Short Crim Pro Outline

7/23/2019 Short Crim Pro Outline

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CRIMINAL PROCEDURE OUTLINE

The Exclusionary Rule

I. The exclusionary rule involves excluding otherwise admissible evidence because it was obtained in

violation of an individual’s 4th, 5th, 6th, or 14th amendment rights.

a. The exclusionary rule alies not only to evidence obtained as a direct result of a constitutional

violation, but also to evidence indirectly derived from the violation.

b. There are limits to this chain of causation ! see exceptions to the exclusionary rule.

II. The most rominent and fre"uently invo#ed exclusionary rule bars evidence secured as a result ofunreasonable searches and sei$ures.

III. The exclusionary rules are the sanctions or remedies that are imosed on the government %rosecution&

when there has been a constitutional violation by a government officer.

a. Rationale for the Exclusionary Rule

i. The main rationale is deterrence of future constitutional violations ! See Mapp v. OH

ii. 'nlawful searches and sei$ures will be discouraged when the law enforcement community

reali$es they cannot use the evidence obtained through unconstitutional means.

iii. In addition to deterrence, the Mapp (ourt suggested that the )imerative of udicial inte!rity* re"uires that courts not soil their hands with unlawfully sei$ed evidence.

The Current "tate of the Exclusionary Rule

I+. It is clear that deterrence has become the main rationale for the exclusionary rule.

+. ther means of solving illegal intrusions into individual rivacy have failed.

a. (ivil liability for olice officers has failed. -t best, the citi$en can get very limited damages, and not

many lawyers want to bring these #inds of suits against olice officers. Irregardless of the lawyer’s

willingness, most laintiffs cannot afford to bring such suits.

b. istrict -ttorneys are also unwilling to bring suits against the olice as a result of the close wor#ing

relationshi they must maintain with the olice in filing criminal charges.

c. 'hoff thin#s the best way to assure constitutional rotections is to ay olice officers more moneyand rovide them with better training and suervision.

T#E T#RE"#OLD O$ T#E %T# AMENDMENT & '#AT CON"TITUTE" A %T# AMENDMENT ("EARC#)* ARE ALL

+O,ERNMENT INTRU"ION" ("EARC#E")*

I- TE"T for .hether a search has occurred& /arlan’s concurrence in Katz

a- "u/ecti0e 1uestion& id the erson exhibit an actual exectation of rivacy0

/- O/ecti0e 1uestion& Is society reared to recogni$e that exectation as reasonable0

i- "econdary In2uiry& ven if the court determines that a court has occurred, it still has to

determine whether the search was reasonable or unreasonable.

II- Limitation recogni$ed in Katz ! )2hat a erson #nowingly exoses to the ublic, even in his ownhome or office, is not sub3ect to 4th -mendment rotection.* rotection is afforded only for )what he

see#s to reserve as rivate.*

III- Burdeau v. McDowell , 56 '.. 465 %171&8

a- Rule& The 4th -mendment alies only to action by the government, not to rivate conduct by

rivate individuals. Thus, a )search* only really occurs when conducted by or at the behest of thegovernment.



i - Exce3tion& 2hen a rivate individual acts at the direction of a government agent or

ursuant to an official olicy, the search will be deemed ublic, and conse"uently within

the coverage of the 4th -mendment. %-9:(; T/<;&

4- $actors ta#en into consideration in determining whether the rivate individual is

acting as an )agent* !

a- The degree of government encouragement, #nowledge, and=orac"uiescence with regard to the rivate actor’s actions, and

/- The urose underlying the rivate arty’s action %was he ursuing a

government interest, or did he act to romote his own ob3ectives0&

5- Exce3tion& -n otherwise rivate search may be transformed into one that is

sub3ect to constitutional constraints if the governmental reciient of the itemssub3ects them to additional exerimentation.

a- uch further examination or testing must be substantial in order to

trigger constitutional rotection.

/- )Inescaably, one contemlating illegal activities must reali$e and ris#

that his comanions may be reorting to the olice.*

I,- Rule& >islaced reliance on the loyalty of another is not an exectation entitled to constitutional rotection.

,- Rule& If the conduct and revelations of an agent oerating without electronic e"uiment do not invadethe defendant’s constitutionally 3ustifiable exectations of rivacy, neither does a simultaneous

recording of the same conversation made by the agent or by others from transmissions received from

the agent to whom the defendant is tal#ing and whose trustworthiness the defendant necessarily ris#s.

a- Related Rationale& The (ourt stated that it would be irrational to consider the activities and

reorts of the olice officer acting without a warrant to be reasonable under the 4 th -mendment,and then view the same officer acting with a recorder or transmitter to be engaging in

unreasonable activity under the 4th.

/- Assum3tion of Ris6 Rationale& ne contemlating illegal activities must reali$e and ris# that his

comanions may be reorting to the olice. uch information is accurate and relevant to the

rosecution, and the defendant does not have a 3ustifiable exectation of rivacy.

,I- Hoffa v. United States %1766& ! imilar to White, the (ourt held that where an informant reorted his

conversation to government agents, this was not a violation of the 4th -mendment.

,II- (O3en $ields) Doctrine& ermits olice officers to enter and search an oen field without a warrant,

as an individual has no reasonable exectation of rivacy in such laces.

A- -n individual may not legitimately demand rivacy for activities conducted outdoors in oen

fields, except in the area immediately surrounding the home.

7- There is no societal interest in rotecting the rivacy in oen fields, as such areas are tyicallyaccessible to the ublic.

I- The secial rotection afforded by the 4th -mendment to eole in their )ersons, houses,

aers, and effects* is not intended to cover oen fields.

II- 8 Determination& id the olice search in )oen fields* or in the curtilage surrounding

the defendant’s home0 oes the defendant have a reasonable exectation of rivacy inthe search area0

iii- Exce3tion& -n individual does have a reasonable exectation of rivacy in the area

immediately surrounding the home %curtilage&. uch area is considered an extension of

the home itself, although it is sub3ect to less rotection than the home itself.



4- Dunn $actors& The 4 variables ertinent to determining whether an area is

within the scoe of the curtilage in a articular case are !

a- The area’s roximity to the home,

/- The existence of an enclosure around the area,

c- The nature of the uses to which the area is ut, and

d- The recautions ta#en to exclude others from the area.

i0- The 7i! Picture& Oliver roves that actual, sub3ective exectation of rivacy does not

count for much in the grand scheme of 4th -mendment rotection. 2hat is mostimortant is the reasonableness of the expectation of privacy, which is really determined

by the 7 ?ustices of the ureme (ourt.

,III- Issue& 2hether olice observation from an airlane constitutes an unreasonable search0

a- #oldin!& 2here the observations ta#e lace within ublic navigable airsace in a hysically non!

intrusive manner, this is not an unreasonable search.

I- There is no reasonable exectation of rivacy, as members of the ublic could observe

the same thing from a lane.

ii- Rule in relation toOliver & ven if the landowner is within fenced curtilage, not allreasonable exectations of rivacy will be honored.

iii- Possi/le Exce3tion& If the olice were to conduct aerial surveillance from a lower

ceiling, this might be classified as a )search* of the area. The (ourt would then have to

determine whether this search was reasonable.

4- The routine nature of air travel rendered his exectation of rivacy un3ustified.

5- The flight of the olice was within the legal arameters of the @-- %4AA ft&, didnot interfere with the normal use of the greenhouse, and did not reveal any

intimate details connected with the use of the defendant’s home.

9- Com3are Kyollo& 2here the defendant boarded u his windows, he had an

actual exectation of rivacy that the court was willing to recogni$e. /e did not

exose the information to the ublic’s na#ed senses as in Riley.7- The (ourt has determined that a do! sniff of luggage is not a search for uroses of the 4 th

-mendment.

I- imilarly, the (ourt has determined that thermal ima!in! of a defendant’s roerty is

not a search ! the heat was emitting from the house, and the thermal imaging was non!

intrusive, gaining only limited information.

I:- Issue& 2hether a assenger on ublic transortation has a reasonable exectation of rivacy for his

belongings.

a- #oldin!& The (ourt alied the /arlan test, and found that this was an unreasonable search under

the 4th -mendment.

I- The average assenger does not exect that other assengers or emloyees will feel their

belongings in an exloratory manner. Thus, the assenger has a subective expectation of privacy.

II- -lthough a assenger on ublic transortation exects that other assengers or emloyeesmight handle or move his bag, he does not exect that they will feel the bag in an

exloratory manner. Thus, this is an exectation that society should recogni$e as

reasonable and legitimate.

:- #oldin!& The (ourt held that trash abandoned at the curb was not covered by the 4th -mendment,

because the owner had no reasonable expectation of privacy.



A- The defendant’s ublic exosure of the trash forfeits any reasonable exectation of rivacy he has

in the contents, and

7- nce the trash is conveyed to third!arty collectors, the homeowner assu!es the ris" that they

will turn the bags over to the olice.

C- )<esondents exosed their garbage to the ublic sufficiently to defeat their claim to 4 th

-mendment rotection. It is common #nowledge that lastic garbage bags left on or at the side ofa ublic street are readily accessible to animals, children, scavengers, snoos, and other members

of the ublic. >oreover, resondents laced their refuse at the curb for the exress urose of

conveying it to a third arty who might himself have sorted through the trash or ermitted others,

such as the olice, to do so.*

d- 'here else is there a reasona/le ex3ectation of 3ri0acy*

I- -n administrator at a state hosital was held to have a reasonable exectation of rivacy

in his office even though others might have fre"uent access to the office. See O#$onnor

v. Ortega ;4<=>?-

II- - student has a reasonable exectation of rivacy in the ublic school setting. See %ew

&ersey v. '.(.O. ;4<=@?-

III- 8 $actors& In analy$ing the issue of whether a )search* imlicating the 4th -mendmenthas occurred, attention must be aid both to the settin! o/ser0ed and the 0anta!e 3oint

from which the observation is made.

4- The definition of a )search* is not so much a legal "uestion as it is a basic 0alue ud!ment as to what tye of olice conduct should be sub3ect to constitutional

scrutiny.

e- ,aria/les that are relevant to reasonableness8

I- id the defendant )voluntarily disclose* information to a third arty who wascooerating the olice0 If so, this decreases the reasonableness of the exectation of

rivacy. %White&

II- id the defendant )fail to ta#e recautions* to safeguard rivacy and=or )ublic

disclosure* of his activities0 Is so, this decreases the li#elihood that the exectation of

rivacy was reasonable.

:I- T#E ("TANDIN+) DOCTRINE

a- Introduction& - constitutional violation does not inevitably lead to the ermanent suression of

all evidence discovered, as the ureme (ourt has develoed a number of doctrines that restrict

the sco3e of exclusion. This is rimarily a result of the 7ur!er Court.

/- The ("tandin!) Rule& uression of the roduct of a 4th -mendment violation can be

successfully urged only by those whose rights were violated by the search itself , NOT by thosewho are aggrieved solely by the introduction of damaging evidence.

I- (o!consirators and co!defendants have been accorded no secial standing, as it is not

their own ersonal rights that have been invaded by unconstitutional searches.

II- 8 8 rotection of individual %ersonal& rights and liberties.

III- (ongress or state le!islatures may extend the exclusionary rule and rovide that

illegally sei$ed evidence is inadmissible against anyone for any urose. The ureme(ourt merely sets the minimum standard of rotection that must be afforded.

C- Exam3le& 2hen - and B are having a conversation and the government illegally intercets the

conversation, ( cannot exclude the conversation from evidence, even if it imlicates him in a

crime, because he has no standing to challenge such introduction. (onversely, if - or B were

imlicated in the crime, either one would have standing to challenge the introduction of theevidence.



I- (’s 4th -mendment rights have not been violated by an unreasonable search and sei$ure.

II- - and B were the ones whose ersonal rights were violated, as they were the actual

arties to the conversation.

4- Rule& In order to claim the rotection of the 4th -mendment, a defendant must

demonstrate that he ersonally had an exectation of rivacy in the lace

searched, and that his exectation was reasonable %i.e., )one which has a sourceoutside the 4th -mendment, either by reference to concets of real or ersonal

roerty or to understandings that are recogni$ed and ermitted by society&.

:II- Rule& wnershi of roerty sei$ed as a result of a search does not, by itself, entitle an individual to

challenge the search %not a disositive fact&.

I- The defendant has no reasonable exectation of rivacy in the lace searched %the urse&,and thus, his rights were not imlicated in the search.

II- The (ourt emhasi$ed the following facts in reaching this conclusion8

4- The defendant had #nown his comanion for only a few days at the time of the

)sudden bailment.*

5- /e had never sought or received access to the urse before the incident.

9- /e had no right to exclude others from access to the urse.

%- /e admitted that he had no sub3ective exectation of rivacy that his

comanion’s urse would be free from government intrusion.

:III- Rule ; Si!!ons?& - defendant’s admissions at a suression hearing could not be used as substantive

roof of guilt at a subse"uent trial.

A- This heled do away with the bind that a defendant would ut himself in if he claimed ownershi

of sei$ed roerty to establish )standing* which statement could later be used against him at trial

to establish guilt.

:I,- Rule& In general, an overnight guest has a legitimate exectation of rivacy in his host’s home, which

entitles the guest to ob3ect to a warrantless entry to arrest him.

A- Because )society recogni$es that a houseguest has a legitimate exectation of rivacy in his host’shome,* an overnight guest )is entitled to a legitimate exectation of rivacy desite the fact that he

has no legal interest in the remises and does not have the legal authority to determine who may or

may not enter the household.

/- Com3are& -lthough an overnight guest in a home may claim the rotection of the 4th -mendment,

one who is merely resent with the consent of the owner may not.

4- The ma3ority said that this case was somewhere in between )legitimately on the remises* and the overnight guests in Olsen, who were afforded standing.

5- Because of the urely co!!ercial nature of the transaction here, the relatively

short period of ti!e on the pre!ises, and the lac" of any previous connection

with the aartment or its owner, the defendants were denied standing.

9- Burger Rule& -n exectation of rivacy in commercial remises is differentfrom, and less than, a similar exectation in an individual’s home.

c- Rule& Cac#ing a ossessory interest in, or a close connection to the lace searched, defendants will

not be ermitted to ursue a claim of unconstitutional search or sei$ure.

PRO7A7LE CAU"E T#E 'ARRANT R E1UIREMENT

I. The determination of the re"uisite level of cause necessary to 3ustify a search or sei$ure reresents an

effort to balance the interest of effective law enforce!ent on the one hand and individual liberty on

the other.



a- Pro/a/le cause is re2uired for full!scale intrusions, including searches, seiBures, and arrests.

i- Note& ven though most searches and arrests occur without a warrant, the law

enforcement officers still must have robable cause.

/- Definitions of Pro/a/le Cause

i- O/ecti0e "tandard& 2ould a reasonable erson #nowing all the facts and circumstances

that are #nown to the officer reach the same conclusion0

ii- Pro/a/le Cause to ARRE"T exists when the facts and circumstances within the

officer’s #nowledge, and of which he has reasonably trustworthy information, aresufficient in themselves to warrant a man of reasonable caution in the belief that an

offense has been or is being co!!itted by the person arrested . In essence, robable

cause to arrest a erson re"uires that there be a certain "uantum of li#elihood that8

4- - articular individual

5- has committed or is committing a articular offense.

iii- Pro/a/le Cause to "EARC# exists if the facts and circumstances within the officer’s#nowledge, and of which he has reasonably trustworthy information, are sufficient in

themselves to warrant a man of reasonable caution in the belief that an ite! subect to

sei)ure will be found in the place to be searched . In essence, robable cause to search anarea demands that there be a certain "uantum of li#elihood that8

4- -n item that is roerly sub3ect to sei$ure by the government %i.e., contraband,or fruits, instrumentalities, or evidence of a crime&

5- is resently

9- in the secific lace to be searched.

I,- There is a staleness 3ro/lem with regard to search warrantsD Because items relating to

crimes are often transortable, establishment of robable cause to search re"uires a

showing that the items sought are presently at the lace to be searched.

4- robable cause is deendent on incriminating evidence still being at the lace to be searched when the olice show u to conduct the search. therwise, the

defendant should be smart enough to disose of the incriminating evidence before the olice get there.

5- 8 In2uiry& /ow li#ely is it that the items will still be in the lace to be

searched0

A- >ore easily moveable items increase the staleness roblem as oosedto items that were be more difficult to move %i.e., caret fibers&.

c- #earsay and Informants& ecial roblems arise when the information was not ac"uired first!

hand by the officer or other individual who relayed the information to the magistrate in

determining robable cause.

I- *guilar+Spinelli Test& stablishes the structure for evaluating robable cause based oninformation sulied to the olice by a confidential informant !

4- 7asis for 8no.led!e& 2hat are the underlying circumstances about the

information given by an informant that suggests that he has reached an accurate

conclusion about the story he is reorting0

A- This only comes into lay when information comes from an

anonymous tister, as it is more difficult to credit this tye ofinformation.

7- 8& Is this enough information to 3ustify the search0 Is it reliable0 /ow

do we #now that the evidence is valuable information0



c- $irsthand basis of #nowledge will be credited more than information

gained further down the line.

5- ,eracityRelia/ility& 2hy should we believe this articular individual0 2hat is

it about this erson that ma#es her credible0

A- olice tend to trust citi$en informants with concrete information.

2here the citi$en informant sea#s from her own ersonal #nowledge,the courts have generally credited the information. %U.S. v. Freitas,

17EF&

7- This only comes into lay when there is an anony!ous tipster ! more

difficult to credit this tye of information. 2here a ti comes from an

anonymous tister, the olice must indeendently robe into thesituation to determine the reliability of the information.

I- Indeendent corroboration by the olice of secific facts

asserted by the informant can be a factor in satisfying either

rong of the test. % Draper v. U.S., 1757&

C- x!con informants are tyically not considered reliable until they rovetheir reliability over time.

D- 2here the olice are relying on a sniff!test by a dog, we would want to

#now how reliable the dog has been in the ast also. 2e would also

want to #now what the dog was trained to sniff for.

9- 8& Both rongs of the test are imortant, as it’s not only imortant that we are

getting information from a articular source. 2e also want to #now how this erson got the information and whether he is a credible erson. See Spinelli v.

United States %1767&.

%- -lthough this test was later o0erruled by Illinois v. ates, 'hoff thin#s this

test is best for roviding guidance to magistrates in determining whether

robable cause exists.

ii- #oldin!& The (ourt held that there was robable cause, and relaced the two!art

!"uilar#Spinelli test with a totality of the circumstances test for 3ro/a/le cause.4- The two rongs of the !"uilar#Spinelli test are collased in the )totality* test,

and treated as interrelated.

5- In determining the overall reliability of a ti, a deficiency in one of the rongs

may be comensated for by a strong showing as to the other, or by some otherindicia or reliability.

9- The (ourt suggested that if )a articular informant is #nown for the unusual

reliability of his rediction of certain tyes of criminal activities in a locality, his

failure, in a articular case, to thoroughly set forth the basis of his #nowledge

surely should not serve as an absolute bar to a finding of robable cause basedon his ti.*

%- The revised standard must be met whether there is a fair robability that

contraband or evidence of a crime will be found in a articular lace.

@- This is not a clear standard to aly, but deends on the facts and circumstances

of each articular case.

III- !"uilar#Spinelli remains imortant for reasons8

4- It delineates the fundamental factors to be considered in weighing informationreceived from an informant.



5- everal states have adhered to the traditional !rong test in interreting their

own constitutional rovisions regarding searches and sei$ures.

II. Rule& 2here an officer has robable cause 3ustifying a articular intrusion, the fact that the officer may

have acted for ulterior reasons is irrelevant.

A- The legality of the search is determined solely by the existence of robable cause for the sto.

7- If the circumstances, viewed ob3ectively, 3ustify the olice action, the sto is legitimate.

C- This hels 3ustify racial rofiling ractices by the olice.

i- Rule& - assenger has the right to leave the car during a traffic sto if the sto occurredsolely as a result of the driver’s actions. % $ro%n v. &exas&

ii- Rule& Whren authori$es the olice to engage in a retextual sto if there is any ob3ective

basis for the sto. /owever, the olice are only allowed to detain someone for the time it

would ta#e to issue the traffic tic#et. If the olice engage in searching the car and ta#e

longer, this will be deemed an illegal detention. If the search continues after this cut!offtime, the items sei$ed will be sub3ect to suression.

d- Rule& 2here the olice order someone to ta#e something out of his oc#et, and he refuses, there

must be robable cause indeendent of the exercise of rivacy to search and=or sei$e.

UNREA"ONA7LENE"" T#E 'ARRANT R E1UIREMENT

I. In order to be lawful, a warrant must beet the following re"uirements !

A- It must be issued by a neutral and detached ma!istrate.

7- There must be resented to the magistrate an ade"uate showing of 3ro/a/le cause %either to

search or to arrest& su33orted /y oath or affirmation. This is usually in the form of a swornaffidavit from a olice officer.

C- The warrant must descri/e s3ecifically and accurately the 3lace to /e searched and the items

or 3ersons to /e seiBed-

I- The officer with a search warrant can, with reasonable effort, ascertain the identity of the

lace to be searched.

II- This standard re"uires that nothing be left to the discretion of the officers executing thewarrant.

4- This rotects the citi$en against the unilateral action of the overly $ealous lawenforcement officer.

II. The 'arrant Re2uirement and "earches of Persons #omes Pa3ers and Effects

a- Per "e Rule& The right to rivacy in the home necessitates a warrant, unless the case falls into one

of the clearly defined excetions %later&. This is true regardless of whether there is actual robable

cause.

i- Rule& If the initial search violates the 4th -mendment, it will taint any subse"uent searchconducted during the same encounter.

ii- Exce3tions to the rule are numerous, so there is no longer much of a rule left at all.III. The 'arrant Re2uirement and "eiBure of Persons

a- Rule& -n arrest is a sei$ure of a erson and is unreasonable unless it is suorted by robable

cause.

I- /owever, no .arrant is needed for a 3u/lic felony arrest-

II- ven if there is amle time to secure an arrest warrant, an officer can reasonably arrest a

erson in a ublic lace so long as she has robable cause to believe the arresteecommitted a felony.



4- The common law that redated the 4 th -mendment tolerated warrantless ublic

arrests of felons.

iii- Rule& - search or arrest warrant is needed to enter a dwelling to arrest a felon, because

the entry is a search that triggers the rivacy rationales that underlie the search warrant

re"uirement.

/- Rule& ven if the court found that -twater was illegally arrested, this does not mean that the casewould be dismissed. <ather, only the effects of the illegal arrest %i.e., sei$ed evidence& would be

sub3ect to suression as the roducts of an illegal arrest.

The Issuance Content and Execution of 'arrants The Particularity Re2uirement

I. In order for a search warrant to be issued it must describe with particularity the items to be searched

and sei$ed.

a- Rule& If the (ourt determines that a search warrant was )overly broad,* this is grounds to have thewarrant stric#en. If any evidence is sei$ed ursuant to such warrant, the defendant has grounds to

suress the evidence.

II. Timin! of 'arrants reference for day!time searches, as the olice and magistrate must secifically

rovide for a nighttime search in the warrant form.

A- earches during the day are less intrusive to the erson who is sub3ect to the search, and less ris#yfor the olice conducting the search.

7- There must be a secific rationale for issuing a nighttime search stated when rocuring thewarrant. This is because it is thought to be more of a constitutional violation to search at night.

III. "co3e of "earch& The scoe of the search %i.e., digging u the yard, using secific technology&

deends entirely on the item%s& for which the olice are searching.

A- The level of articularity re"uired can deend on the comlexity of the case.

I+. The (8noc6 and Announce) Rule

a- 8noc6andAnnounce Rule& The olice must #now and announce their resence before entering

the lace to be searched, ':C there is a reasonable showing that such action would harm theinvestigation or be dangerous or futile. This is a determination to be made by the lower courts

%finding of fact&.

I- In this case, the (ourt held that the common law )#noc# and announce* rule forms a art

of the reasonableness in,uiry %in assessing the reasonableness of the search or sei$ure&

under the 4th -mendment.

II- -ichards Rule& In felony dru! cases, there is no categorical exception to the )#noc#and announce rule* The (ourt said that you have to ma#e a reasonable showing on a case

by case basis. /owever, in many cases where guns and drugs are involved, the )#noc#

and announce* rule will be disensed with.

+. Reasona/le Mista6es in Executin! the "earch

a- #oldin!& The search was uheld desite the ambiguity in the warrant and the officers’ mista#e inexecuting it. The (ourt held that this mista#e did not violate the articularity re"uirement of the 4th

-mendment.

4- The warrant must be analy$ed based on the information #nown at the time the

warrant is issued. The subse"uent discovery that the warrant was flawed will not

retroactively invalidate the warrant.

5- The mista#e made by the officers in executing the warrant was )ob3ectivelyunderstandable and reasonable.*



9- The (ourt recogni$ed )the need to allow some latitude for honest mista#es that

are made by officers in the dangerous and difficult rocess of ma#ing arrests and

executing search warrants.*

+I. Rule& If the olice are standing on your doorste, and loo# inside and see incriminating evidence, they

cannot 3ust wal# in and sei$e it. They are re"uired to go obtain a warrant from a magistrate.

+II. Misre3resentations /y the Policea- Rule& - warrant will be voided if the arty who is see#ing the invalidation roves by a

preponderance of the evidence that !

4- - false statement was included in the affidavit,

5- The false statement was included #nowingly and intentionally or with rec#less

disregard for the truth, and

9- 2ith the false statement excised, the remaining information does not suort a

finding of robable cause.

II- If the defendant can ma#e a showing of the first two elements, he is entitled to a fullevidentiary hearing.

4- In the event that the allegation of er3ury is established, the affidavit’s remaining

content is examined to see if it can establish robable cause standing without the

er3ured statements.

5- If robable cause is still found, absent the false statement, the evidence can be

used. If not, the search warrant must be voided, and the fruits of the searchexcluded from evidence.

E:CEPTION" TO T#E 'ARRANT R E1UIREMENT

. Introduction& There are F basic "uestions regarding the excetions to the warrant re"uirement !

* . 2hat are the characteristics common to cases in this category that 3ustify circumvention of the

warrant re"uirement0

B . 2hat re"uirements must be met for the secific excetion to aly0

$ . 2hat is the ermissible scoe of the search within the excetion0

D . +eneral Rule& Because a search without a warrant is resumtively unreasonable, the government

has the burden of showing that the search falls within an excetion to the general warrant rule.

. "earch Incident to Arrest

* . +eneral Rule& This excetion ermits the search of the erson and the area immediately

surrounding the sub3ect of the arrest.

. The authority to search incident to arrest has only been recogni$ed in situations of

custodial arrest , as the rationale for the excetion is closely tied to the fact of custody

. robable cause to search is not necessary under this excetion, as the search is 3ustified

by the exigencies of the situation.

B . +eneral Rule& The arrest must recede the search, because it is the arrest that 3ustifies the search.

$ . +eneral Rule& - search incident to arrest is li!ited to %1& the erson of the arrestee, %& the areawithin the immediate control of the arrestee, and %F& for arrests within dwellings, the areas

immediately ad3acent to the lace of arrest.

D . Prere2uisites for the Exce3tion&

. The underlying arrest must be lawful %based on robable cause to believe the sub3ect has

committed the crime&, -:



. If the arrest is made in a rivate building, the arrest warrant must be valid.

. In the case of a misdemeanor committed outside the resence of the officer, an arrest

warrant may also be necessary.

/ . 7ri!htline rule that we allow officers to search the person and the area within the

i!!ediate control of the arrestee.

0 . The sho.in! needed to conduct a search incident to arrest The olice need only establish thatthey lawfully arrested a susect and too# him into custody.

1 . Rule& The officers can sei$e and oen any items found within the immediate control of thearrestee.

. Rationale& nce you are sub3ect to custodial arrest, the additional rivacy violation of

allowing the olice to go through the items on your erson is not sufficiently great such

that we are going to interfere with the officer’s ability to conduct a full search.

2 . Rule& The (ourt also reasoned that the officer’s sub3ective fear %or lac# of fear& that the defendantmight have a weaon lays no role in this determination.

. 7ottom Line& olice have the ability to arrest anyone for a minor traffic violation and

once arrested, the arrestee is sub3ect to a full custodial search.

H . #oldin!& :either %1& the need to disarm the susect in order to ta#e him into custody nor %& the

need to reserve evidence for later use at trial 3ustifies a full search incident to a traffic citation.

. Rationale& nce a driver is stoed for seeding and issued a citation, all the evidence

necessary to rosecute that offense has been obtained. :o further evidence of seeding isgoing to be found on the erson or in the car.

. Criti2ue& If this decision is given full weight, officers could usur this limitation on

searches by always choosing to arrest the driver.

. If the officer believes the driver is engaged in other criminal activities, the officer can

arrest the driver and conduct a search of the erson, the car, and any containers in the car%excet the trun#&. See '( v. $elton.

. #oldin!Rule& 2hen a olice officer has made a lawful custodial arrest of the occuant of an

automobile, he may, as a contemoraneous incident of that arrest, search the passenger co!part!ent of that automobile %but not the trun#&. The olice may also examine the contents of

any containers found within the assenger comartment, whether the container is open or closed .

3. This rule alies even if the occuants have already been removed from thevehicle. -rticles within the relatively narrow comass of a assenger

comartment of a vehicle are generally within the area into which an arrestee

might reach in to grab a weaon or other evidence.

* . olice may not search the trun6 of an automobile incident to arrest of

the automobile’s occuants. This is considered outside the scoe of thesearch.

B . The (ourt was attemting to create a /ri!htline rule for easier

alication by the olice and the courts.

. This rule is not necessarily so bright, as there are still issues

surrounding the search of loc#ed glove boxes, hatchbac#s, and behind door anels.

4. 7rennanFs Dissent& Brennan argues that the 3ac#et was not within the

immediate control of the defendant, and under )hi*el , not sub3ect to search.

)The crucial "uestion under )hi*el is not whether the arrestee could ever have

reached the area that was searched, but whether he could have reached it at thetime of arrest and search.*



ii. 5ennsylvania v. Mi!!s Rule %17GG& ! The olice have the right to order you out of your

car when engaged in a legal sto. If you refuse to get out, this sub3ects you to an arrest.

iii. Hayes v. 1lorida Rule %17E5& ! 'sually, ta#ing someone to the station is an arrest, unless

the erson agrees to go voluntarily.

iv. -awlings v. Kentuc"y Rule %17EA&8 - lawful arrest is a necessary redicate for a valid

search incident to arrest. The robable cause to arrest cannot be sulied by the searchalleged to be incident to that arrest. /owever, if an officer has probable cause to arrest6

she !ay conduct a valid search incident to arrest prior to for!ally ta"ing the suspect

into custody.

v. 5ayton v. %ew 7or" , 445 '.. 5GF %17EA& !! :ormally, an entry of a rivate dwelling

re"uires a search warrant. The rivacy of the home is the "uintessential interest rotected by the search warrant rule. :evertheless, a )artial excetion* to the search warrant rule

may aly when officers search a rivate dwelling in order to arrest a felon.

3. The officers must have a valid arrest warrant for a felony. The warrant must be

based on robable cause and must meet the other re"uirements for a validwarrant.

4. The officers must also have probable cause to believe that the suspect is

presently in the ho!e.

* . This showing does not have to be made before the magistrate when

securing the arrest warrant.

8. If both conditions are satisfied, the olice may enter the home to ma#e the arrest.

:o search warrant is needed to invade the home rivacy interest of the allegedfelon.

* . This excetion was created because of concerns about the mobility of

susects and the time it would ta#e to go get a warrant and come bac#.

9. "co3e of the Exce3tion& fficers may enter the residence of the susected felon

to arrest her. They may only loo# in laces where the alleged felon could be

found. aces too small to harbor a erson are outside the scoe. >oreover,

once the arrestee is found or it is determined that she is not resent, the officersmust terminate their search.

:. Note& In 77H of cases, the olice would nevertheless go into the house and sei$e

ayton %wanted for murder&. 'nder %ew 7or" v. Harrison, he can still be rosecuted so long as there is indeendent evidence obtained indeendently of

the illegal arrest. The only evidence that would be suressed is the evidence

obtained at the time of the illegal arrest.

vi. Steagald v. United States, 451 '.. A4 %17E1& ! Entries into the d.ellin!s of

(innocent) third 3arties not included in the 3artial exce3tion

3. $acts& The olice entered the home of the teagalds to arrest Cyons, someonewho did not live in the home. The olice did not have an arrest warrant to arrest

Cyons.

4. #oldin!Rule& -search warrant is re,uired to arrest a susect when he is in

the home of a third arty. - search warrant shows that there is robable cause

that the susect is actually in the home of the third arty.

* . The innocent home!dweller’s constitutional rights are violated by anentry without a search warrant. Their rivacy rights should not be

diminished because there is no roof that they were involved in

criminal activity, nor is there any roven li#elihood that the susect is

going to be in the home.



8. Note on "tandin!& - felon who is arrested in a third arty’s home does not have

standing to challenge the constitutionality of the search. The arrestee must

demonstrate that her own constitutional rights were violated, which re"uires

both a showing that the entry of the home infringed uon her own rights and thatit did so unreasonably.

* . To rove that her own constitutional rights were infringed uon, she

must show she had a rivacy interest in the home that was invaded bythe entry.

B . The felon cannot rest her challenge on the invasion of the third arty

home dweller’s constitutional rivacy rights.

/ . ("hared D.ellin!s)& In some cases, both the felon and an innocent arty have rivacyinterests in a home. +ayton holds that the olice can enter the dwelling of a felon with a

valid arrest warrant. /owever, Stea"ald holds that the olice must rocure a search

warrant to enter the home of an innocent arty to arrest a susected felon. It is arguable

that a erson who is sharing a dwelling with a susected felon is not wholly innocent, andthis act diminishes the innocent arty’s constitutional rotection. Thus, it would be

reasonable to search the third arty’s home on the basis of a felony arrest warrant lus

robable cause to believe that the susect is in the home.

viii. United States v. ;atson Rule %above&8 The olice do not need an arrest warrant if thesusect is arrested in ublic.

3. A33lica/ility to #otel Rooms The olice can arrest a susected felon outside

of his hotel room without a warrant. If the defendant was susected of

committing a misdemeanor outside of the resence of the olice, the olice

would need a warrant. In reality, the olice would li#ely try to get the defendantto come out of the hotel room and then illegally arrest him. -ny evidence

obtained at that time would be suressed, but he could still be rosecuted.

ix. United States v. Santana, 4G '.. FE %17G5&8 - susected felon who stands recisely on

the threshold of the front door of her home is sub3ect to a warrantless arrest, as this is

considered )ublic* area. )he was not merely visible to the ublic, but was as exosedto ublic view, seech, hearing, and touch as if she had been standing comletely outside

her house.

< . Curtila!e remains an unresolved "uestion, and will be deendent on the facts and

circumstances of each case. (ourts have slit on whether the olice need an arrest

warrant to arrest a susected felon in the curtilage of his home.

& . Exi!ent Circumstances Exce3tion to the 'arrant Re2uirement

. Introduction& 2here exigencies of the situation comel the olice to act immediately,

ris# imminent danger to themselves or others, ris# the destruction of evidence, or the

escae of a susect, it would be unreasonable to re"uire them to resort to the warrant

rocess.

3. The 3rere2uisites for a warrantless search or arrest under this excetion are !

* . The circumstances resented the olice with a sufficiently co!pelling

urgency6 !a"ing resort to the warrant process both i!practicable and

ris"y, -:

B . The olice had ustification a!ounting to probable cause to believe

that items relating to the crime would be found %in the case of a search&

or that the susect had committed a crime %in the case of an arrest&.

4. O/ecti0e "tandard& The olice must be faced with circumstances that wouldcause a reasonable erson to believe that the entry was necessary to revent

harm to the officers or other ersons, the destruction of relevant evidence, the



escae of the susect, or some other conse"uence imroerly frustrating to

legitimate law enforcement efforts. The exigencies must be view from a totality

of the facts "nown to the officers at the ti!e of the warrantless intrusion.

8. The sco3e of the search is strictly limited to the exigencies of the situation.

9. Common situations .here the exi!ency exce3tion a33lies

* . vidence sought is in danger of immediate destruction.

B . afety issues for the officers.

$ . @leeing susects.

ii. ;arden v. Hayden, FEG '.. 74 %176G& ! (#ot Pursuit) Doctrine

3. $acts& Two cab drivers who had witnessed an armed robbery followed thesusect to a articular house and summoned the olice. The officers arrived

within minutes, entered the house and roceeded to search for the robber. 2hile

loo#ing for him, the olice discovered and sei$ed evidence connected to the

robbery as well as two guns. In the rocess, /ayden was located and arrested,and the items sei$ed were later offered in evidence.

4. #oldin!& The items were roerly admissible in evidence, because the entry

into the home, although warrantless, was reasonable under the exigent

circumstances to revent the escae of a fleeing susect.

* . Rule& nce inside, the officers could lawfully search for the susect

and sei$e any items found in plain view.

B . The officers needed probable cause to believe that the defendant had

co!!itted the cri!e AND that he was in the particular dwelling .

$ . Rationale& The volatility of a )hot ursuit* situation increases the

li#elihood that force will be used. -lso the increased ris# of flight

increases the ris# to others in the house where the susect is hiding.

. To the extent there is any ris# the susect has been alerted thatthe olice are loo#ing for him, there is an increased

ustification for the )hot ursuit* doctrine due to increasedris# to the olice and the ris# that the susect will flee.

8. "co3e of the "earch& -lthough the search in )hi*el was restricted to the area

where the susect could reach or grab, the scoe of the search in a )hot ursuit*situation is broader. The olice can loo# where they reasonably believe a erson

could be hiding as well as anywhere a weaon could be hidden.

* . Rule& 2hen the exigencies of the situation subside, the olice cannot

continue the search.

iii. /ale v. (ouisiana, F77 '.. FA %17GG&

3. $acts& The officers conducted a warrantless entry and search of the susect’shome after they had arrested him outside of his home. The olice entered and

searched the home based on a belief that ersons inside the home would destroynarcotics believed to be in the house.

4. #oldin!& The (ourt held that the officer’s conduct in this case was

unreasonable.

* . Rule& The exigency in any given situation must arise in the naturalcourse of things and cannot be the result of deliberate olice action.

The exigency must be suorted by clearly defined indicators of

exigency that are not sub3ect to olice maniulation or abuse.



. To the extent the olice are to blame for exigent

circumstances, they cannot rofit from that creation. In other

words, the olice cannot create the exigency to exand the

scoe of the search.

B . 'nder the circumstances in this case, the olice could easily havesecured the residence while other officers went to get a warrant.

iv. ;elsh v. ;isconsin, 466 '.. G4A %17E4& ! The government relied on exigent

circumstances to 3ustify a warrantless nighttime entry of a home to arrest a resident.

2elsh had been seen driving erratically earlier in the night, and he had swerved off the

road and into a field. 2elsh left on foot for home, and the olice later investigated the car.They discovered that it was registered to 2elsh, and went to his home to arrest him

without rocuring a warrant.

3. #oldin!& The (ourt disallowed the exigent circumstances excetion in this case,

as )the alication of the exigent circumstances excetion in the context of a

ho!e entry should rarely be sanctioned when there is robable cause to believethat only a !inor offense . . . has been committed.*

* . The (ourt re3ected the )hot ursuit* rationale because )there was no

immediate and continuous ursuit from the scene of the crime.*

B . Because 2isconsin had chosen to classify 2I as )non!criminal,* it

indicated that it did not have a ma3or interest in arresting suchoffenders. Thus, there was no substantial need to reserve blood!

alcohol evidence in entering the defendant’s home without a warrant.

K . ,ehicle and Container "earches

. Introduction& This excetion has led to the highest number of ureme (ourt cases, as it

is more confusing than other excetions.

3. Prere2uisite Rule& The olice must have robable cause to engage in a search

of the vehicle. The only possible exception is where the car is ar#ed on theowner’s own curtilage.

* . The excetion alies to all vehicles, such as airlanes, boats,motorcycles, and mobile homes.

B . To invo#e the excetion, the vehicle must be readily mobile by the turn

of an ignition #ey. If a vehicle is disabled in some way and not readilymobile, there is insufficient need for warrantless action.

. If the olice can rove they had no reason to #now of

immobility of the vehicle, they can rely on this excetion.

4. Rule& The car can be searched at the scene or at the station. 'nder ,ohns, the

search at the station does not have to occur exeditiously.

8. Rule& -fter !cavedo, it is clear that robable cause to search 3ustifies a search of

either a car or a container in the car.

9. Rationale& The warrantless search ermitted by this excetion is not basedentirely on exigency or need to act. It also rests on the =di!inished> 9th

*!end!ent privacy interest in vehicles-

ii. $arroll v. United States ! - warrantless search could be conducted of a vehicle if the

officers had robable cause to believe there was contraband or other evidence of criminal

activity in the vehicle. This was remised on the concern about mobility of vehicles, as itwas not li#ely the vehicle would be in the same lace after the olice obtained a warrant.

iii. $ha!bers v. Maroney, F77 '.. 4 %17GA&



3. $acts& -fter a descrition of the robbery susects’ car and the robbers was

broadcast over the olice radio, the olice saw a station wagon meeting the

descrition. The olice stoed the vehicle. The occuants were arrested and the

car was driven to the olice station and subse"uently searched.

4. #oldin!& The (ourt held that the warrantless search of the vehicle at the stationwas legitimate and not a violation of the 4th -mendment.

* . Because the olice had robable cause to believe that the car contained

evidence of a recent robbery, and thus, could have been lawfully

searched when stoed %)arroll &, it was constitutionally ermissible to

conduct the delayed search as well.

B . @or constitutional uroses, there is no difference between sei$ing thecar and holding the car before resenting the issue to a magistrate.

9iven probable cause, either course of action is reasonable.

8. Rationale for not re2uirin! a .arrant

* . - search at the scene may not be as efficient or thorough as one done

later at the station house.

B . If the car is at the station house, it is no longer mobile, which is one ofthe rimary rationales for this excetion. The ma3ority now says that

there is no areciable difference in terms of an additional loss of

rivacy. The additional intrusion is !ini!al , and thus, we don’t

re"uire the olice to obtain a warrant.

9. Chan!e from $arroll + The olice no longer have to ma#e a showing that theyneeded to act "uic#ly. It is now clear that the olice can conduct a search at the

scene or at the station house.

* . Possi/le Limitation& It is one thing if the defendant loses access to his

car for FA minutes, and an entirely different situation if he loses access

for F days. There is a much greater interference with ossessory rightswhen the car is sei$ed and ta#en to the station. If the olice erform the

search in an exeditious manner, there may not be a roblem. /owever,

the longer they ta#e, the greater the interference with the defendant’s ossessory interest.

iv. $oolidge v. %ew Ha!pshire, 4AF '.. 44F %17G1& Rule& If a search of a vehicle isconducted on rivate roerty, the olice need a warrant.

3. Rule& This excetion exemts from the warrant re"uirement vehicles that are on

the highway. It also includes vehicles found stationary in a ublic lace, and

vehicles found stationary on the rivate roerty of someone other than thevehicle owner.

4. Exce3tion& This excetion may not aly to vehicles that are found stationary

on rivate roerty %or curtilage of the vehicle owner. /owever, later cases have

cast doubt on the current validity of the )oolid"e rule. See Kil"ore and )arney

%below&.

v. 5ennsylvania v. Kilgore, 51E '.. 7FE %1776& !

3. $acts& fficers develoed robable cause to believe that narcotics would befound in a truc# owned by ilgore. The truc# was ar#ed on the driveway of a

farmhouse that belonged to another individual. 2ithout obtaining a warrant,

olice officers searched the ic#u, finding cocaine on the floorboard.

4. #oldin!& The (ourt held that the search was not in violation of the 4 th

-mendment, as there was robable cause to search the truc#, the truc# was



)readily mobile,* and the individual has a reduced exectation of rivacy in an

automobile.

* . 9iven this exlanation, this casts doubt on the validity of )oolid"e.

vi. $alifornia v. $arney, 4G1 '.. FE6 %17E5& ! fficers engaged in a warrantless search of a

mobile home after securing robable cause that the owner was giving mari3uana to youths

for sex.3. #oldin!& The (ourt allowed the search as consistent with the 4 th -mendment.

/ere, the court focused on the individual’s reduced exectation of rivacy in any

vehicle.

4. Rule& If a car is readily mobile and robable cause exists to believe that it

contains contraband, the 4th -mendment ermits the olice to search the vehiclewithout a warrant.

* . -gain, this casts serious doubt on )oolid"e.

/ . "co3e of the Permissi/le "earch& The scoe of a search under this excetion is limited

only by the nature of the robable cause to search.

3. Areas of the 0ehicle to .hich the 3ro/a/le cause extends This excetion

allows officers to search any art of the vehicle that there is robable cause tosearch. $alifornia v. *cevedo %1771&.

* . Exam3le& If the facts suorting robable cause focus on one secific ortion of the vehicle, such as the trun#, the search must be limited to

the trun#. imilarly, if the item being sought is too large to fit within a

given sace, such as the glove comartment, a search of that sace is

imermissible.

B . Rule& Coc#ed comartments of the vehicle may be searched. - loc#would clearly not reclude a search ursuant to a warrant, and the

scoe of this warrantless search is as broad as would be ermitted if

officers had a warrant to search. See United States v. -oss %17E&.

4. "e3arate containers .ithin the 0ehicle fficers are also ermitted to search

every searate container within the vehicle that could contain the ob3ect of theirsearch. $alifornia v. *cevedo. There is authority to search such a container both

when officers have robable cause to search an entire vehicle and when they

have robable cause to search only a container that is inside the vehicle.

* . Note& fficers might have robable cause to search a container that isnot inside a vehicle. - warrantless search is not per!itted of a

movable container outside the vehicle %i.e., luggage&. /owever, the

officers can sei$e and immobili$e the container ending alication for

a search warrant. United States v. $hadwic" . In sum, searches ofmoveable container found outside vehicles are not exemt form the

warrant re"uirement. /owever, a secific showing that a sei$ure would

be imracticable or dangerous would suort an )exigent

circumstances* search of such a container.

8. Location of the search& fficers may search a vehicle at the place where it is

stopped or found . They are also ermitted to ta#e the automobile to the police

station %or another lace of imoundment& and conduct a warrantless search

there. 'exas v. ;hite %17G5&, $ha!bers v. Maroney %17GA&.

9. Timin! of the search& fficers may conduct a warrantless search i!!ediately

upon finding the vehicle or as soon as they arrive at the police station. Theyare also ermitted to delay the warrantless search for an undefined eriod of

time. -ccording to the controlling rule, a later search is unreasonable if the



officers delay )indefinitely.* If may also be unreasonable if an individual were

to rove that the delay in conducting the warrantless search )adversely affected

a privacy or possessory interest .* United States v. &ohns %17E5&.

( . In0entory "earches of ,ehicles and Arrestees

. Introduction& These searches are not conducted to investigate or detect crime, but rather,

to )inventory* ! determine and document the contents of ! a articular area. 2arrantlessinventories are reasonable because they protect property interests of vehicle owners or

arrestees, protect officials against false or true claims of lost or stolen roerty, and

protect the police and those in ail against dangerous instru!entalities.

. In0entory "earches of ,ehicles& 'nder certain conditions, warrantless inventory

searches of vehicles without robable cause are reasonable.

3. Necessary "ho.in!& The rere"uisites for a valid vehicle inventory are a

lawful i!pound!ent and standard police procedures. See South Da-ota v.

Opper*an.

* . La.ful Im3oundment& The 3ustifications for conducting an inventoryonly arise .hen officers ta6e the 0ehicle into custody. 2ithoutofficial ossession, there is no obligation to rotect an owner’s

belongings, no basis for fearing liability, and insufficient reason forconcerns about danger. The 4th -mendment demand that such sei$ures

be reasonable gives rise to the lawful imoundment re"uirement forvalid inventory searches.

. 'hen is an im3oundment la.ful* -n imoundment is

lawful if there is ade,uate reason to ta"e possession of the

vehicle.

. The 2uestion is whether there is a sufficient state interest in

removing the vehicle from where it is and ta#ing it intoofficial custody.

3. There is an ade"uate interest if a vehicle is i!peding

traffic or threatening public safety and convenience.

See South Da-ota v. Opper*an. Thus, cars ar#ed inviolation of city ordinances or bro#en down in themiddle of ublic streets may be imounded.

4. +ehicles whose drivers are arrested may ordinarily

be ta#en into custody.

. -n imoundment is not la.ful if the official decision to

imound is entrusted to the unfettered discretion of the officer.

3. Imoundment decisions do not have to be guided byrigid olicies or inflexible formulas. ome discretion

to decide is allowed so long as it is exercised

accordin! to standard criteria and on the /asis of

somethin! other than sus3icion of e0idence of

criminal acti0ity- See )olorado v. $ertine %17EG&.

B . "tandard Police Procedures& olice deartments must have standard

rocedures that guide and regulate their officers’ inventory searches.

See South Da-ota v. Opper*an. The decision to inventory cannot be

left to the officers’ unfettered discretion. See Florida v. Wells %177A&.

. There is no need to ta#e away all discretion from the officersconducting the inventories. Officers !ay be allowed

sufficient latitude to deter!ine whether a particular



container should or should not be opened in light of the

nature of the search and characteristics of the container

itself . - olicy that allows the exercise of 3udgment based on

concerns related to the uroses of an inventory search doesnot violate the 4th -mendment. See Florida v. Wells.

$ . O33ortunity to Ma6e Other Arran!ements& ince Opper*an, the

(ourt has made it clear that officers do not have to extend the owner aninvitation to ma#e other arrangements. See )olorado v. $ertine.

. -n owner might re"uest ermission to ma#e other

arrangements. he might see# to have someone else ta#e ossession of her vehicle or might as# for the oortunity to

remove items before an inventory is erformed. It is

uncertain whether officers are constitutionally per!itted to

deny such a re,uest . If officers do grant an owner’s re"uest togo through the vehicle rior to an inventory, but still have

reason to retain custody of the vehicle, the reasoning of the

inventory cases suggests that it would be reasonable to then

conduct an inventory of the vehicle.

4. "co3e of a 0alid 0ehicle in0entory& tandard olice rocedures are one sourceof limitation on the scoe of a roer inventory. The more significant "uestion is

what indeendent restrictions the (onstitution imoses. The "uestion should be

answered by referring to the 3ustifications for warrantless inventories.

* . "co3e authoriBed /y the standard 3rocedures& If the standard rocedures regulating an officer’s inventory search limit the laces

where an officer may loo#, a search beyond those laces would be

outside the inventory excetion and violate the 4 th -mendment.

B . "co3e allo.ed /y the %th Amendment& -ssuming that the standard

rocedures authori$e an inventory search, the ,uestion is whether thesearch authori$ed in consistent with the 4th -mendment.

. Rule& The 4th -mendment does allow officers to loo#

thoroughly through all generally accessible areas of the assenger comartment, including closed saces such as glove

co!part!ents and consoles. They may also inventory trun"s.

. The fact that an area is loc6ed robable does not reclude avalid inventory. /owever, if officers cannot search a loc#ed

area without causing significant roerty damage, it is

arguably imermissible to conduct an inventory.

. Inventories of some arts of vehicles may be constitutionally

forbidden. 9enerally inaccessible spaces such as the areas beneath rear seats, behind door anels and roof liners, and

underneath the dashboard could be outside the scoe of a

reasonable inventory. @urther, the area under the hood of a

vehicle, or erhas some arts of that area, might be outsidethe scoe.

. In0entory "earches of Arrestees& 'nder certain conditions, warrantless inventory

searches of arrestees without robable cause are reasonable under the 4 th -mendment.

3. "ho.in! Necessary to In0entory an Arrestee& - valid inventory of an arrestee

re"uires a lawful arrest of someone who is going to be incarcerated accordingto standard police procedures. See Illinois v. a/ayette.



* . La.ful Arrest& The 3ustifications for inventories of arrestees only arise

because a erson has been ta"en into custody.

. If the sei$ure of the erson is unreasonable, an inventory that

follows will be unconstitutional. (onse"uently, the inventory

may only occur after a lawful arrest. Illinois v. a/ayette.

B . Incarceration& Inventories of arrestees are only ermitted when anarrestee is going to be incarcerated for so!e period of ti!e. The

roerty rotection, false claims, and safety rationales underlying

inventories are irrelevant to cases in which arrestees are released

without being confined in 3ail.

$ . "tandard Police Procedures& -n inventory of an arrestee is notreasonable unless the officer conducting it is acting ursuant to

standard rocedures.

. -n officer cannot have unfettered discretion to decide who

will be searched. /owever, discretion is constitutionallyaccetable if it is exercised on the basis of standard criteria

and not for investigatory uroses.

4. "co3e of 0alid arrestee in0entory& Both the deartment’s standard roceduresand the 4th -mendment limit the scoe of a roer arrestee inventory.

* . Arrestee& fficers may thoroughly search the erson of the arrestee,

removing all belongings. In circumstances of articular need, officersmight be allowed to re"uire an arrestee to remove his or her clothing,

but such instances would be rare.

B . Personal 7elon!in!s and Containers& fficers also may oen and

loo# through any article or container found on the erson or in the

ossession of an arrested erson who is to be 3ailed.

. There is no need to ta"e the less intrusive alternative ofstoring closed containers intact in secure facilities.

$ . Time and Place of the In0entory& -n inventory of an arrestee willtyically occur at the olice station or 3ailhouse, rior to the

individual’s introduction into a 3ail cell. :onetheless, there is no reason

why it cannot be erformed at an earlier time and different lace if allother elements of the excetion are met.

. In a/ayette, the (ourt indicated that it could be roer to

inventory a belonging 3ust before giving it bac# to an arrestee

who is being released.

M . Consent "earches

. Introduction& If a erson with authority validly consents, the 4 th -mendment allows anofficer to conduct a search without a search warrant and without robable cause. ven if

the erson giving consent lac#s authority, a warrantless search may still be reasonable.

. "ho.in! Necessary for a Consent "earch& To invo#e the )consent excetion,* the

government must demonstrate a voluntary consent by a person with co!!on authority.

3. Actual Consent& - consent search re"uires evidence that consent was actually

given. xlicit ermission to search is not re"uired. <ather, a erson’s actionscan rovide a basis for inferring a grant of such ermission.

* . (onsent should not be inferred when a erson simly ac"uiesces in or

fails to resist an official demand for ermission to search.



4. ,oluntariness& The government must show, by a reonderance of the

evidence, that consent was in fact voluntarily given, and not the result of duress

or coercion, exress of imlied. See Schnec-loth v. $usta*onte.

* . "tandard Em3loyed& +oluntariness is determined by the totality of

the circu!stances. $usta*onte. <elevant circumstances fall into t.o

!eneral cate!ories

. xternal coercion or ressure brought to bear on the

individual, and

. Internal, sub3ective strength of will ossessed by the

individual.

B . @acts that evince coercion %or lac# thereof& are relevant ! for examle,the nature of the law enforcement conduct receding the consent and

the setting in which it occurred are relevant. Ci#ewise, facts that bear

on a erson’s strength of will or vulnerability are also relevant ! for

examle, native intelligence, educational level, maturity, riorexerience with law enforcement, intoxication, and #nowledge of the

right to refuse consent.

$ . ome amount of official coercion is almost certainly necessary forconsent to be deemed involuntary. (onsent that is )involuntary*

because of urely sub3ective forces oerating internally within theindividual’s mind is most roerly valid. See )olorado v. )onnelly.

D . (onsent coerced by the conduct is also robably a valid basis for a

search. )onnelly %a rivate arty’s coercion does not render a

confession coerced or involuntary for uroses of the (lause&.

e. Bu!per v. %orth $arolina& 2here the olice falsely claim that they

have a warrant, and this romts the occuant to let them in, consent isinvalid.

8. 8no.led!e of the Ri!ht to Refuse& 2hile #nowledge of the constitutional right

to refuse consent is relevant to voluntariness, it is not an absolute necessity.

* . Rule& fficers do not have to warn a erson of the right to refuse

consent. >oreover, consent given by a erson who was ignorant of the

right to refuse is not invalid.

9. Ad0ice to "eiBed Indi0iduals& The 4th -mendment does not re,uire that a

lawfully sei)ed individual be advised that he is =free to go> before consent can

be found voluntary. See Ohio v. -obinette. (onsent that is voluntarily given is

not rendered invalid by the failure to rovide such advice. This is the casewhether the lawful sei$ure is continuing or has been comleted at the time the

consent is given.

:. Authority to +i0e Consent& (onsent is valid only if it is given by a erson who

has authority to consent. Third arties ! ersons other than the erson who

ob3ects to the search later ! may give valid consent if they have commonauthority. See United States v. Matloc- .

* . Common Authority Rule& To have )common authority* to consent to

the search of a lace, an individual need not have a roerty interest. In

fact, a roerty interest alone is insufficient for common authority.

. (ommon authority rests on !utual use of the property by

person generally having oint access or control for !ost

purposes. The degree and the extent of access or control that



are re"uired to satisfy this standard cannot be secified with

recision.

?. "co3e of an Indi0idualFs Authority& The scoe of an individual’s authority to

give valid consent is determined by the extent of that erson’s )mutual use* and

)3oint access or control.*

* . Rule& - erson who uses and has access to some saces does not haveauthority to consent to the search of related or nearby, but distinct,

saces.

. Exam3le& - erson does not have authority to consent to a

search of every ortion of a dwelling simly because he uses

certain, limited arts of that dwelling. imilarly, someone withmutual use of and 3oint access to a room does not necessarily

have authority to consent to the search of every distinct rivate

belonging within that room.

B . Rule& There are some rivate saces that are treated as unitary for uroses of authority to consent. @or such saces, whenever a erson

uses and has access to any art of the unitary sace, he gains authority

to consent to a search of the entire sace.

i. 1ra)ier v. $upp Exam3le& - young man had ermission to

ossess his cousin’s duffel bag and to use some comartmentsin it. The (ourt held that he had authority to consent to the

search of the entire duffel bag as a result.

. "co3e of a ,alid Consent "earch& If a erson with authority has given valid consent, an

officer is entitled to search any area to which the consent extends. Because consent

searches are reasonable only because officers have secured ermission, the scoe of aconsent search cannot be broader than the scoe of the ermission granted.

3. If a consenting arty exressly limits the allowable search, officers must abide

by that limitation. /owever, the consenter may not be exlicit about the scoe of

the ermission she intends to grant. In that case, the standard for measuring the

scoe of a susect’s consent is that of obective reasonableness ! what areasonable erson would have understood by the exchange between the officer

and the erson giving consent. See Florida v. ,i*eno.

* . If it is reasonable for an officer to consider consent to include a

articular area, that area falls within the scoe of the consent given.

B . If it is reasonable to understand the consent as extending to a articulararea, there is no need for an officer to confirm that understanding by

in"uiring or see#ing exress ermission to search the area.

$ . The ob3ective, reasonable erson standard for determining the scoe of

consent re"uires each case to be 3udged on its own facts.

/ . The (A33arent Authority) Doctrine& In some cases, officers search based on consent

given by a erson who, in fact, does not have common authority. In those cases, thesearches do not fall within the consent excetion. Because the consenter lac#s authority,

the consent is not constitutionally valid.

3. - warrantless search erformed under these circumstances may nevertheless be

reasonable under the a33arent authority doctrine. If a erson who gives

consent does not have authority, the search is still reasonable if officers have anobectively reasonable belief that the person who has given consent has

co!!on authority. See Illinois v. Rodri"uez .



4. Circumstances 8& fficers do not always have to in"uire about a erson’s

authority or relationshi to the lace searched. In some situations, they can have

an ob3ectively reasonable belief in authority without in"uiring. In others, the

circumstances may be such that an officer could not reasonably believe that a erson had authority without as#ing.

8. ven in cases where a erson affirmatively asserts that she has authority to

consent, it may not be reasonable to believe that assertion. The "uestion isalways whether, in the articular circumstances, a belief in authority is

obectively reasonable.

9. ven if an officer conducts a search in circumstances that render it unreasonableto believe that a erson has authority to give consent, the search will be

constitutional if the erson does in fact have actual authority to consent. Illinois

v. Rodri"uez .

% . The Plain ,ie. Doctrine

. Introduction& The lain view doctrine does not actually authori$e a search of any sort.<ather, it merely allows officers to seiBe effects in certain circumstances without first

obtaining a warrant. See Horton v. )ali/ornia. The circumstances that 3ustify a

warrantless sei$ure are8

3. Cawful arrival at the lace from which the ob3ect can be lainly viewed,

4. Cawful access to the ob3ect sei$ed, and

8. -n ob3ect whose incriminating nature is )immediately aarent.*

9. Rationale& The olice should not be ut to the inconvenience of leaving the

lace of the original search to rocure a secified warrant to sei$e contraband orevidence that is immediately aarent as criminal in nature.

. La.ful Arri0al at the Place from .hich the O/ect can /e Plainly ,ie.ed& If officers

violate the 4th -mendment in arriving at the lace that enables them to view an ob3ect, the

violation will taint a subse"uent sei$ure. The )lawful arrival* criterion reflects the

rincile that an otherwise lawful sei$ure will be tainted if it is the roduct of a rior

illegal search. . La.ful Access to the O/ect "eiBed& fficers must 3ustify their resence in the lace

where they sei$e the ob3ect.

3. If the item is in a public place, no grounds are needed to 3ustify access because

the 4th -mendment does not restrict officers’ access to ublic laces.

4. If the item is in a private place, officers need either a warrant or an excetion tothe warrant re"uirement to 3ustify the entry that gives them access to the ob3ect.

* . :o amount of robable cause can 3ustify a warrantless search. If lawful

lain view of an incriminating ob3ect ermitted intrusion into a rivate

lace to sei$e the ob3ect, the lain view doctrine would undermine the

search warrant rule.

B . Rationale& By demanding an indeendent 3ustification for such asearch, the )lawful access* demand guarantees that the warrant rule

will not be undercut by the lain view doctrine.

/ . Immediately A33arent Incriminatin! Nature& This criterion reflects a fundamental 4 th

-mendment restraint on sei$ures of effects ! the general rule that officers may not sei$e

an ob3ect unless they have robable cause to sei$e it. See !rizona v. Hic-s.

3. In Hic-s, the olice had to lift stereo comonents to read the serial numbers on

the e"uiment to determine whether the stereo was stolen. The (ourt held that



this action was beyond the lain view doctrine, even though the insection was

cursory.

* . To move the stereo comonents constituted a search for which the

olice needed robable cause. 2here they had to move the stereo

comonents to read the serial numbers, and then call in to see if thestereo was stolen, this roved that the stereo was not )immediately

aarent* as incriminating in nature.

B . Com3are& If the serial numbers had been in lain view, there would be

no constitutional violation.

4. This reflects a notion that the robable cause to sei$e the ob3ect cannot be the

roduct of a search or sei$ure underta#en to investigate the nature of the ob3ect.fficers who have some level of susicion about an ob3ect in lain view, but

lac# robable cause, ordinarily may not conduct a search or sei$ure for the

urose of determining the character of that ob3ect. If they do so, and their

search or sei$ure generates robable cause that leads them to sei$e the ob3ect,the sei$ure cannot be 3ustified by the lain view doctrine because it is tainted by

the receding illegal search or sei$ure.

8. United States v. 5lace8 In this case, the olice temorarily sei$ed a suitcase in

ublic to bring a drug dog in to sniff for drugs. The (ourt allowed this action,which suggests that the olice can ma#e a temorary sei$ure based on

reasonable suspicion if the )search* ta#es lace in ublic, where citi$ens have a

decreased exectation of rivacy.

/ . Reection of an Inad0ertence Re2uirement& The lain view doctrine reviously could

not 3ustify the sei$ure of an ob3ect unless the discovery of that ob3ect was inadvertent. -discovery was inadvertent when it was not anticiatedJ where the olice did not #now in

advance the location of the item and intended to sei$e it. See )oolid"e v. 'e% Ha*pshire8

:o longer good law.

3. In Horton v. )ali/ornia, the (ourt re3ected the inadvertence re"uirement, holding

that an ob3ect is sub3ect to sei$ure under the doctrine whether or not it has beeninadvertently discovered.

4. Current Rule& ven though officers have robable cause to sei$e an item in

advance and have time and oortunity to secure a search warrant for that item,

they do not have to obtain a warrant. o long as the other re"uirements for a

lain view sei$ure are satisfied, they may reasonably sei$e the item.

. T#E ("TOP AND $RI"8 ) DOCTRINE& ' 0--7 / . O HO

* . The 7asic Doctrine

. 2ith this doctrine, we are evaluating the reasonableness of a search or sei$ure by/alancin! the !agnitude of an intrusion on the individual against the govern!ental

interests claimed to 3ustify that intrusion.

. ("to3 and $ris6) occurs when an officer confronts a citi$en who she reasonably

suspects might be involved in criminal activity. In addition to briefly detaining theindividual, the officer may also briefly fris# the susected criminal for weaons.

3. The (ourt determined that )sto and fris#* still has 4 th -mendment imlications,

because a )sto* is a )sei$ure of the erson,* and a )fris#* does "ualify as a

search.

* . - )sto* and )sei$ure* can occur simultaneously.

4. :either robable cause nor a warrant is necessary for a sto and fris#. The

officer need only have a reasonable suspicion, which is a lower showing than



robable cause. /owever, the officer must have more than an unarticulable

hunch.

* . The (ourt would allow a more full!blown search only uon a showing

of robable cause.

8. TE"T& 2hen an officer sub3ects a susected criminal to a )sto and fris#,* the

officer needs specific and articulable facts which, ta#en together with rationalinferences from those facts, reasonably warrant the intrusion. The officer must

demonstrate facts that lead him to reasonably conclude, in light of his

exerience, that cri!inal activity !ay be afoot and that the erson with whom

he is dealing may be ar!ed and presently dangerous.

9. The (ourt alied the /alancin! a33roach in &erry in articulating this test !

* . n one side of the balance is the nature and extent of the intrusion on

the individual sub3ected to the detention and fris#, and the extent of the

individual’s interest in liberty and rivacy.

B . n the other side of the balance is the government’s interest in stoing

and ferreting out crime.

$ . The (ourt must decide, based on the balance, whether the search andsei$ure are reasonable.

D . The totality of the circu!stances must also be ta#en into account in

determining whether a )sto and fris#* was ermissible in light of the

4th -mendment.

iii. 'erry v. Ohio %176E&8 fficer >c@adden’s attention was drawn to two men on a

(leveland street corner that aeared to the exerienced officer to be )casing* a store fora robbery. They wal#ed bac# and forth roughly 4 times, ausing to stare in the store

window and confer with each other. -cting on his susicions, >c@adden aroached the

men and as#ed them to identify themselves. 2hen they mumbled something in resonse,

>c@adden atted the men down, felt a istol on each man, and removed the guns. Themen were then laced under arrest for ossession of concealed weaons. rior to the trial,

the defendants moved to suress the guns as the roduct of an unreasonable search.

3. #oldin!& In aroriate circumstances and in the aroriate manner, olice

officers may briefly detain a erson for uroses of investigating ossible

criminal activity, even though there is no resent robable cause to ma#e anarrest. /ere, the (ourt created a comromise solution between the government’s

osition that this was not a search or sei$ure, and the defendant’ osition that

this was a full!blown arrest and search.

* . Rule& If the olice cannot articulate what crime it is that the individualswere about to commit, &erry is inalicable.

4. 'hy not re2uire a .arrant in these situations*

* . It is not ractical to get a warrant in these )imulse* situations.

B . If the officer sees something that is susicious, and has observed these

individuals for a reasonable time eriod, based on his exerience, it

may seem clear that they are about to engage in criminal activity. Based

on these observations, it would be imossible and imracticable for theofficer to sto surveillance in an attemt to summon other officers and

obtain a warrant.

8. The rationale for eliminatin! the 3ro/a/le cause re2uirement is more

contro0ersial



* . In &erry, the (ourt said that a full search of a erson is a substantial

deravation of the erson’s liberty and roerty interest and in their

dignity.

. If the erson is arrested and sub3ect to a full!blown search,

there is a greater intrusion than if the erson is sub3ected to atemorary sto and fris#.

B . The (ourt stated that it is reasonable to allow the olice, if they have a

reasonable, articulable belief that the susect is about to engage in

criminal activity, and if they reasonably believe that the individual is

resently armed and dangerous, to allow some romt and brief actionto disel with the officer’s immediate concern.

$ . In such situations, the government’s interest in immediately stoing

crime outweighs the individual’s right to be free from a temorary sto

and fris#.

iv. Dunaway v. %ew 7or" %17G7& ! The susect in a )sto and fris#* was ta#en to the stationhouse and detained for extensive "uestioning. The (ourt held that this was the functional

e,uivalent of official arrest , and thus, the olice needed 3ro/a/le cause for such action.

<easonable susicion is not ade"uate in such circumstances.

3. 8& uration and imosition laced on the detainee are factors in determining

whether this is a )sto and fris#* situation or more li#e an official arrest,re"uiring robable cause %see below&.

B . The (Threshold 1uestion)& 'hen is a Person ("eiBed)*

. The 4th -mendment regulates only encounters in which law enforcement officers sei)e

individuals. ):ot all ersonal intercourse between olicemen and citi$ens involves

Ksei$ures’ of ersons.* &erry.

3. Because )sei$ures* are regulated by the 4 th -mendment, they are

unconstitutional unless the government can show reasonableness.

4. Because )encounters* that are not sei$ures are not governed by the 4 th

-mendment, they can be underta#en for any reason or no reason at all ! there isno re"uirement that the government 3ustify encounters as reasonable.

. (Intent) Re2uirement& - sei$ure cannot be effected accidentally. - 4th -mendment

sei$ure does not occur whenever there is a governmentally caused termination of anindividual’s freedom of movement,, but only when there is a govern!ental ter!ination

of freedo! of !ove!ent through !eans intentionally applied .* See Brower v. $ity of

nyo %17E7&.

3. - sei$ure re"uires that an officer act with the intent of terminating the freedom

of the individual.

. (Physical $orce) or ("ho. of Authority) Re2uirement& -n officer cannot sei$e a erson unless he either alies hysical force to the erson or dislays a show of

authority. See $alifornia v. Hodari D. %1771&.

3. "eiBure /y Physical $orce& -ny actual hysical contact with a erson will

"ualify as )hysical force.* Hodari D. (onse"uently, an officer satisfies the

hysical force criterion whenever she merely touches a erson with her hand,another art of his erson, or an ob3ect.

* . The use of physical force is apparently sufficient in itself to co!plete

a sei)ure ! at least when the officer’s urose is to detain the susect.

. The susect does not have to submit to the force, although

flight will end the sei)ure.



. Note& The Hodari D. (ourt strongly indicated that the

)reasonable erson* re"uirement alicable to sei$ures by

shows of authority has no alication when hysical force is

used.

4. "eiBure /y a ("ho. of Authority)& Two things are necessary for a show ofauthority by an officer to result in a sei$ure8 %1& a sho. of authority that .ould

ma6e a reasona/le 3erson feel not free to lea0e, and %& su/mission /y thesus3ect.

* . Mendenhall "tandard 'ould a reasona/le 3erson feel free to

lea0e* In Mendenhall %17EA&, - agents in lain clothesaroached the defendant as she roceeded through an airort terminal.

They identified themselves and re"uested to see her identification and

tic#et, which she gave them. The agents as#ed several "uestions about

her travel lans, and returned the aers. -t the agents’ re"uest, thedefendant accomanied them to a nearby office in the airort, where

she was searched.

. Rule& If the olice have reasonable susicions sufficient to

sto the susect, stoing her also gives the olice the right to

as# the defendant for identification and to as# "uestions toconfirm or disel their reason for the sto. These exchanges

are considered erfectly reasonable.

. Rule& - erson can be sei$ed by a show of authority )only if,

in view of all of the circumstances surrounding the incident, areasonable person would have believed that he was not free

to leave.* This is an o/ecti0e standard.

3. 'nless the show of authority dislayed by the officer

is of such a character that it satisfies this ob3ective,

the infringement on liberty is insufficient to amountto a 4th -mendment sei$ure.

iii. United States v. Dayton %AA& ma#es clear that it is not

determinative if the olice officer gives a warning about theindividual’s right to refuse consent. This alies in all contexts

of &erry searches.

B . ometimes an individual does not feel free to leave a location becauseof self+i!posed restraints on her liberty. In that situation, the

aroriate in"uiry is whether a reasonable erson would feel free to

decline the officers’ re"uests or otherwise terminate the encounter. See

1lorida v. Bostic" .

. In Bostic" , armed and uniformed officers aroached Bostic#as he sat in the cramed confines of a bus. They as#ed to

insect his tic#et and identification, advised him that they

were searching for narcotics, and re"uested to insect his

luggage, to which he consented.

. #oldin!& In order to determine whether a articular encounter

constitutes a sei$ure, the (ourt must consider all of the

circumstances surrounding the encounter to determine whether

the olice conduct would have communicated to a reasonable erson that the erson was not free to decline the officers’

re"uest or otherwise terminate the encounter.

3. The (ourt re3ected the claim that the assenger was

sei$ed simly because a reasonable erson in that



setting would not feel free to leave. That feeling was

the result of the assenger’s own decision to travel of

the bus. In such circumstances, a sei$ure can only

occur if the officers’ conduct would ma#e areasonable erson feel not free to decline their

re"uests or otherwise terminate the encounter.

4. Rule& :o sei$ure occurs when the olice as#"uestions, as# for identification, or re"uest consent to

search a bag, as these actions do not comel the erson to sea# to the olice ! insufficient

comulsion.

* . Note& 'hoff thin#s this is comlete cra.

$ . "u/mission /y the "us3ect& @or a sei$ure to be comleted, the

individual must also submit to the show of authority. f the suspect

flees or wal"s away6 no sei)ure has occurred .

i. $alifornia v. Hodari D. %1771&8 The defendant was chased on

foot by the olice. /e tossed away a roc# of cocaine before the

olice caught him and lace any hysical restraint uon him.

3. #oldin!& The defendant had not been sei$ed when he

tossed the cocaine, as he had not yet submitted to theofficers’ show of authority.

4. Rule& - sei$ure of a erson occurs in the context of a

ursuit only where there is either an actual

alication of force on the sub3ect or where there is a

submission to olice authority.

$ . Gustification for "to3s and $ris6s& A (Reasona/le "us3icion)

. ince &erry, the showing needed for a sto and fris# has been exlained and described asa )reasonable susicion.* 'he reasonable suspicion needed to stop or detain a suspect is

different and distinct fro! that needed to conduct a fris" .

. In llinois v. ;adlow %AAA&, a ma3ority of the (ourt reected the following per se rules !

3. 'nrovo#ed flight always gives rise to reasonable susicion.

4. 'nrovo#ed flight in a high crime area always gives rise to reasonable

susicion.

8. 'nrovo#ed flight never gives rise to reasonable susicion.

9. <ather, the (ourt stated that the proper test was to loo# at the totality of the

circu!stances. Thus, if the )sto* occurs in a high crime area, this is only one

factor that the court should ta#e into consideration.

* . This is a very abstract concept to aly, as it is difficult to determine

whether the officer is acting on a hunch or under circumstances that

warrant a reasonable susicion.

. The sho.in! needed for a stop or tem3orary detention of a 3erson

3. tos or temorary detentions are ermissible in order to detect and revent

ongoing or imminent crimes. In those situations, officers must have a

)reasonable suspicion* that cri!inal activity is afoot or that the suspect is

engaging in cri!inal activity. See !la0a*a v. White.

* . In *laba!a v. ;hite %177A&, the olice received a ti that 2hite would be leaving a articular aartment at a articular time in a articular



vehicle, and that she would be going to a articular motel in ossession

of cocaine. The olice roceeded to the aartment, observed a woman

matching the defendant’s descrition leave the building and enter the

described car, and followed her to the secified hotel before stoingher.

B . #oldin!& The (ourt held that, because the olice corroborated the

redictions of the caller, they were 3ustified in stoing and detainingthe defendant outside of the motel. 8 8 olice corroboration established

sufficient reliability to establish reasonable susicion.

. Note& 2here an informant is shown to be correct about something, this increases the robability that she is right about other

facts that she has asserted.

$ . The (ourt also found reasonable susicion in 1lorida v. &.(. %AAA&,

where an anonymous tister told olice that there would be some

young blac# males on a street corner, and that one of them would havea gun.

D . In United States v. *rvi)u %AA&, the (ourt stated that a number of

seemingly innocent factors, when weighed together in the totality of the

circumstances, may amount to reasonable susicion.

4. uch stos or detentions are also ermissible in order to detect and arehendthose who have engaged in ast, comleted crimes. In those situations, an officer

must ossess a reasonable susicion that an individual was involved in or is

wanted in connection with a comleted felony. See United States v. Hensley.

* . It is undecided whether a sto for a comleted offense is ermissible

for any ast crimes that are less serious than felonies.

/ . The sho.in! needed for a fris" or .ea3ons 3atdo.n of a 3erson

3. To conduct a limited at!down of outer clothing of a susect for weaons !)fris#* ! an officer must have a reasonable suspicion that the susect who is

being detained is ar!ed and presently dangerous. See Minnesota v. Dic-erson.

4. Note& The authority to fris# does not follow automatically from the authority to

detain, but instead re"uires this independent showing of obective grounds for

believing that the susect could ose a danger to the officer during a detention.

8. -ichards v. ;isconsin8 <e3ects the categorical assumtion that drugs L guns. 8 8

There must be an individuali$ed showing that the erson is li#ely to be armed

and dangerous %cannot infer&.

/ . (Reasona/le "us3icion) robable cause is not re"uired for a sto and fris#, but an

inchoate and unarticulari$ed susicion or hunch will not suffice. See United States v.So-olo%. -reasonable suspicion is re"uired ! a level of li#elihood somewhere in

between that engendered by a hunch and that re"uired for robable cause.

3. To establish a reasonable susicion, an officer must oint to articulable and

obective facts.

4. The level of li#elihood re"uired to establish a reasonable susicion is somewhat

less than a fair robability.

8. The information that establishes grounds to so or fris# can be different in"uantity or content than that re"uired to establish robable cause, and can also

be less reliable than that re"uired to establish robable cause. See !la0a*a v.

White.



9. ?udges must ma#e their own indeendent determinations of reasonable

susicion, and cannot simly defer to the 3udgments of officers or to officers’

reliance on )rofiles* reared by law enforcement agencies. See United States

v. So-olo%.

* . (onversely, the fact that factors may be set forth in a )rofile* does notsomehow detract from their evidentiary significance as seen by a

trained agent. Thus, 3udges must not discount facts simly because theyaear in rofiles.

B . -lthough they must not simly defer to officer’s 3udgments, courts

should ma#e an effort to credit the exerience and training of theofficers in evaluating the significance of the factors.

:. ven though no single fact directly describes )ongoing criminal activity,* the

totality of the facts can still suort a reasonable susicion of criminal activity.

So-olo%. :one of the individual facts relied on to establish a reasonable

susicion need be inherently susicious or indicative of criminal activity when 3udged in isolation.

?. Rule& The fact that a susect wal#s away from the olice or refuses to answer

the "uestions of a olice officer cannot be used to gain a reasonable susicion.

D . "co3e of 'erry "to3s& Limits on Tem3orary Detentions of Person

. To "ualify as a )sto,* the intrusion on a susect’s freedom of action must be mar#edly

less than that associated with an arrest. everal factors are relevant !

3. Tem3oral $actor& #o. lon! may a tem3orary detention last*

* . Investigative stos cannot continue indefinitely. -t some oint, they become de facto arrests. See United States v. Sharpe. /owever, there is

no bright!line rule as to how long the detention may last to "ualify as a

sto.

b. United States v. Sharpe %17E5&8 fficers were following vehicles

susected of involvement in drug traffic#ing, but initially were only

able to sto one of the cars. The driver was detained for a eriod of 4Aminutes, which was the amount of time it too# to overta#e and sto the

nd driver and return him to the location of the 1st driver.

. #oldin!& This detention was a )sto* rather than an arrest, because the duration did not exceed the time necessary to

comlete the reliminary field investigation.

$ . - detention is reasonable in duration when the olice diligently ursue

a means of investigation that is li"ely to confir! or dispel their

suspicions ,uic"ly, during which time it is necessary to detain thesusect. Sharpe.

. Rule& The officers’ intrusion in the sto and fris# must be as

limited as ossible to confirm or disel their susicion.

. If the olice are dilatory in their investigation, or

unnecessarily rolong the detention, the sto is unreasonable

in scoe.

3. ven a very brief sto can be unreasonable if officersdelay unnecessarily and do not diligently ursue their

susicions.

4. - sto can usually last as long as is reasonably

necessary to conduct the investigation.



4. Location $actor& May a sus3ect /e mo0ed durin! a 'erry detention*

* . Rule& - susect !ay not be transported to the police station on the

basis of a mere reasonable susicion. )The line between an

investigative detention and an arrest is cross when the olice forcibly

remove a erson from his home or other lace in which he is entitled to be and transort him to the olice station, where he is detained, even

briefly, for investigative uroses. See Hayes v. Florida.

i. Hayes v. 1lorida %17E5&8 The olice visited /ayes at his home

in connection with a burglary to obtain his fingerrints. The

olice had no warrant, but /ayes agreed to accomany him tothe station where he was fingerrinted and later laced under

formal arrest.

. #oldin!& Transortation of a susect to the olice station

re"uires more than a reasonable susicion alone. The

transortation is reasonable if the officer has probable cause

to arrest the susect.

. Possi/le Exce3tion& It *ay also be ermissible for certain

limited uroses, such as fingerrinting, if the officers obtain

3udicial authori$ation for the sei$ure of a erson on less than robable cause. Hayes.

B . Cimited movements of a susect during a sto are robably allowed if

they are reasonably necessary to accomlish the uroses of the sto.

See Florida v. Royer .

. It is unclear whether a susect can even be moved a

substantial distance during an investigative detention. -neyewitness may be at the scene of the crime several miles

away from the oint of detention or a victim may be

hositali$ed across town from the site. In those cases, whether

it is reasonable to ta#e a roerly detained susect to the sceneor hosital is arguable.

$ . uring the lawful detention of a 0ehicle, an officer may as a matter of

course order both the driver and assengers to exit the vehicle ending

comletion of the sto. 'he incre!ental intrusion on liberty caused

by the order to get out of the vehicle is per se reasonable and re,uires

no additional ustification. See +ennsylvania v. Mi**s, Maryland v.

Wilson.

8. #o. much may official conduct intrude on a sus3ectFs li/erty*

* . uration and the movement of the susect are relevant because they

increase the infringement on the susect’s liberty. ther actions byofficers that intrude on or restrict a susect’s liberty are also relevant

and can turn a detention into an arrest.

B . -n officer might as# a large number of "uestions, as# "uestions of anaccusatory nature, or use a demanding tone. he might administer a

sobriety test or initiate an encounter in an isolated or threateningsetting. -ll such factors can increase the intrusiveness of an encounter.

$ . Ta#ing fin!er3rints during an investigative sto is ermissible if there

is reason to believe that the fingerrinting with confirm or disel a

susicion. See Hayes v. Florida. :onetheless, fingerrinting and similar

investigative techni"ues bear on the intrusiveness of an encounter and



could contribute to a finding that the border between detentions and

arrests was crossed.

D . #andcuffin! might in and of itself suort a conclusion that a de facto

arrest has occurred. ven if it is ermissible to use handcuffs during a

detention, they will significantly increase the infringement on asusect’s liberty.

0 . "co3e of 'erry "to3s& Tem3orary Detention of (Effects)

. 2hen an individual is detained based on a reasonable susicion of criminal activity, the

ersonal effects that he is carrying are also necessarily detained. No inde3endent

ustification is re2uired to detain those effects- -n officer, however, might wish to

detain ersonal effects independently of the sei$ure of the erson. The "uestion here isthe constitutionality of such an indeendent sei$ure on less than robable cause.

. Permissi/ility of and !rounds for seiBin! effects

3. In United States v. +lace, the (ourt concluded that a limited, indeendent

detention of an effect is ermissible in some circumstances.

a. United States v. 5lace %17EF&8 The olice detained luggage which was

sei$ed from an individual where the olice had reasonable susicion to believe that there were narcotics in the luggage. The olice sei$ed the

luggage for a eriod of time to bring in dogs for a sniff test.

. #oldin!& <easonable susicion that a ac#age or iece of

luggage contains contraband or evidence of a crime has been

held to 3ustify a te!porary sei)ure. /ere, the olice held theluggage for 7A minutes, which was held to be an unreasonable

detention.

. Rule& <easonable susicion does not give the olice the right

to oen the luggage ! for that action, they need robable cause.

3. robable cause would arise if the dogs alerted that

there were drugs inside. /owever, where the luggage

has already been sei$ed, the olice would need awarrant, as there are no exigent circumstances. See

)had%ic- .

4. In !rizona v. Hic-s, the (ourt made clear that limited sei$ures of effects are notalways reasonable when officers have a reasonable susicion that the effect is

somehow involved in criminality.

* . In Hic-s, an officer susected that a turntable was stolen. /e lifted it to

examine the serial number. The (ourt held that this limited sei$ure %and

search& could not be 3ustified on less than robable cause. The ma3orityobserved that a limited sei$ure of an inanimate ob3ect on less than

robable cause is allowed only when )the sei$ure is minimally intrusive

and secial oerational necessities render it the only racticable means

of detecting certain tyes of crime.* Temorary sei$ures of ob3ectssusected of containing narcotics satisfy both of these criteria.

B . It is unclear whether any ground other than a reasonable susicion of

the resence of contraband can 3ustify the indeendent, temorary

detention of an effect. Both the seriousness of the offense at issue and

the difficulty of detecting that offense would be relevant variables.

. Allo.a/le "co3e of "eiBures of Effects The "uestion here is what an officer can dowith an ob3ect that she has sei$ed based on a reasonable susicion. There is no bright!line

rule.



3. ,aria/le intrusi0eness of seiBures of effects& ei$ures of roerty can vary in

intrusiveness on the susect’s roerty interest. See United States v. +lace.

* . - iece of luggage sei$ed from an individual not only intrudes on the

erson’s ossessory interest in the item, it also iminges on that

erson’s liberty.

B . (onversely, if a container were sei$ed from a shiment, the only harmmight be a limited derivation of a ossessory interest in the item.

$ . To determine whether the sei$ure of an effect is sufficiently confined in

scoe, one must first determine the character of the sei)ure and the

nature and extent of the intrusions that result .

4. Tem3oral $actor& #o. lon! may a seiBure of an effect last*

* . If an ob3ect is sei$ed from the custody of an individual, the sei$ure maylast no longer than a sei$ure of the erson. uch a sei$ure may not last

)indefinitely* and may not exceed the time that it ta#es for a diligent

ursuit of a course of investigation li#ely to confirm or disel the

official susicion.

B . If the effect is no in a erson’s custody, and therefore does not restrict ersonal liberty, a longer sei$ure might be ermissible. - sei$ure that

was longer than reasonably necessary for the diligent ursuit of

susicions might still be reasonable because of the limited infringement

of constitutionally rotected interests caused by the unnecessary delay.

8. 'hat can /e done .ith the seiBed effect)

* . Rule& fficers are allowed to sub3ect an effect to a )canine sniff*designed to determine whether it contains contraband narcotics. uch a

sniff of a container sitting in a ublic lace is not considered a search.

See United States v. +lace.

. fficers may also re"uest consent to search.

B . Rule& fficers may not oen a container based on reasonable susicion.

They are also robably barred from erforming even a less intrusivesearch, such as manually maniulating the exterior of a soft container

as a means of ursuing their susicion. See Minnesota v. Dic-erson.

i. Minnesota v. Dic"erson %177F&8 2hile conducting a at!down

search, the officer felt a lum in the defendant’s front oc#et.The officer examined it with his fingers, slid it around, and

thought it was a lum of crac# cocaine. The officer then

reached inside the defendant’s oc#et and sei$ed the roc#.

3. #oldin!& The officer exceeded the scoe of a &erry

search by maniulating the lum with his fingers.

* . nly where the officer immediatelyrecogni$es the ob3ect as contraband can he

sei$e the ob3ect without exceeding the scoe

of &erry.

B . This also suggests that officers no longer

need reasonable and articulable susicion to believe that the erson is armed and

dangerous in order to fris# him, which is

what &erry originally re"uired.



. Potential Exce3tion& - lesser search of a container ta#en

from a detainee, and erhas even the oening of such a

container, might be ermissible as an extended fris# of the

erson if officers have a reasonable susicion that thecontainer is harboring a dangerous weaon.

$ . 2hether and when officers may transort an effect to another location

in order to carry out an investigation remains unclear .

. If the ob3ect has been sei$ed from the custody of a erson, it is

most li#ely that the effect could not be ta#en to a olice

station, but might roerly be ta#en to another location ifnecessary for an effective investigation.

. xcet to the extent that it extends the duration of the sei$ure,

movement of an ob3ect does not necessarily increase the harm

to the liberty interests of the individual from whom it is ta#en.

>ovement of an ob3ect to a olice station might be no moreintrusive than movement to any other location.

3. It is arguable that officers can transort an inanimate

ob3ect to a olice station and any other lace so long

as they diligently ursue and do not unnecessarily rolong the investigation.

. @or ob3ects that have not been ta#en from the custody of the

erson, the argument in favor of allowing officers to transort

them to other locations is even more comelling.

1 . "co3e of 'erry $ris6s

. uring an investigative detention, if an officer has a reasonable susicion that a susect is

armed and resently dangerous, she is authori$e to conduct a at!down of his outerclothing to detect large weaons such as guns, #nives, and clubs.

. 2hile the officer may thoroughly exlore all areas of the erson, she must stay on the

outer surface of the susect’s clothing. If she intrudes beneath the surface %i.e., into a

oc#et&, the fris# will be deemed unreasonable in scoe. See Si0ron v. 'e% (or- .

iii. Sibron v. %ew 7or" %176E&8 fficers watched ibron converse with several #nown drug

addicts over an E!hour eriod. -fter ibron entered a coffee sho, the olice aroachedhim and told him to come outside. nce they were outside, the officer told him )you

#now what I am after.* 2hen the man reached into his oc#et, the officer thrust his hand

into the oc#et and extracted ac#ets of heroin.

3. #oldin!& The (ourt concluded that the officer did not have )reasonable groundsto believe that the ibron was armed and dangerous.* >ere association with

drug addicts did not give rise to a reasonable fear of life or limb on the art of

the olice officers. Thus, the (ourt held that it was unconstitutional for the

officer to sto and fris# ibron. @urthermore, the (ourt noted that even if therehad been ade"uate grounds for detention and fris#, the search conducted by the

officer had exceeded the limited bounds of the at!down authori$ed by &erry %for weaons only&.

/ . Exce3tion& 2here it is imracticable for the officer to ursue the susicion by remaining

on the outer surface of the clothing, she may intrude further.

* . Exam3le& 2here an officer reached directly into the waistband of thesusect seated in a car to remove a weaon, this was held ermissible

when the officer had reason to fear for his safety and the susect

refused to comly with the officer’s re"uest to get out of the car. !da*s

v. Willia*s.



/ . If the officer feels a weaon during a roer fris#, it is reasonable to reach below the

surface of the susect’s clothing to extract it.

/ . If the officer determines that the susect is not in ossession of a weaon, the fris# must

end. ven if the officer has a reasonable susicion that an ob3ect felt during a fris# is

contraband, the officer may not maniulate it with his fingers to determine its identity.See Minnesota v. Dic-erson.

/ . fficers may also conduct a limited weaons search of vehicles based on a reasonable

susicion that a susect is dangerous and may gain immediate control of weaons from

the vehicle. See Michi"an v. on" .

3. Michigan v. (ong %17EF&8 olice saw a car swerve into a ditch and, after

stoing to investigate, made observations that the driver was intoxicated andnoticed that there was a large hunting #nife on the floorboard of the car.

* . #oldin!& The olice were 3ustified in searching the assenger

comartment and fris#ing the driver, because they were aware of

secific facts that would )warrant reasonable officers in believing thatthe susect is dangerous and might gain immediate control of

weaons.*

. Re2uisite "ho.in!& -lthough there is some ambiguity aboutwhat the olice must show to 3ustify such a search, most

scholars agree that the olice must show that the erson isdangerous and that there is a articulari$ed belief that there is

a weaon in the car.

B . Three Reasons for allo.in! a Passen!er Com3artment "earch

. (oncern that the defendant could brea# away from the olice

and enter the car to obtain a weaon.

. The olice may allow the defendant to re!enter the car to

obtain a driver’s license, insurance, etc.

. (oncern that if the olice let the defendant go free, and he has

a weaon in the car, he might retaliate against the olice orothers.

4. Rule& The susect need not be inside the vehicle at the time of the search.

8. Limitation& - vehicle weaons search must be restricted to those areas over

which the susect would generally have immediate control, and that couldcontain a weaon. This includes a limited area search of the assenger

comartment and includes the authority to search accessible containers found

within the assenger comartment if they could hold a weaon such as a gun,

club, or #nife.

9. /owever, most scholars agree that this is another diminution of the 4th -mendment, as the (ourt has rovided for a wholesale search of the car where

less intrusive measures could be ta#en.

2 . (Protecti0e ".ee3s) of #omes& Maryland v. Buie

. In certain circumstances, arresting officers are emowered to loo# through or )swee* a

home in order to rotect themselves against dangers that might arise from others who are

resent in the home. Maryland v. Buie %177A&

. "ho.in! Needed to Conduct a (Pri0ate ".ee3) of a #ome

3. La.ful Arrest ! - lawful arrest re"uires robable cause to arrest, and ossibly a

warrant.



4. The arrest must occur in a home. -rrests outside of the home do not trigger the

rotective swee authori$ed by $uie.

8. fficers must also have a reasona/le articula/le sus3icion that the house is

har/orin! a 3erson 3osin! a dan!er to those on the arrest scene.

* . This re"uires a reasonable belief based on secific and articulable facts

that others are resent in the home and that they ose a danger. . "co3e of ".ee3 Permitted

3. Three Limitations on "co3e

* . fficers may search only the areas to which their reasonable

suspicion extends. If there are grounds to believe that a dangerous

erson is resent in a basement, the second floor of the home would be

outside the scoe of a roer swee.

B . The swee may not be a full search of the remises, but may extendonly to a cursory inspection of those places where a person !ay be

found . Thus, officers may not loo# in saces too small to harbor a

erson and may not continue to examine saces after ascertaining that

no erson is resent.

$ . The sweep !ay last no longer than is necessary to dispel the

reasonable suspicion of danger and in any event no longer than it

ta"es to co!plete the arrest and depart the pre!ises. fficers cannot

linger in rooms after determining that no one is resent. >oreover, they

cannot conduct a swee if the 3ustification for doing so arises only after an unreasonable delay in comleting the rocess of arresting the

individual and leaving the home.

/. 7ALANCIN+ APPROAC# TO %T# AMENDMENT R EA"ONA7LENE""

* . 7alancin! in other contexts& In certain situations, the (ourt has ermitted otherwise

unconstitutional searches based on the )secial needs* inherent in the situation after balancing the

government’s and society’s interest in the search against the individual’s rivacy and dignity

rights. B . Detention of Indi0iduals Present Durin! "earches of Premises& uring the search of a lace,

officers may have an interest in investigating the involvement of individuals resent at the time by

detaining them.

i. Michigan v. Su!!ers %17E1& Rule8 -n officer is allowed to detain an occuant of remises while she conducts a search of those remises ursuant to a valid warrant to

search for contraband.

3. The erson detained must be an occu3ant or resident of the remises searched.

>ere casual visitors or guests may not be detained.

4. This doctrine does allow an officer to re"uire a resident found outside his home

to enter and remain there during the duration of the search. 2hile it is li#ely thatthe authority to detain occuants does not extend to those found any substantial

distance from their homes, it is unclear where this boundary lies.

8. 2hether occuants are sub3ect to detention during a warrantless search based on

exigency remains an oen "uestion ! the Su**ers rule only clearly alies

where the olice are searching under a valid search warrant.

9. It is also uncertain whether the Su**ers rule would aly where the searchwarrant merely authori$ed a search for )evidence* as oosed to )contraband.*

. Permissi/le "co3e& ccuants or residents may be roerly detained while a search is

being conducted . @or that duration, the detention is presu!ptively reasonable.



-ccordingly, if a detention lasts longer than the time it ta#es for a )roer search,* it is

unreasonable.

3. There may be instances where a detention that lasts only as long as the search

could be found to be unreasonable. erhas if the remises were so extensive

that a roer search would ta#e a very long time, a detention during that timewould be too )rolonged.* Ci#ewise, if an individual had a secial need to leave

the remises %i.e., for a doctor’s aointment or other meeting&, a court mightfind an otherwise reasonable detention to be unreasonable under the

circumstances

$ . "earches of Indi0iduals Present Durin! "earches of Premises& If a valid warrant were toauthori$e the search of a articular erson for an item roerly sub3ect to sei$ure, a search of that

erson would be constitutional. The search of a erson found in a articular lace ursuant to a

warrant that authori$ed the search of )all occuants* or )all ersons resent* in the secified lace

might also be constitutional. It is arguable, however, that such a warrant would be invalid becausethe hrases )all occuants* or )all ersons resent* do not articularly describe the lace to

searched. The ,uestion raised here is whether a erson can ever be sub3ect to search by virtue of a

valid warrant or sufficiently exigent circumstances.

i. 7barra v. llinois %17G7&8 The atrons of a tavern were fris#ed when the olice came to

search ursuant to a search warrant. :either the affidavit in suort of the warrant nor thewarrant itself made reference to any unlawful activity of customers in the tavern.

3. #oldin!& The fris# of the atrons in the tavern was unlawful. In this situation,

the government action and the fear of safety of the officers did not 3ustify the

interference with ersonal liberty of the atrons of the bar.

* . Rule& - customer or client who is resent in a commercialestablishment at the time of a warranted search for contraband may not

be searched simly because he is within the confines of the area that

may legitimately be searched. uch an individual is a searate and

distinct )lace* clothed with his own constitutional rotection.

B . uch a search is valid only if officers ac"uire probable cause to searchthe articular erson for contraband. <easonable susicion will not

3ustify even a fris# for contraband or drugs. Thus, even if officers haveinformation that gives rise to a reasonable susicion that the contraband

that is the ob3ect of the warrant will be found on the erson, they maynot search or fris# him.

4. Rationale& 2hen olice have a valid warrant for a search of the bar, why are the

other eole in the bar not 3ust recetacles where drugs could be hidden0 2hy

can’t the olice fris# ;barra for drugs 3ust as they can search drawers and other

laces in the bar0

* . The 4th -mendment rotects eole, not laces.

B . rawers in the bar are different from an individual’s oc#ets, as the 4 th

-mendment rotects the individual’s rivacy interests in his erson.

$ . ?ust because there is robable cause to believe there are drugs in the bar does not tell us anything about the articular atrons in the bar. There is

no robable cause to believe that his rivacy interest should be violatedin a search for drugs in the bar.

D . The ma3ority also says that we are not going to 3um to the categorical

assumtion that because you are at a site where there are susected

drugs, you also have drugs on your erson or are a dangerous erson.

D . Permanent or Tem3orary Chec63oints or Road/loc6s& rdinarily, any sei$ure of a erson

re"uires at least a )reasonable susicion* that the articular erson is or has been involved in



criminal activity. In certain circumstances, sei$ures effected at traffic chec#oints are reasonable

even though officers ossess no individuali$ed susicion with resect to the erson sei$ed. uch

)random* sei$ures at both ermanent and temorary chec#oints can be constitutional.

i. Michigan Depart!ent of State 5olice v. Sit) %177A&8 In this case, the (ourt engaged in

the balancing test in the context of a )fixed* sobriety chec#oint.

3. 7alancin! A33roach& The (ourt balanced the interference with the individual’sright to travel against the government’s interest in stoing drun# driving.

* . /ere, the chec#oints were fixed at secific sites where there was

advance notice to drivers that the chec#oint was ahead.

B . -ccording to Sitz , the obective !agnitude of the intrusion is

measured by the )duration of the sei$ure and the intensity of theinvestigation.* This is imortant in weighing the individual’s rivacy

interest in the situation.

$ . The subective !agnitude of the intrusion is measured by the

chec#oint’s otential to general fear and surrise in motorists. The

otential to generate such emotions can be diminished by visible signsof the officers’ authority, the fact that other motorists are being stoed,

and other restrictions on the officers’ discretion to choose the methodsused during the sto.

4. #oldin!& The sto and temorary sei$ure of drivers in this case was held to be

constitutional due to the minimal intrusion on drivers as comared to theweighty interest in stoing drun# driving.

* . - sei$ure in such instances is authori$ed without any individuali)ed

suspicion of a particular person. The erson stoed is not reflecting

any articular susicious conduct, 3ust traveling down a articular street

with a chec#oint.

8. Dissent& The dissent agreed that the government interest in stoing drun#driving was imortant, but argued that there was no evidence that the

chec#oints were actually effective in stoing drun# driving.

* . Effecti0eness is a factor in the reasona/leness /alance& This oints

out the #ey battleground in this area, because the more effective a

articular solution is, the more li#ely it will be found to be reasonable.

. Note& <elatively small ercentages of solvency have been

considered sufficiently effective. In Sitz , a 1.5H drun#en

driver arrest rate was considered sufficient to render the

chec#oint constitutional.

. The Sitz ma3ority also made clear that courts should hesitate toinvalidate chec#oints based on their assessments of need or

effectiveness. <ather, the decision as to which among

reasonable alternative law enforcement techni"ues should be

emloyed to deal with a serious ublic danger is best entrustedto the legislature.

ii. $ity of ndianapolis v. 0d!ond %AAA& Rule& (hec#oints are not allowed to the extent

they are used to ferret out general crime. <ather, there must be a secific showing that the

chec#oint is being used to eliminate a secific evil, such as drun# driving or stoing

the entry of illegal aliens.

0 . #i!her "tandards of Reasona/leness& 'nli#e the above situations, interest balancing can alsolead to the oosite conclusion ! that a articular search or sei$ure may re"uire !ore than

probable cause and a search warrant. In these situations, the balancing rocess can lead to



elevated standards of 9th *!end!ent reasonableness. The settings in which standards have been

elevated involve more serious intrusions on 4th -mendment rivacy or liberty interests than those

occasioned by ordinary searches and sei$ures.

. Use of Deadly $orce to Arrest 'ennessee v. 2arner %17E5&

3. Rule& The use of deadly force to arehend a susect is a 4 th -mendment

sei$ure. * . rdinarily, robable cause to believe that a erson has committed a

felony is sufficient to render a full sei$ure of the erson reasonable %i.e.,

arrest&. /owever, because it is more intrusive than an ordinary arrest, a

sei$ure by means of deadly force is not reasonable every time an officer

has robable cause to believe a susect has committed a felony. uchsei$ures are only reasonable in a limited category of cases.

4. 'hat are the interests .eFre /alancin! in such circumstances*

* . Indi0idualFs Interest& In using deadly force, the officer is otentially

deriving the individual of his life, which is the largest degree of

intrusion there is. @urthermore, even if there is robable cause to believe that a susect has committed a crime, he is still 3ust a susect !

that should not give him the death sentence. -ccording to our (?, it is better to let a guilty erson go free than to convict an innocent erson,

so this is in line with that trend of thought.

B . +o0ernmentFs Interest& ffective law enforcement, catching thosewho might be about to flee, deterrence message to other felons who

might choose to submit to olice authority if they #new they could be

shot.

8. Rule& eadly force may be used only when it is necessary to arehend a

limited category of susects who pose a ris" of serious physical har!. In somecases, a warning is also a rere"uisite to the use of deadly force.

* . Present Threat or Past Offense In0ol0in! or Threatenin! "erious

Physical #arm& -n officer may use deadly force to arehend a

susect if the )susect threatens the officer with a weaon or wherethere is robable cause to believe that he has committed an offenseinvolving the infliction or threatened infliction of serious hysical

harm.

. -n officer may use deadly force to rotect herself against a

threat from a susect wielding a weaon. /ere, the ris# ofharm is immediate and aarent to the officer.

. -n officer may also use deadly force to cature a susect who

is believed to have committed an offense that caused or

threatened serious hysical harm. /ere, the susect’s ast

conduct rovides evidence of a future ris# of serious hysicalharm.

3. 2hen an officer uses deadly force to cature a

susect believed to have committed an offense that

caused or threatened serious hysical harm, the

officer needs only probable cause to believe that thesusect committed the "ualifying offense.

. In any other situation, the officer is not ermitted to use

deadly force. @or examle, the mere fact that a susect is

fleeing from the olice is not sufficient to allow the use of

deadly force.



B . Necessity to use Deadly $orce and the Issuance of a 'arnin!& ven

in situations involving susects who ose ris#s of serious hysical

harm, )deadly force may be used only if necessary to prevent escape

and if, where feasible, so!e warning has been given.

. Because the intrusion on an individual is so serious, deadlyforce may only be used as a last resort. -n officer must have

no reasonable alternative means of reventing the susect’sescae.

$ . 2here the susect may be threatening a Frd arty with immediate

serious hysical harm, it seems unli#ely that the use of force in thissituation would be held to be unreasonable.

9. (Deadly $orce)& Traditionally, deadly force has included more than force that

actually results in death. -ccording to the >(, deadly force is )force which the

actor uses with the urose of causing or which he #nows to create a substantial

ris# of causing death or serious bodily harm.* 9iven the language of arner , itis li#ely that the restrictions on the use of force aly whenever an officer uses

deadly force, whether or not he actually inflicts harm.

. Intrusions into the #uman 7ody& - search inside a human body ! drawing blood or

erforming surgery ! may be more intrusive than a normal search. valuation of theintrusiveness of such a search must be done on a case!by!case basis, ta#ing into account

the threats to rivacy, dignity, and health interests. earches of human bodies that rove

to be sufficiently more intrusive must satisfy higher than normal 4th -mendment

standards.

3. Ma!nitude of the Intrusion& Threats to 3ri0acy di!nity and health

* . The nature of the information that is revealed might be more intimateor rivate than an ordinary search situation. The search might disclose

articularly ersonal facts about an individual’s life.

B . - bodily intrusion can infringe on an individual’s dignitary interest in

ersonal rivacy and bodily integrity.

$ . Bodily intrusions might threaten the safety or health, or may endangerthe life of the individual. rocedures that invade a erson’s body maywell entail ris#s of hysical harm.

4. Sch!erber v. State of $alifornia %1766&8 The (ourt determined that the drawing

of blood by medical authorities to determine the defendant’s blood alcohol

content was no more intrusive than an individual search. Because it was basedon probable cause %the defendant driver had 3ust been involved in an accident&

lus the exigency created by the ongoing dissiation of the blood alcohol level,

the blood drawing was reasonable desite the lac# of a warrant.

* . The (ourt found the exigent circumstances of the dissiating evidence

to be comelling, but also felt that this was a !inor intrusion on the

individual ! it was done in a hosital by a licensed hysician, and the

ric# of the needle was a suerficial invasion.

B . -fter balancing, the scales tied in favor of the government, and the

intrusion was deemed significantly minor when weighed against the

government interest in obtaining the evidence.

$ . Note& - warrant would have been re"uired if the ob3ective had been todetermine whether a more enduring characteristic was resent in the

erson’s blood, such as to determine his blood tye or :- ma#eu.



8. ;inston v. (ee %17E5&8 The government wanted a doctor to robe surgically for

a bullet though to be lodged beneath the s#in of the defendant. In an adversarial

hearing, the government had shown amle robable cause to believe that the

bullet was resent and that it would rovide evidence of the susect’sinvolvement in an attemted robbery.

* . #oldin!& The (ourt concluded that the medical ris#s, though not

extremely sever, were disuted and uncertain and that the harm to rivacy interest occasioned by drugging the man into a state of

unconsciousness and searching beneath his s#in for evidence wassevere. @urthermore, the state could not demonstrate comelling need

for the evidence, because it already had substantial evidence of the

origin of the bullet. Thus, the roosed surgery was deemed

unreasonable.

B . Rule& :otwithstanding the existence of robable cause, a search forevidence of a crime may be un3ustifiable if it endangers the life or

health of the susect.

$ . Note& :ot all surgeries re"uire more than robable cause, as there are

some surgeries that could be erformed if the government showed a

sufficiently comelling need for evidence, and the ris# and intrusion for the individual sub3ected to the surgery was minimal in comarison.

/. CON$E""ION" AND DUE PROCE""

* . Pro/lems .ith $alse Confessions& In most criminal cases, there is no hard evidence %i.e., :- or

other forensic evidence&, and the rosecution has to rely on eyewitness testimony and confessions.

tudies suggest that we cannot safely assume that everyone who confesses is guilty of committingthe crime to which they confessed.

. <esearch suggests that 3urors lace a lot of weight on confessions, which increases the

roblem with false confessions and increased convictions of those who are actually

innocent.

. 'hoff suggests that the best way to deal with these issues is to videotape any

interrogations and olice interactions with susects. >innesota and -labama, as well asngland, re"uires such ractice. Through videotaing, rotection is rovided to both the

individual and the olice.

B . Due Process Doctrine& The ue rocess (lause rohibits confessions coerced by government

officials. The determination of which confessions violate due rocess must be made based on the

totality of the relevant circu!stances ! including both the external pressures alied and theinternal wea"nesses of the defendant.

. Rationale& (oerced confessions are barred because of their otential for unreliability and

their inconsistency with rinciles of accusatorial fair lay and a desire to deter coercive

methods of obtaining confessions.

. Rule8 The ue rocess (lause is not concerned with all "uestionable confessions. Its soleconcern is involuntary or coerced confessions. The dispositive ,uestion is whether an

individual confessed because his will was overborne. See !rizona v. Ful*inante.

3. This is to be determined according to an o/ecti0e standard would a

reasonable erson in the situation feel comelled to confess. B'T, there is a

subective twist , because we also loo# at the internal wea#nesses of thedefendant.

c. *shcraft v. 'ennessee %1744&8 The defendant was sub3ected to a F6!hour interrogation with only a

five!minute brea#, which eventually caused him to confess to #illing his wife.



. #oldin!& The (ourt held that this interrogation was so inherently coercive that it

rendered the confession involuntary, even though no official hysically threatening

coercive measures were ta#en by the olice.

3. Inherent Coerci0eness& ome actions in certain settings can generate so much

ressure to confess that they are deemed inherently coercive. uch situationsgive rise to an irrebutable resumtion of coercion. -s a result, examination of

the articular attributes of the individual is unnecessary.

* . hysical torture or brutality create inherent coercion.

B . >ental or sychological torture can also generate inherent coercion. In

fact, this was the case in !shcra/t .

. Gac6sonFs Dissent& ?ac#son argued that there ought to be a line drawn between violenttactics used by the olice and rolonged interrogations. /ere, he argued that the

defendant’s will was not overborne, as rolonged interrogation is a legitimate tactic used

by the olice to get a statement from someone who doesn’t want to tal#.

3. In some resects, ?ac#son is right in that every attemt by the olice to get a

susect to tal# will be a form of coercion. It is difficult to draw a line at whichforms of coercion we will tolerate and which we will not.

. 8& The totality of the circu!stances of the interrogation must be investigated to

determine whether the defendant’s will was overborne, which ma#es the confession

involuntary.

d. Mc%abb+Mallory Rule& - device used in federal courts to minimi$e olice interrogations of

susects. 'nder this rule, federal officers are re"uired to bring the defendant before a magistratewithin a romt time eriod, before "uestioning the defendant. This is designed to decrease the

li#elihood of rolonged interrogations of susects in custody ! confessions obtained during a

eriod of unnecessary delay in bringing the arrested susect to a magistrate are automatically

inadmissible. %(B8 47G!7E&

. In United States v. !lvarez#Sanchez , the (ourt held that this does not aly to statementsmade by a erson who is being held solely on state charges.

e. Spano v. %ew 7or" %1757&8 Two wee#s after shooting another bar atron, the 5 year old, foreign born defendant turned him in to the authorities. /e was sub3ected to "uestioning from a number of

authority figures, reeatedly was denied access to his attorney, and sub3ected to "uestioning from a

)false friend* on the olice force. -fter a number of attemts to get him to confess, he finally did.

. #oldin!& The (ourt held that the defendant’s will was overborne and that the confession

was therefore involuntary.

. Rationale& The (ourt loo#ed at a number of factors that it felt sufficiently coercive to

suress the defendant’s confession ! )the etitioner’s will was overborne by official

ressure, fatigue, and symathy falsely aroused after considering all the facts in the ost!indictment setting. The (ourt also found it significant that the defendant was foreign!

born, had a low level of education, and robably a low I.M. @inally, the fact that the

defendant had as#ed for and was denied counsel on a number of occasions served to

render the confession involuntary.

. Rele0ance of Promises and Tric6ery

3. Both true and false government romises and decetion or tric#ery bygovernment agents can be relevant factors in the totality of circumstances that

bear on the involuntariness of a confession. - romise or decetion might create

ressure to confess or might wea#en the resistance of the susect.

4. In Spano, the (ourt relied in art on reresentations to the effect that the

susect’s telehone call had gotten the officer in trouble, and that his 3ob was in 3eoardy as a result. This decetive effort at gaining symathy added to the other



ressures brought to bear on ano and contributed to a finding that his

confession was involuntary.

8. Rule& The fact that a romise was used to secure a confession does not

necessarily render a confession involuntary. ven if the government fails to #ee

a romise, a confession that results will not always be coerced. The same is truefor tric#ery. - statement roduced by decetions, misreresentations, or other

dishonest loys is not automatically inadmissible under the ue rocess (lause.

9. Brady v. United States %17GA&8 In dicta, the (ourt indicated that even a mild

romise of leniency may render a confession involuntary because of its

otentially coercive effect.

* . The 8 2uestion is whether a articular romise or tric# engendered ressure that overbore the will of the susect. - romise or tric# is

ertinent only insofar as it )forces* a confession from a susect. If it

merely induces the susect to sea# or deceives him into deciding to

sea#, the ue rocess (lause is not offended.

f. $olorado v. $onnelly %17E6&8 (onnelly initiated contact with the olice when he aroached an

officer on the street, and without any romting, stated that he had murdered someone and wanted

to tal# about it. The officer gave (onnelly his Miranda rights and as#ed him several "uestions.

(onnelly confessed to murdering a young girl in 17E, and told the officer the exact location ofthe murder. To the officer, it seemed as though (onnelly was acting rationally. -fter being held

overnight in 3ail, (onnelly became visibly disoriented, and later stated that he was following the

voice of 9od when he confessed. /e moved to suress his confession, arguing that his sychosis

motivated his confession, rendering it involuntary.

. #oldin!& The (ourt ruled that the admission of the confession did not violate the uerocess (lause, because it was not the roduct of overreaching by the olice.

3. Rule& (oercive olice activity is a necessary redicate to the finding that a

confession is not voluntary within the meaning of the ue rocess (lause.

* . 2hile mental condition is surely relevant to an individual’s

suscetibility to olice coercion, mere examination of the confessant’s

state of mind can never conclude the due rocess in"uiry.4. Rule& ue rocess is not violated unless the source of coercion is a state agent .

The most outrageous behavior by a rivate arty see#ing to secure evidence

against a defendant does not ma#e the evidence inadmissible under the ue

rocess (lause.

* . If the defense can rove that the rivate arty was acting at the behestof the olice or the rosecution as an agent, then the normal rule would

aly.

/. T#E MIRANDA R ULE

* . The $our Miranda 'arnin!s

. ;ou have the right to remain silent.

. -nything you say can and will be used against you in a court of law.

. ;ou have the right to an attorney resent during any "uestioning.

/ . If you cannot afford an attorney, one will be aointed to reresent you.

B . The Effect of Miranda

. -fter Miranda was decided, there was a huge firestorm as to whether this was going to

ma#e any difference in the oeration of the criminal 3ustice system. There is still some



debate about how much difference it has made, but most scholars agree that the decision

has made virtually no imact at all.

. -lmost no defendants actually invo#e their right to have counsel aointed.

3. ven if the defendant says she wants an attorney resent during "uestioning, the

olice rarely immediately call a ublic defender and as# them to come to the

station. . 2hy is it that so few defendants actually invo#e their Miranda rights0

3. >any defendants tal# because they thin# they can outsmart the olice and tal#their way out of trouble.

4. If a olice station is an inherently coercive environment, giving the warnings

will not decrease the coerciveness of that situation. The warnings really do not

lessen the coerciveness, and defendants still feel intimidated and isolated in asituation where they fell comelled to tal#.

8. eole are focused on trying to figure out a way of getting out of the situation.

They do a cost!benefit analysis, and thin# that tal#ing to the olice might get

them out.

9. olice are good at giving warnings in such a way that the susect won’t actuallyunderstand what is contained therein. The significance of the warnings is nevercommunicated to them, and they are usually in a state of shoc#.

c. Miranda v. *ri)ona %1766&8 The (ourt secifically dealt with the admissibility of statements made

during custodial interrogation under the 5th -mendment rivilege not to be comelled to

incriminate oneself.

. Rationale& Because co!pulsion is inherent in custodial interrogation settings,

statements made in these settings cannot truly be the roduct of free choice. The use ofstatements to obtain convictions would violate the constitutional co!!and against self+

incri!ination.

3. Pro3hylactic Rule& 'nless ade"uate rotective devices are emloyed to disel

the comulsion inherent in custodial settings, statements obtained from susects

are not admissible at trial. Thus, the various )rocedural safeguards* rescribed by Miranda are intended to be rotective devices. If they are emloyed,

comulsion is diselled and any statement obtained is then admissible.

4. This is interrelated with the fact that the court doesn’t #now what goes on

behind closed doors ! ossibility of hysical or sychological coercion that thevoluntariness test cannot sort out.

* . -gain, 'hoff thin#s that videotaing would be the best solution to this

roblem.

. Note& If a court concludes that there was a Miranda violation, this does not necessarily

mean that evidence obtained will be excluded. - number of lower courts don’t use the

exclusionary rule where there has been a Miranda violation and nothing else %i.e., no)fruit of the oisonous tree* exclusion.&.

3. The exclusionary rule only comes into lay when there has been a

constitutional violation. 'ntil Dic-erson %below&, the argument was that

Miranda was simly a rohylactic rule that was not constitutionally mandated.

4. Com3are& If a statement is obtained in violation of the ue rocess (lause

%above&, all )fruit of the oisonous tree* will be excluded. This is an im3ortant

distinction.

d. %ew 7or" v. @uarles %17E4& ! The Pu/lic "afety Exce3tion



. Exce3tion to Miranda& ven though a susect is in custody, if officers wish to as#

"uestions reasonably romted by a concern for ublic safety, they do not have to recite

the Miranda warnings or secure a waiver of the susect’s rights. -ny statements made in

resonse to such "uestions are not sub3ect to exclusion under Miranda.

3. Rationale& The delivery of Miranda warnings in ublic safety situations coulddeter a susect from sea#ing, thereby frustrating the interest in ensuring ublic

safety.

. O/ecti0e (reasona/le officer) standard& -n officer’s sub3ective motivation is

irrelevant to the alicability of the ublic safety excetion. The excetion may aly

even though it is not shown that the officer was in fact motivated by a concern for the ublic safety. o long as the "uestions are )reasonably romted* by a ublic safety

concern, the excetion is alicable. -arently, the relevant ,uestion is whether a

reasonable officer could have been motivated to as# "uestions in order to rotect the

ublic safety.

. Nature and Ma!nitude of the Pu/lic "afety Interest& erious ris#s to the life or healthof one or more individuals are certainly sufficient. 2hether other sorts of otential harm

suffice and what those harms might be are unanswered "uestions.

3. In fact, it is unclear why the (ourt chose 1uarles to create this excetion. In

1uarles, the olice claimed they were concerned about a gun in the ar#ing lotof a grocery store. It was late at night and the store was virtually emty.

/ . Immediate and $uture Threats to Pu/lic "afety& If the threat of harm is immediate and

can be revented only by swift action, the excetion is clearly alicable. If there is no

need to act "uic#ly because the threatened harm will not occur until some future time, it

is uncertain whether the excetion alies. -rguably, the rationale behind the excetionsuorts alication of the excetion even when the threatened harm is not immediate.

/ . The excetion only clearly alies to a failure to give Miranda warnings in the first lace,

not in situations where the defendant has already invo#ed his rights. @urthermore, in

cases of actual co!pulsion, the excetion has no alicability. The rivilege against

comulsory self!incrimination commands in absolute terms that )no erson shall becomelled to be a witness against himself.*

/ . 'here the 3rosecution ar!ues that the exce3tion to 3rotect the defendant himself ,

courts have slit on the issue.

3. ne court has extended the excetion because of concerns about rotecting the

individual defendant.

4. ther courts have refused to extend the excetion, arguing that the defendant isthe erson in the best osition to choose whether he wants hel after being read

his Miranda rights.

8. ;ou need to /alance the individual’s interest against self!incrimination against

the individual’s safety.

e. Dic"erson v. United States %AAA&8 In this case, the (ourt stated that Miranda is constitutionally

based , but did not suggest the rationale behind that conclusion. Thus, the (ourt held that (ongresscannot legislatively suercede Miranda given its constitutional basis. The (ourt also refused to

overrule Miranda desite arguments that it has not changed much in the criminal 3ustice system.

/. CU"TODH

a. Miranda a33lies to all crimes& - susect is entitled to the rocedural safeguards of Miranda,

regardless of the nature or severity of the offense of which he is susected or for which he was

arrested. See $er-e*er v. Mc)arty.

b. Ber"e!er v. Mc$arty %17E4&8 The defendant was ulled over after an officer saw him swerving inand out of traffic in his car. The officer noticed that he was having trouble standing, and gave him



a field sobriety test. The defendant did not ass, he made some incriminating statements about

smo#ing weed and drin#ing, and the officer laced him under arrest and too# him to the station

house. -t no oint were Miranda warnings given to the defendant.

. #oldin!& The incriminating statements made by the defendant were roerly admitted at

trial because the interrogation was not custodial.

3. Custody Rule& (ustody re"uires a significant derivation of hysical freedom.>oreover, a erson is in custody only if she is sub3ected to either for!al arrest

or its functional e,uivalent .

* . - lesser infringement on a susect’s liberty, such as a mere traffic sto

or &erry#tye detention does not constitute custody.

4. - formal arrest occurs when a erson is exlicitly told that she is being lacedunder arrest. The functional e2ui0alent of a formal arrest occurs when )a

susect’s freedom of action is curtailed to a degree associated with a formal

arrest* or when he is sub3ected to restraints comarable to those associated with

a formal arrest. This determination must be made from the standoint of )a

reasona/le 3erson in the sus3ectFs 3osition*.

c. Stansbury v. $alifornia %1774& Rule& -n officer’s sub3ective and undisclosed view concerning

whether the erson being interrogated is a susect is irrelevant to the assessment of whether the erson is in custody. Ci#ewise, the sub3ective belief of the susect has no lace in the analysis of

whether is in custody.

d. Oregon v. Mathiason %17GG&8 2hen a susect comes voluntarily to the olice station in resonseto an invitation by the olice, he will not necessarily be in custody.

. $acts& The defendant, a arolee, came to the olice station after the olice as#ed him %via

hone& to come down so that they could )discuss something.* 2hen the defendant came

down to the station, he was told that he was no under arrest. Cater, the officer falsely told

the susect that his fingerrints had been found at a burglary sceneJ the defendant thenconfessed.

. #oldin!& The (ourt held that Miranda warnings were not re"uired because the susect

had come to the station voluntarily, was informed that he was not under arrest, and had

not been restricted in his freedom to deart.

e. Hayes v. 1lorida N Dunaway v. %ew 7or" suggest that if the susect is brought to the olice

station by officers without his consent, he will be in custody within the meaning of $er-e*er .

/. INTERRO+ATION

* . Introduction& The Miranda rotections are triggered by )interrogation* of a susect, defined as

)"uestioning initiated by law enforcement officers.* tatements volunteered by the defendant with

no such "uestioning are not covered by the Miranda doctrine.

b. -hode sland v. nnis %17EA&8 Two officers, while transorting the susect to the olice station,

engaged in a conversation in which they discussed the comelling need to locate a shotgun believed to have been the weaon used by the susect in a recent robbery=murder. <eferring to a

nearby school, one officer exressed concern that one of the children might find the weaon and

hurt himself. The susect interruted the officers’ conversation and stated that he would showthem where the gun was located, which he roceeded to do.

. #oldin!& The (ourt held that the defendant’s statement was outside the scoe of Miranda because the officers could not reasonably have exected their conversation to

elicit an incriminating statement from Innis.

. Rule& Interrogation includes )any words or actions on the art of the olice %other than

those normally attendant to arrest and custody& that the olice should #now are

reasonably li#ely to elicit an incriminating resonse from the susect.* This, too, is anobective standard .



3. Rele0ant $actors in this In2uiry&

* . The officer#s intent to elicit an incriminating statement ! though

imortant, this factor is not disositive. -n officer’s intent to elicit does

not necessarily establish that the officer should have #nown that her

actions were reasonably li#ely to succeed.

B . olice "nowledge of the unusual susceptibility of a suspect to a articular form of ersuasion.

. Individual traits that officers neither #now of nor should #now

of are not relevant factor in this consideration.

$ . The probability that the olice conduct will lead to an incriminating

statement by the susect.

c. llinois v. 5er"ins %177A&8 -n undercover agent was osing as a fellow risoner in the defendant’scell in order to elicit an incriminating statement, and this loy did get the defendant to ma#e

incriminating statements.

. #oldin!& The Miranda rotections did not aly, because the defendant did not erceive

himself as being under interrogation, and thus, did not feel the coercive ressures that

trigger the rotections.

3. The essential ingredients of a )olice dominated atmoshere* and comulsionare not resent when an incarcerated erson sea#s freely to someone that he

believes to be a fellow inmate.

4. Rule& Miranda safeguards are triggered only when )interrogation* is conducted

by a state agent who is "nown to the suspect to be a state agent .

. Note& This does :T mean that olice agents are free to do whatever they want without

concern for the (onstitution. There are still other constitutional concerns that affectactivities by undercover agents osing as fellow inmates !

3. th Amendment& If the defendant had already been charged with a crime, this

would be a violation of the defendant’s 6th -mendment right to counsel. %ee

Below&

4. Due Process& If an undercover state agent uses actual coercion to obtain astatement from a susect, that statement is barred by both the ue rocess

(lause and the rivilege against comulsory self!incrimination. See !rizona v.

Ful*inante %holding that the susect’s incriminating statement was involuntary,

as he felt comelled to tal# out of fear for his own hysical safety&.

d. Duc"worth v. 0agen %17E7& ! $orm of Miranda 'arnin!s

. $acts& - stationhouse officer told the defendant that he had a right to sea# with anattorney before and during "uestioning, and that he had the right to the advice and

resence of a lawyer even if he could not afford to hire one. <eading from a form, the

officer added, )we have no way of giving a lawyer, but one will be aointed for you, if

you wish, if and when you go to court.*

. #oldin!& In a 5!4 oinion, a ma3ority of the (ourt held that this was a sufficient warningunder Miranda. ) Miranda does not re"uire that attorneys be roducible on call, but only

that the susect be informed that he has the right to an attorney before and during

"uestioning and that an attorney would be aointed for him if he could not afford one.*

3. 'hoff thin#s this is a troubling result that undercuts the 4 th Miranda warning

re"uirement. /owever, this is a roduct of the (ourt’s underlying disli#e for Miranda in the first lace.

<. 'AI,ER



* . Introduction& Miranda held that if a statement is obtained from a susect during custodial

interrogation following rovision of the re"uired warnings, the statement may be admitted into

evidence only if the rosecution demonstrates that the susect ="nowingly6 intelligently6 and

voluntarily> waived his rivilege against self!incrimination or the right to counsel.

. Rule& - valid waiver will not be resumed from the silence of the accused after thewarnings are given.

. (8no.in! and Intelli!ent)& The focus is on whether the waiver was made with an

awareness of the rights being abandoned and the conse"uences of abandoning those

rights.

. (,oluntary)& The waiver must be the roduct of a free and deliberate choice on the art

of the susect, rather than the result of intimidation, coercion, or decetion.

b. %orth $arolina v. Butler %17G7&8 Butler was administered the Miranda warnings and resonded

that he understood these rights. /e refused to sign a written waiver form resented to him, but

nevertheless agreed to tal# about the robbery he was being held for and roceeded to admit

articiation in it. 2hen his statement was offered against him at trial, Butler claimed that thestatement could not be used, as he had not exressly waived his rights.

. #oldin!& - waiver may be found in the absence of an exress statement if the susect’s

words and actions imlicitly constitute a decision to forego his rights.

3. Rule& The defendant’s silence couled with an understanding of his rights and a

course of conduct indicating waiver may suffice. /ere, the burden is on the

rosecution to rove that the defendant imliedly waived his rights.

* . >ere silence on the art of the defendant is :T :'9/ toeffectuate a valid waiver.

4. The (ourt directed trial 3udges to loo# at )the articular facts and circumstances

of the case, including the bac#ground, exerience, and conduct of the accused.*

'otality of the circu!stances.

. 7rennanFs Dissent& /e argued that it would be easier if we 3ust re"uired an exress

waiver in all cases. The susect should have to sign a written waiver or give an oral

statement that he is, in fact, waiving his rights. This would eliminate unnecessarylitigation on the issue.

c. $olorado v. Spring %17EG&8 ring was arrested by federal agents in >issouri on a firearms

charge, read his Miranda warnings, and signed a written waiver form. The focus of theinterrogation changed from the firearms transaction to an unresolved murder in (olorado to which

ring ultimately confessed. ring moved to suress the confession, arguing that he could not

have #nowingly waived his right to remain silent when he was unaware that he would be

"uestioned about an unrelated crime.

. #oldin!& The (ourt re3ected ring’s defense, holding that the susect need not be awarein advance of all the ossible sub3ects of the interrogation in order to ma#e a valid waiver

of his rights.

3. Note& The information withheld by the olice might go to the )wisdom* of the

waiver, but not to )its essentially voluntary and #nowing nature.*

. MarshallFs Dissent& >arshall argued that the defendant clearly would not have tal#ed to

the olice without a lawyer if he reali$ed that they intended to "uestion him about amurder charge. -s such, the olice were essentially tric#ing him into confessing.

3. MaorityFs Res3onse& The susect may be surrised at the change in

"uestioning, but as long as he #nows that he can cut off "uestioning whenever he

wants, his rights are not violated. In this case, the olice would have had to

cease "uestioning if the defendant told them that he did not want to discuss the(olorado murder.



4. Rule& @ailure to inform the susect about all of the crimes he is going to be

"uestioned about does not amount to olice tric#ery.

. Note& :ormally, roof that a susect was aware of the minimum facts needed for a

#nowing waiver is sulied by the recitation of ade"uate Miranda warnings, as this is all

that the susect must be aware of. In a case where a susect could not understand nglishor had mental imairments that recluded a basic understanding of the content of the

warnings, a waiver should robably be considered insufficiently #nowing. ven if anofficer was not aware of the susect’s limitations, the actual lac# of the minimal

#nowledge needed should render the susect’s waiver invalid.

d. Moran v. Burbine %17E6&8 The olice failed to inform the susect that an attorney had beenretained by a relative and was trying to see him at the olice station. The olice had assured the

attorney that the susect would not be "uestioned until the next day, but roceeded to interrogate

him.

. #oldin!& The olice’s actions did not undercut the validity of the susect’s written

waiver of his rights.

3. )vents occurring outside the resence of the susect, and entirely un#nown to

him, surely can have no bearing on the caacity to comrehend and #nowingly

relin"uish a constitutional right.*

4. nce it is determined that a susect’s decision to waive his rights was not

coerced, that he #new he could invo#e his rights thereafter at any time, and thathe was aware of the state’s intention to use his statements against him at trial,

this comletes the analysis and the waiver is valid as a matter of law.

8. 8 8 There is a distinction between official olice tric#ery and the failure to

disclose. This case roves that a failure to disclose information to the susect

will not undermine the validity of the susect’s waiver. /owever, olice tric#erymight.

. Note& - number of state courts have re3ected Moran, and have disallowed confessions

where the olice deceived the susect’s attorney.

e. $onnecticut v. Barrett Rule& To validly waive Miranda’s rotections, a susect needs no

#nowledge other than the matters contained in the basic Miranda warnings to )#nowingly* waivehis rights. - susects ignorance of other matters, including the )full conse"uences of hisdecisions,* will not render his waiver insufficiently #nowing.

. Note& The fact that a susect’s decision to forego Miranda rotections is unwise, contrary

to the susect’s best interests, or illogical is )irrelevant* and does not render the waiver

invalid.

<. IN,OCATION O$ M -*%D* R I+#T"& @T# AMENDMENT IN,OCATION"

* . Introduction& Miranda mandates that )if an individual Ounder interrogationP indicates in anymanner, at any time rior to or during "uestioning, that he wishes to maintain silent , custodial

interrogation must cease.* Ci#ewise, if Ouon being administered the Miranda warningsP the

susect states that he wants the assistance of counsel , then interrogation must cease until an

attorney is resent.

IN,OCATION O$ T#E RI+#T TO "ILENCE

b. Michigan v. Mosley %17G5&8 >osley was arrested for robbery, read his Miranda rights, anddeclined "uestioning by the olice. Two hours later, another officer gave him a fresh set of

Miranda warnings and >osley agreed to tal# about an unrelated murder.

. #oldin!& The defendant’s right to cut off "uestioning had been scrupulously honored ,

because the olice had immediately ceased "uestioning when he exercised his right to

remain silent. olice only resumed "uestioning after a significant assage of time by a



different officer about a different crime in a different location in the 3ail with a fresh set of

warnings.

. Rule& If the olice )scruulously honor* the invocation of the right to remain silent and

then obtain a valid waiver, statements made in resonse to custodial interrogation will be

admissible.

. Proof& If the rosecution see#s to introduce a statement from a susect who has initiallyinvo#ed his right to remain silent, it must be demonstrated that8

3. /is right to remain silent, once invo#ed, was scrupulously honored , -:

4. - #nowing, intelligent, and voluntary waiver of his invocation subse"uently

occurred.

/ . 2here it is shown that the olice failed to cease interrogation immediately, or engaged in

reeated efforts to get the susect to change his mind, his right to cut off "uestioning will be considered not to have been honored, and his resulting statements will be deemed

inadmissible.

/ . This is a very facts3ecific in2uiry. -lthough no one factor is determinative, the courts

consider a number of factors, including8

3. The amount of time that has elased between interrogations.

4. The rovision of a fresh set of warnings.

8. The sub3ect matter and scoe of the second interrogation.

9. The officer’s $ealousness in attemting to ursue the "uestioning after the

susect has invo#ed his right to silence.

/ . 'hiteFs Concurrence& 2hite argued that the focus ought to be on the voluntariness of

the defendant’s second waiver. If that waiver is voluntary, there should be no further

in"uiry into whether his rights were scruulously honored.

IN,OCATION O$ T#E RI+#T TO COUN"EL

c. 0dwards v. *ri)ona %17E1&8 olice officers "uestioning the defendant ceased interrogation after he

asserted his right to counsel. /e was ta#en to a 3ail cell where, the following morning, two otherdetectives sought to tal# to him, but he refused. - guard then told dwards that he )had to* tal# to

the detectives, and too# him to meet them. The detectives read dwards his rights again, and then

layed a taed statement of an alleged accomlice who had imlicated him in a crime. /e then

indicated a willingness to tal# to the detectives, and later made incriminating statements.

. #oldin!& The (ourt concluded that the laying of the tae constituted the functionale"uivalent of interrogation under Innis, and ruled that his incriminating statement was

inadmissible.

. Rule& -fter the susect invo#es his right to counsel, the olice can only resume

interrogation in the absence of counsel if the susect himself initiates such

communication with the olice.

. Proof& If the rosecution see#s to introduce a statement from a susect who has invo#ed

his right to counsel, it must be demonstrated that8

3. (ounsel was made available to him, <

4. The susect himself initiated the further communication, -:

8. That a #nowing, intelligent, and voluntary waiver subse"uently occurred.

/ . If the authorities initiate the communications, any statements that are the roduct of the

custodial interrogation will be deemed inadmissible. ven if the susect gives what



would otherwise "ualify as a valid waiver in such situations, the waiver will be resumed

invalid.

d. Oregon v. Bradshaw %17EF& Rule& Initiation by a susect occurs only if the susect demonstrates

a desire to oen u a more generali$ed discussion relating directly or indirectly to the

investigation.

. Initiation occurs when a susect evinces a willingness and a desire for a generali$eddiscussion about the investigation.

. In $radsha%, the defendant had invo#ed his right to counsel and later aroached the

officers, as#ing )what’s going to haen to me now0* The (ourt held that this was an

initiation on the art of the defendant such that the olice were then free to see# a waiver

of the defendant’s right to counsel.

e. Davis v. United States %1774& Rule& - susect’s re"uest for counsel must be clear and

una!biguous.

. Rule& The susect’s ambiguous or e"uivocal reference to an attorney has no legal effect,

and oses no additional imediments to custodial interrogation by the olice.

. Rule& olice officers are under no affirmative obligation to clarify an ambiguous re"uest

for counsel, and do not have to sto "uestioning where such )re"uest* is unclear.

. O/ecti0e "tandard& - susect must articulate his desire to have counsel resent withsufficient clarity that a reasonable olice officer in the circumstances would understand

the statement to be a re"uest for an attorney.

f. Minnic" v. Mississippi %177A& Rule& Interrogation may continue only if an attorney is present or if

the susect initiates further communication with the authorities.

. Rule& )resence* means resence at the interrogation. The fact that a susect has

consulted with an attorney following a re"uest for counsel is not a basis for ermitting theauthorities to initiate further interrogation. nly the resence of counsel at the subse"uent

interrogation will suffice.

. Rationale& - consultation with counsel is not enough to remove the ressures inherent to

custodial interrogation. )The need for counsel to rotect the 5 th -mendment rivilege

comrehends not only a right to consult with counsel rior to "uestioning, but also tohave counsel resent during any "uestioning if the defendant so desires.*

g. S!ith v. llinois Rule& nce a susect invo#es his right to counsel with sufficient clarity under

Davis, his ost!re"uest resonses to further interrogation may not be used to cast retrosective

doubt on the clarity of the initial re"uest.

h. *ri)ona v. -oberson Rule& 2hen the right to counsel is asserted an officials initiate furthercommunication with the susect, the fact that the later interrogation was conducted by a different

officer is irrelevant. The fact that the interrogating officer was unaware of the susect’s re"uest for

counsel is also irrelevant.

. Rule& fficials have the resonsibility to insure that they learn of re"uests for counsel

before interrogating a susect.

. Rule& The fact that the toic of a later interrogation is a different offense from the onethat was the sub3ect of an earlier interrogation usually does not matter. 'nless the susect

ma#es it clear that her desire for counsel is )offense secific,* the presu!ption is that

she desires assistance of counsel for all custodial interrogations, regardless of the

secific offense.

i. 1are v. Michael $. Rule& - susect’s re"uest to have the assistance or resence of any individualother than an attorney does not affect this issue. It raises no additional safeguards against custodial

interrogation and does not automatically constitute an invocation of the right to remain silent.

<. CON$E""ION" AND T#E R I+#T TO COUN"EL& T# AMENDMENT PROTECTION"



* . Introduction& The 6th -mendment guarantees the accused the right of )assistance of counsel in his

defense* -lthough this guarantee was originally a right to assistance at trial, it has been extended

to certain retrial stages of the criminal rocess.

. Pur3ose of the Ri!ht to Assistance of Counsel& The -merican criminal 3ustice system is

adversarial in nature. @undamental fairness re"uires, among other things, rough e"uality between the two sides. -ccordingly, the assistance of counsel is indisensable to the fair

administration of the adversary system, because counsel is essential to ensuring thise"uality. 2ithout the assistance of counsel, the state could use its suerior strength to

overower to accused.

. Note& -lways loo# first to see whether it’s a re!indictment or ost!indictment situation.The rules below only aly in ost!indictment situations.

b. Massiah v. United States %1764&8 The rosecution admitted into evidence incriminating statements

that >assiah had made to a co!defendant, (olson. 'nbe#nownst to >assiah, (olson was

cooerating with the government and had initiated the conversation at the re"uest of federal

agents, who recorded the conversation. The conversation occurred after both men had beenindicted, retained counsel, led guilty, and were released on bail.

. #oldin!& nce adversary 3udicial roceedings have commenced against an individual,

governmental efforts to )deliberately elicit * statements from him in the absence of his

attorney violate the 6th -mendment, whether done intentionally or surretitiously.

3. (Deli/erately Elicit)& The government agent must actively elicit incriminatingstatements. The right to counsel does not aly unless a government agent ta#es

some action, beyond !erely listening , that was designed deliberately to elicit

incriminating remar#s. The mere assive recetion of information cannot "ualify

as a deliberate elicitation of incriminating statements.

4. -ffirmative, direct "uestioning will "ualify as deliberate elicitation, but is notnecessary. >erely engaging in conversation with an accused or having some

conversations with an accused satisfies the deliberate elicitation re"uirement. In

addition, the fact that the accused was first to raise the sub3ect of the crime under

investigation, or who was the one who instigated the meeting with thegovernment is irrelevant. See Maine v. Moulton.

. Rationale& The right to assistance of counsel at trial would be rendered meaningless if

the rosecution could obtain incriminating statements from an uncounseled defendant

rior to trial.

3. -fter the defendant has been indicted , if the government wants to interrogate the

defendant, it must go through the defendant’s retained counsel.

4. Com3are Hoffa8 In Ho//a, the susect was wiretaed by the government, and

the (ourt allowed this evidence as legitimate. The difference in that case was

that the government had not yet formally filed charges against the susect,

whereas in Massiah2 the defendant had already been indicted, and the adversarysystem had been ut into lay.

c. Brewer v. ;illia!s %17GG&8 2illiams, a susect in a child murder in es >oines, surrendered to

the olice in avenort, following the issuance of a warrant for his arrest. /e so#e by telehoneto an attorney in es >oines, and was advised not to ma#e any statements to the olice. -fter

2illiams was boo#ed, arraigned, and advised of his Miranda rights, he was transorted to es>oines, 16A miles away. The olice officers who escorted him exressly romised his attorney

that he would not be "uestioned in route. uring the tri, however, one of the officers gave a

)(hristian burial seech* that romted 2illiams to lead the olice to the victim and ma#e other

incriminating statements.



. #oldin!& 2illiams had been denied his 6th -mendment right to counsel when, after the

initiation of 3udicial roceedings %arraignment&, the olice deliberately elicited

information from him without affording him the oortunity to consult with his attorney.

d. United States v. Henry %17EA&8 The @BI arranged to have :ichols, a aid informant, laced in

/enry’s cell as a cellmate. -lthough the agents instructed :ichols not to "uestion /enry about hiscrime, he was told to reort incriminating statements to them %for ayment&, which he did.

. #oldin!& The government had intentionally set u this situation li#ely to induce /enry to

ma#e incriminating statements, and thus, violated the 6 th -mendment.

3. 8& :ichols was determined to be more than 3ust a assive listener, and he was

aid for the information that he gave to the @BI. In essence, he was no more than

a aid agent of the government. The fact that he was aid is a factor that courtstend to credit heavily in ma#ing the determination.

4. Rule& To trigger the right to counsel, the individual engaging in the elicitation

must be wor#ing for %or as an agent of& the government. The individual does not

have to be an official emloyee, nor does she have to be comensated for herwor#.

. Note& The 6th -mendment does not aly to situations in which an informant goes to the

olice on his own recogni$ance after learning incriminating information from a fellowinmate.

e. Kuhl!an v. ;ilson %17E6&8 -n informant was laced in the defendant’s cell, but did nothing to

stimulate the conversation in which the defendant made incriminating statements.

. #oldin!& Because the informant was merely a ) passive listener ,* the government did notdeliberately elicit information from the defendant. Thus, there was no 0iolation of the

defendantFs th Amendment ri!ht to counsel.

. Note& The defendant cannot ma#e a valid 6th -mendment violation argument simly by

showing that an informant, either through rior arrangement or voluntarily, reorted his

statements to the olice. <ather, it must be shown that the olice and the informant too#deliberate action %beyond merely establishing a assive )listening ost*& that was

designed to elicit incriminating statements from the defendant.

<. IDENTI$ICATION AND T#E R I+#T TO COUN"EL

* . Introduction& yewitness fallibility and false identifications account for most innocent

convictions as a result of mista6en identifications. -ccordingly, the defendant’s 6th -mendmentright to counsel attaches to such rocedures, as this is considered a )critical stage* in the trial

rearation. The defendant is in no osition to rotect herself at this stage in the adversarial

rocess and needs counsel to aid the defendant and be a )neutral observer* in the identification

rocess.

. /umans are not erfect recorders of information and events.

. (ircumstances surrounding the crime itself have an effect on witnesses, as they may have been focused on something else at the time of the event, rather than the erson actually

committing the crime.

. There is also a roblem with racial rofiling, because if an eyewitness sees a erson of a

articular race commit the crime, it will be easier to ic# any erson of that race out of a

line!u, regardless of whether it is the actual eretrator of the crime.

B . (ourts have struggled with a number of ways in which to deal with the roblems associated witheyewitness identifications !

. @or a while, the courts relied on cross!examination to reveal roblematic identifications.



3. Pro/lem& The research conducted on this issue suggests that it is difficult to

effectively cross!examine a witness who honestly, but mista#enly, believes they

have ic#ed the right erson out of a line!u.

. It has become more common for exert witnesses to testify as to the circumstances that

might affect the accuracy of an identification. This is used as a basis to try to educate layindividuals on the roblems inherent with this rocess.

3. Pro/lem& ?ury researchers have found that lay eole, and indeed many 3udges,

lace a high degree of confidence in eyewitness identifications, even where such

confidence may be mislaced.

. <esearch also shows that 3urors lace tremendous weight on an eyewitness who states

with confidence that they believe the defendant is the eretrator of the crime.

3. The more ositive the eyewitness is in the identification, the more li#ely it is

that the members of the 3ury with believe him.

4. Pro/lem& <esearch also shows that there is virtually no correlation between the

confidence that the eyewitness asserts in the identification and the accuracy of

that identification.

/ . ome courts have tried to use tailored 3ury instructions to inform 3urors there might bereasons to be susicious of an eyewitness identification.

3. Pro/lem& ?urors often discount 3ury instructions as given to them.

/ . The End "olution& Because of these systemic roblems, the (ourt in Wade held that we

must rotect against sub3ectivity in the identification rocess by roviding defendants

with counsel during a live line!u.

$ . There are constitutional sources to rotect the susect in the identification rocess !

. 6th -mendment right to counsel ! The defendant has the right to have counsel resent atlineus after the initiation of formal criminal roceedings.

. ue rocess ! ome identifications may be so unnecessarily suggestive and conducive to

mista#en identifications that the defendant is denied due rocess of law.

d. ;ade v. United States %176G&8 The @BI conducted a line!u without notifying the defendant’sattorney. The defendant was ic#ed out of this line!u, and later comlained that his lawyer was

not resent when the line!u was conducted.

. #oldin!& The rocedure was in violation of the 6th -mendment rights of the defendant, asthis is considered a )critical stage* of the adversarial rocess in which the defendant

needs effective assistance of counsel.

. The (ourt analy$ed this case by loo#ing at it both under the 5th and 6th -mendments.

3. 'nder the 5th -mendment, the (ourt held that the line!u did not violate the

defendant’s right against self!incrimination.

* . The 5th -mendment does not rotect against the use of some hysicalcharacteristics of the defendant. Q=- Sch*er0er where the (ourt held

that the olice could draw the defendant’s blood to obtain evidence.

B . The hysical characteristics of the defendant are allowed, because they

are not testimonial in nature. uch characteristics are more in line with

something that the defendant willingly exoses to the ublic.

$ . Rule& The contents of a defendant’s statement are rotected by the 5 th -mendment, but not the defendant’s voice.

4. 'nder the 6th -mendment, the (ourt held that the defendant’s right to assistance

of counsel was violated because counsel was not resent during the live line!u.



* . The (ourt essentially e"uated a re!trial identification roceeding with

the defendant’ right to assistance of counsel at trial. If we allow live

line!u identification rocedures and the defendant’s lawyer is not

resent, there is no effective way for the lawyer to undue that whichwas done before trial.

B . -s this is a )critical stage,* the defendant is entitled to the resence and

assistance of counsel. ven if the lawyer does not actively articiatein the line!u rocedure, he can assively observe what occurs and later

use such evidence at trial in defense of the defendant.

e. Kirby v. llinois %17G& Rule& (ounsel is not re,uired at a pre+indict!ent line+up.

. -ny re!trial confrontation is still scrutini$ed under the 5th and 14th -mendments, whichforbid a line!u that is unnecessarily suggestive and conducive to irrearable mista#es.

. Note& 'hoff thin#s this is dumb, because suggestive rocedures in line!us are 3ust as

roblematic in re!indictment rocedures. It oses the same ris# to the defendant as in a

ost!indictment line!u in the long run.

3. -fter this line of cases, the olice will simly delay the charging rocess and doa line!u before the indictment.

4. 7etter "ol0ency& 'se the ?’s set of guidelines and rocedures to be used by

law enforcement officers. These guidelines are aimed at ma#ing rocedures

more reliable and at minimi$ing the dangers of suggestibility that occur when

oor olice rocedures are emloyed. (urrently, :ew ?ersey has adoted theseguidelines and other states are considering them.

. 7rennanFs Dissent8 The witness is not li#ely to go bac# on his revious identification

made during a line!u later at trial. If suggestive rocedures are used by the olice at this

stage, this may cause irrearable harm to the defendant in the long!run.

f. United States v. *sh %17GF& Rule& (ounsel is not re"uired at a hotograhic array identification.

. The (ourt stated that a retrial dislay of hotograhs for the urose of identifying the

accused does not constitute a =critical stage> of the rosecution at which the accused is

constitutionally entitled to the resence of counsel. . Rationale&

3. There is no oortunity to ta#e advantage of the accused during a hoto array, as

the defendant is not resent at this rocess. Because the defendant is not resent,

the attorney does not need to be resent either.

4. There is less difficulty in reconstructing what went on at a hotograhic array, asthe evidence is readily available for viewing by the defense attorney.

8. 'hoff thin#s this is more a roblem of exense, as it is costly to rovide

counsel for all line!us.

. 7rennanFs Dissent&

3. It does not matter that the defendant is not resent when a hoto array is

conductedJ it only matters that his interests are infringed uon.

4. There is much more room for suggestibility with hotograhs than with liveline!us.

8. 2e need counsel resent at such line!us to ensure that the rocess is not overly

suggestive or violative of the defendant’s rights. Because no one is resent at a

hoto array, there will be no one to comlain about suggestive rocedures used

by the olice.



/ . Reality& ven though live line!us are more accurate than hoto arrays, because such

line!us re"uire the resence of the defendant’s attorney, olice are more li#ely to

conduct a hoto array.

2 . The De3artment of Gustice Pro3osed +uidelines

. The erson conducting the line!u should not #now the identity of the actual susect,

because if the erson #nows the susect, it is more li#ely that he will give off suggestivesignals.

. The eyewitness should be told that the susect might, or might not, be resent in the line!

u. Thus, the eyewitness should not feel comelled to ma#e an identification if she

doesn’t actually see the eretrator.

3. ouble!blind line!us8 (onduct one line!u with the susect and one withoutand see if the eyewitness can ic# out the right erson.

4. <esearch shows that the witness will ic# out the erson that loo#s )most* li#e

the eretrator. This erson may or may not be the actual eretrator. If the

witness feels ressured to ic# someone out, this is the ris# that is run.

. The susect should not stand out in any way at any line!u. There should be absolutely

not distracters that oint!out this erson to the eyewitness.

/ . btain a confidence statement at the time of the identification attesting to how confidentthe witness is in her initial identification.

H . "u33ressin! the InCourt Identification

. -lthough the out!of!court identification may be suressed on account of constitutional

violations of the 6th -mendment, there is a separate issue as to whether the witness will

be allowed to ma#e an in!court identification of the defendant.

. The (ourt will allow the witness to ma#e an in!court identification if there is an

independent source for such identification.

. 'hiteFs Dissent in ;ade& It will be almost imossible for the rosecution to show that

there is an indeendent source, as research shows that witnesses have a difficult time

erasing their identification from the out!of!court line!u rocess. -s such, it should beextremely difficult for the rosecution to use this witness at trial.

3. Reality& -fter re!trial rearation, the government will ut the witness on thestand and the witness will say that they can ma#e the I based on their

indeendent recollection of the defendant from the scene of the crime. The trial

court has to ma#e a finding of fact on this issue, but in 77H of cases will allow

the government to use the witness at trial and allow the in!court identification ofthe defendant.

4. Because of the government can usually use an in!court identification, there is

virtually no !otivation for a defense attorney to move to suress the out!of!

court identification testimony.

* . The main thing that will hurt a defendant is the in!court identification

by the eyewitness, as research shows that 3uries lace a lot of weight insuch Is.

B . The only way to combat the in!court I is to show imroer rocedure,

coercion, or suggestiveness at the out!of!court I line!u and argue that

this subse"uently tainted the in!court I by the eyewitness. The defense

attorney wants to argue that there is no real indeendent basis forassessing the reliability of this testimony, because the eyewitness’s

memory has been tainted by the out!of!court rocedures emloyed by

the government. In other words, the defense counsel wants to ma#e the



3ury understand the original context of the line!u as suggestive and

imroer.

<. DUE PROCE"" AND T#E R I+#T TO COUN"EL

* . Introduction& 'tili$ing a totality of the circumstances aroach, the (ourt must determine

whether the rocedures emloyed were8

. 'nnecessarily suggestive, and

. Ci#ely to lead to mista#en identifications

3. This has become more imortant recently given the concern about reliability ofidentifications.

4. In reality, a (ourt rarely finds a violation on due rocess grounds.

b. Stovall v. Denno %176G&8 tovall was arrested and arraigned after a doctor was stabbed to death

and his wife was critically wounded. -fter he was arraigned, the officers too# him to the wife’s

hosital room without counsel, because the wife couldn’t be transorted to the station for a line!u

and the officers were concerned that she would die before she got a chance to identify thedefendant. The defendant was the only blac# erson in the room, and he was handcuffed to an

officer. The officer as#ed if this was the guy, and the wife said yes. The wife testified at trial that

this was the man, and made an in!court identification of the defendant and also testified that shehad made an out!of!court identification of the defendant.

. Issue& 2hether the defendant’s due process rights had been violated by thisidentification testimony.

. #oldin!& -lthough the (ourt condemned such one!on!one identifications as being

suggestive and unreliable, the (ourt held that the defendant’s due rocess rights were not

violated.

3. The (ourt used a /alancin! test %er se test& to come to this determination.-lthough this was a suggestive rocedure, given the emergency situation that

confronted the olice, they had no other way to confirm or deny that this was the

assailant. If they had waited and the woman had died, they would have no way

evidence concerning the identity of the eretrator. Therefore, necessity dictated

that they engage in this rocess in this articular situation.

. $ocus& The Stovall test focuses on whether the suggestive rocedures used are really

conducive to irrearable misidentification. If the rocedures are so unduly suggestive that

they are li#ely to create a misidentification, they can be suressed.

3. Rule& -n identification rocedure threatens due rocess if it is )unnecessarily

suggestive and conducive to irrearable mista#en identification. If a rocesseither is not suggestive or is suggestive only in ways that are necessary, it cannot

violate due rocess.

4. Si!!ons v. United States8 There must be sufficient suggestion to give rise to a

very substantial li#elihood of misidentification.

c. Manson v. Braithwaite %17GG&8

. Rule& The government does not violate due rocess when it sub3ects a susect to an

unnecessarily suggestive I method and secures an identification from a witness. -violation of fundamental fairness can occur only when the suggested identification is

used at trial to obtain a conviction.

3. uggestive identification rocesses are constitutionally "uestionable because

they give rise to substantial li#elihoods of irrearable misidentification. Theycreate the ris# that an eyewitness will erroneously identify a erson at the I

session and that this error will lead the same witness to later mista#enly I the

defendant at trial.



* . Both an initial identification and any subse"uent identification are

resumtively inadmissible at trial.

4. er Manson, this is a rebuttable resumtion. If the government can establish

the identification’s reliability %either the initial I or subse"uent I’s&, it can be

used at trial. To overcome the resumtion of inadmissibility, the governmenthas the burden of roving reliability by a preponderance of the evidence.

. /ere the (ourt shifted to a totality of the circumstances aroach to see if there is a

substantial li#elihood of misidentification due to unreliability of the original

identification by the eyewitness. It focused on the factors that tend to show or disrove

reliability in the identification rocess. These factors include !

3. The opportunity of the witness to view the cri!inal at the ti!e of the cri!e8The better the witness’s oortunity to see the offender at the time of the

offense, the more li#ely it is that her identification is the result of observations at

the crime scene - wea# oortunity to observe ma#es it more li#ely that the

government’s suggestion romted the identification.

4. The witness#s degree of attention8 The greater the witness’s attention at the time

of the crime, the stronger the li#elihood that the identification is reliable. If the

witness aid limited attention, her identification is less li#ely to be reliable.

8. The accuracy of his prior description of the cri!inal 8 If a witness gives a

descrition of an offender rior to ma#ing an identification and thatidentification is consistent with the identified individual’s actual characteristics,

it is more li#ely that the identification by the witness was the roduct of

observations at the crime scene. >aterial differences between a descrition and

a erson’s actual aearance indicate that the government’s suggestioninfluenced the witness’s identification.

9. The level of certainty de!onstrated at the identification confrontation8 The

more certain the witness is that the erson she is identifying is the erson she

saw commit the offense, the more li#ely it is that he I is based on recollections

form the crime. Tentativeness or uncertainty indicates suscetibility tosuggestion and, therefore, a greater li#elihood that an I was roduced by

governmental suggestion.

:. The ti!e between the cri!e and the subse,uent confrontation8 The (ourt

assumes that memories fade continuously over time. (onse"uently, the longer

the time between the original viewing of the offender and the I of theindividual, the wea#er the case for the I’s reliability. horter time eriods

enhance the case for reliability.

?. These factors are to be weighed against the corruting effect of the suggestive

identification itself. The degree of suggestiveness in the D process8 The more

suggestive the I rocess, the less li#ely it is that the government will be able toestablish that an I was the roduct of observations made at the crime scene

rather than the roduct of imroer suggestion.

* . - minimum amount of suggestion is re"uired to trigger due rocess

scrutiny.

B . The degree of suggestion is also an imortant factor in the reliabilitycalculation.

$ . Note& The relevance of suggestion to the reliability of an I means that

the defendant should emhasi$e every suggestive facet of a rocess

while the government ought to maintain that the suggestiveness of a

rocess was actually "uite limited.



. -lthough the (ourt suggests that the identification evidence should be analy$ed

indeendent of any other evidence resented to secure the defendant’s guilt, as a ractical

matter, 3udges loo# at all of the other evidence in the case and try to figure out if the

identification should be used.

/ . 'hoff thin#s this is a troubling result, as we have moved from a er se test to a totalityof the circumstances test to determine if there is a substantial li#elihood of

misidentification.

3. Stovall focused on whether the suggestive rocedures really are conducive to an

irrearable misidentification. If the rocedures are unduly suggestive such that

they are li#ely to create a misidentification, all identifications should besuressed as violative of due rocess.

4. $raith%aite now says that our focus must be on reliability. 2hat we’re really

telling the olice is that if the identification turns out to be reliable, then we’ll

set the testimony in at trial regardless of whether the rocedures were unduly

suggestive.

* . cholars have critici$ed this test as one that is so wishy!washy that it’s

li#ely to allow virtually all Is to ass the test. 2e also have no way of

showing to the 3ury 3ust how ris#y this endemic roblem is.

</. LIMITATION" TO T#E E:CLU"IONARH R ULE

* . Exclusionary Rule& irect and indirect %derivative& roducts of constitutional violations are

excluded from admission as evidence at the defendant’s trial.

B . "tandin! Exce3tion& <emember that the standing doctrine states that the only erson who cancomlain about a constitutional violation is the erson who is actually aggrieved by that violation.

The defendant needs standing to rotest the violation before the exclusionary rule can come into

lay.

$ . Im3eachment Exce3tion& If the olice ta#e a confession in violation of Miranda, the rosecutor

cannot use that statement in its case in chief. /owever, the rosecution can use the statement asrebuttal evidence if the defendant testifies in a way that is contradictory to the initial statement at

trial. See Harris v. 'e% (or- .

D . (Inde3endent "ource) Doctrine

. Rule& ven if and illegal act committed by the government leads to certain evidence, if

the government can show that there was an indeendent source to discover suchevidence, it can introduce such evidence at trial.

3. The government must rove this indeendent source by a preponderance of the

evidence.

4. This really isn’t an )excetion* to the exclusionary rule, because evidence

gained from an indeendent constitutional source wouldn’t be excluded by

oeration of the exclusionary rule in the first lace.

. The rule tyically alies in two situations !

3. If certain information is learned in an illegal way and then the very sameinformation is learned by indeendent legal methods, it is admissible because it

was derived from a source indeendent of the illegality.

4. If the very same information is discovered twice, once legally and the other

illegally, so long as the legal means of discovery truly is indeendent of the

illegal discovery, the evidence will fall within the indeendent source doctrine.

. Note& 9overnment conduct will not "ualify as an indeendent source if there is a causal

connection between the illegality and the allegedly legal conduct.



3. If illegally gained information is used to 3ustify otherwise legal conduct or if

officers decide to ta#e legal action based on what they learned from an illegality,

the doctrine will not aly.

4. If the illegal action enables or facilitates the success of the legal conduct, the

legal conduct should not "ualify as an indeendent source. But see Murray.

iv. Silverthorne (u!ber $o. v. United States %17A& esta/lished the inde3endent sourcerule& In order to claim the excetion of the indeendent source rule, the government has

to rove that there truly is an indeendent source for the discovery of the evidence sought

to be introduced.

3. If the government can show an indeendent source for the information, it ma#es

sense that it ought to be able to use the evidence at trial, because there is no causal connection between the illegal conduct and the evidence.

* . Rationale& If the government can rove an indeendent source, it

ought not be laced in a worse osition than it would have been in had

it not committed the illegal act in the first lace.

v. Murray v. United States %17EE&8 The olice illegally entered a warehouse without awarrant and observed bales of mari3uana. 2ithout disturbing the bales, they left to secure

a search warrant. In their affidavit, the relied solely on the information they would latercontend they had rior to the illegal entry. The officers neglected to mention the illegal

entry in their affidavit. The warrant was issued and executed and the bales were sei$ed asevidence.

3. #oldin!& The (ourt found that the bales could roerly be admitted into

evidence if there was an indeendent basis for their discovery. The case was

remanded to determine whether the warrant!authori$ed search of the warehouse

was an indeendent source of the challenged evidence.

4. The independent source here would be the warrant. If the officers could havesecured a warrant to search the warehouse based on evidence indeendent of the

illegal entry, there would be an indeendent source for their discovery.

* . 8& The (ourt doesn’t want to lace the government in a worse position

than they would have been in had the illegal entry not occurred. Thus,if the warrant rovides an indeendent source for the discovery, the

bales can roerly be admitted into evidence.

8. The ma3ority also felt that there were a number of other safeguards in lace so

as not to encourage the olice to disregard the warrant re"uirement of the

(onstitution.

* . 'hoff thin#s this is a bunch of cra, as olice officers will not li#ely be rerimanded for unconstitutional behavior if it leads to evidence that

can later be used at trial.

B . MarshallFs Dissent& >arshall agrees with 'hoff in that what this

excetion encourages is unconstitutional behavior on the art of the

olice. If olice #now that the evidence li#ely won’t be excluded attrial, this encourages them to go in, see if there is incriminating

evidence, and then radio in to the station to tell others to secure a

warrant. This actually undercuts the warrant re"uirement if the olice

can simly claim that they would have secured a warrant desite theillegal entry.

$ . The #ey battleground between the ma3ority and the dissent is based

around the deterrence incentive rovided to the olice due to oeration

of the exclusionary rule. /ow you come out in this debate is a function



of how much confidence you have in olice honesty in executing

searches and sei$ures.

0 . (Ine0ita/le Disco0ery) Doctrine

. Rule& ven if evidence is found to have been illegally obtained %or the )fruit* of illegal

activities&, the government can still use such evidence if it can rove that the evidence

inevitably would have been discovered by lawful means.3. Proof& To rely on the doctrine, the government must show by a preponderance

of the evidence that the item sought to be introduced ultimately or inevitably

would have been discovered by lawful means.

4. 7ad $aith of the Officers Irrele0ant& The excetion alies even if the officers

#new that there actions were unlawful, #new that there was a lawful alternative,and deliberately chose the unlawful route because it would exedite the

discovery of the evidence.

8. Difference from Inde3endent "ource Doctrine& /ere, the evidence actually

was obtained through illegal means and admissible desite that illegality. This

truly is an excetion to the general exclusionary rule, where the indeendentsource doctrine is not.

ii. %ix v. ;illia!s %17E4&8 The defendant’s 6th -mendment right to counsel was violated

when an officer gave the )(hristian Burial eech* that romted %deliberate elicitation&

the defendant to show him where the body of his murder victim was located. -t the time,

there was an indeendent search for the dead girl’s body, and members of the search artytestified that they would have located it in a short time eriod had the defendant not led

the olice to the body.

3. #oldin!& esite the direct causation between the constitutional violation and

the evidence, the (ourt allowed admission of the evidence at trial because the

body inevitably would have been discovered by the volunteer search artywithin a short time eriod. Because temeratures were extremely cold, the

hysical evidence ta#en from the body itself would have been in substantially

the same condition had the defendant not led the olice to the site of the murder.

4. The (ourt indicated that the government must rove a readily verifiable basis infact that the evidence would have inevitably been discovered desite theillegality.

8. Dissent& The dissent agreed that this was an aroriate doctrine, but disagreed

on the aroriate burden of roof. The 3ustices in the dissent argued that the

government should have to rove the inevitable discovery by clear andconvincing evidence, rather than by a reonderance of the evidence.

* . This again shows a difference on the imortance of deterrence in the

eyes of the 3ustices. The dissent argues that this excetion creates a

disincentive for olice to follow the (onstitution %goes bac# to

deterrence&. 2e should be more concerned with resectingconstitutional mandates.

1 . The (Attenuation) Doctrine

. Rule& If the taint of the original constitutional violation becomes too attenuated, the

(ourt will not exclude the evidence at trial. There co!es a point at which the

connection between the evidence and the unlawful conduct beco!es so attenuated as

to dissipate the taint .

ii. ;ong Sun v. United States %176F&8 ?ames Toy was illegally arrested %no robable cause&on susicion of narcotics traffic#ing. -t the time of his arrest, Toy made a statement to

the olice imlicating ?ohnny ;ee. The olice illegally arrested and searched ;ee’s



aartment. They discovered narcotics in his bedroom, and he made a statement

imlicating 2ong un. 2ong un was then illegally arrested, released on his own

recogni$ance, and several days later made an incriminating statement imlicating himself

in the narcotics transactions.

3. #oldin!& Toy’s statement must be suressed because it was the roduct of anunlawful arrest. ;ee’s statement and the narcotics found at his aartment must

also be suressed as a direct roduct of the unlawful arrest. /owever, ;ong Sun#s state!ent was held to be ad!issible6 because its connection to the initial

illegality was sufficiently attenuated .

* . 2ong un had been released on his own recogni$ance and hadvoluntarily returned days later to ma#e the incriminating statement.

These were the factors that the (ourt found imortant in determining

that the evidence was sufficiently attenuated.

B . Rule& 2e cannot attenuate evidence that is the direct roduct of olice

misconduct or an unconstitutional action. 2e can only attenuateevidence that is a derivative or indirect roduct of such violation.

iii. Brown v. llinois %17G5&8 This case gives additional meaning to the attenuation doctrine

by laying out four factors to assess in determining whether the evidence is sufficiently

attenuated from the original illegality so as to be admissible at trial !

3. +i0in! of Miranda .arnin!s ! -lthough Miranda warnings alone do notdissiate the taint, this is a factor that courts consider.

4. Proximity in time /et.een the arrest and confession ! The longer the time

eriod between the misconduct and the discovery of the evidence, the stronger

the case for attenuation.

8. Inter0enin! circumstances -ny )significant event* in the chain of events

leading from the illegal conduct to the discovery of the disuted evidencewea#ens the connection between the two. In other words, the (ourt will loo# at

what haened between the illegal act and the subse"uent admission, etc.

* . - defendant’s arraignment in court, the receit of Miranda warnings, or

some indeendent action of a third erson could "ualify as an)intervening circumstance* that enhances the case for attenuation.

B . @ree will is a #ind of intervening circumstance that can wea#en thecausal chain between an illegality and the ac"uisition of evidence.

/owever, the mere fact that an individual was not forced to act is not a

sufficient exercise of free will to attenuate automatically a connection between any earlier illegality and the evidence discovered through the

individual.

c. United States v. $eccolini %17GE&8 Cive!witness testimony is treated

differently from other #inds of evidence. (ourts are more ready to find

attenuation when the illegally obtained evidence is live!witnesstestimony.

9. Pur3ose and fla!rancy of the 3olice misconduct vidence that is the roduct

of an intentional or egregious illegality is less li#ely to fall within the excetion

than evidence that is the roduct of carelessness or a reasonable mista#e about

the legality of a articular act.

iv. Oregon v. 0lstad %17E5&8 fficers custodially interrogated a susect without giving Miranda warnings or obtaining a waiver. The susect made incriminating remar#s.

hortly thereafter, the officers again conducted a custodial interrogation after warning the

susect and securing a waiver. The susect again incriminated himself.



3. Issue& Because the first confession was in violation of Miranda, can the second

confession be used0

4. #oldin!& The (ourt held that any connection between an initial failure to warn

and a subse"uent statement made after comliance with Miranda was

seculative and attenuated at best. -lthough the first statement must beexcluded, the second statement made after comliance with Miranda does not

have to be excluded.

* . Rule& If there has been an involuntary confession followed by a second

confession, that second confession is resumtively excludable. Thus,

there is a difference between an unwarned Miranda violation and aninvoluntary confession %i.e., in violation of the defendant’s due rocess

rights&.

B . Note& This case is confusing, as it suggests that Miranda is merely a

rohylactic rule rather than a constitutional right. /owever, Dic-erson

held that Miranda was a constitutional right.

8. 7rennanFs Dissent& There is a substantial causal connection between the two

confessions, as there was only an hour difference between the two. @urthermore,

once a susect confesses once, it is unli#ely that they will revo#e that confession

in later statements, as the susect will feel as though he already )let the cat outof the bag.* Brennan oints to interrogation ractices of the olice that suggest

that once a susect confesses once, it is easier to get further confessions from

him after that oint. -s such, allowing the olice to )cure* the defendant of an

earlier Miranda failure will only create a disincentive for olice to follow Miranda at all.

9. Unans.ered 1uestions from 0lstad

* . oes this )rule* alies to other #inds of Miranda violations such as an

3d%ards violation0

. Cower courts have slit on the issue of whether 3lstad alies

in such contexts.

. (learly if the authorities use actual coercion to obtain astatement, the later statement is resumed to be inadmissibleeven if the authorities have comlied with Miranda.

B . oes this )rule* extend to other #inds of )derivative fruits*0

. If the olice ma#e an illegal arrest under the 4th -mendment,

ta#e a statement from the susect, and that statement leads to

other hysical evidence, these are all derivative fruits of theillegal arrest. 'nless the government can show sufficient

attenuation, this evidence will be suressed.

. It is not clear that the )derivative fruit* doctrine alies in the

5th -mendment context. If, in 3lstad , the olice too# an

unwarned confession that led them to discovery of a gun,would they be able to introduce the gun into evidence0

3. Brennan argues that the reasoning of the ma3ority

would gut the derivative evidence doctrine in this

context.

2 . The (+ood $aith) Exce3tion

. Introduction& Because the rimary urose of the exclusionary rule is deterrence, that

ob3ective is best achieved when the violation is #nowing and deliberate rather than theresult of an honest mista#e. /owever, this excetion seems to fly in the face of the 4 th



-mendment, as it allows unconstitutional searches and sei$ures to be used against the

defendant.

3. Note& This excetion only alies in the 4 th -mendment context.

4. Rule& eration of )good faith* excetion authori$es the government to use

both pri!ary and derivative evidence that has been ac"uired by illegal means.

8. Rule& The excetion alies only when officers search or sei$e on the basis of awarrant. It does not ermit the admission of evidence ac"uired as a result of awarrantless search or sei$ure. The controlling ,uestion is whether a reasonable

officer would have believed that the search or sei$ure authori$ed by the warrant

was constitutional.

ii. United States v. (eon %17E4&8 The olice conducted a search ursuant to a warrant issued by a magistrate. The warrant was subse"uently found to have been issued without an

ade"uate showing of robable cause, as the affidavit was based on the word of a

confidential informant of unroven reliability. The defendants moved to suress the

evidence obtained in the search.

3. #oldin!& Because the olice were deemed to have reasonably relied on the

warrant %in good faith& in the execution of the search, the (ourt concluded that

there was no oint in excluding the evidence at trial.

* . O/ecti0e "tandard& The ob3ective standard adoted in this case and

in Sheppard %below& re"uires officers to have reasonable #nowledge of

what the law rohibits. If an officer is actually ignorant of what the law rohibits, but a reasonable officer would have been aware, the

excetion does not aly.

4. Rationale& There is a minimal ossibility of deterrence for future violations in

this context, as the exclusionary remedy is aimed at olice, not 3udges and

magistrates, who are the ones ma#ing the final warrant determination. -s aresult, it doesn’t ma#e sense to exclude evidence based on a mista#e of the

magistrate.

* . The rationale behind the exclusionary rule is outweighed by the

substantial costs of suressing the evidence, as the suressioninterferes with the truth!finding function of the 3ury. 2e are alsoconcerned with the fear of freeing those who are guilty based on

mista#es of the magistrate.

B . Note& - number of state courts have re3ected this excetion and will

suress evidence if rocured by a defective warrant, irregardless ofwhose fault the mista#e was.

8. "te0ensF Concurrence& The founding fathers of the (onstitution would have

been shoc#ed to find out that the (ourt created this excetion, as the 4th

-mendment was designed to rotect against unreasonable warrants being used

to search where there is no robable cause. This is exactly what the ma3ority isendorsing in enacting this excetion to the exclusionary rule. In essence, the

ma3ority has turned history on its head.

9. 7rennanFs Dissent& The 4th -mendment oerates to disable the rocurement of

evidence in violation of the (onstitution. Though some evidence will be thrown

out and some criminals will go free by oeration of this -mendment, this is the rice we ay for living in a free society. In essence, it’s not the exclusionary rule

that creates this roblem, but rather, the (onstitution itself.

:. Underlyin! Tension .ith 2ates8 The (ourt has already relaxed the standards

for rocuring a warrant in ates, which liberali$ed the ability for olice to

secure warrants. In ates, the (ourt essentially created a rule in which robable



cause will be found ':C no reasonable erson would have found robable

cause. If no reasonable erson would have believed that there was robable

cause, then how can a reasonable olice officer rely on a warrant that is

ob3ectively unreasonable0

* . This seems to create a disconnect, as it fosters disresect for the(onstitution and encourages magistrates to be a rubber stam for the

olice who execute the warrants.

iii. Massachusetts v. Sheppard %17E4&8 fficers conducting a homicide investigation alied

for a warrant to search heard’s residence for evidence connecting him to the murder

of his girlfriend. Because it was a unday, the only standard alication form the officerscould find was for a narcotics search. In their affidavit, the olice described the items

sought as the murder weaon and the roe used to bind the victim. The 3udge forgot to

modify the warrant form, and ended u authori$ing narcotics as a target of the search.

The warrant was executed and the homicide evidence was discovered.

3. #oldin!& The (ourt held that the olice acted reasonably in this situation andrefused to suress the evidence rocured by the defective warrant.

* . )2e refuse to rule that an officer is re"uired to disbelieve a 3udge who

has 3ust advised him, by word and by action, that the warrant he

ossesses authori$es him to conduct the search he has re"uested.*

/ . $our Instances in .hich the +ood $aith Exce3tion does not a33ly

3. nowing or rec#less falsehood rovided to the magistrate in the affidavit

4. - magistrate’s abandonment of his 3udicial role

8. eriously deficient robable cause showings

9. eriously facially deficient warrants

/ . T.o ,ariations on the +ood $aith Exce3tion

3. llinois v. Krull %17EG&8 The (ourt concluded that even though a search,

authori$ed by statute, was constitutionally unreasonable, the evidence obtained

was admissible because the officers had acted in ob3ectively reasonable relianceuon the statute authori$ing the search. The error is that of legislators who, li#e 3udges, do not need to be and are no li#ely to be deterred by the exclusion of

evidence. 2hen officers have acted in reasonable reliance uon a statute there is

no olice error to deter.

4. *ri)ona v. 0vans %1775&8 The (ourt concluded that if an officer arrests an

individual based on a comuter record that erroneously indicates the existenceof an outstanding arrest warrant, evidence found as a result of that unreasonable

arrest is admissible if the officer acted in ob3ectively reasonable reliance on the

erroneous comuter record and if court e!ployees are resonsible for the

erroneous comuter record. -gain, the exclusionary rule is not designed to affectthe behavior of court emloyees and there is no reason to attemt to deter

)ob3ectively reasonable* behavior of law enforcement officers.

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