I.

Remedies to law enforcement violating Constitution a. Individual can bring suit against officer, institution i. Seek damages, return of property 1. Is return of property even designed to make defendant whole? 2. Is it more of a deterrent? ii. Dont let police benefit from illegal activity 1. Exclude evidence 2. Fire officer 3. Take away sovereign immunity for Constitutional violations b. Exclusionary Rule doesnt make defendant whole i. Has a deterrent effect ii. Police cannot use benefit of illegal search at trial c. Weeks v. United States i. Defendant arrested, no warrant for search or arrest 1. Got key from neighbor, took evidence 2. USDC denied petition to return property a. Federal court, no state applied issue ii. Fourth Amendment issues 1. Did the cops have individualized suspicion and if so, how much? a. Not clear from the facts 2. Did cops have a warrant? a. No, just a helpful neighbor 3. What was the location searched? a. Weekss house (room he lived in) b. Found papers police thought helpful c. Any reason/explanation for no warrant? Not clear from the record iii. Weeks filed a civil action for return of his property 1. No authority, violated constitution 2. Wouldnt be able to use as evidence a. Got some stuff back, the non-pertinent stuff iv. Holding: Fourth Amendment violated. Use of evidence from an illegal search and seizure cannot be used (exclusionary rule). 1. No point of having Fourth Amendment if police will do it any way and use evidence 2. Rule not in any specific language of the Fourth Amendment d. How does exclusionary rule come about? i. If Weeks Court ruled the other way, a judicial decision would sanction specific government action prohibited by the Constitution 1. Gives Fourth Amendment efficacy 2. Fourth Amendment exists to protect people from all unreasonable search and seizure, if no exclusionary rule, people would be subject to some unreasonable searches and seizures a. Use of illegally obtained evidence is part of unreasonableness of search and seizure e. Mapp v. Ohio i. Whether illegally obtained evidence can be presented in State Court? 1. Wolf v. Colorado had already incorporated Fourth Amendment but separated exclusionary rule out ii. Court finds it is illogical not to include the exclusionary rule, overturns Wolf iii. Exclusionary Rule applies to states 1. Closely linked to the Fourth Amendment iv. Rationales 1. Uniformity: Fourth Amendment applies to all, why different use in federal and state court? 2. Privacy already applies to states

II.

a. Fourth Amendment encompasses a privacy right i. Exclusionary Rule gives Fourth Amendment meaning (designed to protect privacy) 1. Doesnt prevent cops from acting but will be unable to go to trial ii. If cops dont want to go to trial, then does it protect privacy rights? 3. Deterrence v. Arguments against 1. Federalism a. States should be able to craft own remedies i. Unless constitutional holding, state courts can do whatever they want 1. Supreme Court has no control over state courts vi. Harlan Dissent 1. Exclusionary Rule is remedy to guarantee protections of Fourth Amendment, does not go along with it a. State can craft own remedies i. Should be free to do so ii. State power issue 2. If not a constitutional rule, states should be free to decide what to do in their own courts f. Synopsis of Exclusionary Rule today (page 983 note 1) i. Judicially created remedy to safeguard Fourth Amendment through deterrent effect (more in line with Mapps dissent) Fourth Amendment a. Katz v. US (1967) i. Monitoring device was outside booth, no physical intrusion 1. Would satisfy old rule that there had to be a physical intrusion ii. Courts Analysis changed old rule 1. Fourth Amendment protects people, not places 2. Individual has a subjective expectation of privacy 3. Expectation was reasonable under the circumstances (societal norm) a. Society is prepared to accept as reasonable iii. Katz went into the phone booth and closed the door, he expected privacy 1. Court moved away from a pure property interests, emphasizes privacy a. Was a search, behavior indicates privacy expectation b. Reasonable because he shut the door b. US v. White i. Defendants reasonable expectation was not reasonable 1. Conversation took place between two friends in a private place, but society cannot guarantee the third party will not reveal content of conversation a. There is a certain amount of risk that society cannot control ii. Distinguish Katz 1. In Katz, police were third party tapping into conversation 2. Here, a party to the call is relaying the contents to the police iii. Rule: Whenever you talk to a third party, you assume the risk that they will reveal info to the police 1. If information comes from third party, may be no reasonable expectation of privacy iv. Dissent argues it is like Katz, police were inside monitoring the call c. Smith v. Maryland (1979) i. Defendant did not have a reasonable or subjective expectation of privacy in the phone numbers he dials from home 1. People know phone company has list of dialed numbers 2. Phone book says numbers can be traced for obscene calls

ii. Dissent 1. Not many phone company choices (necessary to some people) 2. People dont know how phone calls are traced d. Bond v. United States (2000) i. Issue: Whether immigration office squeezing the bag on overheard compartment of bus violated a reasonable and subjective expectation of privacy? ii. Holding: Violates Fourth Amendment 1. Carry on luggage exhibits more expectations of privacy a. Kept in ones immediate control 2. Squeezing the bag made it a search a. Squeeze was excessive to what other passengers would have to make room i. Exploratory in manner 1. Goes to purpose of squeeze b. Clear bag may have been different (less privacy) i. But the brick was still covered in duct tape and hidden in pants e. Open Fields Doctrine i. Hypo 1. Farmer growing marijuana, surrounded by high ears of corn a. No trespassing signs and a fence 2. Can cops walk in and search? a. Can fly over b. Less expectation of privacy c. Fourth Amendment covers houses, effects, etc. An open field is not covered i. Regardless of expectation of privacy, Fourth Amendment does not protect open fields ii. California v. Ciraolo (1986) 1. Did defendant have a subjective expectation of privacy from overhead surveillance and was it reasonable? a. He had a subjective expectation but it was not reasonable i. Anyone could fly over and see what was being grown ii. Civilian aircraft fly over at 1000 feet all the time 1. Public airspace, nonintrusive 2. No reasonable expectation of privacy 2. What if police flew over at 500 feet? In a helicopter? a. Later case made cutoff 400 feet (Florida v. Riley at 32 n.3c) 3. Difficult to reconcile with Bond case Motive to search a. Not as invasive as a touch b. Cannot discredit invasion of property as Katz would tend to hint i. Fourth Amendment protects people iii. Kyllo v. United States (2001) 1. Whether thermal scan is a search of a home? 2. It was a search. At core of Fourth Amendment is a mans right to retreat into his home and be free from unreasonable searches 3. Technology arguments a. General public does not have access to thermal imager i. New advanced technology that allows you to invade area or get info from a highly protected area 4. Rule: Where the government uses a device that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant 5. Dissent: heat emitted from house, came into public view a. Taken from top of house b. Nothing intimate about heat emissions

6. Court seems to fear that as technology increases, privacy shrinks Fourth Amendment Search Rule Template i. Threshold Question: Is there a reasonable expectation of privacy? ii. We assume the risk when we disclose the information to non-law enforcement third parties and the third party is the source of the information iii. What we hold open to the public may not be protected, however 1. If a government trespass is involved or 2. Invasion of privacy beyond public exposure then there may be a search iv. Home and curtilage enjoy some special protections, and enhanced views involving new technology will likely constitute a search. g. Draper There was PC to arrest (page 59) i. Known informant ii. Nothing is illegal except the heroin, why is there probably cause 1. If informant is known to be reliable (police discretion) a. Problems: fishing expedition (try enough, someone will by guilty) i. What if info isnt accurate? ii. Many inference iii. Based on Draper, quantum of evidence necessary for probable cause was sufficient likelihood that an offense has been or is being committed by the person arrested 1. Elements to arrest a. A particular individual b. Is committing or has committed a crime 2. Elements to search a. Property subject to seizure b. Is presently c. In the place to be searched 3. Factors a. Reliability of source b. How did source obtain information c. Reason why informant is coming to police d. Age of informant e. Corroborative evidence (can informants statement be verified?) f. How info obtained from informant? h. Spinelli v. US (1969) i. Whether the info in affidavit was adequate for a search warrant? 1. No it was not a. No sufficient statements of independent verification b. No reason to believe CI was reliable ii. Aguillar-Spinelli Test (overruled by Gates) 1. Basis 2. Reliability iii. Magistrate must satisfy test (must have something to verify) 1. Want somebody other than cops to make decision or reliability iv. Must 1. Look at informant on basis and reliability a. What is basis of info is it reliable? b. Is high degree of information enough? 2. Look at other evidence/investigation and compare to CIs info a. Here FBI could have investigate more i. How does informant know? ii. Place a bet through phone line 3. What if incredibly reliable informant with no basis? a. What about lots of Basis but no reliability? b. Spinelli says you must satisfy both prongs f.

i.

Illinois v. Gates i. Would these facts satisfy Aguilar-Spinelli? 1. Maybe second prong, probably not first a. Very specific and detailed, travel plans not available to general public b. Indicates some degree of inside knowledge 2. Dont know enough about informant 3. Independent corroboration can give more a. But cops observed something different happen i. Drove back together . . . but only after 48 hours b. Didnt see any drugs ii. Court says Aguilar is overruled, new test: totality of circumstances 1. Probable cause is a fluid concept, depends on facts 2. Magistrate should make a practical, common sense decision whether, given all circumstances set forth in the affidavit before him, there is a fair probability evidence will be uncovered iii. Problems with Aguilar-Spinelli 1. Too rigid, wont allow in anonymous informants 2. Magistrates need a more practical approach a. Forced to jump through arbitrary hoop 3. Overly formalistic a. Magistrates are not always attorneys b. Lay people making these determination 4. Without new test, cops more likely to do warrantless searches a. Lower bar for cops makes them get warrants (theoretically) 5. Only need a fair probability to establish probable cause j. Whren v. US i. At the time cops decided to pull over individuals, there was not probable cause that individuals were conducting drug activity 1. Drugs prevalent in area, no doubt the cops had a suspicion, but it didnt elevate to probable cause a. Had not other info 2. There was probable cause for traffic violation, police witnessed defendant fail to turn on signal ii. Pulling over car was a subterfuge, police wanted excuse to look in the car 1. Court said the stop was ok iii. Rule: True motive doesnt matter 1. Cops wanted to pull car over to check for drugs 2. They had probable cause for a traffic violation k. Johnson v. US i. Issue: Whether a policemans determination that there is probable cause is sufficient for a search and seizure? 1. Police needed a warrant 2. Must be a magistrate who issues the warrant a. When right of privacy yields to right to search, a judicial officer must decide i. Provides objectivity and neutrality ii. Officers probably had probable cause, but they still need a warrant 1. Johnson couples together two clauses of Fourth Amendment 2. Fourth Amendment prefers a warrant whenever possible a. Link warrant requirement to reasonableness requirement b. Searches and seizures are per se unreasonable if no warrant 3. Other argument: If police are going to use a warrant, cannot be a general warrant a. Police cant just conduct unreasonable searches and seizures l. US v. Watson i. Arrests, generally

m.

n. o.

p.

q.

r.

1. Seizure of a person, prevents him from leaving freely 2. Handcuffed, taken to jail, told you are under arrest, booked, finger printed, mug shot 3. Need probable cause to arrest (fair probability) 4. Not a conviction, but could be deprived of liberties ii. Not a violation of Fourth Amendment 1. Still need Probable cause 2. Watson was arrested in a public place (Johnson was in hotel room) 3. EXCEPTION 1: warrant not required to arrest a felon in a public place a. Required to have probable cause, but not a warrant iii. Lower expectation of privacy, more reasonable to be searched/arrested Atwater v. City of Lago Vista i. Issue: Whether the Fourth Amendment forbids arrests without warrants for misdemeanor offenses? 1. It does not, arrest was not unreasonable ii. Punishment for offense was typically just a fine 1. EXCEPTION 2: If an officer has probable cause to believe that an individual has committed even a minor criminal offense in his presence, he may, without violating Fourth Amendment, arrest the offender a. Police must observe crime Reasons for particularity of place to be searched and person to be seized i. Response to general warrants ii. Gives Magistrate degree of confidence that there is PC for what cops are looking for Andresen v. Maryland i. Real estate fraud case ii. Evidence would be mostly paperwork 1. Evidence that lawyer knew 2. Narrow search: only looking for specific files BUT could be broad search: may not be where it logically would be iii. Last line of warrant read Together with other fruits, instrumentalities, and other evidence of crime unknown at this point in time. 1. Greatly broadens scope of warrant 2. Sounds like a general warrant iv. Police officers dont know exactly what documents there or exactly where they are 1. Too narrow and they miss what they are looking for v. The Court saves the warrant Maryland v. Garrison i. Issue: Whether polices factual mistake invalidated the warrant? ii. Court used reasonableness standard. It is possible for cops to be wrong. Mistake was honest and reasonable iii. Dissent argues it was not reasonable 1. Three story building with 7 doorbells and mailboxes 2. Each apartment was a mirror image with kitchen and bathroom a. Reasonable to think this was 2 apartments 3. Didnt ask informant if McWebbs was only apartment on third floor iv. See note 2(b) p. 145 Hypo: Want to search for child porno on computer in house; where can police search? i. Office/den area ii. Maybe bedroom iii. Any place that could store computer info 1. Can find a jump drive anywhere iv. Comparable situation; search for gang activity. Innocent homeowner was handcuffed for 3 hours in garage. 1. Search was reasonable Analytical Template

i. Is government involved? 1. Fourth Amendment only applies to government 2. Phone company can be a government agent if they install a pen register at police request ii. Is there a search or seizure? 1. Reasonable expectation of privacy (Katz) a. Subjective b. Society accepts as reasonable iii. Is there probable cause to search/arrest? 1. Define probable cause 2. How much evidence is needed? (Quantum of evidence) a. Fair probability 3. What determines probable cause a. Totality of circumstances (Gates) iv. Was there warrant for arrest/search? 1. Was it based on probable cause? 2. Did it place appropriate limits on police? 3. Was the warrant executed properly? v. Is there an exception to a warrant requirement for the arrest? 1. Public place for felony 2. Misdemeanor committed in presence of the cops vi. Is there an exception to a warrant requirement for the search? 1. Exceptions are not mutually exclusive 2. Questions for warrant (and possibly probably cause) requirement a. What is the underlying rationale for exception? b. What must be shown to invoke exception? c. What is the scope of the authority conferred by the exception? s. Chimel v. California i. EXCEPTION 3: Search incident to arrest 1. Protect police from danger 2. Preserve evidence a. Defendant or accomplice can destroy evidence ii. In this case, evidence was suppressed, entire house was searched 1. Exception only extends to person and area under his immediate control 2. Temporal requirement: only places where defendant can reach out and touch iii. But his privacy has already been violated, why not keep going? 1. Cops use as pretext 2. Violates wifes privacy (but maybe dual interests) 3. Police could stage arrest of individuals where there wouldnt be PC iv. Bright line rule? 1. If there is an arrest, search incident to arrest is OK regardless of type of crime 2. Area within control gets a little fuzzy 3. How much of a search is OK t. US v. Robinson i. Probable cause to pull over defendant? 1. 4 days earlier determined that license was suspended ii. Warrant? 1. No, misdemeanor committed in view of authority iii. Search incident to arrest 1. Whether the search was too invasive in regards to the exception? a. Safety of officer i. No fear from cigarette package b. Preserve evidence i. Pulled over for driving without a license

u.

v.

w.

x.

iv. Court allows the search 1. Bright Line rule a. Was reasonable because based on a lawful arrest with probable cause i. Search of person, regardless of crime, is reasonable incident to arrest NY v. Belton i. Search incident to arrest (Supergold in car drugs) 1. No need for probable cause ii. Court extends search incident to arrest to automobiles 1. Allows search of passenger compartment and any containers in it a. Expands, probably, to anywhere capable of riding, all boxes in that part, glove box (if unlocked) b. Locked boxes might present problems 2. What about temporal requirement? a. What if it takes an hour to get all 4 passengers settled down? i. Probably depends more on process than specific time b. What if they are in police car? i. Depends on circumstances Payton v. NY i. Whether NY statute that allows a warrantless arrest in the home is constitutional? ii. Court says only one warrant is needed. Need probable cause that defendant is in house, but arrest warrant will be enough 1. Also need reasonable belief that defendant will be there iii. Homes are different than automobiles 1. No additional probable cause requirement to search car Warden, MD Penitentiary v. Hayden i. Took place in the home without a warrant, but with probable cause ii. Is this warrantless search based on PC admissible? 1. Yes, exigent circumstances exist 2. What do you need for exigent circumstances to enter home? a. Exigent circumstances (suspect at large, danger to police, time, hot pursuit, clear ID, risk to public safety, dont know whos house he went into, etc.) b. Probable Cause 3. EXCEPTION 4: Exigencies when exigent circumstances and probable cause Chambers v. Mauroney i. Probable cause to search car 1. Police seize car, take it to station, and then search 2. Search is justified a. Less inconvenience to suspects b. No Constitutional difference between immediate search and seizing car while waiting for magistrate to issue warrant i. Same intrusion into privacy ii. Looking for specific acts 3. Dark, dangerous to search on side of road 4. Automobile exception: more extensive search allowed ii. Fourth Amendment is not about convenience 1. Want a neutral, detached party to allow search 2. Want to take law enforcement out of making call iii. Differences between automobile exception and search incident to arrest 1. Search incident to arrest follows person (wingspan) 2. Need PC for automobile exception, not search incident to arrest a. Need PC for arrest b. Look at basis for search i. Automobiles: need PC but no warrant

y.

z.

aa.

bb.

cc.

dd.

ii. Search incident to arrest: to prevent harm to police and destruction of evidence 3. Search incident to arrest covers passenger compartment a. Warrantless search (automobile exception) covers whole car 4. Temporal and proximity dont apply to same degree in search incident as in automobile exception a. Justification: minimal, if any, inconvenience to defendant iv. Why do cars have a lower expectation of privacy? 1. Mobility 2. Regulation by state (license, insurance, inspection, etc) 3. Transparency 4. Often used as instrumentalities of crime a. Criminals use cars a lot to advance crime Coolidge v. New Hampshire i. Issues: Whether search of car was search incident to arrest? (Arrest was inside, no justification to search outside) 1. Whether warrantless search of car was reasonable? a. Opportunity to search was fleeting b. Plurality points out that the car was parked in a private driveway (difference from Chambers) i. Higher expectation of privacy ii. Not as mobile iii. Family secured, car guarded ii. Twist: Location of car may be a distinguishing factor Texas v. White i. Defendant passes bad checks, police see him stuff checks between seats, arrested him, took him and car to police station, then searched ii. Search is OK, probable cause still attaches California v. Carney i. Issue: Whether a mobile home is more like a car or more like a house? 1. Falls under automobile exception a. Mobility: can be driven away b. Effective law enforcement justified search Automobile exception recap i. Probable cause still required ii. RVs may be included in exception iii. Public land v. Private land makes a difference iv. Time? 3 days is not too long (See Johns at 250 n.3) 1. May not indefinitely postpone US v. Chadwick i. Issue: Whether a locked footlocker can be searched without a warrant? ii. Unreasonable to search 1. Heightened expectation of privacy a. Not in plain view, locked, not regulated or inspected b. Repository of personal effects c. Not so mobile 2. But same possessory interest as car iii. What if luggage was in a car? 1. See Blackmuns dissent and Sanders case a. Arbitrary distinction b. Personal luggage requirements attach to luggage in car i. Can seize, but need a warrant to search CA v. Acevedo i. Cops had PC to search the bag

ii. Court overrules Sanders, cops can search everything 1. Probable cause allows seizure and search without warrant iii. Chadwick would have then allowed seizure and search of footlocker in car if they had this rule at the time iv. How does Acevedo allow police to go further and search entire car and not just package originally looking for? 1. Now have PC and automobile exception kicks in 2. Can arrest driver, if hes still in car can conduct search incident to arrest a. If trunk is open, can probably argue that a search of trunk is also OK (accessible to Defendant) v. What is left of Chadwick 1. Chadwick applies to containers not in a car a. Still good law, but limited 2. Acevedo applies to closed container in a car ee. Wyoming v. Houghton i. Is search of passengers compartment valid under automobile exception? 1. Two-fold analysis a. Would this search be reasonable at time of Fourth Amendment? i. If yes, per se reasonable ii. If no, balancing inquiry (individual v. law enforcement) 2. Relying on Acevedo, Court found search was reasonable ii. Rule: If container is in automobile, can be searched without Probable Cause to search car. If not in car, need a warrant ff. Inventory Searches i. South Dakota v. Opperman 1. No Probable Cause, no reasonable belief that any evidence of crime is inside a. Not a probable cause search, a protective search b. 3 needs i. Protection of owners property while car remains in police custody ii. Protection of police against claims of lost or stolen property iii. Protection of police from potential danger 2. Inventory search is reasonable (Blanket assumption) a. Fourth Amendment is satisfied because touchstone is reasonableness b. These justifications need not be present, but police do need a standard operating procedure i. Ability to search is triggered by impoundment ii. Cant be any car on street c. Need Standard Operating Procedure so police cannot act arbitrarily and so impound isnt a pretext for other motives ii. Illinois v. Lafayette 1. Person inventoried at police house a. Not search incident to arrest because it wasnt immediately after arrest 2. Police must show that defendant was lawfully seized and taken into custody a. Must show concern for own safety, protection of defendants possessions (he was to be confined), protection against false claims 3. Scope of search a. Any container or article in his possession in accordance with SOP iii. Colorado v. Bertine 1. Whether a defendant can make own arrangements to protect his property of closed container within car? a. Same concerns are present and all still apply b. Inventory is still ok if SOP 2. Even if police are routinely given discretion, that is OK a. Do not have to ask defendant if he wants to make own arrangements

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b. Just because there is a less intrusive means, doesnt mean Fourth Amendment is violated 3. Dont want courts to judge discretion in hindsight a. Cops acted in good faith gg. Consent i. Schneckloth v. Bustamante 1. Consent takes away need for warrant or probable cause (cures all ills) 2. What must prosecution prove to demonstrate that consent was voluntary? a. Would not have probable cause to search trunk for speeding and broken light b. Defendant must consent 3. Test: totality of circumstances a. If everyone was informed on the spot, no one would ever give consent b. Police do not have to tell defendant he has right to refuse ii. Ohio v. Robinette 1. Whether Fourth Amendment requires police to tell defendant he is free to go before asking for consent? a. Under Fourth Amendment, no, it would be unrealistic to make police give warning b. No bright line rule iii. US v. Matlock 1. Whether a third party also living in home can give consent to search a. Do not have to own property, just need common authority or a sufficient relationship to the premises or effects sought to be inspected i. Mutual use of the property by persons generally having joint access or control for most purposes that it is reasonable to recognize that any of the cohabitants has the right to permit the inspection in own right and others assume one might permit common area to be searched 2. Facts of this case a. Storage space b. Consent came from woman answering door in bathroom c. Shared bedroom d. Belief they are husband and wife i. Can be negated if legally separated, separate rooms, locked possessions 3. What allows spouse to waive his constitutional rights? a. Reduced expectation of privacy, expose to that third party who might reveal to anyone else or police i. Like conversations to third party or assuming the risk iv. Illinois v. Rodriguez 1. Warrantless search, no PC, consent by someone with no authority 2. Court finds search was reasonable a. Cops had reasonable belief b. Fourth Amendment requires reasonableness, not factual accuracy 3. Rule: Determination of consent to enter must be judged against an objective standard: Would the facts available to the officer at the moment . . . warrant a man of reasonable caution in the belief that the consenting party had authority over the premises 4. Underlying rationale is you can waive your rights hh. Plain View i. Horton v. California 1. Whether seizure of evidence in plain view violates the Fourth Amendment if its not through inadvertence

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a. It is a legitimate characteristic, but not a necessary condition 2. Plain view doctrine deals more with seizure than with search a. In order to seize, must already be in location they are legally allowed to be, evidence must be immediately apparent, has to have a readily apparent contraband nature, and be inadvertently discovered (?) 3. Related to exigencies cops see it, could be gone when they get back 4. No need for surprise, doesnt add to Fourth Amendment interests (Brennan) 5. Dissent argues that surprise protects a possessory interest a. Cops can use warrant as a subterfuge i. Even if cops have PC< may not always put all in warrant 6. So long as cops have right to be there and items are contraband in plain view, cops can seize ii. Arizona v. Hicks 1. Cops had to move equipment to find serial number 2. If didnt move it, would not have been unreasonable search a. Here, it wasnt immediate, turning stereo made it another search and police now need PC 3. Contraband must be immediately recognizable a. When cops first see contraband, it must give them PC without any other search 4. Recording serial numbers is not a seizure ii. Analytical Template i. Is government conduct involved? ii. Is there a search or seizure? (Reasonable expectation of privacy, Katz et al) iii. Is there PC to search/arrest? 1. Define PC 2. How much evidence is needed? 3. What test/factors are used to determine PC? a. Totality of circumstances (Illinois v. Gates) iv. Was there a warrant for arrest/search? 1. Was it based on PC? 2. Did the warrant place appropriate limits on the police? 3. Was the warrant properly executed? v. Is there an exception to warrant requirement for the arrest? 1. Felony arrest in public place 2. Misdemeanor committed in presence of cops vi. Is there an exception to warrant requirement for search? (not mutually exclusive) 1. Exigent Circumstances 2. Automobile/Container searches 3. Inventory Searches (No PC required) 4. Consent searches (No PC required) 5. Plain view jj. Should PC be the one size fits all test for all searches? i. Terry v. Ohio 1. Whether in all circumstances of this on-the-street encounter, defendants right to personal security was violated by an unreasonable search and seizure? a. Fourth Amendment is triggered, this is a search and seizure, but no warrant required for stop and frisk 2. Can this search be justified by something less than PC? a. PC is not a one size fits all test b. Court establishes new balancing test i. Police must justify intrusion with specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant that intrusion

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ii. Split of two Fourth Amendment clauses 1. This is part of reasonableness clause 2. reasonable suspicion meets the reasonable clause in certain situations 3. Court balances police and defendant interests a. Limited nature of stop and frisk i. Less privacy interests impinged b. Crime prevention and officer safety i. Scope limited to weapons search 4. Terry authorized a weapons search by a pat down of outer clothing a. Outside outer garment search 5. Police must have reasonable suspicion that individual is armed and criminal activity is underfoot 6. Douglas Dissent: for an infringement of personal liberty by seizure to be reasonable under Fourth Amendment, it needs PC ii. Dunaway v. NY 1. Police relied on Terry a. Plurality says that Terry applies only in certain narrow situations and the intrusiveness here was much greater b. If Terry was used, the exceptions to Fourth Amendment would swallow general rule c. Outside Terry scope, balancing is not used 2. Whites concurrence: There is a balancing, thats what reasonable means a. This was similar to an arrest, need PC i. Balancing must be done on a categorical basis, not ad hoc iii. US v. Mendenhall 1. Was there a seizure? a. Only seized when physical force or show of authority makes a reasonable person feel they are not free to leave (in view of all circumstances) i. No seizure 1. Politely asked to go with officers (example) 2. Not physically restrained 2. What justification raises police suspicion to reasonable suspicion? a. Not seized, was their reasonable suspicion? i. Terry requires criminal activity underfoot and officer safety concerns ii. Fit drug peddlers profile: came from LA, no bags, off plane last, ID didnt match plane ticket, minority woman iii. All these factors led to reasonable suspicion 1. Totality of circumstances (dont need as much for reasonable suspicion) 3. Problem with profiling: suspicion based on template, not individualized suspicion a. Officer safety (second Terry prong) not met b. Now, cops only need to be suspicious that criminal activity is underfoot in order to stop someone c. Powells concurrence seems to indicate nature of crime can be factored in iv. Florida v. Bostick 1. Whether Mendenhall test applies to police encounters that take place on a bus? a. Florida SC said because bus is confined, no one really feels like they can leave i. Per se rule, bus would always be seizure b. SCOTUS says Florida got it wrong i. Reasonable person feels free to leave means reasonable person feels free to end interaction with police

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ii. A court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers request or otherwise terminate the encounter iii. Overturn Floridas per se rule v. California v. Hodardi D. 1. Whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield? a. It does not 2. Officers chased down youth, police concede there was no reasonable suspicion to stop defendant 3. When was defendant stopped? a. When he does not reasonable feel he is free to go and police show of force or authority b. Defendant didnt comply with show of authority, so he was not seized i. Test modified: need show of authority and submission to that authority 4. Hodari was seized when he submitted to authority, when he was tackled a. Evidence admissible, not discovered from illegal stop 5. Scalia looks at plain meaning of seizure a. Cannot be seized if he is still running 6. Stevens Dissent a. Defendant was seized b. There can be constructive or psychological seizure i. When cops converge on you, you are psychologically seized c. Problem with majority approach: police may intimidate up to the point just before submission, triggering flight/confessional evidence and this would be allowed vi. Illinois v. Wardlow 1. Whether flight can be factored into reasonable suspicion a. No bright line rule, use totality of circumstances i. Bright line rule would be overinclusive, allowing cops to search anyone in a high crime area who happens to be running (fishing expedition) b. Before flight, police knew defendant was in high crime area and was carrying a bag and people there would be engaged in criminal activity c. Totality of circumstances i. Unprovoked flight and high crime area d. Reasonable suspicion to search for weapon (frisk): drugs and weapons go hand in hand 2. Reasonable suspicion factors a. Location b. Time of day c. Clothing? d. Known criminal associates? e. Age f. Race? g. Gender? h. Demeanor of cops and what they were wearing/doing vii. Alabama v. White 1. Whether an anonymous tip is sufficient to provide reasonable suspicion? a. For PC, see Gates, totality of circumstances including veracity and reliability b. For reasonable suspicion, same factors are relevant, but the burden is lower

14

i. ii. iii. iv.

Need tip and some investigation and corroboration Minimum indicia of future activity Something not easily predicted Some level of specificity to conclude inside knowledge

viii. Florida v. JL 1. This anonymous tip does not provide reasonable suspicion a. No moderate indicia of reliability b. Lacks specificity, corroboration, element of predictability, but it does show some degree of inside information 2. Merely an anonymous tip, in and of itself, does not rise to the level of reasonable suspicion a. Still unclear of what is required 3. Government argues for a firearms exception: Tip that someone has a gun on the street should be considered an exception to reasonable suspicion requirement a. Court does not accept this argument ix. Hayes v. Florida 1. Police say no arrest and no stop since just taken for interrogation 2. Were fingerprints fruits of illegal search? a. No PC to arrest, no judicial authorization, no consent b. Under Terry, police can stop someone without PC but cannot arrest without PC i. Here, detention was similar enough to arrest 3. Considered arrest because defendant was forcibly removed from home, brought down to station a. Police station is special because it is not an open environment, all locked up 4. What if fingerprints taken on side of road? a. Not definitely considered an arrest, may not be 5. No permissible time limit announced 6. What is judicial authorization? Court doesnt say warrant x. US v. Sharpe 1. Whether it was reasonable under circumstances facing Agent Cooke and Officer Thrasher to detain Savage whose vehicle contained challenged evidence or approximately 20 minutes? Other driver for 30-40 minutes? a. More like an arrest or Terry stop? 2. Most of delay was because of actions of defendant, who could have pulled over when first car was pulled over a. Police acted diligently and responsibly i. Cooke was attempting to contact Thrasher for most the 20 minute stop ii. Proceeded expeditiously 3. As long as there is a legitimate investigation for law enforcement purposes, it is OK as long as diligent and reasonable a. No bright line rule on time 4. Marshalls concurrence a. Cart before the horse i. Burden should be on cops to show they used least intrusive means possible ii. Gives police large window of time, large opening to do a lot of things without calling it an arrest xi. US v. Place 1. Terry stop justified if crime underfoot and concern for officer safety a. Here, no concern for officer safety 2. A dog sniff is not a search a. Not intrusive as opening a bag

15

b. Cannot find out any other contents c. Sui generis (unique or of its own kind) 3. Does reasonable suspicion of Terry also apply to bags/luggage? a. Yes, Terry and its progeny would permit detention of luggage briefly to investigate 4. Whether the seizure of bag crossed line from stop to arrest? a. Holding of bag was too long i. Held for weekend, did not inform defendant where to get luggage ii. Police did not act diligently, had advanced notice of defendant iii. Bags held personal belongings, ultimate effect of detaining person 5. What if police did act diligently? Still took 90 minutes? Took 15 minutes but had to take to police station? xii. Michigan v. Long 1. Terry version of search incident to arrest, deciding what can be decided/examined when your car is stopped 2. Whether it is permissible to frisk a car as part of search before PC? a. It is permissible if there is an articulable and objectively reasonable belief that suspect is potentially dangerous 3. Rule: Permissible if the police have a reasonable belief on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officers in believing the suspect is dangerous and the suspect may gain immediate control of weapon 4. Car door was open, suspect going back to get license and registration a. Gave police reason to search 5. Sound like search incident to arrest 6. Would this extend to a closed container? a. Court cites NY v. Belton, may indicate search includes containers b. Terry only allows search for weapons, maybe only a pat down of the bag xiii. Minnesota v. Dickerson 1. Whether police officers may seize nonthreatening contraband detected during a protective pat down search of the sort permitted by Terry a. They clearly may, so long as officers search stays within bounds marked by Terry 2. Plain view analysis a. Officers manipulation of contraband went too far b. If pat down makes clear by feel only during pat down, that item is contraband, seizure is ok i. Officer played with contraband before determining what it was 1. Search separate from Terry search c. If pat down felt a bricklike object, may have been permissible 3. If police find things other than weapons during Terry stop, they can be admissible 4. Scalia Dissent a. Fourth Amendment prevents unreasonable search and seizure, should be interpreted by common law i. At time, accepted practice allowed cops to stop people, but not frisk them ii. Stop is OK, frisk is not kk. Special balancing contexts i. NJ v. TLO 1. Whether a search by school official falls under Fourth Amendment? a. Fourth Amendment does apply 2. Should school officials be required to get a warrant? a. No, its impracticable (unsuited to school) i. Administration needs to act quickly

16

1. Need swift and informal disciplinary procedures 3. What should the standard be? a. As long as there are reasonable grounds that the search will turn up evidence that student has violated or is violating the law or rules of school (reasonable suspicion) b. Reasons for lower standard i. Lessened expectation of privacy ii. Required to go to point, higher state interest 4. What are the boundaries? a. Continuation of reasonableness standard i. Here, second search depended on reasonableness of first search ii. Chain of reasonableness 5. What kinds of violations allow a search without PC? a. Any school policy is fair game ll. Checkpoints i. Michigan v. Sitz 1. Whether the seizure at a checkpoint is reasonable under Fourth Amendment a. Effectiveness is proven by empirical claim, not unreasonable 2. Stops are not based on any individualized suspicion 3. Balancing test a. Allows stops without any individualized suspicion i. State interest is so great, intrusion is so small (minimal) b. Here, 1.5% were arrested, previously only 1% at different legal checkpoints i. More effective ii. Courts job is not to figure out best way to do it 4. Are roving stops different? a. Make it less likely to give you a choice to not go through it 5. How long is too long to detain someone at a checkpoint? a. Here, average delay was 25 minutes b. Court doesnt announce bright line rule, but it seems as if the longer the stop, the larger the intrusion ii. Indianapolis v. Edmond 1. Roving checkpoint to stop only a certain number of cars, 9% hit rate 2. Similar to Michigan v. Sitz a. No individual suspicion b. Short detention, less than 5 minutes 3. Not similar to Michigan v. Sitz a. Search for evidence of just ordinary criminal wrongdoing i. MI v. Sitz was searching for particular crime occurring ii. Here, lower level of government interest (less immediacy) 1. No special need b. If Indianapolis had changed primary purpose, and secondary reason was drugs, would checkpoint be OK? i. Probably, sounds a lot more like Sitz ii. Does purpose change level of intrusion? No 4. Sitz had 1% hit rate, Indianapolis had 9% a. Higher success rate, why doesnt that make a difference? i. DUI effects much more immediate for alcohol 1. General law enforcement purpose not so much iii. Illinois v. Lidster 1. Cops looking for someone 2. Less invasive, not investigating drivers (information seeking) a. Lidster happened to have been drunk, but that wasnt purpose of checkpoint 3. Checkpoint is OK

17

mm.

III.

Drug Testing i. Skinner v. Railway Labor Executives Association 1. Mandatory blood, breath or urine testing under certain circumstances 2. Whether these mandatory tests violates Fourth Amendment a. No, they do not 3. Government interest a. Public safety i. 25 fatalities, 61 nonfatal injuries in 21 accidents from 1972-1983 ii. Possible toxic waste (one LA town had to be evacuated) iii. Economic concerns iv. Immediacy 4. Individual Interest a. Court finds minimal for all 3 tests i. Is a search, just minimally intrusive b. Not being used for law enforcement at all i. Only looking for a few certain things c. Blood medical environment d. Urine same, nobody watching you do it (from evidentiary standpoint, no chain of custody useless) i. Reasonable to do a suspicionless search to draw bodily fluids ii. Vernonia and Pottawatomie (school searches OK) 1. OK to do drug test in schools for athletes and extra curricular activities 2. Reduced expectation of privacy 3. Special status of school to protect students 4. Voluntariness of program 5. Limited use (not for law enforcement) iii. Chandler v. Miller 1. Test people running for public office 2. Relatively noninvasive (choose own facility, mail in results) 3. Statute struck down a. No special need (no current drug problem in GA statehouse) b. Not a good means to deter illicit drug users from seeking office c. Symbolic, not actual, showing of being drug free iv. Ferguson v. City of Charleston 1. Test of pregnant women a. Difference here was law enforcement purpose (indistinguishable from general interest in crime control) i. Immediate purpose was to generate evidence for law enforcement purposes 2. If no threat of law enforcement, probably would be OK v. US v. Flores-Montano 1. Border search of gas tank on car (taken off to examine) a. No reasonable suspicion 2. Process of removing gas tank takes about 45 minutes, if nothing is found, gas tank replaced with no damage to car 3. Constitutional search, border searches: a. Lower expectation of privacy at border b. Higher government interest in preventing people and contraband at international border i. Significant government interest 4. Suspicionless strip search may go too far (X-rays, taking blood) a. Cars dont enjoy same right to privacy as people Fifth Amendment a. Voluntary confessions

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i. Ashcraft v. Tennessee 1. Whether defendants confession was voluntary? a. Here the interrogation was coercive and involuntary, violates due process b. Physical torture: relay of questioning for 36 hours with no break (maybe 5 minutes), little food, no sleep, and bright light c. How much is too much? i. No time line laid out/no bright line rule 1. 36 hours is too long with no break 2. Problem with private interrogation (he said, she said) a. Who is more reliable? i. Defendant has more reason to lie than police 3. Who should be the finder of fact on the issue of false or involuntary confessions? a. If the defendants will is overwhelmed, the confession is not voluntary b. Orthodox procedure: judge resolves evidentiary conflict and makes his own determination i. If he determines voluntary, it goes to jury to consider along with other evidence, if involuntary, it doesnt come in c. Massachusetts procedure: same, but if Judge determines voluntary, it goes to jury with definition of voluntary and told to do independent examination on voluntariness ii. Spano v. NY (1959) (capital case) 1. 8 hours of interrogation 2. Petitioners will was overborne by official pressure, violates due process a. Looks at totality of circumstances i. Used defendants friend (cop he confessed to), foreign born, no past history of crime, uneducated, emotionally unstable, leading questions, questioned by many men, 8 hours, no rest, at night, fatigue 3. What of this is torture or coercion? a. Notion of trickery, fatigue, false sympathy (not really torture or coercion) i. Trickery not always disallowed ii. Not trying to solve crime, only intent was to extract statement b. Use of trickery used to obtain false confession was difference (also use of something particularly important to defendant) 4. Concurrence focuses on denial of attorney when defendant asked three times iii. Colorado v. Connelly 1. Confession not suppressed because there was no official coercive police activity a. Man was schizo, voices in head told him to do it b. One expert said it was coerced by voices in his head i. We dont like involuntary confessions 1. Encourage law enforcement to break law 2. Unreliable c. Wouldnt we be as concerned about reliability of a confession coerced by someone other than police? 2. Not solely coercion and lack of voluntariness, Fifth Amendment is a check on state power a. Need some state coercion to make confession involuntary iv. Factors that may make an interrogation coercive that may make a confession voluntary 1. Time 2. Privacy/Access to outside/Secrecy 3. Trickery 4. Characteristics of individual v. Miranda v. Arizona 1. 2 hour interrogation by 2 police

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a. Dont know anything else except he gave a statement b. Also dont know anything about character of defendant 2. Statement was suppressed 3. Court quotes training manuals, demonstrates police advantage a. Techniques themselves not unconstitutional, but its apparent Court doesnt like them b. To even out, defendant must be old of certain rights i. Right to remain silent ii. Informed how statements will be used iii. Right to an attorney and have one present during questioning iv. If indigent, one provided for you c. Comes from privilege against self-incrimination 4. Triggered by custody and interrogation 5. Court acting as a super legislature 6. Is Miranda a constitutional rule? a. A noble principle often transcends its origins i. Living constitution ii. Court sees a problem, needed to fix it vi. NY v. Quarles 1. Statement allowed in without Miranda warnings a. Public safety exception 2. Exigency a. Someone else could pick gun up i. Empty grocery store, 4 cops, handcuffed defendant, no co-accused b. Court doesnt give much guidance to exigencies, could be a big exception 3. If there is a public safety exception, how can Miranda be a constitutional rule? a. See Scalia dissent in Dickerson for argument why it is not i. Prophylactic rule, legislature can override it with statute vii. Dickerson v. US 1. Court holds Miranda is a constitutional rule, Congress cannot legislate around it a. If it was prophylactic and procedural, Congress could make laws to overturn it 2. Scalia dissents, Court grabbed power they do not have viii. Berkemer v. McCarty 1. 2 issues a. Does Miranda govern admissibility of statements made during custodial interrogation by a suspect accused of a misdemeanor traffic offense? (Key here is whether Miranda applies to misdemeanor) b. Does roadside questioning of a motorist detained pursuant to a traffic stop constitute custodial interrogation for the purposes of Miranda doctrine? 2. Holdings a. Miranda DOES apply to misdemeanors as well as felonies b. Two periods of custody i. At police station: in custody 1. Taken by police in police car, under formal arrest a. These statements thrown out ii. Roadside: not in custody 1. Not really police dominated a. Temporary and brief, motorist doesnt feel completely at mercy of police 2. More like a Terry stop a. Hes seized at this point i. But comparatively nonthreatening character b. Miranda not required for Terry stops

20

3. Miranda doesnt apply to these statements a. Defendant can still argue voluntariness b. Voluntariness and Miranda are separate issues ix. Yarborough v. Alvarado 1. Interrogation lasted two hours and included reference to phony witnesses, telling defendant someone always comes forward, appeal to him to tell truth (all forms of psychological compulsion a. Sounds like Miranda, but rights not read 2. Court holds state courts interpretation was reasonable a. It appears to be on all 4s with Miranda. Why different result? i. Test: 1. Circumstances surrounding interrogation 2. Reasonable person would feel free to leave ii. Looking at all the facts (p.734), state court was reasonable 1. Looks at constraint of movement, was it equal to formal arrest b. Factors i. Brought down by police (cuts against not interrogation) ii. Free to leave (cuts against interrogation) iii. Age 17 (reasonable man standard, age doesnt really matter for 17 year old objective test) 1. What is court saying by making this an objective test a. Makes Miranda more of a formality than anything with teeth x. Rhode Island v. Innis 1. Defendant invoked right to have a lawyer a. Puts obligation on police to not interrogate until lawyer present 2. No doubt defendant was in custody 3. Interrogation is words or actions on the part of police that they should have known were reasonably likely to elicit an incriminating response a. Here, no express questioning b. Court held police had no reason to know that defendant was peculiarly susceptible to this type of appeal, shouldnt be held accountable for unforeseeable result 4. Court is encouraging the ideas Miranda rejected xi. Illinois v. Perkins 1. Defendant in custody, interrogated, reasonably likely to elicit incriminating response, 2. Miranda was not required a. Defendant thinks hes talking to another convict, not police b. Less coercive than interrogation in a police station i. Defendant doesnt feel like he has to say anything c. But doesnt Miranda intend to protect against these circumstances? i. To put suspect on more level footing? 3. What if undercover agent went in as priest or defense attorney? b. Waiver i. North Carolina v. Butler 1. Defendant was mirandized. He said he would not sign the rights warning, but agreed to talk with the authorities. 2. Defendant indicates that he cant read. There were oral warnings at crime scene, and written warning at the station. He said he understood what the warning was. 3. Issue: Whether he waived his right to counsel. Does it need to be express? 4. Test: Whether he knowingly and intelligently waived his Miranda rights. ii. Colorado v. Spring

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IV.

1. Defendant was questioned about a murder that was unrelated to the crime that he was arrested for. In this first questioning he denied the murder. In the second questioning, he admitted to the crime. 2. Defendant claims the confession in the second questioning was a fruit of the poisonous tree 3. Court allows the information obtained in the questioning to be admitted. The defendant was properly warned in both questionings 4. Police might do this to trick the defendant into confessing by catching him off guard about the offense unrelated to the arrest 5. If you havent told him what he is suspected of, how can his waiver be knowing and effective? a. An individual being questioned knows all of the things he has or hasnt done and should be prepared to answer questions about it 6. Almost as if there are two levels of voluntariness a. Was the waiver given voluntarily? b. Was the statement given voluntarily? iii. Michigan v. Mosley 1. Whether it was proper to attempt to question the defendant two hours after he had exercised his right to remain silent (not right to counsel) in the first round of questioning? a. It was because they waited an adequate amount of time and repeated the Miranda warnings again before the second round of questioning 2. Test: Whether his right to cut off questioning was scrupulously honored 3. The police always honored the defendants right to remain silent, therefore, his right to remain silent was scrupulously honored a. Cops began questioning him about a different crime b. Statements admission affirmed iv. Edwards v. Arizona 1. Defendant exercised his right to counsel and wanted to stop questioning during the first round a. Next day, being questioned against his will, he waived his rights and confessed 2. Rule: When Defendant requests counsel, questioning can only resume if a. Defendant reinitiates communication with police OR b. Police provide defendant with counsel 3. The second round of questioning was initiated by police the next day after defendant said he didnt want to talk to interrogators a. He did not reinitiate and was not provided with counsel 4. Why does right to counsel get greater protection than right to remain silent? a. Asking for counsel is demonstrating a greater need for help b. The right to remain silent is something anyone is capable of c. Concern with such requests is that it may demonstrate that the individual does not understand his rights, making any attempted waiver fail the knowingly and intelligently requirement v. Davis v. United States 1. Vague request for counsel (9-0) a. maybe I need a lawyer is not the same as I need a lawyer 2. What are law enforcement duties (5-4) in this situation? a. Do not have to cease questioning immediately if ambiguous request b. Not required to qualify vague request 3. Not brought out clearly, but there may be a subtle distinction between law enforcements duty to clarify rights before questioning and during a. May have been more on board to clarify before questioning Sixth Amendment

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a. Purpose i. Protect Defendant with a fair trial b. Right to counsel different than Miranda (Fifth Amendment) i. Massiah v. US (Sixth Amendment version of Miranda) 1. Whether use of incriminatory statements elicited by police violated Sixth Amendment right to counsel after his arraignment? a. Yes, he had a right to counsel 2. Compare Illinois v. Perkins; in that case, he was just a prisoner for another crime, here he was arrested, indicted, and arraigned and invoked his right to attorney a. When is this right triggered? i. Not in custody ii. Broad enough to throw out any statements post-indictment 3. When does defense of criminal prosecution begin? a. Pretrial is usually as important if not more important than trial b. Basic dictates of fairness 4. Is this Constitutionally required? a. Subtle shift from Fifth to Sixth Amendment. Once judicial proceedings have begun, government is at an adversarial point against individual (they know who they think did it). Sixth Amendment protects average layman from expert government. b. Right attaches when judicial process begins and happens automatically i. Can defendant waive it and under what circumstances? ii. Brewer v. Williams 1. Issues a. Whether defendant was denied Sixth Amendment right to counsel? b. Whether defendant was denied Fifth Amendment Miranda rights? c. Whether statement was voluntary? 2. Court focused on Sixth Amendment right to counsel issue a. Tries to separate issues out and take out Fifth Amendment issues b. Looks at Massiah, did judicial proceedings begin? Did Sixth Amendment right attach and was it waived? i. Burden is on police to show waiver 1. High burden 2. Must prove an intelligent abandonment or relinquishment of a known right or privilege a. Different and higher than Fifth Amendment b. Presumption that Government must meet 3. Christian burial speech demonstrates a manipulation which would cut against a claim that defendant abandoned a known right a. Was it of his own volition or because of speech? 4. Rhode Island v. Innis used reasonably likely standard for Fifth Amendment a. Here, they used deliberate elicitation (higher standard) i. In this case, it was ii. Dont need interrogation 5. Defendant consistently relied on counsel throughout a. Had counsel turn him in, had counsel in Davenport and Des Moines b. Deal was no questioning on trip back c. Counsel denied when asked to ride along d. Defendant said Ill talk to you after I talk to my lawyer 6. Judicial proceeding that triggered right was arraignment on arrest warrant, if not before 7. Fifth Amendment right to counsel is not offense specific (police must stop regardless of what they are asking him)

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8. Sixth Amendment is offense specific, only attaches to crime that the right was invoked for (see McNeill v. Wisconsin) iii. Texas v. Cobb 1. If same act or transaction violates two statutes, the offenses defined by those statutes are the same offense unless each requires proof of a fact which the other does not iv. McNeill v. Wisconsin 1. Under Miranda, after defendant invoked right to remain silent, what gives police authority to initiate new questioning a few days later? a. Under Michigan v. Mosley, police just have to scrupulously honor right (there, two hours was enough, here it was two days) 2. Why isnt this violation of Massiah? Bail was set, arraigned, represented by public defender a. Defendants Sixth Amendment right attached to armed robbery, he waived his right to Fifth Amendment right for different case 3. Holding: Sixth Amendment right to counsel is offense specific (only for those offenses for which judicial proceedings have begun) 4. See chart on TWEN v. US v. Henry 1. Different than Illinois v. Perkins (Fifth Amendment)? a. Defendant was already indicted for this offense i. Sixth Amendment is offense specific, Fifth Amendment is not ii. Informant was interrogating about this offense 2. Test for Sixth Amendment: deliberate elicitation of information a. Is conversation the same as deliberate elicitation? i. No, but police put every domino in place while maintaining a faade of nondeliberativeness 1. Opinion did not rebuke any of these steps 3. See Coleman v. Wilson a. Unpaid informant told not to ask questions, defendant told snitch same story he told police i. Snitch said story doesnt sound convincing, defendant then confessed to police ii. This was not a violation of Sixth Amendment b. Distinguish these cases? i. Fifth Amendment designed to focus on issues of voluntariness and right against self-incrimination ii. Sixth Amendment designed to protect defendant against state after state has marshaled full force against defendant c. Identifications i. Are in court IDs reliable? 1. Could be quite unreliable a. Cross examination is the mechanism to find these facts ii. Are out of court IDs reliable? 1. Many ways could be unreliable (suggestive, etc) 2. Looking through mug shots, show ups (intimidating to witness, subtle message from police), photo arrays, lineup 3. Always the possibility witness/victim can be wrong a. Can later taint in-court ID iii. US v. Wade 1. Why is this not a Fifth Amendment violation? a. Statement at lineup is not meant to be testimonial in nature b. Fifth Amendment protects against testimonial evidence against the defendants will 2. Does Sixth Amendment require counsel to be present for this pretrial proceeding?

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a. Yes, this is a critical stage of the prosecution i. Less likely to change ID once trial starts ii. No defense attorney present makes it tough to do effective cross exam iii. May be impossible to reproduce at trial 3. Is a lineup any different than any other evidence gathering mechanism? 4. In what ways does having attorney at lineup help? What role should he play? a. Ensure fairness, fix as he goes along or preserve objection b. Prepare effective cross examination c. Ethics problems? Attorney cannot testify 5. Other methods that might work better? See FN 26 p. 910-911 a. Make witness write down what hes looking for b. Videotape it c. Never let witness know defendant is in lineup, do some without defendant in lineup 6. So whats the constitutional link to having defense counsel there? a. Have the person standing with him, ready to prepare meaningful defense b. Heightened after indictment? Holding is unclear about whether or not it was required for both or what makes post-indictment special iv. Kirby v. Illinois (Plurality) 1. Defense counsel does not constitutionally have to be there before indictment a. No per se rule 2. But isnt it likely to be just as unreliable? a. Police will probably do out of court ID before indictment 3. Dissent would go further v. US v. Ash 1. Was prosecutor required to have defense counsel present when he showed witness a photo array? a. No, right to counsel doesnt attach here i. Suspect not required to be there, no confrontational issue b. For a lineup, defense counsel was required to counteract any coercion and for effective cross examination i. Seems to contradict 2. Why would court limit itself and draw line where it did? a. Possible that defendant counsel and prosecution couldnt find agreeable time b. Slippery slope i. How far will it go in discovery and finding evidence? d. Due Process i. What result if government does not provide counsel for indicted defendant at lineup? 1. Precluded from entering evidence of prior lineup 2. Can still make in court ID a. Must show ID comes from independent source (other that tainted lineup) b. Prosecutor will look to prior acquaintance, pre-lineup description (must be credible enough) 3. Procedure is same for Sixth Amendment and Due Process ii. Manson v. Brathwaite 1. Government concedes process was suggestive a. Only one photo, hints that hes the man 2. Is that alone enough to violate due process a. 2 options: per se rule and totality of circumstances i. Per se rule is rejected, might exclude reliable and valuable evidence ii. Use totality of circumstances test 1. Stovall used a totality test focusing on presumption of unreliability (almost presumed)

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2. Manson loosened up to substantial likelihood of misidentification a. Factors i. Opportunity to view ii. Degree of attention iii. Accuracy of description iv. Level of certainty v. Time elapsed between crime and confrontation b. Level of certainty is kind of bullshit i. Witness will almost always say very certain ii. Studies have shown that there is an inverse relationship between certainty and accuracy V. Exclusionary Rule a. Rationales (from Weeks) i. Give Fourth Amendment meaning ii. Deterrent iii. Other remedies are meaningless iv. Court doesnt want to be party to illegal activity b. Standing i. Rakas v. Illinois 1. Issue: Whether a passenger in a car has a legitimate expectation to privacy in glove box and passenger compartment of car they dont own? 2. Jones test: anyone legitimately on premises may challenge legality a. Defendant argues if one has a right to be there, they have a right to privacy b. Court rejects extending it here 3. Test used: no legitimate expectation of privacy a. Jones rule is too broad, extends to people whose constitutional right wasnt violated i. Fourth Amendment is personal right, cannot assert for others 4. Property interests come into play: here, it is automobile 5. Whats the practical consequence of moving away from Jones test? a. Narrower effect of Fourth Amendment 6. What if cops dont have PC to search car but do anyway? a. Doesnt matter for passengers, too bad for them ii. Minnesota v. Olsen at 1004 n.1 1. General Rule: Overnight guests at a house have standing to assert Fourth Amendment claim a. Questions about the scope of this rule, anywhere in house? 2. What about social guests? iii. Minnesota v. Carter 1. Was initial search a violation of Fourth Amendment? a. Cop peering through window, not a violation 2. Did defendants have a Fourth Amendment claim? a. No, no reasonable expectation of privacy i. Relationship between parties 1. Commercial nature of transaction engaged in 2. Short period of time on premises 3. Lack of previous connection between respondents and house owner iv. Overview 1. Legitimately on premises test no longer valid 2. Instead, look at totality of circumstances, reasonable expectation of privacy c. Independent discovery

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i. Murray v. United States 1. Issue: Whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here? 2. Difference between finding evidence illegally and then getting a warrant and finding it independent of illegal search 3. Independent source doctrine does not apply to evidence obtained for the first time 4. Here, they found evidence illegally, but had an independent source to get PC to find the same evidence legally a. Independent source can apply 5. Court remands to district court to determine a. Did police decide to get warrant only because of illegal search or b. Did they get a warrant independent of illegal search 6. Government must show a. Decision to get warrant was independent of illegal search b. No information provided to magistrate was from illegal search 7. Rationale a. Police shouldnt be put in worse position than they would have been i. Dissent argues it gives police incentive to search now and get warrant later ii. Majority counters its too risky for police, they have incentive to get a warrant 1. But independent source testimony will come from police 8. Sneak and peak is OK if police have PC from independent source and would have gotten a warrant d. Inevitable Discovery i. Nix v. Williams (9-0) 1. Issues a. Is inevitable discovery a legitimate exception to exclusionary rule? b. What burden is placed on prosecution to prove inevitable discovery? 2. Independent source, they had legal search warrant and found evidence a. Inevitable discovery, have not found the evidence, but may have 3. Holdings a. Inevitable discovery is a legitimate exception b. Prosecution must prove by preponderance of the evidence i. Dissent argues clear and convincing evidence (compares to Sixth Amendment lineup) 1. Completely hypothetical finding 4. Christian burial speech stated that the snow made it unlikely they would find body 5. Court decides there are sufficient facts to show inevitable discovery 6. Here was a Sixth Amendment violation, not a Fourth Amendment violation a. Stronger Protection? i. Exclusion adds nothing to integrity and fairness of criminal trial ii. Exclusion would not ensure fairness 1. Fairness by placing state and accused in same positions they would have been in had the permissible conduct not taken place iii. Court makes no distinction e. Attenuation i. Sounds a lot like proximate cause ii. Wong Sun v. US 1. Police want to use a. Toys oral statements Toy made at time of arrest i. Excluded

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1. Verbal evidence deriving so immediately from an unlawful entry and unauthorized arrest is still a fruit a. Six police officers stormed into apartment 2. Test: Whether evidence had come through exploitation of legality or whether it was sufficiently distinguishable to be purged from the taint? a. Here, exploitation of legality b. Heroine surrendered by Yee i. Excluded 1. Come at by exploitation of legality c. Toys pretrial unsigned statement i. See his other statements d. Wong Suns similar statement i. Admissible 1. Statement had become so attenuated as to dissipate the taint a. Arraigned, came back voluntarily 2 days later to make statement b. Sounds like proximate cause ii. Heroine from Wong Sun is also admissible iii. How do we know? 1. We really dont 2. We know the test a. When we are too far down from fruits of the poisonous tree iv. Brown v. Illinois (9-0) 1. Whether Miranda warnings are a sufficient attenuation of the taint of an illegal arrest? a. Miranda warnings alone are not enough (aim is to protect Fifth Amendment) i. Miranda balancing unequal position of defendant walking into proceedings, tries to level playing field and ensure statements were voluntary ii. There was Fourth Amendment violation, allowing statements would dilute Fourth Amendment 1. Police would have little reason to abide by Fourth Amendment 2. Attenuation serves to allow evidence after some taint dont want everything just automatically thrown out 3. Wong Sun requires not just voluntariness but an expression of free will 4. Relate attenuation to independent source doctrine and inevitable discovery a. Its different, new evidence is found but still has some taint due to bad police conduct but can still be used b. Main purpose of exclusion is deterrence, if no attenuation here will be no deterrence anyway and evidence will be kept out i. Attenuation keeps deterrence and allows evidence in 5. Why didnt Miranda warnings here dissipate the taint? a. Temporal proximity, no intervening event of significance, same officers, purposefulness of acts v. US v. Caccolini at 1059 n.3 1. Exclusionary rule should be invoked with much greater reluctance where the claim is based on causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object 2. Testimony was allowed (sufficient attenuation)

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f.

a. Free will of witness, substantial time between illegality and initial contact with witness and between initial contact and testimony, absence of official intent to find evidence of gambling vi. See NY v. Harris at 1061 n.4 vii. Oregon v. Elstad 1. Whether Fifth Amendment requires suppression of a confession, made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an early voluntary but unwarned admission from the defendant? 2. Rule: Absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect as made an unwarned admission does not warrant a presumption of compulsion. Finder of fact can find that second statement made a rational and intelligent waiver 3. Compare with Brown a. Intent and purposefulness of no Miranda warnings b. Brown involved Fourth Amendment violation also 4. Not giving Miranda rights doesnt necessarily mean Fifth Amendment was violated a. Lack of Miranda doesnt equate to involuntariness 5. Why not require a purging statement if Miranda violation? a. Cat out of the bag argument b. Court could have done a few things to protect defendant i. Cleansing statement ii. Rebuttable presumption that any confession after a tainted confession is coercive 1. Kind of like Sixth Amendment lineups (tainted pre-trial ID creates presumption that in court ID is tainted) 2. Factors: circumstances around second statement, timing, comparison of statements, maybe different cops, motivation 6. Court says as long as first statement is result of only Miranda violations, not Fifth Amendment, than second statement is OK a. Dissent says majority used words fruits of initial violation not just statements i. Sees this as too expansive viii. Missouri v. Seibert 1. Holding: PC Question first tactic effectively threatens to thwart Mirandas purpose and facts do not reasonably support a conclusion that warnings could have served purpose, post warning statements are inadmissible 2. Difference between this and Olsted a. Police here purposefully tried to limit effect of Miranda i. Police manual directed police to use this technique 3. Kennedy Concurrence need curative measures 4. Dissent a. Officers subjective intent doesnt matter b. Defendant must prove involuntariness 5. Attenuation limits Miranda protections significantly ix. US v. Payne 1. Does a mere Miranda violation cause the exclusion of derivative evidence (physical fruits)? 2. 3 justice plurality says exclusionary rule does not apply because Miranda protects Fifth Amendment right against self incrimination a. The physical fruits are not a source of self-incrimination 3. Concurrence (OConnor and Kennedy) a. Agrees with majority that Dickerson did not undermine precedents and Miranda is not really constitutional protection but a judicial rule Good Faith Exception

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i. US v. Leon 1. Whether Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecutors case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause a. Good faith exception exists 2. No deterrent effect on police, they thought they had a valid warrant 3. Wouldnt deter magistrates, they are neutral and detached and have no incentive to help police illegally a. Weak argument i. District Court oversight 1. Isnt the magistrate the expert on warrants? 2. DC judge will probably defer a lot to magistrate 4. Majority talks about balancing a. Exclusionary rules primary reason is now to deter law enforcement b. On the other side is throwing out reliable evidence (societal cost) 5. Dissent points out that defendants Fourth Amendment right was violated a. Police searched without PC or a valid warrant b. This is the purpose of the Fourth Amendment i. It is accepted that we will lose reliable evidence 6. What incentives do police now have? a. Find magistrate rubber stamp b. Use bare bones facts when applying for warrant 7. What would not be good faith? a. Withholding evidence from magistrate (cops mislead magistrate) b. Forum shopping (magistrate becomes rubber stamp) c. If warrant is so facially deficient that no reasonable cop would rely on it d. Affidavit so lacking in indicia of PC as to render official belief in its existence entirely unreasonable 8. Other rationales for exclusionary rule set out in Weeks a. Give meaning to Fourth Amendment b. Court doesnt want to sanction unlawful conduct ii. Massachusetts v. Sheppard 1. Whether officers could reasonably believe that warrant was valid a. Police conduct was clearly objectively reasonable and largely error free 2. Police took faulty warrant to judge at 2 am, explained circumstances, explained errors, judge looked at it, made corrections, and said it was OK 3. Defendant argues warrant must be particularized, it was not a. Not close enough for government work b. Good faith is trumped by Fourth Amendment c. Warrant said drugs, crime was murder i. General Warrant!

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