an attorney and a statement is
taken, a heavy burden rests on the Government to demonstrate that the defendant knowingly
and intelligently waived his right to counsel.
IV. The warnings required, and the waiver needed, are prerequisites to the admissibility of any
statement, inculpatory or exculpatory, made by a defendant.
Techniques involved in interrogations that Miranda was worried about:
I.

B.
C.

D.

E.

59

I.
II.
III.
IV.

V.

F.

Use of privacy extricate the suspect from his familiar environment; being alone with the
suspect in an interrogation room, away from his family, home, etc. DF losses control.
Use direct comments toward the reasons why the suspect committed the act, rather than
whether he did it
Minimize the moral seriousness of the offense and put the blame on the victim or on society
Offer legal excuses for his actions: you probably didnt go out looking to shoot him you
probably expected something from him and you carried the gun for your own protection.
You shot him in self-defense, right?
Where emotional appeals and tricks do not work, they used oppressive atmosphere of dogged
persistence
1) Friendly-unfriendly or Mutt and Jeff technique: one officer played the role of the
angry officer willing to do anything to the suspect in order to get him in jail while the
other acts as though he wanted to help the suspect.
2) Line-up trick: officer interrogates the suspect, then takes a break to place him in a
line-up where the witness or complainant confidently point out the suspect as the
guilty man. The questioning resumes as though there were now no doubt about the
guilt of the suspect.
3) Reverse line-up: suspect is placed in a line-up and is identified by several fictitious
witnesses or victims who associate him with different offenses. The suspect becomes
desperate and confesses to the offense under investigation in order to escape from the
false accusations.
4) Where the suspect refuses to talk: examiner first concedes him the right to remain
silent in order to disappoint the suspect in his expectation of an unfavorable reaction
on the part of the examiner and to impress him with the apparent fairness of the
examiner. The examiner then talks to the suspect and tells him the incriminating
significance of the suspects refusal to talk.
5) Where the suspect asks for an attorney: the examiner first tells the suspect to talk to
him without involving anyone else. Then the examiner suggests the suspect that he
saves himself or his family the expense of such a professional service, especially if he
is innocent.
6) Do whatever you can as long as you dont leave a trail dont leave marks, give the
suspect some food, continue interrogation for hours and stop only for a few hours for
sleep all this in order to avoid claims of coercion and duress.

Notes:
I.
II.

III.

IV.

V.

Before Miranda, the 5th Amendment would usually only come into play at trial the right of
the DF to not take the stand.
The Court tries to draft a rule to prevent coercion in interrogation of suspects. All the suspect
needs to show now is that the suspect was subjected to interrogation without the safeguards
and he may suppress the statements.
The problem with the holding is that it leaves questions opened: what is questioning, what is
custody, what do you need to do in order to invoke your rights, what constitutes waiver, can
you do something behaviorally or do you have to sign something expressly stating that you
are waiving the rights?
Whenever you are surrounded by the police, you loose your sense of freedom and you are in
custody and unless you voluntarily, knowingly, and intelligently waive your rights, the
statements may not be used at trial.
Miranda Waivers Great majority of suspects waive their Miranda rights. Why?
1) Some suggest that
It is because of suspects misplaced confidence in their own ability to talk
their way out of trouble; confessions are the result of persuasion and the
suspects overconfidence, not of pressure and fear.
60

Some people sense that the silence is just going to get them into trouble.
Others have excessive pride and think that they can outsmart the police; they
think they are so clever that the police wont get him.
Still others might confess because the situation might be so coercive that even
with the safeguards of Miranda the individuals feel the need to confess.
Self Sabotage Mechanism There is a criminal mentality, Reconsnicolf, a
character of Russian novel commits the perfect crime but he keeps going back
to the scene and looking at things, etc., where he committed the crime inside
of himself he wanted to sabotage his own success in tricking the police.
Maybe we, as a society, are
2) Others refute that conclusion by arguing that, when the efficacy of the police
confidence game depends so heavily on police custodial control of the suspect in a
very hostile, threatening environment, it may be impossible to distinguish between
persuasion and fear.

C.

OPEN QUESTIONS AFTER MIRANDA

1. What is Custody?
A. Context:
I.
The Court has held that interrogation includes direct questioning or any practice reasonably
likely to evoke an incriminating response from a suspect.
II. Miranda held that once the defendant is in custody and then questioned, there is a
presumption that any statements (inculpatory or exculpatory) are coerced unless the officers
give the Miranda warnings.
III. Quarles public safety exception
IV. Dickerson about face: even though we have said this is a prophylactic rule, what we mean
is that Miranda is a constitutional rule and Congress cannot overrule it.
B. Berkemer v. McCarty (1984) TERRY STOPS
I.
Facts: Officer stopped DFs vehicle and asked DF to get out of the car after observing the
car weaving in and out of a highway lane. He noticed that the DF was having difficulty
standing and, at that time, concluded that DF would be charged with a traffic offense and not
be allowed to leave but did not tell this to the DF. When DF could not perform a field
sobriety test without falling, the officer asked him if he had been using intoxicants, and he
replied that he had consumed two beers and had smoked marihuana a short time before. The
officer then formally arrested DF and drove him to a county jail, where a blood test failed to
detect any alcohol in respondent's blood. The test did not reveal any alcohol in DFs blood
and the officer again questioned him whether he had been drinking and was under the
influence and whether the marijuana had been subjected to chemicals. DF again replied that
he was "barely" under the influence of alcohol. The officer never, until this point, gave DF
the Miranda warnings.
II. Issue: Whether the officer must give the Miranda warnings during a Terry stop.
III. Holding: No. Terry stops are non-custodial for Miranda purposes. Therefore, the roadside
questioning of motorist and pre-arrest statements motorist made in answer to such
questioning were admissible against motorist. However, the motorist's statements made at
station house were inadmissible since, at least as of moment he was formally arrested
following traffic stop and instructed to get into police car, he was "in custody" and he had not
been informed of his constitutional rights.
IV. Rationale:
1) The Court rejected an exception for cases involving misdemeanors as opposed to
felonies.
2) Although an ordinary traffic stop curtails the "freedom of action" of the detained
motorist and imposes some pressures on the detainee to answer questions, such
61

pressures do not sufficiently impair the detainee's exercise of his privilege against
self-incrimination to require that he be warned of his constitutional rights.
Traffic stop is usually brief,
The motorist expects that, while he may be given a citation, in the end he most
likely will be allowed to continue on his way
Questioning is limited
Detainee is not obliged to respond
Unless probable cause arises in a short time, the detainee must be released
Conducted in public, and the atmosphere surrounding it is substantially less
"police dominated" (Draytons eyes are on you) than that surrounding the
kinds of interrogation at issue in Miranda and subsequent cases in which
Miranda has been applied.
3) However, if the stop escalates to an arrest, if DF subjected to restraints comparable to
those associated with a formal arrest, Miranda will apply.
Basically, if the traffic stops turns into the circumstances raising it to the
degree of a formal arrest, Miranda applies.
Here, although the arresting officer apparently decided as soon as respondent
stepped out of his car that he would be taken into custody and charged with a
traffic offense, the officer never communicated his intention to DF. Since DF
was not taken into custody for the purposes of Miranda until he was formally
arrested, his statements made prior to that point were admissible against him.
* A traffic stop is a 4th Amendment seizure.
V.

Rules:

A person subjected to custodial interrogation is entitled to the benefit of the

procedural safeguards enunciated in Miranda, regardless of the nature or severity of
the offense of which he is suspected or for which he was arrested.
2) The roadside questioning of a motorist detained pursuant to a routine traffic stop does
not constitute "custodial interrogation" for the purposes of the Miranda rule.
However, if the stop escalates to an arrest, Miranda applies the law distinguishing
Terry stops from arrests (Dunaway v. NY) also determines whether custody exists
under Miranda.
3) A policeman's unarticulated plan has no bearing on the question whether a suspect
was "in custody" at a particular time; the only relevant inquiry is how a reasonable
man in the suspect's position would have understood his situation (see also Beheler
and Stansbury).
VI. Notes:
1) The government argued for 2 exceptions to Miranda
First argued for an exception for misdemeanor offenses
1. Court said no because officers many times are not aware of the gravity
of the crime because it may depend on the injury, or other
circumstances. One of the good things about Miranda is that it was a
clear guideline for officers.
Second, it argued for an exception for roadside questioning of a motorist
detained pursuant to a routine traffic stop
1. Court said YES. Traffic stops are different from Mirandas concerns:
o Brief, in public place (like US v. Drayton), people do not feel
that they are at the mercy of the police
1)

62

o The public scrutiny reasoning is probably flawed the fact that

you are in public most times make you feel pressure to
cooperate to be done with the encounter in any way.
C. Yarborough v. Alvarado (2004) (5 to 4 decision with OConnor concurring)
I.
Facts: Officer left a message at DFs house and called DFs parents at their work place,
requesting to speak with DF. DF was 17 years old and his parents brought him to the police
station to be interviewed. DFs parents waited in the lobby while DF was being interrogated.
The officer took DF to a small room where only the two of them were present. The interview
lasted about 2 hours, and Alvarado was not given the Miranda warnings. Although DF at
first denied being present at the shooting, the detective kept insisting and told him that other
witnesses had said different. DF then slowly began to change his story, saying that he was
present when the carjacking occurred but said that he didnt know what happened or who had
a gun. The detective then appealed to DFs sense of honesty and the need to bring the man
who shot the victim to justice until DF finally admitted that he had helped Soto try to steal
the victim's truck and to hide the gun after the murder. The officer twice asked DF if he
needed a break but Alvarado said no and, when the interview was over, he returned him with
his parents, who drove him home.
II. Procedure: Trial court denied the motion on the ground that the interview was noncustodial.
DF filed for habeas corpus relief under AEDPA, under which a federal court can grant that
relief if the state court adjudication resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the SC.
III. Issue: Whether the State courts holding that DF was not in custody under Miranda is
unreasonable under clearly established federal law.
IV. Holding: No. The state court considered the proper factors and reached a reasonable
conclusion that Alvarado was not in custody for Miranda purposes during his police
interview.
V. Rationale: The Court found that:
1) Miranda custody test is an objective test. Two discrete inquiries are essential:
The circumstances surrounding the interrogation, and
Given those circumstances, whether a reasonable person would have felt free
to terminate the interrogation and leave.
2) The court must apply an objective test to resolve the ultimate inquiry: was there a
formal arrest or restraint on freedom of movement of the degree associated with a
formal arrest.
3) The state-court adjudication did not involve an unreasonable application of clearly
established law when it concluded that DF was not in custody because fair-minded
jurists could disagree over whether DF was in custody there were facts in favor and
against a conclusion that DF was in custody. In fact, a number of the facts echoed
those in Mathiason.
Facts showing DF was in custody
1. Comstock interviewed Alvarado at the police station
2. Interview lasted 4 times longer than the 30-minute interview in
Mathiason
3. Comstock did not tell Alvarado that he was free to leave
4. DF was brought to the station by his legal guardians rather than
arriving on his own accord
5. His parents allegedly asked to be present at the interview but were
rebuffed.
Facts showing DF was not in custody
1. The police did not transport him to the station or require him to appear
at a particular time
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2. did not threaten him or suggest he would be placed under arrest

3. his parents remained in the lobby during the interview, suggesting that
the interview would be brief
4. Comstock appealed to Alvarado's interest in telling the truth and being
helpful to a police officer
5. Comstock twice asked Alvarado if he wanted to take a break
6. at the end of the interview, Alvarado went home
4) The state court's failure to consider DF age and inexperience does not provide a
proper basis for finding that the state court's decision was an unreasonable application
of clearly established law.
Miranda is an objective test. Looking at the mindset of the DF could be
viewed as creating a subjective inquiry (although it would be proper for Due
Process analysis).
5) Reliance on Alvarado's prior history with law enforcement was improper (same as
Beheler)
In most cases, the police will not know a suspect's interrogation history
Even if they do, the relationship between a suspect's experiences and the
likelihood a reasonable person with that experience would feel free to leave
often will be speculative. Officers are not asked to consider these contingent
psychological factors when deciding when suspects should be advised of
Miranda rights.
VI. Concurrence: DFs age here should not be taken into consideration because he was almost
18. However, there might be cases where the age will be relevant.

PROSECUTION

DEFENSE
Looks like Dunaway Court said that the seizure was
tantamount to a full blown arrest.
It doesnt matter what Alvarado said the Miranda rule is
a clear cut rule. Once you are in custody and are being
interrogated there is a presumption that everything that
comes out of your mouth is coerced it doesnt matter
what the person feels. In fact, Miranda eliminated that
inquiry in part because the tactics used by the police made
people feel they were not being coerced.

Alvarado himself said that he did not feel coerced

VII.

Notes:

The Court only decided that the state courts conclusion that DF was not in custody
was not an unreasonable application of clearly established Federal law. If the
review would have been a de novo review, what would have been the result?
Probably the same under the Courts view of Miranda.
2) After Alvarado, what factors are important in determining whether a DF is in custody
within Miranda? Will DFs characteristics, such as age or prior experience with the
police, ever be factors that can be taken into account?
D. Suspects Presence at the Police Station
I.
Oregon v. Mathiason (per curiam) (1977) SUSPECTS PRESENCE AT STATION
1) First case the Court applied its custody test after Miranda before Berkemer.
2) A police officer contacted the suspect after a burglary victim identified him. The
officer arranged to meet the suspect at a nearby police station. At the beginning of the
questioning, the officer stated his belief that the suspect was involved in the burglary
1)

64

but that he was not under arrest. During the 30-minute interview, the officer falsely
told him that his fingerprints had been found at the burglary scene; the DF then
confessed and admitted his guilt. He was then allowed to leave.
3) The Court held that the questioning was not custodial because there was "no
indication that the questioning took place in a context where the suspect's freedom to
depart was restricted in any way." The Court noted that the suspect had come
voluntarily to the police station, that he was informed that he was not under arrest,
and that he was allowed to leave at the end of the interview.
4) When a suspect comes voluntarily to the police station in response to an invitation by
the police, he will not necessarily be in custody
E. Objective Test
I.
California v. Beheler (per curiam) (1983) POLICES KNOWLEDGE IRRELEVANT
1) The Court reached the same result in a case with facts similar to those in Mathiason.
2) State court had distinguished Mathiason based on what it described as differences in
the totality of the circumstances. The police interviewed Beheler shortly after the
crime occurred; Beheler had been drinking earlier in the day; he was emotionally
distraught; he was well known to the police; and he was a parolee who knew it was
necessary for him to cooperate with the police.
3) The Court agreed that "the circumstances of each case must certainly influence" the
custody determination, but reemphasized that "the ultimate inquiry is simply whether
there is a formal arrest or restraint on freedom of movement of the degree associated
with a formal arrest." The Court found the case indistinguishable from Mathiason. It
noted that how much the police knew about the suspect and how much time had
elapsed after the crime occurred were irrelevant to the custody inquiry.
II. Stansbury v. California, 511 US 318 (1994) OBJECTIVE TEST OFFICERS
SUSPICION IRRELEVANT
1) Police investigated the murder of 10-year old victim and picked up DF for
questioning viewing him only as a material witness, therefore, the officers did not
give him the Miranda warnings. DF made an incriminating statement and then the
officer gave him Miranda warnings.
2) An officers subjective and undisclosed view concerning whether the person being
interrogated is a suspect is irrelevant to the assessment whether the person is in
custody.
2. What is Interrogation?
A. Rhode Island v. Innis (1980)
I.
Facts: Shortly after a robbery, the officer arrested DF and advised him of his Miranda
rights. DF was twice again advised of his Miranda rights when other police officers arrived
at the arrest scene, and he stated that he understood his rights and wanted to speak with a
lawyer. The officer put DF in the police car to take him to the station in the company of
three officers, who were instructed not to question respondent or intimidate him in any way.
The weapon was missing and one of the officers, talking to another officer, stated that there
were "a lot of handicapped children running around in this area" because a school for such
children was located nearby, and "God forbid one of them might find a weapon with shells
and they might hurt themselves." DF then stated that the officers should turn the car around
so he could show them where the gun was located. Upon returning to the scene DF was
again advised of his Miranda rights, but he replied that he understood those rights but that he
"wanted to get the gun out of the way because of the kids in the area in the school," and then
led the police to the shotgun.
II. Holding: DF was not "interrogated" in violation of his right under Miranda to remain silent
until he had consulted with a lawyer.
III. Reasoning:
65

DF was not subjected to the "functional equivalent" of questioning, since it cannot be

said that the officers should have known that their conversation was reasonably likely
to elicit an incriminating response from DF.
2) There is no evidence to suggest that the officers were aware that DF was peculiarly
susceptible to an appeal to his conscience concerning the safety of handicapped
children, or that the police knew that DF was unusually disoriented or upset at the
time of his arrest; nor that DF would suddenly be moved to make a self-incriminating
response in the context of a brief conversation.
3) "Subtle compulsion" is not enough.
IV. Rule: "Interrogation" under Miranda refers not only to express questioning, but also to any
words or actions on the part of the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to elicit an incriminating response
from the suspect. The latter portion of this definition focuses primarily upon the perceptions
of the suspect, rather than the intent of the police.
V. Dissent: Appealing to conscience is one of the techniques used by the police at the time of
Miranda. The standard should be whether a reasonable person would think that the statement
or question calls for a response. Asking the DF directly where the gun was
VI. Notes:
1) Police practices designed to elicit an incriminating response and any knowledge that
the police may have had concerning the unusual susceptibility of a DF to a particular
form of persuasion might be an important factor in determining whether the police
should have known that their words or actions were reasonably likely to elicit an
incriminating response.
2) Although the conversation by the police was a shot in the dark, it was a very good
one because many criminals have a soft side, children.
3) Under Innis, express questioning is not required; it can be the functional equivalent.
The reasoning behind it is that the police often employ other methods many of the
devices that the police used in Miranda were not direct interrogation (like line-up or
reverse line-up).
3. Does Miranda Apply to Undercover Activity?
A. What are the Governing Standards of Admissibility for Incriminating Statements made by Suspects
in Prison when an Informer Elicits Incriminating Statements?
I.
If the government seeks to introduce the incriminating statements to prove a crime with
which DF was already charged, the 6th Amendment right to counsel and the Due Process
Clause provide the governing standards
II. If the government seeks to introduce statements that relate to a crime with which the suspect
has not yet been charged (as in Perkins and Fulminante), the Due Process Voluntariness test
provides the sole constitutional constraint on admissibility not the 5th Amendment because
it is not interrogation
B. Illinois v. Perkins (1990)
I.
Facts: Police placed an undercover agent in a jail cellblock with DF, who was incarcerated
on charges unrelated to the murder that the agent was investigating. When the agent asked
him if he had ever killed anybody, DF made statements implicating himself in the murder.
He was then charged with the murder.
II. Holding: An undercover agent posing as a fellow inmate need not give Miranda warnings to
an incarcerated suspect before asking questions that may elicit an incriminating response.
III. Reasoning:
1) The essential ingredients of a "police-dominated atmosphere" and compulsion are not
present when an incarcerated person speaks freely to someone that he believes to be a
fellow inmate.
1)

66

Coercion is determined from the perspective of the suspect. When a suspect considers
himself in the company of cellmates and not officers, the coercive atmosphere is
lacking.
If you do not know that you are talking to the police, Miranda does not apply
because the pressures under Miranda are not present; therefore there is no
reason to assume the possibility of coercion.
3) Miranda does not forbid mere strategic deception by taking advantage of a suspect's
misplaced trust (like the false friend cases assumption of risk).
IV. Rule: Miranda warnings are not required when a suspect is unaware that he is speaking to a
law enforcement officer and gives a voluntary statement.
V. Notes:
1) This is like the false friend cases because the person trusted someone and he is
responsible for it.
2) What about the 6th Amendment right to assistance of counsel? It doesnt apply
because the proceedings in which DF was involved had nothing to do with the murder
that the officer was investigating (Moulton).
C. Arizona v. Fulminante (1991)
I.
Facts: DF inmate was in prison for a weapons offense. However, since he was suspected of
murdering his 11-year-old stepdaughter, he was receiving rough treatment from the other
prisoners. An undercover officer posing as an organized crime leader offered DF protection
from the other inmates if he told him the truth. DF then admitted to the undercover agent
that he had murdered her.
II. Holding: Court held that DFs confession had been coerced because DF faced a credible
threat of physical violence unless he confessed. Therefore, the admission into evidence
violated Due Process.
III. Note: Again, here DF was incarcerated for a different crime.
4. Does Miranda Protection Depend on the Nature of the Offense?
A. No. See Berkemer.
5. How Complete and Accurate Must the Warnings Be?
A. California v. Prysock (1981)
I.
Officer said you have the right to have a lawyer appointed to represent you at no cost to
yourself, and added that DF would have an attorney when he went to court and that he
could have one at this time if he wished one.
II. Court said this was sufficient to convey the Miranda warnings relating to the right to counsel.
It held that variations of from the precise warnings prescribed in Miranda are permissible so
long as they reasonably convey the rights included in the original 4 warnings.
B. Duckworth v. Eagen, 492 US 195 (1989)
I.
Officer said to DF that he had the right to the advice and presence of a lawyer even if he
could not afford to hire one. He added, We have no way of giving a lawyer, but one will be
appointed for you, if you wish, if and when you go to court.
II. Court held the warning was sufficient because it accurately described Indianas procedure. It
held that Miranda does not require that attorneys be producible on call, but only that the
suspect be informed that he has the right to an attorney before and during questioning, and
that an attorney would be appointed for him if he could not afford one.
2)

D.

LECTURE: INVOCATION OF PROTECTIONS UNDER MIRANDA

1. Michigan v. Mosely
A. DF refused to talk. 2 hours later different officer gave a new Miranda warnings and DF confessed.
B. Court held that Miranda does not create an indefinite proscription. The stop in Miranda doesnt go
indefinitely. It only requires that the officers scrupulously honor the right of the DF to stop. But is
doesnt mean that it is a freeze forever.
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C.
D.

Here, DFs invocation was scrupulously honored.

There are factors: 2 hour break in between, different subject, different officer came in, there was an
immediate cessation of interrogation after the initial invocation.
2. Edwards v. Arizona
A. DF invoked right to counsel. The police stopped but then returned in the morning to resume
interrogation. Police gave new Miranda warnings and DF eventually confessed.
B. Court held the waiver invalid. Once a suspect invokes the right to counsel, a valid waiver cannot be
establish by showing only that he responded to interrogation, even if there was a fresh Miranda
warnings.
C. The interrogation must cease until an attorney is present. Invoking right to counsel is more than
invoking right to stay silent, because it indicates that the person does not want to deal with the police
without legal aid. Its like admitting he is not competent to deal with them.
D. Notes:
I.
Court suggests that the real magic word is attorney. If you say you dont want to talk, the
police can come back later. However, if you say attorney, its much harder for the police to
succeed.
II. Continuous Custody Requirement: Lower courts have sly held that Edwards protections
(under the 5th Amendment, not the 6th the protection of the 6th applies all the time) will not
apply if, after invoking the right to counsel, the suspect is released from custody. Thus,
officers can approach the suspect when he is again brought into custody and interrogate him.
The rationale is that a suspect who is released is not being subject to the risk of harassment
and pressure that the Court was concerned about in Edwards.
3. What if a suspect says, maybe I ought to get a lawyer or maybe I should call a lawyer, etc.?
A. Davis
I.
DF said, Maybe I should talk to a lawyer.
II. Suspect must clearly and unequivocally invoke the right to counsel to trigger the protections
of Edwards. If the invocation is ambiguous, the police can continue the interrogation beyond
the issue of the lawyer.
4. What if the police interrogated the suspect after the suspect consulted a lawyer?
A. Minnick
I.
Police questioned DF after he had consulted with his attorney. DF waived his right and
confessed.
II. Held: confession was inadmissible. Edwards prohibits the police to initiate interrogation
once the suspect has invoked his right to counsel until counsel is present. Consultation with
counsel does not remove the suspect from the coercive environment.
III. Note: The calling for a lawyer is the loudest voice of the DF.
E.

WAIVER OF MIRANDA RIGHTS

1. Context:
A. Miranda stated that the accused may waive the rights to silence and counsel, but only if, under all
the circumstances, the rights are waived voluntarily, knowingly, and intelligently. The state has a
high burden to prove that the DF waived.
B. Miranda also said that waiver will not be assumed from the silence of DF after the warnings, nor
from the fact that a confession is eventually obtained.
C. Miranda also said that when in doubt, the interpretation must be construed against the state.
2. Is a Written or Express Statement of Waiver Necessary?
A. North Carolina v. Butler (1979)
I.
Facts: DF was arrested after a robbery of a gas station. He was fully advised of his
Miranda rights at the time of the arrest and said nothing when advised of his right to counsel.
He was then taken to the station nearby and was asked if he understood his rights, he said
that he did. The officers, knowing that he was literate, told him that he didnt have to speak
68

nor sign the waiver at the bottom of the form, but that they would like him to talk to them.
He said that he would talk to them but refused to sign the form. DF never attempted to
terminate the questioning and made incriminatory statements.
II. Issue: Whether DF waived his right to the presence of a lawyer when he did not expressly
waived it. Whether an expressed waiver is required.
III. Holding: An express written or oral statement of waiver of the right to remain silent or of
the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably
either necessary or sufficient to establish waiver.
IV. Rationale:
1) Although mere silence is not enough, DFs silence coupled with an understanding of
his rights and a course of conduct indicating waiver may support a conclusion of
waiver.
2) The question of waiver is not one of form, but rather whether the DF in fact
knowingly and voluntarily waived his Miranda rights in light of the particular facts
and circumstances surrounding the case, including the background, experience, and
conduct of defendant.
3) Here, none of the parties provided evidence as to whether DF waived under the
circumstances. Therefore, the case must be remanded.
V. Rule: An explicit statement of waiver is not invariably necessary to support a finding that
the defendant waived the right to counsel guaranteed by the Miranda case.
VI. Notes:
1) Expressed waiver is not required; it can be inferred from words or actions.
2) The Court seems to suggest that the DF in fact waived.
B. Information Needed for an Intelligent Waiver The Scope of the Interrogation
I.
Colorado v. Spring (1987)
1) Facts: After being informed that DF was involved in interstate transportation of
stolen firearms and had participated in the murder of a man in Colorado, the officers
set up an undercover operation to purchase firearms from DF and he was arrested
during the undercover purchase and was read his Miranda rights twice. He was also
told that he could stop the questioning at any time or ask to resume the questioning
until there was an attorney present. DF signed a waiver and answered the officers
questions. They first interrogated him about the firearms transactions but then they
asked him about the Colorado murder; he confessed to the firearms transactions but
denied knowing about the murder. 2 months later, Colorado officers visited DF at
jail, gave him his Miranda warnings and DF again signed a waiver and eventually
confessed to the murder.
2) Procedure: DF moved to suppress both statements on the ground that his waiver was
invalid because he was not informed that he would be questioned about the murder
during the first interrogation. Although the first statement was never introduced at
trial, he claimed that it was relevant because the second one was the illegal fruit of the
first one.
3) Issue: Whether the agents had a duty to inform DF that he was a suspect or to
readvise him of his Miranda rights before questioning him about the murder
4) Holding: A suspect's awareness of all the crimes about which he may be questioned
is not relevant to determining the validity of his decision to waive the 5th Amendment
privilege; accordingly, the agents failure to inform DF of the subject matter of the
interrogation could not affect his decision to waive that privilege in a constitutionally
significant manner.
5) Rationale:
DFs decision to waive his Fifth Amendment privilege during the first
interrogation was voluntary absent evidence that his will was overborne and
69

6)

Rules:

7)

A suspect's awareness of all the possible subjects of questioning in advance of

interrogation is not relevant to determining whether the suspect voluntarily,
knowingly, and intelligently waived his 5th Amendment privilege.
2 part test to determine whether a waiver is coerced analysis is done under
the totality of the circumstances surrounding the interrogation:
1. The relinquishment of the right must be voluntary in the sense that it is
the product of a free and deliberate choice rather than intimidation,
coercion, or deception.
2. The waiver must be made with a full awareness both of the nature of
the right being abandoned and the consequences of the decision to
abandon it.

Notes:

3.

his capacity for self-determination critically impaired because of coercive

police conduct.
His waiver was also knowingly and intelligently made, i.e., he understood that
he had the right to remain silent and that anything he said could be used as
evidence against him. The warning, as formulated in Miranda, conveyed to
the suspect the nature of his privilege and the consequences of abandoning it.
The Constitution does not require that a suspect know and understand every
possible consequence of a waiver of the Fifth Amendment privilege. It only
requires that the individual understand that he has the right to remain silent
and that everything he decides to say will be used against him.
Mere silence by law enforcement officials as to the subject matter of an
interrogation is not "trickery" sufficient to invalidate a suspect's waiver of
Miranda rights.
The additional information in question in this case could affect only the
wisdom of a Miranda waiver, not its voluntary and knowing nature.

DF argued that knowingly included knowledge of what the police would

question him about. However, the Court said that there is no requirement that
the police tell you information about what they will question a suspect about.

Knowing and Voluntary

A. Moran v. Burbine (1986)
I.
Facts: Attorney called the police station and said that she would act as DFs counsel and they
gave assurances that the DF would not be questioned until the next day. However, later that
day, the police gave DF Miranda warnings and was not informed of the attorneys phone call.
The DF waived his rights.
II. Holding: Court held that the waiver was valid because interactions between the officers and
the attorney, which were unknown to the DF, could have no impact on the validity of the
waiver.
III. Rationale: Although the additional information might have affected DFs decision to
confess, police are not required to supply a suspect with a flow of information to help him
calibrate his self-interest in deciding whether to speak or stand by his rights.
IV. Rule: 2 requirements must be met before a suspect can be found to have waived his
Miranda rights:
1) The relinquishment must have been voluntary in the sense that it was the product of a
free and deliberate choice rather than intimidation, coercion, or deception (this was
the question decided in Connelly)
2) The waiver must have been made with full awareness both of the nature of the right
being abandoned and the consequences of the decision to abandon it.
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Note: Here, the DF had not been indicted. Therefore, he could not claim protection under
the 6th Amendment.
4. Conditional Waivers
A. Connecticut v. Barret (1987)
I.
Facts: DF was given the Miranda warnings 3 times. On each, he said that he would not
make a written statement outside of the presence of counsel but that he would talk to them.
He then admitted orally his involvement in a crime.
II. Holding: Court held that the waiver was valid because Miranda gives the DF a right to
choose between speech and silence, and DF chose to speak.
1) Court rejected the argument that the distinction between oral and written statements
indicated that the understanding of the consequences was so incomplete.
2) Court found that the fact that some might find DFs decision illogical is irrelevant.
The Court has never found that the DFs ignorance of the full consequences of his
decisions vitiated their voluntariness.
III. Note: If the DF agrees to talk about one thing and not another, the police must respect that
decision and it is viewed as a partial waiver. However, here the DF did not condition his
waiver on one part; he only decided to speak but not to sign a written statement. Therefore,
his waiver was not conditioned.
V.

5.

F.

Relationship of Waiver Standards to the Test for Voluntary Confessions

A. Colorado v. Connelly, 479 US 157 (1986)
I.
Court found the waiver valid despite the fact that at the time of the waiver the DF was in a
psychotic state that led him to believe that the voice of God had ordered him to either confess
or commit suicide.
II. Court held that the voluntariness of a waiver has always depended on the absence of police
overreaching, not on free choice in any broader sense of the word.
III. This is the same decision that held that coercive police activity is a prerequisite to a finding
that a confession is involuntary.
IV. Therefore, Connelly held that police overreaching is a prerequisite for both finding an
interrogation and finding a waiver involuntary
V. The Court did not determine whether the waiver was made knowingly; it remanded.

WHEN DOES THE 5TH AMENDMENT VIOLATION OCCUR AT THE SAME TIME AS MIRANDA?
1. Chavez v. Martinez, 538 US 760 (2003)
A. Facts: Officer interrogated DF in a hospital. Although DF had been arrested, the officers never
gave him Miranda warnings. Officer persisted in interrogating DF despite the fact that DF was in
great pain and repeatedly said that he did not want to answer questions. DF ultimately answered the
officers questions with incriminating admissions. However DF was never prosecuted and the
statements never used at trial. DF sued under 1983 claming a violation of his Fifth and Fourteenth
Amendments rights.
B. Holding:
I.
5th Amendment Privilege:
1) Court held that a violation of a persons Fifth Amendment privilege can only occur
when compelled statements are introduced against a person in court.
2) Court said that Miranda is a judicially crafted prophylactic rule designed to preserve
the core Fifth Amendment right from invasion by use of the individuals compelled
testimony in a criminal trial. It said that a failure to comply with (violation of)
71

Miranda does not violate the individuals 5th Amendment privilege and provides no
basis for a damages claim.
th
II. 14 Amendment:
1) Plurality held that the interrogation did not violate due process because it was not
egregious or conscience shocking because the police had justifiable interest in
conducting a prompt investigation since there was a possibility that DF might die.
Also, the officer did not act with purpose to harm DF by intentionally interfering with
his medical treatment.
Compare with Mincey v. Arizona, where DF was interrogated at the hospital
also
C. Dissent argued that the Fifth Amendment was violated by the coercive tactics, even though those
statements were not used against him. As to the Due Process claim, 5 Justices agreed that the claim
should be remanded to lower courts to answer whether the officers conduct was outrageous.
G.

EXCEPTIONS TO THE MIRANDA EXCLUSIONARY RULE

1. Public Safety Exception
A. New York v. Quarles (1984)
I.
Facts: A woman approached two police officers who were on road patrol, told them that she
had just been raped, described her assailant, and told them that the man had just entered a
nearby supermarket and was carrying a gun. The officer entered the store and DF started
running away. Upon regaining sight of DF, the officer ordered him to stop and put his hands
over his head. He frisked him and discovered that he was wearing an empty shoulder holster,
and, after handcuffing him, asked him where the gun was. DF nodded toward some empty
cartons and said "the gun is over there." The officer then retrieved the gun from one of the
cartons, formally arrested respondent, and read him his Miranda rights. Later DF waived his
Miranda rights and confessed as to the ownership of the gun.
II. Issue: Whether the officer was justified in failing to make available to DF the Miranda
procedural safeguards.
III. Holding: Yes. The Court agreed that the DF was in police custody when he made his
statements and that the facts come within the ambit of Miranda. However, it found that on
these facts there was a "public safety" exception, and that the availability of that exception
does not depend upon the motivation of the individual officers involved.
IV. Rationale:
1) This case presents a situation where concern for public safety must be paramount to
adherence to the literal language of the prophylactic rules enunciated in Miranda.
The doctrinal underpinnings of Miranda do not require that it be applied in its
entire rigor to a situation in which police officers ask questions reasonably
prompted by a concern for the public safety.
2) If the Miranda warnings had deterred responses to the officers question about the
whereabouts of the gun, the cost would have been something more than merely the
failure to obtain evidence useful in convicting respondent. An answer was needed to
insure that future danger to the public did not result from the concealment of the gun
in a public area.
In this case, as long as the gun was concealed somewhere in the supermarket,
it posed more than one danger to the public safety: an accomplice might make
use of it, or a customer or employee might later come upon it.
3) Moreover, the failure to provide Miranda warnings in and of itself does not render a
confession involuntary, and the DF, on remand, is free to argue that his statement was
coerced under traditional due process standards.
4) The Court said that the narrow exception to Miranda would lessen the desirable
clarity of that rule. However, it said that the exception will not be difficult for police
72

officers to apply because in each case it will be circumscribed by the exigency which
justifies it and that police officers can and will distinguish almost instinctively
between questions necessary to secure their own safety or the safety of the public and
questions designed solely to elicit testimonial evidence from a suspect.
V. Public Safety Exception: The need for answers to questions in a situation posing a threat to
the public safety outweighs the need for the Miranda warnings protecting the 5th
Amendments privilege against self-incrimination. A police officer, before reading the
Miranda warnings, if he feels for his own safety and of those in the immediate vicinity, can
question the suspect to eradicate the concern.
VI. Dissent: (Marshall): The majority endorsed the introduction of coerced self-incriminating
statements. It has lost sight that Miranda implemented a constitutional privilege against selfincrimination, designed to protect DFs against prosecutions based on coerced selfincriminating statements. In creating the public safety exception, the Court makes no
attempt to deal with the constitutional presumption established by Miranda. Miranda was
not a decision about public safety; it was about coerced confessions. Without establishing
that interrogations concerning publics safety are less likely to be coercive than other
interrogations, the Court cannot endorse the public safety exception and remain faithful to
the logic of Miranda.
VII. Notes:
1) DF moved to suppress the statements before and after he was read his Miranda rights.
Why can he suppress the statements after the Miranda rights are given?
Because they are tainted by the previous statements. The reasoning is that
people, once they have made the initial incriminating statements they feel like
they must talk more in order to get out of trouble.
2) This is like Chimel search incident to an arrest based on safety and like Terry stop
and frisk based on public concerns
3) How far does the public safety stretch? Could this be too elastic so as to become a
per se rule?
Usually, the drug traffic cases involve guns, would the public safety exception
to Miranda apply to drug cases?
1. Richardson v. Wisconsin trying to get a knock and announce
exception for drug cases because drug cases usually involve guns
2. J.L. trying to get a gun exception to reasonable suspicion Court
said no, the exception could easily be stretched
4) Quarles is not the only case to indicate that the Miranda decision imposes
prophylactic safeguards rather than protections mandated by the 5th Amendment
privilege, i.e., Oregon v. Elstad and Michigan v. Tucker.
5) What if the police are trying to learn the location of a kidnap victim from a suspect
and believe that the victims life may depend upon receiving immediate information
from the suspect, can they use the public safety exception use deception, promises
or threats to induce statements from the suspect? Will the statements be admissible?
2. Impeachment
A. Harris v. New York (Miranda does not prevent the State from using DFs statement to the police in
violation of Miranda to confront DF with prior inconsistent statements)
B. US v. Havens (A defendant's statements made in response to proper cross-examination reasonably
suggested by the defendant's direct examination are subject to otherwise proper impeachment by the
Government, albeit by evidence that has been illegally obtained and is inadmissible as substantive
evidence of guilt)
C. James v. Illinois (1990) (Prosecution cannot use the DFs statements to impeach other witnesses)
3. Admitting the Fruits of a Miranda violation
73

A.

Michigan v. Tucker (DFs statements had to be excluded under Miranda. The testimony of the
witness, however, was admissible even though it had been derived from the statements in violation
of Miranda)
B. Oregon v. Elstad (The Self-Incrimination Clause of the 5th Amendment does not require the
suppression of a confession, made after proper Miranda warnings and a valid waiver of rights, solely
because the police had obtained an earlier voluntary but unwarned admission from the suspect)
C. US v. Patane (2004) (failure to provide Miranda warnings does not require suppression of the
physical fruits of the suspect's unwarned but voluntary statements)
D. Missouri v. Seibert (2004) (Question-first tactic effectively threatened to thwart Miranda's purpose
of reducing the risk that a coerced confession would be admitted, therefore, post-warning statements
also were inadmissible)
H.

CAN CONGRESS OVERRULE MIRANDA?

1. Dickerson v. US (2000)
A. Facts: In response to Miranda, Congress enacted 18 U.S.C. 3501, which in essence made the
admissibility of statements made in custodial interrogation turn solely on whether they were made
voluntarily (Due Process analysis). DF moved to suppress a statement he had made to the FBI, on
the ground he had not received the "Miranda warnings" before being interrogated.
B. Issue: Whether Congress has constitutional authority to supersede Miranda, i.e., whether Mirandas
rule is a constitutional one or merely an exercise of supervisory authority to regulate evidence in the
absence of congressional discretion.
C. Holding: The Court held that Miranda, being a constitutional decision of the Court, may not be in
effect overruled by an Act of Congress, and, following principles of stare decisis, the Court declined
to overrule Miranda itself.
D. Rationale:
I.
Congress may not supersede this Court's decisions interpreting and applying the Constitution.
II. Miranda announced a constitutional rule because:
1) The US SC does not have supervisory power over the state courts. However, both
Miranda and two of its companion cases applied its rule to proceedings in state
courts, and the Court has consistently applied Miranda to prosecutions in state courts
ever since.
2) The opinion in Miranda is replete with statements indicating that the majority thought
it was announcing a constitutional rule. Although Miranda invited legislative action
to protect the constitutional right against coerced self-incrimination, it stated that any
legislative alternative must be "at least as effective in appraising accused persons of
their right of silence and in assuring a continuous opportunity to exercise it."
III. The fact that the Court has subsequently made exceptions and expansions to the Miranda rule
only illustrate the principle that no constitutional rule is immutable, the sort of refinements
made by such cases are merely a normal part of constitutional law.
IV. The Court also declined to overrule Miranda. The Court said that whether or not it would
agree with Miranda's reasoning and its rule in the first instance, stare decisis weighs heavily
against overruling it now.
1) Miranda has become embedded in routine police practice to the point where the
warnings have become part of our national culture.
V. The requirement that Miranda warnings be given does not dispense with the voluntariness
inquiry, but cases in which a defendant can make a colorable argument that a selfincriminating statement was compelled despite officers' adherence to Miranda are rare.
E. Notes:
I.
Why didnt this conservative court overrule Miranda, wasnt this the perfect opportunity?
1) The Court said that Miranda was so entrenched with the culture that it had become
part of it. A whole lot enforcement culture has grown from it.
74

This could also be a battle of power between Congress and the Supreme Court.
But now we have inconsistency. While Dickerson announces that Miranda is a
constitutional rule, Quarles, Elstad, Tucker, etc. say that its a prophylactic rule and
Chavez says that a violation of Miranda is not a constitutional violation.
4) 2 inconsistent voices in respect to Miranda.
One side seems to give Miranda a lot of deference
1. Dickerson
2. Withrow (p. 986)
The other side treats Miranda as simply a prophylactic rule
1. Elstad says that Miranda violations do not give rise to actual
compulsion. Therefore, if the first statement is in fact not the
product of compulsion, there is no basis to find that the second
statement is the fruit of the first one.
2. Quarles said that failure to read Miranda warnings does not
require the exclusion of evidence found
3. Michigan v. Tucker (p. 985) held that the statements must be
excluded but the
2)
3)

I.

6TH AMENDMENT RIGHT TO ASSISTANCE OF COUNSEL AT TRIAL

A. DOES THE 6TH AMENDMENT APPLY TO STATES?

1. Context:
a. 6th Amendment says: in all criminal prosecutions, the defendant has the right to assistance of
counsel.
B. Powell (read it) (1932) police rounded up 9 African-Americans without any tides with the
community and accused them of rape and prosecuted them very fast without giving them
counsel.
i. Court condemned this process and held that the defendants should have provided
counsel.
2. Betts v. Brady (1942) (Overruled by Gideon)
A. Holding: 6th Amendment guarantee of counsel only applied to trials in federal courts, and the
Fourteenth Amendment did not incorporate that guarantee. There was no right to stateappointed counsel in every case in which a defendant, charged with a crime, was unable to
obtain counsel.
B. Rationale: The Court is saying that there is no automatic entitlement, whether the DF is
entitled to counsel is examined on a case-by-case basis. The Court gave 4 reasons why in
this case DF was not entitled to counsel:
i. Simple issue But how simple could it be if the sentence ended up being 8 years.
Plus, identification issues are not simple, they can be very complicated.
ii. Bench trial judge protects the fair proceedings But the judge is supposed to be
neutral, it is improper for a judge to be an advocate to any side
iii. It would be too expensive and problematic to provide counsel to everyone
iv. If it gets too unbalanced, the judge may stop the proceedings and appoint counsel at
that time
3. Gideon v. Wainwright (1962)
A. Facts: DF was charged in a STATE court with the felony of having broken and entered a
poolroom with intent to commit a misdemeanor. Since he did not have funds to hire a
lawyer, he asked the court to appoint him one but the court denied his request.
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B.
C.

D.

E.

F.

Issue: Whether the 6th Amendment right to counsel at trial is fundamental and essential to a
fair trial.
Holding: Yes. Court overruled Betts v. Brady and held that the right of an indigent DF in a
criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial,
and DFs trial and conviction without the assistance of counsel violated the 14th Amendment
Rationale:
i. 10 years before Betts v. Brady, the Court had held in Powell that the right to aid of
counsel was of fundamental character. In Betts v. Brady, the Court made a break in its
precedent.
ii. That government hires lawyers to prosecute and defendants who have the money hire
the best lawyers they can to defend are the strongest indications that lawyers in
criminal courts are necessities, not luxuries.
Rule: The right of an indigent defendant in a criminal trial to have the assistance of counsel
is a fundamental right essential to a fair trial. The 6th Amendment applies to the States
through the 14th Amendment.
Notes: Gideon was retried with counsel and was acquitted. Gideons attorney convinced the
jury that there was reasonable doubt. The attorney conducted deep investigation and tore the
accuser down and finally persuaded the jury that the man that was accusing Gideon was in
fact the perpetrator.

B. RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL

1. McMann v. Richardson The right to counsel is the right to the effective assistance of counsel.
2. Strickland v. Washington In order to show that he has been deprived of effective assistance of
counsel, the DF must show that:
a. His attorneys performance was deficient, when measured against an objective standard of
reasonableness; and
b. The DF was prejudiced in the sense that there was a reasonable probability that, but for
counsels deficient performance, the result of the proceeding would have been different.
C. Notes:
i. Basically you must prove that if the attorney should have done, you would have been
acquitted. Its almost impossible to get this second prong.
ii. The problem is that, doesnt it become tantamount to having no attorney if you have a
terrible one?
1) Suppose that Gideon had an attorney in the first trial, could he have fulfilled
the second prong? Probably not.
TH
C. WAIVER OF 6 AMENDMENT PROTECTIONS
1. Carnley v. Cochran Waiver cannot be presumed from a silent record. There must be evidence
that the DF was offered counsel but intelligently and understandably rejected the offer.
2. Faretta v. California To be intelligent, the DF must be aware of the consequences of foregoing
the right. He should be made aware of the dangers and disadvantages of self-representation, so that
he knows what he is doing and his choice is made with eyes open.
3. 1 A.B.A. Standards DF must apprehend the nature of the charges, the offenses included, the
allowable punishments, possible defenses, and circumstances in mitigation, among other factors.
D. WHEN DOES THE 6TH AMENDMENT APPLY?
1. Scott v. Illinois (1979)
A. Facts: DF was convicted of shoplifting merchandise valued at less than $150, which had a
maximum penalty of a $500 fine or 1 year in jail. DF claimed that he was entitled to
appointment of counsel.
B. Issue: Whether DF is entitled to appointment of counsel where the offense may but may not
impose imprisonment.
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Holding: The 6th and 14th Amendments require only that no indigent criminal DF be
sentenced to a term of imprisonment unless the State has afforded him the right to assistance
of appointed counsel in his defense, but do not require appointment for a criminal DF who is
charged with a statutory offense for which imprisonment upon conviction is authorized but
not imposed.
D. Rationale: The Court held that Argersinger delimited the constitutional right to appointed
counsel in state criminal proceedings and adopted actual imprisonment as the line defining
the constitutional right to appointment of counsel.
E. Rule: The 6th and 14th Amendments require only that no indigent criminal defendant be
sentenced to a term of imprisonment unless the state afforded him the right to assistance of
appointed counsel in his defense.
F. Notes:
i. Under this ruling, the DF can get an attorney, not when you have a chance to be
imprisoned, but only when actual imprisonment is likely.
ii. There are several problems
1) Judges can have an opinion at the beginning and then change their minds.
However, they cant get rid of the counsel that has been already appointed
2) Prior conviction sometimes prior convictions can be used in sentencing
Say that during the first conviction DF was not entitled to counsel.
But still the judge may use that prior conviction to impose
imprisonment.
CONFESSIONS AND THE 6TH AMENDMENT RIGHT TO ASSISTANCE OF COUNSEL
C.

II.

A. CONTEXT
1. 6th Amendment Right to Assistance of Counsel as a means of regulating government efforts to admit
suspects incriminating statements existed before Miranda, which held that the 5th Amendment Privilege
Against Self Incrimination was applicable to custodial interrogation.
2. The 6th Amendment prohibits a government agent from deliberately eliciting incriminating information
from an accused in the absence of counsel or a waiver.
A. Deliberate eliciting = whenever the officers should have known that their investigative tactic would
lead to incriminating information from a charged DF in the absence of counsel
b. The focus is on whether the officer is trying to get information from a person charged
3. Massiah v. US held that the DFs 6th Amendment Right to Counsel barred admission of the statements made
by the DF to the government agent. This holding was not unexpected:
A. Crooker v. California (1958) 4 dissenting Justices said that the right to have counsel at the pretrial
stage was often necessary to give meaning and protection to the right to be heard at trial itself and
that it may also be necessary as a restraint on the coercive power of the police. They said that the
accused should have counsel at any time after arrest.
B. Spano v. NY (1959) 4 concurring Justices said that the admission of a confession obtained after the
police failed to comply with the indicted DFs request to consult with counsel violated his 6th
Amendment right to counsel.
C. Gideon v. Wainwright (1963) Held that 6th Amendment Right to Counsel is fundamental and
essential to a fair trial. Gideon provided support for the position taken by the Justices dissenting in
Cooker and concurring in Spano if presence of counsel at trial is necessary for a fair trial, then the
presence of counsel at a pretrial stage in which the police are seeking to obtain incriminating
statements is also necessary to ensure a fair trial.
4. The Court only used Massiah once after Miranda and before it re-emerged in Williams almost 11 years
later. After Williams, however, the Court made it clear that the protection afforded by Massiah is different
from, and in some respects stronger than, the protection afforded by Miranda.
5. Notes
77

a. The 6th Amendment right comes up only after formal judicial proceedings have commenced. This is
what changes the game from Miranda.
b. Trigger words for 6th Amendment: indictment, information, arraignment
B. THE MASSIAH RULE
1. Massiah v. US (1964)
A. Facts: DF and codefendant Colson were indicted for violating the federal narcotics laws. DF
retained an attorney and was released on bail. Without his knowledge, however, the codefendant
agreed to cooperate with government agents in investigating the narcotics activities and permitted
the agents to set up a radio transmitter device in his vehicle. An agent was able to overhear DFs
incriminatory statements made to his codefendant while they were in the car and the agent testified
at trial as to the statements he heard.
B. Issue: Whether the use of the incriminating statements at trial, which government agents
deliberately elicited from him after he had been indicted and in the absence of his retained counsel
violated his 6th Amendment Right to Assistance of Counsel.
C. Holding: Yes. Any secret interrogation of DF, from and after the indictment, without the protection
of the presence of counsel, disregarded the basic dictates of fairness in the conduct of the criminal
cause and the fundamental rights of DF. Here, DF was seriously forced upon since he did not even
know that he was under interrogation by a government agent.
D. Rationale: The 4 Justices concurring in Spano support the Courts conclusion. Also, in Powell v.
Alabama, the Court held noted that during perhaps the most critical period of proceedings that is
to say, from the time of their arraignment until the beginning of trial, when consultation, through
going investigation and preparation are vitally important, the DFs are as much entitled to such aid of
counsel during that period as at the trial itself.
E. Notes:
i. Remember Spano 4 concurring Justices said that since there was an indictment, they would
decide the case under 6th Amendment grounds, not under 4th Amendment.
ii. This case look similar to:
1) Different from 4th Amendment False Friend Cases Under the 4th Amendment there
is no protection for false friends situation. However, there, the suspects had not
been arraigned or indicted.
2) Different from 5th Amendment privilege against self-incrimination in Illinois v.
Perkins Under the 5th Amendment police has an undercover agent in jail and gets
the info from DF police not required to give Miranda warnings. However, Perkins
had not been arraigned, indicted or otherwise for the murder, only for the other
offense
iii. However, here DF had been arraigned and indicted for the offense that they were
investigating. There was deliberate elicitation from the DF.
iv. What is the rationale for 6th Amendment regulation of confessions? Massiah was not
pressured to confess in the same way that Spano was. Therefore, the 6th Amendment
protection must be directed toward something other than police created pressure to confess:
1) 6th Amendment recognizes that once the government has brought formal charges
against an individual the adversary relationship between the parties is cemented.
2) Once an accused has chosen to retain an attorney to act as his representative in the
adversary process, the government may not try to circumvent the protection afforded
by the presence of counsel during questioning.
3) The vice is not the deprivation of privacy, but the interference with the parity required
by the 6th Amendment.
4) The Massiah right is basically a constitutionalized version of a rule of professional
ethics: that an adverse party may be contacted only through her lawyer. This rule
78

protects the attorney-client relationship and guards against overreaching by the

adversary.
C. OBTAINING INFORMATION FROM FORMALLY CHARGED DEFENDANTS
1. Brewer v. Williams (1977) (Williams 1)
A. Facts:
i. DF was arrested for the abduction of a missing girl. His attorney advised him that police
officers would be transporting him to another city, that the officers would not interrogate him,
and that he should not talk to the officers until consulting with the attorney. After DFs
arraignment, another attorney advised him similarly. The officers gave respondent Miranda
warnings.
ii. During the trip, DF expressed unwillingness to be interrogated in the absence of an attorney
and instead stated several times that he would tell the whole story after seeing his Des
Moines lawyer.
iii. However, one of the police officers knwoing that DF was a former mental patient and was
deeply religious, sought to obtain incriminating remarks from DF and told him that he felt
they should stop and locate the girl's body because the snow might make recovery of the
body impossible and that her parents were entitled to a Christian burial for the girl, who was
taken away from them on Christmas Eve.
iv. DF eventually made several incriminating statements and finally directed the police to the
girl's body
B. Issue: Whether DF was deprived of his 6th Amendment right to assistance of counsel.
C. Holding: Yes. DF had the right to counsel because proceedings had been initiated against him
before the start of the car ride, and the officer deliberately set out to elicit information from him
when he was entitled to the assistance of counsel. DF did not waive his right to counsel because he
consistently relied upon the advice of counsel in dealing with the authorities.
D. Rationale:
i. There is no doubt that judicial proceedings had been initiated against respondent before the
automobile trip started: (1) a warrant had been issued for his arrest, (2) he had been
arraigned, and (3) had been committed to jail.
ii. Since officer's "Christian burial speech" was tantamount to interrogation DF was entitled
to the assistance of counsel at the time he made the incriminating statements.
iii. The DF did not waive his right to assistance of counsel. The State fell short of sustaining its
burden to prove intentional relinquishment and abandonment of a known right:
1) DF consistently relied on the advise of his attorneys in dealing with the police
2) DF stated in the car that he would tell the whole story after seeing his attorney
E. Rule: The right to counsel granted by the 6th and 14th Amendments means at least that a person is
entitled to a lawyer's help at or after the time that judicial proceedings have been initiated against
him.
F. Notes:
i. Police made a deal with the attorney to not question him and they did not let the attorney to
go with them in the car. Then, the police found the little button to push that he was
Christian and deliberately elicited incriminating statements.
ii. The Court concludes by saying that it is in the case where the DF seems more that he does
not deserve protection that it becomes alive and the Court must remember the statement that
the Constitution applies to all.
iii. In Williams, the Court stated that the right to counsel means at least that a person is entitled
to the help of a lawyer at or after the time that judicial proceedings have been initiated
against him. In later cases the Court made clear that individuals have no 6th Amendment
right to counsel prior to the time that judicial proceedings are formally initiated.
79

1)

Moran v. Burbine Court rejected an uncharged suspects right to counsel claim. It

held that by its very terms, the 6th Amendment becomes applicable only when the
governments role shifts from investigation to accusation. Consequently, the right to
counsel does not attach until the initiation of formal charges.

2. Fellers v. US (2004)
a. Officers went to DFs house and told him that they had come to discuss his involvement in
methamphetamine distribution, that they had a federal warrant for his arrest, and that a grand jury
had indicted him. They also told him that the indictment referred to his involvement with 4 other
individuals. DF told them that he knew the four people and had used methamphetamine with them.
Officers took DF to the station, gave him his Miranda warnings, obtained a waiver, and the DF
repeated and amplified his first incriminating statement. Trial court suppressed the first statement
but allowed the second to come in.
B. Procedure: The 8th Circuit held that the first was not obtained in violation of the 6th Amendment
because the officers did not interrogate DF at his home. Also, the Court suggested that the second
statement was admissible under Elstad.
C. Holding: SC reversed. It held that, because DF had been indicted, the question was whether a
government agent deliberately elicited incriminating statements under Massiah (not whether he had
been questioned under the 5th Amendment). Court concluded that the officers did so by informing
him that their purpose in coming to his home was to discuss his involvement in the distribution of
methamphetamine and his association with other charged co-conspirators.
i. Court remanded the case, concluding that the 8th Circuit had improperly conducted its fruits
analysis under the Elstad 5th Amendment. It should have conducted the analysis under the 6th
Amendment in answering whether the 6th Amendment violation at DFs home required
exclusion of the statement he made at the police station.
D. Note: The Court made the distinction between the 6th Amendment deliberate elicitation and the 5th
Amendment custodial-interrogation standard. Therefore, a police action can be deliberate
elicitation and render the confession inadmissible, while not being custodial questioning within the
meaning of the 5th Amendment.
I. The difference is that the 5th Amendment protects against custodial interrogation in the
absence of the Miranda warnings, while the 6th Amendment protects against any action that
may the officers should have known would lead to incriminating information. That is why,
under the 5th Amendment, the confessions to undercover agents are admissible, while they are
not under the 6th Amendment.
1) Compare 5th Amendment Perkins with 6th Amendment Massiah and Henry.
3. Michigan v. Jackson (1986)
A. Rule: Edwards rule, which applies when a DF who has been given Miranda warnings invokes his
right to an attorney, also applies to a DF who (1) has been formally charged and (2) requests
appointment of counsel.
B. Facts: DFs waived their rights and agreed to talk to police without counsel before their
arraignments. At their arraignments, however, they requested appointment of counsel. After the
arraignments and before DFs had the chance to consult with counsel, the police again gave them
their Miranda warnings, obtained written waivers, and elicited their confessions.
C. Held: Edwards rule applies because the reasons for prohibiting the interrogation of an uncounseled
prisoner who has asked for help of a lawyer are even stronger after he has been formally charged
than before.
D. WAIVER
1. Patterson v. Illinois (1988)
a. Court rejected the argument that waiver of an accuseds 6th Amendment Right to Counsel should be
more difficult to effectuate than waiver of a suspects 5th Amendment rights.
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B.

Facts: DF was arrested and was questioned after being given the Miranda warnings. He agreed to
answer questions but denied knowing anything about the murder. 2 days later he and other DFs were
indicted and when he learned that one particular gang member had not been indicted, he said, why
wasnt he indicted, he did everything. The officer gave him Miranda warnings again and DF
waived them and signed incriminating statements.
C. Held: DF validly waived his 6th Amendment Right to Counsel. An accused that is given the
Miranda warnings has been sufficiently informed of the nature of the 6th Amendment rights, and of
the consequences of waiving them. His waiver then will be considered a knowing and intelligent
one.
d. However, in some situations the standards for waiver of Miranda and 6th Amendment rights were
different:
Miranda
Moran v. Burbine waiver is good where
DF was not told that his lawyer was trying
to reach him during questioning
Illinois v. Perkins Surreptitious
conversation between an undercover police
officer and an unidicted suspect would not
give rise to a Miranda violation as long as
the interrogation was not in custodial
setting

6th Amendment
This waiver is not valid under the 6th
Amendment
Once an accused is indicted, such
questioning would be prohibited under the
6th Amendment

E. OFFENSE SPECIFIC RIGHT

1. Texas v. Cobb (2001)
A. Facts: DF confessed to burglary of a residence, but denied knowledge of the missing residents. The
Court appointment counsel to DF and he was released on bond for the burglary offense. After some
time passed, DFs father told the police that DF had admitted killing the residents of the house. The
police arrested DF and read him his Miranda rights. In response to police questioning, DF confessed
to murdering the residents. DF argued that his right to assistance of counsel was violated since the
permission of DFs appointed counsel was not obtained prior to interrogation.
B. Held: regardless of whether the murder charge was closely related factually to the burglary offense,
the right to counsel is offense specific. Since the two offenses required different elements of proof,
they were separate offenses, and prosecution was not initiated on the murder offense at the time of
the interrogation. DF thus had no right to the presence of his previously appointed counsel during
the interrogation concerning the murder charge, and the confession resulting from that interrogation
was admissible.
C. Rule: The 6th Amendment right to counsel is offense specific; it attaches only for formally
charged offenses. The right to counsel attaches, however, to offenses that, even if not formally
charged, would be considered the same offense under the Blockburger test:
i. 2 offenses are the same when (and only when) all of the statutory elements of one offense
are included within the statutory elements of the other offense.
F. USE OF UNDERCOVER AGENTS / DELIBERATELY ELICITATING
1. US v. Henry (1980)
A. Facts: DF was indicted for armed robbery of a bank. While he was in jail pending trial,
Government agents contacted a paid informant who was then an inmate confined in the same
cellblock as DF. An agent instructed the informant to be alert to any statements made by DF and the
others arrested for the robbery but not to initiate conversations with or question DF regarding the
charges against him. After the informant was released from jail, he reported to the agent that he and
81

DF had engaged in conversation and had made incriminating statements about the robbery. The
informant testified about the incriminating statements at DFs trial, which resulted in a conviction.
B. Issue: Whether the Government agent deliberately elicited incriminating statements from DF.
C. Holding: Yes. The Government violated respondent's 6th Amendment right to counsel by
intentionally creating a situation likely to induce DF to make incriminating statements without the
assistance of counsel. The Court held that defendant's 6th Amendment right to counsel had attached
at the time he made the statements. Further, the Court held that the government's specific mention of
defendant to the undercover informant, who was paid on a contingency fee basis, constituted the
type of affirmative steps to secure incriminating information from defendant outside the presence of
his counsel prohibited by the 6th Amendment.
D. Rationale:
i. The Government deliberately elicited the incriminating statements from the DF through the
informant, who was acting under instructions as a paid informant for the Government while
supposedly no more than a fellow inmate
ii. The informant was not a passive listener. The statements were the product of their
conversation.
iii. Even if the agents statement that he did not intend that the informant would take affirmative
steps to secure incriminating information, he must have known that such advise likely would
lead to that result.
iv. Since DF was unaware that the informant was acting for the Government, he cannot be held
to have waived his right to the assistance of counsel.
v. The concept of a knowing and voluntary waiver of 6th Amendment rights does not apply in
the context of communications with an undisclosed undercover informant acting for the
Government.
E. Dissent: (Rehnquist) no one prevented DF from going to his attorney. The 6th Amendment is the
right to access to counsel.
F. Notes:
i. The Court said in a footnote that the situation would be different if the informant was placed
in close proximity but made no effort to stimulate conversations about the crime charged or if
the situation involved an inanimate electronic device as listening post because that device
has no capability of leading the conversation into any particular subject or promoting any
particular replies.
2. Kuhlmann v. Wilson (1986) THE LISTENING POST
A. Facts: After his arraignment on charges arising from a 1970 robbery and murder in New York, DF
was confined in a cell with a prisoner who had previously agreed to act as a police informant and
was instructed not to ask questions and simply keep his ears open. DF, without prompting, told
the informant that he had been present during the robbery but denied knowing the robbers. The
informant responded that the explanation didnt sound too good. DF changed details over the next
few days. Finally, after a visit from his brother, the DF, again without prompting, admitted to the
informant that he and 2 other men had committed the robbery and murder.
B. Procedure: Trial court found that the informant had obeyed a police officer's instructions only to
listen to respondent for the purpose of identifying his confederates in the robbery and murder, but
not to question DF about the crimes. The court also found that DFs statements to the informant
were "spontaneous" and "unsolicited."
C. Holding: The 6th Amendment does not forbid admission in evidence of an accused's statements to a
jailhouse informant who was placed in close proximity but made no effort to stimulate conversations
about the crime charged.
D. Rationale: The primary concern of the Massiah and Henry line of decisions was secret interrogation
by investigatory techniques that are the equivalent of direct police interrogation. Since the 6th
Amendment is not violated whenever by luck or coincidence the State obtains incriminating
statements from the accused after the right to counsel has attached, a DF cannot show a violation of
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that right simply by showing that an informant, either through prior arrangement or voluntarily,
reported his incriminating statements to the police.
E. Rule: The DF must demonstrate that the police and their informant took some action, beyond
merely listening, that was designed deliberately to elicit incriminating remarks.
F. Concurrence: There is a difference between placing an ear in the suspects cell and placing a
voice in the cell to encourage conversation for the ear to record.
G. Notes:
i. The Court distinguished Henry on the ground that the informant in Henry had stimulated
the conversations with DF and that here informant had not done so.
ii. The Court also found insignificant that the informant had said that the DFs version of the
crimes didnt sound too good. Just that one remark did not bring the case out of the realm of
the passive recording device it did not constitute elicitation.
Henry
Kuhlman
1) Agents contacted government informant 1) Placed in cell over the crime scene
2) Housed in the same cellblock
2) Government informant placed in cell to
3) Told to be alert but not initiate contact
get identities of co-felons
4) Informant paid and released
3) Told do not ask but just listen
5) Informant became DFs friend
4) Visit from the brother and confessed
5) Informant became DFs friend
Held: Designed, purposeful, likely to
Held: Spontaneous, unsolicited (like
induce = Need counsel
Connelly) = No need for counsel
Voice in cell active
Ear in cell passive
Create the situation or have knowledge of
the situation and take advantage of it
iii. It seems that the visit from the brother is like an intervening superseding act, which caused
DF to talk and incriminate himself. The problem is that the Court doesnt seem to clinch its
decision on that fact only. Another problem is that there could be in any situation something
that could intervene and soften the DF to talk. Also, the police is affecting / circumventing
the adversarial process using sneaky tactics
IV. Prof.s view The cases are the same. The Court decided to diminish the 6th Amendment
rights in Kuhlman but did not want to admit that it was wrong in Henry. Kuhlman is a silent
destruction of Henry. Kuhlman implicitly overrules Henry.
3. Main v. Moulton (1985)
a. Informant agreed to cooperate with police and to use a body transmitter. DF initiated the meeting
with the informant and made incriminatory statements.
b. Government claimed that this case was different from Massiah because the DF initiated the meeting
C. Held: The identity of the party who instigated the meeting is not decisive or even important
D. Rule: Proof that the State must have known that its agent was likely to obtain incriminating
statements from the accused in the absence of counsel suffices to establish a 6th Amendment
violation (Henry).
E. Note: The police may investigate crimes separate from the crimes charged and may use statements
made by a suspect in a later trial for those crimes (like in Perkins) (Rule in Cobb to determine
whether they are the same crime). However, incriminating statements pertaining to pending charges
are inadmissible at the trial of those charges, notwithstanding the fact that the police were also
investigating other crimes (if there is a 6th Amendment violation, of course).

83

III. REMEDIES FOR CONSTITUTIONAL VIOLATIONS: THE EXCLUSIONARY RULE

A.

SOURCE OF THE EXCLUSIONARY RULE

1. Generally
A. Exclusionary rules prevent the government from introducing at trial evidence secured in violation of
a constitutional dictates.
B. The exclusionary rules are not in the Constitution. However, it appears to be the punctuation at
the end at every constitutional right 4th Amendment Due Process in involuntary confessions, 5th
Amendment Privilege Against Self Incrimination and 6th Amendment Right to Counsel
C. This is what really matters this is what you win if you can prove a violation of a constitutional
right
2. Weeks v. US (1914)
A. Facts: The federal police entered the DFs house without a warrant and searched and seized private
correspondence which was later introduced at federal trial against him.
B. Holding: Where letters and papers of the accused were taken from his premises by an official of the
US, acting under color of office but without any search warrant and in violation of the constitutional
rights of accused under the 4th Amendment, and a seasonable application for return of the letters and
papers has been refused and they are used in evidence over his objections, prejudicial error is
committed and the judgment should be reversed.
C. Notes
I.
Court says that what the police obtain as result of its illegality search of the paper and
articles is no coming into evidence. The exclusionary rule is the remedy for a 4th
Amendment violation.
3. Wolf v. Colorado (1949) (Overruled by Mapp)
A. If there is a prosecution for a state crime, the 14th Amendment does not forbid the admission of
evidence obtained through an unreasonable search and seizure. The Fourth Amendment is not
84

directed to individual misconduct of state officers. Its limitations reach the Federal Government and
its agencies.
4. Mapp v. Ohio (1961)
A. Facts:
I.
Three police officers arrived at Mapp's (D) house pursuant to information that a person (who
was wanted for questioning in a bombing) was hiding out. The officers knocked at the door,
but D was advised by her attorney not to admit them without a search warrant.
II. Three hours later, more officers showed up and forcibly entered the house. Upon request, an
officer showed D an alleged (but fake) search warrant. D grabbed the warrant and placed it
in her bosom. D was then restrained and the warrant was recovered by an officer. Also,
her attorney tried to enter the house and the police did not permit him to enter.
III. Eventually, obscene materials were discovered in the search of the house, for which she was
ultimately convicted. There is doubt whether or not there ever was a search warrant, as it
was never produced at trial.
B. Issue: Is the exclusionary rule applicable to state prosecution.
C. Holding: Yes. All evidence obtained by searches and seizures in violation of the Fourth
Amendment is inadmissible in a state court.
D. Rationale:
I.
Court held that the due process clause of the Fourteenth Amendment extended to the States
the Fourth Amendment right against unreasonable searches and seizures. And, as necessary
to ensure such rights, the exclusionary rule, which prohibited the introduction into evidence
of material seized in violation of the Fourth Amendment, likewise applied to the State's
prosecution of state crimes.
II. Court overruled Wolf in Wolf, the Court said that the States had freedom to do what they
think more appropriate. However, in federal court, evidence obtained from a violation of 4th
Amendment must be excluded.
B.

REASONS FOR THE APPLICATION OF THE EXCLUSIONARY RULE TO STATES

1. Preservation of Judicial Integrity
A. When courts admit evidence that was obtained in violation of a constitutional right and admits it,
they are, in essence, co-conspirators with the police in the violation of the constitutional right.
B. This is not just about police integrity courts should not be participants in illegal acts.
C. "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole
people by its example. . . . If the Government becomes a lawbreaker, it breeds contempt for law; it
invites every man to become a law unto himself; it invites anarchy."
2. Without the exclusionary rule, the 4th Amendment is an empty promise
3. Deterrence of bad police behavior to compel respect for the constitutional guaranty in the only effectively
available way
4. Without an exclusionary rule, there is no real relief to a constitutional violation. Other remedies have failed
to secure compliance with the constitutional provisions. The Court itself has recognized the obvious futility
of relegating the 4th Amendment protection of other remedies:
A. Civil remedy for trespass is an illusory remedy because
5. Adoption of the exclusionary rule does not restraint law enforcement
A. The federal government has been using it for many years and it cannot be said that the FBIs job has
been restrained by it
6. Before Wolf 2/3 of the States declined to use the exclusionary rule, now more than of the states apply it
7. Silver Platter rule
A. Federal government could use evidence obtained by State officers since there was no exclusionary
rule for the State, the Federal government could introduce the evidence obtained illegally by State
officers
8. We dont want conflict between the State and Federal system both function at the same level
85

9.

Notes
A. Many times, the very reason this rule was born is the very reason one ought to win.
B. Since Wolf, many states have wholly or partially adopted the exclusionary rule, which excludes
evidence that is gained by illegal or incorrect means.
C. Other remedies have failed to secure compliance with the constitutional provisions.
D. The 4th Amendment's right of privacy has been declared enforceable against the States through the
Due Process Clause of the 14th Amendment. The right to privacy is implicit in the concept of
ordered liberty and basic to a free society.
E. Moreover, it is insensible to allow unlawfully seized evidence, because it encourages disobedience.
F. Finally, one can still investigate and prosecute criminals, while working under a system of excluding
illegally obtained evidence as proven by the federal courts.

C.

CURRENT UNDERSTANDING OF THE EXCLUSIONARY RULE

1. United States v. Calandra (1974)
A. The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim.
The rule is calculated to prevent, not to repair. Its purpose is to deter, to compel respect for the
constitutional guaranty in the only effectively available way, by removing the incentive to disregard
it.
B. In sum, the rule is a judicially created remedy designed to safeguard 4th Amendment rights generally
through its deterrent effect, rather than a personal constitutional right of the party aggrieved.
C. Mapp majority observed that coerced confessions, however logically relevant, are suppressed under
the command of the Due Process Clause. It relied in part on that fact in concluding that the products
of illegal searches and seizures had to be excluded. The dissent argued that the Courts analogy to
coerced confessions was not a true one.

D.

PREMISES FOR EXCLUDING THE USE OF EVIDENCE OBTAINED IN VIOLATION OF MIRANDA

1. Michigan v. Tucker (1974) (Suppression of Witness obtained from a violation of Miranda)
A. Facts: DF sought to suppress the testimony of a witness who was discovered as a result of
statements the DF made in response to custodial interrogations without the full Miranda warnings.
B. Holding: SC concluded that DFs statements had to be excluded under Miranda. The testimony of
the witness, however, was admissible even though it had been derived from the inadmissible
statements.
C. Rationale:
I.
Court noted that the typical Miranda violation involves no actual compulsion and
emphasized that the Miranda requirements are merely procedural safeguards that provide
practical reinforcement for the right against compulsory self-incrimination and are not
themselves rights protected by the Constitution.
II. The Court then noted the 3 rationales for Mirandas exclusionary rule: 1) deterring police
misconduct, 2) preventing reliance upon untrustworthy evidence, and 3) preserving the
adversary system principle that requires the government to shoulder the burden of conviction.
It noted that when there is a voluntary statement made, the only defensible reason for the
exclusion is the first one, to deter transgressions of the Miranda rules, i.e., to encourage
compliance with the Warren Courts prophylactic scheme.
III. The Court reasoned that in deciding whether to exclude the evidence derived from Miranda
violations, the need to provide an effective sanction to a constitutional right must be balanced
against the strongest interest in making available to the trier of fact all concededly relevant
and trustworthy evidence and societys interest in the effective prosecution of criminals. If
the costs of losing probative evidence outweigh the deterrent gains from suppression, the
evidence should be admitted.
IV. An application of this balancing process led the Court to conclude that the witnesss
testimony did not have to be suppressed.
86

Withrow v. Williams (1993)

(Quite different view from Tucker of Miranda)
A. Context: Stone v. Powell had held that federal habeas corpus relief is unavailable for a state prisoner
who claims that his conviction rests on evidence obtained in violation of the 4th Amendment if the
state has afforded him a full and fair opportunity to litigate that contention.
B. Issue: Whether the Stone rule applied to claims that the conviction was based on a violation of
Miranda (rather than the 4th Amendment).
C. Holding: Court concluded that Stone should not be extended to Miranda.
D. Rationale: The Court contrasted the rationales for the Mapp (4th Amendment) and Miranda
exclusionary rules:
Mapp
Miranda
Mapp rule is not a personal constitutional right;
Prophylactic though it may be, Miranda safeguards a
rather, it serves to deter future constitutional
fundamental trial right in protecting a DFs 5th
violations. Although it mitigates the juridical
Amendment privilege against self-incrimination.
consequences of invading the DFs privacy, the
exclusion of evidence can does nothing to remedy
the completed and wholly extrajudicial 4th
Amendment violation.
Nor can the Mapp rule be thought to enhance the
By bracing against the possibility of unreliable
reliability of the evidence introduced at trial. Quite
statements in every instance of in-custody
contrary, the evidence excluded is typically reliable
interrogation, Miranda serves to guard against the
and often the most probative information bearing on use of unreliable statements at trial.
the guilt or innocence of the DF
E. Notes:
I.
The Courts view that Miranda exclusion ensures the preservation of vital values underlying
the 5th Amendment privilege and safeguards against untrustworthy evidence that could lead to
conviction of the innocent contrasts dramatically with the perspective of the Tucker Court
and with intimations contained in other pre-Withrow discussions of Miranda exclusion (for
example Elstad and NY v. Quarles)
II. Recent decisions providing insight into the current prevailing attitude toward Miranda
exclusions include Seibert and Patane.
2.

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IV. THE SCOPE AND EXCEPTIONS TO THE EXCLUSIONARY RULE

A.

CONTEXT
1. A constitutional violation does not inevitably lead to the permanent suppression of all evidence discovered.
The SC has developed a number of doctrines that restrict the scope of exclusion. As a result, there are many
situations in which the government is able to make use of evidence acquired by illegal means.
2. Alderman v. US You cannot get suppression of the evidence unless you are the person aggrieved by the
violation of the 4th Amendment. Fourth Amendment rights are personal rights and cannot be vicariously
asserted.

B.

STANDING
1. Legitimate Expectation of Privacy
A. Rakas v. Illinois (1978)
I.
Facts: After receiving a robbery report, police stopped the suspected getaway car, which the
owner was driving and in which DFs were passengers. Upon searching the car, the police
found a box of rifle shells in the glove compartment and a sawed-off rifle under the front
passenger seat and arrested DFs. Subsequently, DFs were convicted of armed robbery at a
trial in which the rifle and shells were admitted as evidence. Before trial DFs had moved to
suppress the rifle and shells on 4th Amendment grounds.
II. Procedure: The trial court denied the motion on the ground that DFs lacked standing to
object to the lawfulness of the search of the car because they concededly did not own either
the car or the rifle and shells. The Illinois Appellate Court affirmed.
III. Holding: DFs, who asserted neither a property nor a possessory interest in the automobile
searched nor an interest in the property seized and who failed to show that they had any
legitimate expectation of privacy in the glove compartment or area under the seat of the car
in which they were merely passengers, were not entitled to challenge a search of those areas.
IV. Rationale:
1) 4th Amendment rights are personal rights which may not be vicariously asserted and a
person aggrieved by an illegal search and seizure only through the introduction of
88

damaging evidence secured by a search of a third person's premises or property has

not had any of his 4th Amendment rights infringed.
2) The Court also rejected the target theory.
3) The standing analysis under the 4th Amendment should focus on the extent of a
particular DFs rights under that Amendment.
4) The phrase legitimately on premises created in Jones v. US creates "too broad a
gauge" for measurement of 4th Amendment rights.
V. Rule: In order to challenge the legality of a search, the DF must show that he/she has a
legitimate expectation of privacy in the areas searched. That they are legitimately on the
premises is but one factor in determining the legitimate expectation of privacy
VI. Notes:
1) One of the concerns that the defense raised, the rule that the Court is applying today
to the car, could be extended to the house. The Court responded by saying that they
would not do that. However, it seems thats what happened in Carter.
2) Governments position here and in Carter seems to invite the police to violate the
Constitution.
Rakas Wait until a car with a lot of passenger goes by and search it you
might get something
Carter Look for houses with guests and peek in you might get lucky
3) In Rakas, the Court observed more than once that the DFs did not claim an interest in
the property seized. If the had done so, would they have had standing? Probably not.
4) This rule invites police for abuse
B. US v. Payner (1980)
I.
Facts: IRS had affirmatively instructed the agents to disregard the 4th Amendment in
searching a bankers briefcase for the specific purpose of discovering information about the
financial dealings of the bank customers. They knew that the customers that would be
charged would not have standing to challenge the illegal search, and that the banker (who
would have standing) would not be charged.
II. Procedure: Trial court recognized that, under Rakas, the DFs were not entitled to challenge
the illegal search. However, he decided that the 5th Amendment Due Process Clause and the
inherent supervisory power of the federal courts mandated the exclusion of the evidence
that had been tainted by the governments knowing and purposeful bad faith hostility to
constitutional rights.
III. Holding: SC reversed. The interest in deterring illegal searches does not justify the
exclusion of tainted evidence at the instance of a party who was not the victim of the
challenged practices.
IV. Rationale: Court acknowledged that no court should condone the governments behavior
here. However, it concluded that the supervisory power does not authorize a federal court to
suppress otherwise admissible evidence on the ground that it was seized unlawfully from a
third party not before the court. Same difficulty attended the 5th Amendment Due Process
Clause basis for the trial courts decision. The limitations of the Due Process Clause come
into play only when the Government activity in question violates some protected right of the
DF.
C. US v. Salvucci (1980)
I.
Court abolished the automatic standing rule set forth in Jones.
II. Court concluded that the dilemma of giving contradictory statements had been eliminated by
Simmons v. US by holding that the admissions at the suppression hearing could not be used
as substantive proof of guilt at trial.
D. Minnesota v. Carter (1998)
I.
Facts: A police officer looked in an apartment window through a gap in the closed blind and
observed DFs Carter and Johns and the apartment's lessee bagging cocaine. After DFs were
89

arrested, they moved to suppress cocaine and other evidence obtained from the apartment and
their car, arguing that the officer's initial observation was an unreasonable search in violation
of the 4th Amendment. Respondents were convicted of state drug offenses.
II. Procedure: The Minnesota trial court held that since they were not overnight social guests,
they were not entitled to 4th Amendment protection, and that the officer's observation was not
a search under the Amendment. The State Court of Appeals held that Carter did not have
"standing" to object to the officer's actions because the evidence indicated that he used the
apartment for a business purpose -- to package drugs -- and, separately, affirmed Johns'
conviction without addressing the "standing" issue. In reversing, the State Supreme Court
held that respondents had "standing" to claim 4th Amendment protection because they had a
legitimate expectation of privacy in the invaded place, and that the officer's observation
constituted an unreasonable search.
th
III. Holding: Any search that may have occurred did not violate respondents' 4 Amendment
rights.
IV. Rationale:
1) While an overnight guest may have a legitimate expectation of privacy in someone
else's home, one who is merely present with the consent of the householder may not.
And an expectation of privacy in commercial property is different from, and less than,
a similar expectation in a home.
2) Here, the purely commercial nature of the transaction, the relatively short period of
time that DFs were on the premises, and the lack of any previous connection between
them and the householder all lead to the conclusion that their situation is closer to that
of one simply permitted on the premises. Any search which may have occurred did
not violate their 4th Amendment rights.
3) Because DFs had no legitimate expectation of privacy, the Court need not decide
whether the officer's observation constituted a search.
V. Notes:
1) A passenger guest the Court extended the Rakas analysis to the guest.
2) The commercial transaction was illegal. However, this should not make any
difference. The protections were created for everyone.
3) When you invite a guest into the home, there is in essence a right to exclude and
include. However, there is also another constitutional right the 1st Amendment
Right to Association
4) This decision also pushes the 1st Amendment in some way arent you entitled to
invite people to your home and associate with them?
5) Another problem is line drawing where is the line, the demarcation between Olsen
and Carter when so many people work from home?
2. Overnight Guest
A. Minnesota v. Olson (1990)
I.
Facts: Officer made a warrantless, non-consensual entry into a house where DF was an
overnight guest and arrested him.
II. Holding: An overnight guest has a legitimate expectation of privacy in his hosts home that
entitles him to object to a warrantless entry to arrest him.
III. Rationale: Society recognizes that a houseguest has a legitimate expectation of privacy in his
hosts home despite the fact that they have no legal interest in the premises and do not have
the legal authority to determine who may or may not enter the household. Court rejected the
argument that an overnight guest can only have a legitimate expectation of privacy when his
host is away and he has a key with which he can come and go and admit and exclude others.
IV. Rule: Overnight guests have a reasonable expectation of privacy
3. Ownership of the Evidence
A. Rawlings v. Kentucky, 448 US 98 (1980)
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Facts: Police discovered illegal narcotics in a purse belonging to the DFs acquaintance.
DF argued that because he claimed ownership of the drugs in the purse, he should be
entitled to challenge the search regardless of his expectation of privacy.
II. Holding: Ownership of the property seized as a result of a search does not by itself entitle an
individual to challenge the search. The person must demonstrate that his or her legitimate
expectation of privacy was violated by the search.
III. Rationale: Court concluded that DF had no reasonable expectation of privacy in the purse
here because
1) DF had suddenly and precipitously dumped thousands of dollars of illegal drugs into
the purse an action that hardly supports a reasonable inference that he took normal
precautions to maintain his privacy
2) DF had known the owner of the purse for only a few days, had never before sought or
received access to the purse, and did not have any right to exclude others from the
purse.
3) DF had admitted that he had no subjective expectation that the purse would remain
free from governmental intrusion
IV. Rule: Ownership of the property seized is undoubtedly one fact to consider in determine
whether the person had a legitimate expectation of privacy, but, like legitimate presence on
the premises, it is not a dispositive fact.
I.

C.

INDEPENDENT SOURCE DOCTRINE

1. The independent source doctrine permits the introduction of evidence initially discovered during, or as a
consequence of, an unlawful search, but later obtained independently from lawful activities untainted by the
initial illegality.
2. Silverthorne Lumber v. US (1920)
A. Facts: The DFs were arrested pursuant to their indictment. Meanwhile, the Government (US
Marshall) went to their office and searched without a search warrant it and seized a number of
documents, papers and books. The Government took photographs of the items seized and
photocopied the documents and papers. The DFs asked for both, the copies and the originals back,
on the basis that they were obtained in violation of the 4th Amendment. The Government argued
that the 4th Amendment protected the physical possession of the objects and papers but not any
advantages that the Government can gain over them and therefore, they could use the photographs
and copies at trial.
B. Held: The remedy to a 4th Amendment violation is not only that the evidence will not be used before
the Court but that it will not be used at all. This does not mean, however, that the facts illegally
obtained become sacred and inaccessible. The Government may prove those facts if the knowledge
of them is gained from an independent source, but the knowledge gained by the governments own
wrong cannot be used in any way.
C. The other argument (other than the one supporting the independent source doctrine) is that it is not
an exception but rather a situation in which the exclusionary rule simply does not apply
3. Murray v. US (1988)
A. Facts: After receiving information that the DFs were involved in a drug transaction and were
arrested for it, several agents forced their way into the warehouse and observed in plain view
numerous burlap-wrapped bales of marijuana. The agents left without disturbing the bales and did
not return until they had obtained a warrant to search the warehouse. In applying for the warrant,
they did not mention the prior entry or include any recitations of their observations made during that
entry. Upon issuance of the warrant, they reentered the warehouse and seized 270 bales of marijuana
and other evidence of crime.
B. Procedure: Trial court denied DFs motion to suppress, rejecting their arguments that the warrant
was invalid because the agents did not inform the Magistrate about their prior warrantless entry, and
that the warrant was tainted by that entry.
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Holding: The 4th Amendment does not require the suppression of evidence initially discovered
during police officers illegal entry of private premises, if that evidence is also discovered during a
later search pursuant to a valid warrant that is wholly independent of the initial illegal entry.
D. Rationale:
I.
Although the agents' knowledge that marijuana was in the warehouse was surely acquired at
the time of the unlawful entry, it was also acquired at the time of entry pursuant to the
warrant, and if that later acquisition was not the result of the earlier entry, the independent
source doctrine allows the admission of testimony as to that knowledge.
II. The ultimate question is whether the search pursuant to warrant was in fact a genuinely
independent source of the information and tangible evidence at issue.
1) This would not have been the case if the agents' decision to seek the warrant was
prompted by what they had seen during the initial entry or if information obtained
during that entry was presented to the Magistrate and affected his decision to issue the
warrant.
E. Notes:
I.
In order for the prosecution to apply the independent source doctrine, it must prove by the
preponderance of the evidence that:
1) The illegal event did not provoke the decision to obtain the warrant
The question here is, was their awareness of the illegal event a motivation to
get the warrant?
2) The illegal event was not a basis for the Magistrates issuance of the warrant
II. Problems
1) Preponderance of the evidence the police only need to say, we were going to get
the warrant anyway, and present facts to support probable cause
2) Dissent said that the test should be that, if the police went in without a warrant and
saw nothing; would they have gone and gotten the warrant anyway?
C.

D.

INEVITABLE DISCOVERY DOCTRINE

1. Nix v. Williams (1984) (Williams 2)
A. Facts: A systematic search of the area that was being conducted with the aid of 200 volunteers, and
that had been initiated before DF made the incriminating statements, was terminated when DF
guided police to the body.
B. Procedure: The SC held that even though the statements could not be admitted at a second trial
(Williams 1 the statements made in violation of the 6th Amendment), evidence of the body's
location and condition might be admissible on the theory that the body would have been discovered
even if the incriminating statements had not been elicited from DF. In the 2nd trial, the statements
were excluded but the court allowed the physical evidence having concluded that the State had
proved that if the search had continued the body would have been discovered within a short time in
essentially the same condition as it was actually found.
C. Issue: Whether the body's location and condition could be admitted at trial.
D. Holding: The evidence pertaining to the discovery and condition of the victim's body was properly
admitted at DFs second trial on the ground that it would ultimately or inevitably have been
discovered even if no violation of any constitutional provision had taken place.
E. Rationale:
I.
The exclusionary rule is based on the principle of deterrence. On this rationale, the
prosecution is not to be put in a better position than it would have been in if no illegality had
transpired. By contrast, the independent source doctrine rests on the rationale that society's
interest in deterring unlawful police conduct and the public interest in having juries receive
all probative evidence of a crime are properly balanced by putting the police in the same, not
a worse, position that they would have been in if no police error or misconduct had occurred.
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If the prosecution can establish by a preponderance of the evidence that the information
ultimately or inevitably would have been discovered by lawful means -- here the volunteers'
search -- then the deterrence rationale has so little basis that the evidence should be received.
III. Under the inevitable discovery exception, the prosecution is not required to prove the
absence of bad faith, since such a requirement would result in withholding from juries
relevant and undoubted truth that would have been available to police absent any unlawful
police activity. This would put the police in a worse position than they would have been in if
no unlawful conduct had transpired, and would fail to take into account the enormous
societal cost of excluding truth in the search for truth in the administration of justice.
IV. Exclusion of physical evidence that would inevitably have been discovered adds nothing to
either the integrity or fairness of a criminal trial. Nor would suppression ensure fairness on
the theory that it tends to safeguard the adversary system of justice.
V. Here, the search party ultimately or inevitably would have discovered the victim's body. The
searchers were approaching the actual location of the body, that the search would have been
resumed had DF not led the police to the body, and that the body inevitably would have been
found.
F. Notes:
I.
From Williams 1 we know that the statements by the DF cannot come in
II. In Williams 2, the Court said that the police was in the process of digging and searching
around the area where the body was ultimately found. The body would have been found
shortly after
III. If the evidence that the DF seeks to exclude is evidence that the police would have found
inevitably anyway, that evidence should come in
IV. The Court seems to say that the taint of the violation of the Constitution is not indefinite; it
can brake off.
V. In Williams 1 DF said, when I get to DeMoines and I see my lawyer I will tell you the whole
story. Couldnt the police, under the inevitable discovery doctrine, show that the statements
that the officer got from Williams through the Christian Burial speech would be discovered
anyway?
1) The Court here dealt with physical evidence, but maybe one could argue it should be
extended to confessions (although the counter argument would be based on relief for
the breach of a constitutional right)
VI. It seems that what is going on is that the Court is braking the chain of causation (to put it in
tort concepts)
1) But is this appropriate in Constitutional rights? This is not liability where someone
has to pay some money, this is a fundamental right.
VII. Nix involved a violation of the Massiah right to counsel. Is the inevitable discovery
exception equally applicable to evidence derived from unconstitutional searches and seizures
under the 4th Amendment? Yes. From Miranda violations? Dont know.
II.

E.

ATTENUATION DOCTRINE
1. Wong Sun v. US (1963)
A. Facts: Federal agents elicited an oral statement from DF Toy regarding his participation in the sale
of narcotics after forcing entry at 6am into his laundry where he lived. The agents had followed Toy
down the hall to the bedroom and there placed him under arrest without probable cause. Toys
statement led the agents to Yee, who they found in fact possessed narcotics. Yee stated that heroin
had been brought to him by Toy and Wong Sun and led the agents to a multifamily dwelling where
Wong Sun lived. The agents climbed the stairs without an arrest warrant and without probable cause
and entered the apartment, went to the back room and arrested Wong Sun. After arraignment, Wong
Sun was released on his own recognizance. Several days later, he returned voluntarily to give an
unsigned confession.
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B.

Procedure: DFs argued that evidence admitted at trial was inadmissible as fruits of unlawful arrests
or searches under the 4th Amendment.
C. Issue: Whether verbal evidence derived from an illegal search and seizure may be used in the
prosecution in the case.
D. Holding: Verbal evidence, like physical evidence, may not be used if it is the fruit derived
immediately from an unlawful entry and an unauthorized arrest. However, if the connection between
the evidence and the illegal government activity becomes so attenuated as to dissipate the taint of
illegality, then it may be admitted as evidence.
E.

Rationale:
I.
The statements made by Toy in his bedroom at the time of his unlawful arrest were the fruits
of the agents' unlawful action, and they should have been excluded from evidence
II. The narcotics taken from a Yee (third party not in the case) as a result of statements made by
Toy at the time of his arrest were likewise fruits of the unlawful arrest, and they should not
have been admitted as evidence against Toy (even if they were obtained in a legal way from
Yee)
III. Wong Suns statements, however, were attenuated because, after his unlawful arrest, he was
released and came back days later voluntarily and gave the statement. Therefore, the
evidence was not a direct flow from the illegality.
1) The connection between his unlawful arrest and the making of that statement was so
attenuated that the unsigned statement was not the fruit of the unlawful arrest and,
therefore, it was properly admitted in evidence.
IV. Moreover, the narcotics taken from Yee were admissible against Wong Sun because Wong
Sun did not have the right to object to the entry of Toys apartment; the seizure of the heroin
invaded no right of privacy of person or premises which would entitle Wong Sun to object to
its use at his trial.

F.

Rule: The question is whether, granting establishment of the primary illegality, the evidence to
which instant objection is made has been come at by exploitation of that illegality or instead by
means sufficiently distinguishable to be purged of the primary taint.
I.
If something directly flows from the illegal conduct, the State cans use it. However, if at
some point there is a disconnection with the illegality, the evidence can come in.
G. Notes:
I.
Toys statements do not come in because they are made right after the police violated his
Fourth Amendment rights. Wong Suns statements on the other hand, do come in because he
left on his own recognizance and came back voluntarily and made the statements.
II. The problem here is that if the real concern is deterrence, then maybe the whole thing should
be excluded. Yes, the Court says that at one point there is no direct nexus between the
violations, but looking at the whole picture, honestly its all derived from the first
constitutional violation. However, the Court says that even if that is so, there is attenuation
because there is something that broke the change of causation.
III. The Court noted that the policies underlying the exclusionary rule do not invite any logical
distinction between physical and verbal evidence and therefore excluded the statements from
Toy in made after a violation of his 4th Amendment rights.
2. Brown v. Illinois (1975)
A. Facts: DF was arrested without probable cause and without a warrant in violation of the 4th
Amendment. He made two in-custody inculpatory statements after he had been given the warnings
prescribed by Miranda. DF filed a pretrial motion to suppress the statements.
B. Procedure: State court held that reading the Miranda rights was per se attenuation. The State
Supreme Court, though recognizing the unlawfulness of DFs arrest, held that the statements were
admissible on the ground that the giving of the Miranda warnings served to break the causal
94

connection between the illegal arrest and the giving of the statements, and petitioner's act in making
the statements was "sufficiently an act of free will to purge the primary taint of the unlawful
invasion."
C. Issue: Whether the giving of Miranda warnings are per se attenuation to a 4th Amendment violation.
D. Holding: Miranda warnings can neither automatically nor by themselves protect an accused's
Fourth Amendment rights. Whether a confession was freely given or improperly coerced must be
determined on a case by case basis.
E. Rationale:
I.
Court rejected the per se rule that Miranda warnings in and of themselves broke the causal
chain so that any subsequent statement, even one induced by the continuing effects of
unconstitutional custody, was admissible so long as, in the traditional sense, it was voluntary
and not coerced in violation of the 5th and 14th Amendments
th
II. When the exclusionary rule is used to effectuate the 4 Amendment, it serves interests and
policies that are distinct from those it serves under the 5th, being directed at all unlawful
searches and seizures, and not merely those that happen to produce incriminating material or
testimony as fruits.
1) Thus, even if the statements in this case were found to be voluntary under the 5th
Amendment, the 4th Amendment issue remains.
2) Wong Sun requires not merely that a statement meet the 5th Amendment voluntariness
standard but that it be "sufficiently an act of free will to purge the primary taint" in
light of the distinct policies and interests of the 4th Amendment.
III. The question whether a confession is voluntary under Wong Sun must be answered on the
facts of each case. Though the Miranda warnings are an important factor in resolving the
issue, other factors must be considered; and the burden of showing admissibility of incustody statements of persons who have been illegally arrested rests on the prosecutor. Pp.
603-604.
1) Courts must examine factors such as the temporal proximity of the arrest to the
confession, the intervening circumstances, and, particularly, the purpose and
flagrancy of the official misconduct, as well as giving of Miranda warnings.
IV. Here, the State failed to sustain its burden in this case of showing that DFs statements were
admissible under Wong Sun.
F. Notes:
I.
Factors in considering whether the confession was obtained directly through the illegality.
When does Wong Suns fruit of the forbidden tree apply? Totality of the circumstances:
1) Temporal proximity of the arrest to the confession
2) Intervening circumstances
3) Reading of Miranda rights
4) Particularly, the purpose and flagrancy of the official misconduct (flagrancy and
character of the violation)
II. The Court seems to say that there is a point at which the deterrence of police conduct is so
removed that the exclusionary rule should not apply
3. US v. Ceccolini (1978)
A. Facts: Officer casually, but without probable cause or a search warrant, opened an envelope on the
counter of DFs business. Upon discovering policy slips and money indicative of gambling, the
officer asked DFs employee to whom the envelope belonged. She informed him that it was the
DFs. Employee became a key witness at DFs perjury trial.
B. Procedure: Trial court suppressed her testimony because she had first come to the governments
attention as a consequence of the illegal search of the envelope, and because there was no showing
that she would have been found without the unconstitutional search.
C. Holding: SC did not deny the causal connection but concluded that the connection was sufficiently
attenuated to dissipate the 4th Amendment taint.
95

D.

Rationale:
I.
The Court rejected governments argument for a per se rule that testimony of a live witness
should not be excluded at trial no matter how close and proximate the connection between it
and a violation of the 4th Amendment. However, it suggested that in deciding whether a
connection is attenuated the policies underlying the exclusionary rule require a distinction
between physical and verbal evidence.
1) The greater the willingness of the witness to freely testify, the greater the likelihood
that he or she will be discovered by legal means and the smaller the incentive to
conduct an illegal search to discover the witness.
II. Another relevant factor is that such exclusion would perpetually disable a witness from
testifying about relevant and material facts, regardless of how unrelated such testimony
might be to the purpose of the originally illegal search or the evidence discovered thereby.
III. Since the cost of excluding live-witness testimony often will be greater, a closer, more direct
link between the illegality and that kind of testimony is required
IV. Court concluded that the exclusionary rule should be invoked with much greater reluctance
where the claim is based on a causal relationship between a constitutional violation and the
discovery of a live witness than when a similar claim is advanced to support suppression of
an inanimate object.
4. NY v. Harris (1990) (not Harris v. NY)
A. Facts: officers developed probable cause to arrest DF for murder. They went to his apartment, but
without an arrest warrant, arrested him and read him his Miranda rights. He said he understood his
rights and agreed to talk and admitted killing the victim. DF was taken to the police station where he
again was informed of his Miranda rights. He signed a written inculpatory statement, and after a
third reading of Miranda warnings, he indicated that he wanted to end the interrogation. However,
the questioner interviewed him, and DF made more incriminating statements (in violation of
Miranda).
B. Issue: Whether the 2nd statement should have been suppressed because the police had entered DFs
home in violation of Payton v. NY (requiring an arrest warrant to enter the home).
C. Holding: Where the police have probable cause to arrest a suspect, the exclusionary rule does not
bar the States use of a statement made by the DF outside of his home, even though the statement is
taken after an arrest made in the home in violation of Payton.
D. Rationale:
I.
The rule in Payton was designed to protect the physical integrity of the home, not to grant
criminal suspects protection for statements made outside their premises.
II. Payton court did not suggest that an arrest in a home without a warrant but with probable
cause somehow renders unlawful continued custody of the suspect once he is removed from
the house. Existence of probable cause to arrest makes that continued custody lawful.
III. There is no need to engage in attenuation analysis to determine admissibility of a statement
made outside a home after officers enter in violation of Payton because attenuation analysis
is necessary only when evidence is in some sense the product of illegal government
activity. A statement that is made outside the home is not the product of unconstitutional
entry into DFs home and is not the fruit of the fact that the arrest was made in the house
rather than someplace else.
IV. In sum, there is no causal connection between a home entry in violation of Payton and a
statement made by an arrestee outside the home.
V. Also, exclusion here would not serve the purpose of the Payton rule to protect the home
against unjustified entry. The purpose of the rule is vindicated by the exclusion of anything
incriminating gathered from arresting a suspect in his home. Police still have adequate
incentive to obey Payton because they know that a warrantless entry will lead to suppression
of any evidence found or statements taken inside the home.
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E.

Note: so what would happen if the police enter without an arrest warrant, arrest the individual and
wait until he is outside the house to give Miranda warnings and question him?
5. Oregon v. Elstad (1985)
A. Facts: Officers obtained an arrest warrant for Elstad for being suspect in a burglary. When officers
picked him up at his home the officer questioned DF and DF made an incriminating statement
without having been given the Miranda warnings. After he was taken to the station house, and after
he was advised of and waived his Miranda rights, DF executed a written confession. Trial court
excluded his first statement because he had not been given the Miranda warnings, but admitted his
second, written confession.
B. Procedure: Appellate court concluded that because of the brief period separating respondent's
initial, unconstitutionally obtained statement and his subsequent confession, the "cat was sufficiently
out of the bag to exert a coercive impact" on respondent's confession, rendering it inadmissible.
C. Holding: The Self-Incrimination Clause of the 5th Amendment does not require the suppression of a
confession, made after proper Miranda warnings and a valid waiver of rights, solely because the
police had obtained an earlier voluntary but unwarned admission from the suspect. A suspect who
had once responded to unwarned yet non-coercive questioning was not thereby disabled from
waiving his rights and confessing after he had been given the Miranda warnings. The Court finally
held that defendant's waiver of his Fifth Amendment rights after being arrested was done voluntarily
and with full understanding of his rights.
D. Rationale:
I.
A procedural Miranda violation is different from a 4th Amendment violation, which has
traditionally mandated a broad application of the "fruits" doctrine that requires exclusion as
"fruit of the poisonous tree" of evidence discovered as a result of an unconstitutional search.
th
II. The 5 Amendment prohibits use by the prosecution in its case in chief only of compelled
testimony, and failure to administer Miranda warnings creates a presumption of compulsion,
requiring that unwarned statements that are otherwise voluntary within the meaning of the 5th
Amendment be excluded from evidence.
III. But the Miranda presumption does not require that fruits of otherwise voluntary statements
be discarded as inherently tainted. It is an unwarranted extension of Miranda to hold that a
simple failure to administer the warnings, unaccompanied by any actual coercion or other
circumstances calculated to undermine the suspect's ability to exercise his free will, so taints
the investigatory process that a subsequent voluntary and informed waiver is ineffective for
some indeterminate period.
IV. The failure of police to administer Miranda warnings does not mean that the statements
received have actually been coerced, but only that courts will presume the privilege against
compulsory self-incrimination has not been intelligently exercised.
1) Absent deliberate coercion or improper tactics in obtaining an unwarned statement, a
careful and thorough administration of Miranda warnings cures the condition that
rendered the unwarned statement inadmissible.
2) The warnings convey the relevant information, and thereafter the suspect's choice
whether to exercise his privilege to remain silent should ordinarily be viewed as an
act of free will. Endowing the psychological effects of voluntary unwarned
admissions -- such as the psychological impact of the suspect's conviction that he has
"let the cat out of the bag" -- with constitutional implications would, practically
speaking, disable the police from obtaining the suspect's informed cooperation even
when the official coercion proscribed by the 5th Amendment played no part in either
his warned or unwarned confessions.
V. The dictates of Miranda and the goals of the Fifth Amendment proscription against use of
compelled testimony are fully satisfied in the circumstances of this case by barring use of the
unwarned statement in the case in chief. No further purpose is served by imputing "taint" to
subsequent statements obtained pursuant to a voluntary and knowing waiver.
97

Missouri v. Seibert (2000)

A. Facts: After DFs son's death in bed, a mentally ill teenager died during a scheme to conceal DFs
neglect of the son. Employing a procedure called "question-first" interrogation, police arrested
defendant for the death of the teenager but intentionally refrained from giving her Miranda
warnings. 20 minutes after eliciting a confession, police gave the Miranda warnings to DF and
requestioned her after obtaining a waiver of the rights.
B. Procedure: The trial court suppressed the pre-warning statement but admitted the post-warning
recitation. The Missouri Supreme Court found that, because the interrogation was nearly continuous,
the second statement, clearly the product of the invalid first statement, also should have been
suppressed.
C. Holding: The question-first tactic effectively threatened to thwart Miranda's purpose of reducing the
risk that a coerced confession would be admitted. Because the facts did not reasonably support a
conclusion that the warnings given could have served their purpose, the post-warning statements also
were inadmissible. Strategists dedicated to draining the substance out of Miranda could not
accomplish by training what the Court had previously held Congress could not do by statute (in
Dickerson).
D. Notes:
I.
In the dissent, Justice OConnor, the author of Elstad, accused the plurality of devouring
Elstad.
II. What are the critical distinctions between Elstad and Seibert?
1) Seibert involved a police tactic that had the purpose of invalidating Miranda, while
Elstad involved an inadvertent occurrence rather than a tactic.
7. US v. Patane (2004)
A. Facts: After the officer began to investigate DFs apparent violation of a temporary restraining
order, a federal agent told a detective that DF, a convicted felon, illegally possessed a pistol. The
officer and the detective proceeded to DFs home, where they arrested him for violating the
restraining order. The officer attempted to advise DF of his rights under Miranda, but DF
interrupted after he had only given the warning of the right to remain silent, asserting that he knew
his rights. The officer then asked DF about the pistol and retrieved and seized it. DF was indicted
for possession of a firearm by a convicted felon.
B. Procedure: The 10th Circuit affirmed the suppression order rejecting the Government's argument
that Oregon v. Elstad and Michigan v. Tucker, foreclosed application of the fruit of the poisonous
tree doctrine of Wong Sun, to the present context. It reasoned that Oregon and Tucker, which were
based on the view that Miranda announced a prophylactic rule, were incompatible with Dickerson,
in which this Court held that Miranda announced a constitutional rule. The appeals court thus
equated Dickerson's ruling with the proposition that a failure to warn pursuant to Miranda is itself a
violation of the suspect's 5th Amendment rights.
C. Holding: The judgment is reversed, and the case is remanded. Court concluded that a failure to
Miranda warnings does not require suppression of the physical fruits of the suspect's unwarned but
voluntary statements.
D. Rationale:
I.
The Miranda rule is a prophylactic employed to protect against violations of the SelfIncrimination Clause. That Clause cannot be violated by the introduction of non-testimonial
evidence obtained as a result of voluntary statements.
II. Because such prophylactic rules necessarily sweep beyond the Self-Incrimination Clauses
actual protections, any further extension of one of them must be justified by its necessity for
the protection of the actual right against compelled self-incrimination.
III. A blanket rule requiring suppression of statements noncompliant with the Miranda rule could
not be justified by reference to the 5th Amendments goal of assuring trustworthy evidence"
or by any deterrence rationale, and would therefore fail the Court's requirement that the
closest possible fit be maintained between the Self-Incrimination Clause and any rule
6.

98

IV.

V.

VI.

VII.

E.

designed to protect it. Furthermore, the Clause contains its own exclusionary rule that
automatically protects those subjected to coercive police interrogations from the use of their
involuntary statements (or evidence derived from their statements) in any subsequent
criminal trial. This explicit textual protection supports a strong presumption against
expanding the Miranda rule any further.
That a mere failure to give Miranda warnings does not, by itself, violate a suspect's
constitutional rights or even the Miranda rule was evident in many of the Court's preDickerson cases (ex: Elstad), and the Court has adhered to that view since Dickerson (ex:
Chavez). This follows from the nature of the "fundamental trial right" protected by the SelfIncrimination Clause, which the Miranda rule, in turn, protects. Thus, the police do not
violate a suspect's constitutional rights (or the Miranda rule) by negligent or even deliberate
failures to provide full Miranda warnings. Potential violations occur, if at all, only upon the
admission of unwarned statements into evidence. And, at that point, the exclusion of such
statements is a complete and sufficient remedy for any perceived Miranda violation.
Unlike actual violations of the Self-Incrimination Clause, there is, with respect to mere
failures to warn, nothing to deter and therefore no reason to apply Wong Sun's "fruit of the
poisonous tree" doctrine. It is not for this Court to impose its preferred police practices on
either federal or state officials.
Introduction of the nontestimonial fruit of a voluntary statement, such as DFs pistol, does
not implicate the Clause. It presents no risk that a defendant's coerced statements (however
defined) will be used against him at a criminal trial.
In any case, the exclusion of unwarned statements is a complete and sufficient remedy for
any perceived Miranda violation. Similarly, because police cannot violate the Clause by
taking unwarned though voluntary statements, an exclusionary rule cannot be justified by
reference to a deterrence effect on law enforcement, as the court below believed. And
although the Court requires the exclusion of the physical fruit of actually coerced statements,
statements taken without sufficient Miranda warnings are presumed to have been coerced
only for certain purposes and then only when necessary to protect the privilege against selfincrimination. This Court declines to extend that presumption further.

Notes:

The Court conceded that the Miranda warnings were not given rather than inquiring into
whether DF waived the warnings by preventing the officer to finish giving them
II. There is a Miranda violation and a voluntary statement that led to physical evidence. The
Court said that the physical evidence can come in.
III. Miranda violation + voluntary statement that leads to physical evidence = Miranda is not
applicable
IV. Now we have the same inquiry that Miranda attempted to get rid off, whether it was
voluntary or involuntary
V. There is incentive for the police to violate Miranda because they can take the risk that the
interrogation may lead to discovery of physical evidence.
VI. The plurality, as well as the concurrence, justify the admission of evidence on the fact that,
admission of nontestimonial physical fruits, even more so than the postwarning statements to
the police in Elstad and Tucker, does not run the risk of admitting into trial an accuseds
coerced incriminating statements against himself.
VII. Furthermore, in light of the important probative value of reliable physical evidence, it is
doubtful that exclusion can be justified by a deterrence rationale sensitive to both law
enforcement interests and a suspects rights during an in-custody interrogation.
* The fifth amendment is an exclusionary rule that is violated at trial
F. THE GOOD FAITH EXCEPTION
1. US v. Leon (1984) EXCEPTION TO WARRANTS PROBABLE CAUSE
I.

99

A.

Facts: Acting on the basis of information from a confidential informant, officers of the initiated a
drug-trafficking investigation involving surveillance of respondents' activities. Based on an affidavit
summarizing the police officers' observations, Officer Rombach prepared an application for a
warrant to search 3 residences and DFs automobiles for an extensive list of items. The application
was reviewed by several Deputy District Attorneys, and a facially valid search warrant was issued by
a state-court judge. Subsequent searches produced large quantities of drugs and other evidence. DFs
were indicted for federal drug offenses, and filed motions to suppress the evidence seized pursuant to
the warrant.
B. Procedure: Trial court granted the motions in part, concluding that the affidavit was insufficient to
establish probable cause. Although recognizing that Officer Rombach had acted in good faith, the
court rejected the Government's suggestion that the 4th Amendment exclusionary rule should not
apply where evidence is seized in reasonable, good-faith reliance on a search warrant.
C. Issue: Whether a good-faith exception to the exclusionary rule should be recognized.
Holding: The 4th Amendment exclusionary rule should not be applied so as to bar the use in the
prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search
warrant issued by a detached and neutral magistrate but ultimately found to be invalid.
D. Rationale:
I.
Application of the exclusionary rule should continue where a 4th Amendment violation has
been substantial and deliberate, but the balancing approach that has evolved in determining
whether the rule should be applied in a variety of contexts suggests that the rule should be
modified to permit the introduction of evidence obtained by officers reasonably relying on a
warrant issued by a detached and neutral magistrate.
II. The exclusionary rule is designed to deter police misconduct rather than to punish the errors
of judges and magistrates. Admitting evidence obtained pursuant to a warrant while at the
same time declaring that the warrant was somehow defective will not reduce judicial officers'
professional incentives to comply with the 4th Amendment, encourage them to repeat their
mistakes, or lead to the granting of all colorable warrant requests.
III. Even assuming that the exclusionary rule effectively deters some police misconduct and
provides incentives for the law enforcement profession as a whole to conduct itself in accord
with the 4th Amendment, it cannot be expected, and should not be applied, to deter
objectively reasonable law enforcement activity.
1) In the ordinary case, an officer cannot be expected to question the magistrate's
probable-cause determination or his judgment that the form of the warrant is
technically sufficient.
2) Once the warrant issues, there is literally nothing more the policeman can do in
seeking to comply with the law, and penalizing the officer for the magistrate's error,
rather than his own, cannot logically contribute to the deterrence of 4th Amendment
violations.
IV. A police officer's reliance on the magistrate's probable-cause determination and on the
technical sufficiency of the warrant he issues must be objectively reasonable.
1) Suppression remains an appropriate remedy if the magistrate or judge in issuing a
warrant was misled by information in an affidavit that the affiant knew was false or
would have known was false except for his reckless disregard of the truth, or if the
issuing magistrate wholly abandoned his detached and neutral judicial role. Nor
would an officer manifest objective good faith in relying on a warrant based on an
affidavit so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable.
2) Finally, depending on the circumstances of the particular case, a warrant may be so
facially deficient -- i. e., in failing to particularize the place to be searched or the
things to be seized -- that the executing officers cannot reasonably presume it to be
valid.
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E.

Notes:

The deterrence factor of the Exclusionary Rule does not apply when the mistake comes from
the magistrate. It is not good here because the deterrence would be toward the Magistrate,
not the officers.
II. This promotes sloppiness from the Magistrates and assures them that there is nothing
wrong with not examining the evidence thoroughly and just issue the warrant, if it was not
good, its great, if not it the police can still use the evidence
III. This was bad judgment (honest mistake) by the Magistrate
IV. Later on, about 3 years later, the Court accepts bad judgment (honest mistake) by officers in
Maryland v. Garrison, where the Court held that where the officers reasonably believed that
they were searching one apartment rather than two separate ones, the search is valid.
V. Courts have 2 jobs in Fourth Amendment protection:
1) Issuance of warrants based on probable cause
This now has an exception maybe even eliminates it
2) Exclusion of evidence resulting from a violation of the Constitution
VI. Illinois v. Gates made it easy to get a warrant
2. Massachusetts v. Sheppard (1984) EXCEPTION TO WARRANTS PARTICULARITY
A. Facts: After police questioned defendant regarding a murder, they examined a car defendant had
borrowed. The police drafted an affidavit to support an application for an arrest warrant and search
warrant of defendant's home. Police could not find proper warrant application and used one from
another district that was for controlled substance. Police made changes to form; however, references
to controlled substances were not deleted from form that constituted the application. The warrant
form and affidavit were reviewed by a judge, and the judge made some changes, but did not change
the substantive portion, which continued to authorize a search for controlled substances, nor did he
alter the form so as to incorporate the affidavit. He then told the police the warrant was sufficient
authority to carry out the search. The subsequent search of DFs residence was limited to the items
listed in the affidavit, and several incriminating pieces of evidence were discovered. Thereafter, DF
was charged with first-degree murder.
B. Procedure: The trial judge ruled that notwithstanding the warrant was defective under the 4th
Amendment in that it did not particularly describe the items to be seized, the incriminating evidence
could be admitted because the police had acted in good faith in executing what they reasonably
thought was a valid warrant.
C. Holding: Here, there was an objectively reasonable basis for the officers' mistaken belief that the
warrant authorized the search they conducted. The officers took every step that could reasonably be
expected of them. At the point where the judge returned the affidavit and warrant to the detective, a
reasonable police officer would have concluded, as the detective did, that the warrant authorized a
search for the materials outlined in the affidavit.
D. Rationale:
I.
A police officer is not required to disbelieve a judge who has just advised him that the
warrant he possesses authorizes him to conduct the search he has requested.
II. An error of constitutional dimensions may have been committed with respect to the issuance
of the warrant in this case, but it was the judge, not the police officer, who made the critical
mistake. Suppressing evidence because the judge failed to make all the necessary clerical
corrections despite his assurance that such changes would be made will not serve the
deterrent function that the exclusionary rule was designed to achieve.
E. Rule: The exclusionary rule should not be applied when the officer conducting the search acted in
objectively reasonable reliance on a warrant issued by a detached and neutral magistrate that
subsequently is determined to be invalid (same as Leon).
F. Notes:
I.
A number of state courts have decided to reject the Leon-Sheppard exception in interpreting
their own constitutions.
I.

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Illinois v. Krull (1987) EXCEPTION FOR SEARCH BASED ON UNCONSTITUTIONAL STATUTE

A. Court concluded that even though a statutorily-authorized search was constitutionally unreasonable
(and therefore the statute was unconstitutional), the evidence obtained as a result of that search was
admissible because the officers conducting the search had acted in objectively reasonable reliance
upon the statute authorizing the search.
B. The Court reasoned that the error is that of the legislators, who, like judges, do not need to be and
are not likely to be deterred by the exclusion of evidence.
C. Moreover, when officers acted in reasonable reliance upon a statute, there is not police error to
deter. Consequently, the deterrent premises of the exclusionary rule do not support suppression.
4. Arizona v. Evans (1995) EXCEPTION FOR COMPUTER RECORD OR CLERICAL ERROR
A. Court concluded that if an officer arrests an individual based on a computer record that erroneously
indicates the existence of an outstanding arrest warrant, evidence found as a result of that
unreasonable arrest is admissible if the officer acted in objectively reasonable reliance on the
erroneous computer record and if court employees are responsible for the erroneous computer
record.
B. Court reasoned that an extension of good faith exception was justified because the exclusionary
rule is not designed to affect the behavior of court employees and because there is no reason to
attempt to deter objectively reasonable behavior by law enforcement officers.
C. Consequently, the Leon framework supports a categorical exception to the exclusionary rule for
clerical errors of court employees.
3.

G.

THE IMPEACHMENT LIMITATION

1. Rationale behind the limitation:
A. Truth-finding function
B. Deterrence
2. Harris v. NY (1971)
A. Facts: DF was charged with selling heroin to an undercover agent. The officers obtained a
confession from DF after a failure to give Miranda warnings and therefore inadmissible. At trial,
DF took the stand in his own defense. He admitted knowing the undercover police officer but denied
a sale on January 4, 1966. He admitted making a sale of contents of a glassine bag to the officer on
January 6 but claimed it was baking powder and part of a scheme to defraud the purchaser. On
cross-examination, however, DF was asked whether he had made specified statements (those that
were in violation of Miranda) to the police immediately following his arrest on January 7, which
partially contradicted his direct testimony at trial. DF responded that he could not remember
virtually any of the questions or answers recited by the prosecutor. The trial judge instructed the jury
that the statements should count only as to the credibility of the DF and not the guilt.
B. Issue: Whether the statements made in violation of Miranda could be used to impeach DFs direct
testimony.
C. Holding: Yes. Miranda does not prevent the State from using DFs statement to the police to
confront defendant with prior inconsistent testimony. Thus, the court concluded that DFs credibility
was appropriately impeached by use of his earlier conflicting statements made in violation of
Miranda.
D. Rationale: The Court conducted a cost-benefit analysis and found that the cost of excluding
Miranda-defective confessions when offered for impeachment outweighed the benefit in deterring
Miranda violations. The shield of Miranda cannot be distorted into a license to use perjury as a
defense, free from the risk of confrontation with prior inconsistent statements.
I.
Perjury is bad and telling truth is part of the truth finding function of the Court
II. Miranda is not a license for perjury
III. The truth finding function is more important than the Miranda protection
IV. If you commit perjury, the statements made in violation of Miranda can come in for
challenging the DFs credibility
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E.

Notes: Problems with the opinion:

I.
One of the things that Miranda said is that statements made in custody are presumptively
coercive, it was meant to prevent coerced statements from coming into evidence protect the
truth finding function of the Court. However, if statements in violation of Miranda are
introduced, it is not helping the truth finding function of the court
II. Right to put on a defense the only way to avoid the impeachment is to go on direct very
carefully, avoiding touching any issue that DF can be impeached in avoid saying anything
contrary to what he had confessed to before
1) But what if DF has confessed to everything, what can he testify to? Maybe this
prevents DF from his right to put on a defense
III. Deterrence the officer can do anything to get the whole story and either prevent DF from
testifying or making DF risk being impeached with it
3. US v. Havens (1980)
A. Facts: DFs co-conspirator was searched as he tried to enter the United States, and cocaine was
found in pockets sewn into his shirt. DFs luggage was then searched without a warrant, in
violation of the 4th Amendment, and a tee-shirt with cut out material corresponding to the pockets in
the co-conspirators shirt was found. The cut up shirt was suppressed. At trial, the DF acknowledged
that the co-conspirator had cocaine taped or draped around his body but denied he had ever engaged
in that kind of activity with him. On cross-examination, the prosecution called attention to those
answers and asked DF if he had anything to do with sewing the pockets on the co-conspirator's shirt,
and DF denied any participation. And when the Government asked him whether he had a T-shirt
with pieces missing in his luggage and whether the seized T-shirt was in his luggage, DF replied to
both questions: "Not to my knowledge." After rebuttal testimony for the Government, the seized Tshirt was admitted into evidence over objection, the jury being instructed that the rebuttal evidence
was to be considered only for impeaching respondent's credibility.
B. Procedure: Appellate court reversed the conviction, holding that illegally seized evidence may be
used for impeachment only if the evidence contradicts a particular statement made by the DF in the
course of his direct examination.
C. Issue: Whether the statements made in violation of Miranda can be used to impeach DF on
testimony elicited on cross-examination and not contradicting his direct examination testimony.
D. Holding: Yes. Here, DFs testimony on direct examination could easily be understood as a denial of
any connection with the co-conspirators T-shirt and as a contradiction the co-conspirators
testimony, and the Government on cross-examination reasonably called attention to DFs answers on
direct and then asked whether he had anything to do with sewing the pockets on the co-conspirator.
E. Rule: A DFs statements made in response to proper cross-examination reasonably suggested by the
DFs direct examination are subject to otherwise proper impeachment by the Government, even by
evidence that has been illegally obtained and is inadmissible as substantive evidence of guilt.
F. Notes:
I.
In cross, you can ask questions that cover the general subjects touched on direct its very
easy to get through cross-examination
II. Problem you have a motion to suppress, but can you put the DF on the stand?
1) Probably not, even if you very careful in direct, it is very easy for the prosecution to
get to the statements in cross-examination
4. Oregon v. Hass (1975)
A. Holding: Court held that, when officers obtained statements from DF after they gave Miranda
warnings but failed to honor his request for counsel, although inadmissible in the prosecutions case
in chief, could be used to impeach the DFs testimony. The majority did acknowledge that when
proper Miranda warnings have been given, and the officers then continues his interrogation after the
suspect asks for an attorney, the officer may be said to have little to lose and perhaps something to
gain by way of possibly uncovering impeachment material. However, it concluded that the
principles underlying Harris were controlling.
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Mincey v. Arizona (1978)

A. Holding: The Court held that a statements obtained and coerced in violation of Due Process could
not be used for impeachment. Court reasoned that any criminal trial use against a DF of his
involuntary statement is a denial of due process of law.
B. Note: In this sense, actual coercion has different consequences from the presumed compulsion
that underlies Miranda.
6. Michigan v. Harvey (1990)
A. Holding: Court held that statements obtained in violation of the Michigan v. Jackson branch of the
Massiah doctrine, may be used to impeach DFs testimony.
B. Court characterized the dictate of Jackson as a prophylactic rule designed to ensure voluntary,
knowing, and intelligent waivers of the 6th Amendment right to counsel. For exclusionary rule
purposes, it found no reason to treat breaches of this 6th Amendment-based prophylactic rule any
differently from breaches of Mirandas 5th Amendment-based prophylactic rules.
C. However, the Court made no general pronouncement regarding the propriety of impeachment use of
evidence obtained in violation of Massiahs other branches.
7. James v. Illinois (1990)
A. Facts: A group of 8 young boys was assaulted by a group of 3 other young men. When the 8
refused to give them money, one of the boys in the smaller group took out a gun and fired into the 8,
killing one and injuring another. Police arrived at the scene and the remaining boys of the larger
group provided statements to the police of what had happened and gave a description of the
perpetrators. The police picked up DF when he was at his mothers beauty salon and had emerged
from a hair dryer with black and curly hair. Detectives asked him about his prior hair color and the
DF said that the previous day he his hair was reddish-brown, long, and combed straight back and
that he had gone to the salon to change his appearance. DF moved to suppress the statements
claiming that the detectives did not have probable cause for his warrantless arrest and the trial court
suppressed the statements. At trial the witnesses testified that the DF was the perpetrator but that he
had reddish hair, worn shoulder length in a slicked-back butter style. They also said that they had
seen DF several weeks earlier at a parade with that hair color and style. DF did not testify but called
Henderson, a friend of the family, to testify for him. Henderson testified that on the day of the
shooting, he had taken the DF to register for high school and that at the time hi hair was black.
B. Procedure: Trial court allowed the statements made by the DF in violation of the 4th Amendment to
impeach Henderson. Appellate court reversed, holding that the statements were inadmissible under
the exclusionary rule. The Illinois SC reversed, reasoning that the impeachment exception should be
expanded to allow the State to impeach the testimony of defense witnesses other than the DF in
order to deter the DF from engaging in perjury by proxy.
C. Issue: Whether the impeachment exception should be expanded to all defense witnesses.
D. Holding: No. Prosecution cannot use the DFs statements to impeach other witnesses
E. Rationale:
I.
Expanding the impeachment exception to all defense witnesses would frustrate rather than
further the purposes underlying the exclusionary rule.
II. It would not promote the truth-seeking function to the same extent as the original exception
III. Exception penalizes DF for committing perjury. Thus, DFs are discouraged from resorting to
perjurious testimony. Expanding the exception, however, would chill DFs from presenting
their best defense and calling witnesses who would otherwise offer probative evidence
because of fear that they will inadvertently expose themselves to impeachment.
1) Mere threat of subsequent criminal prosecution for perjury is more likely to deter a
witness form intentionally lying on DFs behalf.
2) DF cant use the exclusionary rule as a shield from perjury, but the prosecution cant
use the exception as a sword.
IV. It would significantly undermine the deterrent effect of the general exclusionary rule on
police misconduct.
5.

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Officers would recognize that obtaining evidence through illegal means is good for
the prosecutions case.
2) Most of the time, officers have the opportunity to get evidence illegally after they
have already legally obtained (or know that they could get the evidence through other
means) sufficient evidence to sustain the prosecutions case in chief. Therefore, the
police would have little to loose by violating the DFs rights in exchange for
inculpatory evidence that could be used for impeachment purposes.
1)

F.

Notes:
There are essentially 3 prongs:
1) Not deter police
2) Truth-seeking function perjury
DF is not worried about perjury, but witnesses are
3) Gut (eviscerate) the defense
II. DF cant testify himself because hes afraid he may touch a subject that is in tension with its
previous statements or that the prosecution could ask a question sufficiently related to the
scope of direct, and now he wouldnt be able to put witnesses without the same fear
I.

H.

FINAL NOTES
1. Exclusionary rule is the last hurdle
2. You must show that there was a constitutional violation, that you have standing, and that none of the
exceptions apply. But then there are Harris and Havens saying, what did you win? The evidence can still
come in certain circumstances
3. Hass worst case because a person that calls for a lawyer is not likely to talk without an attorney, if his
request is ignored he is likely to be coerced
4. Does the impeachment exception apply to the 6th Amendment?
A. It applies where the Miranda warnings were given, the DF asked for attorney and the police ignores
the request
5. Mitsey (exception to the exception) impeachment exception does not apply to Due Process violation (guy
in the hospital) almost torture
6. Harmless error isnt a constitutional violation
A. Strickland effective assistance of counsel after case has been tried and has ran its appellate
course, you can start over and raise ineffective assistance of counsel (reasonably adequate counsel)
you must show that there was defective performance and that if the attorney had behaved properly
you would have won

I.

CONCLUSION ON 4TH AMENDMENT

1. SEARCHES
A. Courts have often used the expectation of privacy test to limit 4th Amendment protection, so that much law enforcement
activity that looks like a search is not in fact a search for 4th Amendment purposes. I.e., Ciraolo, Greenwood
(rummaging in the trash not covered), Rakas, etc.
B. To see just how far afield the Court has strayed, it is instructive to imagine compiling the Court's holdings concerning
when the Fourth Amendment applies or, more accurately, does not apply into an "Accidental Tourist's Guide to
Maintaining Privacy Against Government Surveillance." 148 The advice would be rather astonishing:
I.
To maintain privacy, one must not write any checks nor make any phone calls. It would be unwise to engage in
conversation with any other person, or to walk, even on private property, outside one's house. If one is to
barbecue or read in the back yard, do so only if surrounded by a fence higher than a double-decker bus and
while sitting beneath an opaque awning. The wise individual might also consider purchasing anti-aerial spying
devices if available (be sure to check the latest Sharper Image catalogue). Upon retiring inside, be sure to pull
the shades together tightly so that no crack exists and to converse only in quiet tones. When discarding letters or
other delicate materials, do so only after a thorough shredding of the documents (again see your Sharper Image
catalogue); ideally, one would take the trash personally to the disposal site and bury it deep within. Finally,
when buying items, carefully inspect them for any electronic tracking devices that may be attached. 94 Colum.
L. Rev. 1751, 1789-1790

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2.

C. The Court's decisions finding such a limited reasonable expectation of privacy in society, an expectation so limited that
Justice Powell was moved in exasperation to state that "families can expect to be free of official surveillance only when
they retreat behind the walls of their homes," 150 might be explained by several factors. Perhaps privacy intrusions have
become so great that a majority of the Justices is factually correct in holding that the citizenry reasonably does not
expect, even if it might have the desire, to be free from surveillance while walking in the woods or driving the city
streets. 151 Maybe the Court is influenced by the fact that the privacy interests they are examining in these cases are not
[*1791] those of Farmer McGregor raising corn in the back forty or tending sheep in the barn, but involve activities like
the cultivation of marijuana and the running of an amphetamine laboratory. 152 Or it is possible that in deciding what a
"reasonable" expectation of privacy is, the Court is defining reasonableness to include the need for effective law
enforcement.
94 Colum. L. Rev. 1751, 1790-1791
D. Tracey Maclin has argued that the Court, "if pushed," would acknowledge legitimate privacy interests in many cases;
however, "the Court assumes that these intrusions will only happen to individuals [engaged in criminal activity]. Thus, a
majority of the Court trusts the police to target the "right' people." Tracey Maclin, Justice Thurgood Marshall: Taking the
Fourth Amendment Seriously, 77 Cornell L. Rev. 723, 745 (1992).
SEIZURES

ESSAY:
5th AMENDMENT:

Arrested
Interrogated
Miranda
He talked again (Possible waiver of Miranda rights)
Asked for lawyer
More questioning
Someone comes in and Talks (kind of like Bruno)
Than go to 14th Amendment, even though waived rights, was he coerced or duress.
1. ASHCRAFT FACTORS (CASE OF ACCUSED FOR KILLING WIFE, CONTINUOUS
QUESTIONGING)
2. SPANO: (BROUGHT BRUNO IN TO TALK TO GUY)
3. MINCEY: (QUESTIONING IN HOSPITAL NOT VOLUNTARY)
4. CONNELLY: NO COERCION WHEN STATE NOT INVOLVED (CRAZY GUY)
5. FENTON: (PROMISE FOR PROTECTION, THIS VIOLATION, COERCION)
6. BRADY: (LENIENCY PROMISE WILL MAKE CONFESSION INVOLUNTARY)

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