Criminal Procedure Outline

By: Elizabeth Frederick

I. Due Process and Incorporation:

A) Role of Due Process: Due Process ensures that a government behaves rationally, fairly, and

proportionally; and does not act unreasonably.

1) Civil Procedure Due Process: The court must have jurisdiction and if property is to

be deprived the government must meet due process of law regulations (notice and

hearing).

a) Tort Law: Punitive damages are subject to due process and courts can limit

excessive punitive damages. (Defendants must be on notice that they could be

subject to such liability)

2) Criminal Procedure Due Process: The court must have jurisdiction and the

defendant is afforded due process throughout the criminal procedure. The burden of proof

is regulated by due process tests. Punishment is regulated by due process and must be

proportional to the offense.

B) Equal Protection v. Due Process: Equal Protection specifically protects against government

classification and the legislature can change the law by either eliminating the classification or

make the class bigger and classification broader. Due Process protections, on the other hand, are

constitutionally mandated and the government cannot use their power to intrude on these rights.

C) Incorporation: The court, on an ad hoc basis, will find that a right is so fundamental to the

core of society that to violate it would be to deplete the core foundation upon which the State

was created and therefore is protected by the 14th

Amendment due process right. Violation of the

right would violate ordered liberty and fundamental notions of fairness. (The 5th

Amendment

protection does not do this, however D.C. is a federal district and the 5th

applies.) Warren Court

in 60’s incorporated almost all substantive rights from the Bill of Rights into the 14th

Amendment. (Rights NOT incorporated: 3rd

right to be free from quartering troops, 7th

preservation of the right to a jury trial when amount in controversy exceeds 20 dollars, the right

to have an indictment, and 8th

right to be free of excessive fines, and 2nd

right to bear arms.)

1) Incorporation Debate: There are 4 views

a) Selective incorporation: Palko and Adamson

b) Due Process as a function of Natural Law: Frankfurter in Adamson

c) Total Incorporation: 14th

incorporates all 5th

rights entirely (Dissent Amadson)

d) Total Incorporation AND the Court should be able to look at fairness problems

not read into the protections of due process yet. (Murphy’s Dissent Adamson)

Related Case Law:

Palko v. Connecticut: Palko was charged with 1st and 2

nd degree murder and was convicted for

2nd

. State law allows for the prosecutor to try the case again if there were serious errors. This

would be considered double jeopardy in the federal court and would be protected against under

5th

Amendment due process right based on court holdings. Should the right against double

jeopardy be incorporated into the 14th

Amendment and apply to state court proceedings? NO.

The state has a right to find justice free from error. The right against double jeopardy is not so

fundamental that its violation would violate ordered liberty and fundamental notions of

fairness. It is not until such action shocks the conscience that it would be a violation.

Adamson v. California: Adamson is convicted for murder and remained silent throughout the

process. A state statute allowed the judge and prosecutor to state to the jury that the defendants

silence could lead to the inference that he was guilty. The 5th

Amendment right against self-

incrimination bars such action by federal actors based on court rulings. Should the right to

remain silent and not have it used against you be incorporated to 14th

Due process? NO. The

right to remain silent and not have it used against you based on federal court decisions does not

violated ordered liberty and fundamental notions of fairness. (Refer to the above debate for sides)

Rochin v. California: Officers unlawfully entered the defendant’s home and after seeing two

capsules on a table and the defendant swallowing them, officers held the defendant down and

then took him to the hospital and had his stomach pumped. He was convicted of possession of

narcotics. Should the right against unreasonable search and seizures be incorporated and if it is

was the act taken by the officers so egregious that it shocks the conscience? The right against

unreasonable search and seizure is incorporated and the act taken by the officers was so

egregious that it shocks the conscience and the conviction is reversed.

II. Entrapment and Outrageous Conduct:

A) Entrapment Majority Rule: The defendant has to make a prima facie showing that:

(1) The government has to instigate or induce the illegal act

(2) The defendant would not have committed the acts without the inducement (the

government should not be in the business of making criminals).

(3) If the defendant proves the above then the government has to disprove the

defendant beyond a reasonable doubt.

Related Case Law:

United States v. Russell: An undercover agent offered Russell an essential substance to

make a narcotic and had him make the product for him so the agent could sell it. The

court found that this was entrapment because the government induced the illegal act and

Russell demonstrated that he would not have committed the act prior to the agent

approaching him. The government’s conduct was so outrageous that it shocks the

conscience.

B) Entrapment Minority Rule: Look to government to see if their actions are so ignoble

or criminal that the government should not be allowed to do so. Government conduct

must be so outrageous that is shocks the conscience.

Related Case Law:

Olmstead v. United States: Olmstead illegally sold alcohol and police tapped his phones for

several months and gained incriminating testimony. Olmstead argued that the use of the phone

conversations were against his unreasonable search and seizure and his right against self-

incrimination. The court held that the tapping was not unreasonable or against the defendants

right against self-incrimination: Olmstead was aware that his conversations could be recorded so

it is not against his right against self-incrimination. Olmstead’s “person, house, paper, or effects”

were not seized, rather his words were and the police did not enter a private place.

Olmstead is a dead case. The dissent is key: The government should be subject to the

same limitations on actions to protect substantive rights. Tapping the phone is like

invading someone mail and should be protected against invasion from unreasonable

search and seizures. The substantive rights need to be protected to protect the right.

III. Origins of the Exclusionary Rule:

A) In Boyd it was found that a defendant is subject to “compulsory incrimination” if

evidence seized in violation of the 4th

Amendment is admitted.

B) In Weeks the court implied a Federal Exclusionary Rule when evidence is seized in

violation of the defendant’s right against unreasonable search and seizures.

C) If the government can be allowed to use the evidence then you might well strike the

right from the Constitution because it dilutes its meaning.

D) In Wolf the court held that states did not have to implement the exclusionary rule and

that is was something that they had the power to regulate because they were entrusted

with the power to protect their citizen’s rights.

E) In Mapp v. Ohio, after a woman’s rights against unreasonable search and seizure were

violated after being thrown a fake warrant the court held that states must uniformly

apply the exclusionary rule.

F) Final Exclusionary Rule: States are subject to the exclusionary rule via the

protections of Due Process enforced by the 14th

Amendment when violations of the

Fourth Amendment occur.

G) Justification: It is to deter officers from committing violations of the 4th

Amendment

(sanction), to preserve judicial integrity (this justification died)

H) How to Evaluate an Exclusionary Rule Application:

(1) There must be a search or seizure

(2) The search must have been in violation of the 4th

Amend.

(a) The 4th

Amend describes a right of the people to be secure in their

persons, houses, papers and effects against unreasonable searches and

seizures. Therefore, you have a right to be protected against unreasonable

search and seizures.

(b) The second clause protects individuals from search and seizures unless

there is a judicial warrant based on probable cause, supported by Oath or

affirmation and particularly describing the place to be searched and the

persons or things to be seized.

IV. Protected Privacy Interests:

A) The 4th

Amendment protects people not places. If a reasonable individual would

have an expectation of privacy and that expectation is reasonable then the individual

should be protected.

Katz v. United States: Katz was recorded taking bets on a payphone outside with

a device outside of the booth. Katz argued that the officers violated his 4th

Amend

right to unreasonable search when they recorded the conversations without a

search warrant. The court held that the recording was a violation of Katz 4th

Amend protections because he had a reasonable expectation that his conversations

would not be heard when he went into a booth, even though others could see him

on the phone, and society finds his expectation reasonable. The officers cannot

admit the evidence based on the argument that they would have been able to get

the warrant had they done so before.

Notes: Cameras: No expectation, you can be seen everywhere.

B) Search TEST:

1) Subjective reasonable expectation of privacy by the actor (Not primary concern)

AND

2) Society has an objective expectation that the actor’s subjective expectation is

reasonable/ legitimate

EX: If Katz was screaming in the booth his expectation of privacy would not have

been reasonable. If Katz has his marking listed in a book that could be seen

through the glass that would not be a search because of an unreasonable

expectation (plain sight). If Katz was on the phone and it stated that his call could

be monitored for quality service and he said illegal activity then that would not be

a search because the actor has no subjective reasonable expectation. If an officer

was tracking your car you would not have a reasonable expectation of privacy

because someone can always follow you in public.

Good Exam Question: A friend starts informing the police about illegal

activity that you commit (an informant) and records a conversation that

you have with them. Because any one can deceive you at anytime the

expectation of privacy with regards to your conversation is not reasonable

even though you may have a subjective expectation of privacy. (United

States v. White)

C) Expectation and Reasonable v. No Expectation or Reasonableness

Garbage: There is no reasonable expectation of privacy in garbage, anyone can

go through it. Once an individual has discarded property for disposal the items no

longer have a reasonable expectation of privacy attached. (On the curb or taken by

garbage men or shred up and put back together) California v. Greenwood

(evidence of drug use found with warrantless garbage pick-up was OK, not a

search: no warrant needed) However, if your garbage is in your curtilage then

that is protected because it is not abandoned. However, if the garbage collector

goes onto your curtilage to pick up and then gives it to the police, that is OK: once

the collector has it he can show it to whomever he wants.

Plain Sight: What someone knowingly exposes to the public has no reasonable

expectation.

Phone numbers and bank records: No reasonable expectation

DNA: If officers come up with a scheme to get a suspect to send in their DNA

then that is not a search and there is no reasonable subjective expectation of

privacy because the sample is sent in voluntarily (say when the suspect licks the

envelope to send back a questionnaire) The scheme that the officers used would

have to shock the conscience to take away the voluntary nature of the submission.

Open Fields: 4th

Amend protects persons, houses, papers and effects and does not

extend to open fields of property. Open fields are not considered effects because it

is less inclusive than property. Because open fields are accessible to the public

and the police in ways that a home, office, or commercial structure would not be,

and because fences or “No Trespassing” signs do not effectively bar the public

from viewing the open fields, the expectation of privacy in fields is not

recognized by society. The fact that the government’s intrusion upon an open

field is a trespass at common law it does not make it a search in the constitutional

sense.

Curtilage: The area directly surrounding the home is known as the

curtilage and there is in a reasonable expectation of privacy in that area.

Packages: There is no reasonable expectation privacy in the contents of a

package until it is in your home or possession. The company that is shipping the

package can allow the government access to it.

Heat from Home: There is a reasonable expectation of privacy in the heat

radiating through the walls of the home. When officers use a thermal device to see

the heat in the home, that is a search which requires a warrant. Kyllo v. U.S.

Watching the Home: Anyone can surveillance a place from the outside and

images taken are not subject to a reasonable expectation of privacy.

Smells: The smells outside of your home have been held to require a warrant.

Smells around your car by officer or dog have no reasonable expectation of

privacy and is not a search.

Baggage on a bus, plane: Officers are not conducting a search when they feel the

outside of a bag in a cursory fashion. However, once the officer pushes into the

bag that is considered a search and requires probable cause to be searched.

Analog Phones: There is no reasonable expectation of privacy for conversations

that occur on an analog phone, because the system is so easy to tap into. There is

a greater expectation of privacy on a digital phone.

Emails: Who and how many emails you send has no reasonable expectation of

privacy but the content that is in them do.

V. Scope of Exclusionary Rules:

A) Private Searches: There must be government action to have 4th

Amend protection. Therefore,

private searches are NOT PROTECTED! It is a factual determination. If the government agent

looks into something the same way a private actor would then it is not considered a search

because there is no reasonable expectation (FEDEX package given to the cops). However, if the

cops did more than the private actor then a search warrant would be necessary because there is a

reasonable expectation of privacy. Keep in mind that if officers test the substance to determine if

it is a drug that is not a search because there was no reasonable expectation of privacy because

the test is only determining if it is a drug. If the test can reveal more than if it is a drug a warrant

is required because there is a reasonable expectation of privacy in non-illegal substances.

B) Civil Searches: If a search is conducted for civil procedures (deportation, civil forfeiture

cases, police department proceeding, civil tax assessment proceedings, lawyer disciplinary

proceedings), then the court will employ a cost benefit analysis and determine that the benefit

must be higher than the cost (deterrence cannot be marginal). Further, it cannot be the product of

a good faith mistake.

EX: While evidence found during an illegal search could not be used for a criminal case

they could be used in a civil tax proceeding to demonstrate tax violation.

An Attorney may be able to exclude items searched in an illegal search in a disciplinary

hearing if they can show that the sole purpose of the search was to have the attorney

disbarred and not for the criminal proceeding.

C) Ancillary Criminal Proceeding: Ancillary Proceedings: Grand Jury Hearing, Sentencing

Hearing, Probation or Parole revocation proceedings: The exclusionary rules DOES NOT

APPLY in ancillary proceedings. Unlike illegal confessions evidence seized based on an illegal

search is not unreliable or inaccurate but is highly probative regardless of it being the product of

an illegal search. Therefore the benefit of society by allowing the evidence in ancillary

proceedings is worth the lost deterrence effect.

D) Standing for Requesting the Exclusionary Rule: Can the person invoke this right?

1) General Standing: (a) Injury in fact (b) the injury was caused by some government

actor, and (c) the court has a remedy that can be applied.

2) Standing to Invoke the Exclusionary Rule: (a) The defendant has general stand (b)

the defendant is a victim of an unreasonable search (reasonable subjective expectation of

privacy that was violated), and (c) The defendants rights were violated in the

unreasonable search.

Relevant Case Law:

Rakas v. Illinois: A robbery takes place and an officer stops a car that matches

the description of the getaway car. Upon searching the vehicle the officer find a

shotgun and other materials used in the robbery in the trunk of the car. The

defendant, who was a passenger in the car, tries to exclude the evidence found in

the car. Does the passenger have standing to contest the legality of the evidence?

NO. The passenger does not have standing because he does not have a reasonable

expectation of privacy in the compartments of the car. Even if the defendant had

claimed the gun and material as his own it would not have changed the evaluation

of privacy because there was still no expectation of privacy in the compartments

of the car as a passenger. The key question: Does the person have a subjective

reasonable expectation of privacy in the place that is being searched?

Minnesota v. Olsen: Two men rob a gas station. As an officer seas the two in

their getaway car, it spins out and the men flee the vehicle, one man is caught and

Olsen is on the lam. The officers find out that Olsen is staying at a friend’s house.

The officers without a warrant enter the home and seize Olsen while he is hiding

in a closet. Does Olsen have standing to challenge his arrest? YES. A person has a

reasonable subjective expectation of privacy when they are staying at another

home. The home does not be their residence to have a legitimate expectation of

privacy. The officers need an arrest warrant to enter the home.

Minnesota v. Carter: Police are given a tip that the occupants of a first floor

apartment are bagging and selling cocaine. The one officer peers into a window

that is covered with a blind and sees the occupants bagging cocaine. The

defendants walk out of the home and while the officer radioed for a search

warrant of the home he stopped the men and found drugs and a loaded handgun.

The defendants try to exclude the evidence found in the house. Do non-residents

who were leaving the premises of a home have standing to exclude evidence

found in the search? NO, although the court recognizes the ability of people to

temporarily invite someone over that does not mean that that gives those

individuals a subjectively reasonable right of privacy in the areas that were

searched in the home. While an overnight guest does have an expectation as stated

in Olsen, a guest who is in and out for business does not. (The court makes the

analogy that a business establishment has a lower expectation of privacy).

E) Inevitable Discovery: If the government can prove by a preponderance of the evidence that

the evidence that was found would have been found ultimately or inevitably regardless of

violation. The government does not need to prove that the violation was not in bad faith because

the exclusionary sanction would place the officers in a worse position then if they had not

committed the violation.

If it can be shown that primary evidence would have been discovered inevitably then the

secondary evidence from the primary can be used.

Related Case Law:

Nix v. Williams: Officers talk to the suspect while they are transporting him after being

accused of killing and raping a young girl. After the officers violate the suspects 6th

Amend right

to counsel the suspect brings the officers to where the girl is buried. The search force testifies

that the search grid that they were using would have lead to the finding of the body before any

damage would have been done to the physical evidence. The defendant argues that the physical

evidence of the burial scene is the result of the defendants rights being violated and should be

excluded. The court holds: when the government can prove by a preponderance of the evidence

that the information would have ultimately or inevitably would have been discovered by lawful

means, the evidence should be received. The government does not need to prove absence of bad

faith because the deterrent effect of the sanction would not outweigh the fact that the sanction

would place officers in a worse position than if they had not violated the suspect’s rights at all.

Hypo: Police investigate a murder and illegally search a suspect’s home, find something

that traces to a pawn shop and at the pawn shop is the murder weapon. The defendant

tries to suppress the finding of the gun because it was the fruit of a poisonous tree but the

government can prove that the gun would have been inevitably discovered anyway

because of the gun registries

F) Independent Source: The prosecutor has to prove by a preponderance of evidence that the

evidence would have been attained through an independent source, outside of the violation. EX:

Officers illegally enter a warehouse filled with drugs, later they have a search warrant and get all

the drugs. The prosecutor has to prove that the officers would have met the burden of probable

cause for the warrant independent of their violation.

G) Attenuation:

1) Factors to determine if evidence is obtained based on exploitation or attenuation:

a) Temporal proximity of the illegal act

b) Presence of intervening factors

c) The flagrancy of the violation

EX: If the temporal proximity of the illegal act is far, there are intervening factors (actors

free will), and the flagrancy of the violation is meager then the evidence is not attenuated.

Related Case Law:

Wong v. U.S.: Way was searched in his home and arrested for drug possession. Way said

he bought the drugs from Toy. Agents then forced their way into Toy’s house and found

no drugs. Agents told Toy that Way told them that he purchased drugs from him. Toy

denied selling the drugs but said Johnny did. The agents enter Johnny’s home and gave

them a little under an ounce and said he bought it from Toy and Wong. The agents then

asked Toy about Wong and Toy told them where he lived. The agents went to Wong’s

home, searched and found no drugs. Can the statements that Toy told the agents about

Wong be used against Wong or are they subject to exclusion because they are the fruit of

a poisonous tree because the officer illegally went into Toy’s? The statements can be

used against Wong because the information that they received from Toy on the second

meeting was not in violation of Toy’s rights. The information gained in the first

encounter could not be used because it was the fruit of an illegal search.

Dunaway v. New York: A man was murdered and police got a tip that Dunaway

committed the crime. They take him to the police station, give him his Miranda rights and

get a confession. The officers did not have an arrest warrant for holding Dunaway. Were

the pickup and confession insufficiently attenuated? Yes. The officers did not get enough

information to have probable cause to arrest Dunaway and by taking him into custody

and putting him in a situation where a reasonable person would believe that they were not

free to leave. Therefore, the statements were not attenuated and are excluded. It does not

matter that the officers gave the Miranda warning.

H) Good Faith: If police act in good faith but a violation of the suspect’s rights occurs, then the

evidence can be admitted.

EX: Officers submit an affidavit to search for evidence of a murder but they grab the drug

form. The officers were acting in good faith and had the relevant affidavit that

specifically stated the area to be searched, items to be seized, and the probable cause for

such action.

Officers pull up an outstanding warrant for a guy and when they arrest him they find

drugs in his possession. The officer’s later find out that the warrant was expired. The

officers were acting in good faith. (Same result if an officer verified the warrant from the

jurisdiction it was placed in.)

Exceptions: When the officer knows that the judge will just sign anything or that the

affidavit was so lacking that there is clearly no probable cause, then the good faith

exception to exclusion does not apply.

Caveats: The S.Ct. has used the good faith exception exclusively with warrant searches

and has not applied it to non-warrant searches. It also is implied in the fourth amendment

and only applied to federal criminal investigations.

Related Case Law:

United States v. Leon: Officers obtained a search warrant to search Leon’s home. The

judge later determined that the search warrant did not specify enough facts to

demonstrate probable cause to search the home. Because the officer got a warrant before

their search they were acting in good faith. The purpose of the exclusionary rule is to

deter officers from acting in bad faith. The officers were not acting in bad faith because

they got a search warrant approved. To exclude the evidence would be too severe of a

sanction for an action that was done in good faith. Therefore, the evidence can be used.

I) Impeachment:

1) Statements if shown to be truthful even if in violation of the Miranda warning are

admissible to impeach the defendant during indirect testimony. While the statements are

not admissible during the direct case of the prosecutor it does not follow that the court

should allow lies to impede the court. The statement cannot have been coerced and the

truthfulness of the statement cannot be tainted.

J) Habeas Corpus (Bring forth the Body):

1) The writ allows a defendant to fight custody. However, the defendant cannot use this

doctrine to raise new 4th

Amendment violations. If the defendant had an opportunity to

fight this earlier on, then it cannot be saved by a habeas corpus claim.

IV. Substantive Rules of the Fourth Amendment:

A) Reasonable v. Probable Cause:

1) Search and seizures have to be Reasonable

2) Warrants must be based on Probable Cause

a) Probable Cause: Elements

i) Informants: Reliable informants (need less corroboration or extras b/c

reliable), Unknown informants (least reliable, officers must verify what

unknown informants says), Civilians (inherently reliable)

ii) Corroboration

iii)Extras, Environment, Officer Experience

b) Probable Cause: Test Needed For: Warrants, Searches and Arrests

i) Totality of the Circumstances

3) Hearsay v. Non-hearsay when determining probable cause:

i) During the trial: An informant cannot get on the stand during a trial and state

that the defendant is a drug dealer. That is a statement being stated to prove truth

of the matter asserted and is hearsay.

ii) During the hearing to suppress the evidence: If an informant testifies that he

told the officer that the defendant is a drug dealer then that is not a statement that

is being offered for the truth of the matter asserted, rather it is being offered to

show the officers state of mind to demonstrate that the officer had probable cause

to believe that the defendant was carrying drugs.

B) Warrant Requirements:

1) The face of the warrant (affidavit) requires: (can be authorized over the phone)

a) The officer must be acting under oath or affirmation

b) Must be based on probable cause (totality of circumstances)

c) The officer has to particularly describe the place to be searched and the items

that will be seized

2) Under the Patriot Act, federal officers can do a sneak and peek search, they look

around and then leave; officers do not have to tell the occupant that they have been there.

Congress passed the provision into law.

3) Execution/ Facial Issues:

a) Participatory: As long as the officer can show probable cause that the event that

is going to trigger the need for a search and the officer can particularly describe

the place searched an items seized they can have a participatory warrant.

b) If there are false statements: If the government can prove probable cause

independent of those false statements, then the warrant can stand.

c) Overbroad Warrants: Officers can get a broad warrant, such as an all records

warrant, if they can demonstrate they all have the possibility of being related to

the crime (e.g. fraud), but as soon as the officers can tell that the items are not part

of the crime, they must put them down. The same is true when tapping a phone, as

soon as there is no discussion of illegal activity the officers must spot check.

d) Knock and Announce: Typically officers need to knock and announce, but

there are circumstances where a no knock warrant can be issued (covered later).

e) For safety purposes, the officer has inherent authority to hold everyone in the

place being searched

f) Probable cause dissipates over time and can become stale.

4) Arrest Warrant:

a) You do not need a warrant to arrest in a public place so long as there is

probable cause

b) You need a warrant to arrest someone in a home. If in a third parties home the

officers need a search warrant and an arrest warrant t

c) You can be arrested based on probable cause for misdemeanors and felonies

d) Searches incident to an arrest: In a home, the officers can only search in the

areas the defendant may be able to reach; a proper warrant must be obtained to

search the rest of the house. Courts will give deference to the officers on this

determination (in plain sight, dangerous suspect, etc.)

5) Search Warrant: A search warrant is needed to search a home, residence, business. A

search warrant is not needed if there are exigent circumstances. (EX: Officers place a

beeper in a controlled drug mail off but the officers do not know where it is being

delivered and cannot get a warrant, after the package is delivered the officers storm the

place. The court found that the destruction of the drugs once the beeper was found was

enough of an exigent circumstance to not require the warrant)

No-knock search warrants can be authorized, typically night-time searches are not done

but they can be authorized, sneak and peeks are allowed under the Patriot Act.

a) Knock and Announce Requirement: Officers knock, say who they are and wait

a couple of seconds, except in exigent circumstances. The requirement can be

waived if the factual situation presents danger to the officer or the possibility of

destroying evidence.

Wilson: Officers entered the home and announced who they were. This did

not satisfy the knock and announce requirement.

b) Knock and Announce and the Exclusionary Rule: The exclusionary rule is not

applicable to a “knock and announce” violation because the evidence would have

been inevitably discovered.

C) Searches without Warrants

Exceptions to Warrantless Searches: overview

a) Incident to arrest

b) Exigent circumstances

c) Vehicles and Containers

d) Inventory

e) Consent

1) Incident to Arrest: The individual arrested can be searched incident to the arrest:

They can also search what is in the immediate control of the individual. (The room that

the individual is arrested) They cannot search the whole house incident to an arrest but

they can obtain a search warrant for the home separately from what is seen in the house

during the arrest.

Chimel v. California: Officers searched the whole house after arresting Chimel.

The court held that the search of the house after the arrest was in violation of

reasonable search and seizure and that they can only search what is in the

immediate control of the defendant.

Whren v. United States: An officer pulled Whren over after he committed a

traffic violation after sitting at a light for a long time. Whren tried to exclude the

drugs that were found in his lap when the officer stopped him stating that the

officer did not have probable cause to search him. The court held that the stop

only needed to be based on reasonableness and that was done when the officer

had probable cause to stop the vehicle after Whren committed a traffic violation.

Payton v. New York: Officers entered the homes of two defendants without an

arrest warrant or search warrant and based only on probable cause that they had

committed crimes 2 and 3 years ago. The court held that officers cannot enter a

home without an arrest warrant and they cannot search the home without a search

warrant. There were not exigent circumstances present in either of these cases

because the crimes were committed so long ago and a warrant could have been

obtained. The 4th

Amend provides that the right of people to be secure in their

home shall not be violated. There is no person/property distinction in its

protection; absent exigent circumstances, a person’s home may not be entered

without a warrant.

United States v. Edwards: Edwards was arrested for robbing a Post Office. After

going through booking and intake and after sitting in the ceil for awhile officers

came and seized his clothing so they could test if there were any glass remains

that matched the broken window at the scene. They took the clothing without a

warrant and gave him new clothing. Edwards argued that the officers searched

and seized his pants outside of exigent circumstances and that a warrant should

have been required. The court held that a warrant was not required because the

search incident to an arrest exception is applicable in this situation. Officers can

search and seize anything that is in the immediate possession of the defendant.

The court states that it does not matter if the officers do this when the defendant is

first taken into custody or if it is done hours after being in custody. The court said

it would have been the same if the officers had taken the pants from the property

room in the jail.

2) Exigent Circumstances: If there is an emergency situation and officers believe that

others or themselves are in danger or are destroying evidence then they can enter the

place where the emergency is occurring without a warrant. (EX: Police walk by a home

and they hear a woman scream “No, don’t kill me” they can enter the house without a

warrant, or if they are walking by a home and they see a woman about to beat her

husband with a rolling pin they can go in, or if they see people doing drugs at the window

they can come in.)

Warden v. Hayden: Officers were informed that an armed robbery occurred and

that the suspect was in a house with the weapon and money. When the officers got

to the home they asked the suspect’s wife if they could search the premises, she

agreed. The officers then found the weapon, clothing, money and the suspect. The

clothing that the officer found were in a washer machine in the basement and

when the officer was asked why he went into the washer he stated that he was

looking for “a man or money.” The defendant in a habeas corpus hearing after

unsuccessfully challenging the introduction of the evidence seized when he was

arrested, argued that the clothing that was seized should not have been entered

into evidence, because the officer did not specifically detail that he was looking

for clothing of the suspect and should only be allowed to seize the evidence that

they specified they were looking for. The court holds that there is no distinction

between the evidence that they specify looking for and the evidence that they find.

The officers were legally where they could be because they were acting in exigent

circumstances of a crime and anything in plain sight of the crime where they are

searching can be collected.

Illinois v. McArthur: Officers accompany a woman to her ex-boyfriend’s trailer

and while she is walking out she informs the officers that she saw him hide a bag

of marijuana in the couch. The officers ask the man to come to the door and ask if

they can search the trailer. He refuses. The officers then tell him that he cannot go

into the home unless an officer escorts him until a warrant is gotten so evidence

isn’t destroyed. The defendant argued that it was against his 4th

Amend right to

restrict him from entering his home unaccompanied by police for 2 hours while

they got a search warrant. The Court held that given the nature of the intrusion

and the law enforcement’s interest at stake, the brief seizure of the premises was

permissible under the 4th

. There is an exception to the warrant requirement to

seize a person or place when there involves a plausible claim of specially

pressing or urgent law enforcement need. The restraint was tailored to the

needs of the officers, limited in time and scope and avoided significant

intrusion into the home itself. The court must balance the privacy-related and

law enforcement-related concerns to determine if the intrusion is reasonable.

First, the police had probable cause to believe that McArthur’s home contained

evidence of a crime and unlawful drugs. Second, they had good reason to fear that,

unless restrained, he would destroy the drugs before they could return with a

warrant. Third, they made reasonable efforts to reconcile their law enforcement

needs with the demands of personal privacy by avoiding a warrantless entry or

arrest and preventing McArthur only from entering his home unaccompanied.

Fourth, they imposed the restraint for a limited period, which was no longer than

reasonably necessary for them, acting with diligence, to obtain the warrant.

3) Vehicles and Containers

a)Automobiles:

i) Automobiles can be searched without a warrant based on probable cause

because the vehicle can move. The police can hold and search the car for a

lengthy period of time. (There was a case that said 3 days was OK.)

ii) In a search incident to an arrest when in a car officers can search the

surrounding area of the car cab (glove compartment and containers, even

if locked); it must be contemporaneous to the arrest, and he cannot open

the trunk (yet).

iii) Once they find something when searching the cab incident to an arrest

they then have probable cause to search the whole car. (Including the

trunk)

iv) The government always has to prove the probable cause for searching

the car.

Chambers v. Moroney: The defendants were stopped in their automobile after

being described as the robbers of a gas station a few minutes earlier. The officers

arrested the defendants and took the car to the police station. Once at the station

the officers searched the vehicle and found dumdum bullets, money and stolen

credit card from another robbery two weeks ago. The defendants argued that it

was against the 4th

Amend right for the officers to search the car after the

defendants had already been secure and the car was at the station. The court held

that while the car cannot be searched incident to an arrest after the defendants had

been secure the officers can search the car based on probable cause. Whether the

officers searched the car when stopped or after the defendant were arrested the

officers had probable cause based on the statements of the victims, the

descriptions being corroborated and other circumstances. (totality of

circumstances)

Gersh case: A man is arrested under an arrest warrant and is taken in by police.

After the car is at the station the officers search the car and find a gun. He is then

charged with gun possession. Gersh argued that there was no probable cause for

the officers to search the car because the guy was already in custody at the station

and the arrest was not based on a violent charge. While the officers would have

had probable cause to search the car before the defendant was in custody after the

defendant was in custody there was no exigent circumstance to search the car and

it is not timely enough for it to be incident to the arrest. Gersh won!

b) Containers:

i) An officer can search a container, so long as they have probable cause

that there is something illegal in the container.

ii) If officers have probable cause to search only the container then they

cannot search the vehicle it is in unless some other exception applies

(reasonable suspicion that a weapon is in the car, plain sight) or they have

probable cause to search the whole vehicle.

iii) Officers may seize a container and hold it until they obtain a search

warrant or search it without a warrant as a search incident to a lawful

arrest.

iv)If the police knew that the car was used in other trafficking situations

then they could search the whole car based on probable cause that there

was other drugs in the car.

4) Inventory:

South Dakota v. Opperman: Officers impound defendants car for parking

violations. When taking inventory of the items in the car, officers found

Marijuana and arrested the defendant. Was the marijuana obtained in violation of

the 4th

Amend. as an unreasonable search and seizure? NO. To protect the safety

of officers, workers and society from the contents of the car the officers must take

inventory of what it is in it. Also, to protect the defendant from losing items the

car must be inventoried. However, the police must have a procedure for

conducting inventories if the inventory exception to a search warrant is used.

5) Consent:

a) Consent has to be given freely and voluntarily. Consent cannot be coersed.

b) The government has the duty to prove that the consent was freely given

and voluntary.

c) The Test to determine if consent was voluntary: Totality of Circumstances

d) An open ended consent allows the officers to search the full scope of that

consent. The scope is very broad (consent to house= consent to every file on

compie)

e) If you give your consent it can always be withdrawn if it is clear and

unequivocal (however, officers can usually get a warrant after that because your

refusal can be used against you once you consent.) It cannot be withdrawn in an

airport.

If police are looking in your bag and they come to a container and you say

stop, do not look into the container… we are not sure, there is no case on it.

f) Third Party Consent:

Bumper v. North Carolina: Four Officers knocked on little ol’ granny’s

house and said that they had a search warrant and asked if they could

come inside. The warrant that the officers claimed they had was

nonexistent. The government argues that granny consented to the search

and the evidence that the officers found linking her grandson to a rap

should not be excluded. The Court held that when officers state that they

have a warrant to search a home and the person says for them to come in,

the government cannot rely on that consent because it is not freely and

voluntarily given. The consent is in reliance to a non-existent search

warrant. The evidence is excluded.

g) If a person cannot speak English and the officers ask if they can come in and

the person nods and steps back consent was not voluntary because the persons

will was overborne.

h) Searches to get into buildings or games. Because individuals are put on notice

that they will be searched if they go to these events the search is voluntary

because the person chooses to go to the event.

i) Consent v. Waiver:

Consent (4th

) Waiver (5th

)

-voluntary -voluntary

-do not need knowledge - Have to know your rights

-Can be intoxicated or impaired -Intelligent

Schneckloth v. Bustamonte: Officers stop defendant’s car. The officers

ask if they can search his car; he consented and the officers found stolen

checks. Did the officers need to inform the defendant that he did not have

to consent to the search? NO. Unlike waiver of the right to counsel under

the 5th

Amend, the police are not required to inform you of your right to

withhold consent to a search. 4th

Amend evidence is of a different quality

than 5th

Amend evidence because police interrogation that would invoke

the 5th

is inherently coercive. Moreover, the courts want to maximize

consents because it can reveal both guilt and innocence.

j) If someone gives consent to search their car the officers cannot pry apart the

chassis of the car unless they have probable cause that contraband is in there.

(However, they can tear apart the glove compartment, doors of the car and in the

trunk.

i) If someone watches an officer pry open the chassis of the car and says

nothing then that is implied consent.

k) If you give consent to one officer you give consent to others.

l) Third Party Consents: When you live with someone, you assume the risk that

the person you share a room with will allow someone else in the room and it may

be the police. The person has to have actual authority to the room and the police

have to believe.

Reasonableness Test: The determination of consent to enter must be

judged against an objective standard:

Whether the facts available to the officer at the moment lead a man

of reasonable caution to believe that the consenting party had

authority over the premises.

i) A hotel manager cannot consent to a search to a room that is

being occupied by a guest. (They loss their authority once the room

is rented)

ii) If 2 people share a bad they consent on behalf of the other

person; the use of separate compartments is immaterial.

iii) A babysitter does not have authority to consent to the search of

a home. (lack of authority unless she is shown to have control of

the house)

iv) A bailee cannot consent to a search, they do not have actual

authority. (like when you check your coat at the door)

v) If you share a compie and there are separate passwords the

officers can only search the consented password.

vi) If third party consents and the defendant does not the consent is

ineffective and the search unreasonable.

m) If an undercover agent gains a defendant’s trust and the defendant

subsequently allows him into his home, the evidence obtained by the agent is not

a violation of the 4th

Amendment. Reasonable search and seizure. When the home

is opened as a place of illegal business to which outsiders are invited for

commercial purposes, the 4th

Amend is not violated when an agent enters

pursuant to such an invitation. Lewis v. United States

6) Plain View: When officers are where they can legally be and they see illegal

contraband in plain view then they can seize it without a warrant.

Arizona v. Hicks: Police responded to a call from Hicks’ house (he was not there

at the time). When the officers walked in, they saw shot guns and a stocking mask.

After seizing the guns, the officers noticed that there was an awful nice stereo in

the apartment and inspected the stereo and wrote down the serial number. The

number revealed that the stereo was stolen. The guns clearly fall under the plain

view exception, but what about the serial number? NO. The officers’ inspection of

the serial number constituted a separate search from finding the guns in plain

view.

a) Plain Feel

Minnesota v. Dickerson: A man walking out of a crack house looked

suspicious. An Officer stopped him and frisked him; he felt a lump on the

outside of the pocket and thought it was a crack rock. The officer reached

his hand into the pocket, felt more clearly that it was a crack rock and

pulled it out. Was the search of defendants pocket an illegal search? NO.

Police may seize nonthreatening contraband detected through the sense of

touch during a protective patdown search of the sort permitted by Terry,

so long as the search stays within the bounds marked by Terry.

7) Reasonableness and Balancing:

a) Terry Stop: Police can forcibly detain you based on reasonable suspicion.

Once they have detained you if they make a search and seizure:

i) Balance the nature of the intrusion compared to the need for the

intrusion

ii) The purpose of the detention is to allow the officer to conduct the

investigation and the stop must be brief in order to expel or confirm his

suspicions.

Terry v. Ohio: McFadden, a police officer who is an expert on armed robbery, spotted three men

he suspected of planning a holdup outside of a store. McFadden walked up to them and asked

their names. The men “mumbled something” and McFadden frisked one of them. He felt what

seemed to be a gun from the outside of the coat. He ordered the three men to enter the store and

removed guns off two of the men when he felt them from the outside of the coat; the one man

who did not have anything that felt suspicious from the outside of the coat was not fully searched.

Was the “stop and frisk” an illegal search and seizure? NO, the stop and frisk and search are

reasonable. The officers were first making the investigatory stop (detention) they had reasonable

suspicion that they were conducting illegal activity and then when they did not directly answer

the officers they had reasonable suspicion that they could have weapons and be a danger to the

officers, so they did a frisk. When an officer stops someone to frisk them, they are conducting a

seizure; when an officer examines by touch the outside of their clothing, they are conducting a

frisk, which is a type of search. Searches and seizures are valid subject to reasonableness.

Because the officer is conducting a minor intrusion into the person’s privacy when they do a

frisk the standard is reasonable suspicion (that he is carrying a weapon or contraband). When the

officer reaches into the pocket that is a search that requires probable cause, which is gained by

what is felt in the frisk. Here the officer’s search and seizure were both reasonable: 1) the officer

“seized” them reasonably because they were engaging in highly suspicious activity; and 2) the

search was reasonable because of plain feel (The officer did not fully search the one he felt had

no gun).

Companion cases:

NY v. Cinron: An officer stops a suspicious looking person and reaches into his pocket

and grabs out drugs. Officer needed probable cause to reach into the pocket and this was

an illegal search.

NY v. Peters: Police respond to a call of suspicious people in the common area of an

apartment building. When the men see the police they run. The police catch one, pat him

down, and then patted his bag down; inside the bag are burglary tools. This stop and frisk

was OK because they had reasonable suspicion (phone call and flight); once they felt the

bag, the officers had probable cause to go inside it and discover the suspected burglary

tools.

Adams v. Williams: A known informant told police that the defendant was riding around

in his car with a gun tucked into the waistband of his pants. Police stopped the suspect

and asked him to get out of the car. When the suspect refused, the police officer reached

into the window and grabbed the gun (although the officer could not see the gun from

outside the car, the gun was exactly where the informant said it would be). The gun was

admissible because when an officer makes a stop, he may conduct a limited protective

search for concealed weapons when he has reason to believe that the suspect is armed and

dangerous

Florida v. JL: An anonymous tip that a person is carrying a gun is not, without more,

sufficient to justify a police officer's stop and frisk of that person. (Even if they

corroborate the identity of the person they have to corroborate the illegal activity, the

only thing they can do is do a consensual encounter to investigate but not a frisk without

more)

Florida v. Bostick: Officers go on a bus and ask people for permission to search their

luggage and inform them that they do not have to consent. The defendant consented to his

bag being searched and the officers found cocaine. The court held that a consensual

encounter does not trigger 4th

Amend scrutiny. Even when officers have no basis for

suspecting a particular individual, they may generally ask the individual questions,

examine identification, and request consent to search luggage, provided they do not

convey a message that compliance with their requests is required. A seizure would

require that the person was physically detained or a reasonable person would feel that

they could not leave.

Hypos:

Officer got a report that an assault occurred and he goes there and the guy in the hall of

the apartment complex matched the anonymous tip that was given. The officers say

STOP; take your hands out your pocket. He refuses. They search him and find 2 guns.

The court confirmed that the officers had made a forcible stop but the stop was based on

reasonable suspicion from the caller, the confirmation of the details, the emergency

nature of the call and the guys refusal.

What if it looks like a consensual encounter in a community where cops are known to

physically abuse those who refuse? In that situation the consensual encounter turns into a

forcible stop because of the officer’s reputation and no reasonable person in those

circumstances would believe that they are free to leave.

You have an anonymous tip for a house and there is no emergency situation and no

warrant. A package is delivered and the officer asks him to step outside of the apartment.

The second circuit allowed the Terry stop by asking the person to come outside.

Can an officer ask you for your identity and you refuse can they charge you with a crime?

You can be Terry stopped and during the course of the stop if the officer asks for your

name and you refuse to give it and the statute reads that during this stop the failure to

identify yourself is a crime. Is a statute that requires identification in a Terry stop

constitutional? Is asking the person’s identity reasonably related to the stop? Yes, it is

consistent with the Fourth Amendment and giving your name alone does not incriminate

yourself. A district court upheld the statute as consistent with the Fourth and Fifth

Amendment.

California v. Hodari D. : Officers, in a high crime area, late at night saw a group of

youths and when the officers approached them they started running. The officers chased

the defendant and during the chase the defendant threw a bag with crack in it. The

officers took him to the grounds, arrested him and searched his person. Does a seizure

occur even though the subject does not yield, which would constitute a violation of the 4th

Amend protection against an illegal seizure, as applicable to the states but the due process

clause of the 14th

Amend? NO. A seizure must have a physical component to it. Simply

running away does not constitute a seizure of one's liberty.

It is only when there is submission to authority that a seizure occurs and it can be shown

that the evidence found was the result of a violation of reasonable suspicion for forcible

detention. If there is no submission to authority then there is no seizure.

United States v. Sharpe: Officer has reasonable suspicion that two cars driving down the

highway are carrying drugs. The officer stopped one of the cars but the other speed off.

The officer told the driver of the stopped car to remain where he was until the other car

was stopped (about 20 mins). When they caught the other car they found marijuana in the

cars. Does detaining one suspect for the time it takes to detain the other constitute an

unreasonable seizure? NO. The court ruled that this stop was a Terry investigative stop

and not an official arrest because the officers acted diligently and reasonably to conduct

the investigation as quickly as possible and any delay was due to the actions of the

defendants. The test for time is reasonable.

Airport Stop hypo: Man was stopped in the airport and was held for hours before getting

a dog to sniff his bags. Court said there was no reasonable expectation of privacy in the

luggage, however, due to the time of the seizure the luggage was detained for an

unreasonable amount of time and the evidence was suppressed.

If an officer has reasonable suspicion to stop a driver than he has reasonable

suspicion to have the driver and all of the passengers to step out of the car and can

be subject to a frisk because of the inherent danger of the stop of the officer.

What about frisking the car? The officers can frisk the area in the car that the driver has

reasonable access too. (Even if the driver is out of the car)

Officer stops a cab, someone is sitting the cab. The passenger looked nervous and his

chest was coming out and could be wearing a bullet proof vest. The officer reaches in and

touches the vest. Then orders him out of the car, frisks and finds drugs. The court held

that touching the guy on the chest was a reasonable detention. The test is only one of

reasonableness.

8) Special Needs:

DISC (Drugs, Inspections, Schools, Checkpoints): These search only require

reasonableness and not probable cause.

(Inspection) Camara v. Municipal Court: City housing inspectors ask the

appellant if they could conduct a general search of his house for violations of the building

code. He refused and they went in anyway without a warrant and arrested him for

violations. The appellant claimed that the inspection was unconstitutional because they

failed to obtain a warrant. The court held that a warrant for inspections should be granted

based on the reasonableness of the enforcements agency’s appraisal of conditions in the

area as a whole. Search warrants are required in nonemergency situations and should be

sought after entry is refused. The appellant had a right to insist that the inspectors obtain

a search warrant.

(Drugs) Skinner v. Railway: The federal government mandated that train workers

involved in operating the train were to be drug tested following a major accident and

encouraged drug testing of any employees when they commit safety violations. Two

issues: If a person is drug tested and loses their job, is it state action or private? It is state

action because the government is mandating it. Even for the voluntary test because the

government encourages and endorses the testing it is state action. The 4th

Amend applies

but is the search of employee’s bodily fluids in this circumstance unreasonable? NO. The

government is serving a compelling interest and the approach is narrowly tailored.

(Check Points) Suspicionless seizures at a fixed checkpoint designed to intercept

illegal aliens or removing drunk drivers from the road , a checkpoint to verify

drivers license and registrations are OK. However, the court did not approve of a

checkpoint whose primary purpose was to detect evidence of ordinary criminal

wrongdoing.

(Schools) The legality of the search of a student depends on reasonableness under

all the circumstances of the search. Determining the reasonableness of any search

involves a determination of whether the search was justified at its inception and

whether, as conducted, it was reasonably related in scope to the circumstances

that justified the interference in the first place.

Overview:

STOP: This is the beginning and must be analyzed to determine if it is consensual or if it is a

detention/ seizure.

Detention/ Seizure: Fourth Amendment requirement: The definition of a seizure: a person is

physically restrained or a reasonable person in the same circumstances would believe that they

do not have the ability to leave.

If it is a forcible stop:

(1) Is there reasonable suspicion? If there is not then the forcible stop is

unreasonable and any evidence obtained is the fruits of the poisons tree.

-unanimous tips alone do not rise to this level; however, if there are

exigent circumstances (a crime going on now) then it is OK.

Frisk: Pat-down

(1) Reasonably suspect that the accused has weapons and the officer’s safety is in

danger. Officers generally can make the frisk if there was a reasonable suspicion

to seize the person.

(2) The Frisk cannot go too far, it must be a frisk and not a search.

(3) If the officer feels something illegal then they have probable cause to make the

search and take it out of the pocket.

The stop cannot be too long! If the detention is too long then it losses the

temporary requirement to investigate crime and becomes a de-facto arrest and this

arrest is only acceptable if there is probable cause to make an arrest.

What if a guy is stopped and there are three people around him, can you frisk the

companions? Courts call this the automatic companion rule which allows the officer to

stop and frisk all of the companions based on protecting the officer’s safety. The S Ct.

has not ruled on this but it has been acceptable in the lower courts.

There are no bright-lines and it is all a question of reasonableness.

Is it a forcible detention or is it is consensual encounter?

Refusal to corporate does not give an officer reasonable suspicion to make a forcible

detention. However, the lack of consent and other factors together could give reasonable

suspicion.

Courts have upheld statutes that make it a crime for a person to refuse to identify

themselves during a Terry stop.

P A C E I S IN : Exceptions to the warrant requirement

Plain view

Automobiles

Consent

Exigent

Incident to Arrest

Stop and Frisk

Inventory

Needs of law enforcement that is special: D I S C

Drugs

Inspections (If someone refuses there has to be a general warrant based on the

reasonableness of the area as a whole)

Schools

Check points

VII. Confessions:

A) Due Process Involuntariness: Rule: A confession must be voluntary for it to meet the needs

of due process. It must be governed by free will. To meet this standard you have to look at the

totality of circumstances. If a confession is compelled then it is inherently unreliable and cannot

be used against the defendant even for impeachment. If the confession is not coerced but merely

in violation of Miranda then the confession can be used for impeachment because it is not

necessarily unreliable. (Compulsion can be due to violence or time (8-10 hours not voluntary)

I) Relevant facts to the totality:

Length

Time of day

Number of officers

Form of confession (narrative, verse question and answer)

Physical Abuse/ physiological abuse (something could happen to family)

Age

Education

Background/ mental/ emotional instabilities

Depravations (food, water, bathrooms)/ refusal of requests/ threats

Restraint

Minimizing the consequences: if the accused thinks he will be rewarded/ promises

of benefits from officers that they are not authorized to make

Tricks and deception: If you are misstating the facts. Ex. Guy goes into the

hospital for stabbing wound and the officers tell the suspect that the victim is fine

when he was really dead and the guy confesses.

B) Fifth Amendment Protections

1. Constitutional Basis: The court incorporated all of the 4th

, 5th

and 6th

Amendment

rights into the Fourteenth Amendments in the due process clause. The 5th

Amendment

privilege against compelled incrimination and right to counsel

a) Miranda Rights: the person in custody must, prior to interrogation, be clearly

informed that he has the right to remain silent, and that anything he says will be used

against him in court; 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.

i) If the individual indicates, prior to or during questioning, that he wishes

to remain silent, the interrogation must cease; if he states that he wants an

attorney, the questioning must cease until an attorney is present.

ii) 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.

iii) Where the individual answers some questions during in-custody

interrogation, he has not waived his privilege, and may invoke his right to

remain silent thereafter.

iv) The warnings required and the waiver needed are, in the absence of a

fully effective equivalent, prerequisites to the admissibility of any

statement, inculpatory or exculpatory, made by a defendant.

Test for Miranda:

i) Custody

ii) Questioning

2. Custody: The Miranda decision requires warnings only when an officer arrests

someone or deprives someone of their freedom in any significant way. The key point to

remember: courts determine custody, not by where the suspect is, but by the words

spoken two or actions taken towards the suspect. (A suspect goes to the police station,

shakes cops hand, cops says you are not under arrest, guy confesses: he was not in

custody and Miranda was not required because the confession was voluntary.)

3. Interrogation: 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.

Undercover agents: An undercover law enforcement officer posing as a fellow

inmate need not give Miranda warnings to an incarcerated suspect before asking

questions that may elicit an incriminating response. The Miranda doctrine must be

enforced strictly, but only in situations where the concerns underlying that decision are

present. Those concerns are not implicated here, since the essential ingredients of a

"police dominated atmosphere" and compulsion are lacking. It is Miranda's premise that

the danger of coercion results from the interaction of custody and official interrogation,

whereby the suspect may feel compelled to speak by the fear of reprisal for remaining

silent or in the hope of more lenient treatment should he confess. That coercive

atmosphere is not present when an incarcerated person speaks freely to someone whom

he believes to be a fellow inmate and whom he assumes is not an officer having official

power over him. In such circumstances, Miranda does not forbid mere strategic deception

by taking advantage of a suspect's misplaced trust. (Deception does not invoke

Miranda, arrest and custody do.)

4. Waiver: You have to know your rights and voluntarily waive them.

a) Failure to inform D that an attorney was trying to reach him did not deprive D

of information essential to his ability to knowingly waive his 5th Amendment

rights. The conduct of the police did not undermine the validity of the waiver.

b) If a defendant makes an unwarned statement and then is given Miranda and

makes another statement, while the first statement cannot be used on the

prosecutions direct because it is in violation, the second statement can be used

because the defendant waived his rights. (The first statement can be used for

impeachment purposes.) The suspect does not need to be informed that the

unwarned statement used prior cannot be used against them except for

impeachment purposes during cross-examination.

i) 4th

Amendment violations require evidence to be excluded because they

are inherently tainted (fruit of poisonous tree)

ii) 5th

Amendment violations do not fall victim to the statements being

tainted by coercion that would make them unreliable, unless actual

coercion occurred.

c) When an officer intentionally withholds the reading of Miranda rights,

questions a suspect until they make inculpatory statements, and then gives them

Miranda rights and confirms the information the confession should be suppressed.

This is distinguishable from Elstad because the warning were not intentionally

withheld and the statements were not just confirmed but restarted.

5. Invocation of Rights:

If a suspect stated they wish to remain silent, officers are to stop questioning. But

they can go back after a significant time has lapsed and a fresh set of warning are

given. Also, a defendant can initiate conversation with them voluntarily at

anytime.

If a suspect asks for a lawyer then questioning must seize and the police cannot

engage in questioning until the lawyer is present or the suspect voluntarily

initiates conversation with the officers. The request must be clear and

unequivocal. (Maybe I should talk to a lawyer is not.)

C. Sixth Amendment Protections: Once indictment proceeding have started the defendant is

protected by the 6th

Amend right to counsel. This right cannot be waived. This right is violated

when police deliberately try to interrogate and elicit a confession from the defendant. If the

government gets statements from the defendant while in jail from an informant or government

agent the defendant must show that the government did more than just listen. (The government

has to deliberately elicit information.)

VII. Line-ups and Identification:

A) Line-up are not a 5th

Amend violation

B) A defendant if already indicted cannot be placed in a line-up without counsel being

present.

C) If a suspect is not indicted they do not have a right to counsel at that time.

D) Identification procedures will only be set aside if the pretrial identification procedure

was so impermissibly suggestive as to give rise to a very substantial likelihood of

irreparable miss identification.

E) The court will look at the totality of circumstance if there is a very substantial

likelihood of irreparable miss identification.