CRIMINAL PROCEDURE OUTLINE 2019

KEYED TO: DRESSLER AND THOMAS, CRIMINAL PROCEDURE, INVESTIGATING CRIME (6 th ed.), ISBN: 9781634603270.

Incorporation.................................................................................................................................................................................... 3
Exclusion........................................................................................................................................................................................... 4
4th Amend violation..................................................................................................................................................................... 4
Only applies to government actor............................................................................................................................................4
Exclusion rule........................................................................................................................................................................... 4
Standing................................................................................................................................................................................... 5
Justified evidence?................................................................................................................................................................... 5
Independent Source...........................................................................................................................................................5
Inevitable Discovery...........................................................................................................................................................5
Attenuation........................................................................................................................................................................6
Outright Exceptions.................................................................................................................................................................. 6
Good-faith Reliance...........................................................................................................................................................6
Knock-And-Announce........................................................................................................................................................6
Reasonable belief due to negligence.................................................................................................................................6
Harmless Error Doctrine.....................................................................................................................................................6
5h Amend violation...................................................................................................................................................................... 7
6th Amend violation...................................................................................................................................................................... 7
4TH AMEND........................................................................................................................................................................................ 7
Was there a Search?..................................................................................................................................................................... 8
Reasonable Expectation of Privacy Violation (Katz test)...........................................................................................................8
Categories for Katz analysis......................................................................................................................................................8
Assumption of Risk (False Friend, 3rd Party)......................................................................................................................8
Exposure to Public (Drug Sniffing Dog, Curtilage)..............................................................................................................8
Intrusiveness of Search......................................................................................................................................................9
Sense Enhancing Tech........................................................................................................................................................9
Relevant Katz factors:........................................................................................................................................................9
Trespass.................................................................................................................................................................................. 10
Carpenter............................................................................................................................................................................... 10
Was Search reasonable?.............................................................................................................................................................10
Overview................................................................................................................................................................................ 11
Warrant Granted.................................................................................................................................................................... 11
Probable Cause................................................................................................................................................................ 11
Particularity...................................................................................................................................................................... 12
Magistrate Neutral/Detached..........................................................................................................................................12
Warrant Execution..................................................................................................................................................................12
 Knock-And-Announce......................................................................................................................................................12
Detention incident to search..................................................................................................................................................12
Executing Search.................................................................................................................................................................... 13
Exception to Warrant?...........................................................................................................................................................13
Exigency........................................................................................................................................................................... 13
Search Incident to Arrest.................................................................................................................................................14
Plain View........................................................................................................................................................................ 15
Automobile...................................................................................................................................................................... 16
Terry Stop........................................................................................................................................................................ 18
Inventory.......................................................................................................................................................................... 19
Administrative..................................................................................................................................................................19
Consent............................................................................................................................................................................ 19
Was this an Arrest?..................................................................................................................................................................... 20
Was Arrest reasonable?..............................................................................................................................................................20
Warrant Granted.................................................................................................................................................................... 20
Warrant Executed................................................................................................................................................................... 21
Detention Incident to Arrest..................................................................................................................................................21
Executing Arrest..................................................................................................................................................................... 21
Exception to Warrant?...........................................................................................................................................................21
5TH AMENDMENT............................................................................................................................................................................ 22
Forced Confession...................................................................................................................................................................... 22
Miranda...................................................................................................................................................................................... 22
6TH AMENDMENT............................................................................................................................................................................ 24
Statements W/O Counsel...........................................................................................................................................................25
Eyewitness ID............................................................................................................................................................................. 25
Indignant D................................................................................................................................................................................. 26
Effective Counsel........................................................................................................................................................................ 26
Mass Incarceration......................................................................................................................................................................... 26
 Incorporation
 Problem of racist states
 Trial Penalties – if you go to trial and lose, penalties usually worse. So lots of innocent Ds accept plea bargains.
 5th Amendment – torture and self-incrimination
o OLD MODEL: Follow state law, don’t extend fed rules around 5th Amend protection from self-incrimination to
state issues simply b/c of 4th Amend (Barrington v. Missouri)
 For federal matters, "any degree of influence" on prisoner makes confession inadmissible. 5th
Amendment is broader than 14th. (Bram v. US)
o NEW MODEL: State laws controlled by 14th Amend DP protections around 5th Amend. DP is broader
protection than 5th Amend.
 Brown v. Mississippi (Black men forced confession by beating): Certain things are “fundamental
principles of justice” which can’t be circumvented by state law
 Waiver issue
 OLD RULE (Brown): Don’t need to object properly to appeal a fundamental DP violation.
 NEW RULE: Raise the issue properly in objection (not just on appeal) or else waived.
o Reasoning: Judicial efficiency.
 6th Amendment – Right to counsel
o Powell v. Alabama: 14th Amend DP guarantees effective counsel, notice, and hearing.
 6th Amend counsel right begins upon indictment (formal trial proceedings)
 Counsel given at each critical stage of proceedings (including before trial).
 Critical stages = pre-trial proceedings, trial, sentencing, appeals
o Rationale: Investigation of witnesses, evidence, etc. is crucial for effective counsel
o Note: no right to lawyer upon habeas appeal (post-conviction)
 Counsel attaches automatically. Whether or not D asks for it/can afford
 Must specify the counsel for D. Not enough to just say "all members of the bar" will help, b/c
then no one responsible for prep. Thus not being a zealous advocate
o Gideon v. Wainright: Must give counsel even to indignant Ds
o Must be effective counsel. D can show ineffective counsel if:
 1) Show lawyer made error (like showing up drunk).
 2) Show lawyer's error affected trial outcome.
 Incorporation
o TEST
 Fed = Protection apply via 4th Amend (or other)?
 State = Protection apply, as it would to Fed, via 14th Amend DP?
 Main themes
o Concern about Federalism/State Sovereignty
 Fed govt doesn’t want to get involved in state law issues and rock boat with racism. (eg Leo Frank)
 History
 Barron v. Baltimore -- Marshall says BoR only applies to Federal govt, not states.
 1884 – DP recognized to apply BoR to states
 Slaughter-House Cases (1873) -- "privileges or immunities" only covers those that exist by
virtue of national citizenship, not those in BoR
o BoR gives certain protections in state cases, but not all
 DP does not guarantee in state courts: grand jury indictment, 12-person jury, or no negative inference
from D not testifying
 Methods of Incorporation
o Justice Black = Total Incorporation failed
o Selective incorporation (wins)
 Duncan v. Louisiana: 6th Amend Jury Trial applies in state courts in same manner as applied in federal court per DP
o LA Constit only allows jury trial for capital cases, but D wants jury for misdemeanor case.
o Reasoning: fundamental right, trial fairness
 Purposive: Check on government. Jury check for entire govt: prosecutor, judge, and legislature (jury
nullification)
 o Other opinions
 Concurrence (Black): Total incorporation of BoR via 14th DP
 Concurrence (Fortas): Jury trial incorporated, but not additional safeguards (eg 12 man jury, unanimous
verdict)
 Dissent (Harlan): No total incorporation of 1-8 Amends by DP --> no need for procedural uniformity
 Concern with state sovereignty. Only need “fundamentally fair” trial – vague standard. Doesn’t
matter if jury or judge.

General Factors for Overruling Precedent

 Reliance -- Has there been such reliance on different rule?
 Changed circumstances -- (like Carpenter)
 Workability -- Is rule not workable?
 Consistency with other cases
 Bad reasoning -- High bar

Exclusion
Exclusion Test

EXCLUSION TEST
1. Identify constitutional violation ("tree") – 4th/5th/6th Amend? If state, then amend via DP.
 Twin justifications: Deterrence + Judicial Integrity
2. Is it governmental actor?
3. Is there standing to sue?
 Personal aggrievement
4. Does D actually raise issue?
5. What is the evidence ("fruit") that government wants to introduce?
 Usually incriminating statements or physical evidence
6. Does "fruit" come from the "tree"?
 Causal connection?
7. If yes, are there facts that justify the fruit as no longer poisoned?
 Attenuation / Dissipation of Taint
 Independent Source
 Inevitable Discovery Doctrine
8. Outright exception to exclusionary rule?
 Good-faith reliance on facially valid warrant (Leon)
 Requirement: Act as reasonable, well-trained officer at time considering ALL
circumstances?
 Knock-and-announce (Hudson)
 Reasonable belief that arrest warrant exists due to others’ negligence (Herring)
 Requirement: Not reckless (systematic)
 Harmless error

 Fruit of Poisonous Tree = Government can't make direct or indirect use of unlawfully acquired evidence to develop its
case whatsoever (in Court or outside) (Silverthorne, Walder)

4th Amend violation

Only applies to government actor
o Burdea “”
o Only protects people part of “national community” (residents) (Verdugo-Urquidez)
Exclusion rule
o Test: Did search violate 4th Amend and meet twin justifications?
 Deterrence + Judicial Integrity (Weeks v. US)
o Applies to verbal evidence as well as tangible fruits of unwarranted intrusion (Wong Sun)
o Doesn’t matter which level govt actor
 Suppress for Fed exclusive (Weeks)
 Twin justification: (a) Deterrence, (b) Judicial integrity
 Suppress for joint fed-state effort (Byars)
 Suppress for state effort on behalf of fed (Gambino)
 Suppress for any state effort (Mapp v. Ohio)
 Formalized silver platter doctrine
 Exclusion is constitutionally required (later undercut)
 Overturns Wolf v. Ohio (anti-incorporation)
o Limits
 Doesn’t apply to grand jury proceedings (Calandra)
 Judicially created remedy lowers DP requirement, so this only matters for deterrence not
judicial integrity.
 Doesn’t apply to civil cases (Janis)
 Doesn’t apply to pre-trial hearing, sentencing, probation/parole hearings – only applies to trial
argument stage
 Can still impeach D for excluded evidence by contradictory statement in direct examination (Walder) or
cross-examination (Havens)
Standing
o Personal Aggrievement requirement
 To raise suppression, individual D must have been harmed by search itself, not just byproducts
(Alderman)
 Search must have been directed against the D (Jones)
 If multiple Ds harmed by violation, each must raise it in their suit (Alderman)
o Paynor --
o Need privacy or property interest violated to have standing. (Rakas v. Illinois)
 Privacy interest by having keys/clothes at apt. (Jones)
 Must actually claim something to seek suppression. (Simmons v. US)
 Note: If you claim it and lose, it can be introduced as evidence against you. Ex: Claiming you
don’t own drugs and lose, then you will be asked to testify on it.
 Social guests have “legitimate expectation of privacy” (Minnesota v. Olson)
 Factors for privacy: (a) Business or residential interaction, (b) Previous connection btw individuals, (c)
Time period on premises (Minnesota v. Carter)
o Electronic surveillance
 Personally aggrieved if
 (a) It was your convo, regardless where it occurred, or
 (b) Convo occurred in your home, whether or not you were part of it
o APPLICATION: Comparison for social guest
 Car Passenger: Rakas: D had no legit expectation of privacy in car owner’s glove compartment and area
under passenger seat.
 Owner Absent: Olsen/Jones: Overnight guest D had legit expectation of privacy b/c sole occupant, had
key, stayed 1-2 nights, had significant connection to premises.
 Owner Present: Carter: D had no legit expectation of privacy b/c purely commercial (bagging coke) + no
existing relationship to owner, out of state D + only there for few hours
Justified evidence?
Independent Source
 Govt can use evidence initially discovered due to unlawful search, but later obtained independently
from activities untainted by initial illegal search, AS LONG AS legal search (from which evidence comes)
is "genuinely independent source" from first search (Murray)
 Evidence in first illegal search can’t be basis of probable cause to get warrant (Murray v. US)
Inevitable Discovery
  If prosecution can establish that evidence "ultimately or inevitably" would have been discovered, then
otherwise poisoned fruit can be admitted. (Nix v. Williams)
 Applies even if violation of 4th/6th Amend – NOT 5th Amend
 Usually means separate, simultaneous search ongoing (ex: simultaneous search despite
Christian burial speech)
 To excuse, police have burden of proof (Nix v. Williams)
 Preponderance of evidence – lower than clear and convincin
Attenuation
 Wong Sun: At some point, free will purges primary taint. If primary evidence (drugs) gathered illegally,
secondary evidence can be (a) barred if gathered by exploitation or (b) permitted if free will.
 Connectedness factors (Brown v. Illinois)
a. Length of time btw initial illegality and seizure of fruit
b. Flagrancy of initial misconduct -- Bad-faith violation takes longer to dissipate than good-faith
c. Any intervening causes for seizure
d. If D had free will resulting in seizure
 APPLICATION:
 Length of time: 2 hours insufficient (Brown), few days after release sufficient (Wong Sun)
 Flagrancy of initial misconduct: good-faith if initial arrest is judgment error (Streiff)
 Intervening cause: unrelated valid warrant after initial bad arrest is sufficient (Streiff)
 Free will: not free will if at time of arrest, pressured (Wong Sun)
Outright Exceptions
Good-faith Reliance
 Leon - Evidence obtained in reasonable, good-faith reliance on a facially valid search warrant is not
subject to the Fourth Amendment's exclusionary rule, even if the warrant is later deemed defective.
 Objective standard.
 EXCEPTIONS: exclude when
o (1) Magistrate didn’t act neutrally or detached
o (2) Officer acted with reckless disregard for truth -- Officer knows or should know that
the magistrate issuing a warrant has been mislead
 Challenge via Franks v. Delaware
o (3) Officer could not have believed warrant because so lacking PC (no reasonable
officer could reasonably rely on it)
 Factually deficient/barebone warrant
 Magistrate can't give general warrant (to search wherever), be rubber stamp (Lo-Ji Sales)
 If officer acts on objective reasonable good faith reliance on warrant, bc judge assured him he would
make slight correction to make it valid, then the fruits are good (Massachusetts v. Sheppard)
Knock-And-Announce
 Hudson v. Michigan -- Exclusion does not apply to violations of "knock and announce" rule
 Exclusion only applies when ability to deter police misconduct > cost to society of letting
criminals go.
 Reasonable wait time is vague – only waited 3-5 seconds (violation).
Reasonable belief due to negligence
 Herring v. US -- Where police personnel act negligently, but not recklessly, and lead an officer to
reasonably believe an arrest warrant exists, the evidence obtained pursuant to that unlawful arrest
remains admissible.
 Reckless = high bar, must show systematic recklessness
 4th Amend applies ALL the officers involved (including the police operator)
 Objective standard = whether reasonable well-trained officer would know that search is illegal
in light of ALL circumstances
 State v. Handy (NJ 2011) – Having warrant with wrong name, address, birth date is NOT reckless.
 Davis v. US -- A search conducted in objectively reasonable reliance upon binding appellate precedent
that has since been overruled is not subject to the exclusionary rule.
Harmless Error Doctrine
 Even if the evidence violated 4th Amend, if the trial outcome would be same w/o evidence --> evidence
didn’t impact trial --> no overturn holding.
5h Amend violation
 Don’t apply Brown factors to Miranda/5th Amend violation.
 Don’t dissipation of taint
6th Amend violation
1. Attenuation

 Wong Sun: At some point, free will purges primary taint. Look at (a) timing, (b) pressure,
 Admitted statement: (a) + voluntarily submission to interrogation

4TH AMEND
TEST: WAS THERE A VIOLATION?
1. Governmental actor?
2. Search?
a. Reasonable expectation of privacy OR trespass?
i. Privacy
1. Katz: Subjective expectation + Socially reasonable?
2. Exceptions
a. Third Party Doctrine – informant, phone/business records, drug-sniffing
b. Public exposure – curtilage, open fields
ii. Trespass
1. Physical occupation?
b. Was the search reasonable?
i. Warrant?
1. Properly granted = PC (oath/affirmation), particularity, neutral magistrate
2. Properly execute = daytime, knock-and-announce, correct time/place
ii. Detention incident to arrest?
1. Before search = PC of evidence destruction, getting warrant
2. After search = home and immediate vicinity (1 mile)
iii. Executing search
1. Container reasonably large enough
2. Honest mistake of where they’re searching
3. PC of seasonable item, plain view
iv. Exception?
1. Exigent circumstance
2. Search incident to arrest = person, area of immediate control, protective sweep
3. Plain view
4. Automobile
5. Terry Stop
6. Inventory
7. Administrative
8. Consent
9. Special circumstances
3. Seizure?
a. Stop + freedom of action limited
b. Warrant? (as above)
c. Exception?
i. Hot Pursuit
ii. In public
iii. Terry
  General stuff
o Reasonableness clause
o Warrant clause
o Burdeau (1921) – Only applies to government actor
o Verdugo-Urquidez – Only protects people part of “national community” (residents)

Was there a Search?

Reasonable Expectation of Privacy Violation (Katz test)
 A) D exhibited an actual (subjective) expectation of privacy
 B) That expectation is one that society is prepared to recognize as “reasonable” (objective)
o Katz v. US: departure from property-trespass theory of search (Olmstead) to find wire-tap on public phone
booth was 4th Amendment search.
 4th Amend protects people (dignity), not places.
 CONCURRENCE (Harlan): Phonebooth become temporary private place
 This becomes the test
o Berger v. New York -- NY wiretapping statute unconstitutional b/c didn't require cops to particularize (a) crime
being investigated and (b) conversations they expect to hear
 Also: allowed surveillance for 60 days w/ single show of probable cause + renewal w/o further probable
cause + no limit on surveillance after convos "seized"
Categories for Katz analysis
Assumption of Risk (False Friend, 3rd Party)
 Invited Ear: Police may conduct instantaneous electronic surveillance via informant, wearing a bug (US
v. White)
 Harlan dissent:
o Social costs of unchecked 3rd party surveillance (undermines basic trust/security of
human relationships, free society)
o People need to be free to say controversial, defiant stuff in privacy
 False Friend
 Privacy waived when information given to undercover agent (Hoffa)
 D's false friends tapes the convo (Lopez) or wears wire-tap (On Lee, White)
 3rd Party Doctrine
 No legitimate privacy when giving information to 3 rd party (Smith v. Maryland)
o Pen register case
o Who you call is not intimate details – content of call is intimate
Exposure to Public (Drug Sniffing Dog, Curtilage)
 Drug Sniffing Dog
 Importance of "limited capabilities"
 Drug sniffing dog in airport is not a "search" (US v. Place)
o "Canine sniff" is sui generis
o Because: less intrusive, only indicates drugs, in public place
 Drug sniffing dog at traffic stop is not a “search,” no warrant needed (Illinois v. Caballes)
o Interest in drugs is not legitimate
o Only reveals drugs (“well trained dog”)
o Souter dissent: false positives, can reveal intimate details
 Drug sniffing dog at front door of home not allowed (Jardines – trespass)
 Open Fields
 Police entry into open field does not constitute search (Hester v. US)
 Open field just mean an unoccupied or undeveloped area outside home, not literally open field
(Oliver v. US)
 No legit privacy for activities conducted outdoors in fields (e.g. crop growing), unless
immediately surrounding their home (Payton v. New York)
o Police can trespass on land w/o probable cause and warrant and then find marijuana
fields
o Dissent (Marshall): Different if owner puts up “No trespass” sign. Society respects that.
  Curtilage
 Overriding respect for sanctity of home. (Payton v. New York)
 4 factors (US v. Dunn)
o Proximity of area claimed to be curtilage to home
o If area is within enclosure surrounding home
o Nature of use of area
o Steps taken by D to protect area from observation by passerby
 Aerial surveillance is allowed
o Not reasonable privacy if fly over field that seen from public airspace + 1000 ft (visible
to naked eye) + cop could stand up on truck and see marijuana plants (California v.
Ciraolo)
o Fine for helicopter to fly at 400 ft and plane can fly at 500 ft (Florida v. Riley)
 (a) Not breaking law/regulation
 (b) Didn't interfere w/ owner's normal use of land (no noise, wind, dust, threat
of injury)
 (c) No reveal of "intimate details" besides marijuana growing
 Fine for cops to search trash bags left outside curtilage on curb, near house, but not open field
(California v. Greenwood)
 Trash on curb exposed to public -- readily accessible to animals/snoops
 Express purpose to convey bags to third party. That party can then give to police.
Intrusiveness of Search
 Pre-consent squeezing of luggage on Greyhound is search in violation (Bond v. US)
 Physically invasive search is more intrusive than visual observation
 Passenger expects bag gets moved, but not felt in "exploratory manner".
Sense Enhancing Tech
 Police may not gather info from inside a house using sense-enhancing technology outside of common
use (Kyllo v. US)
 Higher bar to gather info if:
o (a) enhanced by surveillance (beyond naked eye)
o (b) in area very near home (greater privacy interest)
o (c) Not otherwise available besides physical intrusion into home
o (d) Tech is not in general public use (reasonable expectation not to be surveilled by it)
 Using device that shows heat radiation from marijuana growing lamps is a search.
 All details of what transpires in a home are intimate details, unless revealed to public
o Practical problem of how to distinguish intimate from non-intimate
 Beeper cases
 Police can track driver on public roads to location, where beeper placed in bin outside home
(US v. Knotts)
o Travelling on public roads = no reasonable privacy about movements.
o Police used visual surveillance, and beeper just aided their natural ability.
o Bin exposed to public, beeper didn’t reveal intimate details
 Monitoring of beeper within a residence (not open to visual surveillance) is violation of 4th
Amend (Karo)
Relevant Katz factors:
1. Nature of place observed
 Home has heightened protection (Payton) Home = first among equals (Jardines)
 Left in view of public is not protected (Greenwood)
2. Steps taken by citizen to enhance privacy
 Can affect subjective finding AND reasonableness
3. Degree to which surveillance requires physical intrusion onto property
4. Vantage Point (Riley, Ciraolo)
5. Nature of object/activity observed
 Intimate details protected (Riley, Place)
6. Technology used
 Availability/awareness of general public to surveillance technology
  Extent to which technology enhances natural senses (Kyllo and Knotts beeper)
7. Search being unnecessarily intrusive/disruptive (Riley, Place, Bond)
Trespass
o Government installation of GPS on D's vehicle and use of GPS to track his movements is a search (US v. Jones)
 Concurrence (Sotomayor): GPS monitoring maybe okay for one day under Katz, not 4 weeks
 Also 3rd party doctrine should be challenged. Privacy =/= secrecy.
o Satellite location tracking with device that person must wear w/o consent is a search. (Grady v. North Carolina)
 4th Amend protections apply to civil and criminal cases.
 Sex offender with tracker
o Walking up to front door and using drug-sniffing dogs to locate marijuana is a search (Florida v. Jardines)
 Home = first among equals. Home > effects. (Scalia)
 Concurrence (Kagan): This is search under Katz. Drug sniffing dog is sensory-enhancing and not in
common use.
 Dissent (Alito): This is not trespass. Common-law allows front door access from main road.
o Seizure = meaningful interference with person’s possessory interest in property (US v. Karo)
Carpenter
o Police generally need warrant to access CSLI
 Limit on 3rd Part Doctrine
 More intimate than GPS
o "nature of the particular documents sought,"
o level of intrusiveness of extensive cell-site data weighs against application of the
doctrine to this type of information.
 Not voluntary exposure. While a user might be abstractly aware that his cell phone provider
keeps logs, it happens without any affirmative act on the user's part.
 People have privacy interests in PROPERTY OF OTHERS
o This was search: Legit expectation of privacy in records of physical movements from CSLI
 3rd Party Doctrine Exception = CSLI gives more intimate data than GPS + not voluntary like business
records
 Time Limit = 7 days is too much, but maybe fewer days is fine
 Historical debate -- at founding, you can expect police to follow you for some time (24 hours?)
 CONCURRANCE (Kennedy): 24 hours rules.
 LIMITS: Traditional methods of surveillance fine, business records still fine, other collection techniques
for nat sec still fine
o Search was unreasonable, need warrant
 General rule = if police are looking for evidence of wrong-doing, they need a warrant
 Fine for any other reason
 EXCEPTION: Warrantless search allowed for emergencies
 LIMIT: otherwise, warrantless search still fine
o 3 requirements to apply Carpenter
 Info gathered by NEW tech not available otherwise
 No meaningful, voluntary choice to give away info
 No such choice for owning cellphone
 Data gives intimate view of life (ie personal/political/sexual/religious data)
o Dissents
 Dissent (Kennedy): rule isn't clear enough: can get private info from bank records, this was kinda urgent
b/c more crimes ahead, had some authorization (from judge)
 Dissent (Thomas): Textual analysis shows 4th Amend focus on property of individual (their = your
property), here property belongs to company. Katz is wrong -- misunderstands what search is; privacy
only through property.
 Dissent (Alito): Original meaning of subpoena is not search, so its fine. Fine as long as relevant purpose,
limited scope, and not burdensome. Leave 3PD alone, no search b/c NO physical intrusion on property
 Dissent (Gorsuch): Follow Positive Law/Kerr. Kerr = Court developing new rules for new tech, b/c
otherwise diminishes 4th Amend.
Was Search reasonable?
Overview
o Reasonableness measured by info available to police prior to arrest/search, not ex post
o For
o Level of justification needed
 Probable cause: For a warrant you need PC that police prove a fair probability (Gates) that the
specified items sought are (a) evidence of criminal activity + (b) presently located at specific placed
described in search warrant application (particularity)
 Reasonable Suspicion: For warrantless search you can use lower standard b/c lesser intrusion and
justified for various reasons.
 Ex: stop & frisk, various warrant exceptions
 Reasonableness balancing test: court uses balancing test to weigh importance of societal needs served
for justification for particular intrusion
 Ex: Special needs, admin search
Warrant Granted
Probable Cause
 FIRST: Spinelli: Two-prong test, Magistrate needs both:
 Veracity = reliability, credibility of informant (have they been reliable in past)
o Consider: their reliability in the past, specificity of information
 Basis of knowledge = how they came about the information
o Consider: background of the informant (more intimate is better), incentive to
cooperate
 One can offset the other
 THEN: Gates: Totality of Circumstances Test
 Need substantial basis to conclude search would uncover evidence.
 Adds corroboration element -- just the tip can be sufficient w/o veracity or basis of knowledge
if corroborated by police investigatory work.
 Consider:
o Is informant sketchy person? More deference to friends, neighbors, business
associates, etc.
o Future predictive tip that is partially corroborated  reasonable suspicion
o Did they see act first-hand, or is it hearsay?
o More deference if officer states his perception of events ON RECORD
o Staleness – If evidence likely deteriorated, then less PC
 Ex: 16 yo porno mags preserved in footlocker
 Maryland v. Pringle (2003): ToC applied and PC found due to reasonable inference of crime.
 3 guys arrested where drugs hidden about car, and none of them confess. Valid PC because D
established possession of cocaine (knowledge and exercised dominion), either solely or jointly.
 Invasiveness/Staleness of PC
 Schmerber v. California: Taking blood to do alcohol test for drunk driver is more intrusive -->
more offensive search --> need "clear indication" that evidence of crime exists. ("Probable
cause plus")
 Winston v. Lee: Police wants to recover bullet from D's body that might incriminate him. Need
more justification to search area of heightened privacy interest.
 If informant is correct about some details, deference that he'll be correct on other details (Draper)
 Ex: specifies how the D will be dressed and train he's on, so he's probably right about drugs in
the briefcase
 Fighting PC
 Courts gives deference to magistrate judge where PC decision is on the margin (US v Ventresca)
 Officer's state of mind irrelevant to PC, just facts that he knows (Devenpeck)
o Probable cause is objective standard. Valid even if officer wrongly believes he has PC
 Process for challenging false statements
 o Challenge police officers’ false statements or omissions (Oath & Affirmation) (Franks v.
Delaware)
 Preliminary substantial showing that false statement is intentional or reckless
disregard for truth
 Hearing where officer testifies and witnesses. Preponderance of evidence to
prove lie,
 Then take false info out of warrant, consider if warrant is still valid
o No process for D to challenge that informant lied.
 Police not required to disclose informants’ identity in PC/evidence-suppression hearing
(McCray v. Illinois)
 PC valid if drug-sniffing dog had sufficient certification in training program. (Florida v. Harris)
Particularity
Evidence searched/seized must related to particular crime being addressed by warrant (Andresen)
Warrant must be facially valid. (Groh v. Ramirez)
 Not enough that application adequately describe things to be seized
 If warrant facially states "this incorporates things found in application" --> VALID
Magistrate Neutral/Detached
 Lo-Ji Sales
 Warrant can’t be based on conclusory statement by officer that similarly obscene things would
be found at store
 Warrant can’t leave determination of what materials are criminal ENTIRELY to police officers on
scene
 Magistrate not neutral/detached if he accompanies officers
 Magistrate can't be paid
 Magistrate must read warrant, even if cursory – 2min, 48sec review
 Warrant should be read in fair context. (Andresen)

Warrant Execution
Knock-And-Announce
 Knock-and-announce rule implicitly required by 4th Amend for reasonable search/seizure (Wilson v.
Arkansas)
 Announcement
 Police must announce who they are + purpose before forcible breaking down door. (Richards v.
Wisconsin)
 Don’t consider police tone of voice. (Kentucky v. King – yell “POLICE POLICE POLICE”)
 Police must not immediately threaten to break down door (Kentucky v. King)
 Police must give reasonable wait time unless exigency (US v. Banks)
 15-20 seconds wait-time for knock-and-announce is a "close call" in cocaine case
o When immediate entry not required by exigency, reasonable wait time might be longer
so as not to damage property
 Police may damage property to extent necessary to enforce reasonable no-knock entry
 EXCEPTIONS: No-knock entry allowed if police have reasonable belief that (Wilson)
 Threat to officer's physical safety,
 Suspect escaped and retreated into dwelling,
 Likely evidence destruction
o Hearing scuttling inside is sufficiently reason to believe drug destruction (King)
 No blanket exception to knock-and-announce rule for felony drug cases. (Richards v. Wisconsin)
 Reasonableness standard for no-knock entry (e.g. some exigency must exist)
o Any less demanding standard would just incentivize police to use exigency every time
 Constructive knock by entry and announcing presence allowed when knock ineffective (Utah v.
Stuart - sliding door during fight)

Detention incident to search

o Before Search: May take reasonable efforts to secure the scene. Preventing D from entering home is effective
seizure w/o warrant. (McArthur)
  Cops suspected marijuana possession. While one went to get warrant, other kept an eye on D. Only
allowed him in home to make calls and watched him.
 Okay to detain search suspect if:
 Cops have PC of crime
 Reasonable belief that D would dispose of drugs before warrant arrived
 Reasonable efforts made to reconcile law enforcement and D privacy (e.g. allowed him in home
while accompanied, didn't touch property)
 Reasonable limited time period (2 hours)
o During Search: Warranted search gives police implicit authority to detain person while search ongoing
(Michigan v. Summers)
 Automatic authority – don’t need suspicion that person is criminal or dangerous (Bailey v. US)
 Limit -- Detainment only for people present or "immediately outside" residence at time of search
 Person one mile away from residence is not "immediate vicinity" of residence (Bailey)

Executing Search
o If cops suspect evidence + searching house:
 Cops can search containers large enough to hold criminal evidence they're searching for
 Ex: Can search cabinets when looking for drugs, not stolen TV
 Can seize item not described in warrant if PC to believe that its seasonable item (e.g. evidence of
crime)
 Also if it's in plain view
 May search area based on honest mistake (e.g. later info shows area isn’t covered by warrant)
 Cops do valid search of D2's room before realizing its separate apt (Maryland v. Garrison)
o Search not invalid until cops on notice that might be in wrong unit
o Flexibility for honest mistakes b/c police in dangerous and difficult situations
o Searching person, must have:
 (a) Warrant explicitly states search of person; not implied by search of premises (Ybarra), OR
 (b) Independent probable cause to search person
o If cop suspects evidence + searching car
 Can search person, area of immediate control,

Exception to Warrant?
o Touchstone of 4th Amendment is reasonableness.
o General rule that you need warrant by 4th Amend (Katz), but it’s active debate
 Pro warrant:
 No reasonable search w/o warrant unless exception. (Johnson v. United States)
o Slight inconvenience + delay in search = insufficient reason to dispense with warrant
 Anti-warrant:
 There are so many exceptions, general rule is too flimsy. (Scalia in Acevedo)
 Magistrates give little attention for warrants - average of 2min, 48sec review
 4th Amend only requires that search is reasonable, not whether procuring warrant reasonable
(Rabinowitz)
o When Court approves warrantless activity, usually because police:
 1) Were acting in exigent circumstances
 2) Were intruding upon lesser 4th amendment interests
 3) Were otherwise not involved in activity where before-the-fact judicial scrutiny would be useful

Exigency
 Exigency
 (1) Imminent destruction of evidence
o Big burden on warrantless entry if minor offense (Welsh v. Wisconsin – drunk driving,
evidence destruction by sobering up)
 Presumption of unreasonableness
 (2) Hot pursuit of a fleeing felon
 o Minor offense exigency exists (Stanton v. Sims)
 Reasonable: D not yet in home, immediately after crime, hot pursuit > evidence
 (3) Risk of danger (community caretaking) to police or other persons inside or outside the
dwelling.
o Police can enter for reasonable belief of need to give emergency assistance or
protection to ppl w/ actual or threatened serious injury. (Utah. Stuart – drunk fight at
home)
 Reasonable: ongoing violence, safety > evidence
 (4) Prevent a suspect’s escape
 Police-Created Exigency: Reasonable for police to enter premises even if there’s police-created
exigency, as long as there’s no actual or threatened violation of 4th Amend. (Kentucky v. King – police
yell at wrong door, smell weed and hear shuffling)
 Must still have PC that place to be searched has crime or evidence of crime
o Police can knock at door without warrant.
 Rationale: It’s a normal activity.
o Don’t need to seek warrant just because they have time
 Acceptable as long as police don't immediately threaten to involuntarily enter
o Cops like any other citizen. D has full right to refuse to let them in.
 Rejects Kentucky decision - (a) bad faith avoidance of warrant is too subjective, (b) “reasonably
foreseeable to create exigency” is unworkable rule for cops

Search Incident to Arrest

 RULE: As long as you have PC for arrest, you may search a person without a warrant or separate PC.
(Robinson - public place, contraband found still admissible even though unrelated to traffic arrest)
 Even if arrest is pretextual stop to search for evidence they expect to find, officer’s true motive
will not make search/seizure unconstitutional (subjective intent doesn’t matter) (Whren)
 Justifications (Chimel)
 Officer safety (disarm suspect)
 Preservation of evidence
 Scope
 Search of Person
o Twin justifications not needed (unless Riley cellphone)
o Can search anything on person including contents of container (Robinson cigarette
package)
 Search of Immediate Area of Control
o Area of immediate control = area where D might gain possession of weapon or
evidence
o Person limits:
 Warrantless search of locked luggage unreasonable despite PC and lawful
arrest. (Chadwick)
o Home limits: (Chimel = home arrest)
 Room of arrest (generally). Not rest of the house.
 Not every drawer w/in that room. Only one that can contain evidence.
o Car limits:
 Passenger compartment (Belton)
 Person secured? Only search for reasonable related evidence
 Protective Sweep
o Maryland v. Buie: only comes into play when officer has reasonable suspicion of more
than 1 person who poses threat
 Limit: Lasts only as long as necessary and only to area that could be threat of
hidden attacker
 Can search immediate vicinity of arrest for potential threatening person even if
no reasonable suspicion.
o Officers can apply protective sweep outside of home (car) if the Buie factors apply.
 Ex: Reasonable suspicion of weapons if there is tinted windows.
 o Not applicable to drug cases!
 Only really for armed robbery where cops worried about multiple criminals
being accomplices.
o Based on Terry suspicion test b/c less than PC
 Limits
 Get advance search warrant whenever practicable + strict scope of unwarranted search. Scope
of search ends once justifications no longer valid. (Terry v. Ohio)
 Custodial arrest based on PC and subsequent search is "lawful" for 4th Amend, even if violating
state law (Virginia v. Moore)

 Containers
 No search of phone digital data b/c fails justifications, fails particularity (Riley)

Container Rules—(note, cases are about can you SEARCH it. Only need PC to seize)

Inside Car Outside Car

Carroll  If you have PC to search car, can Chadwick (suitcase)
search all parts of car and containers which can  Search  need warrant and PC
conceal evidence o (in case, couldn’t open luggage w/o
warrant)
Ross PC that evidence is somewhere in car,  Seize  no warrant, need PC that evidence of a
you can search all of car and containers capable crime is inside
of holding evidence w/o a warrant Sanders (suitcase in cab)
 Same rules apply to luggage in a cab—can seize,
Acevedo BRIGHT LINE RULE FOR CARS: If but need warrant to search.
have PC that evidence is in container, can search Acevedo: OVERRULES THESE CASES. Once item
container & car even if don’t have PC for car. goes in car, lesser REOP. (as long as YOU HAVE PC)
Without a warrant, if you have PC that contraband is in the car, you can search all containers in the vehicle in which the item
sought could be found, including the trunk. Acevedo; Ross.
- What about container in trunk? (WITHOUT PROBABLE CAUSE)

 Need warrant to search. Can only seize

 Appears need PC that there is contraband in trunk; incident to arrest PROBABLY won’t justify search of trunk. EXAM
LAND: FACTUALLY INTENSE

Plain View
 Horton: Object in plain view must have (a) incriminating character that is (b) immediately apparent
 Police must have lawful reason to be where they are (lawful search and seizure)
 Police have lawful access to object
 Inadvertence of find doesn’t matter.
 Hicks: Police must have PC of the evidence’s incriminating character (or claim exigency + reasonable
suspicion)
 PC = Immediate apparent of incriminating evidence (of new crime OR tied to crime being
investigated).
 Hicks: Police can’t take unnecessary search/seizure actions which manipulate objects to bring them
into plain view.
 Even minor unnecessary movement makes it search (eg moving stereo equipment)
 Cop can normally claim exigency to do movement (then not a search)
 Pure plain view is NOT a search.
 Recording stereo serial number is not a seizure. Seizure is "meaningful interference" with
private possessory interest.
 Dickerson: Plain Touch Doctrine -- If officer stops you for reasonable suspicion and pats you down, can
seize evidence on your person only if Immediately Apparent (PC) of incriminating character
 TEST:
  Original intrusion is lawful [legitimately on the premises]
o Not only legitimately see it, but have lawful access to it (Horton)
 Scope of authorized search cannot have been exceeded
 Must have PC to believe this is evidence of contraband. (Hicks)

Automobile
 (1) Automobile Exception
 Carroll: May search a car without a warrant, but with PC that evidence of crime is in car.
o General rule for home/office: PC insufficient, need a warrant.
o General rule for automobiles: PC sufficient, no warrant needed.
o Rationale: Lesser privacy interest in car than home + car can be moved quickly
 Chambers: If cops have PC to search car on highway, they can seize it and search later at police
station
o Car on highway = “fleeting,” so exigency-based car search
o Cops can't hold people for long time, b/c that would be a seizure.
 Coolidge: If cops have PC to search stationary car, higher burden to do warrantless search
o This car wasn’t “fleeting” because D was cooperative, police had PC for a while, D
already could have destroyed evidence, no sign of illegal use of car
o Can’t seize car for a year
o Concurrence (White): Chambers would allow search 2 days after seizure, but not
months later. Indefinite seizure not allowed.
 Carney: Extended to mobile homes that are readily mobile, licensed as motor vehicle, and
located somewhere not normal for residential purpose (e.g. public lot) -- still need PC to search
o Lower Expectation of Privacy -- regulated by highway laws allowing police to regularly
stop and examine for license place and proper car functioning.
o Mobility
o Law enforcement -- Would make motorhomes ideal drug selling spot.
 Cardwell: Car had lower expectation of privacy b/c (a) primary function is transportation so
people don’t keep personal stuff there, and (b) content and occupant in plain view when
driving on public roads.
 Container Rules
o Outside Car
 Warrantless search of a locked luggage is unreasonable, despite PC and lawful
arrest, when police have the luggage in their control for over an hour.
(Chadwick)
 Locked luggage has subjective and reasonable expectation of privacy.
Contains personal effects. Purpose to be private.
 Only applies if the luggage is outside of car.
o In Car: May search containers capable of concealing evidence (Acevedo/Ross)
 Ross: If have general PC evidence in car, you may search all containers in car
 If cops have PC to search car, can search fixed parts (glove
compartment, trunk) and movable containers (so long as could conceal
object of search) without warrant.
 If cops have PC to search specific container, which coincidentally in car,
they can search car (only until they find container) on highway or tow
to police station without warrant. Can only find and seize container,
but need warrant to open.
 Acevedo: If have PC that evidence is in container, can search container
 So a suitcase unsearchable in Chadwick can be search if it’s in car
 LIMIT: scope of permissible search—size and shape of items sought;
can only look where such items may be hidden
o Finding drugs in one area may create PC for other areas of car
 Doesn’t matter if driver or passengers own the containers; if PC justifies search,
justifies search of every part of vehicles and contents that may conceal object
(Houghton)
  Justifications:
 Readily moveable, risk that evidence could disappear
 Reduced expectation of privacy in cars (Houghton)
 -If just search incident to arrest
o
 (2) Search Incident to Arrest
 Ticket or Arrest
o When cop has option to give ticket or arrest, can search if he decides to arrest
(Gustafson v. California)
 Rationale: Even if no weapon or evidence, search will happen anyway via
inventory search
o When cop has option to give ticket or arrest, cannot search if he decides to give ticket
(Knowles v. Iowa)
 Rationale:
 Less safety risk in traffic citation than a custodial arrest. It's briefer.
 No additional evidence of speeding to be found.
o City can permit custodial arrest for minor offense. Warrantless search of vehicle was
fine (Atwater)
 Rationale: Hard for police to know what is a “jailable” offense on the spot.
 Dissent (O’Connor): So much conduct is fine-only misdemeanor bucket -->
expands search powers.
 OLD RULE: General Justification – Once you’re arrested, police can do contemporaneous
search regardless of Chimel.
o US v. Robinson: If you have PC for arrest, you can search incident to arrest of person +
area of immediate control even if no search PC
 Facts: PC of driving w/ expired license. Officers pats down D, feels box in jacket.
Opens it and finds drugs.
 Don’t need evidence of gun/evidence in particular case.
 Based on quick judgments for cops.
o New York v. Belton: Applies SI2A to contemporaneous car searches
 Covers passenger compartment and all containers therein (NOT a search of the
person) -- overruled by Gant
 Does not cover trunk
o Thorton v. US: Applies Belton to recent occupants of a car. Scalia conc: Shaky grounds,
but might find relevant evidence of drug crime.
o Rationale:
 Pros: Bright-line rule, judicial efficiency, ease of police enforcement
 Cons: Requires police determination in moment, can be overinclusive
 NEW RULE: Specific Justification – Police should justify search using Chimel. (Gant, Riley)
o Arizona v. Gant (D handcuffed outside car for suspended license, then cops search): No
searching car incident to arrest of recent motorist unless
 A) D is unsecured and area w/in immediate control.
 Rationale: If he’s secured, no safety or evidence preservation concern.
 Belton undermines privacy interests.
 B) Reasonable belief of relevant criminal evidence in car (includes closed
containers)
 No reasonable search for evidence in case of outdated license
o Riley v. California: Can’t search cell-phone data during SI2A.
 Fails twin Chimel factors
 (1) Danger – Data not physical danger to arresting officers.
o Don't worry about indirect danger to other officers b/c
broadens danger element to ALL officers.
 (2) Evidence -- Warrantless search not valid even given concern of
remote wiping + data encryption
 o Unencrypted/non-locking device is not common + can't do
much to stop remote wiping.
o If immediate search is concern, police may: (a) consider exigent
circumstance, or (b) disable the phone's autolock feature
 Use McArthur rule of reasonable steps to secure scene
o Birchfield v. North Dakota?
 (3) Automobile Inventory – IMPORTANT FOR INDEPENDENT SOURCE
 Opperman: Search for routine automobile inventory in noncriminal context (no PC, no warrant)
is allowed.
o Warrant requirement doesn't apply when no PC determination needed
o Reasonableness Balance: car owner's lesser expectation of privacy VS routine practice
designed to (a) protect owner's property while in custody, (b) protect police over
claims of theft, (c) protect police from danger, (d) allow police to check if car is stolen
 Wells: Police must follow standard state procedures in auto inventory search. Can't exceed
scope (e.g. must be state procedure to open locked suitcase during search).
 (4) Terry Stop

Terry Stop
 Terry v. Ohio: Cop can do stop&frisk if he reasonably concludes (in light of his experience and
particularized observations) that crime is afoot + person stopped is presently dangerous
 Terry stop = less than full blown search/seizure, so lower standard (reasonable suspicion, no
PC)
o Reasonable suspicion = articulable + specific of something dangerous; objective
o Carefully limited search to discover weapons
 Justified in conduct: limited to suspect’s person and nearby things that can
produce imminent harm
 Comes down to safety of officers.
 If unreasonable suspicion  suppress
 Reasonable Movement
 Dunaway v. New York: Not a Terry stop if reasonable person feels like they cannot leave. That is
arrest.
o D brought to station (not temporary) + D found at house not on street
 Florida v. Royer: All aspects of Terry stop must be justified for officer safety. (e.g. unreasonable
to move person from one area to next for no reason)
o Pennsylvania v. Mimms: When legally stopped on highway, officer can order D out of
car. No big privacy difference being in car or not.
 Williams extends to passengers as well.
 Reasonable time
 United States v. Sharpe: When assessing if stop has gone too long to be Terry stop, police
should use reasonable means of investigation that goes quickly (but doesn’t need to be
quickest)
o 20 minute pull-over stop is fine when cop smells drugs and requests back up (vs 22
mins for drug-sniffing dog)
 Drug sniffing dog at traffic stop
o Caballes: well-trained drug sniffing dog immediately at routine traffic stop is fine. No
legit privacy interest in drugs.
o Rodriguez v. US: Calling drug dog prolongs stop for 22 minutes = unreasonable. Full
seizure.
o United States v. Place: 90 minute holding at airport for drug suspect is too long. They
took his bags = seizure.
 Reasonable suspicion from Tipster (NOT PC – Gates)
 Alabama v. White: An anonymous informant’s tip that was “significantly corroborated” by an
officer’s investigation provided reasonable suspicion for a stop.
o Corroboration need not be complete nor flawless (less stringent than PC)
 o Use Gates totality-of-circumstances test for informant. Consider both quality &
quantity of corroboration.
o Rule: Future predictive tip that is partially corroborated  reasonable suspicion.
 Florida v. J.L: anonymous tip that someone was carrying gun does not enough to justify S&F
unless there is corroboration. RS standard is lower than PC, but not this low.
 Navarette v. California: Anonymous tip of reckless driving isn’t proved in 5 mins, but has
adequate indicia of reliability (right make, model, color, license plate #)  reasonable suspicion
good.
 Reasonable Suspicion from Observation
 Illinois v. Wardlow: unprovoked flight + high crime area enough to give police RS. Even though
cops driving 4 vans deep.
 Florida v. Royer: airport “drug courier profile” case; stop ripened into a full-scale arrest b/c
conduct was more intrusive than necessary; consent was invalid b/c TOC shows coerced
 Wrinkles
 Terry stop allowed after completed felony, not just before it. (US v. Hensley)
 Terry only applies to weapons. Can’t stop and frisk just for suspicion of drugs
o Dickerson – feels shift lump in D’s pocket, finds drugs. No Terry -- has to be
"immediately apparent" that it's weapon.
 In open-carry state, cop must do additional questioning before suspicion of crime
 Reasonable mistake of law is okay. Gives reasonable suspicion still. (Heien v. North Carolina)
 D must identify themselves during Terry stop (Hiibel v. Nevada)
 Protective Sweep allowed (Michigan v. Long – hunting knife allows protective sweep of car)
 Test:
 1. Was it a true Terry stop? Limited time + on street
 2. Did cop have reasonable suspicion of crime?
o Based on particularized facts, not just hunch?
o Can be based on anonymous tip.
 3. Was frisk reasonably related to officer safety?
o Is scope limited exclusively to the suspicion?
 4. Was frisk not overly invasive?


Inventory
 Important for Independent Source
 Arrest inventory = second search of anyone incarcerated. (Gustafson)
 DO NOT need warrant or PC
 Must follow local procedure.
 Rationale: Double check for any dangerous instruments/contraband; protect D’s valuable while
in jail; reduce risk of false claim of theft by D
 Auto inventory (see above)
 Opperman: Reasonableness balance test. Allow search during routine auto inventory.
 Wells: Do not exceed local procedure.

Administrative
 Administrative inspection – Search to ensure compliance with regulatory scheme (eg carbon emissions
search)

Consent
 Police can knock at door if they have PC before seeking warrant. (Kentucky v. King)
 Rationale: Police may think convo will suffice for search, may seek consent to search (much
faster), may want to obtain more evidence, may fear warrant will disclose ongoing
investigation
 RULE: When a subject of a search is not in custody, to determine whether consent is provided
voluntarily requires a totality of circumstances test to rule out duress/coercion. (Schneckloth)
  Government must prove it – by preponderance of evidence
 Objective ToC Test of voluntariness:
o Knowledge of right to refuse,
o Evidence of schooling,
o Intelligence,
o Lack of warning that subject had right,
o If police ask subtlety coercive question, c
o Circumstances (eg did officer have gun out),
o If suspect is particularly vulnerable.
 Limits
 Bumper v. North Carolina: Police can’t induce consent by claiming they have warrant if it turns
out to be faulty (even if they didn’t know)
 Robinette v. Ohio: If D consents to be searched, even if not first advised that he is "free to go,"
the ensuing search will be recognized as voluntary
 Person can limit scope/time of search
o If no express limit, then search goes to reasonable extent to meet the purpose (Jimeno
– reasonable to open container in consented drug search)
 Person can withdraw consent after it is granted, but MUST be clear and unambiguous
o Just saying “you got a warrant for that?” isn’t sufficient. Use serious tone (Wantland)
o Must verbally withdraw consent.
 rd
3 Party Consent
 Georgia v. Randolph: Can’t do warrantless search of home where co-tenant consents but other
is physically present + expressly refuses consent.
o 3rd party consent based on reasonable social norms
 Illinois v. Rodriguez: Warrantless entry/search of solo apt is valid if police reasonably believe
that the person giving consent has the authority to do so, even if that turns out to be false.
o Objective ToC test. Cops can’t just assume that consenting person is sole owner.
 Test:
 Consent must be given voluntarily, per Totality of Circumstances test (Schnekloth)
o Factors: Knowledge of right to refuse, Evidence of schooling, Intelligence, Lack of
warning that subject had right, If police ask subtlety coercive question, Circumstances
(eg did officer have gun out), If suspect is particularly vulnerable.
o Police can’t induce consent by claiming warrant if its faulty, even by good faith
(Bumper)
o If D consents to be searched, even if not first advised that he is "free to go," the
ensuing search will be recognized as voluntary (Robinette)
o If not expressly limited, goes to reasonable extent necessary to meet purpose of search
(Jimeno)
 Withdrawing consent must be verbal and unambiguous (Wantland)
 3rd Party Consent:
o If co-owner consents and D absent, normal guest would likely enter  valid search
(Matlock)
 Can’t purposely remove D from the premises and then get co-owner consent.
 But if you validly arrest D and then co-tenant consents, that’s okay
(Fernandez)
o If co-owner consent and D present + unambiguous, normal guest wouldn’t enter 
invalid search (Georgia)
 EXCEPTION: If the consenting co-owner is superior in some hierarchy.
o If co-owner consents and D asleep (so cops think they had consent)  valid (Rodriguez)

Was this an Arrest?

  Karo: meaningful interference

Was Arrest reasonable?

Warrant Granted
o Same as above: PC + particularity + neutral/detached magistrate

Warrant Executed
o Arrest in public  General rule that arrest in public place is valid if there is PC (Watson)
 If person's arm outside they can catch him as public
 Police can't constructively force them to be in public (ie induce them to come outside)
o Arrest in home  General rule that police may not enter home to make arrest without warrant (Payton)
 4th Amend was meant to protect from presumptively unreasonable warrantless search, not just
general warrant
 Limits:
 For felonies only
 Knock-and-announce = Announce presence, demand admission, be refused
 Daylight arrest
 Stringent probable cause = Reasonable belief that suspect is criminal + suspect in house at time
 EXCEPTIONS: (Minnesota v. Olson)
 (a) hot pursuit of fleeing felon,
 (b) danger to persons of police or others (inside or outside dwelling),
 (c) risk of suspect escape,
 (d) imminent destruction of evidence
 Application:
 Minnesota v. Olson: no PC where D is not murderer (no harm posed), surrounded so no escape
possible, many police around, murder weapon evidence already acquired.
o Arrest in 3 person’s residence  Can't arrest 3rd party for evidence uncovered during search of his house,
rd

when cops only have arrest warrant for primary suspect (Steagald)
 Reasoning: Arrest warrant requirement intended to protect individuals from seizure. Search warrant
requirement only intended to protect individual’s privacy.
 If person arrested in 3rd party apartment -- Question if they have STANDING to move for evidence
suppression

Detention Incident to Arrest

o "Gerstein hearing" (Gerstein v. Pugh)
 Police can detain suspect for limited time w/o warrant.
 Extended detention requires “fair and reliable” judicial determination of PC, either before or promptly
following warrantless arrest.
 No adversarial safeguards; PC hearing can be based on hearsay/written testimony
 Rationale: once suspect in custody, he no longer poses danger of escape (so no exigency)
o Liberty interest
 McLaughlin: PC justification must be provided w/in 48 hours of warrantless arrest

Executing Arrest
o Excessive Force
 1.4% of police interactions involve force or threat. More likely for men, and black people.
 General rule: Arrest is invalid if police use unreasonable excessive force
 All excessive force claims (not just deadly) use reasonableness inquiry (Graham v. Connor)
 Shift toward less rigid standard
 OLD RULE: Unreasonable to use deadly force against fleeing, young, slight, unarmed burglar
(Tennessee v. Garner 1985)
o Deadly force unacceptable unless immediate threat to officer or other
  NEW RULE: Excessive force is a fact-based reasonability analysis (Scott v. Harris 2007)
o Fair for cop to ram car into suspect who was driving recklessly -- "substantial and
immediate" risks of injury to innocents on road
o Custodial arrest based on PC and subsequent search is "lawful" for 4th Amend, even if violating state law
(Virginia v. Moore)

Exception to Warrant?
o City can permit custodial arrest for minor offense. (Atwater – driving kids w/o seatbelt)

5TH AMENDMENT

Forced Confession
 Brown v. Mississippi (Black men forced confession by beating): Coerced confession through torture violates 5 th Amend
through 14th Amend
o Certain things are “fundamental principles of justice” which can’t be circumvented by state law
o Waiver issue
 OLD RULE (Brown): Don’t need to object properly to appeal a fundamental DP violation.
 NEW RULE: Raise the issue properly in objection (not just on appeal) or else waived.
 Reasoning: Judicial efficiency.
 Insane person hearing “voice of God” telling him to confess is valid (Colorado v. Connelly)
o No protection for outrageous behavior of D + suppression only limit on govt action + can’t tell D’s subjective
o Can't expect officers to assess D's subjective motivation for voluntariness
 Hector (A Slave) v. State: Voluntariness is a matter of law to be determined by the court.
 OLD RULE: Only physical violence matters for voluntariness. (Lisenbra)
o DP violation means failure to provide fundamental fairness; Must be fatal effect on trial.
o This was voluntary confession: he wasn't COMPLETELY deprived of counsel (had lawyer between
interrogations), he had control of himself (smart businessman), and not a long period of time.
 NEW RULE: Spano: Non-physical violence matters too. Use Totality of Circumstances test for voluntariness
o Factors: (1) education level, (2) age, (3) class of person - lawyer gets preference, (4) socioeconomic status, (5)
friendship with police, (6) emotional/physical disability, (7) number of officers, (8) length of questioning, (9)
location
o Fulminante: Coerced confession via threat of violence. D was in prison for other crime and informant offered
protection if he confessed to crime.
o Chavez: Suspects have DP right for coerced confession to be admitted as criminal evidence, but Due Process
violation in civil case measured by "shock the conscience" test.

Miranda

TEST:
 5th Amend Right to Counsel
o When it Applies = Custodial interrogation (even pre-indictment, line-up)
 Custodial
 Totality of circumstances = would reasonable person feel they’re not at liberty to terminate the
interrogation and leave (Berkemer)
o Only factors in age of minor if knowing to officer or objectively reasonably apparent
(JDB v. NC)
o Not in custody if suspect gets choice of where to meet (Mathiason)
 Where are we?
o Just being in jail IS NOT custody. (Maryland v. Shatzer)
 Being in separate room is custody.
o Line-up is custody (Innis)
 o Terry stop does not need Miranda (Berkemer)
o Roadside questioning for routine traffic stop isn't a custodial investigation (Berkemer)
 Interrogation
 Any words or actions reasonably likely to elicit an incriminating response (Innis)
o Cops talking to each other in front seat and saying “wouldn’t it be sad if…” is not
interrogation. (Innis)
o Invocation
 Was it EXPRESS?
 Yes = must cease questioning then (Edwards)
o But can still badger him following custodial interrogation
o Waiver knowing/voluntary:
 No Miranda warning? Suppress
 Note: Miranda warning not enough to remove fruit of poisonous tree (eg arrest)
 Partial warning is insufficient (Patane)
 EXCEPTIONS:
o Public Safety (Quarles)
o Admit if D unaware they were speaking to officer (Perkins)
o Can be used to impeach D’s testimony (Harris)
 Unless compelled (Portash)
o Admit if statement from third party via violation (Tucker)
o Physical evidence via violation admissible (Patane)
 Miranda only on second questioning? Apply Elstad/Seibert test
 Not voluntary? Totality of circumstances of violence and non-violence (Spano)
 Can't be used in criminal trial at all, including impeachment (Portash)
 th
6 Amend Right to Counsel
o When it applies = Pre-trial proceedings, trial, sentencing, appeals (Duncan)
 Triggers upon indictment (Powell)
o Invocation
 NO STANDARD – unless you’re in custodial interrogation, police can continue to badger you

 Begins during custodial interrogation (Miranda)

o Custodial = when reasonable person feels they’re not free to leave (Berkemer)
 Berkemer: Roadside questioning for temporary, routine traffic stop isn't a custodial investigation
 Rationale: Temporary, public, nonthreatening – D feels free to leave, closer to Terry
 Maryland v. Shatzer: Just being in jail IS NOT custody.
 Moving person from prison gen pop to secluded room is custody.
 JDB v. North Carolina: reasonable suspect test account for D's age (e.g. 13) only if child's age is known
to officer at time of police questioning or objectively apparent to reasonable officer.
 Mathiason: Not custody when the suspect gets choice of where to meet.
 Miranda applies to line ups (Innis)
o Interrogation = any words or actions reasonably likely to elicit an incriminating response (Innis)
 Rhode Island v. Innis: Cops talking to each other in front seat and saying “wouldn’t it be sad if…” is not
interrogation.
 Includes:
o Right to remain silent (must be adequately and effectively advised of his rights for intelligent exercise)
 If the suspect expressly states they don’t want to talk, questioning must cease
o Anything said can and will be used against him in court (police goal is to trick you)
o Advising that he may request lawyer, at outset (bc 6 th Amend hasn’t started yet)
o Can have lawyer provided if can't afford
 Dickerson v. US: Miranda is a constitutional decision by the Court; cannot be overruled by an Act of Congress.
 Exception for reading Miranda
 o New York v. Quarles: Officers can dispense with Miranda warnings if there is reasonable suspicion of public
safety concern. Admit statements.
 Ex: Frisk on arrest and find empty holster. Ask where the gun is.
o Illinois v. Perkins: If suspect is unaware he's talking to official (ie undercover cop), he doesn't need to have
Miranda warnings.
 Second Statement
o Oregon v. Elstadt: Second statement admissible after 2nd questioning (at HQ) had Miranda warning. Gave first
statement “Yes” upon arrest.
o Missouri v. Seibert: Second statement inadmissible after confession without Miranda in first questioning.
Second questioning was basically continuation of the first. 20 minutes in between.
 Don’t admit b/c: completeness and details of first interview, overlapping content of statements, timing
(20 minutes) and same setting of interviews, continuity of personnel , degree to which interviewer's
questions seemed to be continuation of first interview (e.g. "so we were talking about X, right?")
 Kennedy concurrence determines the test.
o TEST: Is second confession after a Miranda waiver admissible? (Elstad or Seibert)
 (1) Deliberate use of “question first, warn later” tactic to sidestep Miranda? (look at objective facts &
officer’s subjective intent)
 YES  go to #2
 NO admissible (provided no coercion)
 (2) Five factors: is situation more like Elstad or Seibert?
 A. Completeness and detail of Q&As in first interrogation
 B. Overlapping content of statements
 C. Timing and setting of first and second interrogation
 D. Continuity of police personnel
 E. Degree to which questions treated interrogations as continuous
 (3) If more like Seibert, did interrogator take any curative measures?
 If no  second confession is inadmissible.
 Curative measures:
o Substantial breach between 2 contexts
o Additional warning explaining likely inadmissibility of the first statement
o Providing suspect with attorney
 (4) If more like Elstad, then second confession is admissible
 When second questioning is a new/distinct experience
 Waiver
o Government has the burden to prove it was knowing and voluntary (Miranda)
o US v. Patane: Violation to not finish Miranda warnings, despite partial warning and D saying he knows his rights.
o North Carolina v. Butler: Give implicit waiver just by talking; no express statement or writing needed
 Silence + knowing/understanding rights can be waiver.
o Berguis v. Thompkins: Waiver must be (1) knowing + (2) voluntary
 Christian burial speech after informed/understand rights. Answered anyway (“yes”) = implied waiver.
o Moran v. Burbine: Waiver is personal, no need to consult with counsel. (Even if they attempt to contact you)
 Invocation
o Edwards: custodial suspects invocation of right to counsel requires police to cease interrogation until counsel
provided.
 Davis v. US: Invoking right to counsel must be unambiguous for police to be required to stop
questioning
 Berguis v. Thompkins: Staying silent does not amount to invocation.
o Minnick v. Mississippi: A suspect who is not in custody breaks Edwards shield.
o Moran: Attorney can’t invoke on your behalf.
 Violation
o Harris v. New York: Statements taken in violation of Miranda can be used to impeach D's testimony.
 New Jersey v. Portash: Statements that are compelled (“pure” 5 th amend violation) can't be used in
criminal trial at all, including impeachment
o Michigan v. Tucker: Statement made by third party based on Miranda violation are admissible.
 Eg guy gives false alibi without Miranda, later proven wrong.
 o Patane: Physical evidence gathered from Miranda violation is admissible.

6TH AMENDMENT

Statements W/O Counsel

 Duncan v. Louisiana: Right to counsel at each critical stage of criminal process (pre-trial proceedings, trial, sentencing,
appeals), not for post-conviction habeas motion
 Powell v. Alabama: 14th Amend DP guarantees effective counsel, notice, and hearing.
o Counsel given at each critical stage of proceedings (including before trial).
 Critical stages = pre-trial proceedings, trial, sentencing, appeals
 Rationale: Investigation of witnesses, evidence, etc. is crucial for effective counsel
 Note: no right to lawyer upon habeas appeal (post-conviction)
o Counsel attaches automatically. Whether or not D asks for it/can afford
 Must specify the counsel for D. Not enough to just say "all members of the bar" will help, b/c then no
one responsible for prep. Thus not being a zealous advocate
 When it begins
o Begins automatically upon indictment (formal trial proceedings). (Powell)
 Brewer: Triggers at initial appearance before judge; indictment.
 Invocation
o Massiah: After indictment and invocation of counsel (even on bail), deliberate attempt by police to elicit
statement from D without his counsel is violation.
 Brewer: Deliberate elicitation is subjective test.
o McNeil v. Wisconsin: Invocation of 6th Amend does not automatically invoke 5 th Amend
o 5th Amend Invocation (Edwards): After unambiguous invocation, may not be questioned again until lawyer
 Whether or not accused actually consulted with lawyer
o 6th Amend Invocation: NO STANDARD.
 If still in custodial interrogation, Edwards rule still applies and questioning must stop.
 If not in custodial interrogation and requests right to counsel, interrogation doesn't need to
immediately stop.
 Jailhouse snitch cases
o U.S. v. Henry: Statements made by suspect in custody to informant cannot be admitted at trial.
o Kuhlmann v. Wilson: Don’t need to suppress if the informant just listened passively, rather than eliciting
statements.
o Maine v. Moulton: Evidence obtained during process of eliciting info from suspect about crime (in violation of
6th Amend) can be admissible, but only if they pertain to some other issue. Offense specific.
 Violation:
o Kansas v. Ventris: D’s incriminating statements, elicited in violation of his Sixth Amendment right, are still
admissible at trial for the limited purpose of impeaching the defendant.
 Waiver
o Brewer: undermined by Montejo
o Patterson v. Illinois: If the accused “knowingly and intelligently” initiates a conversation and waiver 6th Am.
Rights, statements may be used at trial.
 Written waivers given in Miranda stage may carry over to waiver for 6th Am. privileges. No need to
mention anything special about it being a 6th Am. right.
o Montejo: Even if D invoked right to counsel, if outside custodial interrogation (5 th Amend shield) then police can
keep badgering the suspect and he can then waive by talking.
 McNeil v. Wisconsin: 6th Amend rights are offense specific (Can ask about other crimes)
 Texas v. Cobb: Blockburger test. Offenses are only the same when elements of one offense are
NECESSARILY included in the elements of another offense.
 Eg proving murder does not necessarily prove robbery

Eyewitness ID
 US v. Wade: Suspects are entitled to the aid of (substitute) counsel during pre-trial lineups.
o Triggered the same way as normal 6th Am. (Beginning of adversarial procedures)
o Can be waived
o Court-room identification may be admitted if doesn't rely upon the prior lineup that occurred in violation of
6th Am (state burden, clear and convincing evidence)
 Factors: (1) Prior opportunity to observe the criminal at, (2) discrepancy between pre-lineup
description and the actual description, (3) identification of another person prior to the lineup, (4) prior
identification by picture, (5) Failure to identify defendant on a prior occasion, (6) Lapse of time
between the act and the lineup, and (7) Acts committed during the lineup
 Eyewitness testimony can be unrealiable bc (a) people see what they want to see, (b) cross-racial identification is
unreliable, (c) memory decays over time, (d) people stick to initial identification even if wrong
 Kirby v. Illinois: police may conduct an identification outside the presence of counsel before a suspect has been
formally charged with a crime.
 US v. Ash (1973) -- Wade-Gilbert rule doesn't apply to photographic displays, even if such procedure occurs after formal
criminal proceedings have commenced

Indignant D
 Gideon v. Wainright: Must give counsel even to indignant Ds.
o For capital (Powell) and non-capital (overturns Betts) cases

Effective Counsel
 Strickland: To show that counsel was ineffective, D must satisfy two prongs:
o (a) Deficient Performance = below objective standard of reasonableness (prevailing professional norms)
 Any sound trial strategy is sufficient, virtually unchallengeable as long as “thorough investigation” of
law and fact
o (b) Prejudice = sentencing would have been different BUT-FOR counsel’s errors
 Totality of circumstances = if close case, any error could have impacted sentence
 Kimmelman v. Morrison (lawyer fails to do discovery or motion for suppression): starling ignorance of law is actionable
—if counsel didn’t research the law = ineffective assistance of counsel
 Padilla v. Kentucky: Ignorant of law again. Counsel must counsel D of collateral consequences.
o D's lawyer assures D that his status in US is not a problem. But D actually auto deported by confessing to drug
crime. Clear deportation consequence was clear.
 Hinton v. Alabama: deficient performance was not hiring the wrong expert; it was the inexcusable mistake of law—the
unreasonable failure to understand the resources that state law made available to him—that caused counsel to employ
an expert that he himself deemed inadequate
o D tried for two murders; the critical and only evidence against him was the testimony of the state forensics
expert that the bullets that killed the victims came from D’s gun.
o Held: The defense lawyer’s failure to request additional funding to replace an expert he knew to be inadequate
b/c he mistakenly believed that he had received all he could get under AL law constituted deficient
performance 

Mass Incarceration
 Four Theories on why Mass Incarceration Disparity is Shrinking (WaPo Article, “Mass Incarceration Mystery”)
o Crime, arrests, and incarceration are declining overall
o War on crime has shifted from crack/marijuana to meth/opiods
o Middle class population is shrinking, even for white people (so more criminal justice involvement)
o Reform is happening, but mostly in cities (where black people are)
 Forman book review of Butler – how race affects 4th Amend
o Poor people share housing = impacts 4 Amend privacy
o High-crime area = greater reasonable suspicion for Terry (Wardlow)
o SCOTUS reflects wealthy people’s opinions of reasonableness
o Rich people know their rights better
 o Poor people less likely to report crime, so more overpoliced. Prison makes them more violent
 Last article
o 1 in 5 Americans have felony conviction
o US is 5% of world popl, but 25% of prison popl