Criminal Procedure Study Guide

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Crim Pro Study Guide

Arrest, Probable Cause, Search Warrants

General Principles
1. Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
2. Applicable to both searches and arrests
  1. Way in litigation arises: if search was conducted in violation of 4^th Amnd, evidence which was obtained as a result of the search will not be admissible at trial, in either federal or state courts (Mapp v Ohio)
  2. Invalid arrest no defense: the unconstitutionality of an arrest, unlike that of a search, is in itself of little use to a D, since it cannot serve as a defense. A D may be tried and convicted regardless of the fact that his arrest was made in violation of the 4^th Amnd.
    1. Importance of valid arrest: when evidence is seized as part of a warrantless search conducted incident to an arrest, the D will therefore frequently argue that the arrest itself violated the 4^th Amnd, that the search was thus invalid, and that the evidence obtained from it is inadmissible under Mapp v Ohio.
3. Two clauses of 4^th Amnd: if a warrant is used, the Amnd requires that it not be issued unless there is probable cause; whether or not there is a warrant, the Amnd requires that the arrest or search not be unreasonable
Areas protected by the 4^th Amnd
1. Protected places approach: until 1967, 4^th Amnd protected certain places, limited to private property & curtilage owned by the subject of the search
2. Katz and the “reasonable expectation of privacy” doctrine: Katz v US (eavesdropping on public phone case): overrules this. 4^th Amnd applies to any gov search or seizure that interferes with a person’s reasonable expectation of property, even if there was no interference with property.
  1. Protection of people: “The 4^th Amnd protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4^th Amnd protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”
  2. Privacy approach: Concurrence by Harlan test:
    1. First, that a person have exhibited an actual (subjective) expectation of privacy and
    2. Second, that the expectation be one that society is prepared to recognize as reasonable
3. Trespassory Intrusions: Bond v US (squeezing luggage on public bus case): violated 4^th Amnd search even though no trespass. “Although a passenger clearly expects that his bad may be handled, he does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner.” The exploratory squeezing by the gov agents here went beyond what D reasonably expected, and therefore invaded his reasonable expectation of privacy.
  1. Physically invasive inspection is simply more intrusive than purely visual inspection
4. Effect of Katz on curtilage concept
  1. US v Dunn test to determine if curtilage is considered private:
    1. The proximity of the home to the area claimed to be curtilage
    2. Whether the area is included within an enclosure that surrounds the home
    3. The nature of the uses to which the area is put
    4. The steps taken by the resident to protect the area from observation by people passing it
5. Open fields: open fields beyond the curtilage are not protected by the 4^th Amnd (Oliver v US)
6. Curtilage in cases of aerial observation
  1. Dow Chemical Co v US: gov uses private plane to fly over open field is ok. D didn’t make any effort to protect against aerial surveillance & open areas here were not immediately adjacent to a private home, where privacy expectations are most heightened.
7. Property protected, not just privacy: Soldal v Cook County: even if police don’t interfere with a person’s privacy rights, the 4^th Amnd protects against gov interference with property, not just privacy (can’t disconnect a trailer and haul it away if it’s someone’s property).
8. Transfer to third person: the fact that the D has transferred property or info to a third person may indicate that he no longer has a reasonable expectation of privacy with respect t that property
  1. Bank records: (US v Miller) no reasonable expectation of privacy with respect to bank documents given to a D’s bank. “The 4^th Amnd does not prohibit the obtaining of info revealed to a third party and conveyed by him to gov authorities, even if that info is revealed on the assumption that it will be used only for a limited purpose and the confidences placed in the third party will not be betrayed.”
9. Phone pen register: one who uses a phone, even in his own home, has no justifiable expectation of privacy with respect to the numbers being called (Smith v Maryland).
10. Privacy expectations may continue: nonetheless, the fact that the D has transferred property of info to a third person does not automatically mean that he no longer has a justifiable expectation of privacy with respect to it. For instance, a person who sends a package through the mails is normally entitled to assume that the gov will not open it and inspect it (Walter v US).
11. Third Party’s knowledge limits privacy interest: but if a search is performed by a private individual who is not acting as an agent of the gov, there can be no 4^th Amnd violation no matter how unreasonable the search is
  1. US v Jacobsen (fed ex employee searched item, found drugs, called police): if a gov agent performs a search or seizure of the same material which has already been subjected to a private search or seizure, the gov will be deemed to have intruded upon the owner’s privacy interest only to the extent that the governmental search or seizure exceeds the scope of the private one.
    1. The gov’s conduct in taking custody of the package from a private freight company was a 4^th Amnd seizure. However that seizure was not unreasonable.
12. Yes/no test for contraband: a party who possesses contraband has no legitimate expectation of privacy with respect to that possession. A chemical test that merely discloses whether or not a particular substance is contraband (and that does not disclose what the substance is if it is not contraband) does not violate any legitimate interest in privacy. Therefore, such a test may be performed without PC and without a warrant.
13. Controlled delivery doctrine: when a common carrier or customs officer discovers contraband in transit, the police may make a controlled delivery of the container to the person to whom it is addressed. The police witness the addressee taking possession of the container, and perhaps prosecute him. So long as the initial discovery of the contraband is lawful, neither the shipper nor the addressee has any justifiable expectation of privacy in the contents any longer. Therefore, the police may at the conclusion of the controlled delivery seize the container, and re-open it, without procuring a warrant (Illinois v Andreas).
  1. Break in “control:” ask whether there is a substantial likelihood that the contents of the container had been changes during the gap in surveillance.
14. Trash and other abandoned property: when a person puts trash out on the curb to be picked up by the garbage collector, the police may search that rash without a warrant (CA v Greenwood).
  1. If police suspect (even without PC) that a person may have committed a crime evidence of which might be contained in his trash, they can simply inspect the trash themselves, or request the trash collector to turn that person’s trash over to them.
  2. Trash still on property: Ct assumes trash is on public property, but could just ask trash collector to go on there and give it to them. Seems that it would be ok. See practice exam
15. Abandoned houses and hotel rooms: where the D’s absence from his apartment was due to his arrest or imprisonment, no intention to abandon it (US v Robinson, 6^th circ)
  1. Building destroyed by fire: a property owner’s reasonable expectation of privacy is not vitiated merely because of the property’s destruction by fire (Michigan v Tyler; Michigan v Clifford). At least as to an initial search for causes of the fire, there were exigent circumstances justifying a warrantless search.
16. Jail cells: a prisoner has no “legitimate expectation of privacy” in his prison cell (Hudson v Palmer).
17. Social gusts: Social gusts at a private home generally have a legitimate expectation of privacy in that home. But where a person’s visit is solely for a business purpose, not really a legitimate expectation of privacy regarding the premises, especially where the visit is a brief one (Minnesota v Carter).
  1. Overnight guests: Minnesota v Olson: this guest clearly has a legitimate expectation of privacy and consequently the police may not normally make a warrantless arrest of warrantless search of the premises where the D is staying. If the owner of the premises consents to the search, the D is SOL. But if the owner is not home, as in Olson, the police may not enter the premises to arrest the guest or to search for evidence against him, unless the police have a warrant or an exception to the warrant requirement applies.
18. Limited to area to which guest have access: guest expectation of privacy will extend only to those portions of the premises to which the host has given the guest access.
The “Plain View” Doctrine – objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence (Harris v US). (Like a window – People v Wright)
1. Warrantless seizure of evidence: the fact that an object, say contraband or evidence of crime, is in plain view does not automatically give the police the right to seize that object without a warrant. For seizure to be proper, there must either be a generally applicable warrant in force, or some exception to the warrant requirement (Texas v Brown)
2. Search with warrant: when the police have obtained a valid search warrant describing particular items, and during the course of their search they discover an object which is not covered by the warrant, but which is obviously contraband or evidence or a crime, they may seize that object without getting a new warrant specially covering it. Similarly, if the police are already on private premises pursuant to some exception to the warrant requirement, they may seize contraband or incriminating evidence.
3. Items for sale don’t lose privacy expectation: just b/c merchant has items on display in order to sell them to the public does not mean that he has no legitimate expectation of privacy (Lo-Ji Sales v NY)
4. Use of mechanical devices – where police stand on public property, but use mechanical devices to obtain the view of D or his property, the plain view doctrine will often apply
  1. Flashlights ok (Texas v Brown)
  2. Binoculars ok (Johnson v State, state appeals ct)
5. More sophisticated devices: “plain view” doctrine still met if:

Electronic beeper on car: (US v Knotts) use of the beeper to follow the car on public roads does not violate the driver’s reasonable expectation of privacy
1. Within protected area: no violation in Knotts b/c the beeper only enabled the police to learn info, which could have been learned through ordinary plain view surveillance. But if a beeper is used to elicit info that could not be obtained by an officer using his own eyes from a public place, an intrusion of constitutional significance takes place.
US v Karo: D bought can from informant that had beeper in it. Held: the transfer to D of the beepered can did not infringe any 4^th Amnd interest of D’s; only the monitoring of the signal could be a constitutionally significant intrusion.
1. The fact that a beeper inside a can of ether allowed the police to learn that the can was in a particular house, and to obtain a search warrant for that house, meant that he monitoring of the beeper was a 4^th Amnd search: use of the beeper revealed a critical fact about the interior of the premises that the Gov was extremely interested in knowing and that it could not have otherwise obtained without a warrant

Aerial Camera: not publicly available: the court in Dow Chemicals indicated that had the equipment been of a type that was not generally available to the public, the result might be otherwise.
Mechanical devices not in general public use: if not in general civilian use, and employed from public place to gain views that could not be had by the naked eye, the it’s a search,
1. Thermal Imaging: Kyllo v US: police used thermal imagining device to see if D was growing MJ, not ok.
Limitations on the new rule: no use of high tech devices applies only when
1. Interior of home only: info regarding interior of home only is protected
2. Resident or owner: applies only where the device is used against a resident or owner of the home in question
3. Not in general public use: applies only to the extent that the technology is not in general public use. So as a particular type of technology becomes more broadly used by civilians, individuals’ privacy interest in being shielded from the tech diminishes
4. Police can get warrant: doesn’t say police can’t use tech, just that the devices constitutes a search, requiring a warrant
Aerial observation by plane (CA v Ciraolo) ok and by helicopter (Florida v Riley) ok.
Use of other sense:
1. Plain touch: Minnesota v Dickerson upheld a plain touch or plain feel doctrine, where an officer is conducting a frisk or pat down pursuant to Terry v Ohio, the officer may seize any object which his sense of touch gives him PC to believe is contraband, etc.
2. Must have right to do the touching in the first place
Canine sniff test of person’s luggage at airport (US v Place) is ok & outside of a person’s car (Illinois v Caballes) is ok.
Inspection of contents of container: if a package or container is in plain view, its contents cannot normally be inspected under the plain view doctrine (US v Chadwick: police seizure of foot locker does not imply the right to open and inspect the contents). Unless in automobile under automobile exception (US v Ross)
Police illegally on D’s property: US v Dunn – police trespassed onto D’s field and then looked into his barn is ok b/c police were standing on curtilage.

Probable Cause Generally
1. Basic Requirements for PC
  1. PC to arrest: two conclusions must be justified by substantial, trustworthy, evidence
    1. That a violation of the law has been committed; and
    2. That the person to be arrested committed the violation
  2. PC to search:
    1. That the specific items to be searched for are connected with criminal activity; and
    2. That these items will be found in the place to be searched
Particular Info Establishing PC
1. Totality of circumstances test: whether an informant’s info creates PC for a search or arrest is to be determined by the totality of the circumstances (Illinois v Gates). So long as a neutral magistrate can reasonably determine that, based on the informant’s info and all other available facts, there is PC to believe that a search or arrest is justified, he may issue the warrant
  1. Aguilar’s two-pronged test: Earlier test overruled by Gates came from Aguilar v Texas (as amplified by Spinelli v US) in which material from an informant could suffice to establish PC for a search or arrest only if two conditions were EACH met:
    1. There had to be evidence that the informant was a reliable witness (either bc he had been reliable in the past, or bc there were special reasons to believe that his info in this particular case was reliable); and
    2. There had to be facts showing the basis of knowledge of the informant, that is, the particular means by which he came upon the information, which he supplied, to the police.
  2. Corroboration: However, satisfaction of either (or both) prongs of the Aguilar test could be accomplished if the police supplied corroborating info distinct form the informant’s report (Draper v US – informant gives tip, then police get info that matches tip, is ok)
2. Corroboration: Corroboration of aspects of the informant’s story may be combined with the story itself, in determining whether there is PC. This is especially likely to be the case where (1) the informant’s identity is not known to the police; and (2) the corroboration is of the future action of third parties that are ordinarily not easily predicted.
3. Suspect criminal reputation: may be considered in determining PC, if supporting facts indicating past criminality are also present (US v Harris)
  1. Declaration against interest: Harris ct attached great important to he fact that the informant’s info constituted an admission that the informant had violated the law. Admission of crime, like admissions against proprietary interests, carry their own indicia of credibility – sufficient at least to support a finding of PC to search.
4. Ordinary citizen: Us v Lewis is an example of this – “totality of circumstnaces” test presumably means that the usual reliability of law-abiding citizens will be a factor which the magistrate may take into account in determining whether PC exists.
5. PC in White v US: 8^th Circ allowed the collective info of all the officers to be considered in determining whether PC for a warrantless search had existed.
Search Warrants – Issuance and Execution
1. Requirement of particular description: 4^th Amnd requires that a warrant contain a particular description of the premises to be searched, and the things to be seized. The courts have interpreted this language to require that the warrant be specific enough that a police officer executing it, even if he had no initial connection with the case, would know where to search and what items to seize.
  1. Places to be searched: (1) Whether the warrant enables the officer to locate and identify the premises with reasonable effort; and (2) whether there is any reasonable probability that another premises might be mistakenly searched. (Lyons v Robinson, 8^th circ)
  2. Search of persons: name or at least a description of him so complete that it is unlikely to apply to anyone except the suspect
  3. Things to seized:
    1. Contraband: does not have to be described as particularly as material which is innocuous on its face and sought only bc of its connection with a particular crime.
    2. Automobile Search: a warrant may sometimes be required for the search of an auto. Where this is the car, the warrant should contain either the car’s license number, or its make and the name of its owner.
    3. What may be seized: items whose only interest to the police is that they may be introduced in to court to incriminate the D have only since 1967 been subject to seizure. Prior to that, a doctrine known as the “mere evidence” rule prevented the seizure of such items, largely on the grounds that the gov had no valid property inter in them (Gouled v US)
    4. Warden v Hayden: overrules this so no ok to seize those items
    5. Fifth Amnd now irrelevant to search issue: Andresen v Maryland upheld the search with warrant of the D’s law office and of the office of a real estate firm which he controlled, and the seizure of business records or each of the two office. These business records contained incriminating statements made by the D. Ct said no violation, would be if by subpoena.
2. Warrants against non-suspects: 4^th Amnd permits searches to be made of the premises of persons who are not criminal suspect, if there is PC to believe that the search with produce evidence of someone else’s crime
  1. Subpoena not necessary: Zurcher v The Stanford Daily: no special free press protection – newspapers, despite their First Amnd protection, are not entitled to special treatment, and that the requirements for obtaining a warrant for search of newspaper premises are no stricter than for other kinds of premises.
3. Execution of warrants
  1. Entry without notice: as a general rule, the officer executing the warrant must announce that his is an officer, that he possesses a warrant, and the he is there to execute it.
    1. Preventing the destruction of evidence: but ok to enter without identifying himself in the threat of immediate destruction of evidence (Ker v CA: had small amount of narcotics and in house, he’d probably destroy it)
  2. Entry by stealth: the principle that the officers must identify themselves applies even where force is not used for entry (Sabbath v US – applies even if a door is open or unlocked)
  3. Specific danger of destruction of evidence: unannounced entry to execute a search warrant may be made but there must be specific indications that the destruction of evidence in the particular case is imminent.
  4. Physical danger to police: justifies such entry
  5. Considered in determining reasonableness: SC has held post-Ker that the fact that the police didn’t knock or announce before entering is nonetheless a factor to be considered when the court decides whether the entry was reasonable (Wilson v Arkansas)
    1. NO blanket exception allowable: the reasonableness of an unannounced entry must always be evaluated on the facts of the particular case at hand (Richards v Wisconsin). The police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.
  6. Where no response from inhabitants: police may then use force to break into the premises
    1. Silence: (US v Banks – police enter after waiting only 15-20 seconds after knocking bc that would be enough time for D to dispose of cocaine is ok). After 15 or 20 seconds without a response, police could fairly suspect that any cocaine would be gone if there were reticent any longer. What matters is the polices’ actual believe about the dangers of destruction of evidence, not the underlying reality. “When circumstances are exigent bc of pusher may be near the point of putting his drugs beyond reach, it is imminent disposal, not travel time to the entrance, that governs when the police may reasonable enter; since the bathroom and kitchen are usually in the interior of a dwelling, not the front hall, there is no reason generally to peg the travel time of the location of the door, and no reliable basis for giving the proprietor of a mansion a longer wait than the resident of a bungalow or an apartment.”
4. Search of persons on premises: if there is PC to arrest a person who is on the premises, the police may do so and then conduct a search incident to arrest. But if PC is lacking, it is only in some circumstances that the police may search persons present. OK if:
  1. Named item on person
  2. Person attempting to leave
  3. Frisk: just frisking bc of reasonable fear that they might be dangerous
  4. Persons unrelated to search: NOT OK (Ybarra v Illinois, police frisked patron of bar they had warrant for, not ok).
5. Restricted area of search: police must confine their search to the area specified in the warrant, and they must look only in those places where the items sought might possibly be concealed.
6. Seizure of unnamed items: cts liberal in allowing seizure of items not listed in the warrant as long as the search was conducted in the proper area and the unnamed item was in plain view at some point during the lawful search.
  1. Requirement that evidence be incriminating: must seize only items, which are sufficiently connected with criminal activity that a warrant could have been procured for them.
    1. Unrelated items: the items inadvertently discovered do not have to relate to the same criminal activity which gave rise to the warrant, as long as there is PC for the seizure of these new items
  2. Degree of examination permissible: Ex: Commonwealth v Bowers – acting on valid search warrant, searched and seized TV set and called to see if serial numbers matched those one recently stolen – not ok
7. Presence of media: police may not invite third persons, such as members of the medical, to come along with them as they execute a search or arrest warrant in a private house (Wilson v Layne)
8. Intrusions into body:
  1. Balancing rest: the reasonableness of any such intrusion is to be determined by a use of a balancing test: “the individual’s interest in privacy and security are weighed against society’s interests in conducting the procedures” (Winston v Lee)
    1. Surgery to remove a bullet not reasonable (Winston v Lee)
    2. Local anesthetic to remove bullet seems to be ok
    3. Taking of blood to see if driving drunk is ok (Schmerber v CA)
    4. X-rays & stomach pumping: only be allowed when there is a warrant issued upon PC
    5. Self-incrimination: no 5^th Amnd violation when D is forced to undergo a bodily intrusion so that the state may extract evidence that he has committed a crime.
9. Good faith exception: SC has held that if the police reasonably believe that the warrant which they have been issued is valid, the exclusionary rule will not apply to bar the items seized from being introduced at the trial of the person whose rights were violated by the search (US v Leon)

Warrantless Arrests and Searches

Warrantless Arrests
1. Constitutional requirement: arrest warrants are seldom used, and have as a general rule been held not to be constitutionally required (US v Watson)
  1. Constitutional requirement for entry of dwelling: the only situation in which an arrest warrant may be constitutionally required is where the police wish to enter private premises to arrest a suspect
    1. Non-exigent circumstnaces: (Payton v NY) private home is an extreme intrusion, and that an entry for the purpose of making an arrest is nearly as intrusive as an entry for a search. Therefore, 4^th Amnd requires that a neutral and detached official certify that there is PC to make the arrest before this intrusion may take place.
      1. Result of invalid arrest: a warrantless arrest made in violation of Payton will not prevent the D from being brought tot trial. The principal consequence of an invalid arrest is likely to be that evidence seized during the arrest will not be admissible.
      2. Confession stemming from arrest: a confession that follows a warrantless arrest in violation of Payton will not be excluded, even though a confession made following an arrest lacking PC will be (NY v Harris)
    2. Exigent Circumstances: if there are exigent circumstances, so that it is impractical for the police to delay the entry and arrest until they can obtain a warrant, no warrant is necessary, assuming that the crime is a serious one.
      1. Destruction of evidence: for instance, if the police have reasonable cause to believe that the suspect will destroy evidence if they delay their entry until they can get a warrant, the requisite exigent circumstance exist (Illinois v McArthur)
      2. Hot Pursuit: similarly, if the police are pursuing a felony suspect, and he runs into either his own or another’s dwelling a warrantless entry may be permitted under the hot pursuit doctrine (US v Santana)
    3. No exception for fine-only or other minor crimes: a warrantless arrest for a crime committed in an officer’s presence is permissible even where the crime is so minor that the only potential punishment is a fine rather than imprisonment. The 4^th Amnd does not prevent an officer from making a full custodial arrest for any traffic violation or other minor misdemeanor committed in the officer’s presence, no matter how slight are the law-enforcement interests favoring such an arrest (Atwater v City of Lago Vista)
      1. Atwater v City of Lago Vista: Souter’s bright line rule: “If an officer has PC to believe that individual has committed even a very minor criminal offense in his presence, he may, without violating the 4^th Amnd, arrest the offender.
      2. The principle significance of this case is that it furnishes the police with an opportunity to make a search of a stopped vehicle incident to the arrest of the driver in circumstnaces where they otherwise would not have been able to do so.
  2. Entry into a house for a minor offense: Atwater probably does not apply where the warrantless arrest requires the officer to enter a dwelling to arrest the suspect. In Walsh v Wisconsin, the Court held that the 4^th Amnd prohibited the police from making a warrantless nighttime entry of the D’s house in order to arrest him for drunken driving, a misdemeanor for which state law did not allow a jail sentence.
2. Probable Cause need not be for offense stated at time of arrest: even if Offense B is not closely related to Offense A, the arrest is still valid so long as the arresting officer was in possession of facts that created PC regarding Offense B (the unmentioned, and perhaps unthought-about, offense). The SC so held in Davenpeck v Alford.
3. Post-arrest PC hearing: if a suspect is arrested without a warrant (even if the situation is one in which such a warrantless arrest is permissible), he is entitled to a prompt post-arrest determination of whether there was PC for his arrest. Gerstein v Pugh – the Court specifically held that a suspect arrested on the basis of prosecutor’s info (i.e., the prosecutor’s decision that there is PC for arrest, permitted in many states in lieu of a Grand Jury indictment) is entitled to a prompt post-arrest PC hearing. But the Court’s rationale clearly applies to any other warrantless arrest, including one made under exigent circumstance.
  1. No adversary rights: However, the Court in Gerstein held that the PC finding could be made by a magistrate rather than a judge, and that such aspects of the adversary system as cross-examination and a right tot appointed counsel do not apply. That is, all that is required is the same kind of proceeding that would be used to issue an arrest warrant.
  2. 48 rule: when Gerstein says that the post-arrest determination of PC must be prompt what does prompt mean? In County of Riverside v McLaughlin, the Court held that ordinarily this determination must be made within 48 hours of the arrest. This rule controls the BOP – if the hearing is held with 48 hours, the burden is on the D to show undue delay, whereas if it occurs after this time, the burden is on the government to show that some extraordinary circumstances prevented a prompter hearing.
4. Use of deadly force to make arrest: 4^th Amnd places limits on how the arrest may be made. Tennessee v Garner: “where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failure to apprehend him does not justify the use of deadly force to do so.
  1. No defense to prosecution: the fact of the unlawful use of force will not by itself be a bar to prosecution
  2. Search incident to arrest: but if the arresting officer then performs a search incident to the arrest, and finds incriminating evidence, the suspect may be able to exclude the evidence. Just as evidence seized pursuant to an arrest that is made without PC may be excluded, the suspect in an illegal-use-of-deadly-force case may be able to keep the evidence out with the following kind of argument: “If you hadn’t shot me in the leg as I was fleeing, you would not have caught me at all. Therefore you wouldn’t have been in a position to search me, so the evidence must be excluded.”
    1. Questionable argument: it remains to be seen how the courts will deal with this. It seems probable that a majority of the present Court would concluded that there is no constitutional right to escape from a lawful arrest attempt and thereby destroy evidence.
Search Incident to Arrest
1. Pre-1969 law on search incident to arrest: before 1969, most courts held that when the police validly arrested a person, they could constitutionally search the entire premises where he was arrested, even though they did not have a search warrant (US v Rabinowitz). Such a search was known as a “search incident to arrest.”
2. Chimel: Chimel v CA (stolen coin case, police have arrest warrant and go to D’s house, arrest him then extensively search the house – not ok) radically restricted the physical area in which the search could be performed.
  1. Holding: the Court found the search to have been invalid, b/c it was unnecessarily widespread. The Court recognized the police’s right to search the area within the D’s immediate control, but held that the portion of the premises outside of that control could not be warrantlessly searched incident to arrest.
  2. Rationale: There is ample justification for a search of the arrestee’s person and the area within his immediate control – construing that phrase to mean the area from within which he might gain possession of weapon or destructible evidence. There is no comparable justification, however, for routinely searching rooms other than that in which an arrest occurs – or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself.
3. Interpretation of Control: most post-Chimel case shave assumed that the D even after his arrest, maintains control over a substantial area, even if he is handcuffed or if numerous officers surround him
  1. Limited by Burger/Rehnquist Court: US v Chadwick – the police arrested several suspected smugglers, and seized the footlocker in which they were thought to be transporting MJ. After the suspects were safety incarcerated, and more than an hour after the arrest, the officers opened and searched the footlocker, without a warrant. The Court held the search invalid; “a search is not incident to arrest if it is remote in time or place from the arrest” (quote from Preston v US).
4. Automobile search: the basic theory of Chimel, that a warrantless search incident to arrest must be limited to areas within the arrestee’s immediate control, has been largely abandoned with respect to arrests made of automobile occupants. In NY v Belton, the Court held that when the police have made a lawful custodial arrest of the occupant of an automobile, they may, incident to that arrest, search the car’s entire passenger compartment, and the contents of any containers found in that compartment.
  1. Containers belonging to passengers: the officer may search even containers, which she knows, belong to a passenger. Even if the officer has no reason at all to believe that the passenger has been involved in wrongdoing (Wyoming v Houghton)
5. Handcuffed in squad car: even if the police have handcuffed the arrestees and put them in a squad car, they can still search the car (Thornton v US)
6. Traffic ticket or other non-arrest: if all the officer does is to write a traffic ticket – or other citation not involving an arrest – the officer does not have the right to conduct a search incident to arrest (Knowles v Iowa)
7. Search within the proper time context: the Belton rule (police can search car pretty freely) also does not apply where the search is conducted a significant time after the suspect has already been taken into custody (so that US v Chadwick, where the search of a car’s content took place more than an hour after the suspects were arrested and incarcerated, is not overruled
8. Trunk not included: The Belton rule does not permit a search of the trunk of an automobile incident to the custodial arrest of the car’s occupants. But if there is PC to search the car and the trunk, this may be done without a warrant pursuant to the general automobile exception (US v Ross)
9. Initial confrontation occurs outside the car: as long as D is a “recent occupant of the car, Belton applies, even tough the initial confrontation between the officer and the arrestee has taken place outside the car (Thorton v US)
10. Protective Sweep: Where the arrest takes place in the suspect’s home, the officers may conduct a protective sweep of all or part of the premises, if they have a reasonable belief based on specific and articulable facts that another person who might be dangerous to the officer may be present in the areas to be swept (Maryland v Buie).
  1. Nature of protective sweep: Buie says it is not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found.
11. Destruction of evidence: Vale v Louisiana suggested that if the arresting officers knew that contraband or evidence was “in the process of destruction” when the search was begun, or if the officers knew that these items were “about to be removed from the J,” then a warrantless search for these items would have been allowed.
12. Contemporaneity of search
  1. Search prior to arrest: the SC has approved a search as being incident to arrest even though it occur immediately before the arrest (Rawlings v Kentucky). But the Court took pains to observe that PC for the arrest existed independently of the fruits of the search.
  2. Search after long post-arrest delay: the search incident to arrest exception is applicable even to searches which do not occur, until some time after the arrest, at least where the search is made of objects in the suspect’s possession at the time of the arrest
    1. Search of person (US v Edwards): Intrusion into the body: the Edwards Court caveat that searches which are unreasonable in their manner of perpetration are not covered by the search incident to arrest exception indicates that intrusions into the suspect’s body will require a warrant, unless delay would threaten the loss or destruction of the evidence. (Schmerber v CA – the incident to arrest exception would not have applied to the drawing of a blood sample pursuant to a drunken-driving arrest, except for the fact the BA of the D would have dropped so much in the time necessary to procure a warrant that arrest would no longer have been useful.
13. Inventory as a separate rationale: Illinois v Lafayette – indicates that the police’s need to conduct an inventory of a prisoner’s personal effects provides its own rationale for seizing and searching those effects, completely apart from whether the search and seizure would have been valid as a search incident to arrest had it been done at the moment of the arrest. The fact that the police could have obtained a warrant to perform the search and seizure is irrelevant; the need to inventory relieves the need for a showing of PC, and thus makes the warrant procedure irrelevant.
14. Return to premise: where the police return to the scene of the arrest after incarcerating the arrestee, the courts have been much less willing to permit a warrantless search of the premises than where the prisoner himself is to be searched (Davis v US)
15. Legality of arrest
  1. Charges listed in booking: if PC is lacking for the listed charges, the arrest cannot be validated be the fact that the police had PC for arrest on a completely different charge (US v Atkinson, 5^th circ)
  2. Unconstitutionality of statute not bar to search: a search incident to arrest is not necessarily invalidated by the fact that the statute violated is later held to be unconstitutional (Michigan v DeFillippo)
16. Application to minor crimes: US v Robinson court allowed the incident to arrest exception to apply to the search of the person of a driver who was stopped on suspicion of driving with a revoked license. (Pull guy over, have him get out of his car, search him – is ok)
  1. Holding: A body search would be allowable in any situation in which a full-custody arrest occurs. In the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the 4^th Amnd but is also a reasonable search under that Amnd.
    1. Car not searched: the vehicle in Robinson was not searched. The Court implied that a search of the vehicle would not, even in the custodial arrest case, be justified by the incident to arrest exception, presumably since the driver is usually made to get out of the vehicle before being searched, and is then taken to the police station without returning to the car.
17. Non-custodial stops: an officer who makes a stop and issues a ticket may not search the vehicle of the driver incident to the stop. (Knowles v Iowa). The result in Knowles strongly suggests that the officer may not do a full body search of the driver either, in this traffic-ticket scenario.
  1. May be required to get out of car: however, even in the case of such a routine stop for issuance of a traffic ticket, the police may order the driver to step out of the car (Penn v Mimms). At that point, if the officer has reasonable fears for his safety, he may probably conduct a limited pat down of the driver and of any passengers. (See Terry v Ohio and the stop and frisk doctrine)
18. Right of police to accompany arrestee: the police may physically accompany the arrestee at all times following the arrest, even if no exigent circumstances require such accompaniment. Washington v Chrisman – going with kid to his dorm for his ID even after he was arrested)
Exigent Circumstnaces
1. Destruction of Evidence: Illinois v McArthur makes it clear that preventing the imminent destruction of evidence can often be the sort of exigent circumstances that justify a warrantless seizure or warrantless search.
2. McArthur: W snitches of H that he has drugs hidden under couch in trailer. D won’t let cops in so one goes and gets a warrant while other doesn’t let D reenter trailer. Less than two hours later, have warrant, search trailer and find drugs. D asserted that the warrantless seizure of his premises – that is, the police’s refusal to let him enter it unaccompanied – was unreasonable. So drugs not allowed as evidence, Ct says no, the seizure was not unreasonable b/c it was reasonably required to prevent the destruction of evidence.
  1. Significance: So McArthur seems to establish a rule that where the police: (1) have PC to believe that premises contain evidence of a crime or contraband, and (2) reason to fear that someone will destroy that evidence before a search warrant can be obtained, they can take steps to avoid that destruction as long as the intrusion is no more restrictive than necessary, and lasts no longer than is reasonably needed to get the search warrant.
3. Need for fast action: some cases have allowed warrantless searches or seizures whose motivation is danger to life may occur if the police cannot act fast.
4. Weapons: the need for immediate action rationale has also been applied to allow warrantless searches of premises where the police have a reasonable suspicion that dangerous weapons will be on the premises to be searched.
5. Firefighters: Michigan v Tucker – once the firemen are in the building, they could remain there for a reasonable time to investigate the cause of the blaze.
6. Immediacy: the danger to human life must be imminent.
7. Hot pursuit: if the police are pursuing a felony suspect, and have reason to believe that he has entered particular premises, they may enter those premises to search for him. While they are searching for him, they may also search for weapons, which, since he is still at large, he might seize. Warden v Hayden: cops chased D into his house, which they didn’t know was his, obtained permission to enter to catch a burglar from D’s W, while searching for him, searched premises and found incriminating evidence in the washing machine – ok to allow in evidence)
8. Entry to arrest non-resident: where the police are not in hot pursuit, and there are no other exigent circumstances, the may not enter one person’s private dwelling to arrest another, even if they are acting pursuant to an arrest warrant (Steagald v US)
9. Search of scene of murder: the fat that the place being searched is the scene of a recent murder is not by itself an exigent circumstance automatically justifying warrantless search. In Mincey v Arizona, the D, in his own apartment, shot an undercover police officer, and was shortly thereafter arrested by other officers. Homicide detectives then began an extensive warrantless search of the entire apartment, a search which lasted four days. SC said this is not ok & stressed that this was not really an emergency situation since there was no indication that evidence would be lost, destroyed or removed during the time required to obtain a search warrant, and the police in pact posted a guard on the premises during the entire four day search anyway.
The Plain View Doctrine and Seizures of Evidence
1. Requirements for doctrine: the plain view doctrine to be applied so that a warrantless seizure of evidence is allowable, three requirements must be met:
  1. Legally on premises: first, the officer must not have violated the 4^th Amnd in arriving at the place form which the items were plainly viewed
  2. Incriminating nature must be apparent: second, the incriminating nature of the items seized must be immediately apparent.
    1. PC: the requirement that the incriminating nature of the item be immediately apparent seems to be another way of saying that the police must, at the moment they first see the item in plain view, have PC to believe that the object is incriminating.
    2. Arizona v Hicks: police lawfully enter D’s apartment, notice stereo, look up serial numbers and find that it was stolen – not ok to admit).
      1. This comes from the plain touch analogy in Minnesota v Dickerson – officer did stop and frisk and felt lump in pocket, only after further investigation realized it was drugs. Initial feel just gave officer suspicion that it might be drugs, that’s not enough, need PC.
    3. Lawful right of access to object: police can’t make warrantless entry to seize an illegal item they may see from the window b/c don’t have lawful access to house
2. Timed arrests: the plain view doctrine may not apply where the presence of the police results from a pretext or from a timed arrest (so can’t wait to arrest someone when they’re in their house or somewhere else police can’t go in hopes of getting better evidence and then search house for better evidence, evidence won’t be admitted)
3. NO requirement of inadvertence: Horton v CA – plain view doctrine applies even where the police’s discovery of a piece of evidence they want to seize is not inadvertent. Thus of the police know that they are likely to find, say, both the gun used in the robbery as well as proceeds of the robbery, they may procure a warrant for the proceeds, and they may seize the gun if they happen upon it in plain view while they are searching the proceeds.
Automobile Searches
1. Relation of car searches to other kinds of searches: lesser expectation of privacy b/c a person’s expectation of privacy with respect to his car is significantly less than of his home or office (CA v Carney)
  1. Exigent circumstances: the police may search a vehicle without a warrant if such a search is necessary to preserve evidence, as will be the case where the car can quickly be driven out of the J (Carrol v US)
  2. Incident to arrest: similarly, a car’s passenger compartment may be searched incident to the arrest of the driver or passenger. (NY v Belton)
2. Search at station after arrest: several kinds of exceptional circumstances have been recognized by the SC as applying particularly to vehicle searches. One such circumstance is where the police arrest a driver, take him and his car to the station, and search the car there. Such a search was allowed in Chambers v Maroney.
3. Chambers: court held that the search was valid despite the fact that, since the car was in police possession, a warrant could have been procured without endangering the preservation of evidence.
4. Rationale: (1) the destruction-or-removal-of-evidence exception at least permitted the arresting officers to seize the care and deny its use to anyone; and (2) that being the case, “there is little to choose in terms of practical consequences between an immediate search at the station without a warrant and the car’s immobilization until a warrant is obtained.
5. PC: Chambers court emphasized that police had PF to search the car at the police station, since such PC had arisen from the description of the car by the victim. But also, Court in South Dakota v Opperman held that inventory of an impounded car’s contents may sometimes be taken, even if there is no PC to search.
6. Where warrant obtainable beforehand: Chambers case couldn’t get warrant before but now Court also says that police’s warrantless seizure of a car even though the officers have had several months in which they could have gotten a warrant but didn’t do so is ok (Florida v White). So, any time state forfeiture law gives the police the right to seize a car b/c it has been used in a crime, the police may exercise that right without a warrant, at least as long as the seizure takes place while the car is in a public place. And this is true even if police had plenty of time to get a warrant.
7. Search at place where vehicle is stopped: in Chambers, searched car after it had been impounded, still ok to conduct a warrantless search of a vehicle immediately at the place where they have stopped it (assuming that they have PC to make the stop)
8. Use of pretext to make stop: Whren v US – illustrates that the fact that the police’s real reason for the stop is something other than the traffic violation is irrelevant – once the police have PC to believe that even a minor traffic (or other) violation has occurred, they may stop the vehicle. Then, if the stop in turn gives them PC to believe that contraband is insider, they may perform a warrantless search.
9. Traffic tickets: where the police stop a car and merely write a traffic ticket instead of making an arrest, the officer may not search the vehicle (or the vehicle’s person), unless there is PC to believe that evidence of something other than the traffic violation will be found (Knowles v Iowa)
  1. Some powers remain
    1. The officer may order the driver and/or passenger to step out of the car (Penn v Mimms and Maryland v Wilson) as a means of protecting the officer’s safety
    2. If there is reason to believe an occupant of the vehicle may be armed and dangerous, the officer may conduct a pat down of the occupant’s person, and also of the vehicle’s interior (Michigan v Long)
10. Extended to closed containers (Including luggage): such items, when found in a car, may normally be searched without a warrant, if the car itself is being subjected to a valid Carroll or Chambers-type warrantless search based on PC (US v Ross)
  1. US v Ross: Since the police legitimately stopped the car and had PC to believe that contraband was contained in it, they could conduct a warrantless search of the vehicle. Such a search could be as thorough as one authorized by a warrant issued be a magistrate. Thus every part of the vehicle where the contraband might be stored could be inspected. This included all receptacles and packages that could possibly contain the object of the search. “The scope of the search is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is PC to believe that it may be found
  2. PC NEEDED: the majority’s decision applies only to those containers in which there is PC to believe that the object of the search will be found. Thus, “PC to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. PC to believe that a container placed in the trunk of a taxi contains contraband or evidence from the customer does not justify a search of the entire cab.” Nonetheless, in the ordinary search of a private vehicle for drugs or other contraband or small-sized articles of evidence, any closed container can presumably be searched if there is PC to search the vehicle itself.
11. Container belonging to passenger: Where the police have PC to do a Belton like search of a car and its containers incident to the arrest of the driver, they may also search any container that they know belongs to a passenger rather than to the driver, even if the police have no grounds whatever to suspect the passenger of any wrongdoing. (Wyoming v Houghton – held that police with PC to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search)
12. Search of a passenger’s person: Houghton probably does not disturb the older precedents that prevent the police from searching the bodies of people who happen to be present at an otherwise-lawful search of place or another person (Ybarra customer search at bar case)
13. Time delay before container search: A Ross style warrantless search of a car’s containers will be valid even though there is a significant delay between the time the police stop the vehicle and the time they perform the search of the container (US v Johns)
  1. Rationale: Ct saw no reason to distinguish between a delayed search of the vehicle and a delayed search of the containers in it.
  2. Privacy analysis: Johns does not mean there are no time limits on how long the police can hold on to the vehicle or containers before searching the,. But it is up to the owner to show that the delay was so long that it was unreasonable because it adversely affected a privacy or possessory interest
14. Consent to search: The driver’s consent to the search will be deemed to extend to any closed containers inside the vehicle, if they might reasonably contain the object of the search. So, for instance, if a suspect allows the officer to search the car and the search turns up cocaine in a folded paper bag, the cocaine will be admissible as the fruit of a consent search (Florida v Jimeno)
15. PC for container only: CA v Acevedo: overrules Arkansas v Sanders, which had held that where the police have PC to believe that a container contains contraband, and that container is put in the car, the container may not be searched unless there is either a warrant or exigent circumstance. Holding: if the police have PC to believe that a container contains contraband, they may wait until the container is in the car, stop the car, and seize the open container, all without a warrant
16. Search for VIN Number: where a traffic stop is made and the driver exits the vehicle, the officer may reach into the car to clear away anything that obscures the VIN. If in doing so, he fins weapons, contraband, etc. these will then be treated as having been in “plain view” (NY v Class)
17. Impoundment search where no PC: where PC to search is lacking, the police may still make a post-impoundment search.
  1. Plain view: Harris v US settles that if the police find evidence in plain view in a vehicle as they are impounding it, they may seize the evidence
  2. Forfeiture: Cooper v CA: where the police had to hold the car for forfeiture proceedings b/c state law required such proceedings for vehicles involved in narcotics violations, the court held that it would be unreasonable to hold that the police, having to retain the car in their garage (until the forfeiture proceedings) had no right, even for their own protection, to search it.
  3. Tower cars: if the car is impounded b/c it has been towed for illegal parking, it may similarly be subjected to a warrantless inventory search (South Dakota v Opperman)
    1. Extent of holding: Opperman seems to invalidate warrantless inventory searches, without PC, in virtually every situation where the police have impounded a vehicle. This would include not only cars towed on account of traffic violations, but cars which have been stolen and recovered, and cars impounded when the owner is arrested on charges entirely unrelated to the vehicle (See e.g. CO v Bertine – owner arrested for drunk driving, inventory search of car and its closed containers allowed). Furthermore, the Court has not restricted its validation of such searches to cases where, as in Opperman, valuables are seen through the window.
  4. Containers in car: CO v Bertine: two conditions must be met before an inventory search of an impounded vehicle may be made: that the police follow standardized procedures, so that the individual searching officer does not have unbridled discretion to determine the scope of the search; and
  5. That the police not have acted in bad faith or for the sole purpose of investigation (so that if the arrest or the impoundment took place just to furnish an excuse for a warrantless search, the Opperman exception would not apply)
    1. Florida v Wells: standardized criteria must govern the opening of containers found during inventory searches, so that an inventory search will not be a ruse for a general rummaging in order to discover incriminating evidence.
18. Search not always valid: traffic stop followed by a ticket: (Knowles v Iowa) where the police make a routine stop to issue a traffic ticket, and don’t make an arrest, they don’t thereby get the right to search the car
  1. Significance: So Knowles shows that there are some (though no longer many) limits on the police’s right to conduct a search when they make a valid auto stop. IN particular, if the police don’t arrest the driver (even though they could have done so), they can’t rely on the mere fact that the stop was valid as a justification for a search of either the driver’s person or of the passenger compartment.
Consent Searches Generally
1. Schneckloth v Bustamonte: although before 1973 many courts had thought that consent to a search was only valid if the consenter knew that he had a right to refuse consent, the Court rejected this view.
  1. Holding: The consenter’s ignorance of his right to refuse consent was only one factor to be considered in ascertaining the validity of the consent. A consent is voluntary as long as it is not the product of duress or coercion, express or implied.
  2. Warnings of rights rejected: the Court rejected the suggestion that the police should, when they solicit consent to search, tell the consenter that he has a right to refuse.
  3. The Court stressed two major difference between consent searches and confessions:
  4. Consent searches are typically non-custodial, and the atmosphere of coercion characteristic of custodial interrogation is thus lacking; and
  5. The 4^th Amnd right to be free from unreasonable searches is not related to the guarantee of a fair trial, whereas the right to remain silent and have a lawyer at interrogation is closely tied to the fair trial right; this being the case, the concept of knowing waiver applies to confessions but not to searches
  6. Subjective test applied: US v Mendenhall indicates that the suspect’s subjective mental state is what is relevant.
2. Consent given in custody: US v Watson seems to hold that even where the consenting part is in custody, his consent will be presumed voluntary despite the fact that his is not told of his right to refuse consent
  1. Mitigating factors in Watson: The consent, although given while the D was “in custody” was given on a public street, not in an isolated jailhouse, a fact mentioned but not heavily relied on by the Court.
3. Claims of authority to search:
4. False claims of present authority: the SC has explicitly held that where an officer falsely asserts that he has a search warrant, and then procures consent, the consent is invalid. (Bumper v North Carolina)
  1. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely on the validity of the warrant, or fails to show that there was, in fact, any warrant at all.
5. Consent induced by reference to invalid warrant: if the police state that they have a search warrant, and the warrant is in fact invalid (either because of insufficient definiteness, lack of PC, etc.), the consent of the person whose premises are to be searched is similarly invalid. This is particularly true where the person himself is placed under arrest (Lo-Ji Sales v NY)
6. Threats to obtain warrant: where the police do not state that they presently have a warrant, but threaten to obtain one if consent is not given, the result seems to depend mostly on whether the police in fact have grounds to get a warrant.
  1. Police have grounds: where the police have grounds, their threat to obtain a warrant does not vitiate the consent of the person whose premises are to be searched
  2. No grounds: but where the police do not have grounds, then their threat to get a warrant – which amounts to deception on the issue of whether they have grounds – usually will nullify the consent
    1. Illegal stop: if it is only because of illegal police conduct that the police have the opportunity to ask the D to choose between consenting or awaiting a search warrant the police illegality is likely to cause the Court to hold that the consent was no voluntary (State v Williamson (Or 1989))
7. Other kinds of deception
  1. Misrepresentation of identity: where the police make use of an undercover agent (i.e., an agent who does not disclose to the suspect that he is working for the police), who by concealing his identity gains entry into the suspect’s premises, the agent may make any observations permitted by the suspect. (See Lewis v US)
  2. Misrepresentation of intentions: where the police do not conceal their identity from the suspect, but misrepresent their intentions, the SC has not announced a rule. Lower courts have disagreed about whether and when such a misrepresentation prevents the D’s consent to search from being valid
8. Physical scope of the search: The courts have usually been reluctant to find the broader than consented to search valid. Ex: US v Dichiarinte (7^th circ): the police procure consent to search D’s house for narcotics. During the search, they examine private papers they find. Held: the consent is invalid as regards the seizure of papers.
  1. Plain view: Bretti v Wainwright (5^th circ): but if the police are proceeding to search only the area consented to, and they see in plain view an object outside of the consent area, they may seize it pursuant to the plain view doctrine, as long as no subterfuge is involved
9. Closed containers in autos: a consent to search a car will be deemed to cover any closed containers in the car, unless there is clear evidence that the consenter intended otherwise (Florida v Jimeno)
Consent by Third Persons
1. Joint authority: if the third person and the D have joint authority over the premises, then the third party’s consent will be binding on the D. (See e.g. US v Matlock – woman’s consent to a search of a room which she told the police she hared with D as D’s mistress, held binding on D)
2. Limited area: but this “joint authority” principle only applies where the third party has authority over the particular area to be searched. Here, even if X consented to have the police search D’s bedroom, the search would not be a valid consent search under the joint authority doctrine, since there is no reason to believe that X has authority over D’s bedroom, even though D and X share the living room
  1. Mistake as to joint authority: a search will be valid if consent to it is given by a person who the police reasonably but mistakenly believe has joint authority over the premises.
  2. Illinois v Rodriguez: W says that D was her H and had been beating her. She then lets police in to the apt with her key for them to arrest him. Police then see drugs and find D asleep on the couch. Held: it didn’t mater that W did not in fact have joint authority over the apt; she was an infrequent visitor there rather than a usual resident, so she did not have true authority to allow the police to make a warrantless entry or search. So long as the police were reasonably mistaken in their belief that W had authority to consent, this was the same as if she had actually had such authority.
3. Other theories:
  1. Property of consenter: sometimes the police will want to search the property of the consenter for evidence to be used against D. Here, if the property owner consents, this will generally validate the search even if the police know that D is not consenting
  2. Assumption of risk: Frazier v Cupp: D shared a duffle bag with his cousin Rawls. Rawls’ consent to a search of the bag was held binding on D because D must be taken to have assumed the risk that Rawls would allow someone else to look inside.
  3. Husbands, wives, and lovers: where one spouse consents to a search of the property of the other, the search has almost always been upheld.
    1. Exceptions:
      1. Person effects: if one spouse permits the search of the other’s personal effects stored in a separate drawer, the third part consent may be invalid (State v Evans)
      2. No access to area: similarly, if one spouse consents to the search of a special area to which the consenting spouse would not normally have access (and which is used solely by the non-consenting spouse), the consent may be found to be without authority and thus invalid. For instance, if W consents to let the police break open and search H’s locked basement workshop, to which W has no key, this consent might be held invalid on the grounds that the basement was not common space as to which W had joint authority
      3. Anger of spouse: if one spouse notifies the police of evidence incriminating the other out of anger at the latter, some courts have held the consent to seizure of the evidence not binding. US v Mazurkiewicz (3 circ) the court stated that in such acrimonious circumstances, the consent would be invalid because the angry spouse would not be acting in harmony with the marital relationship from which his joint right of ownership or control is derived
4. Parents and children: when a child is living at home with his parents, the parents may consent to search of the child’s room (US v DiPrima (1^st Circ))
  1. Consent by child: the child, on the other hand, may not normally consent to a full-scale search of the parents’ house (People v Jennings (Cal Ct)
    1. Mere entry: but if the child merely lets the police on the premise, and does not consent to a search, the entry by itself will not constitute a violation of the 4^th Amnd if the child is generally allowed to invite strangers into the house. Once inside the house, the police can presumably seize what falls immediately into their view under the plain view doctrine (Davis v US (9^th circ))
5. Schools and students: most courts have refused to find that a college administrator can give consent to the police for a search of a student’s dorm room
  1. High school locker: but a high school administrator has been held capable of consenting to a police search of a student’s locker (People v Overton (NY))
6. Landlords, tenants, and cotenants:
  1. Consent by landlord: a landlord may not consent to a search of his tenant’s room, even though he has the right to enter them for cleaning (Chapman v US). But he may consent to a search of the areas of common usage, such as hallways and common dining areas (US v Gargiso (2d Circ))
    1. Hotel gust: Stoner v CA indicates that a hotel guest is to be treated like any other tenant, and that the management may not consent to a search of the guest’s room. But after the guest has checked out permanently, a hotel employee may consent to a search for items left behind (People v Can Eyk)
7. Consent by co-tenant: if two or more people have equal right to or access to premises, one may generally consent to a search of the common premises (US v Matlock)
  1. Exceptions: thus if one co-tenant is present, and objects, the other’s consent may not be sufficient to allow introduction of evidence seized against the objector. (Dorsey v State (some appeals ct))
8. Non-paying guests: the situation in which a guest refuses consent, but the owner consents, illustrates that one person’s consent may sometimes override another’s refusal to consent, by virtue of the former’s superior property interest in the premises. The evidence seized may then be used against the guest.
9. Employers and employees
  1. Employer’s consent: an employer has usually been allowed to consent to a search of his employee’s work area if the search is for items related to the job. But where the search is of areas where the employee is permitted to store non-work related items, the employer’s consent will probably not be binding (US v Blok (DC Circ))
  2. Employees consent: an employee may consent to a search of his employer’s premises if he is in a position of substantial authority (e.g. in an executive position). But where an employee is only temporarily in charge (night watchman, clerk, etc.), he will not be able to consent for his employer.
10. Ignorance of consenter: if is irrelevant that the consenter has no idea of the purpose of the search (assuming no actual deception by the police), or mistakenly believe that the person for whom he is consenting is innocent and has nothing to hide (Coolidge v NH)
Stop and Frisk and Other Brief Detention
1. Terry: In Terry, the Court held that a stop and frisk could be constitutionally permissible despite the lack of PC for either full arrest or full search, and despite the fact that a brief detainment not amounting to a full arrest was a seizure requiring some degree of 4^th Amnd protection.
  1. Not unreasonable: the Court rejected the argument that because a 4^th Amnd seizure and search took place, PC was required and that instead, the only constitutional test was whether the stop and/or frisk was unreasonable.
2. Adams v Williams: significantly broadened the Terry stop and frisk exception to the PC requirement by extending it to include suspicions not based on the officer’s own observations, and by allowing the stop of a vehicle. The Court held that the informant’s tip, although it did not establish PC for search or arrest, had sufficient indicia of reliability to allow a forcible stop of the D’s car. The chief indicium was the fact that the informant could have been immediately arrested for making a false complaint
  1. Officer’s personal observation not necessary: the Terry rationale applies even of the suspicious behavior is witnessed by someone other than the police officer himself
  2. Search justified: given that the stop was reasonable, the seizure of the revolver was also justified for the officer’s safety. The discovery of the weapon also constituted grounds for arrest for illegal possession, and the arrest in turn justified the search incident to arrest of the car.
3. Suspect required to leave car: the stop of a driver that was approved in Adams was extended to allow the police to require that the stopped motorist leave his car, in Penn v Mimms. The Court held that requiring such an exit is a legitimate safety measure, in view of the large number f shootings of policemen committed by seated drivers.
  1. Pat-down allowable: once the driver got out of the car and was seen to have a bulge in his pocket which looked like a gun, the officer was justified in conducting a pat down on the bulge
  2. Passengers may be required to exit: Maryland v Wilson says that in any situation where a car is properly stopped and the driver required to step out, the passengers may also be required to step out. And that’s true even if the passengers have done nothing whatsoever to give the police grounds to suspect wrongdoing by the passenger
4. Degree of probability required for stop: it is not clear what degree of probability of criminal conduct must exist before a stop is justified under Terry and Adams.
  1. Vague suspicion not sufficient: IN Brown v Texas, the Court held that a person may be stopped only if the officers have reasonable suspicion, based on objective facts, that the individual is involved in criminal activity
  2. Modest degree of suspicion: but a fairly modest amount of suspicion will be enough for a Terry like stop (US v Sokolow).For instance, if a person engages in a number of acts which viewed together make it plausible to believe that he may be a drug courier, this may be enough for a stop even though each act, taken alone, is entirely consistent with innocence.
    1. Sufficient for stop: the agents had to show articulable facts and some minimal level of objective justification for the stop, not just an inchoate and unparticularized suspicion or hunch.
5. Innocent factors may contribute to reason for suspicion: the central point of Sokolow is that multiple factors, if taken individually, are perfectly consistent with law-abiding conduct, may when taken together give the police enough suspicion to justify a Terry stop (US v Arvizu)
  1. Significance: Arvizu reinforces two conclusions about what degree of suspicion is needed for a reasonable stop Individual factors that are themselves completely innocent may, when viewed together under the totality of circumstances approach, give rise to reasonable suspicion and
  2. The Court will give considerable deference to the reasoning of an experience law-enforcement officer who is familiar with the customs of an area’s inhabitants (e.g. people living in a articular rural border location) or with the customs of a particular type of criminal (e.g. people smuggling a certain kind of item over a certain border)
6. Flight as a cause for suspicion: the fact that an individual has attempted to flee when seen by the police will normally raise the police’s suspicion, and may even without more justify the police making a Terry style stop. In any event, the combination of flight and presence in what the officer knows is a high crime area will generally be enough for a stop (Illinois v Wardlow)
7. Tip from informant: when the police want to make a stop based on an informant’s tip, they may similarly do so on reasonable suspicion and do not need to have PC. Whether the informant’s tip is reliable enough to rise to the required reasonable suspicion is to be determined by the totality of the circumstances (Alabama v White)
  1. Prediction of future events: when the court applies this totality of the circumstances test to evaluate information from an informant (especially an anonymous one) a key factor is whether the information has predicted future events that someone without inside info would have been unlikely to know.
  2. Holding: even though this anonymous tip was of low reliability, the fact that the tip was extensively corroborated before the stop (i.e. D behaved as the informant predicted she would behave) was enough to create the reasonable suspicion needed for a stop. This was true even though not every detail of the tip panned out (e.g. D did not carry the attaché case to the car before driving away)
  3. Tip without corroboration not enough: the central principle of White seems to be that an anonymous tip will be sufficiently reliable to permit a stop if and only if, prior to the stop, the police have been able to verify that the informant’s assertion that criminality is afoot is a reliable one. A post-White case shows that where by the moment of the stop the police have not been able to confirm that the anonymous information has inside knowledge of criminality, the tip does not justify the stop – the mere fact that the informant knows some innocent, publicly-knowable details about the suspect that turn out to be accurate (e.g. his physical appearance) will not suffice. (Florida v J.L.)
    1. Stop invalid: The anonymous call here provided no predictive information, and therefore left the police without means to test the informant’s knowledge or credibility. It didn’t matter that the tip about the gun turned out to be correct, because the reliability of the informant must be gauged before the stop. Here, all the police knew before the stop was that they should look for a black male in a plaid shirt at a bus stop. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to indenting a determinate person
    2. Suspicion of fabrication: the risk that the police completely fabricated the informant story was unusually high
8. What constitutes a stop?
  1. Reasonable person test: a person has been seized within the meaning of the 4^th Amnd only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave (US v Mendenhall). Examples: the threatening presence of several officers; the display of a weapon by an officer; some physical touching of the person; the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.
9. Mendenhall & Florida v Royer (newer case): airport stop & interrogation cases: Mendenhall says she was free to leave so consent, on almost same facts, Royer says not free to leave so no consent
10. Pursuit by police: until the suspect submits to the chase (by stopping), there is no seizure. There will not be a seizure until two things happen:
  1. The suspect stops in response to the chase or to police orders
  2. A reasonable person in the suspect’s position would believe that he was not free to leave once he stopped.
11. CA v Hodari: officer chases D who throws crack away while running. D says he had been seized as soon as officer began the chase so drugs fruit of seizure. Ct says no way. Where a show of authority is made to a suspect, and the suspect does not yield, no seizure takes place. An arrest requires either physical force or, where that is absent, submission to the assertion of authority.
  1. Significance: The rationale of Hodari probably applies beyond the chase situation. It will presumably apply where
    1. The officer says freeze or fires a warning shot
    2. The officer, driving a police car, puts on his flashing lights or his sirens
    3. In an airport setting, a narcotics agent approaches a group of passengers with his gun drawn, and announces a baggage search.
  2. In all of these situations, if the suspect flees, tries to dispose of evidence, or does anything other than immediately submit, his actions will be admissible even though the initial encounter was made at a time when the police had no PC to make the stop or other seizure.
12. Use of a roadblock: will not be treated like a request that the suspect voluntarily stop; instead, it amounts to an attempt by the police to force the suspect to stop, and thus constitutes a seizure (Brower v Inyo County)
  1. Sobriety checkpoint: a roadblock that stops all cars so that the police can administer a sobriety check is a seizure (Michigan Dept. of State Police v Sitz)
13. Stop by immigration officials: INS v Delgado – asking two or three questions to a factory worker to ascertain whether he might be an illegal alien would not have led a reasonable worker to believe that he was not free to leave without responding
14. Search of buses:
15. “Feel free to decline” standard: seizure will be deemed not to have occurred if a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter (FL v Bostick). The test should not be whether a reasonable person would have felt free to leave since a person on board a bus would not feel free to leave in any case
  1. Police need not inform passengers of right not to cooperate: the fact that the officers failed to inform the passengers that they were free not to cooperate does not matter (US v Drayton)
16. Significance of Bostick & Drayton cases: seem to establish that in the ordinary bus-based drug-interdiction scenario – in which multiple officers, whether in uniform or not, and whether visibly armed or not, explain that they are performing a drug interdiction effort and ask each passenger for permission to search his bags and person – will not constitute a 4^th Amnd seizure. And if there is no seizure, any consent given will be valid even though the entire procedure was done without any individualized suspicion.
17. Stop v Arrest: it is unclear how long the suspect can be detained and how intrusive the investigation can be, before the stop turns into a full scale arrest requiring PC
  1. Reasonableness of detention: it is clear that the detention must not be longer than the circumstances which justified it require (US v Luckett)
  2. No more intrusive than necessary: the stop must also be no more intrusive than needed to verify or dispel the policeman’s suspicion (FL v Royer)
    1. Unduly intrusive: since the police were mainly interested in gaining consent to search D’s luggage, there was no need to remove him to the small room in order to gain that consent (so no consent)
18. Emphasis on reasonableness: the question is not simply whether some other less intrusive alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it (US v Sharpe)
  1. Law enforcement needs taken into account: Sharpe also establishes that in determining whether the stop was of a length and intrusiveness that made it unreasonable the law enforcement needs of the officials who are performing the stop may be taken into account. Thus the fact that the stopping officer in Sharpe sent 15 minutes waiting for his more-experienced companion to arrive on the scene was a factor tending to make the duration of the stop reasonable.
19. Demand for identification: Hibel v Sixth Judicial Dist. Court – Officer who pulls a guy over and asks for ID: a request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop, and the particular request here was reasonably related in scope to the circumstances which justified the stop.
  1. Limited effect: All this establishes is that the police may demand that the stoppee give an oral statement of his name. So we still don’t know whether demanding a driver’s license or other ID goes beyond the reasonable scope of a Terry stop
20. Alimentary canal smugglers: US v Montoya de Hernandez – the detention of D< a traveler for 27 hours before agents found drugs in her rectum and arrested her, was nonetheless justified under a Terry like rationale (the delay was due to D’s refusal to consent to an x-ray; she was then detained until a court order for a rectal exam could be obtained)
21. Frisk permissible under Terry: Terry indicates that where the officer wishes to conduct a frisk in connection with a stop, he must follow a two step process
  1. Limited purpose of frisk: when the frisk does occur, it must be limited to the search for weapons. For instance, if the officer feels something that he does not believe to be a weapon, but that he things might be contraband, the officer may not expand the search (by removing the object) unless he already has PC to believe that the object is contraband.
    1. Minn v Dickerson: once the officer realized that he was not feeling a weapon, he should have stopped the frisk, rather than expanding it by squeezing and manipulating the lump. The squeezing was an expansion of the search in violation of the 4^th Amnd, so the drug was the fruit of a poisonous tree and should not have been admitted against D
    2. Plain touch doctrine applies during frisk: a plain touch warrant of the plain view doctrine applies during terry frisk, so that if the officer, while staying within the narrow limits of a frisk for weapons, feels what he has PC to believe is a weapon, contraband or evidence, the officer may expand the search or seize the object
  2. Reason to fear danger: even if a Terry stop is justified, the frisk may take place only if the officer has a reasonable belief that the suspect may be armed. A reasonable belief that the suspect has contraband, or that a frisk will turn up evidence of criminality, is not sufficient.
    1. Ybarra v Illinois (customer frisk in bar case): initial frisk was not justified under Terry, bc the police had no reasonable belief that D was armed or dangerous
22. Search of automobile: the general doctrine of Terry, that 4^th Amnd searches and seizures of limited intrusion may sometimes be justified on less than PC, has been dramatically extended to allow a search for weapons in an automobile’s passenger compartment, even though the suspect is no longer inside the car (Michigan v Long)
  1. Search upheld: since D had not been arrested at the time of the search, the doctrine of NY v Belton allowing the entire passenger compartment of a car to be searched incident to the driver’s arrest, was not applicable. However, the SC upheld the search in Long on the rationale of Terry; just as the police may frisk the body of a suspect (even one who has not been arrested) if they reasonably believe that he may not be armed, so they may search the passenger compartment of his car if two conditions are met

Plain view: if, while performing this extended Terry-type of weapons search, the police discover contraband or evidence of crime in a place where a weapon might have reasonably been placed, they may seize that evidence under the general plain view rule. In Long, the SC accepted the trial court’s finding that the leather pouch might have contained a weapon. Therefore, the seizure of the drugs did not violate the 4^th Amnd
Danger from suspect’s return to car: at the time the police searched D’s vehicle, he was standing outside the car. Therefore, it is not immediately apparent why the police felt that they had to protect themselves by looking for weapons inside the car. But the SC reasoned that D might have broken away from the police control, reentered the care and retrieved a weapon, or, after being permitted to return to the car, he might have gotten the weapon and harmed the officers. In the Court’s view, this latter danger existed precisely because the suspect was not being subjected to a full-scale custodial arrest

Search may not be automatic: Long does not mean that the police may search the passenger compartment of a car whenever they stop the driver. The theory of Long is that the police may protect themselves against the suspect’s gaining access to hidden weapons.
1. Limited application: Knowles v Iowa: when an officer stops a motorist to issue a traffic ticket, and does not make a custodial arrest, the stop does not by itself entitle the officer to search the vehicle’s interior
  1. Compare to custodial arrest: contrast this stop for a ticket scenario with the case of a custodial arrest, during which the passenger compartment may be searched even if there is no reason at all to fear the suspect, under the doctrine of NY v Belton

Brief detention at the station: Terry and Adams, in holding that a 4^th Amnd seizure might sometimes be permissible on less than PC, spoke only of on-the-street encounters. If the suspect is required to come to the police station, the Terry/Adams rationale will not apply. The line dividing a Terry-like stop from an intrusion so severe that the full protection of the 4^th Amnd is triggered, is crossed when the police, without PC or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes (Hayes v Florida). The Hayes ct noted that such a station house detention, even though brief and unaccompanied by interrogation, is sufficiently like an arrest to invoke the traditional rule that arrest may constitutionally be made only on PC.
1. Lack of actual arrest irrelevant: PC is necessary for a station house detention accompanied by interrogation, even if not formal arrest is made. Dunaway v NY – the D was asked to come to police headquarters, where he received his Miranda warnings, was questioned, and ultimately confessed. There was no PC to arrest him, but there was some reason for the police to suspect him in connection with the crime they were investigating
  1. The Ct held that insofar as the D was taken into custody, the intrusion on his privacy was much more severe than an on the street stop, and that the situation should therefore not be handled under the Terry balancing test approach. Instead, PC was required, and since it was lacking, the confession was the tainted fruit of an invalid seizure. The mere fact that the D was not told he was under arrest, was not booked, and would not have had an arrest record had the investigation proved fruitless, did not prevent the seizure from being serious enough to require PC
Fingerprinting: the rationale of Terry will not allow the police, acting without PC, to require a suspect to come to the station for fingerprinting (Hayes v FL, Davis v Miss)
1. On-site fingerprinting: Hayes ct noted there is support in our case for the view that the 4^th Amnd would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion that the suspect has committed a criminal act, if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with that crime, and of the procedure is carried out with dispatch
Detention during house search: when the police are searching a residence for contraband pursuant to a search warrant, they may detain the occupants while the search continues (Mich v Summers)
1. Warrantless case not resolved: the ct expressly declined to decide whether a right to detain a resident pending search of his property also automatically existed where the search was made without a warrant, but justified by exigent circumstances. Nor did the ct decide whether there was a right od detention if the search warrant merely authorized a search for evidence (rather than contraband), as occurred in Zurcher v The Stanford Daily
2. Right to use force to detain: A post-Summers case shows that when the police exercise their right to detain the occupants while executing a search warrant, they may use reasonable force to carry out that detention. At least where what is being searched for is weapons, reasonable force will automatically include the handcuffing of all occupants of the premises (Muehler v Mena)
  1. Muehler v Mena: (Handcuffed & Q’ed woman who wasn’t related but was at house they were searching) When premises are being searched under a search warrant, the right of the police to detain the occupants under Summers includes an inherent authority to use reasonable force to effectuate the detention. And where what is being searched for includes weapons, reasonable force includes the use of handcuffs. Furthermore, where, as here, the police need to detain multiple occupants, this need makes the use of handcuffs all the more reasonable.
    1. Questioning was no an independent 4^th Amnd seizure: once the police had a lawful right to detain P pending a search, they did not commit a 4^th Amnd violation by questioning her about her immigration status during the detention
Investigation of completed crime: The Terry exception to the requirement of PC also extends to an officer’s attempts to investigate a serious crime that took place a significant time previously. If police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion (US v Hensley)
Detention of property: Most cases relying on the Terry exception to the requirement of PC have involved seizures of the person, i.e. stops. But the SC has also held the general Terry doctrine applicable to certain seizures of property, so that these, too, can sometimes occur without OC
1. Incident to stop: when the police perform a stop of a person pursuant to Terry (by definition of 4^th Amnd seizure of the person), they are also necessarily seizing whatever personal effects he has with him at the time (e.g. hand-carried luggage).
2. Seizure as independent act: but the SC has now gone significant further, by holding that Terry will sometimes justify the seizure of baggage and other personal effects, even where these are not incident to a Terry-justified stop of the items’ owner. This extension of Terry took place in US v Place, airport drug case.
3. Brief and limited detention: when an officer’s observations lead him reasonably to believe that a traveller is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope.
  1. Unduly lengthy: but the seizure in this case was too lengthy to qualify as the sort of brief detention authorized by Terry. The Court refused to set any outer time limit for the length of a Terry detention. But the 90 minute delay here was clearly too long. Furthermore, the detention was made more burdensome by the agents’ failure to tell Place where they were taking his luggage, how long they would have it, and how he could get it back if there were no narcotics in it (US v Place).
Extensions of Terry: Observe the doctrine of Terry, which was originally limited to permitting the police to perform a brief stop and a very narrow search (the superficial pat-down of a suspect reasonably believed to be dangerous) has been gradually expanded:
1. The suspicion to support a stop need not be based on the officer’s own observations (Adams v Williams)
2. A suspicion of wrongdoing entitles the officer to stop a vehicle, not just conduct an on-the-street stop of a pedestrian (Adams)
3. The officer may, pursuant to a vehicle stop, search the car’s passenger compartment (Michigan v Long)
4. The stop may be accompanied by a temporary seizure of personal effects, such as baggage (US v Place)
5. The detention may be made solely for purpose of investigating possible crime, rather than for protection of officer (Florida v Royer)
6. A stop is not unreasonable merely because it lasts for 27 hours (US v Montoya de Hernandez)

Inspections & Regulatory Searches
1. Focus of this section: seven kinds of general law enforcement activities which may invade areas protected by the 4^th Amnd, but for which PC in the classical sense is not required:
  1. Health, fire, building, and other municipal inspections
  2. Border and fixed checkpoint searches
  3. Routine traffic stops
  4. Sobriety checkpoints
  5. Searches of parolees & probationers
  6. School searches
  7. Office searches of government employees
2. Inspections: In Camara v Municipal Ct, the SC held that health, safety, fire etc. inspectors could not insist on entering private premises without a search warrant
  1. PC not required: in order to obtain the warrant, however, the inspector does not have to demonstrate PC to believe that a violation of an ordinance within his domain will be discovered in the premises to be searched. Instead, the inspector must simply demonstrate that reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling.
    1. Consent: the warrant is not necessary where the owner gives consent to the inspection
    2. Emergencies: where an emergency exists, no warrant will be required, since the need for immediate action makes it reasonable to dispense with the warrant requirement
  2. Licensed businesses: where inspection is to be made of an aspect of a business subject to special licensing provisions, the warrant requirement may not apply, at least where frequent unannounced inspections are the only effective way to enforce the licensing requirements. Thus, in US v Biswell, the warrantless inspection of a weapons dealer by a federal agent was upheld, on the grounds that the dealer had chosen to engage in a business subject to heavy federal licensing regulations, which could only be enforced by unannounced, even frequent, inspections.
3. Immigration searches:
  1. Search at border itself: it is clear that immigration officials may search vehicles at the border itself (Almeida-Sanchez v US)
    1. Limit on extent of search: but the routine, non PC searches impliedly permitted by Almeida-Sanchez and Carroll extend only to baggage and vehicle searches, and to personal searches that are not deeply intrusive. (But even such strip searches may occur on something less than PC, especially where there is no less intrusive way to conduct the search. See US v Montoya de Hernandez, where a very intrusive non PF stop of a suspected alimentary canal smuggler was approved)
  2. Interior patrols and checkpoints: a vehicle inside the border and not known to have recently crossed the border may be stopped and searched only if there is PC to believe aliens or smuggled objects are present (Almeida-Sanchez)
    1. Roving patrol: but where immigration officials, as part of a roving patrol, stop a car in the interior not to make a search, but merely to briefly question the occupants, PC is not required. The officials must, however, be able to point to specific factors which give rise to some significant suspicion that an immigration violation has occurred: “particularized and objective basis” (US v Cortez)
    2. Mexican appearance insufficient: the Mexican appearance of the car’s inhabitants is not by itself sufficient to allow even a brief stop for questioning ( US v Brignoni-Ponce)
  3. Fixed checkpoint: where a fixed checkpoint is set up in the interior, all cars may be stopped. Officials may then refer particular motorists to a secondary inspection area, where they can be questioned and, if necessary their cars searched (US v Martinez Fuerte)
    1. Criteria: the criteria which may be used in making these referral to the secondary are even loose, the Ct held in Martinez Fuerte, than are necessary for a roving stop under Brignoni Ponce and Ortiz. The Ct permitted referrals made largely on the basis of apparent Mexican ancestry, giving rise to the possibility that Mexican ancestry by itself might be enough to justify the referral
    2. No warrant needed: the Ct in Martinez-Fuerte also held that it was unnecessary for the authorities to obtain a warrant before setting up a checkpoint
  4. Factory surveys: Assuming that the factory owner’s 4^th Amnd rights are not violated by the survey (which will often be performed with the owner’s consent), apparently no warrant at all will generally be necessary before the agents ask brief questions of the employees (where do you come from, where were you born?). This type of brief questioning will normally not constitute a 4^th Amnd seizure of the worker at all, so that no particularized and objective basis for suspecting the worker of being an illegal alien need be shown (INS v Delgado, holding that no 4^th Amnd seizures occurred during two such factory surveys)
4. Protection of borders
  1. Search of vessel in water: authorities may board for inspection of documents any vessel that is in waters which provide ready access to the open sea. (US v Villamonte-Marquez). They may do so even though they have no suspicion at all of wrongdoing.
  2. Opening of mail by customs agents: mail from abroad may be intercepted and opened by customs agents without a warrant, if there is a reasonable cause to suspect that he envelop contains narcotics or other contraband. (US v Ramsey)
    1. Controlled delivery: if customs agents discover contraband as part of such a warrantless search, they may reseal the package and carry out a controlled delivery, by which the addressee can be identified when he receives the package, and prosecuted if appropriate (Illinois v Andreas)
5. Traffic stops for general criminal investigation: the problem of protecting the nation’s borders justifies allowing random traffic stops. But where police want to use random warrantless traffic stops to pursue more general criminal investigative objectives, the Ct has generally said “no.” Even if the police use a fixed highway checkpoint – thus reducing officers’ discretion – they may not conduct warrantless traffic stops where the primary purpose is to detect evidence of ordinary criminal wrongdoing (Indianapolis v Edmond)
  1. Edmond: the majority made it clear that apart from the border-control and sobriety-checkpoint contexts, other types of special-purpose checkpoints constructed so as to reduce police discretion would be found reasonable and thus constitutional. For instance, the Ct indicated that a fixed checkpoint to check compliance with licensing, registration and vehicle0inspection requirements would be valid, so long as police discretion concerning which drivers to stop was minimized (See Delaware v Prouse, where the presence of unbridled police discretion was what caused a spot-check scheme to being validated). Similarly, the majority indicated, the 4^th Amnd would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to feel by way of a particular route.
6. Can seek third-party witnesses via roadblock: In Edmond, the roadblock that was found unconstitutional was carried out for the main purpose of finding criminal activity (drug possession) committed by the very persons who were being stopped. But a post-Edmond case shows that Edmond will not cause a warrantless roadblock to be an automatic 4^th Amnd violation if the roadblock’s immediate purpose is to seek witnesses – rather than suspects – to a recent crime. Illinois v Lidster – the Ct approved a warrantless roadblock whose purpose was to find witnesses to a recent fatal hit and run accident
  1. Lidster – police set up roadblock to question motorists if they had seen a car that had recently hit and run and killed someone on that road. Stopped D, found he was drunk and arrested him.
    1. Stop upheld: here, the information being elicited was to help police apprehend not he stopped vehicle occupants, but third persons. Therefore, Edmond did not control
7. Discretionary stops to verify driver information: Delaware v Prouse – fixed checkpoint stops in which the police set up a check point at which every car would be stopped to verify compliance with licensing & registration laws would be acceptable, but random stops at the discretion of the police for the same purpose violate the 4^th Amnd.
8. Sobriety checkpoints on highways: even though a stop at such a sobriety checkpoint is a seizure, such stops may be made of all drivers even though the police have no particularized suspicion about any one driver, Michigan Dept. of State Police v Sitz
9. Summary of regulatory traffic stops and checkpoints:
  1. Random stops: random stops without individualized suspicion – even if made just for the purpose of verifying driver’s license and related info – are not permissible, b/c they give too much discretion to the officer (Delaware v Prouse)
  2. Fixed checkpoint for driver verification: stops of a predetermined number of vehicles at a fixed checkpoint, if done for the primary purpose of verifying driver and vehicle info ( license, registration etc.) are probably allowable, even without individualized suspicion. (Prouse 7 Edmond). The same is true of fixed-checkpoint stops for the primary purpose of ensuring driver sobriety (Michigan v Sitz). IN both of these instances, the stop is being done for narrow regulatory purposes related to driving, so the checkpoint is not unreasonable.
  3. Fixed checkpoint for general crime-fighting: but stops of a predetermined number of vehicles at a fixed checkpoint, done for the primary purpose of general crime-fighting (e.g. finding narcotics), are not allowable without individualized suspicion. Allowing such stops would swallow the rule requiring individualized suspicion for anti-crime stops (Edmond)
10. Supervision of parolees and probationers: may be subjected to warrantless searches by officials responsible for them, even if PC is lacking (Griffin v Wisconsin)
11. Searches in schools: there are at least some instances in which searches of students and their possessions may take place without a warrant and without PC
  1. School officials acting alone: all three cases involved searches by school officials acting alone (not actin in concert with law enforcement authorities). Therefore, we still don’t know what the rules are about when school authorities may act in conjunction with the police to perform searches on students with PC and without a warrant
12. Warrantless search for violation of school rules: In New Jersey v TLO, the Ct held that school officials may search the person and property of a student without a warrant. At the inception of such a search, all that is required is that there be reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the law
  1. Search for smoking violations: thus the search at issue in TLO (a principal’s search of the pocketbook of a freshman unsuspected of violating the school’s non-smoking rule) was justified even though there was no PC to suspect a criminal violation, because the facts were such that the principal reasonably suspected that he would fund cigarettes in the purse
  2. Scope of the search: the Ct in TLO also set forth the standard for determining whether the scope of the search was reasonable (given that some sort of search is justified at the outset): the search will be permissible in scope when the measures adopted are reasonably related to the objectives of the search and no excessively intrusive in light of the age and sex of the student and the nature of the infraction
13. Drug tests: a school district may require suspicion less drug tests of every student who wishes o participate in any competitive extracurricular activity, even if the district has not yet had a serious drug-use problem
14. Drug tests of student-athletes: Vernonia School dist. v Acton – school district could require that all student athletes submit to drug tests as a condition of participation in interscholastic sports, provided that the results were not shared with law enforcement authorities and the testing was conducted in a relatively unobtrusive manner
  1. Balancing test: the majority noted that the reasonableness of a search is to be judged by balancing its intrusion on the individual’s 4^th Amnd interests against its promotion of legitimate governmental interest
  2. Testing only upon suspicion: the majority also rejected the suggestion that the school should be required to test only those students who were individually suspected of drug use. The majority asserted that government is not required to adopt the least intrusive search practicable. Also, the Ct argued, this test only upon suspicion approach had its own problems (e.g. that teachers would impose testing arbitrarily upon troublesome but not drug-likely students). The searches here were guaranteed to be even-handed and where not a badge of shame as testing only on suspicion would be
15. Drug tests for all extra-curricular activities: Ct expanded the rationale of Vernonia to allow random drug-testing of all middle and high school students who want to participate in an competitive extracurricular activity, regardless of whether the district had previously had a significant drug problem. Bd of Educ of Indep School Dist No 92 v Earls
16. Open questions: TLO, Vernonia & Earls leave open two major questions:
  1. Law enforcement agencies: whether there is a different standard fro assessing the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement agencies
  2. Individualized suspicion: whether individualized suspicion is required outside of the competitive extracurricular activities context
17. Office of government employee: neither a warrant nor PC is required prior to the search of the office of a government employee by the employer, so long as the search is somehow work-related (O’Connor v Ortega). All that is required is that the search be reasonable under all the circumstances
  1. Significance: O’Connor seems to establish that neither PC nor a warrant is required before a public employer searches the employee’s workplace, at least where the search is either (1) a non-instigative, work-related one (e.g., an inventorying of the contents of a terminated employee’s office); or (2) part of an investigation into suspected work-related misconduct.
    1. Search by police: the case certainly does not say – and probably does not imply – that the police may search a public employee’s workplace without PC or a warrant.
18. Drug searches of hospital patients: one type of quasi-regulatory search has been found to violate the 4^th Amnd because it serves general law enforcement needs rather than special purpose administrative needs. That search is the preforming of drug tests on pregnant women in public hospitals, where the purposes is to force addicted women to choose between prosecution and getting drug treatment (Ferguson v City of Charleston)
  1. Holding: Ct concluded that the drug testing – to the extent that it was carried on without the patients’ consent – violated their 4^th Amnd rights. The decision rested mainly on the grounds that here, the authorities were not pursuing special needs unrelated to law enforcement, but were instead essentially pursuing a general law enforcement objective
  2. Significance: so Ferguson, like Indianapolis v Edmond (vehicular checkpoint for narcotics case), decided the same term, suggests that where the police try to justify a program of regular warrantless searches or seizures on administrative grounds, they will lose if their main purpose is to pursue general law-enforcement needs rather than specific purpose needs that are intimately tied to the regulatory program (e.g. combatting drunk driving in Michigan v Sitz, or achieving drug-free school sports in Vernonia)

Electronic Surveillance and Secret Agents

Historical Background
1. Olmstead: the first telephone wiretap case to reach the SP, in which the ct held that messages passing over phone wires were not within the 4^th Amnd’s protection against unreasonable search and seizure.
  1. Physical trespass doctrine: the wiretap, which was placed on the phone wires outside of the D’s house, failed in two respects to invade an area protected by the 4^th Amnd
    1. Conversations not seizable: the 4^th Amnd applied only to places and things. Since the tap intercepted only intangible conversations, the Amnd was not violated
    2. Trespass: the Amnd could only be violated by physical trespass onto the subject’s property. Since the tap in Olmstead had been placed on wires outside the D’s premises, no 4^th Amnd violation could have occurred, even if conversations could sometimes be protected by the 4^th Amnd.
      1. Note: both of these rationales were later rejected in Katz v US, which held that a wiretap could violate the 4^th Amnd even though it involved only intangible conversations and no trespass onto D’s property occurred
  2. Eavesdropping: the Olmstead physical trespass rationale was extended to the use of electronic eavesdropping equipment unconnected with the phone system. IN Goldman v US, the Ct held that a microphone place against the wall of a private office was not a physical trespass, and that therefore no 4^th Amnd violation could have occurred
    1. Some protection: but in 1961, the Ct held that electronic surveillance accomplished through physical trespass violated the 4^th Amnd, despite the fact that intangible conversations, not places or things, were affected. IN Silverman v US, a unanimous Ct held that listening to a conversation via spike mike inserted into a house constitutes an illegal search and seizure.
Fourth Amnd Protection of Katz
1. Katz: wiretapping of phone booth case
2. The reliance test: under Katz, an unauthorized wiretap violates the 4^th Amnd if the subject places justifiable reliance on the privacy of the particular place.
3. Participant monitoring: Katz is silent on the question of the constitutionality of participant monitoring of conversations, i.e. wiretapping or eavesdropping with the consent of one of the parties. Most lower courts have taken this silence, along with a footnotes by White expressly approving of participant monitoring, to allow such procedures.
The Use of Secret Agents
1. Pre-Katz view of bugged agents: the SC held, in two different pre-Katz cases, that the use of secret agents equipped with electronic surveillance equipment was not eavesdropping and thus could not possibly violate the 4^th Amnd
  1. On Lee v US: an informant was wired for sound, and a conversation between him and the D<,occurring with the D’s house, was transmitted by radio to a narcotics agent.
    1. No trespass: the majority rejected he claim that either the informant or the agent had trespassed on the D’s property, and held that in the absence of physical trespass there was no search and seizure
  2. Lopez: the use of a tape-recorder by a secret agent was approved in Lopez v US
2. Pre-Katz use of unbugged agents: in two additional pre-Katz cases, the Ct approved the use o unbugged secret agents and informants; the Ct held that the use of such agents (who testify at trial from recollection as to the incriminating statements made to them), involves no intrusion by the government but only misplaced trust by the suspect in the agent or informant
  1. Lewis v US: a federal narcotics agent told the D he wanted to buy narcotics, the sale occurred in the D’s house. The SC found no 4^th Amnd violation b/c the D invited the undercover agent to his home for the specific purpose of executing a felonious sale; furthermore, the agent did not see, hear, or take anything tat was not contemplated and in fact intended by the petitioner as a necessary part of his illegal business
    1. Waiver: the Ct held that the D had waived his 4^th Amnd rights in his home since he had converted it to a commercial center
    2. Gouled distinguished: the ct distinguished Gouled v US on the grounds that there the agent exceeded the scope of the invitation to him. The agent in Gouled, a business acquaintance of the D came into the latter’s home as a guest but conducted a surreptitious search and seizure of certain papers in the house. In Lewis, the agent did not commit any acts that were beyond the scope of the business for which he had been invited into the house.
  2. Hoffa v US: a Teamster-turned-informant became a regular visitor to Hoffa’s hotel room and overhead conversations concerning Hoffa’s plans to bribe jurors. No 4^th Amnd search or seizure
3. Reaffirmation after Katz:
  1. US v White: an informer was wired to transmit to narcotics agents conversations with the D occurring in a restaurant, in the D’s home, and in the informer’s car. NO 4^th Amnd right had be involved.
    1. No expectation of privacy: when a person misplaces his trust, and makes incriminating statements to an unbugged informer, he does not have any justifiable expectation of privacy which has been violated; there is no 4^th Amnd protection for a wrongdoer misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it
    2. Wiring irrelevant: given this premise, it makes not different whether the informer is bugged or not; the addition of recording or transmitting equipment merely enhances the reliability of the evidence
  2. Katz eroded: the While decision eroded the justifiable reliance concept of Katz, since White necessarily assumes that a person cannot justifiably trust and talk to anyone, regardless of how close
4. Right to counsel: the use of bugged or unbugged informer against a suspect who has already been indicted may violate the latter’s 6^th Amnd right to counsel.
Entrapment
1. Meaning of entrapment: while the solicitation of mere statements will almost never be objectionable, the agent’s inducement to the suspect to perform a criminal act may sometimes be sufficiently coercive that the suspect will be able to assert the defense that he was entrapped into committing the crime
  1. Definition: the government may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce the commission of the crime so that the government may prosecute. Where the government has induced an individual to break the law and the defense of entrapment is at issue, the prosecution must prove beyond a reasonable doubt that the D was disposed to commit the criminal act prior to first being approached by government agents (Jacobson v US – the government may not place on the weaknesses of an innocent party and beguile him into committing crimes which he otherwise would not have attempted)
2. Constitutional basis for entrapment defense: although the SC has reversed federal convictions on the ground that they were based on entrapment, the Ct has never recognized any constitutional right to the entrapment defense, the federal reversals have been justified by reference to the Court’s supervisory powers over the administration of justice by federal courts. I US v Russell, the Court flatly stated that the entrapment defense is not a constitutional dimension. Therefore, the Ct is likely to continue to respect state law on the entrapment defense, and not to reverse state convictions on the ground of any constitutional right to the defense

Confessions and Police Interrogations

Introduction
1. Historical Development
  1. Not all cases covered by Miranda: The Miranda decision does not render earlier SC cases on confession irrelevant. A few of the situations in which these earlier cases, rather than Miranda, are relevant, follow:
    1. Consent searches: the voluntariness of consent to allow a search is often determined by reference to factors similar to those governing the voluntariness of confessions, Miranda has not effect on this consent to search problem, so that pre-Miranda confessions cases, which emphasized the importance of the voluntariness of the confession, must be consulted
    2. Involuntary confession never admissible: compliance with Miranda requirements is a necessary but not a sufficient condition for the admissibility of a confession. A confession which is involuntary, for instance is not admissible despite compliance with Miranda
      1. Must be police coercion: however, in recent years, the test for determining the voluntariness of a confession has been dramatically watered down. For instance, it is now apparently the case that the only thing that can prevent a confession from being found to be voluntary is police coercion. Neither coercion by non-government personnel, nor serious mental illness on the D’s part, is all relevant in determining whether his confession is voluntary (see Colorado v Connelly – fact that suspects; confession was in large part due to his psychotic, schizo state, and that he confessed b/c the voice of God told him he should do so, is irrelevant; confession was admissible b/ there was no police or other governmental wrongdoing).
    3. Collateral use: although a confession obtained in violation of Miranda may not be introduced in the prosecution’s case in chief, it may be used to impeach the D’s testimony. But if such a confession was obtained by coercion, it may not be admitted even for impeachment purposes (Mincey v Arizona)
Pre-Miranda Confession Cases
1. Brown v Mississippi: the first time the SC prevented the use of a coerced confession in a state trial
  1. Firth Amnd not discussed in Brown: did not hold that the 5^th Amnd’s freedom against compulsory self-incrimination applied to state-trials and had been violated. Rather, it held that some kinds of police brutality are so shocking that they violate the 14^th Amnd right of due process, whether or not these police methods violate the 5^th Amnd
2. The voluntariness test: the 5th Amnd was not specifically held applicable to the states until 1964 in Malloy v Hogan
  1. Factors in voluntariness test: in applying the so-called voluntariness test, the Ct did in fact attach great importance to whether the confession was a product of the D’s free and rational choice.. Several different factors enter into the Ct’s decision on the admissibility of particular confessions:
    1. Reliability: some confessions were disallowed b/c the means by which they were obtained made their reliability doubtful
      1. Ex: in cases of police brutality, such as Brown, there was a good reason to suspect that the D had confessed not b/c of his guilt, but in order to escape further beating
    2. Offensive police practices: other confessions were disallowed despite their apparent reliability, b/c the police practices by which they were obtained offended the Court’s sense of fundamental decency
      1. Ex: Roger v Richmond: the police induced the D to confess by pretending to arrest his sick wife. The Ct stated that the confessions obtained by subterfuge and force must be disallowed not b/c such confessions are unlikely to be true but b/c the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system
    3. Confessions not the product of free will: some confessions were disallowed b/c they were not the product of the D’s free choice
      1. Ex: Townsend v Sain: D given a drug that had effect of truth serum even though the police were unaware of the effects. Confession not admissible, despite the fact that it appeared to have been reliable and was not the result of conscious wrongdoing by the police.
  2. Totality of the circumstances examined: in the examination of the overall facts of each case, the ct attached greatest importance to the following factors:
    1. The number of interrogators
    2. The length of the questioning
    3. The place of questioning
    4. Whether the right to counsel was denied
    5. The characteristics of the subject (e.g. age, physical and mental condition, education, and experience)
3. Pre-Miranda rules for federal prosecutions: b/c the admissibility of confessions in state trials during Down to Malloy period was determined by reference not to the 5^th Amnd but to the 14^th Amnd fundamental right of due process, the state and federal tests were not, strictly speaking, the same
  1. McNabb-Mallory rule: in addition to excluding involuntary confessions, the Ct also excluded from federal trials confessions by federal officers where the confession was obtained during a period of unnecessary delay in taking the suspect before a US magistrate for arraignment.
    1. Repeal of rule: the McNabb-Mallory rule was formulated not as a constitutional doctrine but as an exercise by the SC of it discretionary right to supervise the federal cts. It was never extended to the states, and was replaced from federal practice by the Omnibus Crime Control Act of 1968 Title II
Escobedo and the Right to Counsel
1. Crooker v CA: a confession was held to have been voluntary and therefore admissible, despite the fact that the accused had unsuccessfully requested the right to all his lawyer
2. Spano v NY: Ct found a confession obtained after an overnight, 8-hour questioning session, to have been involuntary.
  1. Concurrence: the confession should have been excluded on right-to-counsel grounds. Because an indicted suspect has the right to counsel at the arraignment which should immediately follow the indictment, he has the right to counsel at a police interrogation conducted during the period when the arraignment should have taken place.
  2. Massiah v US: an indicted D, while out on bail and in his co-D’s car, made incriminating remarks which were overheard by the police via a concealed radio transmitted planted with the co-D’s co-operation. The incriminating statements were held inadmissible.
    1. Need for counsel: the majority held that the overheard conversation was in effect a surreptitious investigation; the opinion noted that the right to counsel rationale of the concurrence in Spano applied as forcefully to an undercover use of police tactics as it did to a jailhouse interrogation. Therefore, the right to counsel applied, and the confession must be barred.
3. Escobedo v Illinois: a confession obtained in a police stationhouse was held inadmissible because of deprivation of the right to counsel
  1. Escobedo confession was obtained after D made repeated requests to see his lawyer, and after the lawyer had actually come to the police and been turned away. The holding was very limited: “we hold that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogation that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied the Assistance of Counsel in violation of the 6^th Amnd as made obligatory upon the states by the 14^th Amnd and that no statement elicited by the police during the investigation may be used against him at a criminal trial
  2. No use of totality of circumstances test the Escobedo opinion departed from the previous practice of examining the totality of circumstances in judging the admissibility of confessions. Under Escobedo, if the right to counsel was not respected, the confession could not be admitted even though all circumstances taken together indicated the voluntariness of the confession and an absence of offensive police conduct
Miranda Generally
1. Impact of Miranda: the Escobedo holding was narrowly confined to its facts; that case applied only to situations in which the accused was in custody, asked for and was refused a lawyer, and was not warned of his right to remain silent. But in Miranda v Arizona, the SC broadened the right against self-incrimination to cover virtually all custodial police interrogations. Furthermore, the Court established extremely specific procedural safeguards which must be followed during custodial police interrogations in order to avoid violation of the self-incrimination privilege
2. Holing of Miranda: “We hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. The suspect must be warned prior to any questioning
3. Custodial questioning only: the Miranda warnings are necessary only where an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning
  1. No distinction between confessions and exculpatory statements: the Miranda rules apply to any statement made by the suspect while in custody
4. May be exercised at any time: the right to remain silent and to have a lawyer present may be exercised at any time during the questioning. Thus even if the suspect at first indicates that he waives his right to silence and to a lawyer, if he changes his mind the interrogation must cease.
5. Waiver: the suspect may waive his right to remain silent and to have a lawyer, but this waiver is effective only if it is knowingly and intelligently made. The suspect’s silence may not be taken as a waiver.
  1. Where suspect already aware of rights: the police must give the Miranda warnings even if they have reason to believe that the suspect is aware of his rights
6. Right to counsel: if the suspect indicates that he wants a lawyer, and can’t afford one, the police must obtain one for him, before they conduct the interrogation
  1. Right applies only where questioning occurs: the police do not have an absolute duty to provide counsel for all suspects who wish one; the police can avoid the need for procuring counsel by simply not conducting the interrogation. But if they wish to interrogate, they must supply a lawyer to whomever wants one
  2. Right to lawyer’s presence: the right to counsel imposed by Miranda is not merely the right to consult a lawyer prior to the questioning, but the right to have the lawyer present while the questioning goes on.
  3. Inadmissibility: any statement obtained in violation of the Miranda rules will be inadmissible as prosecution evidence, regardless of whether other factors indicate that the statement would meet traditional voluntariness criteria
    1. Impeachment use: a confession obtained in violation of the Miranda rules cannot be introduced as part of the prosecution’s case in chief. But it may generally be introduced for purposes of impeaching testimony which the D has given
  4. 5^th Amnd basis for Miranda: the Miranda decision relies more heavily on the 5^th Amnd right against self-incrimination than on the 6^th Amnd right to counsel. The essence of the Court’s holding is that custodial interrogation is inherently coercive, and that because of such inherent coercion, no statement obtained from a D in custody can truly be the product of his free choice. The right to have a lawyer present, although related to the 6^th Amnd, is important in the custodial interrogation context because uncounseled questioning is likely to induce confessions in violation of the 5^th Amnd, not because there is general right to have a lawyer when one is in jail. (If the police do not interrogate, they do not have to supply a lawyer).
    1. Rejection of voluntariness test: Miranda represents a complete rejection of the voluntariness test for judge confessions. The failure to give required Miranda warnings constitutes an irrebutable presumption that the confession was involuntary; no evidence showing that the suspect was aware of his rights, or that he truly desired to make his confession, can overcome the failure to give the required warnings
  5. Congress did not successfully substitute for the Miranda warnings (Dickerson): The Miranda majority stated that the warnings listed in Miranda must be given unless other fully effective means are devised to inform accused persons of their right to silence and to assure a continuous opportunity to exercise it. The Court thus implied that a legislature, either state or federal, could enact other procedural safeguards against involuntary self-incrimination, which would replace the Miranda warnings. But as a 2000 case, Dickerson US showed, an attempt by Congress to substitute for the Miranda warnings in federal prosecutions failed
    1. Congressional response: not long after Miranda, Congress tried tot take the Court up on its invitation to devise such other fully effective means to inform accused persons of their right to silence. Congress did this by enacting Title II of the Omnibus Crime Control and Safe Street Act of 1968 Title II governed the admissibility of confessions in federal courts, and purported to repeal the strict warnings requirements of Miranda for federal prosecutions.
      1. Voluntariness test reinstated: Title II state a simple and exclusive test for admissibility: a confession was admissible in evidence in federal prosecutions if it voluntarily given. So even where the Miranda warnings were not given, the federal judge as free to (indeed required to) admit the confession if he found it to be voluntary, according to Title II.
      2. Court strikes down statute: The Court responded by striking down the statute as unconstitutional. In so doing, the Ct (1) made it clear that Miranda was based upon the Constitution; and (2) declined to overrule Miranda
      3. Holding: the Ct found that Title II was an improper effort by Congress to supersede Miranda. The Ct’s opinion said that the majority in Miranda though it was announcing a constitutional rule. Since that case was a holding about what the Constitution requires, it could not be superseded by Congress – that’s b/c it is up to the Court, not Congress, to determine the scope of constitutional guarantees.
        
        Title II not a constitutionally-sufficient substitute: Since Congress proposed solution was not at least as effective as Miranda, Miranda remained the law, both for federal and state prosecutions
        
        Stare decisis: in declining to overrule Miranda, the Ct relied heavily on stare decisis. The majority hinted that it might well not agree with Miranda’s reasoning and rule were we addressing the issue in the first instance. But it said that Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. Therefore, stare decisis weighs heavily against overruling it now.
      4. Significance of case: So Dickerson seems to establish two important propositions: (1) the Miranda principle is in some sense constitutionally-derived, not a mere pronouncement about how prosecutions out to be carried out; and (2) the present Court is unwilling to overrule the case, even though most of its members would probably not decide the case that way today if it were a question of first impression
What is a custodial Interrogation
1. Language of Miranda: The Miranda opinion applies only to custodial questioning. Post-Miranda cases have raised numerous difficulties with deciding when questioning is custodial.
2. Focus of investigation test abandoned: the mere fact that an investigation has focused on a particular suspect does not make it custodial for Miranda purposes
  1. Beckwith v US: the fact that the investigation had focused on D was irrelevant to whether he was entitled to Miranda warnings. The only thing that mattered was whether D was in custody. Since he wasn’t, and knew he wasn’t, the agents didn’t need to give him the warnings.
3. Undercover agents: If the D talks to an undercover agent or informant without knowing he is talking to a law enforcement agent, no custodial interrogation has taken place. This is true even if the D is in jail at the time.
  1. Illinois v Perkins: Police place informant in D’s cell to try to get info from about a different suspected crime. Held: when a suspect, even an incarcerated one, speaks feely to one who he believe to be a fellow inmate rather than an officer, this coercive atmosphere is lacking.
    1. Sixth Amnd: However, the use of undercover agents, although it will never cause a Miranda violation, may lead to a violation of the suspect’s 6^th Amnd right to counsel. Once a suspect has been indicted or otherwise charged, it will be a violation of his right to counsel for a secret agent to deliberately obtain incriminating statements from him in the absence of counsel, and to pass these on to the prosecution. See Massiah v US. But there was no right to counsel problem in Perkins, b/c D had not been indicted or arrested on the charge to which his statements related (the murder) at the time he made the statements; the fact that he was under indictment for an unrelated charge was irrelevant
4. Objective reasonable suspect test: the issue is whether a reasonable person in the suspect’s position would believe that he was (or was not) in custody at that moment
  1. Ignore parties’ own beliefs: thus the unexpressed intent of the police officer to hold (or not hold) the suspect against his will is irrelevant. Similarly, the suspect’s own subjective belief that he is or is not free to go, to the extent that the belief is not one that would be shared by a reasonable person, is irrelevant (see Berkemer v McCarty)
  2. Cut both ways: the objective rule cuts both ways: Stansbury v CA: an officer’s subjective and undisclosed view concerning whether the person being interrogated is a suspect is irrelevant to the assessment whether the person is in custody. An officer’s view concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody, but only if the officer’s views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his freedom to leave. (Case remanded for a determination of whether a reasonable person in D’s position would have thought that he was free to leave the station).
5. Place of interrogation: the place in which the interrogation takes place will often have an important bearing on whether custody exists. The test is always whether a reasonable person in D’s position would believe he was free to leave, and this will depend in part on the locale
  1. Voluntary station-house questioning: a suspect who voluntarily comes to the police station in response to a police request is normally not in custody, and is therefore not entitled to Miranda warnings (Oregon v Mathiason)
  2. Lack of formal arrest not dispositive: the mere fact that there has been no formal arrest will not by itself suffice to prevent a stationhouse questioning from being custodial. If the surrounding circumstnaces would indicate to a reasonable person in D’s situation that he was not free to leave the stationhouse, then the questioning is custodial however voluntary D’s initial decision to come to the station may have been. For instance, if during the course of the voluntary questioning the police let D know that they now consider him the key suspect in the crime, this is likely to be enough to convince a reasonable person in D’s position that the police are about to arrest him; if so, D is already in custody.
  3. Street encounters
    1. Scene of the crime questioning: the Miranda decision itself stated that the decision is not intended to hamper the traditional function of police officers in investigating crime. General on the scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact finding process is not affected by our holding
      1. Focus on suspect: but if the police seizure one particular suspect fleeing the scene of the crime, the general on the scene questioning to which Miranda referred is not present, and warnings presumably have to be given
    2. D acts suspiciously: the police may sometimes detain a person not as part of a general scene of the crime investigation for a specific known crime, but because the person is acting suspiciously. The stop and frisk, discussed in the context of arrest and search is typical of such detention. Such encounters are probably not custodial, even where the suspect is frisked for the policeman’s safety; see Berkemer v McCarty, in which the SC referred to the absence of any suggestion in our opinion that Terry stops are subject to the dictates of Miranda
      1. Possible exceptions: However, if the circumstances of a particular street encounter create a coercive atmosphere, the Miranda warnings might nonetheless be necessary.
  4. Traffic stops: Stops of motorists for minor traffic violations will normally not be custodial
    1. Ex: Berkemer v McCarty: D, a motorists, is stopped and required to get out of his car. At the moment D has finished stepping out of the car, the arresting officer has decided to arrest D for driving drunk, but has not yet communicated this fact to D. The issue is whether D, at that moment, is in custody. Held: D was not yet in custody for Miranda purposes at the moment he stepped out of the car. A police officer’s unarticulated plan has no bearing on the question whether a suspect was in custody at a particular time; the only relevant inquiry is how a reasonable person in the suspect’s position would have understood his situation.
  5. Interview at home: In cases involving interrogation at D’s home or workplace, courts have emphasized the familiar atmosphere in which the questioning is taking place, the lack of isolation from the outside work, and the absence of the police-dominated ambiance with which Miranda was concerned
  6. Airport smuggling investigations: the stop of a suspected smuggler at an airport may in particular situations be held to be custodial. Such a stop has aspects of a scene of the crime questioning, which is usually not custodial. But if it clear to the suspect that he is not free to leave, or if a large number of police are present so that a coercive atmosphere is created, custody may be found. (Florida v Royer)
    1. Search: US v McCain – if the smuggling suspect is searched, the court is even more likely to hold that there has been custody
6. Purpose of interrogation: Miranda applies even when the purpose of the custody is unrelated to the purpose of the interrogation.
  1. Ex: D is in jail on a state offense. An IRS agent interrogates him about a tax crime completely unrelated to the one D is in jail for. Held: the interrogation was custodial, so D was entitled to the Miranda warnings (Mathis v US)
Minor Crimes
1. No minor crimes exemption: there is no minor crimes exception to the Miranda requirement – if an interrogation meets all of the standard requirements for Miranda warnings (especially the requirement that the suspect be in custody), these warnings must be given no matter how minor the crime, and regardless of the fact that no jail sentence my be imposed for it (Berkemer v McCarty)
  1. Traffic stop suspects charged with minor traffic violations must be given Miranda warnings prior to custodial interrogation. Berkemer itself, for instance, involved an arrest for driving while intoxicated; even though the offense was only a misdemeanor under local law, Miranda warnings were required
What Constitutes Interrogation
1. Volunteered statements: the Miranda Court emphasized that volunteered statements of any kind are not barred by the 5^th Amnd and their admissibility is not affected by our holding today.
  1. Non-custodial statements: clearly no Miranda warning is required when a person simply walks up to a police officer on the street or into a police station and makes an incriminating statement
  2. Indirect questioning: In Rhode Island v Innis, SC held that interrogation, for purposes of Miranda occurs whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term interrogation, for purposes of Miranda, occurs, whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term interrogation refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect
    1. Application to Innis case: During the tip, one of the officers said to the other that there was a school for handicapped children near the scene of the murder, and that “God forbid one of the children might find the weapon with shells and they might hurt themselves. D then interrupted the convo, stating that the officers should turn the car around so that he could show them where the gun was located
    2. Holding: SC held that there was no interrogation, b/c the officers should not necessarily have known that their convo was reasonably likely to elicit an incriminating response
    3. Reference to Brewer v Williams (Christian burial case): the Ct in Innis held that Brewer was irrelevant to the Innis situation, insofar as Brewer involved the right to counsel, not the 5^th Amnd right against self-incrimination implicated by Miranda; they Ct noted that the definitions of interrogation under the 5^th and 6^th Amnd are not necessarily interchangeable since the policies underlying the two constitutional protection are quite distinct.
  3. Police set up meeting with spouse: police set up a meeting between D and his spouse under circumstances that they reasonably believed D may make incriminating remark to her. Held: no interrogation b/c officers do not interrogate a suspect simply by hoping that he will incriminate himself (AZ v Mauro)
    1. AZ v Mauro: first, there was no evidence that D’s wife was sent in to see her husband for the purpose of eliciting the statements – the conversation took place at the wife’s request, and the officers had initially tried to discourage her from talking to her husband. Also, the police conduct here was less like interrogation than the police conduct in Innis.
    2. Significance: Mauro probably does not establish new law. The Innis test – by which the police conduct an interrogation whenever their conduct is reasonably likely to elicit an incriminating response – remains the law after Mauro. However, the case illustrates that a majority of the Court will lean over backward to find that the Innis test has not been satisfied.
      1. Significance of intent: also, Mauro may mean that the police’s intent is more important than formerly, Mauro seems to mean that if the police do not intend to try to elicit incriminating remarks, their conduct does not constitute interrogation, even if a reasonable person would have found the conduct likely to produce an incriminating result. This seems to be a change from Innis, in which the Ct held that its test focuses primarily upon the perceptions of the suspect, rather than the intent of the police.
2. Identification questions:
  1. Unsolicited responses: when routine or ID questions are asked, an incriminating response not solicited by the question should be considered volunteered as long as no impression is created that the suspect must incriminate himself. Thus routine questions asked during the booking of a suspect have not usually been held to require Miranda warnings. (Penn v Muiz)
3. Questions by non-police: most cts admit incriminating statements made in response to interrogation by non-police, including private investigators and victims.
  1. Probation officers: the SC has implied that IRS agents, when conducting tax investigations, are to be treated as law enforcement officials. (Beckwith v US)
  2. Psychiatric examination: similarly, a ct-ordered psychiatric exam to determine the D’s competency to stand trial may trigger the right to Miranda warnings depending on how the prosecution later attempts to use the results of the exam
    1. Results used to determine penalty: if the results of the psychiatric exam are to be used in determining the penalty in a capital case, Miranda warnings must be given (Estelle v Smith)
      1. Holding: the prosecution was not entitled to use the psychiatrist’s testimony in the penalty phase, b/c the D had not been told that he had a right to remain silent during the exam and that anything he said could be used against him. The Ct saw no reason to distinguish between the guilt and penalty phases of the trial
      2. Results used to asses competency or sanity: but the ct conceded that no Miranda warnings would have been required had the results of the exam been used only on the competency issue. Nor would such warnings have been required had the D placed his sanity in issue pursuant to an insanity defense.
The Public Safety Exception
1. The public safety exception: in NY v Quarles in 1984 – Miranda warnings are simply unnecessary prior to questioning that is reasonably prompted by a concern for the public safety. Furthermore, the existence of such a reasonable concern for the public safety is to be determined objectively, not by examining the subjective motivation of the officer.
  1. Quarles: D accosted in grocery store by officers, asked him where gun was, he told them. Held: new exception to the Miranda requirement for situations in which there are overriding considerations of public safety and held that this exception was applicable on these facts.
  2. Rationale: The Ct began by observing that the Miranda requirements are merely prophylactic measures, which are not themselves rights protected by the Constitution but are instead measures to ensure that the right against compulsory self-incrimination is protected. Since the Miranda warnings were not directly required by the 5^th Amnd, the Ct was free to engage in a cost-benefit analysis (in the Ct’s view).
  3. Objective standard: the questioning officer’s subjective belief that there is or is not a significant threat to the public safety should be irrelevant; the test is whether a reasonable officer in that position would conclude that there was such a threat
  4. May still show compulsion: the ct was careful to observe that its holding does not prevent the suspect fro showing that his answers were actually coerced; if he cam make such a showing, he will still be entitled to have those answers excluded.
Warnings Required Under Miranda
1. Adequacy of warnings: the police do not have to quote the exact words of the Miranda decision, but their rendition of the warnings must convey the substance of the decision
  1. Right to attorney: the warning must make it clear to the suspect that he has a right to have a lawyer present during the questioning: Duckworth v Eagan: the essence of the warning about an attorney is not that a suspect has an automatic right to have the police provide him with a lawyer while they hold him in custody – all the police must do is to choose between providing a lawyer or questioning, so they are always free to defer their questioning until some later date if they can’t or don’t want to provide a lawyer.
  2. Ambiguity in warning: Duckworth v Eagan: we have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court – ct found this warning adequate even though it was somewhat ambiguous.
2. Where police think suspect aware of rights: the warnings must be given even if the police have reason to believe that the suspect is already aware of his right to remain silent and to have a lawyer
  1. Right to appointed counsel: an exception to the above rule is that where the police are absolutely sure that the suspect has his own lawyer, or has the money for one, they do not have to tell him that one can be appointed for him. But this exception does not apply when there is any doubt at all as to the suspect’s financial ability
  2. Where lawyer present: if the suspect’s lawyer happens to be present during the interrogation, the Miranda warnings apparently do not have to be given.
  3. Warnings cut off by suspect: Suppose the police are in the process of reading the Miranda warnings, and the suspect interrupts with words like “you don’t have to read that to me – I know my rights.” Most cts have held that the officer must nonetheless finish the warnings (Brown v Heyd (st ct))
  4. Warnings about nature or seriousness of crime: ct have not imposed a requirement that the police inform the suspect of the nature or seriousness or his crime. Indeed, the SC has held that the failure of the police to tell a suspect who was arrested on minor charges that he would also be questioned on much more serious (murder) charges did not nullify the suspect’s decision to waive his Miranda rights (CO v Spring)
    1. Trickery barred: but the police probably may not intentionally trick the suspect into thinking his crime is less serious than it is, in order to induce him to confess (CO v Spring)
What Constitutes a Valid Waiver of Miranda Rights?
1. Implied waiver:
  1. Actual relinquishment: for a waiver to exist, it must be shown no only that the D understood his Miranda rights, but also that he intended to relinquish them (Brewer v Williams)
    1. No waiver: The Ct held that the state had failed to show that Williams had effectively waived his right to counsel. A waiver is an intentional relinquishment or abandonment of a known right or privilege. Concededly, Williams had been informed of and seemed to understand his right to counsel but the prosecution had completely failed to show that he intended to relinquish that right
    2. Reasons: this lack of relinquishment was demonstrated by Williams’ having made the effort to contact two lawyers prior to the trip, and by these lawyers’ having instructed the police not to interrogate him. But the clearest indication of a lack of waiver was the fact that Williams told the cop that he would tell him the “whole story” after consulting with his lawyer in Des Moines
    3. Applicability to Miranda cases: although the SC decided Brewer as a right to counsel case, rather than as a Miranda case, presumably the test of a valid waiver of Miranda rights would be the same as the test applied in Brewer for a waiver of the right to counsel. Thus the prosecution must show that the D not only understood his right to remain silent but that he intended to relinquish that right.
  2. Silence can never constitute waiver
    1. Nods and shrugs: although silence by itself is not enough to constitute waiver, at least one court has held that the suspect’s nod or shrug when read his warnings, followed by a statement by the suspect, constitutes waiver (Mullaney v State (st ct))
  3. Desire to postpone consultation with lawyer: a suspect who states that he will want to talk to a lawyer some time in the future, but that he is willing to answer questions before he does so, has waived his Miranda rights (Thompson v State)
  4. Conflicting signals for suspect
    1. Refusal to sign waiver not fatal: a suspect’s refusal to sign a written waiver form was held not to automatically negate his waiver of his Miranda rights, in North Carolina v Butler. The SC held that an express waiver of Miranda rights is not necessary, and that a waiver can in some circumstances be inferred from the actions and words of the person interrogated.
  5. Refusal to sign statements without lawyer: if the suspect indicates a willingness to answer questions orally, but says that he will not sign a written statement without a lawyer present, the Ct allowed oral answers to oral questions to be admitted, despite the suspect’s refusal to sign a written statement without counsel (Conn v Barret)
  6. Objection to note-taking: most cts have held that absent other indications of the suspect’s misunderstanding of his rights, or unwillingness to talk, the objection to not-taking does not vitiate the waiver
  7. Request for non-lawyer: a suspect’s request to see a non-lawyer will generally not be enough to negate his waiver if his Miranda rights. Thus in Fare v Michael C, a juvenile suspect requested to see his probation officer. The Ct held that this request was not the equivalent of a request for a lawyer (which would have required interrogation to cease automatically). Instead, the request for the probation officer was merely one factor to be considered in determining whether D had waived his Miranda rights, and under the totality of the circumstances, D could be found to have waived those rights
    1. Rationale: in support of this holding, the Ct noted that probation officer is not in a position to offer the type of legal assistance necessary to protect the 5^th Amnd tights of an accused undergoing custodial interrogation that a lawyer can offer. With respect to the waiver issue, although D was a juvenile there was nothing to indicate that he was too young or immature to understand the rights he was waiving.
2. Waiver where retained lawyer not consulted: a suspect represented by an attny is known to the police – does this existence of such retained counsel change the requirements for a waiver of Miranda rights? Q likely to arise where the lawyer has been retained on the suspect’s behalf not by the suspect himself but by a friend, etc., especially in circumstances where the suspect does note even know that the retention has occurred. HELD: a suspect’s waiver of his Miranda rights will be effective even though the police (1) decline to tell the suspect that a lawyer has been retained for him or is trying to see him; and (2) prevent or by use of trickery discourage, the lawyer from seeing his client. (Moran v Burbine)
  1. Waiver upheld: events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. But we have never read the Constitution to require that the police supply a suspect with a flow of info to help him calibrate his self interest in deciding whether to speak or stand by his rights.
    1. Police state of mind irrelevant: even deliberate deception of the presence of an attorney could not possibly affect a suspect’s decision to waive his Miranda rights unless her were at least aware of the incident. Police trickery could only affect constitutional validity of a waiver if it deprives a D of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. Because D had been told, and understood, everything that Miranda requires them police to convey, the deception of an attorney, and the failure to tell D that there was an attorney, were simply irrelevant.
    2. Balancing of costs against benefits: D argued that Miranda should be interpreted to require the police to inform a suspect of an attorney’s efforts to reach him. But the majority rejected the proposed rule, on the grounds that while it might add marginally to Miranda’s goal of dispelling the compulsion inherent in custodial interrogation, overriding practical considerations counsel against its adoption. The proposal would muddy Miranda’s otherwise relatively clear waters.
    3. 6^th Amnd claim rejected: the majority also rejected D’s claim that his 6^th Amnd right to counsel was violated by police efforts to interfere with his dealings with his attny.. The right to appointment of counsel does not attach until the initiation of adversary judicial proceedings also meant that no aspect of the 6^th Amnd tight to counsel is triggered prior to initiation of formal charges
    4. Due process claim: similarly, the ct summarily rejected D’s claim that the police conduct here amounted to a violation of his due process rights. The challenged conduct falls short of the kind of misbehavior that so shocks the sensibilities to civilized society as to warrant a federal intrusion into the criminal processes of the States
  2. Significance of the case: Moran is probably, together with Quarles, one of the two most important narrowing of Miranda’s scope. The decision clearly means that the police need never is close to the suspect that his attny is trying to reach him, no matter how likely it is that that info would cause the suspect tot change his mind about whether to waive his Miranda rights. Beyond this, the case probably means several other things:
    1. Deception of attny: the police may apparently totally deny the attny access to his client as long as the request for access is made by the attny rather than the client
    2. Trickery of suspect: so long as the suspect understands the bare essentials of his Miranda rights, apparently no type of police deception will vitiate a waiver of Miranda rights
3. Suspect’s ignorance of charges: Colorado v Spring: does not vitiate the waiver if the suspect, at the time he aggress to waive his Miranda rights, believes that the interrogation will focus only upon a minor crime and then the police suddenly change the questioning to cover a different, much more major crime.
  1. Misrepresentation: the Spring Ct explicitly declined to consider whether an affirmative misstatement by the police as to the nature of their questioning would be treated differently. The Ct stressed that the officers in Spring merely gave D no info at all, rather than lying to him. Thus, if the police tell a suspect that the interrogation will involve one crime, while intending to ask him about another crime, this may well be police trickery sufficient to invalidate the waiver
4. Mentally ill D: no matter how irrational the suspect’s decision to waive his Miranda rights, the waiver will stand so long as there was no police coercion (CO v Connelly)
  1. Significance: Connelly, taken together with Spring and Moran, illustrates the present Ct’s refusal to consider anything but police coercion in determining whether a waiver of Miranda is voluntary.
5. Multiple interrogations: (1) if in the first session, the suspect invokes his Miranda rights, may the police attempt to gain a waiver in a subsequent session? (yes) (2) if the suspect gives a valid waiver in the first session, must the Miranda warnings be repeated in subsequent sessions? (no)
  1. Michigan v Mosley: D’s right not to be questioned had not been violated by the resumption of questioning. The t emphasized the fact that the second questioning was on a different crime, that a significant period had passed between the two interrogations, that they took place in different locations, and that the D was given his Miranda warnings before each session.
6. Where lawyer requested during first session: Edwards v AZ: where the D asserts in the first session that he wants a lawyer, the SC has been extremely reluctant to find that this demand has subsequently been waived. The Ct set forth a bright line rule that “an accused having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.
  1. Response to questioning: waiver will not be established, the Edward Ct held, by the mere fact that the suspect responded to later police initiative interrogation (even if that interrogation was preceded by a new reading of the Miranda warnings)
  2. Initiating the conversation test: Edwards is significant, b/c it means that once a suspect indicates a desire to have a lawyer, any subsequent waiver of that right will not be measured by the usual tests for waiver (totality of the circumstances to determine the existence of a knowing and intelligent waiver). Instead, the decision holds that the only way the suspect may waive a previously asserted desire to have a lawyer present at interrogation is by initiating the conversation with the police
  3. Application to Edwards: Since this second encounter with the police was not indicated by Edwards, the SC found it invalid b/c it was not made in the presence of the previously requested lawyer, even though Edwards might have known of his right to lawyer, known of the dangers of not insisting on one, and made a perfectly rational decision to waive his previously-exercised right to one
  4. Bright line guidance: once the suspect has asserted a desire to have counsel, they may never question him again prior to supplying him with that counsel
7. Lawyer request at arraignment: if the D during his arraignment requests a lawyer, the police may not subsequently initiative conversations with him until counseled has been made available. If the police do initiate conversations without counsel being made available, any statement may not be admitted against D as a substantive evidence (Michigan v Jackson)
  1. Rationale: the holding in Jackson was not based upon the 5^th Amnd right against compulsory self-incrimination, as Edwards was. Rather, Jackson turned upon the 6^th Amnd right to counsel. Once formal charges are lodged against the D (something that has always happened by the time of arraignment), his 6^th Amnd right of counsel attaches
  2. May be used for impeachment But the rule of Jackson applies only to bar the substantive use of the D’s post-arraignment statements, not the impeachment use of such statements. Thus even if D requests a lawyer during his arraignment, the police may initiative conversations with him without counsel being present, and may then use those statements to impeach D’s testimony at trial (Mich v Harvey)
  3. Applies only to charged offense: applies only to bar subsequent police initiated conversation with the suspect on the same charges on which he was arraigned. Thus if D is arraigned on Charge 1, and D asks for a lawyer to assist him during the arraignment, the police are free to initiate questioning of D about Charge 2 without having the lawyer present. Of course, the police must still give D his Miranda warnings, but the bright line rule of Jackson (that once a lawyer is requested at arraignment, the police may not subsequently initiative conversations with the suspect until counsel has been made available) does not apply. (McNeil v Wisconsin). The Ct’s rationale for this rule is that the 6^th Amnd right is offense specific so that its Michigan v Jackson effect of invalidating subsequent waivers in police initiated interviews is also offense specific
8. Requests must be unambiguous: Edwards only applies where the suspect clearly asserts his right to have counsel present during a custodial interrogation. If the suspect makes an ambiguous request – which a reasonable observer would think might or might not be a request for counsel – the questioning does not have to stop. In fact, the police do not even have to (though the may) ask clarifying questions to determine whether the suspect really does want a lawyer (Davis v US)
  1. Davis v US: The Edwards obligation to stop questioning once the suspect asks for a lawyer applies only where the suspect articulates his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attny.
9. Meaning of “initiates:” Oregon v Bradshaw – the SC stretched to find that the suspect had initiated a dialogue entitling authorities to resume questioning (requested attny, then alter asked what was going to happen to him, opened dialogue, so statements allowed)
  1. Routine requests: the plurality notes that some statements or requests by a suspect are so routine that they will not be enough to trigger Edwards, and to permit interrogation to begin anew (a request for a drink of water, etc.). What is required is a statement by the accused that represents a desire on the suspect’s part to open up a more generalized discussion relation directly or indirectly to the investigation.
    1. Use a totality of circumstnaces test
  2. Two-step process: (1) Did the suspect initiate discussion with the police, indicating that he wanted to talk about the investigation; and (2) if so, was there a knowing and intelligent waiver of the right to counsel, judged by the totality of the circumstances?
10. Questioning about different crime: under Edwards, a suspect who asks for a lawyer may not be interrogated thereafter, unless it is the suspect who initiates the further discussion. The SC has held that this bright line rule applies even where the police subsequently wish to question the suspect about a different crime than the one they were questioning him about when he first requested the lawyer (AZ v Roberson)
11. Questioning after a suspect has consulted lawyer: …and is then interrogated by the police outside the lawyer’s presence. The rule of Edwards (that a suspect who asks for a lawyer may not be interrogated thereafter, unless it is the suspect who initiates the further discussion) will be deemed to be violated. IN other words, the lawyer must be present during subsequent questioning, and a mere consultation before the questioning will be no substitute for this. (Minnick v Mississippi)
12. Where rights waived in first session: if the suspect waives all of his Miranda rights during the first session, the courts have almost never required that the warning be given at subsequent sessions This has been the case both where the second session occurs soon after the first (Us v Springer) and where several days elapse between the two (Puplampu v US)
13. Warnings not given in first session: so long as the statement made in the second interrogation is knowingly and voluntarily made, the police’s failure to give Miranda warnings in the earlier interrogation will usually be of no consequence. This is true even if the first interrogation produced a confession, and even if the suspect’s willingness to repeat the confession is due to his feeling that the “cat’s out of the bad” (Missouri v Seibert, Oregon v Elstad)
14. Competency of suspect
  1. Minors: most cts hold that a minor may waive his rights and confess without consulting with either an attny or guardian, although waiver will be more difficult to establish
    1. Re William L: 14 year old awakened at 3:00 am and questioned at the place station by five officers about a murder. His mother had been told that the matter was not serious and that there was no need to accompany her son. The ct held the confession obtained inadmissible b/c the boy in that station could scarcely be in a frame of mind capable of appreciating the nature and effect o the constitutional warnings given
The Miranda Rights of Grand Jury Witnesses
1. Grand Jury questioning generally: Miranda not applicable
  1. But still have a general right against self-incrimination
  2. But if you are a witness, you must still appear
2. Warnings not generally required: GJ witness does not have to be warned of his right to remain silent or have a lawyer present (US v Dionisio – GJ is not an unreasonable seizure, not custodial in Miranda sense)
3. Katsigar v US – a witness granted use immunity may constitutionally be prevented from asserting the 5^th Amnd; the scope of use immunity was co-extensive with the 5^th Amnd privilege at trial. If the witness can be compelled to testify by granting him immunity, the Miranda warnings are obviously unnecessary.
Other Admissibility Issues Relating to Miranda
1. Wong Sun and Miranda: if a suspect is illegally arrested and given his Miranda warnings, and then confesses, the Miranda warnings have not purged the taint of the illegal arrest, so that the fruit of the poisonous tree doctrine of Wong Sung does not apply.
  1. Admissibility for impeachment: Harris v NY – significantly undermined Miranda by permitting prosecution use of such statements for impeachment purposes at trial. “The Shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.”
2. Involuntary confession: although a statement obtained in violation of Miranda may be admissible for impeachment purposes under Harris, it may not be used even for this purpose if it was the product of coercion, or was involuntary for some other reason. Such an involuntary confession was found to exist in Mincey v AZ
3. Use of D’s silence: if a suspect is given his Miranda warnings, and then remains silent, the prosecution may not impeach an alibi he gives at trial by asking, “Why didn’t you tell that story to the police?” and eliciting the fact that the suspect remained silent. (Doyle v Ohio)
4. Actual Impeachment required: Doyle only prevents the prosecution from using, for impeachment purposes, the D’s post arrest silence. If the prosecution asks the questions, “Why didn’t you tell that story to the police?” and the defense’s objection to the question is sustained, there is no Doyle violation and no grounds for reversal (Greer v Miller)
5. Silence prior to arrest: the Doyle holding applies only where the police have given Miranda warnings, and does not apply to pre-arrest silence by the suspect. Thus in Jenkins v Anderson, D raised a self-defense claim at his murder trial. The prosecution impeached this claim by pointing out that for two weeks after the murder, D failed to go to the authorities to surrender himself or explain the self-defense incident.

Lineups and Other Pre-Trial ID Procedures

Limitations of the Privilege against self-incrimination: Schmerber v CA: an involuntary blood test did not violate the 5th Amnd right against self-incrimination, b/c the Amnd protects only against compulsion to give testimonial or communicative evidence
1. The Right to Counsel
  1. The Wade-Gilbert rule: US v Wade & Gilbert v CA: a suspect, at least after indictment, has an absolute right to have counsel present at any pretrial confrontation procedure (lineups, one man showups, etc.)
2. Improper ID inadmissible: any ID which occurs without the presence of counsel (except where there is waiver) must be excluded as evidence at trial
Exceptions to the Right to Counsel
1. Pre-indictment IDs: the SC has refused to extend the Wade-Gilbert rule to lineups conducted before the institution of formal proceedings against the suspect. In Kirby v Illinois, the Ct limited the right to counsel in lineups and showings to a time at or after the initiation of adversary criminal proceedings – whether by way of formal charge, preliminary hearing, indictment, information or arraignment.

The Exclusionary Rule

Purpose and Function of ER: future of rule: the number of situations in which the exclusionary rule is applied has steadily dwindled over the last ten years. The latest inroad upon the rule came in US v Leon, when the Ct held that the prosecution may introduce illegally-obtained evidence as apart of its case-in-chief against the person whose rights were violated, if the police obtained the evidence relying upon a search warrant which they reasonably (but erroneously) believed to have been valid.
Standing to Assert the ER
1. General Standing Issue: the D may assert the ER only to bar evidence obtained through violation of his own constitutional rights. The requirement that the rights violated be those of the D has historically been referred to as a right of standing to raise a constitutional claim
  1. Interpretation in Alderman v US: coconspirators and co-Ds no special standing
2. Confession cases: the general rule that a D may, for purposes of the ER, assert only his own constitutional rights, is fairly easy to apply in the case of an illegally-obtained confession: it is only the person who makes the illegally obtained confession who may have it barred by the ER
3. Search & seizure cases
  1. Rakas v Illinois: a D may seek to exclude evidence derived from a search or seizure only if his legitimate expectation of privacy (Katz test) was violated
4. Possessory interest in items seized: Rawlings v Kentucky – possession of the seized items must be evaluated like any other basis for a 4^th Amnd claim, i.e., it will be relevant only if it confers a legitimate expectation of privacy with respect to the item and the search
  1. Rawlings v Kentucky: Ct conceded that D owned the drugs that were seized, but stated that this was irrelevant; the question was whether D had legitimate expectation of privacy with respect tot Cox’s purse and its content. Because D: (1) had apparently stuffed the drugs in Cox’s purse only moments before the police arrived; (2) had no right to exclude others (e.g. Cox’s other friends) from looking through Cox’s purse; and (3) admitted that he had no subjective expectation that the purse would remain free from governmental intrusion, D had no legitimate expectation of privacy with respect to the purse’s contents.
  2. Presence at search not automatically sufficient: test should be whether the D had a legitimate expectation of privacy in the premises he was using
5. Need for doctrine reduced by Simmons rule: Simmons v US: testimony by the D at a suppression hearing cannot be used against him at trial. This rule permits the D to allege possession at the suppression hearing; if he loses at the hearing, he can then deny possession at trial, and his early allegation of possession cannot be used against him.
Derivative Evidence
1. Silverthorne Lumber v Us: The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that is shall not be used at al. Once the original evidence, “the tree,” is shown to have been unlawfully obtained, all evidence stemming from it, the “fruit,” is equally unusable
2. Independent Source Exception: the fruits of the poisonous tree doctrine would not apple where the secondary acts in question came from two sources, only one of which was related to the original illegality. Facts obtained indirectly through constitutional violations do not becomes sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.
  1. Expanded view: Segura US: Police had arrest warrant for D but unlawfully entered his apt, evidence, waited in apt until other officer could get warrant, seized evidence, etc.: HELD: D argued that since the initial entry into the apt was unlawful (a fat not denied by the government), and since the agents’ 18-hour stay in the apt was unlawful, the evidence that was finally seized was tainted fruit, which should be excluded. But the SC rejected this argument. It reasoned that prior to the illegal entry, the police already knew enough to obtain a search warrant; therefore, they could have staked out the apt from the outside (which would have been legal), gotten the warrant, and seized the very same evidence. The police thus had an independent source for that evidence, the Court concluded.
  2. Rediscovery of evidence: But Segura has since been extended to cover the situation where the police are illegally on premises, they discover particular evidence, they apply for a warrant, and they “rediscover” the evidence. In this scenario, as long as the ct is convinced that the illegal entry did not contribute either to the officer’s decision to attempt to get a warrant or to the magistrate’s decision to grant the warrant, the evidence will be admissible even though its initial discovery was illegal (Murray v US).
    1. Police arrested drug traffickers outside a locked warehouse, then decided to force open doors where they saw MJ, waited for other officer to get warrant. Officer got warrant but did not tell magistrate they had already broken it — then seized it.. HELD: so long as the prosecution could show on remand that the officers would have applied for and properly received a warrant even had they not first entered the warehouse, the MJ could be admitted under the independent source exception. It did not make any difference that, unlike Segura, the present case involved evidence that was actually discovered during the initial warrantless entry. To exclude the evidence would put the police (and society) not in the same position they would have occupied if no violation occurred, but in a worse one.
  3. Scope: So Segura and Murray, taken together, appear to allow admission of evidence under the independent source exception when 3 requirement are satisfied:
    1. Illegally on premises: first, the police must have been on the premises illegally at the moment they discovered the evidence or contraband in question. Perhaps they arrested D in his home without a required arrest warrant, and then searched incident to arrest (making the search invalid). Or, as happened in Murray, perhaps they forced open the premises without a search warrant and saw the evidence or contraband there. Whatever the sequence, the point is that the police ended up in premises for which they did not have a search warrant, and as to which no exception to the search warrant exists.
    2. PC for search warrant: Second, although the police did not have a search warrant, at the moment of entry they must have had knowledge that would have entitled them to procure a search warrant. That is, they had PD to believe that contraband, or evidence of crime, would be found on the premises. This theoretical availability of a warrant is the independent source that justifies the admission of the evidence even though the police were acting illegally at the moment they seized the evidence.
    3. Police would have applied for warrant: Finally, the police must show that they would probably have eventually applied for a search warrant even had they not engaged in the illegality. (thus suppose the police had PF for a search warrant, but let a long time lapse without getting a warrant. If they then discovered contraband while illegally on the premises, and the court determines that without the illegal entry and discovery the police would never have bothered to get a warrant, Murray indicates that the independent source exception wont apply).
3. Inevitable discovery: Evidence may be admitted if it would inevitably have been discovered by other police techniques had it not first been obtained through the illegal discovery. It is the prosecution which bear the burden of showing, by a preponderance of the evidence that the info would inevitably have been discovered by lawful means (Nix v Williams)
  1. Christian burial case II: said body would have been discovered inevitably. Where the evidence would inevitably have been discovered (just as where the evidence is in fact discovered through an independent source), admitting the evidence by hypothesis does not place the prosecution in a better position than it would have been in had there been no illegality. And keeping the evidence out actually places the prosecution in a worse position, a result for which there is no sound rationale.
  2. Absence of bad faith not required: The Court in Nix v Williams refused to make it a condition of the inevitable discovery exceptions application that the prosecution prove an absence of bad faith on the part of the police.
  3. Scope of the exception: the inevitable discovery exception, as it applied in Nix, mean that evidence obtained in violation of the D’s 6^th Amnd right to counsel could be admitted. It seems quite clear, however, that the exception al applies to evidence which is obtained in violation of other constitutional guarantees. Thus evidence obtained in violation of the 5^th Amnd right of a suspect in custody searches and seizures, or in violation of the 5^th Amnd right of a suspect in custody to remain silent, could similarly be introduced if it were shown that this evidence would inevitably have been discovered had the illegality not occurred.
4. The “purged taint” exception in general: the principle is that if enough additional factors intervene between the original illegality and the final discovery of evidence, neither the deterrence nor judicial fairness rationales behind the ER applies. Therefore, the evidence may be admissible despite the fact that it would not have been discovered “but for” the illegality
5. Wong Sun formulation: the applicability of the fruit of the poisonous tree doctrine is determined by whether, granting establishment of the primary illegality the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint
  1. Use of statement: the Ct held that Toy’s statement made right after the invasion of his house, could not be used against him bc it was a fruit of the illegal invasion. In such circumstances it is unreasonable to infer that Toy’s response was sufficiently an act of free will to purge the primary taint of the unlawful invasion
  2. Use of drugs against Toy: The Ct also disallowed the use against Toy of the drugs seized from Yee. The seizure was the direct result of Toy’s statement, which itself was, the Ct had held, an inadmissible fruit of the illegal invasion; the seizure was therefore come at by the exploitation of the illegality.
  3. Use of drugs against Wong Sun: the drugs were, however, admissible against WS, even though their seizure had been the direct product of the illegal entry into Toy’s house. The admissibility of the drugs against WS was due to his lack of standing to object to their seizure. The seizure of this heroin invaded no right of privacy of person or premise which would entitle WS to object to its use at his trial. It was only bc Toy had had the perverse good fortune to have had his own 4^th Amnd right violated at the outset that he was able to prevent the intro of the drugs against him; WS, implicated by illegal seizure from and statements by others, was not so lucky.
    1. Note: the admissibility of the drugs against WS and not against Toy point p the critical importance of observing whose rights have been violated. It does not matter to how great an extent particular evidence is the fruit of an illegal arrest or search; if the illegality did not violate the constitutional rights of the D himself, he will never be able to argue the fruits of the poisonous tree doctrine.
  4. Use of confession: in discussing the admissibility of WS’s own confession against him, the Ct conceded that his arrest had been without PC, and therefore illegal. But b/c WS had been released for several days after the arrest, and bc he had returned voluntarily to make the statement, the connection between the arrest and the statement had become so attenuated as to dissipate the taint
6. Illegality leading the police to focus on a particular suspect
  1. In court ID: 5 members of the SC have indicated that where a suspect is illegally arrested, tried in court, and ID’ed at trial by the victim, the D cannot claim that his physiognomy is the fruit of an unlawful arrest, thus barring the in-court ID (US v Crews)
7. Leads to different crime: suppose the police are investigating one crime and an illegal action they commit leads them to evidence o a completely different crime. In this situation, as in the situation of the discovered suspect, the cts have been quite willing to find the taint of the original illegality purged
8. Leads to witnesses: one of the fruits of police illegality may be the discovery of the existence of witnesses who can give testimony against the D
  1. Michigan v Tucker: (police interrogated a suspect before the Miranda decision came down, and by doing so obtained the name of a person who eventually became a prosecution witness. B/c the trial was conducted after Miranda, that decision applied, and the interrogation was held by the Ct to have been in violation of the Miranda. BUT, the SC held that although the D’s own statement could not be used against him, since it was obtained in violation of Miranda, the prosecution witness’ testimony had been purged of its taint, and was admissible
  2. Rationale: The Ct did not hold that the testimony of every witness, no matter how his identity was obtained, is free of taint, Instead, the Ct applied a totality of the circumstances test to ascertain whether the taint was purged. The following factors present in Tucker itself led the Ct to allow the testimony:
    1. The police had conducted the interrogation in complete good faith (and before they knew anything about the Miranda standards); therefore, the deterrence rationale behind the ER did not apply
    2. The interrogation did not involve compulsion sufficient to breach the privilege against self-incrimination, but merely departed from the prophylactic standards of Miranda
    3. There was no indication that the witness’ testimony was untrustworthy
    4. The admission of the testimony did not do violence to such elements of the adversary system as may be embodied in the 5^th 6^th and 14^th Amnd
  3. US v Ceccolini: the taint attached to an illegally obtained witness lead is even easier to purge as the result of the SC’s post-Tucker decision. Officer basically goes into flower shop and opens envelope on desk that happens to have illegal note in it that leads to D who then confesses. All this still leads to D’s testimony being admissible
9. Brown v Illinois: (D was arrested without PC, so that he could be questioned concerning a murder. After the arrest, the D was taken to the police station, given the Miranda warnings, and interrogated. Within two hours of his arrest, the D made an incriminating statement. Several hours after that, in a second interrogation session (again prefaced by Miranda warnings), the D made a second incriminating statement.
10. Holding: SC set forth more precise and helpful guidelines for determining the taintedness of a confession. “The Miranda warnings, alone and per se, cannot always make the confession sufficiently a product of free will to break, for 4^th Amnd purposes, the casual connection between the illegality and the confession. They cannot assure in every case that the 4^th Amnd violation has been unduly exploited. The Q whether a confession is the product of a free will under WS must be answered on the facts of each case. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of the illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and particularly, the purpose and flagrancy of the official misconduct are all relevant
11. Test as applied in Brown: The Ct had little difficulty in holding the first confession to be tainted by the arrest; the short period of time, and the obvious investigative intent of the police which motivated the arrest, by themselves closely linked that confession to the arrest. In holding that the second confession was also tainted, the Court stressed several factors.
  1. Wrongful intent: the arrest had a quality of purposefulness; it was motivated not by the police’s good faith belief that they had a tight case against the D, but rather by the police’s desire to obtain new evidence. This lack of good faith was evidenced by the manner of the arrest, which gave the appearance of having been calculated to cause surprise, fright and confession
  2. No intervening acts: no significant intervening acts occurred either between the arrest and the first confession, or between the first and second confession. The confessions were both thus distinguishable from WS’s confession, which followed WS’s release on his own recognizance for several days. The D in Brown was neither released nor arraigned, nor did he consult with counsel
  3. Belief in first confession’s admissibility: the second confession was further linked to the first by the D’s belief that the first would be admissible, and that he therefore had nothing more to lose by making a second statement
  4. Lack of free will: the second confession was very much the product of police influence, since the D expected to gain lenience by confessing and by cooperating in helping to locate another suspect
12. Brown reaffirmed in Dunaway v NY: Ct stressed that the voluntariness of the confession was not enough to purge the taint, in view of the fact that the suspect was retained in custody without PC, and confessed before any intervening events broke the connection between seizure an confession
13. Confession where arrest made with PC: a police arrest of D with PD but then arrest is unconstitutional bc it is made without an arrest warrant – ct refused to apply the fruit of the poisonous tree analysis to any resulting confession, and has held that a voluntary confession given by D in the station-house after the warrantless arrest need not be excluded (NY v Harris)
  1. Claim rejected: Ct contended that Brown, Dunaway and Taylor all involved confessions that stemmed from arrests which were made without PC. D’s arrest here, by contrast, was made with PC. Therefore, the custody of D at the station-house was no unlawful. Since the police had a justification to Q D prior to his arrest, his subsequent station-house confession was not an exploitation of the illegal entry into D’s home. Do’s confession therefore did not need to be suppressed – the whole tainted fruit analysis, the Ct said, needs to be performed only where the challenged evidence is in some sense the product of illegal government activity, which was not the case here.
  2. Rationale: the idea seems to be that in Harris, the police could have arrested D, even without a warrant, had they done so outside of his house rather than inside it. If they had arrested him outside his house (as they had a right to do), they could then have taken him to the station-house, just as they did. Id D had made a station-house confession under this scenario, there would have been no illegality to taint the confession. So the police did not benefit by their unlawful entry – they didn’t get anything (e.g. the confession) that they couldn’t have gotten lawfully, and the deterrence rationale behind the exclusionary rule would not be served by barring the confession.
14. Second confession as fruit of the first: IN Brown, the taint of the second confession derived indirectly from an illegal arrest. Sometimes, however, the only issue regarding a second confession is whether it is tainted by an earlier confession which is not the fruit of any still-earlier illegality, but which is itself an illegally obtained poisonous tree. This question may arise, for instance, where the D is legally arrested, is given insufficient Miranda warnings, confessions, is then given adequate Miranda warnings, and confesses again. The second confession is, when considered by itself, valid, but is it nonetheless the tainted fruit of the earlier, unlawful, confession? As the result of a pair of cases separated by 19 years, the answer is “not usually.” More specifically:
  1. The second confession will not be deemed tainted as long as it was voluntarily made and the Ct will presume that the second confession is indeed voluntary if made after warnings, even though that confession followed an earlier unwarranted confession (OR v Elstad)
  2. The second confession is more likely to be deemed to ne voluntarily made if the underlying circumstances do not make that second confession a mere continuation of the first. (so, for instance, the second is more likely to be found voluntary if the two were meaningfully separated by time, place, or interrogator, or if it was made clear to the suspect that the first, unwarned, confession would be admissible) (Elstad)
  3. The second confession is less likely to be deemed tainted if the failure to warn prior to the first confession was the result of an inadvertent mistake by the police 9Elstad)
  4. But where the police follow an intentional two-step practice of eliciting an unwarned confession, then immediately giving a warning under circumstances that lead the suspect to believe that even the already made confession can be used against him (so that the suspect sees no reason not to repeat the confession after the warning), the second confession will probably be deemed involuntary and thus tainted (Miss v Seibert)
15. Elstad rejects the general cat out of the bag theory: The first, and more general, of the two case on sequential confessions was OR v Elstad. There, the Ct announced that instead of presuming that the second confession is tainted fruit of the first, Miranda-less, confession, the Ct would analyze solely whether the second confession was knowing and voluntarily made. IF the confession (or other statement) satisfied this knowingly and voluntarily made standard, it would not be invalidated merely because there was a prior, illegally obtained confession have the same substance
16. Intentional two-step approach struck down: many police depts. In the years after Elstad adopted a conscious two step approach to interrogation, in which the police would intentionally procure an unwarned (and inadmissible) confession, give Miranda warnings, and then hope to get the suspect to give an (admissible) confirmation of what he had already confessed to. But, the Ct in a 5-4 decision held that this two step approach will at least sometimes lead to a tainted and inadmissible, second confession. (Miss v Seibert)
  1. Plurality strikes objective grounds: decided that D’s second confession here should not have been admitted However, the five justices could not agree on a rationale. 4 justices: under the circumstances here, a reasonable person in D’s position would not have understood the Miranda warnings to convey a message that D retained a choice Etc.
17. Where we are now: so as the result of the pairing of OR v Elstad and Miss v Seibert, we are left with two main rules;
  1. A general rule that where a pre-warning statement is followed by a post-warning statement, there will be a presumption that the giving of the warning has dissipated any taint from the earlier statement, making the post-warning statement admissible (Elstad); but
  2. A possible exception: where the post-warning statement is a virtual continuation of the pre-warning one, and a reasonable person in the suspect’s position might not have understood that the pre-warnings statement was inadmissible, the Ct may conclude that the warnings were not effective, in which case the post-warning statement will be excluded (Seibert)
18. Confession as a poisonous tress: in many cases, a confession obtained in violation of Miranda furnishes the police with leads to additional evidence, such as physical evidence (e.g. stolen property, or a murder weapon) or witness. As a result of Us v Patane, such additional evidence will virtually never be treated as tainted fruit merely bc that evidence derived from a non-Mirandized confession. The Ct held in Patane that Miranda exists only to guard against violations of the suspect’s 5^th Amnd right not to be coerced into testifying against himself and that the admission of additional fruit of a non-Mirandized (but voluntary) confession – in that case, physical evidence – therefore cannot violate Miranda
  1. Patane: Police find out that D might possess an illegal weapon, end up arresting him on a different offense, ask him about the weapon & try to read Miranda, he says he know and tells them were its at, they charge him with that possession.
  2. Held: 5-4 vote allows admission: 5 say gun should NOT be excluded, though they did not agree on a single rationale
    1. Plurality by Thomas: 3 took view though would completely prevent the fruit of the poisonous tree doctrine of WS from ever being used to exclude a piece of evidence derived from a non Mirandized confession. Miranda just a prophylactic employed to discriminate against violations of the self incrimination clause
19. Probable extension to third-party witness’s testimony: Patane clearly means that for a majority of the present Court, physical evidence that derives directly from a non-Mirandized confession will never be excludable as fruit of the poisonous tree, so long as the confession is not coerced, But Patane will probably extended, so as to deny fruit of the poisonous tree treatment for any evidence that derives directly y from a Miranda violation, other than a confession by the non-Mirandized suspect himself. For ex: the case probably means that third-party witness testimony that the police obtain only by virtue of a Miranda violation cannot be excluded as fruit of the poisonous tree.
20. Guilty pleas as fruit of confession: If a D makes a confession pleads guilty on the assumption that his confession could be used against him, and then discovers that the confession was invalid, he may not argue that the guilty plea is itself a fruit of the poisonous confession since he would not have so pleaded had he realized the inadmissibility of his confession (McMann V Richardson)
21. D’s testimony as fruit of confession: Suppose the D confesses under coercion, and seeks unsuccessfully to have his confession excluded from the trial, and takes the stand only to rebut the damaging confession. IF the D succeeds on appeal in having the confession held inadmissible, may he have his testimony from the first trial excluded in his retrial on the grounds that it was the fruit of the illegal confession?
  1. Harrison v US: YES. Even if the D would have taken the stand had his confession not been introduced it does not follow that he would have admitted being at the scene of the crime and holding the gun when the fatal shot was fired. The damaging testimony was therefore not obtained by means sufficiently distinguishable fro the underlying illegality to be purged of the primary tin
Collateral Issues Exceptions:
1. Impeachment at trial: (Harris v NY: SC held that a D’s confession, obtained in violation of Miranda, could be introduced to impeach the D’s trial testimony, even tough it could not be used in the prosecution’s direct case. Thus the ER does not generally apply to the use for impeachment purposes of illegally obtained confessions.

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