CRIMINAL PROCEDURE
PROFESSOR ANGELA J. DAVIS
FALL 2000 Outline
I.
Incorporation and Retroactivity
1 – 31
Supp. 1
“Defining what is criminal”
Allen v. Illinois and Kansas v. Hendricks
- Held: Involuntary civil commitment of dangerous sexual offenders is not criminal,
so criminal protections do not apply. The intent of the legislature is crucial to such a
finding.
A.
Incorporation Doctrine
Duncan v. Louisiana (1968) (p.9): Those portions of the Bill of Rights “fundamental to
our concept of ordered liberty” are incorporated. See #7 below.
The following have been incorporated:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Prohibition against unreasonable search and seizures. Wolf v. Colorado (1949).
Exclusionary rule. Mapp v. Ohio (1961).
Privilege against self-incrimination. Malloy v. Hogan (1964).
Speedy Trial. Klopfer v. North Carolina (1967).
Public Trial. In re Oliver (1948).
Double jeopardy. Benton v. Maryland (1969).
Trial by jury. Duncan v. Louisiana (1968).
Confront witnesses. Pointer v. Texas (1965).
Compulsory process. Washington v. Texas (1967).
Assistance of Counsel—6th Amdt.
Felonies -- Gideon v. Wainwright (1963).
Imprisonment Misdemeanors – Argersinger v. Hamlin (1972).
11. Cruel and Unusual Punishment. Robinson v. California (1962).
The following have been held not to be incorporated:
1. Right to Indictment by Grand Jury. Hurtado v. California (1884).
2. Prohibition Against Excessive Bail. Not yet determined, but must state Constitutions
create a right to bail and prohibit excessive bail.
B.
Retroactivity
A new rule is applicable to all cases that are still under court review, up to the time that a
petition for certiorari in the United States Supreme Court has been denied or the time to
file such a petition has run out.
That is, new rules are generally not applicable to cases on collateral review (habeas
corpus).
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II.
The Fourth Amendment -- Searches and Seizures
A.
Katz – “Reasonable Expectation of Privacy”
32 – 57
Supp. 2 – 6
SEARCH = implicates privacy interest
SEIZURE = implicates property interests
Katz v. United States (1967)
Held: Fourth Amendment search has occurred where the government conduct
offends the individual’s expectation of privacy, which society is prepared to
accept as reasonable.
Facts: FBI tapped telephone booth in which Katz made a gambling call.
B.
Applications of Katz:
57-77
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There is no expectation of privacy in illegal activity. United States v. Place. (p.
42)
An individual must take affirmative steps to protect his privacy interests (p. 44)
An investigative activity is not a search if it can only reveal illegal activity.
United States v. Place (1983). See Canine sniffs below. (p. 57)
Open fields: Oliver v. United States (1984). A person does not have a
legitimate expectation of privacy in an open field. An “open field” is actually
any unprotected area. (p. 45)
Curtilage: Id. Protected by 4th Amdt. Is the area immediately adjacent to the
home which one may expect will remain private.
Trash: California v. Greenwood (1988). No expectation of privacy in what is
readily accessible to animals, children, scavengers, snoops, and other members of
the public. (p. 51)
Aerial Suveillance: California v. Ciralo (1986). No search where cops observed
fenced-in backyard from 1,000 w/o warrant or probable cause. (p. 53)
Overflights: Florida v. Riley (1989). Surveillance of a backyard from a
helicopter from 400 ft. no a search. (p. 54)
Manipulation of Bags in Transit: United States v. Bond (2000). Passenger
placing bag in overhead compartment expects it to be moved, but does not expect
it to be felt in an exploratory manner. “The agent’s manipulation of petitioner’s
bag violated the 4th Amdt.”
United States v. Nichols (10th Cir. 1998). No search where officers handle a bag
as other members of the public could. (Bond puts this holding in question)
However, the officer in this case “pushed and prodded it so intensively that the
conduct was beyond what one would expect from a member of the public.” (p.
55)
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Investigations That Can Only Uncover Illegal Activity
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Canine Sniffs: United States v. Place (1983). Canine sniff of closed luggage is
not a search. However, detention of the luggage for 90 minutes to wait for a dog
to arrive was a violation b/c there was no probable cause to detain the luggage.
Note: The sniff is NOT a search and may only be used as information to obtain
a warrant. That is, you still need a warrant to open the luggage after the dog
alerts.
Thermal detection devices: United States v. Pinson (8th Cir. 1994). No
reasonable expectation of privacy in discarded heat. Also, like the dog in place,
the heat detector is detected by sense-enhancing mechanism. No intimate details
of the home were observed.
Sensory Enhancement Devices
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Tracking beepers in containers: US v. Knotts (1983). Tracking public
movement via beeper in container was not 4th Amdt violation b/c the beeper was
placed there prior to D’s possession. Visual surveillance could have revealed the
same information.
US v. Karo (1984). Again, D did not possess container when beeper placed
there, so the invalidity of the installation was not at issue. Because the can into
beeper was placed belonged at the time to the DEA, there was no legitimate
expectation of privacy in it by D’s. (p. 63-65)
Tracking beepers in houses: US v. Karo (1984). There is a search where
government monitors a beeper without a warrant and probable cause or
reasonable suspicion in the home. (p. 65)
Tracking beepers and stolen property: US v. Jones (4th Cir. 1994). Postal
worker who steals package with beeper in it has no expectation of privacy in the
property of others.
Other: US v. Taborda (2d 1980). Held use of telescope to look in suspect’s
apartment from across the street and to see things not otherwise visible to the
naked eye to invade a reasonable expectation of privacy (REP).
US v. Mankani (2d 1984). No violation of REP where agent overheard
conversation through pre-existing hole in hotel room wall.
Texas v. Brown (1983). No violation of REP where officer shines a light in car.
Investigative Activity by Private Citizens
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Private Activity: Burdeau v. McDowell (1921). Held private papers stolen
from an office safe and locked desk could be presented to grand jury b/c there
was no government action in the theft. (p. 67)
Public-Private Actions: Walter v. US (1980). FBI agents violated REP by
viewing tapes opened but not viewed by private citizen to whom they were
mistakenly delivered. (p. 68)
US v. Jacobsen (1984). Held no 4th Amdt. violation where agent reopens
package previously opened by FedEx employees who observed white powder in
bags inside mailing tube. Important: The gov’t search did not go beyond the
scope of the private citizen’s search. (p. 69)
Police Entry of Residence After Private Entry: US v. Paige (5th 1998). The
proper inquiry where re-entry of a home is concerned, is whether the occupant
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C.
continues to possess a reasonable expectation of privacy after the private search.
Was the risk of intrusion “reasonably foreseeable”? Held that the entry of the
garage by workers on the home was reasonably foreseeable, so the later police
entry did not violate 4th. (p. 71)
Controlled Deliveries: Illinois v. Andreas (1983). Held that a “controlled
delivery” after a valid customs inspection revealed narcotics is valid. Police
waited until D re-emerged from home w/ container. (p. 72)
Foreign Officials: US v. Behety (11th 1994). Seizures by foreign officials in
their country is generally admissible, despite non-compliance with 4th Amdt. (p.
73)
Two exceptions:
1. Search is so extreme as to shock the judicial conscience.
2. US agents participation in the investigation is so substantial as to
create a joint venture.
Jails, Prisons, Convicts: Hudson v. Palmer (1984). Held there is no
constitutional expectation of privacy in prison cells, papers, or property in the
cell. (p. 74)
Public Schools and Employees: Reasonable suspicion applies. NJ v. TLO
(1985). Held students retain a reasonable expectation of privacy. However, in
this case inspection of the student’s bag was proper b/c there was reasonable
suspicion that it contained cigarettes. (p. 74)
O’Connor v. Ortega (1987). Held that, like students, some degree of privacy is
retained, and in this case was upheld because there was reasonable suspicion to
believe employee had stolen from gov’t. Applies to noninvestigatory, workrelated searches, as well as to investigatory work-related misconduct. They did
not say what standard applies to non-work-related searches.
The Warrant Clause: Spinelli & Gates
77 – 103
A search without a warrant is presumed invalid unless it fits one of the exceptions:
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Search incident to arrest
Terry stop & frisk
Plain View
Special Needs
Independent Source
Inevitable Discovery
Automobile Exception
Consent
Exigent Circumstances
Specificity requirement: A warrant must specify time and place to be searched.
No arrest warrant is needed for:
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misdemeanor
felony committed in police presence
felony NOT committed in police presence for which there is probable cause.
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No arrest in the home without a warrant.
Reason for the Warrant Requirement: Johnson v. US (1948). The opium in the hotel
room case. Police enter room without warrant and arrest woman, then conduct “search
incident to arrest.” Court finds police had no probable cause to arrest until they entered
hotel room and the search preceded the arrest. (p. 77)
Johnson court points out that 4th Amdt’s protection consists of the inferences being drawn
by a neutral magistrate instead of cops “engaged in the often competitive enterprise of
ferreting out crime.”
Gates overruled Spinelli’s two-prong test for informants (veracity and basis of
knowledge), so:
Illinois v. Gates (1983). Totality of the circumstances test created for determinations of
probable cause. Applied to this case, where the officer’s affidavit is based on information
obtained from an informant, its sufficiency is determined by the totality of the
circumstances. Court held that the extent of the details conveyed by the informant and
their corroboration supported probable cause. (p. 91)
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D.
Other informant/probable cause cases pp. 102-103.
Probable Cause & Specificity
104 – 132
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Citizen informants: Identified citizen informants are presumed reliable,
whereas anonymous or paid informants are presumed unreliable. Police must
still corroborate a citizen informant’s information to a sufficient degree.
Accomplices: US v. Patterson (4th 1998). Confession of co-participant is itself
sufficient to establish probable cause—no corroboration necessary.
Equivocal activity: US v. Prandy-Binett (DC 1993). Suspicious demeanor and
appearance of duct-taped block from bag after opening it for police in Union
Station was sufficient to support probable cause from the viewpoint of the
narcotics agents involved.
Probable cause to arrest: There must be a fair probability to believe that the
person arrested has committed a crime. US v. Valez (2d 1986). Arrest upheld
even though wrong person was mistakenly arrested b/c they matched the
description given the police. Dissent took exception to the description as too
vague.
Probable Cause, Specificity and Reasonableness
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PC as to location: Zurcher v. Stanford Daily (1978). The critical element . . . is
reasonable cause to believe the specific ‘things’ to be searched for and seized are
located on the property to which entry is sought. (p. 119)
Search of non-suspect’s premises: Also Zurcher v. Stanford Daily (1978). The
critical element in a reasonable search is not that the owner of the property is
suspected of crime but that there is reasonable cause to believe that the specific
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‘things’ to be searched for and seized are located on the property to which entry
is sought. (p. 120)
“the premises” is liberally interpreted to include structures and vehicles in the
curtilage.
Description of Place to be Searched: Must be a particularized description. Technical precision
is not required in all cases. The degree of particularity which is reasonable depends on the nature
of the place to be searched, and on the information that an officer could reasonably obtain about
the location before a warrant is issued.
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Reasonable particularity: Maryland v. Garrison (1987). Search found valid
where there was more than one “third floor” apartment, b/c police were not aware
of that information at the time the warrant was obtained. (p. 124)
Wrong address: Lyons v. Robinson (8th 1985). The test for determining the
sufficiency of the description of the place to be searched is whether the warrant
enables “the executing officer to located and identify the premises with
reasonable effort, and whether there is any reasonable probability that another
premises might be mistakenly searched.” (p. 125)
Internal bodily searches: US v. Nelson (8th 1994). Warrant for search of the
person for cocaine, did not cover the extraction of a package from the suspects
stomach. (p. 128)
Description of the Things to be Seized
Andresen v. Maryland (1976). The description of the things to be seized must be
particularized enough not to amount to a general warrant. That is, the warrant must not
be for evidence of any and all crimes, but of the crime specified in the warrant.
E. Warrants
132 – 151
Warrants and Reasonableness
Winston v. Lee (1985). A court order to remove a bullet from three cm below the skin
was unreasonable, even though there was probable cause that evidence would be yielded.
(p. 132)
Anticipatory Warrants
US v. Garcia (2d 1989). Upheld anticipatory warrant, provided it sets forth explicit
conditions to limit the discretion of the officer in determining if the triggering event has
occurred. (p. 134)
Executing Warrants
Knock and Announce Statutes: 18 USC §3109. Purpose is to protect citizens and
police from violence, protect property rights, prevent needless destruction of property.
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Refused Admittance: US v. Knapp (10th 1993). 12 seconds w/o response held
to be a refusal of entry.
US v. Moore (10th 1996). 3 seconds was held to be insufficient amount of time to
wait. (p. 135)
Refusal to admit is determined based on the circumstances.
Constitutional Knock and Announce: Wilson v. Arkansas (1995). Held that
knock and announce is part of the 4th Amdt’s reasonableness requirement, but is
not required in every instance (e.g. hot pursuit, risk of destruction of evidence,
danger to officers). (p. 136)
Proving K&A violation: US v. Meuller (5th 1990). D must establish a prima
facie case that entry was unannounced. (p. 136)
Exceptions to Notice Rule: If door is already open, no need to announce. Also
applies if access is by trick. (p. 137)
- emergency circumstances Richards v. Wisconsin (1997). Rejects a
per se exigency rule for drug cases. (p. 137)
- no-knock warrant issued
Timing and Scope of Execution
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Delay may leave officers unable to execute the warrant if intervening circs negate
the previous showing of probable cause.
Police can destroy property when necessary to execute warrant. Unnecessary
destruction makes them liable for damages.
Distraction and intimidation devices: US v. Myers (10th 1997). Use of a
“flashbang” device reasonable under circs, but “dangerously close to 4th Amdt
violation.” (p. 141)
Unnecessarily intrusive searches: Hummel-Jones v. Strope (8th 1994). Raid of
birth clinic at 2a.m. and photographing of couple staying there was unreasonable,
where they were not associated with the crimes. (p. 143)
Enlisting Private Citizens to Help Search
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Unwilling Assistance: US v. Stiver (3d 1993). Answering phone while
searching house for drugs in home was valid part of search.
Media Ride Alongs: Wilson v. Layne (1999). Media presence during execution
of warrant is a 4th Amdt violation b/c not related to objectives of the authorized
intrusion.
The Screening Magistrate
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No specific legal training required. State attorney general not neutral &
detached. Former law enforcement officers and their spouses are not neutral and
detached. (p. 149).
F.
Arrests
152 – 181
No warrant needed for:
- felony
- misdemeanor w/ reasonable cause to believe suspect will not otherwise be
apprehended or is a danger to self or others
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misdemeanor committed in officer’s presence
US v. Watson (1976). So long as officer has at least reasonable grounds to believe one
has committed a felony, no warrant is necessary. That is, probable cause without a
warrant is allowed in felonies. (p. 155)
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Excessive force making arrest: Tenn v. Garner (1985). Deadly force not
allowed to prevent escape of a felon unless necessary to prevent escape AND
upon probable cause to believe the suspect poses a significant threat of death or
serious bodily injury to the officer or others. (p. 159)
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Excessive force and public protest: Forrester v. San Diego (9th 1994).
Application of pain techniques to abortion protesters did not constitute excessive
force. (p. 160)
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Excessive force placing a person in custody for his own good: Monday v.
Oullette (6th 1997). Suicidal, drunk, 300 pound whom police suspected of
overdosing would not go to hospital. Police used pepper spray to get him to
succumb. Held not to be excessive force. The reasonableness determination is
case-by-case. (p. 163)
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Prompt Post-Arrest Hearing Required: Gerstein v. Pugh (1975). A person
arrested w/o a warrant is entitled to a prompt post-arrest assessment of probable
cause by a magistrate. However, adversarial safeguards of trial need not be
provided. (p. 165)
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48 Hour Presumption of Promptness: Riverside v. McLaughlin (1991). A
jurisdiction providing determinations of probable cause within 48 hours is
presumptively prompt and immune from systemic challenges. However, a
Gerstein violation may still occur where the arrestee can show the probable cause
determination was unreasonably delayed. (p. 166)
Arrests in the Home
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The Payton Rule: Payton v. NY (1980). Held that the home of the arrestee
deserves special protection and may not be entered without an ARREST warrant.
(p. 173)
Common hallways: US v. Holland (2d 1985). Held common hallway in
apartment building not to be part of the home. (p. 175)
Doorways: Lower courts are split as to whether this is “in the home.”
Homeless persons: Can arrest a homeless person in a public place where they
have set up their home, but cannot arrest them in a homeless shelter without a
warrant. (p. 176)
Hotels: US v. Morales (8th 1984). Payton applies to properly rented hotel room.
Homes of 3d Party: Steagald v. US (1981). A SEARCH warrant is required to
look for a suspect in another’s home b/c it required a magistrate to determine
probable cause to believe the suspect is located in that home. An arrest warrant
does not sufficiently protect the privacy interests of a third party. (p. 177)
Overnight Guests: Minnesota v. Olson (1990). An ARREST warrant is
required under Payton to arrest an overnight guest in the home of a third person.
(p. 178)
Temporary visitors: Minnesota v. Carter (1998). The SEARCH of the premises
of a third party whom D visited for sole purpose of cutting cocaine did not
implicate D’s 4th Amdt rights. It may have implicated the homeowner’s,
however.
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G.
Stop and Frisk
181 – 208
Showing necessary to support:
Arrest
Stop
Encounter
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probable cause
reasonable suspicion
nothing
Stop: A reasonable person would have believed they are not free to leave. US v.
Mendenhall Note: Police are not required to tell suspect they are free to leave.
Stop & Frisk Established – Terry v. Ohio (1968). Frisk is a search, but is limited to
the patting of the outside of the clothing. It only requires reasonable articulable
suspicion that a crime is/has been committed. Simple good faith on the part of the officer
is not enough. (p. 181)
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Reasonable suspicion based on informant: Adams v. Williams (1968). Held
that b/c tip came from a reliable, known informant, and was immediately
verifiable, it contained enough indicia of reliability to justify a forcible stop. An
unverified anonymous tip would not be enough in this case. This is the case of
the cop reaching into the car to get nonvisible gun from suspects belt. Strong
dissent in this case challenged the reliability of the information. (p. 190)
Bright line rules under Terry
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Automobile Driver: Pennsylvania v. Mimms (1977). Held that officers in the
course of a legal stop of an auto have an automatic right under Terry to order the
driver out of the vehicle. (p. 193).
Automobile Passenger: Maryland v. Wilson (1997). Held that the Mimms rule
applies to passengers as well. Court reasoned that auto stops are inherently
dangerous, so officer safety takes precedence over privacy concerns. (p. 193)
Tinted Windows: US v. Stanfield (4th 1997). The concern for officer safety
allows an officer to open the car door of an auto with tinted windows. (p. 197)
VIN Numbers: NY v. Class (1986). Held that officer can re-enter car and move
papers to reveal the VIN number after the suspect has been removed from the car
for safety purposes. (p. 197)
Detention of Occupants of Home: Michigan v. Summers (1981). Police with a
search warrant can require occupants to remain while the search is executed. (p.
198)
The Stop/Encounter Line – Is there as seizure? The Mendenhall Test.
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Free to leave test: US v. Mendenhall (1980). A person has been seized only if,
in view of all the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave. It was crucial in this case that
the officers returned the suspects ID and airline ticket to her. (p. 199)
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H.
Sufficient show of authority: Florida v. Royer (1983). Held that where officers
identified themselves as narcotics agents, told Royer they suspected him of
transporting drugs, asked him to accompany them to an interview room, and did
not return his ticket and license, he was effectively seized. These circs amount to
a show of official authority such that a reasonable person would believe they
were not free to leave. (p. 199)
Factory sweeps: INS v. Delgado (1984). Held that INS officers did not seize
workers when they conducted a factory sweep for illegal aliens b/c the response
of the workers was still considered to be consensual and workers were free to
continue with their work and walk around. (p. 203)
Street encounters: US v. Cardoza (1st 1997). Held that under an examination of
the totality of the circumstances, the street encounter did not amount to a seizure
b/c the police conduct did not objectively communicate that the officer was
exercising his/her official authority to restrain the individual’s liberty of
movement. (p. 204)
Bus sweeps: Florida v. Bostick (1991). Held that where police board bus
without reasonable suspicion an seek consent to question and search luggage, the
appropriate inquiry is whether a reasonable person would feel free to decline the
officer’s requests or otherwise terminate the encounter. (p. 206)
Juveniles and Bus Sweeps: In re J.M. (DC App. 1992). Held that the same
standard applies to juveniles in bus sweeps as applies to adults. (p. 208)
Seizures/Grounds for a Stop & Reasonable Suspicion
209 – 220
Supp. 7 – 11
220 – 239
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Agent’s state of mind requirement: Brower v. County of Inyo (1989). Held
that a seizure occurs when there is government termination of freedom of
movement ONLY where that termination is applied through means
INTENTIONALLY applied to do so. In this case, the road block was
intentionally set up to stop a fleeing suspect, so there was a seizure. (p. 209)
Submission requirement: California v. Hodari (1991). Held that there must be
an actual submission to a non-physical show of authority before a seizure can
occur. (p. 210).
Anti-Loitering statute: City of Chicago v. Morales (1999). Invalidated
Chicago’s anti-loitering ordinance b/c it gave too much discretion to police to
determine who was loitering and who was not. (p. 213)
Grounds for a Stop: Reasonable Suspicion
Two factors to determine whether reasonable suspicion exists:
1. What is the source of the information?
2. Is that information sufficiently suspicious to justify a stop?
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Anonymous tips—Corroboration requirement: Florida v. J.L. (2000). Held
that an anonymous tip that a person is carrying a gun is, without more, sufficient
to justify a police officer’s stop and frisk of that person. The reasonableness of
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I.
official suspicion must be measured by what the officers knew before they
conducted their search. This is the bus stop case. (supp. p. 7)
Alabama v. White (1990). Held that an anonymous informant’s tip that is
sufficiently corroborated by police investigation provides reasonable suspicion
for a stop. (p. 217)
Quantum of Suspicion—Totality of Circs: US v. Cortez (1981). Under the
totality of the circumstances, the detaining officer must have a particularized and
objective basis for suspecting the particular person stopped of criminal activity.
(p. 220)
Assessment of Probabilities: US v. Ornelas-Ledesma (7th 1994). Held that
appellate standard of review in reasonable suspicion determinations is “de novo,”
not “clear error.” (p. 222)
Examples of reasonable and unreasonable suspicion: pp. 225-229.
Reasonable Suspicion of Completed Crime: US v. Hensley (1985). Held that
Terry is not confined to potential crimes, but applies to investigations of
suspected perpetrators of completed crimes as well. (p. 230)
Relevance of Race: US v. Weaver (8th 1992). Held that race cannot be the only
factor supporting a stop, it can be considered together with other suspicious
factors. In this case court found that race, coupled with other information (travel
from a “source city,” no ID, appeared nervous) was sufficiently suspicious. (p.
232)
Race in Encounters: US v. Avery (6th 1997). Held that at both the contact and
pre-contact stage, an officer cannot discriminate on the basis of race. Under the
Equal Protection Clause, officers are limited in their discretion as to who to
encounter, and also imposes similar limits on an officer’s decision to track
someone before an encounter. (p. 233)
Use of Profiles: US v. Sokolow (1989). They are allowed as a factor. The
relevant inquiry in not whether particular conduct is innocent or guilty, but the
degree of suspicion that attaches to particular types of noncriminal acts. Court
rejected Sokolow’s argument that use of a drug courier profile tainted the stop.
(p. 235).
Overbroad Profiles: US v. Beck (8th 1998). Held that license plate from a
“source state” was far too broad to be useful in a consideration of reasonable
suspicion. (p. 236)
Flight from Police: Illinois v. Wardlow (2000). Held that flight upon seeing a
caravan of police converge in a high crime area was sufficient to support
reasonable suspicion. (p. 238)
Limited Searches Under Terry/The Line Between Stop and Arrest
239 – 264
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Frisk Cannot be used to search for Evidence: Minnesota v. Dickerson (1993).
Held that the continued exploration of suspect’s pocket after having determined
no weapon was there amounted to an evidentiary search, which Terry explicitly
refuses to authorize. (p. 239)
Suspicion of Dangerousness Required to Frisk. People v. Russ (NY App.
1984). Held that a frisk requires reliable knowledge of facts providing
reasonable basis for suspecting the individual is armed and dangerous. (p. 240)
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However, compare US v. Rideau (5th 1992). Held that given the time and place
of the encounter, suspect’s moves gave reasonable cause to believe there was a
threat of harm. (p. 241).
Protective Search of Vehicle: Michigan v. Long (1983). Held that Terry
permits a limited examination of an area from which a person believe to be
reasonably dangerous might gain immediate control of a weapon. (p. 243)
Per Se Dangerousness and Drugs—Protective Searches: US v. Brown (8th
1990). Upheld search of a locked glove compartment, when officers had
reasonable suspicion of drug activity on protective grounds. (p. 243) Note,
however, Richards v. Wisconsin (1997). Rejects a per se exigency rule for drug
cases in the knock & announce context. This calls Brown into question. (p. 137)
Searches of Others than Suspect—Automatic Companion Rule: US v.
Berryhill (9th 1971). Held that companions of suspects are automatically subject
to frisk, even when posing no danger on the facts. Note that other courts reject
this rule as violation of Terry case-by-case approach. (p. 244)
Non-Companions: Ybarra v. Illinois (1979). Held there is no right to search bar
patrons not companion of suspect who just happen to be present. (p. 244)
Protective Sweeps of Premises: Maryland v. Buie (1990). A protective sweep
incident to arrest is allowed when justified by reasonable suspicion that the area
swept harbors and individual who could pose a danger to officers or others. (p.
245)
Protective Sweeps and Arrest Outside Premises: US v. Henry (DC 1995).
Held that Buie applies even when the arrest is just outside of the residence. (p.
246)
Brief and Limited Detentions: Stop or Arrest?
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Forced Movement for Investigative Purposes: Florida v. Royer (1983). Held
that it is the state’s burden to show that an investigative detention was temporary,
lasted no longer than necessary, and the least intrusive means to verify or dispel
the suspicion. (p. 247 and 199) Note: Police can force people to move for safety
and security (p. 249)
Forced Movement for ID: People v. Hicks (NY 1986). Held that detaining
suspects for a short time and transporting them to the scene of the crime for ID a
limited purpose was justified by reasonable suspicion. (p. 249)
Permissible Investigative Techniques for Stop: Usually checking ID, asking
questions about the suspicious circumstances, and verifying information obtained
from the suspect. (p. 250)
Overly Intrusive Techniques for Stop: Search for evidence, demanding
physical tests for intoxication. (p. 250)
Investigation of Other Matters than the Reasonable Suspicion: Not allowed
in absence of reasonable suspicion for the additional crime. (p. 251)
Reasonable Suspicion of Another Crime
•
If, in the course of a stop to investigate crime A, the officer obtains reasonable
suspicion of crime B, then extension of the detention is allowed to investigate B.
(p. 252)
12
•
•
•
•
Consensual Encounter after Stop has ended: Ohio v. Robinette (1996). Held
that police do not have to say that you are free to leave to effectively terminate
the stop. (p. 253)
Interrogation and Fingerprinting under Terry: Dunaway v. NY (1979).
Held that police cannot detain a suspect and transport him to the station for
questioning without probable cause. Davis v. Mississisppi (1969). Held that a
round-up of 25 black males for questioning and fingerprinting violated 4th Amdt.
(p. 253) Hayes v. Florida (1985) Held, however, that fingerprinting in the field,
without transporting to station, is not necessarily impermissible under 4th Amdt,
b/c the intrusion is minimal. (p. 254)
Time Limits on Terry Stop: US v. Sharpe (1985). Camper travelling in tandem
with car case. Held that 40 minute detention while waiting for DEA agent to
arrive did not violate Terry limits of “brief encounter.” (p. 254)
Show of Force under Terry: Handcuffing is allowed in a Terry stop where
there is reasonable suspicion to believe they are necessary to protect the officer
from harm. (p. 256) However, US v. Alexander (2d 1990) upheld use of
unholstered guns to detain two men suspected of purchasing drugs. Other cases
discussed on pp.
Detention of Property Under Terry
•
•
•
Detention of Mail: US v. VanLeeuwen (1970). Held that a one day detention of
a package to develop probable cause was reasonable. Court recognized that it
would become unreasonable at some point. (p. 259)
Detention of Luggage: US v. Place (1983). Held that detention of luggage
subject to a stop while travelling is subject to same restraints as detention of the
person, as it intrudes upon both possessory interest and liberty interest in
continuing itinerary. (p. 260)
Detention Without Liberty Interest Deprivation: US v. LaFrance (1st 1989).
Held that delay of delivery of FedEx package by two hours was limited enough
to be reasonable. (p. 261)
Limited Evidence Searches under Terry
•
J.
Cursory Searches: Arizona v. Hicks (1987). Held that probable cause was
needed even for the cursory search of the serial number of a turntable located on
the bottom of the machine. (p. 262)
Search Incident to Arrest
264 – 290
•
•
•
Wingspan Rule: Chimel v. California (1969). Held that following a valid arrest,
police may search the person, seize evidence on the person, and search any area
into which one might reach in order to grab a weapon or evidence. (p. 265)
Timing of Grab Area: Davis v. Robbs (6th 1986). Held that grab area is
determined by time of arrest, not at time of search. (p. 268)
Creating Grab Areas: US v. Perea (2d 1993). Held that police cannot place
suspect next to an area they wish to search so create a grab area. (p. 269)
13
•
•
•
•
Post-Arrest Movements: Washington v. Chrisman (1982). College student
placed under arrest before returning to dorm to get ID. Cop sees pot pipe and
seeds on floor after entering the room. Court held that “the officer had a right to
remain literally at the suspect’s elbow at all times.” (p. 269)
Post-Arrest Movements Order by Police: US v. Butler (10th 1992). Upheld
seizure of illegal weapons where police ordered suspect back into trailer to get
shoes on and followed him in. (p. 270)
Arrest Leading to Exigent Circumstances: Vale v. Louisiana (1970). Held
that there is no per se arrest exigency. (p. 271)
Protective Sweep After Arrest: Maryland v. Buie (1990). See p. 12 above.
Temporal Limitations
•
•
Search/Arrest Sequence: Rawlings v. Ky (1980). Where the formal arrest
followed quickly on the heels of the challenged search of D’s person, it is not
important that the search preceded the arrest. (p. 272)
Removal From Arrest Scene: Chambers v. Maroney (1970). Held that once an
accused is under arrest and in custody, then a search made at another place,
without a warrant, is simply NOT incident to arrest. US v. Edwards (1974).
Held that a suspect could be searched incident to arrest the following morning.
Search of the Person Incident to Arrest
•
•
Arrest Exception to Warrant Clause: US v. Robinson (1973). Held that in the
case of a full custodial arrest a full search of the person is not only an exception
to the warrant requirement, but is also a “reasonable” search under the 4th Amdt.
(p.273)
Containers within Reach under Robinson: US v. Chadwick. Held that
suspect’s privacy interest in the contents of a footlocker was not diminished
because they were under arrest. (p. 279)
Arrest Power and Automobiles
•
•
•
Bright Line Rule: New York v. Belton (1981). Held that the entire passenger
compartment of the auto, including containers, is within the wingspan of the
occupant, so it can be searched incident to arrest. The TRUNK is NOT included.
(p. 280).
Arrest Outside of Auto:US v. Strahan (6th 1993). Held that arrest thirty feet
from car after suspect exited car was not valid b/c he was not in the passenger
compartment or within reach of it. (p. 284).
Search Incident to Citation: Knowles v. Iowa (1998). Held that there can be no
search incident to arrest for traffic violations if there is no arrest, even where
state law gives the officer the option to arrest. (p. 288).
14
K.
Pretext Stops/Plain View and Plain Touch
290 – 307
Video Presentation
Pretext Stops
•
•
Could have/would have rule: Whren v. US (1996). Held that so long as there is
probable cause to believe that a traffic violation has occurred, any evidence
properly discovered during the stop is admissible. (p. 290)
Equal Protection: US v. Scopo (2d 1994). Stated that although the 4th Amdt
allows a pretext stop, the Equal Protection Clause restrains impermissible classbased discrimination.
Plain View and Plain Touch Seizures
•
•
•
•
L.
Plain View Established: Coolidge v. New Hampshire (1971). Held that if
officers have a right to be in a place, any evidence discovered there supporting
probable cause to believe is subject to seizure.
Inadvertence Not Required: Horton v. California (1990). Held that inadvertent
discovery is not required. (p. 299).
Probable Cause to Seize Items in Plain View: Arizona v. Hicks (1987). Held
that there must be readily apparent probable cause to seize an item in plain view
during the course of legal activity. Here, police could not overturn a turntable to
get the serial number based on reasonable suspicion, they needed probable cause.
(p. 304).
Plain Touch Established: Minnesota v. Dickerson (1993). Held that where an
officer frisks and feels an object whose contour or mass makes its identity
immediately apparent, there has been no invasion of privacy beyond that already
allowed.
Searches of Automobiles
307 – 331
Automobile Exception to Warrant Clause
•
•
•
Carroll Doctrine: Carroll v. US (1925). Held that police may search an
automobile without a warrant so long as there is probable cause to believe it
contains evidence of criminal activity. Mobility of cars makes it impractical to
get a warrant. (p. 307)
Distinguished from Auto Search Incident to Arrest: Under Carroll, there does
not need to be an arrest, nor even a person in the car, so long as there is probable
cause to believe the car contains evidence of criminal activity. Under Belton,
only probable cause to arrest the occupant is needed to justify a search of the
vehicle incident to that arrest. (p. 308)
Contemporaneousness Not Required: Chambers v. Maroney (1970). Held
that police can search a car after it is impounded, so long as probable cause
existed at the time it was stopped and taken into custody. (p. 309)
15
•
•
Motor Homes: California v. Carney (1985). Extended Carroll doctrine to motor
homes that are not at a fixed site b/c they have the same attributes of mobility as
a car. (p. 313-314)
Car as Contraband (Forfeiture statutes): Florida v. White (1999). Held that a
car used to deliver cocaine may be seized as contraband under the Florida
Contraband Forfeiture Act.
Moveable Property – In and Out of Cars
•
•
•
•
M.
Warrant Required to Search, but NOT to Seize: US v. Chadwick (1977).
Held that probable cause was sufficient to seize a footlocker, but not to search it
in the absence of a sufficient exigency (i.e. ticking). The diminished expectation
of privacy that applies to cars does not apply to footlockers. (p. 317)
Mobile Containers in Cars: Arkansas v. Sanders (1979). Held that a warrant is
required to search a suitcase placed in the trunk of a taxi.
US v. Ross (1982). Held that a warrantless search of a bag while searching the
entire car subject to probable cause was valid. Ross contrasts with Chadwick and
Sanders in that in Ross there was probable cause to search the entire car, whereas
there was only probable cause to search the containers in the others.
Containers Placed in Cars: California v. Acevdo (1991). Held that if police
have probable cause to search a container recently placed in a vehicle, they may
search that container, but the search may not extend to other parts of the car. (p.
319)
Example: Police have probable cause to believe that a briefcase that D is
carrying contains illegal drugs. Unless they arrest D, they may not make a
warrantless search of the briefcase b/c no exception to the warrant requirement
applies. They follow D, and he places the briefcase in a car. They may then
approach D and search the briefcase even though they could not search it before
it was placed in the car. They may not search the rest of the car, however,
because D has not had an opportunity to move the drugs elsewhere in the car.
Presumably, if some time passes and D has an opportunity to move the drugs, the
police will have probable cause to search the entire car.
Passenger’s Property: Wyoming v. Houghton (1999). Held that warrant not
required to search passenger’s purse where there was probable cause to believe
that drugs were in the car in which the purse was located. (p. 327)
Exigent Circumstances
331 – 351
•
•
Generally: State must show that immediate action was reasonably necessary to
prevent flight, or to safeguard police or public, or to protect against the loss of
evidence. Probable cause must still exist. Applies equally to arrests and
searches. (p. 332)
Hot Pursuit: Warden v. Hayden (1967). Held that the search of a suspects
home under pursuit to look for the suspect and weapons or evidence was justified
by “hot pursuit” exception. (p. 332)
16
•
•
•
•
•
•
•
•
•
N.
Welsh v. Wisconsin (1984). Held that hot pursuit cannot apply where suspect
does not know they are being pursued. (p. 332)
Police and Public Safety: O.J. Simpson Case. Police went into home of
Simpson to assure they were not in danger. (p. 333)
Risk of Destruction of Evidence: US v. MacDonald (2d 1990). I hate this case.
Police make a controlled buy, then return without warrant and announce.
Suspects try to flee, so cops break down door with battering ram. Court held that
risk of loss of the evidence created exigent circumstances.
Dorman Factors: Factors to consider whether exigent circs exist. (p. 339)
Murder Scene: Mincey v. Arizona (1978). There is no per se “scene of the
homicide” exception to the warrant requirement. Police must still make a factual
showing of exigent circumstances.
Minor Offenses: Welsh v. Wisconsin (1984). Held that exigent circumstances
must be narrowly construed when the home is the target of police conduct,
especially where the offense is relatively minor (driving while intoxicated).
Impermissibly Created Exigency: US v. MacDonald (2d 1990) (see p.16
above) Held that so long as police act in an entirely lawful manner, they do not
impermissibly create exigent circumstances. Here, it was OK that they returned
to the site of a controlled buy without a warrant and knock to ask that those
inside come out. Note: Other courts have held differently. (p. 344-346)
Prior Opportunity to Obtain Warrant: US v. Miles (2d 1989). Held that
police may wait until they have enough evidence to convict before arresting. (p.
347)
Telephone Warrants: US v. Cuaron (10th 1983). Held that exigent
circumstances is determined by whether the officer could have gotten a telephone
warrant before entry. (p. 348)
Seizure in absence of Exigent Circumstances: Segura v. US (1984). Securing
a dwelling, on the basis of probable cause, to prevent destruction or removal of
evidence while a search warrant is being sought is not itself an unreasonable
seizure of either the dwelling or its contents. (p. 349)
Drug Testing
351
368 – 390
Employees and Special Needs
•
Railroads: Skinner v. Railway Labor Exex. Ass’n (1989). Held that:
1. Federal regulation administered by private employer is subject to 4th
Amdt. scrutiny.
2. Testing of urine is a 4th Amdt. search.
3. Regulating railroad employees to ensure public safety presents a
“special need” beyond law enforcement.
4. No warrant required where there are standardized tests and
minimal discretion for those administering the program.
5. It is reasonable to have no individualized suspicion where privacy
interests are minimal and government interest important.
6. Particularized suspicion is impractical in the aftermath of an
accident.
(p. 368)
17
•
Customs Agents: Nat’l Treasury Employee’s Union v. VonRaab (1989).
Companion case to Skinner. Upheld drug tests of customs agents as a condition
of obtaining employment as a special need. (p. 370)
Suspicionless Drug Searches
•
•
•
O.
School Children: Vernonia School Dist. v. Acton (1995). Held that random
unrinalysis drug testing of student athletes is reasonable and, therefore
constitutional. The Court based its decision on: decreased expectation of
privacy of schoolchildren, relative unobtrusiveness, and the severity of the need
to monitor athlete “role models.” (p. 372, 378) Note: The Court relied heavily
here on the record indicating that athletes were at the center of the school’s drug
problem. (p. 381)
Politicians: Chandler v. Miller (1997). Invalidated a Georgia statute requiring
political candidates to certify a negative drug test result. The candidate drug test
diminishes personal privacy for symbols sake, which the 4th Amdt. shields
against. (p. 383)
HIV Testing: People v. Adams (Ill. 1992). Upheld an Illinois statute requiring
mandatory HIV testing for defendants CONVICTED of prostitution-related
crimes and other sexual misconduct. The court held that a “special need” in
stopping the spread of AIDS and informing and treating those who have had
sexual contact with the defendant. (p. 389)
Consent Searches
413 – 433
Voluntary Consent
•
•
•
•
A search based upon voluntary consent is always reasonable.
Voluntariness: Schneckloth v. Bustamonte (1973). Held that whether a consent
was voluntary must be determined by the totality of the circumstances, and
knowledge of the right to refuse consent in but one factor to be taken into
account. (p. 414)
Effect of Refusing Consent: US v. Prescott (9th 1978). Held that a person
cannot be penalized for exercising the right to refuse consent. It is privileged
conduct which cannot be considered as evidence of criminal wrongdoing. (p.
415)
Custodial Status: US v. Watson (1976). Held that while a person’s custodial
status is relevant to whether consent was voluntary, it is not dispositive. Note
that courts have gone so far as to hold that consent during an early morning
SWAT raid of a home, where D was forced to the ground at gun point was
voluntary consent! (p. 416)
Totality of the Circumstances Applied
•
•
•
Burden of Proof: Bumper v. N.Carolina (1968). Burden to show voluntariness
is on the government. (p. 416)
Silence: US v. Lindsay (DC 1974). Silence is not consent. (p. 416)
Lack of Coercion: US v. Mendenhall (1980). See “free to leave” above p.9.
Held that where suspect was free to leave, but accompanied police to interview
18
•
•
•
room, and was asked questions politely, and told twice she could decline consent,
then consent to purse and strip search was voluntary. (p. 416)
Factors to consider: see book p. 417.
Threats of Action for Refusal: US v. Duran (7th 1992). Threats to get a search
warrant if consent is refused is not coercive under 4th Amdt.
US v. Ivy (6th 1998). Held that threats of placing suspect’s child in foster care
made consent involuntary.
Stopped Persons do not have to be told they are Free To Leave: Ohio v.
Robinette (1996). Held that police do NOT have to tell individuals they are free
to leave after a stop. Again, it can be a factor in determining voluntariness, but it
is not dispositive. (p. 420). Also p. 13 above.
Subjective Attitudes Toward Authority
•
•
•
Foreign Nationals: US v. Zapata (10th 1993). Held that defendant’s attitudes
towards police are not a relevant subjective characteristic b/c they are intangible
and inherently unverifiable and unquantifiable. (p. 421)
Ambiguous Responses: US v. Price (7th 1995). Held that where police react to
an ambiguous response, the suspects failure to protest to the subsequent search is
crucial. (p. 422)
Reluctant Consent: US v. Rivas (5th 1996). Held that adding the word
“reluctantly” to a consent form showed suspect knew they had a right to refuse.
(p. 422)
Third Party Consent
•
•
•
•
•
•
•
•
Joint Use: Frazier v. Cupp (1969). Upheld search of a duffle bag when D’s
cousin, a joint user of the bag, voluntarily consented.
Actual Authority: US v. Matlock (1974). Held that property law does not
govern authority to consent, and any co-inhabitant that has access or control for
most purposes has the right to permit the search in his own right. Others have
assumed the risk that one of their number might permit the common area to be
searched. (p. 422)
Apparent Authority: Illinios v. Rodriguez (1990). An officer’s reasonable
belief that an individual has authority to consent will validate an entry. (p. 423)
Mistakes of Law: Stoner v. California (1964). Held that a hotel clerk does not
have apparent authority because it was unrealistic to believe so. (p. 424)
Landlords: US v. Brown (2d 1992). Landlords do not have authority to consent
to a search, and investigators erroneous belief is not reasonable. (p. 424)
Live-In Babysitters: US v. Dearing (9th 1993). Lacks apparent authority to
consent to search of employer’s bedroom. Police should have investigated by
inquiring into the extent of the babysitter’s authority. (p. 424)
Actual but not Apparent Authority: US v. Chaidez (7th 1990). Held that
actual authority justifies a search even where authority is not apparent. (p. 425)
Three Kinds of Authority: US v. Jenkins (6th 1996). Driver of rig gave
permission to search the rig’s trailer, although he said that he did not own the
stuff. Under the following categories, the court found that this fit into the third
class. First class: Officer would never be justified in believing the consenter
has authority. Second class: Reasonable officer would usually think consenter
does not have authority, but additional information indicates common authority.
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Third class: A reasonable officer would usually assume that a person in the
position of the consenter does have authority over the space. However,
additional information may change the context so that no reasonable officer
would maintain the default assumption. (p. 426)
Family Members: US v. Peterson (4th 1975). Parents with control over the
entire premises are generally allowed to consent to the search of the entire house,
including minor’s bedrooms. (p. 427)
Scope of Consent
•
•
•
•
A search beyond the scope of consent is not justified as a consent search.
Search of the person and genitals: US v. Blake (11th 1989). Consent to a
search of the person in an airport did not reasonably allow police to touch
suspects groin. Court held this was beyond the scope of suspect’s consent. (p.
427)
Defined by object of the search: Florida v. Jimeno (1991). Held that general
consent to search a car for drugs reasonably allowed officer to search a paper bag
on the floor of the car. The scope of a search is generally defined by its
expressed object. (p. 428)
Ambiguity construed Against the citizen: After Jimeno, it is up to the citizen
to clarify any ambiguity concerning the scope of the consent. (p. 429)
Withdrawing Consent
•
No retroactive withdrawal: US v. Dyer (7th 1996). Held that revocation must
be made before the search is over and cannot be revoked after the officer has
found incriminating information. (p. 430)
Credibility Determinations
•
P.
Testilying: US v. Heath (8th 1995). Stated that a credibility decision between a
citizen and police can almost never be clear error unless there is extrinsic
evidence that contradicts the witness’ story or is so internally inconsistent or
implausible that it cannot be credited. (p. 432)
The Exclusionary Rule
444 – 456
•
•
•
•
Established for Federal Courts: Weeks v. US (1914). Held that evidence
seized in violation of the 4th Amdt. must be excluded as evidence at trial. It is the
only effective means of protecting 4th Amdt. rights. (p. 445)
No Silver Platter Doctrine: Elkins v. US (1960). Abolished the silver platter
doctrine. (p. 446)
Unreasonable S&S Applied to States: Wolf v. Colorado (1949). The security
of one’s privacy against arbitrary government intrusion is implicit in the concept
of ordered liberty and as such enforceable against the States through the Due
Process Clause. (p. 446)
Exclusionary Rule Extended to States: Mapp v. Ohio (1961). Held that
because the 4th Amdt is enforceable against the states under Wolf, it is
20
•
Q.
enforceable against them by the same sanction of exclusion as is used against the
Federal Government. (p. 449)
Arguments for & against exclusion: see pp. 453-456.
Standing
465 – 484
Fourth Amdt rights are personal rights. The question of standing is determined by
whether the person seeking to suppress the evidence has had his own Fourth Amendment
rights violated.
•
•
•
•
R.
Automobiles: Rakas v. Illinois (1978). Held that because the petitioners
(passengers in a car searched) asserted neither a property or a possessory interest
in the automobile or an interest in the property seized (shotgun and shells), they
had no legitimate expectation of privacy. Rejects the “target theory” and the
“legitimately on the premises theory.” (p. 466)
Ownership of Property Seized Not Determinative: Rawlings v. Ky. (1980).
Held that ownership of drugs place in companion’s purse did not support a
legitimate expectation of privacy in the purse. Note: Ownership does give a right
to object to the seizure, so long as there is a legitimate possessory interest in the
property (not contraband). (p. 473)
Presence in the Home of Another: Minnesota v. Carter (1998). Held that third
parties in the home of another for the purpose of bagging cocaine had no personal
expectation of privacy in the place searched, so no 4th Amdt violation could be
supported. (p. 474)
Cars, Drivers, Passengers: US v. Carter (6th 1994). Held that the passenger,
Carter, did not have the right to object to the illegal search of the truck in which
he was travelling with the owner. The passenger is screwed! (p. 482)
US v. Lopez (CD Cal. 1979). Held that one given keys to a truck and had
permission to use it and did use it has the right to challenge a search of the truck.
(p. 484).
Fruits of the Search/Independent Source /Inevitable Discovery
489 – 511
Fruits of the Search
•
•
•
Personal Jurisdiction: Frisbie v. Collins (1952). Held that an illegal or
unconstitutional arrest of a person did not deprive the court of jurisdiction to try
the person. (p. 489)
Fruits of the Poisonous tree: Brown v. Illinois (1975). Held that confessions
obtained 90 minutes after an illegal arrest had to be excluded as fruits of an arrest
without probable cause. Factors to consider are: temporal proximity to the
arrest, presence of intervening circumstances, and the purpose and flagrancy
of the official misconduct. This case is distinguished from Wong Sun (1963),
because in Wong Sun the suspect returned to the station to make his confession
after he had been released. (p. 492)
Temporal Element: Taylor v. Alabama (1982). Held that six hours was not
sufficient to evaporate the taint of the illegal arrest where the suspect was in
21
•
police custody the whole time and subjected to questioning without counsel
present. (p. 494)
Rawlings v. Taylor (1980). Held that a 45 minute detention in an airport
interview room, in a “congenial atmosphere,” did not involve flagrant
misconduct and seemed to be the result of the discovery of evidence rather than
the product of the illegal detention. (p. 494)
Warrantless In-Home Arrests: NY v. Harris (1990). Held that a violation of
Payton constitutes an illegal search of the home, but it does not result in an
illegal arrest, so long as there is probable cause; and while evidence obtained in
an illegal search of the home is subject to exclusion, there is no automatic
connection between that search and a subsequent confession outside the
home. (p. 495)
Independent Source
•
•
Subsequent Warrants: Segura v. US (1984). Held that police officers’ illegal
entry upon private premises did not require suppression of evidence subsequently
discovered at those premises when executing a search warrant obtained on the
basis of information wholly unconnected with the initial entry. (p. 498 in Murray)
Plain View: Murray v. US (1988). Held that evidence discovered in plain view
during a prior illegal entry is not excluded when obtained pursuant to an
independently obtained warrant. That is, so long as the evidence is not seized
during the illegal entry, it is not excluded when later seized pursuant to an
independently valid warrant. (p. 498)
Inevitable Discovery
•
Searches Terminated Pursuant to Illegally Obtained Statements: Nix v.
Williams (1984). To invoke the inevitable discovery exception, the government
must prove by a preponderance that the challenged evidence would have been
discovered through independent legal means. (p. 507) Evidence concerning the
body was nonetheless admissible because a search had been under way which
would have discovered the body, had it not been called off because of the
discovery produced by the unlawfully obtained statement. (p. 499 in Murray)
Other Considerations
•
•
Mixed Warrants: US v. Markling (7th 1993). A search warrant procured in part
on the basis of illegally obtained information will still support a search if the
untainted information supporting the warrant, considered alone, is sufficient to
establish probable cause. (p. 503)
Severity of the Official Misconduct is Relevant: US v. Madrid (8th 1998).
Held that Murray and Segura do not require application of the inevitable
discovery doctrine without regard to the severity of the police misconduct. (p.
505)
22
S.
Good Faith/Alternatives to Exclusion
522 – 534
550 – 555
Good Faith
•
Warrants Later Invalidated: US v. Leon (1984). Where police rely on a
warrant that is facially valid, but is later invalidated, then the evidence obtained
through the warrant is not necessarily excluded. The officer’s reliance on the
magistrate’s probable cause determination and on the technical sufficiency of the
warrant issued must be objectively reasonable. (p. 523)
Alternative to Exclusion
•
Damage remedies, criminal prosecution, internal police discipline. See
discussion pp. 550-555.
III. The Fifth Amendment – Self-Incrimination and Confessions
A.
The Fifth Amendment Privilege
556 – 561
Is it a good thing? See chart in book.
B.
Confessions and Due Process
618 – 635
Remember, Miranda AND Due Process apply.
Due Process Cases
•
Involuntariness: Brown v. Mississippi (1936). Held that severe whippings used
to procure confessions from helpless defendants, made the confessions
involuntary and violated basis due process rights.
Circumstances relevant to Involuntariness:
A case by case analysis must be done.
•
•
•
•
Personal Characteristics of Accused: See cases p. 620. Fifth grade education;
illiterate; illiterate mental defective; insanity; completed one year of law school;
young, soft, ignorant or timid.
Physical Deprivation or Mistreatment: severe brutality, denial of food or sleep,
being allowed to smoke.
Psychological Influence: sustained pressure; incommunicado confinement;
trickery; sustained interrogation; threat of mob violence; rewards and
inducements; awareness of constitutional rights to counsel and silence.
Totality of the Circumstances: Spano v. New York (1959). Held that
voluntariness is determined by looking at the totality of the circumstances,
23
•
•
•
•
•
including the suspect’s age, education, and mental and physical condition, along
with the setting, duration and manner of police interrogation. (p. 624)
Deception and False Promises: Green v. Scully (2d 1988). Held that promises
to get suspect psychiatric help, threatening the electric chair, and making false
claims about evidence did not make the confession involuntary. (p. 627)
False Documentary Evidence: Florida v. Cayward (Fl.App. 1989). Held
confession involuntary where police fabricated a DNA report implicating the
suspect. (p. 628)
Promises of Consideration: US v. Baldwin (7th 1995). A false promise of
lenience is forbidden, but buying information with honest promises of
consideration are not forbidden. (p. 629)
Threats of Physical Violence: Arizona v. Fulminante (1991). A confession
made by one prisoner to another under coercion is involuntary under the Fifth
and Fourteenth Amendments. (p. 629)
Focus on Police Misconduct: Colorado v. Connelly (1986). Due process
considerations are focused on police misconduct, so the fact that suspect
confessed because voices told him to do it did not make the statement
involuntary. (p. 630)
Special Rules for Federal Cases
•
•
C.
Mallory/McNabb Rule: McNabb v. US (1943) and Mallory v. US (1957).
Court invoked its supervisory power to exclude confessions obtained during a
period in which officers delayed, without cause, in presenting the suspects to a
judicial officer for a preliminary hearing. (p. 632)
18 USC 3501: Note: This statute is superceded by Miranda. It says that the
court may consider a number of factors in deciding whether a confession was
voluntary, but no one is determinative by itself.
US v. Alvarez-Sanchez (1994). Section 3501 does not apply where a suspect is
being held on state charges only.
Miranda/Dickerson
635 – 660
Supp. 21 – 35
•
•
Custodial Interrogations: Miranda v. Arizona (1966). The prosecution may
not use statements, whether exculpatory or inculpatory, stemming from custodial
interrogation unless it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination (Fifth Amendment). The person
must be warned that he has a right to remain silent, that any statement he does
make may be used as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed. (p. 636)
18 USC 3501 does NOT overrule Miranda: Dickerson v. US (2000). Held
that Miranda and it’s progeny in the S.Ct. govern the admissibility of statements
made during custodial interrogation in both state and federal courts. Because
Miranda announced a constitutional rule, Congress does not have the power to
supercede it legislatively. (supp. p. 21)
24
BIG NOTE: Dickerson is to be read as MODIFYING the Miranda’s
constitutional rules, despite the fact that they are based upon the principle that
Miranda is not a constitutional rule.
D.
Miranda Exceptions/Defining Custodial Interrogation
660 – 691
•
•
•
•
•
Impeaching the Defendant-Witness: Harris v. New York (1971). Held that
Miranda-defective statements may not be used for substantive evidence, but may
be used to impeach the credibility of defendant if they take the stand. (p. 660)
Involuntary Statements Excluded for ALL Purposes: Mincey v. Arizona
(1978). If a confession is involuntary, as opposed to merely Miranda-defective,
it cannot be admitted even for impeachment purposes. (p. 662)
Impeachment by Prior Silence: Dolyle v. Ohio (1976). AFTER Miranda
warnings are given, the Due Process Clause prohibits the government from using
the defendant’s silence against him.
Pre-Arrest Silence: Jenkins v. Anderson (1980). Impeachment by use of prearrest silence does not violate the Fourteenth Amdt. In this case, D waited two
weeks to turn himself in for a murder for which he claimed self-defense.
Post-Arrest, Pre-Miranda Silence: Fletcher v. Weir (1982). This case is
absolute bullshit. Post-arrest, Pre-Miranda statements may be used to impeach
the D at trial.
Fruits of Miranda Violations
•
•
•
•
•
•
Leads to Witnesses: Michigan v. Tucker (1974). The failure to give full
Miranda warnings required exclusion of Tucker’s confession, but not the
testimony of Henderson, who police were led to through the excluded confession.
(p. 665)
Subsequent Confessions: Oregon v. Elstad (1985). Held that where D makes a
Miranda-defective statement, subsequent Mirandized statements are not excluded
as fruits of the first statement. That is, there is no “cat out of the bag” coercion
rule. (p. 666)
But, First Confession Involuntary: Id. If Elstad’s first confession was
INVOLUNTARY under Due Process analysis, then the second confession would
have to be excluded if it were derived from the first. (p. 668)
Mirandized statements immdediately after Non-Mirandized statements: US
v. Carter (8th 1989). The second confession is properly excluded, distinguished
from Elstad b/c there was no passage of time to speak of b/w the warned and
unwarned statements. (p. 669)
Physical Evidence: NY v. Quarles (1984) (O’Connor concurrence). Physical
evidence obtained as fruit of a Miranda-defective confession should not be
excluded. (p. 670)
Emergency Exception: NY v. Quarles (1984). The need for answers to
questions in a situation posing a threat to the public safety outweighs the need for
the prophylactic rule protecting the Fifth Amendment’s privilege against selfincrimination. An unwarned confession under such circumstances is admissible
despite Miranda. (p. 671)
25
What is custody?
•
•
•
•
•
•
•
Arrest: Orozoco v. Texas (1969). A person under arrest is in custody. (p. 675)
Prisoners: Mathis v. US (1968). Although D was in jail for reasons unrelated to
the tax investigation, he was still in custody and IRS agents’ failure to Mirandize
violated his constitutional rights. (p. 675)
Garcia v. Singletary (11th 1994). The question is whether prison official’s
conduct would cause a reasonable person to believe his freedom of movement
has been further diminished.
Interrogation at the Police Station: Oregon v. Mathiason (1977). An
individual who came voluntarily to the police station and was told he was not
under arrest was not in custody. (p. 676)
Probation Meetings: Minnesota v. Murphy (1984). The privilege against selfincrimination was not violated where a probationer was called to the probation
officer’s office and questioned about a murder. Murphy was not arrested or
otherwise in custody. (p. 677)
Suspects who are unaware they are suspects: Stansbury v. California (1994).
Whether a police officer considers a person under interrogation to be a suspect is
irrelevant where that belief has not been manifested to the person interrogated.
(p. 677)
Terry Stops: Berkemer v. McCarty (1984). Terry stops are not custodial for
Miranda purposes. The determination whether someone is considered stopped or
arrested also determines whether custody exists under Miranda. (p. 678)
Relevant Factors to Determine Custody: see p. 678 in book.
What is Interrogation?
•
•
•
•
•
E.
Walk-In Confessions: A person who walks in and immediately confesses to a
crime is not under interrogation.
Passive Conversation by Police: Rhode Island v. Innis (1980). Direct
questioning as well as a practice that police should know is reasonably likely to
evoke an incriminating response from a suspect amounts to interrogation.
Amazingly, the Court did not find such conduct to exist in this case. (p. 680)
Confrontation with Incriminating Evidence: Edwards v. Arizona (1981).
Edwards had been interrogated when police played a tape recorded statement of
his associate implicating Edwards. (p. 685)
Booking Exception: Pennsylvania v. Muniz (1990). Officers can ask questions
attendant to custody without Mirandaizing, and if the suspect’s answers are
incriminating, they are admissible. (p. 686)
Undercover Interrogation: Illinois v. Perkins (1990). Where undercover police
officer place in suspect’s cell, statement was admissible because Miranda was not
meant to protect suspects from boasting about their criminal activity in front of
persons they believe to be their cellmates. (p. 689)
Waiver of Miranda Rights
691-719
•
•
Waiver of right to counsel and to remain silent must be voluntary, knowing and
intelligent.
Silence after warning is not enough to constitute waiver.
26
•
Express statement of waiver or written waiver are not required. N.C. v. Butler
(1979)
Knowing and Voluntary
•
•
•
•
•
•
Two requirements: Moran v. Burbine (1986). Voluntary means product of free
and deliberate choice. Also, statement must be made with full awareness of the
nature of the right being abandoned and the consequences of that decision. (p.
692)
Simply Reading Rights is NOT Enough: Tague v. Louisiana (1980). A valid
waiver could not be found simply by the fact that the warnings are given and the
suspect confesses. (p. 692)
Suspect Acknowledgement: US v. Frankson (4th 1996). Suspects
acknowledgement that he understood his rights and his subsequent willingness to
answer questions is sufficient to constitute an implied waiver. (p. 692)
Mental Defect: Smith v. Zant (11th 1989). IQ is relevant in determining if
suspect knowingly and intelligently waived. IQ of 65 was not sufficient to
support such a showing. (p. 693)
Language Barrier: US v. Garibay (9th 1998). Government burden of showing
intelligent waiver not met where suspect’s primary language was Spanish,
warnings read in English, and suspect was borderline retarded with very low
verbal-English comprehension. (p. 694)
Conditional Waiver: Connecticut v. Barrett (1987). Waiver indicating D would
not give a written statement was a knowing and voluntary, so did not prevent his
oral confession from being used. (p. 696)
Intelligent
•
•
•
•
Scope of the Interrogation: Colorado v. Spring (1987). A suspect’s awareness
of all the possible subjects of questioning in advance of interrogation is not
relevant to determining whether the suspect voluntarily, knowingly, and
intelligently waived his Fifth Amendment privilege. (p. 697)
Inadmissibility of Previous Confession: Oregon v. Elstad (1985). Police do
not have to advise suspects that a prior Miranda-defective confession is not
admissible against them in order to make a valid waiver. (p. 698)
Efforts of Lawyer to Contact Suspect: Moran v. Burbine (1986). A suspects
ignorance of the efforts of a lawyer to contact him, even where such contact is
obstructed by police, can have no bearing on the capacity to comprehend and
knowingly relinquish a constitutional right. (p. 699)
State of Mind of Police Irrelevant: Id. The state of mind of the police is
irrelevant to the question of the intelligence and voluntariness of a suspect’s
election to abandon his rights. (p. 700)
Waiver After Invocation of Miranda Rights
•
Right to Silence: Michigan v. Mosley (1975). Upheld confession to a murder
where suspect had previously invoked his right to silence with regard to a
separate robbery. (p. 703)
27
•
•
•
•
•
•
•
•
•
F.
Honoring an Invocation of Silence: Basically, police have to allow the suspect
a “cooling off period” before attempting to resume questioning. Repeated
attempts becomes problematic. See examples p. 704.
Ambiguous Waivers: US v. Davis (1994). Questioning can continue where
invocation of right to counsel is ambiguous or equivocal.
US v. Banks (7th 1996). Questioning can continue where invocation of right to
silence is ambiguous or equivocal. (p. 705)
Right to Counsel: Edwards v. Arizona (1981). Established a per se rule that
when an accused has invoked the right to counsel during interrogation, a valid
waiver is not established by showing only that he responded to further policeinitiated interrogation. Subsequent suspect-initiated communication is a valid
waiver of the right. (p. 707)
What is Initiation?: Oregon v. Bradshaw (1983). Simply asking “what’s going
to happen to me next,” was sufficient to be suspect-initiated communication. (p.
708)
Ambiguous Invocation of Right to Counsel: Davis v. US (1994). Held that
officers do not have to clarify an ambiguous invocation of the right to counsel
before continuing questioning. (p. 710)
Explicit Invocation: Smith v. Illinois (1984). Where nothing about the request
for counsel is ambiguous, all questioning must stop. (p. 713)
Unrelated Crimes: Arizona v. Roberson (1988). An invocation of right to
counsel under Edwards is not offense-specific. (p. 713)
Which Right to Counsel is Invoked?: McNeil v. Wisconsin (1991). An
accused who is arraigned and asks for counsel is invoking the Sixth Amendment,
rather than Miranda, and an invocation of Sixth Amendment rights is offensespecific. (p. 714)
After Consultation with an Attorney: Minnick v. Mississippi (1990). Miranda
rights to counsel continue even after the suspect has consulted with an attorney
and the attorney has left. (p. 716)
Confessions and the Sixth Amendment Right to Counsel
719 – 744
•
•
•
•
The Massiah Rule: Massiah v. US (1964). Petitioner was denied the basic
protections of the Sixth Amendment guarantee where his post-indictment
statements made when counsel were not present, were used against him at trial.
This is so even though petitioner was out of jail on bail. (p. 720)
When have “proceedings” begun?: Brewer v. Williams (1977). Williams was
arraigned in a court across state, before being transported back to Des Moines to
stand trial. Williams confessed on the car ride back. The Court held that on the
facts of the case, Williams did not waive his right to counsel, despite the fact that
he could have. (p. 723)
Formal Charge attaches the right: US v. Gouveia (1984). Held that the 6th
Amdt right to counsel only attaches after formal charges have been brought. (p.
730)
Psychiatric Defenses: Estelle v. Smith (1981). D’s right to counsel was violated
when he was interviewed by a gov’t psychiatrist who was trying to get
information that could be used at a capital sentencing hearing, and D had not
waived right to counsel before answering questions.
28
•
•
•
Buchanan v. Kentucky (1987). No violation of 6th Amdt. where defense counsel
joined request of gov’t for a psychological evaluation.
Powell v. Texas (1989). 6th Amdt violated where D subjected to psychological
examination and defense counsel was not informed that D would be examined on
the issue of future dangerousness. (p. 731)
Jailhouse Plant: US v. Henry (1980). By placing a paid jailhouse informant in
the suspect’s cell, the gov’t intentionally created a situation likely to induce
Henry to make incriminating statements without the assistance of counsel,
violating his 6th Amdt right. (p. 733)
Listening Post: Kuhlmann v. Wilson (1986). The 6th Amdt was not violated
where police put a jailhouse informant in “close proximity” to D, and D made
statements to the informant without any effort on the informant’s part to elicit the
statements. (p. 735)
Additional Uncharged Offenses: Maine v. Moulton (1985). Incriminating
statements pertaining to pending charges are inadmissible at the trial of those
charges, notwithstanding the fact that the police were also investigating other
crimes, if, in obtaining the evidence, the State violated the 6th Amdt by
knowingly circumventing the accused’s right to the assistance of counsel. (p.
737)
Waiver of Sixth Amendment Protections
•
•
•
Miranda Satisfies Sixth Amdt Notice: Patterson v. Illinois (1988). The
Miranda warning also sufficed to let petitioner know what a lawyer could do for
him during the postindictment questioning; namely, advise petitioner to refrain
from making any statements. (p. 738)
Waiver after Invoking: Michigan v. Jackson (1986). Where accused formally
requests counsel at arraignment, he can only have waived his Sixth Amdt rights if
he had initiated a later conversation and knowingly and voluntarily waived his
rights; this he had not done. (p. 740)
Other Uncharged Offenses: McNeil v. Wisconsin (1991). An invocation of the
Sixth Amdt right to counsel is “offense-specific.” (p. 741)
IV. Identifications
745 – 778
•
•
•
•
Line-ups/Independent Source: US v. Wade (1967). Right to counsel applies to
ALL pre-trial proceedings, including out-of-court line ups. If, however, the
subsequent in-court ID can be supported by an independent source (other than the
illegal out-of-court line-up), then it is admissible. (p. 746)
Gilbert v. California (1967). Companion case to Wade. Established a per se rule
of exclusion where counsel are not present at the line up, subject to the Wade
independent source rule. (p. 752)
No Pre-Indictment Right: Kirby v. Illinois (1972). At a show-up line-up ID,
where the criminal prosecution has not begun, no lawyer is required to be
present. (p. 753)
No Right for Photo ID’s: US v. Ash (1973). No right to counsel at ANY photo
ID, whether conducted pre- or post-indictment or formal charge. (p. 756)
Due Process Limits/Exigent ID’s: Stovall v. Denno (1972). Held that Due
Process requires exclusion of any ID where police suggestiveness is excessive.
29
•
•
•
The Court in this case did not find a Due Process violation where the suspect was
the only person takeng to the hospital where the only witness was in critical
condition. (p. 757)
Court’s ONLY Finding of DP Violation: Foster v. California (1969). Held
that multiple exposures to the suspect where he was the only suspect in all of the
line-ups was excessively suggestive. (p. 760)
The Crime as Independent Source: Neil v. Biggers (1972). Although the
stationhouse ID was suggestive, the witness’ (a rape victim) experience with the
suspect satisfied the independent source rule. (p. 761)
Reliability is Linchpin of Admissibility: Manson v. Brathwaite (1977).
Reliability is the linchpin in determining the admissibility of identification
testimony for both pre- and post-Stovall (emergency) confrontations. The court
set out five factors to determine reliability:
1. Witness’ opportunity to view the witness at the time of the crime.
2. Degree of witness’ attention at time of the crime.
3. Accuracy of the witness’ prior description.
4. Level of certainty of witness at the time of the out-of-court ID.
5. The length of time passing between the crime and the out-of-court
ID.
All of these factors should be weighed against the corruptive effect of the
impropriety.
V.
The Sixth Amendment Right to Counsel
779 – 802
•
•
•
•
•
Applies to Felonies: Gideon v. Wainwright (1963). Held that the right to
assistance of counsel applies to all felony trials. (p. 784)
Potential Loss of Liberty is Required: Scott v. Illinois (1979). Right to
counsel applies to misdemeanor trials where imprisonment is ACTUALLY
imposed (not were it simply could have been imposed). (p. 789)
Enhancement Statutes: Nichols v. US (1984). An uncounseled misdemeanor
conviction, valid under Scott because no prison term was imposed, is also valid
when used to enhance punishment at a subsequent conviction. (p. 792)
All Critical Stages: US v. Wade (1967). The Sixth Amendment guarantee
applies to all critical stages of criminal proceedings. (p. 793)
Post-Trial Stages: Douglas v. California (1963). Counsel required at all
appeals given as a matter of right. (p. 798)
30