Chapter 1: The Criminal Process: Failures, Choices, and Legitimacy

A. Failures
1. Introduction
 The Ninth and Tenth Amendments specifically reserved rights and powers to
the people and the States
 In Bram v. US, the Court held in a federal case that “any degree of influence”
on a prisoner made his confession inadmissible as a matter of federal law. In
Bram, the Court found “that an influence was exerted, and, as any doubt as to
whether the confession was voluntary must be determined in favor of the
accused, we cannot escape the conclusion that error was committed by the
trial court in admitting the confession under the circumstances disclosed by
the record.”
2. Investigation Failures
 Brown v. Mississippi- The Due Process Clause of the Fourteenth Amendment
requires that state action be consistent with fundamental principles of liberty
and justice.
 Case centers on two prisoners who were beaten physically by local authorities
to give a confession for the crime. The state courts held that it was permissible
to use the confessions as evidence despite them resulting from torture. The
issue went to the Supreme Court where the Court found to reverse the
conviction of the state courts holding that the use of the confessions as a result
of torture is a violation of the fourteenth amendment and the due process.
B. The Norms of the Criminal Process
 Modern judges tend to cloak their foundational views in other languages:
 Accuracy- legitimacy, truth finding, justice, legal understanding and law
 Fairness- truth finding function, bias, procedure (also serves to limit
government engagement)
 Reliability-
 Efficiency-

Chapter 2: Fourth Amendment: An Overview

A. THE TEXT AND ITS MYSTERIES
 Reach of the 4th:
 Who are the people? "the people" found in the 4th Amend "refer to a class
of persons who are part of a national community or who have otherwise
developed sufficient connection with this country to be considered part of
that community."--Verdugo-Urquidez, 494 U.S. 259
 No protection if not "the people"
 Private actors
o 4th amend only limits governmental action
o Does not reach private searches and seizures

1
 o BUT the 4th is implicated if the police instigate or participate in a
search or seizure
 Birth of Exclusionary Rule
 CL viewed remedy to unreasonable search/seizure to be civil trespass suit;
but the evidence could still be admitted and used to convict
 4th amendment only protects against Fed actors
 14th amendment only protects against State actors
B. THE REACH OF THE FOURTH AMENDMENT
 Individuals who are American citizens living in the US is covered by the 4th, an
individual who is a noncitizen living abroad are not protected by the 4th
 A seriously splintered Court held that Verdugo-Urquidez held that the 4th does not
protect the search and seizure of property on foreign land that belongs to a
nonresident who is only briefly on American soil
 Someone cannot reject the search and seizure if it was conducted by a private
party and handed over to the cops
 The Supreme Court found that the 4th only limits governmental action. It does not
reach private searched or seizures. Consequently, the 4th is not violated if a
landlord searches her tenant’s possessions, or an airline employee searches
luggage, or a private company monitors telephone calls of its employees without
their knowledge.
 On the other hand, the amendment is implicated if the police instigate or
participate in a search or seizure, such as when an officer requests a landlord to
search through her tenant’s belongings or assists in the process, or if Best Buy
repair shop employees are paid by the FBI for reporting signs of child
pornography on computers they are preparing for customers.
C. THE BIRTH OF THE EXCLUSIONARY RULE
 Weeks v. United States (1914)- The United States and federal officials are prohibited
from executing unreasonable searches and seizures upon people. This does not apply to
state officials.
 Exclusionary rule- illegally obtained evidence (taken without a warrant by feds)
cannot be used in a case as evidence
 Silver Platter Doctrine- exclusionary rule only applied to feds, so local authorities
could conduct unreasonable searches and seizures and give the evidence to feds
 In Byars v. US, however, the Court ruled that this “silver platter” doctrine did not
apply to evidence obtained unlawfully during a search that “in substance and
effect” was a joint state-federal venture
 Wolf v. Colorado (1949)- It is a violation of the Due Process Clause of the Fourteenth
Amendment for state actors to gather evidence through unreasonable searches and
seizures, but such evidence need not be excluded from state criminal proceedings.
 Rule: It is a violation of the Due Process Clause of the Fourteenth Amendment for
state actors to gather evidence through unreasonable searches and seizures, but
such evidence need not be excluded from state criminal proceedings 14th amend

2
 does not forbid the admission of evidence obtained by an unreasonable search and
seizure
 Mapp v. Ohio (1961)- Evidence obtained through an unreasonable search and seizure in
violation of the Fourth Amendment is inadmissible in state criminal proceedings.
 Facts: Officers attempted to enter the dwelling of Mapp to search for a suspect
tied to a bombing and gambling. Mapp refused to allow entry by police unless
they had a warrant. Police gathered more officers and forced their way in, waiving
around what they claimed to be a search warrant. Mapp grabbed the paper and
shoved it into her shirt; officers then tried to force Mapp into giving back the
warrant. Officers continued to search the dwelling and in the basement found a
trunk containing obscene materials. Officers then arrested Mapp for being
knowingly in possession of obscene materials; the materials were admitted to
evidence and used to convict. No search warrant was ever presented in court
 Rule: All Evidence obtained by searches and seizures in violation of the
Constitution is inadmissible in a state court
 Reasoning: Majority, Clark: "conviction by means of unlawful seizures and
enforced confessions should find no sanction in the judgments of the courts, and
that such evidence shall not be used at all" Time has passed and more states have
adopted Weeks since the Wolf ruling; no other state remedies were effective.
Since the 4th amendment's right of privacy has been declared enforceable against
the States thru the Due process clause of the 14th, it is enforceable against them
by the same sanction of exclusion as is used against the Federal gov't. Without it,
Weeks would be meaningless. It was logically and constitutionally necessary that
the exclusion doctrine--an essential part of the right to privacy--be also insisted
upon as an essential ingredient of the right newly recognized by Wolf. The Court
itself recognized that the purpose of the exclusionary rule is to deter--to compel
respect for the constitution guaranty in the only effectively available way--by
removing the incentive to disregard it. Court has not shied away from strictly
enforcing against the states as it does the fed gov't the rights to free speech, press,
right to notice and to fair public trial, including, the right not to be convicted by
use of a coerced confession. Just common sense. The State, by admitting evidence
unlawfully seized, serves to encourage disobedience to the Federal Constitution
which it is bound to uphold. Our decision, founded on reason and truth, gives to
the individual no more than that which the Constitution guarantees him.

Chapter 3: Passing the Threshold of the Fourth Amendment

The Fourth Amendment does not prohibit all unreasonable law enforcement practices. As far as
the Fourth Amendment is concerned, a police officer may act as arbitrarily or unreasonably as
she wants, as long as she does not conduct a search or seizure; and, even searches and seizures
are unregulated by the Fourth Amendment unless the police search or seize a “person”, “house”,
“paper”, or “effect”.

3
A. WHAT IS A “SEARCH”?
1. From Trespass to Privacy
 IMPORTANT: A search does not occur unless the government is responsible for the
conduct.
 There is no reasonable expectation of privacy in information voluntarily conveyed to
another. If the government obtains that information, it has not conducted a Fourth
Amendment search.
 Applications: Snitches: White, Hoffa; Business Records: Bank Records (Miller)
 Is the government’s conduct a search?
 Identify the particular challenged government conduct. What exactly did the
government do that defendant argues is a search?
o EXL: Smith v. Maryland: Smith says the installation of the pen register is
a search.
 Apply the Katz Test: Both steps must be met.
o A person must exhibit an actual (subjective) expectation of privacy; and
 Does Smith have an actual, subjective expectation of privacy in his
phone numbers? The Court doesn’t seem to think so because: (1)
people convey the numbers to the phone company; and (2) the
phone book indicates that the company can install a pen register.
Even though Smith was in his own home, the Court disagrees that
he had an expectation because he still had to dial the numbers.
 BUT: Courts do typically credit an expectation of privacy unless
it’s really odd.
o The expectation is one that society is prepared to recognize as reasonable
(objective).
 Even assuming Smith had a subjective expectation of privacy in
the numbers he dialed, this is not reasonable because there is no
REP in information that a person voluntarily turns over to third
parties. (White, Miller).
 If the claim fails any of the steps, then there is no search and the Fourth
Amendment does not apply.
o Because Smith had no REP in the numbers and it’s not one society will
recognize as reasonable, the installation of the pen register was not a
search.
 Katz v. United States (1967)- The Fourth Amendment prohibition against unreasonable
searches and seizures of physical items extends to recordings of oral statements.
 Justice Stewart, using oft-quoted language, stated the rule that “searches
conducted outside the judicial process, without prior approval by judge or
magistrate (i.e. in the form of a search warrant) are per se unreasonable under the
Fourth Amendment-subject only to a few specifically established well-delineated
exceptions”.

4
  Justice Harlan (KATZ) Test: There must be some exhibited expectation of
privacy (subjective) and the expectation to privacy must be reasonable to
society (objective).
 In Berger v. New York (1967), the Supreme Court declared a New York
wiretapping statute unconstitutional because it permitted law enforcement officers
to obtain a judicial order to conduct electronic surveillance without particularizing
the crime being investigated and the conversations they expected to hear; the
statute also improperly permitted surveillance of all of the suspect’s conversations
for sixty days on the basis of a single showing of probable cause; and the court
order did not require the police to stop surveillance once the conversation they
sought were “seized”.
2. The KATZ Doctrine: What does “Privacy” Really Entail?
 United States v. White (1971)- The Fourth Amendment right against unreasonable
searches and seizures does not protect people from their misplaced expectations of trust
and therefore there is no Fourth Amendment search and seizure when the person the
defendant is speaking with is secretly a government agent or an informant wearing a wire
and recording what is being said.
 The theory is that the contents of the mind, deliberately revealed to another
person, are willingly shared, while the secret eye or ear, possibly electronically
enhanced, bypasses constitutional concern to spirit the evidence away. The more
effort and enhancement that is needed to “overhear” conversations, the more like
a warrant is needed to obtain and use it as evidence.
 Smith v. Maryland (1979)- A person has no legitimate expectation of privacy in
information that the person voluntarily turns over to third parties.
 Justice Stewart announced in KATZ that what a “person knowingly exposes to the
public” is unprotected by the Fourth Amendment. Justice Marshall in his dissent
in Smith says that “privacy is not a discrete commodity, possessed absolutely or
not at all”.
Other Important Post-Katz Cases
 “Dog Sniffs”
 Official Conduct that does not “compromise any legitimate interest in privacy” is
not a search subject to the 4th Amendment. We have held that any interest in
possessing contraband cannot be deemed “legitimate”, and thus, governmental
conduct that only reveals the possession of contraband “compromises no
legitimate privacy interests.”
 “Open Fields” vs “Curtilages”
 “Houses” have been interpreted to include, “offices and stores and other
businesses and commercial premises”
 In Hester v. US (1924), the Supreme Court first enunciated the so-called “open
fields” doctrine, which provides that police entry of an open field does not
implicate the 4th Amendment. In Oliver v. US (1984), the Court held that this
doctrine remains good law after Katz.

5
  What is an “open field”? According to Oliver, it “may include any unoccupied or
undeveloped are outside of the curtilage [of a home]. An open field need be
neither “open” nor a “field” as those terms are used in common speech. For
example, a thickly wooded area nonetheless may be an open field as that term is
used in construing the 4th Amendment”
 In Hester, we concluded that the government’s intrusion upon the open fields is
not one of those “unreasonable searches” proscribed by the text of the 4th
Amendment.
 Five Justices also concluded that entry of an open field does not constitute a
“search” within the post-Katz meaning of that concept.
 As Justice Holmes, writing for the Court, observed in Hester, the common law
distinguished “open fields” from the “curtilage”, the land immediately
surrounding and associated with the home. The distinction implies that only the
curtilage, not the neighboring open fields, warrants the 4th Amendment protections
that attach to the home. At common law, the curtilage is the area to which extends
the intimate activity associated with the “sanctity of a man’s home and the
privacies of life,” and therefore has been considered part of the home itself for 4th
Amendment purposes.
 In US v. Dunn (1987), the Court stated that “curtilage questions should be
resolved with reference to four factors: the proximity of the area claimed to be
curtilage to the home, whether the area is included within an enclosure
surrounding the home, the nature of the uses to which the area is put, and the steps
taken by the resident to protect the area from observation by people passing by.”
 Aerial Surveillance of Curtilages
 Even if police surveil the curtilage, provided they engage in this surveillance from
a “lawful vantage point” they are not conducting a search.
 California v. Ciraolo (1986): Targeted police observation of Ciraolo’s fenced
backyard from the air is not a search. Although Ciraolo had a subjective
expectation of privacy, this expectation was not reasonable because any member
of the public could have observed the yard.
 Florida v. Riley (1989): Plurality concludes that hovering a helicopter over
Riley’s greenhouse to look through a broken roof tile is not a search based in part
on FAA regulations and the impact of the helicopter surveillance.
 The Court, per Chief Justice Burger, declared, 5-4, that the surveillance of the
curtilage of the defendant’s home was not a search.
 Under the holding in Ciraolo, Riley could not reasonably have expected the
contents of his greenhouse to be immune from examination by an officer seated in
a fixed-wing aircraft flying in navigable airspace at an altitude of 1,000 feet or at
an altitude of 500 feet, the lower limit of the navigable airspace for such an
aircraft.
 Open Fields
 Typically an unoccupied or undeveloped area outside the curtilage (not always
literally a field).

6
  Even if “no trespassing” signs are posted, police entry to open fields is not a
search.
 Curtilage: the area immediately associated with the home: intimate activities associated
with the sanctity of home and private life (“white picket fence”). Entry in the curtilage
may constitute a search.
 How to figure out the difference between curtilage and open fields: Dunn Factors
 Proximity of the area claimed to be curtilage of the home
 Is the area included in an enclosure surrounding the home?
 The nature of the uses to which the area is put
 Steps taken by the resident to protect the area from observation of passers by.
 And, How About Your Garbage?
 In California v. Greenwood (1988), the Court ruled that a person does not have a
reasonable expectation of privacy in garbage left outside the curtilage of a home
for trash removal.
 Hence, “what a person knowingly exposes to the public, even in his own home or
office, is not a subject of 4th Amendment protection.”
 There is no reasonable expectation of privacy in garbage left outside the curtilage
of the home for trash pick up because anyone could look through the trash.
3. KATZ AND THE CHALLENGE OF THE NEW TECHNOLOGY: THE DAWN OF
A THIRD HISTORICAL PERIOD
 Putting the Issues in Context
 Justice Stewart, speaking for the Court, announced that “what a person knowingly
exposes to the public is not subject to 4th Amendment protection. But what he
seeks to preserve as private, even in an area accessible to the public, may be
constitutionally protected.”
 Kyllo v. US (2001)- Law enforcement's use of sense-enhancing technology to see details
of a private home that would not be discoverable without physically entering the home
constitutes a Fourth Amendment search.
 US v. Jones (2012)- The warrantless placement of a GPS tracking device on the
undercarriage of an individual’s vehicle in order to track the person’s movements on
public streets constitutes an unlawful search in violation of the Fourth Amendment.
 Scalia’s Test: there has to be some physical trespass or occupation on private
property and there needs to be collection of information
 Search can be found in one of two ways: KATZ test or physical intrusion for
purposes of (Jones) obtaining info
 Carpenter v. US (2018)- Compelling wireless carriers to turn over data that tracks users’
movements for long periods of time requires a warrant, absent exigent circumstances.
 Police need to get a warrant if they want to get the phone or cell records of an
individual for more than 7 days
 Florida v. Jardines (2013)- Using a drug-sniffing dog on a homeowner's porch to
investigate the contents of the home is a search within the meaning of the Fourth
Amendment.
B. WHAT IS A “SEIZURE”?

7
 Seizure of Property:
 A seizure of property occurs when the government engages in a meaningful
interference with an individual’s possessory interests in that property. Things the
police can seize: (1) Contraband; (2) Fruits of a Crime; (3) Instrumentalities used
in the commission of the offense; and mere evidence.
 Seizure of Persons
 Test: “When the officer, by means of physical force or show of authority has in
some way restrained the liberty of a citizen”
 Arrests, Temporary Detention Arrests, Temporary Detention
 US v. Karo (1984)- (1) A party unknowingly receiving a container containing a tracking
device does not constitute a Fourth Amendment seizure. (2) The continued monitoring of
a tracking device inside multiple private places constitutes a Fourth Amendment search.
 Objects subject to seizure. Law enforcement officers may seize what they have
probable cause to believe is criminal evidence. Three categories of seizable items
are: (1) contraband (evidence that may not lawfully be possessed by a private
party); (2) fruits of a crime; and (3) instrumentalities used in the commission of an
offense (e.g., a weapon, an automobile for the get-away, etc.).
 A fourth category of property is so-called “mere evidence”, i.e., an item of value
to the police solely because it will help in the apprehension or conviction of a
person for an offense. An example is a blood stained shirt in a homicide
investigation.
 Today (assuming sufficient grounds to do so) the police may seize contraband,
fruits of a crime, criminal instrumentalities, as well as “mere evidence” (evidence
that “will aid in particular apprehension or conviction”).
 According to the Supreme Court, “the quintessential ‘seizure of the person’ under
our 4th Amendment jurisprudence” is an arrest.
 Although an arrest is the “quintessential” seizure of a person, a person can be
“seized” for 4th Amendment purposes short of an arrest. In Terry v. Ohio (1968),
the Court stated that a seizure occurs “when the officer, by means of physical
force or show of authority has in some way restrained the liberty of a citizen”.
Even temporary detention of a person by an officer constitutes a 4th Amendment
seizure.

Chapter 4: The Substance of the Fourth Amendment

A. Probable Cause
 A search or seizure conducted in the absence of probable cause ordinarily is considered
an unreasonable one. As the Court has put it, “probable cause” is the “traditional
standard” of the 4th Amendment.
 Probable cause to arrest “exists where ‘the facts and circumstances within [officers’]
knowledge and of which they [have] reasonably trustworthy information [are] sufficient
in themselves to warrant a man of reasonable caution in the belief that “an offense has
been or is being committed” by the person to be arrested. The same definition applies to

8
 “probable cause to search,” except that the italicized language is replaced with “evidence
subject to seizure will be found in the place to be searched.”
 Procedurally, the issue of probable cause typically arises in one of two circumstances.
First, the police may apply to a magistrate for an arrest or search warrant. As the text of
the 4th Amendment requires, warrants, may only be issued if there is probable cause to
make the arrest or conduct the search. Therefore, the police must set out for the
magistrate, under oath, the information in their possession that they believe justifies
insurance of the warrant, i.e., the facts that constitute probable cause for the arrest or
search.
 Spinelli v. US (1969)- An affidavit that lacks sufficient detail to explain why an
informant is reliable and how he came to his conclusions does not provide the necessary
probable cause to obtain a search warrant.
 Whether the magistrate is dealing with a primary, a secondary or even,
theoretically, a tertiary source, he must still (1) assess the credibility of that source
(basis of knowledge: how did they get the information) and (2) then weigh the
information furnished if he believes it to be true (veracity of the informant: why
trust the information? Credibility? Reliability?).
 In other words, a magistrate must first determine whether to consider the evidence
provided to her by the police and any informant. Second, if she does consider the
evidence, she must determine whether the evidence amounts to probable cause.
 When a police officer randomly used a “well-trained narcotics-detection dog” to
sniff the exterior of the trunk of the defendant’s vehicle, this did not constitute a
search. But, that non-search supposedly gave the police probable cause to search
the trunk of the vehicle. How can this be? In essence, that dog constituted a four
legged informant.
 A dog sniff is not a search but it can be probable cause for a search.
 If the basis for probable cause is information from an anonymous informant, must
provide:
o Basis of knowledge (How did the informant get the information?)
o Veracity of the informant (Why trust the informant? Credibility?
Reliability?)
 Illinois v. Gates (1983)- A warrant application satisfies the Fourth Amendment probable
cause requirement so long as it establishes a substantial basis for concluding that a search
will uncover evidence of wrongdoing.
 Probable cause is objective
 Consider staleness: when was the information gathered and when did the police
finally take action on that information (the distance between when the information
was received and when the warrant was given)
 If there is no probable cause in a warrant then it is not valid
 In McCray v. Illinois (1967), the Supreme Court ruled that the due process clause
does not require a judge in every probable cause or evidence-suppression hearing
to compel disclosure of the informant’s identity.

9
  The 4th Amendment provides that warrants, founded on probable cause, must be
“supported by Oath or affirmation.” The Supreme Court held in Franks v.
Delaware (1978), that in view of this requirement, a defendant may challenge the
truthfulness of statements made under oath in an affidavit supporting a warrant
under limited circumstances.
 Franks does not authorize a special hearing if a defendant claims that the
informant lied to an innocent affiant.
 In order to provide the police with an incentive to seek warrants, the Supreme
Court has stated that “the resolution of doubtful or marginal cases [of probable
cause] should be largely determined by the preference to be accorded to
warrants.” In other words, in close cases, a search pursuant to a warrant may be
upheld where, without one, it would not be.
 How probable is “probable cause”? Gates eschewed the quantification of any
“precise degree of certainty corresponding to ‘probable cause’”. The Court has
stated, however, that the standard does not “demand any showing that such a
belief be more likely true than false.”
 A “sliding scale” of probable cause? In Schmerber v. California (1966), the
Supreme Court observed that the taking of a blood sample from a motorist
arrested for drunk driving, because it involves an intrusion into a human body, is a
more offensive type of search than the ordinary type and, therefore, requires “a
clear indicative that in fact such evidence [of intoxication] will be found.” One
can interpret this latter language as, perhaps, requiring “probable cause plus,” i.e.,
a heightened degree of likelihood of discovering evidence when the police wish to
conduct such a hyper-intrusive search. And, indeed, in Winston v. Lee (1985), a
case in which the police sought a warrant to compel a surgical intrusion into a
suspect’s body in order to seize a bullet that might incriminate him, the Court
stated that “when the State seeks to intrude upon an area in which our society
recognizes a significantly heightened privacy interest, a more substantial
justification is required” to authorize such a search.
 Probable cause as an objective concept. Therefore, as will be developed more
fully later, the Supreme Court has stated that an officer’s “state of mind (except
for the facts that he knows) is irrelevant to the existence of probable cause.” As
the Court in Devenpeck, an arrest is lawful, even if an officer incorrectly believes
he has probable cause to arrest a person for Crime A (and, therefore, makes such
an arrest), if based on the facts known to the arresting officer, probable cause
objectively exists to arrest for Crime B.
 Texas uses Gates
B. ARREST WARRANTS
 Payton v. New York (1980)- Absent exigent circumstances, the police may not enter a
person’s home to make an arrest without a warrant.
 Justice Stevens states that it is a “basic principle” of the Fourth Amendment “that
searches and seizures inside a home without a warrant are presumptively
unreasonable”.

10
  Proceedings after a warrantless arrest: a “Gerstein hearing”. Most arrest occur
outside a private residence. Therefore, in light of United States v. Watson,
warrantless arrests are exceedingly common. This means that a police officer, and
not a neutral and detached magistrate, usually makes the initial probable cause
determination. Does this mean that an arrestee may be required to remain in
custody pending trial without any judicial determination that the arrest was
lawful? No, the Supreme Court ruled in Gerstein v. Pugh (1975): A defendant
charged with a crime by information may not be detained for an extended period
of time without a judicial determination of probable cause.
 In order to satisfy the Gerstein timelessness requirement, a jurisdiction must
provide a probable cause determination within 48 hours after a warrantless arrest,
absent a bona fide emergency or other “extraordinary circumstance.”
 Arrests in a third person’s residence: the Steagald principle. Absent consent or
exigent circumstances, the Fourth Amendment prohibits law enforcement from
searching for the subject of an arrest warrant in a third party’s home without first
obtaining a search warrant.
 The Fourth Amendment is relevant in this regard. An arrest constitutes a seizure
of the person, and the Fourth Amendment prohibits unreasonable seizures. This
means that an arrest is constitutionally unreasonable, even if an arrest is based on
probable cause, if it is executed in an excessive manner.
 Exigent circumstances require a determination of all facts & circumstances known
to the officers at the time of their action, not just the particular offense. TRAP: Do
not fall for an argument that exigent circumstances exist because the crime at
issue is a serious one. Similarly, do not rule out exigent circumstances if the
primary basis is a serious crime. Look at everything.
 Graham v. Connor: “The ‘reasonableness’ of a particular use of force must be
judged from the perspective of a reasonable officer on the scene, and its calculus
must embody an allowance for the fact that police officers are often forced to
make split-second decisions about the amount of force necessary in a particular
situation.”
 Tennessee v. Garner: If a suspect poses no threat to officer or others, deadly force
is not justified for apprehension.
 Scott v. Harris: No unreasonable use of force when officer rammed suspect’s car
to end a high-speed chase due to risk of injury to other drivers and people on the
road.
C. SEARCH WARRANTS
1. The Constitutional Debate
 The Fourth Amendment contains two clauses. The first one (the reasonableness clause)
declares a right to be free from unreasonable searches and seizures of persons, houses,
papers, and effects. The second clause, the “warrant clause,” sets out the requirements of
any valid warrant (that it be supported by probable cause, and that it particularly
described “the place to be searched, and the persons or things to be seized”).

11
 If the warrant clause does not inform the reasonableness clause-that is, if there is no
Fourth Amendment “warrant requirement”
2. Elements of a Valid Search Warrant
 Warrants must meet constitutional specifications. They must be based on
probable cause and supported by oath or affirmation.
 A warrant cannot leave items to be seized to the discretion of the individuals
carrying out a search.
 Warrants need to have the “things to be seized” filled out before they are
issued, not as one goes along OR filled in while the search is happening.
 Particularity:
 Officers should list everything they are looking for in a search warrant.
They will need to articulate probable cause that the items are likely to
be found where they look.
 Andresen: Read warrants in context. “Other fruits, instrumentalities, and
evidence of crime at this time unknown” is NOT a blank check, but only
relates to search & seizure of evidence related to the crime under
investigation.
 Warrants can be construed with reference to the application OR affidavit,
provided the warrant incorporates the documents AND the supporting
documents are attached to the warrant.
 Lo-Ji Sales, Inc. v. New York (1979)- A warrant must be issued by a neutral
and detached magistrate, based upon probable cause, supported by an oath or
affirmation, and it must describe the place to be searched and the person or
thing to be seized.
 The warrant particularity requirement. This requirement is intended to
prevent general searches, as well as to prevent “the seizure of one
thing under a warrant describing another.”
3. Execution of a Search Warrant
 In Wilson v. Arkansas (1995), the Supreme Court ruled that the Fourth
Amendment prohibition on unreasonable searches and seizures contains an
implicit knock-and-announce norm previously embedded in the common law.
However, the Court warned that “this is not to say, of course, that every entry
must be preceded by an announcement. Without “attempting a comprehensive
catalog” of exceptions to the requirement, Justice Thomas suggested that the
knock-and-announce does not apply under circumstances presenting a threat
of physical violence. Similarly, courts have held that an officer may dispense
with announcement in cases where a prisoner escapes from him and retreats to
his dwelling. Proof of “demand and refusal” was deemed unnecessary in such
cases because it would be a “senseless ceremony” to require an officer in
pursuit of a recently escaped arrestee to make an announcement prior to
breaking the door to retake him. Finally, courts have indicated that
unannounced entry may be justified where police officers have reason to
believe that evidence would likely be destroyed if advance notice were given.

12
 Entries: Reasonableness of waiting time before forcing entry with a warrant
after knocking is fact-dependent (what did the officers know at the time of
entry?) 15-20 seconds has been reasonable (United States v. Banks).
 Not allowed: Knocking & announcing while breaking the door down.
 Police may temporarily seize property and persons while waiting for another
officer to get a warrant. (Illinois v. McArthur). Reasonableness: Look at the
amount of time needed to get a warrant (did officer act with appropriate
promptness?) & the nature of the intrusion (what were officers at the scene
doing?). (Factual analogy comparison needed here)
 Police may search containers large enough to hold the evidence they are
looking for. This is determined by the items they are looking for (which
should be listed on the warrant).
 Officers executing a warrant can seize items not listed in the warrant IF they
have probable cause to believe it is something they can seize. The officers
must find the items in the course of the warrant and must be acting within the
scope of the warrant.
 Officers may need to stop a search or narrow their search as they learn new
information. Pay attention to what officers knew and when they learned it.
(Maryland v. Garrison)
 Officers can get warrants to search a person or obtain samples of DNA, blood,
hair, saliva, etc.
 Officers may not search every person at the location where they are executing
a search warrant (unless those persons are specifically named) even if those
persons may have evidence. (Ybarra). IF police want to search a person at the
scene, they must have independent probable cause to search that person AND
they must satisfy a warrant exception.
 Ways to attack warrants:
 Is there a neutral & detached magistrate?
 Is there adequate probable cause described in the warrant affidavit?
 Is the warrant sufficiently particular, in that it describes what the
police are looking for and where they may look?
 How did the police execute the warrant?
 Warrant exception overview:
 Exigent circumstances: Hot Pursuit, Imminent Destruction of
Evidence, Risk of danger to police/others
 Searches Incident To a Lawful Arrest (SITLA): General Concepts
(today), Vehicles (coming up), Pretextual Stops (coming up)
 Richards v. Wisconsin (1997)- The Fourth Amendment’s reasonableness
requirement incorporates the common law rule that police entering a home
must knock and announce their identity and purpose before attempting
forcible entry, unless exigent circumstances exist and to do so would
undermine law enforcement interest.

13
 After knocking and announcing their presence, how long must the
police wait before their forcibly enter a residence and execute a
warrant? Exigent circumstances exist for forced entry after enough
time has passed to make it reasonable to suspect imminent loss of
evidence. Such as entering an apartment after knocking and receiving
a 15 to 20 second response because the police where there to search
for cocaine and that time was reasonable since the evidence could have
been destroyed.
 Does it matter to the analysis that the police entry required them to
damage property? The Court explained that where, as here, an
exigency justifies immediate forcible entry, the police “may damage
premises so far as necessary for a no-knock entrance without
demonstrating the suspected risk in any more detail than the law
demands for an unannounced intrusion simply by lifting the latch.”
However, the Court suggested that in some circumstances damage to
property could be relevant to the reasonableness of an entry to execute
a search warrant. Specifically, when immediate entry is not required as
a result of an exigency, “the reasonable wait time” before causing
damage to enter “may well be longer” than if the door to the house is
open and they can enter without damaging the residence: suffice it to
say that the need to damage property in the course of getting in is a
good reason to require more patience than it would be reasonable to
expect if the door were open.
 By not allowing residents to enter their property, the police had
effectively seized the premises without a warrant. Justice Breyer
explained that a restriction is reasonable if the following circumstances
are met: probable cause, good reasonable belief that evidence would
be destroyed if they entered, reasonable effect to balance law
enforcement and personal privacy, and restraint from property has a
time limit
 Executing a warrant after entry: the scope of the search of the
premises. Once officers are lawfully on premises to execute a warrant,
various search principles apply. First, the police may search containers
large enough to hold the criminal evidence for which they are
searching. Second, while officers execute a search warrant, they may
seize an object not described in the warrant, if they have probable
cause to believe it is a seizable item (contraband, or a fruit,
instrumentality or evidence of a crime). Third, information that
becomes available to officers immediately before or during the
execution of a warrant may require them to cease or narrow their
search, notwithstanding the dictates of the warrant.
 Searching persons during the execution of a warrant. A warrant may
authorize the search of a person, but it should be explicit. A warrant to

14
 search a home or other premises does not provide implicit authority to
search persons found at a scene, even if the criminal evidence for
which the police are looking might be on them.
 Ybarra does not stand for the proposition that police officers may
never search persons coincidentally at the scene during a warranted
search. However, the police must have independent probable cause to
search the person (“a person’s mere propinquity to others
independently suspect of criminal activity does not, without more, give
rise to probable cause to search that person”), as well as some
justification for conducting the search without a warrant, i.e., they
must be able to point to an exception to the “warrant requirement”.
 Seizure of persons during warranted searches. Although the police
may not automatically search persons present at the scene during the
execution of a search warrant, the Supreme Court announced a bright
line rule in Michigan v. Summers (1981), regarding seizure of persons
in such circumstances: “A warrant to search a residence for contraband
founded on probable cause implicitly carries with it the limited
authority to detain the occupants of the premises while a proper search
is conducted.”
 The right of detention pursuant to Summers is automatic: it “does not
require law enforcement to have particular suspicion that an individual
seized under the rule is involved in criminal activity or poses a specific
danger to the officers.”
D. WARRANT CLAUSE: WHEN ARE WARRANTS REQUIRED?
 According to Katz, “searches conducted outside the judicial process without prior
approval by a judge or magistrate, are per se unreasonable under the Fourth
Amendment-subject only to a few specifically established and well-determined
exceptions.”
1. Exigent Circumstances
 Warden v. Hayden (1967)- (1) The Fourth Amendment permits
officers in hot pursuit of a fleeing felon to enter a home, into which the
suspect had fled, and search the home without a warrant. (2) The
Fourth Amendment permits officers to seize mere evidence of a crime
that is not either a fruit or instrumentality of crime or contraband.
o The community caretaking doctrine states that a police officer
may enter a home without a warrant if they see criminal
activity that effects the home, such as seeing a man break into a
home.
o The exigency warrant exception in a special and frequent fact
pattern: blood tests of a suspected drunk driver. As we have
seen, the warrant requirement does not apply if, based on the
facts of the case, the exigencies of the situation make it
unreasonable to require the police to seek a warrant.

15
 o What if the police create the exigency? Justice Alito announced
the correct Fourth Amendment rule, namely, that the exigency
exception to the warrant requirement applies unless the police
“create the exigency by engaging or threatening to engage in
conduct that violates the Fourth Amendment”.
o Exigent Circumstances Rules:
i. The exigent circumstances that justify the police’s
warrantless action restricts the scope of the search.
ii. Exigent circumstances last only as long as the exigency
does. Once it is over, the search must end and police
must justify ongoing conduct with a new exception.
iii. Exigencies permit police to act without a warrant, but
the probable cause requirement still exists.
iv. Exigent circumstances applies if they happen during a
legitimate investigation, including if lawful police
action triggers the exigency, but will not apply if police
create the exigency by threatening to violate, or
violating the Fourth Amendment.
v. Police do not have to have probable cause if they are
operating under the “community caretaking” type of
exigency (emergency assistance or protect occupant
from imminent injury), rather than criminal
investigation. They need “reasonable grounds.”
Officers’ subjective beliefs are not relevant.
vi. Key: The Court generally does not authorize automatic
exigencies. There must always be specific facts to
justify exigent circumstances.
2. SEARCHES INCIDENT TO AN ARREST
a. General Principles
 Hot Pursuit: Some sort of chase of a suspect. Police possibly have to have started
the pursuit or attempted the arrest while the person was in a public place, or the
crime was committed in a public place. (Immediate & Continuous).
 Pursuit of a fleeing misdemeanor subject is not always an exigent circumstance
justifying warrantless entry. (Lange v. California (2021)).
 An arresting officer does NOT need probable cause to believe that weapons
and/or evidence are present on the person of the arrestee or in the area of
immediate control. A lawful custodial arrest automatically triggers the search.
BUT: This applies to lawful arrests. If an arrest is NOT lawful (due to the absence
of probable cause) police cannot justify a search incident to arrest under that
exception.
 Chimel v. California (1969)- Incident to a lawful arrest, a warrantless search of
the area in possession and control of the person under arrest is permissible under
the Fourth Amendment.

16
 o Principle of particular justification. According to this principle, “the police
must, whenever practicable, obtain advance judicial approval of searches
and seizures through the warrant procedure,” and “the scope of a search
must be ‘strictly tied to and justified by’ the circumstances which rendered
its initiation permissible.”
o Applying this doctrine, we start from the position, the default position, that
warrantless searches are unreasonable and therefore, unconstitutional. If
the police seek to justify a warrantless search, the burden is on them to
demonstrate the existence of a justification for dispensing with the warrant
requirement. Assuming that a justification exists, the scope of the
permissible warrantless search must be no broader than the justification
for the warrantless conduct compels. Once the circumstances that justify
the warrantless conduct no longer exist, or once the police go beyond the
legitimate scope of the warrantless search, the original obtain a warrant
default position returns.
o The Supreme Court has expanded the lawful scope of a warrantless search
incident to an arrest in a home.
o In short, in order to justify a warrantless search of a person incident to a
lawful custodial arrest, an arresting officer does not need probable cause to
believe that the arrestee has a weapon or criminal evidence on his person.
The right to conduct the warrantless search is automatic: if the custodial
arrest is based on probable cause, no more is needed.
o Arrest inventories: another warrant exception. Any person who will be
incarcerated, even temporarily, undergoes a second search: an arrest
inventory. This inventory search, which occurs without a warrant and in
the absence of probable cause, is constitutionally justified on various
grounds: to protect the arrestee from theft on her valuables while in jail; to
reduce the risk of false claims of theft by the arrestee; and to ensure that
contraband and dangerous instrumentalities that might have been missed
by the police in the initial search incident to the arrest are not smuggled
into the jail. To be valid, the inventory must follow procedures
standardized in that jurisdiction.
o Although inventory operating procedures of police departments vary, the
police typically open containers found on arrestees, such as wallets.
 Riley v. California (2014)- Under the Fourth Amendment, the government may
not conduct a warrantless search of the contents of a cell phone seized incident to
an arrest absent exigent circumstances.
o Drunk driving and search-incident law. We have already seen that
warrantless blood alcohol concentration (BAC) tests are often justifiable
on exigency grounds. But, may a compelled breath test or taking a blood
sample be justified as a search incident to a lawful arrest? In Birchfield,
Justice Alito held that warrantless breath tests, incident to a lawful arrest,
are per se constitutional. As in Riley, the Court balanced the privacy
17
 interest of the individual against the interest of the government in
combatting drunk driving.
o Justice Alito noted that breath tests “do not implicate significant privacy
concerns.” The physical intrusion is almost negligible.
o The Court held that warrantless blood tests are not justifiable as an
incident to a lawful arrest. “blood tests are a different matter”. They
require piercing of the arrestee’s skin as well as extraction of a part of the
subject’s body.
o Warrantless breath tests pursuant to a lawful arrest are per se
constitutional.
o Warrantless blood tests incident to a lawful arrest are NOT justifiable.
b. Arrests of Automobile Occupants
 New York v. Belton (1981)- Incident to a lawful arrest, the police may search the
area within the arrestee’s immediate control.
o Search incident to lawful citation? Although an officer would have no
reason to believe he would find a weapon or criminal evidence in the car,
he conducted a full search of the vehicle.
o The Supreme Court unanimously held that the search of the car violated
the Fourth Amendment in Knowles v. Iowa (1998): In United States v.
Robinson, we noted the two historical rationales for the “search incident to
arrest” exception: (1) the need to disarm the suspect in order to take him
into custody, and (2) the need to preserve evidence for later use at trial.
But neither of these underlying rationales for the search incident to arrest
exception is sufficient to justify the search in the present case.
o According to a unanimous Court in Virginia v. Moore (2008), a custodial
arrest based on probable cause, although in violation of state law, is a
lawful arrest for purposes of Fourth Amendment analysis. A search
conducted as an incident of such an arrest, therefore, satisfies the Fourth
Amendment.
o The Supreme Court extended the Belton rule in Thornton v. United States
(2004). The Belton rule applies “so long as an arrestee is the sort of
‘recent occupant’ of a vehicle such as was here”.
 Arizona v. Gant (2009)- Police may search a vehicle after a recent occupant’s
arrest only if the arrestee is within reaching distance of the passenger
compartment at the time of the search or it is reasonable to believe that crime-
related evidence is located in the vehicle.
 Applying Grant: RULE: Police may only search a vehicle incident to
the arrest of a recent occupant if the arrestee is unsecured and in
reaching distance of the passenger compartment OR if it is reasonable
to believe that evidence relevant to the crime of arrest may be found in
the vehicle.
o Is “reason to believe” a lesser standard than probable cause?

18
 o Can the “reason to believe” be based only on the crime of
arrest?
c. Pretextual Stops and Arrests (Particularly in Automobiles)
 Whren v. United States (1996)- Except with inventory searches and
administrative inspections, when probable cause of illegal conduct exists, an
officer’s true motive for searching or detaining a person does not negate the
constitutionality of the search or seizure.
3. CARS AND CONTAINERS
 Chambers v. Maroney (1970)- A warrantless search of a car made at a police
station is constitutional so long as there is probable cause to believe that the car
contains items that the officers are entitled to seize.
 California v. Carney (1985)- Under the Fourth Amendment, a vehicle that can be
readily moved and that has a reduced expectation of privacy due to its use as a
licensed motor vehicle may be searched without a warrant provided probable
cause exists.
o The vehicle exception is justified by the mobility and the regulations upon
vehicles that are set by the state.
o In Collins v. Virginia (2018), the Court was presented with the question of
“whether the automobile exception to the Fourth Amendment permits a
police officer, uninvited and without warrant, to enter the curtilage of a
home in order to search a vehicle parked within.”
o The Supreme Court, held that the warrantless search fell outside the scope
of the automobile exception and, therefore, could not be justified on that
basis.
o Automobile inventories: another warrant “exception”. A warrantless
search of a car may be permissible on various grounds. First, if the police
have probable cause to search a car, the Carroll-Chambers-Carney
“automobile exception” comes into play. Second, as we have seen, if an
occupant (or recent occupant) of an automobile is arrested, the police may
sometimes conduct, as an incident of the arrest, a contemporaneous search
of the passenger compartment of the vehicle, even without probable cause
to search. A third basis for a car search is the “automobile inventory”
warrant exception. Pursuant to standard operating procedures, officers
unlocked the vehicle and, using a standard inventory form, inventoried the
contents of the car.
o The Court determined that the probable cause and warrant requirements of
the Fourth Amendment do not apply to routine inventory searches.
 United States v. Chadwick (1977)- The Fourth Amendment protects a person’s
reasonable expectations of privacy and requires that the police obtain a warrant before
executing a search unless a relevant exception applies.
 Ross: If police have PC to search a car under Carroll/Chambers/Carney, they may search
any container found during the car search that is large enough to hold the items they seek.

19
 Acevedo: Police may search containers in cars without a warrant if the search is
supported by PC. BUT: The PC limits the scope of the search, thus if officers only have
PC to search the container, they may not search the car.
 Houghton: If police have PC to search a car, they may also search any passengers’
belongings found in the car that are capable of concealing the object of the search.
 California v. Acevedo (1991)- The Fourth Amendment permits warrantless searches of
containers found in automobiles provided the police have probable cause that the
container contains contraband.
4. PLAIN VIEW (AND TOUCH) DOCTRINES
 Horton v. California (1990)- When the police have a legal right to be where they are and
they find incriminating evidence and the incriminating character is immediately apparent,
the police may seize the evidence without a warrant under the plain view doctrine.
o Justice Stewart: “the plain view doctrine has been applied where a police officer
is not searching for evidence against the accused, but nonetheless inadvertently
comes across an incriminating object. … the plain view doctrine may not be used
to extend a general exploratory search from one object to another until something
incriminating at last emerges.”
o If the scope of the search exceeds that permitted by the terms of a validly issued
warrant or the character of the relevant exception from the warrant requirement,
the subsequent seizure is unconstitutional without more.
o If in the search for evidence of a crime, the police can seize incriminating
evidence if they have PC to believe that the incriminating evidence is connected
to the crime
o PV is an exception to allow both searches and seizures
o For PV to be valid: the police need to have lawful vantage point (see item in pv),
lawful right of access (police must have some lawful right to have access to it by
warrant or consent), immediately apparent that the evidence has incriminating
character
 Arizona v. Hicks (1987)- For a warrantless search or seizure to be reasonable under the
Fourth Amendment, the plain view doctrine can only be invoked to search or seize
evidence if the police have probable cause of the evidence’s incriminating character.
o Whether legal authority to move the equipment could be found only as an
inevitable accompanying of the authority to seize it, or also as a consequence of
some independent power to search certain objects in plain view, PC to believe the
equipment was stolen was required
o Plain touch. We think that the plain view doctrine has an obvious application by
analogy to cases in which an officer discovers contraband through the sense of
touch during an otherwise lawful search. If a police officer lawfully pats down a
suspect’s outer clothing for weapons and feels an object whose contour or mass
makes its identity immediately apparent, there has been no invasion of the
suspect’s privacy beyond that already authorized by the officer’s search for
weapons; if the object is contraband, its warrantless seizure would be justified by
the same practical considerations that inhere in the plain view context.
20
 Plain Touch
o Analogous to PV: if an officer discovers contraband through touch during a
lawful frisk or pat-down, then the officer may seize the item
o Not more of an invasion than the initial action (the pat-down)
o Limitations:
 Officer must have a right to touch the object (lawful action)
 It must be immediately apparent that the item is contraband.
 Plain Smell
o If police smell the odor of weed from a position of lawful access, such as during a
lawful traffic stop, that provides probable cause to conduct a vehicle search
o Must be immediately apparent that the odor
5. CONSENT
 Valid consent must be obtained voluntarily.
 Police must obtain consent to search from someone with real or apparent authority to give
consent.
 The scope of the search must not exceed the scope of the granted consent.
 Schneckloth v. Bustamonte (1973)- The court must look at the totality of the
circumstances in order to determine whether consent to a warrantless search absent
probable cause was freely and voluntarily given.
o Warrant exceptions require a rationale. As we have seen, warrantless car searches
are justified on the grounds of mobility and the lesser expectation of privacy we
possess in vehicles. Warrantless searches incident to arrest are justified on the
grounds that the police must protect themselves from possible attack and prevent
destruction of evidence.
o If an officer asserts authority to conduct a search on the basis of a warrant,
whether the warrant is valid, invalid, or nonexistent, consent granted as a result of
that assertion is invalid.
o Bumper v. North Carolina (1968)- An individual’s consent to the search of a
property is not valid if it is given after a police officer asserts that he has a search
warrant.
o Even if a person voluntarily consents to a search, she can set limits of a temporal
nature (you can search my house for exactly 2 minutes) or limit the scope of the
search (you can only search my garage).
o A person may also withdraw consent after it is granted. The police must honor the
citizen’s wishes, unless their pre-withdrawal search gives them independent
grounds to proceed. But, the issue of whether a defendant has truly withdrawn
consent, like voluntariness, can be a difficult one to resolve. Courts generally
require that the withdrawal of consent be clearly given.
 Georgia v. Randolph (2006)- The police may not enter a home without a warrant to
search for evidence where they obtain consent from an occupant but a co-occupant is
present and objects to the search.

21
  Matlock Rule: The consent to search from a person who has common authority
over the premises or effects is valid against an absent, nonconsenting person with
whom that authority is shared.
 Randolph Rule: Warrantless searches of a shared dwelling cannot be justified as
reasonable by consent from a resident if another physically present resident
expressly refuses to consent.
 Illinois v. Rodriguez (1990)- Under the Fourth Amendment, the police may enter a home
without a warrant if they reasonably believe the person who consents to their presence
has the authority to do so.
o Scope of consent. A consent search is invalid, even if the consent was voluntary,
if the police exceed the scope of the consent granted.
o Subject to a lawful arrest, an officer cannot search your phone, but they can if a
message pulls up under the plain view but they cannot view the message chain,
however they can hold the phone until they get a warrant
o Apparent Authority to Consent: The Fourth Amendment only requires that
officers act reasonably, so officers do not violate the Fourth Amendment when
they enter without a warrant because they reasonably, albeit erroneously, believe
the person who consented resides there.
E. REASONABLENESS CLAUSE: THE DIMINISHING ROLES OF WARRANTS AND
PROBABLE CAUSE
1. THE TERRY DOCTRINE
a. Terry v. Ohio
 Terry v. Ohio (1968)- When an officer observes unusual conduct that
reasonably leads him to assume that criminal activity is afoot and that the
people he is interacting with are armed, the police officer may conduct a
limited search for weapons.
 In United States v. Hensley (1985), the Court unanimously ruled that
the Terry doctrine also applies when an officer seeks to investigate a
completed felony: brief seizures are allowed if the “police have a
reasonable suspicion, grounded in specific and articulated facts, that a
person they encounter was involved in or is wanted in connection with
a completed felony.”
 Adams v. Williams (1972)- A police officer making a reasonable
investigatory stop who has reason to believe that a suspect is armed
and dangerous is permitted to search the suspect for concealed
weapons for the purpose of safely conducting the stop.
 Illinois v. Caballes (2005)- The Fourth Amendment does not require
reasonable, articulable suspicion to administer a canine sniff test
during a routine traffic stop. The Court stated that using a dog sniff for
drugs does “not change the character of a traffic stop that is lawful at
its inception and otherwise executed in a reasonable manner, unless
the dog sniff itself infringed constitutionally protected interest in
privacy.” And thus, governmental conduct that only reveals the

22
 possession of contraband “compromises no legitimate privacy
interests.”
 Rodriguez v. United States (2015)- Under the Fourth Amendment, a
police officer may not prolong a routine traffic stop to have a drug-
sniffing dog walk around the vehicle.
 Terry frisks are usually limited to weapons search not drugs
b. Drawing Lines: “Terry Seizures” Versus De Facto Arrests
 Dunaway v. New York (1979)- Except in the case of temporary stops on
the street where the police need only have reasonable suspicion of
criminal activity, the police may only seize a citizen based upon probable
cause.
 Florida v. Royer (1983)- If the individual being detained
reasonably believes that he is under arrest while the police having
no probable cause, then the evidence or fruits from it may be
suppressed
 Pennsylvania v. Mimms (1977)- When an officer legally stops a
driver on the highway, he may order the driver out of the car
without further justification, this extends to the passengers in the
car as well
 United States v. Sharpe (1985)- a period of detention for an
investigative stop depends on if the police diligently pursued a
means of investigation that was likely to confirm or dispel their
suspicions quickly, during which time it was necessary to detain
the defendant.
c. Drawing Lines: Seizures Versus Non-Seizure Encounters
 Car Seizures:
 When an officer legally stops a driver on the highway, the officer
can order the driver out of the car without any further justification
(Pennsylvania v. Mimms)
 If a driver is stopped, police can order the passenger out of the car
as well. (Maryland v. Wilson)
 If police seize a vehicle, the passenger(s) are also seized. (Brendlin
v. California)
 Important Terry Factors: Forcible Movement of the Suspect, Length of the
Detention, Existence of Less Intrusive Means
 United States v. Mendenhall (1980)- A Fourth Amendment “seizure”
occurs when a reasonable person would believe that he is not free to leave
police custody. (the test is whether a reasonable person would believe that
they are free to leave, this is a totality of the circumstances test, factors
include: threatening presence of several officers, the display of a weapon
by an officer, some physical touching of the person of the citizen, or the
language or tone of voice indicating that compliance with the officer’s
request might be compelled)

23
 A person has been seized under the 4th Amendment only if, in view
of all the circumstances surrounding the incident, a reasonable
person would have believed they were not free to leave
 Timing: if a person is not seized, police can act without reasonable
suspicion and any evidence obtained or conduct that creates
reasonable suspicion or probable cause
 United States v. Drayton (2002)- the proper inquiry for bus sweeps
is the reasonable person test
 Torres v. Madrid (2021)- The application of physical force to the
body of a person with the intent to restrain is a seizure, even if that
force does not subdue the person
 A seizure does not occur when the subject does not submit to a show of
force.
 California v. Hodari D. (1991)- A Fourth Amendment seizure occurs
where the police exercise physical force over a subject or where a subject
submits to an officer’s show of authority.
 Brendlin v. California (2007)- a car passenger, and not only the
driver is seized as the result of a police-ordered seizure of the car
d. “Reasonable Suspicion”
 Alabama v. White (1990)- To determine whether an informant’s tip
provides reasonable suspicion, the totality of the circumstances must be
analyzed, with attention given to the veracity, reliability, and basis of
knowledge of an informant.
 If it was a de facto arrest you need probable cause but if Terry stop
then you only need reasonable suspicion, reasonable suspicion is
less demanding than probable cause
 what is the standard for reasonable suspicion?
o More than a hunch or unparticularized suspicion
o Officer must identify specific and articulable facts that,
along with reasonable inferences from those facts, would
justify a reasonable person in the belief that illegal activity
is taking place or has taken place
o Significantly less than preponderance of the evidence and
probable cause
 An officer’s reasonable mistake of the law can support reasonable
suspicion, justifying the stop of a vehicle. (Heien v. North
Carolina).
 If an anonymous tip is called in and the caller claims to have seen
the suspect do the action then the caller is an eyewitness, making
the basis of knowledge lends significant support to the tip’s
liability

24
  Illinois v. Wardlow (2000)- A police officer may stop and frisk a citizen
on the street when he has reasonable suspicion that the person is armed
and may pose a threat to the officer.
e. Expanding the Scope of the Terry Balancing Approach
 Terry assessed the reasonableness of the government’s action by
comparing the government need/interest with the individual interest at
stake (nature of the intrusion, privacy interest).
 Maryland v. Buie (1990)- Incident to an arrest, the police may conduct a
protective sweep of a premises based on reasonable suspicion that other
people who pose a threat are in the building, provided the search is limited
to those areas where a person may be hiding.
 United States v. Place (1983)- When police seize luggage from a
suspect’s custody, the limitations applicable to investigative
detentions of the person himself should define the permissible
scope of an investigative detention of the person’s luggage on less
than probable cause.
 Michigan v. Long (1983)- (1) The U.S. Supreme Court has
jurisdiction to review a state court's decision to provide a
defendant with broader procedural protections than those
guaranteed in the U.S. Constitution unless the state court explicitly
states that its decision is based on separate, adequate, and
independent state grounds. (2) The search of an automobile's
passenger compartment, limited to those areas in which a weapon
may be placed or hidden, is permissible if a law-enforcement
officer reasonably believes, based on specific and articulable facts
combined with the rational inferences from those facts, that the
suspect is dangerous and may gain immediate control of weapons.
 Maryland v. King (2013)- When officers make an arrest for a
serious offense that is supported by probable cause and bring the
suspect to the station to be detained in custody, taking and
analyzing a cheek swab of the arrestee's DNA is a legitimate
police-booking procedure that is reasonable under the Fourth
Amendment.
 What is the rule from Place? If an officer’s observations lead him
to reasonably believe that a traveler has luggage that contains
narcotics, Terry permits the officer to detain the luggage to briefly
investigate the circumstances that aroused suspicion, as long as the
detention is limited.
 (Terry and Car Frisk) What is the rule from Michigan v. Long? It
is reasonable to permit a search of a passenger compartment in
areas in which a weapon can be placed or hidden as long as the
officer has reasonable suspicion that the suspect is dangerous and
may gain immediate control of a weapon. ASK: Would a

25
 reasonable and prudent person in the circumstances be warranted
in the belief that his safety or safety of others was in danger?
 (Terry and Arrestee DNA) What is the rule from Maryland v.
King? When police make an arrest supported by probable cause to
hold a suspect for a serious offense and they bring the suspect to
the station to be detained in custody, taking and analyzing a cheek
swab of the arrestee’s DNA is, like fingerprinting and
photographing, a legitimate police booking procedure that is
reasonable under the Fourth Amendment.
2. REASONABLENESS IN A “SPECIAL NEEDS” (AND NON-CRIMINAL?)
CONTEXT
 General Warrant “Exception”, “Special Needs” Exception- a search or
seizure comes within the “special needs” category when a perceived need,
beyond the normal need for criminal law enforcement, makes the warrant
and/or probable cause requirements of the Fourth Amendment
impracticable or, simply, irrelevant; in “special needs” circumstances, the
Court evaluates the governmental activity by applying the reasonableness
balancing standard
 A warrantless search or seizure may be reasonable when the intrusion
serves a “special need” that is “divorced from the State’s general interest
in law enforcement.”
 Assess government activity by applying Reasonableness Balancing
(Government Interest against Individual Interest)
 Can permit suspicion less searches in a “non-criminal context” –
suspicion of individualized wrongdoing is not required.
 Special Needs
 Administrative Searches
 Public Schools
 Border Searches & Border Checkpoints
 Drug Testing
 Other Checkpoints
 Administrative Searches
 Camara & See: Unless there is an emergency or consent,
administrative searches require a warrant.
 SCOTUS has permitted warrantless, non-emergency,
nonconsensual searches of commercial premises of “closely
regulated businesses.”
o Closely Regulated Business: Either a business in which
there is a long tradition of government supervision OR the
business is one in which there is pervasive and regular
government regulation.
 CRB: Liquor dealers, gun dealers, mining
companies, junkyards.

26
  NOT CRB: Hotels!
o Inspect “closely regulated business without a warrant IF:
 Administrative regulatory scheme advances a
substantial interest (Exl: Worker health & safety);
 Warrantless inspection necessary to further
regulatory scheme (would warrant requirement
make it easy to conceal wrongdoing?);
 Ordinance/statute permitting warrantless inspection
must provide adequate substitute for warrant that
limits inspector discretion (time, place, scope of
search, etc.)
 Public Schools
 Public school students have a legitimate expectation of privacy in
the private property they bring to school.
 The warrant and probable cause requirements do not apply to
public school searches (New Jersey v. TLO).
o Warrant: Inconsistent with school environment need for
swift & informal disciplinary procedures.
o Probable Cause: Standard too high for schools: Balancing
approach preferred.
 New Jersey v. TLO: Public school administrators can search
students without a warrant if:
o There are reasonable grounds (reasonable suspicion) for
suspecting the search will turn up evidence that the student
has violated or is violating the school rules or the law AND
o Once initiated, the search is not exceedingly intrusive in
light of the age and sex of the student and the nature of the
infraction.
 Safford Unified School District #1 v. Redding: Strip search of a
13-year-old girl for prescription-strength ibuprofen and naproxen
was unreasonable.
 Border Searches
 Border Searches ◦ A person may be seized at the international
border or its functional equivalent (international airports) and they
and their belongings may be searched without a warrant and in the
absence of individualized suspicion of wrongdoing.
o Justification: Core sovereign power = Prohibit entry of
persons or items that may be dangerous.
o Brief, warrantless searches and seizures seem to be
reasonable because they happen at the border.
 Property
o Searches of all property permitted

27
 o May permit intrusive search: warrantless, suspicionless
seizure & search of vehicle that included disassembling a
gas tank is permissible.
o Circuit split over whether heightened scrutiny required for
forensic search of electronic device.
 Persons
o Person lawfully stopped at the border may be detained
further if there is reasonable suspicion of criminal activity.
o Court has permitted extended detention & searches (United
States v. Montoya de Hernandez)
 BUT: Border searches may be deemed unreasonable if executed in
a “particularly offensive manner” or if they are extremely
destructive of property.
 Drug Testing
 Suspicion less drug testing is permissible if it is not primarily
aimed at criminal arrest & prosecution.
o Railroad employees involved in train accidents
o Federal customs officials who carry weapons or are
involved in drug interdiction
o Students involved in athletics or extracurricular activities.
 Applied reasonableness balancing
o Government: Significant interest—generally has to
demonstrate why R/S or PC not sufficient.
o Privacy: Privacy while testing, typically not as intrusive (no
medical screening), regulated industry & schools, so less
expectation of privacy.
 Not permitted:
o Drug testing of political candidates.
o Suspicion less drug testing programs aimed primarily at
criminal arrests & prosecution.
 Look at immediate objective (Ferguson). Even if non-criminal
secondary objective, assess how the policy operates, who operates
it, and whether it is intended as a criminal enforcement tool.
 Domestic Checkpoints
 What rules about domestic checkpoints can we draw from Sitz?
o Suspicionless DUI checkpoints are constitutionally
permissible.
o Discretionary enforcement is a problem (must conduct
stops in ways that limit officer discretion)
o Brief intrusions are permissible.

28
 o Must have enough data to support government argument,
but will not second-guess strategy (small success rate is
acceptable)
 What additional clarification do we receive from Edmond?
o Suspicionless checkpoint stops cannot be operated with a
primary purpose of crime control (drug interdiction)
o Assess the primary purpose of the stop, even if there are
secondary, permissible purposes.
o Crime control checkpoints may be permissible in exigent
circumstances.
 And what does Lidster (N.2) indicate?
o Distinction between information-seeking associated with
crime control and stops aimed at individual drivers without
suspicion.
 Michigan Department of State Police v. Sitz (1990)- Under the Fourth and
Fourteenth Amendments, the police can establish checkpoints if the state
interest outweighs the intrusion into people’s privacy interests and the
checkpoint is proven to be an effective means of achieving the state’s
goal.
 City of Indianapolis v. Edmond (2000)- A suspicionless roadside
checkpoint established for the purpose of deterring general criminal
activity is unlawful under the Fourth Amendment.
 Illinois v. Lidster (2004)- A roadside vehicle checkpoint is not
presumptively unlawful if the primary law-enforcement purpose of
the stop is to ask vehicle occupants for information about crimes
possibly committed by others.

Chapter 5: Remedies for Fourth Amendment Violations

A. STANDING
 Standing- A legal doctrine limiting the right to sue to those parties who can show
some injury to their legal rights, a specific grievance or impact that can be
remedied by judicial action, or a statutory basis for bringing a suit, this is needed
to be able to exclude evidence
 Alderman v. United States (1969)- A defendant in criminal proceedings does not
have standing to demand exclusion of evidence obtained in violation of another
person’s constitutional rights.
 The Court rules in Alderman that a person has standing to contest electronic
surveillance, and thus is entitled to suppression of unlawfully heard conversations,
if: (a) government agents unlawfully overheard that person’s conversations,
regardless of where they occurred; or (b) if the conversations occurred on that
person’s premises, whether or not she was present or participated in the
conversations
 Important:
29
  A person is not a victim of an unlawful search or seizure merely
because the evidence obtained from that search or seizure will be
used against them at trial.
 Defendant cannot use a due process argument (Rochin, Brown) to
justify suppression if police obtain physical evidence through
unlawful conduct aimed at a third party (absent some indication
that the defendant is a victim of an unlawful search or seizure).
 Rakas v. Illinois (1978)- A passenger in a car belonging to someone else does not
have a legitimate expectation of privacy in the car or in items found in the car that
do not belong to him and thus may not challenge the search of the car or seizure
of the items as unconstitutional.
 In order to raise the Fourth Amendment claim, she must first prove
standing (or, after Rakas, must prove that it was her Fourth
Amendment rights that were violated). To do this, the defendant
may need to testify at the suppression hearing and, for example,
assert ownership of a briefcase that was searched (in which
contraband was discovered), allegedly without probable cause
 Defendant must show that an interest was violated that the Fourth
Amendment is intended to protect.
o ASK: Is there a legitimate and reasonable expectation of
privacy, extended via ownership or an ownership-like
right?
o NB. Post United States v. Jones (2012): May also have
standing if the defendant was a victim of a government
trespass.
 When a defendant testifies in support of a motion to suppress
evidence on Fourth Amendment grounds, his testimony may not be
admitted against him at trial on the issue of guilt unless the
defendant fails to object. Simmons v. United States (1968):
o ALWAYS OBJECT TO THIS.
o The testimony may be used to impeach the defendant on
cross-examination. United States v. Havens (1980).
 Standing and Cars
 Own Car, Owner Absent During Search: Usually: if a car owner lends her
vehicle to another for a short time, owner retains legitimate expectation of
privacy and can challenge search.
o BUT: Some courts focus on possession, rather than ownership, so
nonpresent owner lacks standing. More likely to happen when
owner gives another person complete control over the car and
contents for a long period of time & driving distance.
 Other Person’s Car, Absent Owner: A person has standing to contest the
search of an automobile in which she is an occupant, but not the owner if
she has a REP in the area of the car searched (Rakas).

30
 o Look for: Possessory interest comparable to that of the occupant.
o Usually will work if they are the driver (but if driver is locked out
of a particular area, no standing).
o Not if driver’s possession of the car is a crime (e.g., driving stolen
car).
o Does apply if driver isn’t listed on rental car contract “authorized
driver list” unless it is a crime to do so. (Byrd v. United States).
 Other Person’s Car, Owner Present: Usually cannot challenge search
unless there is a significant connection between the driver and passenger
(exl: cross-country trip).
o Special relationship: spouses, parent-child usually permits
standing.
o Passenger can challenge the stop (seizure) of the vehicle and
herself preceding the search.
o Passenger could challenge the search or seizure of her property in
the vehicle (e.g., purse, backpack, etc.)
o Passenger can challenge the search of her person in the vehicle.
 Minnesota v. Carter (1998)- To claim Fourth Amendment protection, an
individual must have a reasonable expectation of privacy in the place searched.
 Rawlings v. Kentucky (1980)- the Court ruled that the test
enunciated in Rakas-whether the petitioner had a reasonable
expectation of privacy in the area searched-is the exclusive test for
determining whether a defendant may successfully challenge a
search
B. EXCLUSIONARY RULE
1. The Rule is Recognized
 Mapp v. Ohio (1961)- Evidence obtained through an unreasonable search and
seizure in violation of the Fourth Amendment is inadmissible in state criminal
proceedings.
o United States v. Calandra (1974)- the fourth amendment does not apply in
grand jury proceedings
o Exclusionary rule does not apply in civil proceedings (civil suits, civil tax
proceedings, deportation, disbarment) but do apply in proceedings in
which property will be forfeited because of criminal wrongdoing
o Pretrial preliminary hearings, bail determinations, sentencing, parole
revocation
o Impeachment (proceed carefully)
2. Scope of the Exclusionary Rule (When it Applies)
The thrust of Mapp v. Ohio is straightforward: when the police violate a defendant’s
fourth amendment rights-whether the violation is intentional, reckless, negligent, or
even innocent-the evidence obtained in violation of the amendment may not be used
at that defendant’s criminal trial in the case in chief

31
Exclusionary Rule 1: Applications of the Exclusionary Rule: Fruit of the Poisonous
Tree
Exclusionary Rule 2: Narrowing the Exclusionary Rule: Good Faith
Exclusionary Rule 3: What Exclusionary Rule? Good Faith (continued)
The Exclusionary Rule Does Not Apply:
 Grand Jury Proceedings (United States v. Calandra)
 Civil Proceedings (civil suits, civil tax proceedings, deportation, disbarment).
BUT: Applies in proceedings in which property will be forfeited because of
criminal wrongdoing. (One 1958 Plymouth Sedan v. Pennsylvania)
 Pre-trial preliminary hearings, bail determinations, sentencing, parole
revocation
 Impeachment (Proceed carefully). A prosecutor can introduce evidence
obtained from a defendant in violation of the defendant’s Fourth Amendment
rights for the limited purpose of impeaching the defendant’s direct testimony
and answers to legitimate questions put to the defendant on cross-
examination.
The doctrine, including attenuation, applies to violations of the Fourth
Amendment, the Fifth Amendment right against self-incrimination, and the Sixth
Amendment right to counsel.
Fruit of the Poisonous Tree Analysis:
1. Identify the constitutional violation (poisonous tree)
2. Identify the derivative evidence (fruit)
3. Does the derivative evidence come from the violation?
 Causal link?
 Is there any exception/justification to alleviate the taint?
 Independent Source
 Inevitable Discovery
 Attenuation
 Good Faith Doctrines
a. In General
 Silverthorne Lumber Company v. United States (1920)- Physical evidence
obtained in violation of the Fourth Amendment, and information derived from
such evidence, may not be presented at court or used by the government to help
develop its case.
o Independent Source Doctrine- Evidence can be admitted at trial when it
was initially obtained illegally but later obtained lawfully and
independently. Evidence that is discovered legally, pursuant to a valid
warrant, can be admitted at trial even when the police initially entered the
premises unlawfully.

32
  Evidence that is not causally linked to the government’s illegal
action: gained from an independent source other than the source of
a Fourth Amendment violation.
 Evidence that may be discovered for the first time during lawful
police activity or evidence initially discovered unlawfully but
obtained lawfully later in a way that is independent of the original
unlawful discovery.
o Fruit of the Poisonous Tree- if evidence is obtained illegally, any
derivative evidence obtained from the original tainted evidence is also
invalid
o Attenuation or dissipation of taint doctrine- even if particular evidence is a
fruit of the poisonous tree, it may still be admissible
o Attenuation Brown Factors:
 The length of time between the initial illegality and the seizure of
the fruit;
 The flagrancy of the initial misconduct (bad faith violations will
take more time);
 The existence or absence of intervening causes of the seizure of the
fruit; and
 The presence or absence of an act of free will by the defendant
resulting in the seizure of the fruit.
o In analyzing any fruit of the poisonous tree case, study the facts carefully
to: (a) identify the tree (the constitutional violation); (b) the fruit (the
evidence the government seeks to introduce); (c) determine whether (b)
comes from (a) (is there a casual link?); (d) if the fruit did come from a
poisonous tree, identify any facts that may justify the conclusion that the
fruit no longer is poisoned (the “attenuation” or dissipation” doctrine)
b. “Independent Source” and “Inevitable Discovery” Doctrines
 Murray v. United States (1988)- The independent-source doctrine does not apply
if police officers were subjectively motivated to obtain a search warrant by what
they learned during an original warrantless search of the premises, even if the
warrant application does not rely on information gained during the original
search.
 Nix v. Williams (1984)- Evidence obtained in violation of the
Sixth Amendment may be admitted if police would have inevitably
discovered it.
 Independent Source Doctrine- Evidence can be admitted at trial
when it was initially obtained illegally but later obtained lawfully
and independently. Evidence that is discovered legally, pursuant to
a valid warrant, can be admitted at trial even when the police
initially entered the premises unlawfully.
 Inevitable Discovery Doctrine- Exception to the exclusionary rule
allowing illegally obtained evidence to be admitted at trial if the

33
 evidence would certainly have been found without any
constitutional or statutory violation.
o If the prosecution can establish that the information would
have inevitably been discovered by lawful means, then the
evidence should be admissible because deterrence does not
justify its exclusion.
c. “Attenuation” (or “Dissipation of Taint”) Doctrine
 Wong Sun v. United States (1963)- Although evidence obtained through illegal
police conduct must be excluded at trial as it is “fruit of the poisonous tree,” the
connection between the illegal police conduct and a relevant piece of evidence
can become so attenuated as to dissipate the taint, and such evidence may then be
admissible.
 Brown v. Illinois (1975)- Incriminating statements made following an
unlawful arrest are only admissible if the statements, in light of all
relevant facts and circumstances, are “sufficiently an act of free will to
purge the primary taint.”
 These factors include: (1) the length of time that has elapsed
between the initial illegality and the seizure of the fruit in question;
(2) the flagrancy of the initial misconduct (bad faith violations-
violations that involve more poison-take longer to dissipate than
good faith violations); (3) the existence or absence of intervening
causes of the seizure of the fruit; and (4) the presence or absence of
an act of free will by the defendant resulting in the seizure of the
fruit
 United States v. Ceccolini (1978)- The exclusionary rule should be applied
more reluctantly when the evidence in question is a witness's live
testimony rather than physical evidence.
 Utah v. Strieff (2016)- Unconstitutionally seized evidence is admissible if
lack of flagrant impropriety, lack of temporal proximity, or an intervening
circumstance attenuates the chain between police misconduct and the
seizure.
3. THE EXCLUSIONARY RULE IS NARROWED (AND ON LIFE SUPPORT?)
 United States v. Leon (1984)- 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.
 Massachusetts v. Sheppard (1984)- The exclusionary rule does not apply if
the officer conducting the allegedly unconstitutional search acted in
objectively reasonable reliance on a warrant that is subsequently
determined to be invalid.
 Hudson v. Michigan (2006)- The exclusionary rule does not apply to violations of
the knock and announce rule.
 Civil Litigation and Remedies for Fourth Amendment Violations:
o State: Lawsuit under 42 U.S.C. § 1983.

34
  Qualified Immunity: A government official is
entitled to immunity if their conduct does not
violate clearly established statutory or constitutional
rights of which a reasonable person would have
known. Plaintiff must show: (1) Constitutional
Violation AND (2) “Clearly Established.”
 Herring v. United States (2009)- 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.
 More Limits of ER, ER does not apply to:
 Warrantless searches performed in good-faith reliance on a statute later
declared unconstitutional (Krull).
o Who is to blame for the unconstitutional statute?
o Would exclusion deter?
 Police who reasonably rely on mistaken information in a court’s
 database that there was an outstanding arrest warrant (Evans)
o Exclusionary Rule is aimed at police misconduct, not judicial
misconduct.
o Court employees are not likely to subvert the Fourth Amendment.
o There is no basis to believe that exclusion would serve deterrent
values.
 Davis v. United States (2011)- A search conducted in objectively reasonable
reliance upon binding appellate precedent that has since been overruled is not
subject to the exclusionary rule.
 Kyllo v. United States (2001)- Law enforcement’s use of sense-enhancing
technology to see details of a private home that would not be discoverable
without physically entering the home constitutes a Fourth Amendment
search.
 Good Faith in Action:
o Byrd v. United States(rental car): Conviction upheld because
officer relied in good faith on binding circuit precedent that he
could search the car.
o Carpenter v. United States (CSLI case): Conviction upheld because
the agents relied in good faith on the Stored Communications Act.
o Collins v. Virginia (motorcycle in curtilage): Good Faith applies:
at the time of the search, a reasonably well-trained officer would
not have known that the search was unconstitutional based on
binding precedent.

Chapter 6: Confessions: The Voluntariness Requirement

A. TORTURE AND CONFESSIONS
B. POLICE INTERROGATION WITHOUT TORTURE

35
 Lisenba v. California (1941)- Coerced confessions are rendered in violation of
due process and may not be admitted at trial.
 Use the Fifth Amendment against the Feds
 Use the 14th Amendment against the State
 Due Process and Confessions:
 A confession is involuntary when the police subjected the suspect to
coercive conduct and the conduct was sufficient to overcome the suspect’s
will, given the suspect’s particular vulnerabilities and the conditions of the
interrogation.
 ASK: Was the confession the product of an essentially free and
unconstrained choice by the suspect?
o The Due Process Clause is violated when this involuntary
statement is used against the suspect at a criminal trial.
o A person may still be able to bring a due process claim against
police for violations of the Due Process Clause relating to coercive
interrogation even if the statements are not used. Chavez v.
Martinez (2003).
 Juveniles and Interrogation:
 Parental notification and presence are relevant to voluntariness.
o Texas: Police must notify a parent/guardian when they have a child
in custody.
 States have banned police from lying to children during interrogation.
 States may have passed laws that provide greater protection to juveniles.
o MD: Child Interrogation Protection
 Factors for Assessing Coercion:
 Actual or Threatened Use of Physical Force
o Threatened or actual physical violence.
o “Warnings” that suspect will face mob violence or deadly attacks.
o Deprivations of food, water, sleep for extended periods of time.
 Psychological Pressures
o Suspect’s characteristics: Age, intelligence, level of education,
psychological makeup, prior experience with the criminal legal
system, etc.
o Length of interrogation
o Day or Night Interrogation
o Was the suspect able to communicate with others during the
interrogation?
 Promises of Leniency and Threats of Harsh Legal Treatment
o Promises to discuss leniency or possible credit for cooperation
alone are not enough.

36
 o Possible: Promises of non-prosecution, dropping charges, medical
treatment, reduction of punishment, threatened wrongful
prosecution of family members.
 Deception
o Lying and police deception alone, even about evidence or other
witness statements, will not render a confession involuntary.
o BUT: Some states have prohibited police from creating false
evidence and then showing it to a suspect.
 Even if a suspect voluntarily waives their Miranda rights, Due Process
voluntariness can still apply.
 Spano v. New York (1959)- A confession made after hours of interrogation,
during which the defendant has been denied his right to counsel, is not made
voluntarily and is therefore inadmissible at trial.
 Due Process and Confessions:
 A confession is involuntary when the police subjected the suspect to
coercive conduct and the conduct was sufficient to overcome the suspect’s
will, given the suspect’s particular vulnerabilities and the conditions of the
interrogation.
o Assess through the totality of the circumstances: Look at all the
factors
 Actual/threatened use of physical force
 Psychological Pressure
 Promises of leniency or threats of harsh treatment
 Deception
 ASK: Was the confession the product of an essentially free and
unconstrained choice by the suspect?

Chapter 7: Police Interrogation: The Self-Incrimination Clause

A. THE TEXT AND THE ROAD TO MIRANDA
 Bram v. United States (1897)- To be admissible at trial, a confession must be
voluntary and may not be coerced by fear, no matter how slightly the emotion is
implanted.
 The Fifth Amendment:
 “No Person”
o Applies to real persons, not artificial entities (corporations, labor
unions, etc.)
o Applies to any witness in a criminal case, not just the defendant.
 “Shall be compelled”
o Psychological pressure or physical force
o Applies to some types of threats
o Compulsion may not be present if the person could not face
prosecution (use & derivative use immunity).

37
  “In any criminal case”
o Evidence a person is required to produce will incriminate them in a
criminal proceeding in the United States.
o Applies in: grand jury proceedings, civil trials, legislative hearings,
administrative hearings, police interrogations (proceedings where a
person’s responses could be used.
 “To be a witness against himself”
o Compelled action must be both testimonial and incriminating.
o A person invoking the Fifth does NOT need to explain why their
statements would be incriminating.
o Some things are not testimonial (being in line-up, providing a
writing sample, speaking certain words, blood testing,
fingerprinting, etc.)
o Phone & Computer Passwords/Access: Unclear.
 Facial or fingerprint recognition to unlock = Maybe not.
 Authenticate ownership of an item = more complicated
issue.
 Passwords or passcodes: Trickier. (Depends on if police
know whose device it is and what precisely is on the
device).
 Warrants may compel providing passwords.
 When is the Fifth Amendment violated?
 Due Process Violation:
o Violation occurs when the compulsion is applied & confession is
extracted.
o Possibly when involuntary confession/statement is used against the
accused in a criminal trial.
o Chavez v. Martinez signals that it applies even if the statements
aren’t used (permitted lawsuit to go forward on substantive due
process grounds)
 Fifth Amendment:
o Violated when a person faces the issue of being compelled to
provide evidence (e.g., evidence is offered). Use/Derivative Use
Immunity (Kastigar).
o Chavez v. Martinez indicates that there is no Fifth Amendment
claim because the evidence was never used in a prosecution.
 Escobedo v. Illinois (1964)- The Sixth Amendment right to counsel is violated
when the investigation focuses on a suspect who is in custody, interrogated by the
police, requests his lawyer, and the police deny the request and had not informed
the suspect about his privilege against self-incrimination.
 Limited to facts.

38
  Exception to rule that Sixth Amendment right to counsel attaches when
formal criminal proceedings begin.
B. MIRANDA SPAWNS A NEW LAW OF CONFESSIONS
 Miranda v. Arizona (1966)- Without certain hallmark warnings regarding the
right to remain silent and the right to counsel, statements made during custodial
interrogation are inadmissible at trial.
 Informing the Accused of Their Rights
 You have the right to remain silent.
 Anything you say can and will be used against you in a court of law.
 You have the right to consult with an attorney and have that attorney
present during questioning.
 If you cannot afford an attorney, one will be appointed for you.
 You may exercise these rights at any time.
 Miranda Checklist:
 1. Is the suspect in custody and being interrogated by the police? If yes,
the police should have to read the suspect their rights.
 2. If the suspect is in custody and being interrogated, has the subject
validly waived their Miranda rights? Frequent problem, very testable.
 3. If the police did not read Miranda warnings or the waiver is invalid, the
subject’s statements are generally inadmissible. BUT: Don’t forget about
the Fruit of the Poisonous Tree Analysis
 4. Assess any exceptions to Miranda. Was this a situation in which police
did not have to give a warning? Are there circumstances in which the
remedy is not the exclusion?
C. STORMY SEAS FOR MIRANDA
 Harris v. New York (1971)- A prosecutor may use a statement obtained in
violation of Miranda to impeach a defendant if the defendant testifies at trial
inconsistently with the custodial statement.
 New York v. Quarles (1984)- There is a public-safety exception to the
requirement that Miranda warnings be given before a suspect’s statements may be
admitted into evidence at trial.
 Oregon v. Elstad (1985)- A suspect can make a statement that is admissible in
court after being read his Miranda warnings, even when he previously made an
unwarned statement, because the initial failure to read a suspect his Miranda
warnings does not taint later voluntary statements.
 Dickerson v. United States (2000)- Congress cannot legislatively supersede a
decision by the United States Supreme Court that interprets and applies the
Constitution.
 Missouri v. Seibert (2004)- A second confession after a Miranda waiver is
admissible only if there was a long enough break following the initial confession
without a Miranda waiver to give a reasonable suspect the belief that he or she
had a right not to speak to officers.
 Three Step, Five Factor Siebert Test:

39
  1. Did law enforcement deliberately use a two-round interrogation strategy
to avoid Miranda?
 2. If “Yes,” then apply the five Seibert factors to assess whether the
situation is more like Seibert than Elstad.
o The completeness & detail of the questions & answers in the first
round of interrogation.
o The overlapping content of the two statements.
o The timing and setting of the first and second statements.
o The continuity of police personnel
o The degree to which the interrogator’s questions treated the second
round as continuous with the first.
 3. If the facts look more like Seibert, then the court must determine if the
interrogator took any “curative” measures. If no measures were taken, the
warned confession should be inadmissible.
o Was there a break or a warning?
D. MIRANDA CUSTODY
 Berkemer v. McCarty (1984)- Police must issue Miranda warnings prior to all
custodial interrogations, regardless of the nature or severity of the offense.
 A person subjected to custodial interrogation is entitled to the benefit of the
procedural safeguards enunciated in Miranda, regardless of the nature or severity
of the offense of which he is suspected of or for which he was arrested.
 Miranda warnings are required before questioning when a person is in custody:
taken into custody or otherwise deprived of his freedom of action in any
significant way.
 Berkemer: A person is in custody if there is a formal arrest (regardless of
the severity of the offense) or restraint on freedom of movement of the
degree associated with a formal arrest.
 Examine all of the circumstances surrounding the interrogation: how
would a reasonable persons in the suspect’s situation understand his
circumstances (objective).
o What were the circumstances surrounding the interrogation?
 Some Relevant Factors: location of questioning, duration,
statements made, the presence or absence of physical
restraints, the release of the interviewee at the end of
questioning.
 NOTE: Age is included in the custody analysis so long as
the child’s age was known to the officer or would have
been objectively reasonably apparent to the officer at the
time of questioning. (JDB)
o Given those circumstances, would a reasonable person have felt
that he or she was not at liberty to terminate the interrogation and
leave?

40
  Does the relevant environment present the same inherently
coercive pressures as the type of station house questioning
at issue in Miranda?
 Custody can happen anywhere, including in one’s home.
 A person may not be in custody in an interrogation room: assess whether they
were free to leave.
 Oregon v. Mathiason: If there is not a restraint on freedom of movement, a
person is not in custody.
o Was not told he was under arrest, was permitted to leave the
station after questioning.
 BUT: A voluntary appearance at a police station can become a custodial
arrest and Miranda applies at that point. (Assess all of the facts &
circumstances).
 A person in prison is not always “in custody” for the purposes of Miranda.
(Maryland v. Shatzer)
E. MIRANDA INTERROGATIONS
 Rhode Island v. Innis (1980)- Under Miranda, “interrogation” refers to any words
or actions on the part of the police that the police should know are reasonably
likely to elicit an incriminating response from the suspect.
 Miranda is required when a person in custody is subjected to either express
questioning or its functional equivalent.
 Interrogation: Express questioning and words and/or actions on the part of police
(other than those normally attendant to arrest or custody) that police should know
are reasonably likely to elicit an incriminating response from the subject.
 Does not have to be an explicit statement or question.
 Look at perceptions of suspect: Should the officer have realized that his
actions or words were reasonably likely to result in an incriminating
response from the suspect?
 Police knowledge of the defendant’s susceptibility to a particular form of
persuasion can be relevant.
 Miranda warnings are not required, even if there is interrogation if the person
being interrogated does not know that the questioner is a law enforcement officer
(undercover officer).
 Miranda warnings only apply if the police interrogation implicates testimonial or
communicative aspect of the Fifth Amendment.
 Routine Booking Procedure: Pennsylvania v. Muniz
o Routine questions do not seek incriminating answers.
o Hiibel: Providing one’s name to the police is not incriminating.
 BUT: Asking questions that are intended to elicit information that is
incriminating (such as demonstrating that a suspect is intoxicated) is a
testimonial question and Miranda applies.
F. WAIVER AND INVOCATION OF THE MIRANDA RIGHTS

41
Once a court determines that the suspect made statements in response to custodial police
interrogation, the next issue is whether police gave the Miranda warnings and whether the
suspect waived those rights.
 North Carolina v. Butler (1979)- A suspect need not make an express statement
waiving his right to counsel.
 Berghuis v. Thompkins (2010)- Where a defendant does not invoke his right to
remain silent after fully understanding his Miranda rights, he implicitly waives his
Miranda rights by making a voluntary statement to police.
 A suspect who wishes to invoke the right to remain silent must do so
unambiguously.
o Being silent is not invoking the right to remain silent.
 The state may prove an implied waiver of Miranda rights by showing that:
o the suspect was read their rights; the suspect understood their
rights; and
o the suspect made an uncoerced statement.
 The state is not required to secure a waiver before interrogating a suspect.
 Edwards v. Arizona (1981)- Once a suspect has received his Miranda warnings
and invoked his right to counsel, the police may not further interrogate the suspect
until the suspect has been given access to counsel, unless the suspect initiates
further communication with the police.
 An accused may waive his right to remain silent during interrogation and
answer questions, but if someone asks for a lawyer, “additional
safeguards” are necessary? Why? What does the Court hold?
o When an accused invokes his right to have counsel present, the
government cannot establish waiver by showing only that he
responded to additional police-initiated custodial interrogation,
even if he has been advised of his rights.
o When an accused has expressed his desire to deal with police only
through counsel, authorities cannot keep interrogating him until
counsel has been made available unless the accused himself
initiates further communication, exchanges, or conversations with
the police.
 Invoking a Right to Counsel:
 If a suspect invokes the right to counsel, interrogation must end until an
attorney is present. (Miranda)
o If a suspect invokes their right to counsel, the police must permit
the suspect to consult with the attorney before questioning AND
they may not re-initiate questioning unless counsel is present.
(Minnick)
 To invoke, the suspect must unambiguously request counsel: would a
reasonable police officer in the circumstances understand the statement to
be a request for an attorney? (Davis)

42
  If a suspect invokes his right to counsel, the state cannot show a valid
waiver by showing only that a suspect responded to further police-initiated
interrogation, even if the suspect was advised of his rights. (Edwards)
BUT: Edwards does NOT apply if there has been a break in Miranda
custody that lasts more than 2 weeks. (Maryland v. Shatzer)
 A suspect who invoked his right to counsel cannot be further interrogated
by the authorities until counsel has been made available, unless the suspect
himself initiates additional communication, exchanges or conversations.
(Edwards). Initiation & Waiver are separate analytical steps (Bradshaw).
 Initiation: An inquiry from a suspect can be fairly said to represent a
desire on the part of the accused to open up to a generalized discussion
relating directly or indirectly to the investigation. (Bradshaw). NOT:
Statements or inquiries that are routine incidents of the custodial
relationship.
 A valid waiver must be voluntary, knowing, and intelligent.
 Voluntary: Free & deliberate choice (Look to Due Process Voluntariness
here)
o Lengthy interrogation or incommunicado incarceration may
suggest an involuntary decision. Tricks, lies, deception, can all be
relevant to whether a waiver was voluntary.
 Knowing & Intelligent:
o A waiver must be made with a full awareness of both the nature of
the right being abandoned and the consequences of the decision to
abandon it.
o Miranda warnings are required to make a waiver knowing &
intelligent.
o The government cannot meet this burden by showing that the
suspect knew their constitutional rights without a warning.
 The government must show a valid waiver by the preponderance of the evidence
if it seeks to introduce the statements.
 Miranda is not crime-specific; it is a waiver to interrogation, rather than a specific
crime. (Colorado v. Spring).
 A person can re-invoke after a valid waiver.
 Waiver is personal. (Moran v. Burbine). Police are not required to provide a
suspect with outside information that might be useful to the suspect’s decision
about whether to waive or invoke.
 Understand Invocation:
 Davis v. United States: A suspect must unambiguously ask for counsel. It
must be sufficiently clear such that a reasonable police officer in the
particular circumstances would understand the suspect’s statement as a
request for an attorney.
G. AFTER WAIVER: VOLUNTARINESS RETURNS

43
Once a suspect waives Miranda, the only constitutional protection against coercive interrogation
methods is the due process clause. But as roughly 80% of suspects waive their Miranda
protections, voluntariness remains the primary protection against police coercion and trickery.
One odd effect of Miranda, however, is that a voluntary waiver typically carries over to a finding
that any statements secured are voluntary under the due process clause. It would seem that
Miranda has reduced the judicial supervision of police interrogation tactics: in most cases, the
suspect either invokes Miranda, which renders irrelevant a due process inquiry, or waives
Miranda, which creates a virtual presumption that any subsequent statements are voluntary.

Chapter 8: Police Interrogation: The Sixth Amendment Right to Counsel

A. ELICITING STATEMENTS IN THE ABSENCE OF COUNSEL
 Massiah v. United States (1964)- A person who has been indicted on criminal
charges has as much a constitutional right to have an attorney present during
police interrogations as he does during the trial itself.
 What does the Court hold here? The government denies a person their Sixth
Amendment right to assistance of counsel when government agents, in the
absence of defense counsel, deliberately elicit incriminating information from a
person against whom adversary judicial criminal proceedings have commenced.
 Deliberate Elicitation:
 Applies when the government through an actual OR covert agent:
o Acts with the purpose of eliciting information from the
accused regarding the pending charges without regard to
the likelihood whether the elicitation will be successful.
(Massiah; Williams).
o Purposely sets up an encounter in which incriminating
information is likely to be elicited. (Henry).
o Exploits an encounter set up by the accused with an agent
of the government that the government knows is likely to
result in incriminating information. (Moulton).
 This is not the same as the Fifth Amendment interrogation standard under
Innis.
o “Deliberate” indicates at least some level of purpose (possibly
reckless?).
 The defendant must show that the government and/or informant
voluntarily took some action that was designed to elicit incriminating
remarks beyond merely listening. (Kulhmann).
o NOT: Government acting as a passive ear (put an inmate into a cell
just to listen).
o YES: Government conducting investigatory techniques that are the
“equivalent of direct police interrogation”.
B. MASSIAH WAIVER
 Brewer v. Williams (1977)- A defendant has not effectively waived his right to
counsel if, at the advice of counsel, he continues to invoke his right to remain
44
 silent until he has the opportunity to confer with his attorney but then makes a
statement after being subject to police interrogation.
 Patterson v. Illinois (1988)- Provided a defendant is made aware of the dangers
and disadvantages of representing himself, by use of the Miranda warnings, his
waiver of his Sixth Amendment right to counsel during post-indictment
questioning is knowing and intelligent.
C. MASSIAH AND MIRANDA: A DIVERGENCE
 McNeil v. Wisconsin (1991)- Invoking one’s Sixth Amendment right to counsel
for an offense where formal charges have been brought, does not automatically
invoke one’s Miranda rights for other offenses where charges have not yet been
formally brought.
Sixth Amendment Miranda
Attaches? Adversary judicial criminal Attaches when defendant is
proceedings initiated subjected to custodial
interrogation
Custody? Applies even if defendant is Must be in custody
not in custody (Berkemer)
Offenses? Offense-specific (offense in All offenses (applies to
the relevant criminal interrogation)
proceeding)
Police Action? Deliberate Elicitation Interrogation (objective—
(subjective) Innis)
Undercover Agents? Applies to deliberate Does not apply to undercover
elicitation by undercover agents
agent
Waiver Standard Voluntary, Knowing, Voluntary, Knowing,
Intelligent Intelligent
Waiver/Invocation Asking for counsel does not Must stop if suspect asks for
prevent police for asking for a lawyer & wait until lawyer
Miranda waiver. is present unless suspect
initiates. Waiving Miranda
waives Massiah.
Fruit of the Poisonous Tree Fruit Applies & Exceptions Fruit does not apply unless
Seibert
Impeachment Statements taken in violation Statements taken in violation
of Massiah may be used to of Miranda may be used to
impeach. impeach.

Chapter 10: Eyewitness Identification Procedures

Eyewitness misidentification is the single most common factor in wrongful convictions
throughout the United States.
A. RIGHT TO COUNCIL

45
 United States v. Wade (1967)- A post-indictment witness identification of a
criminal suspect, conducted without notice to and in the absence of the suspect's
counsel, violates the Sixth Amendment right to the assistance of counsel.
 The Wade/Gilbert Rule:
 Once the defendant’s Sixth Amendment rights have attached (indictment
or formal adversary judicial criminal proceedings have begun), defendant
is entitled to have counsel present at a corporeal identification procedure
unless defendant intelligently waives that right.
 If counsel is not present at this procedure, then the prosecutor cannot
present evidence at trial of the results of the pre-trial, post-indictment
identification procedure.
 If the accused did not get counsel at the lineup, the prosecutor cannot get
an in-court identification of the accused by the witness unless the
prosecutor proves by clear & convincing evidence that the in-court
identification is not a fruit of the tainted procedure.
o Use the Wade factors to assess this: opportunity to observe alleged
criminal act; discrepancy between pre-lineup description &
actual description; any identification before the lineup of another
person; identifying a picture of the defendant before the lineup;
failure to identify the defendant on an earlier occasion; lapse
of time between criminal act & lineup; and facts about the conduct
of the lineup.
 Limitations on Wade/Gilbert:
 Does not apply to pre-indictment/pre-arraignment lineups. Defendant is
not entitled to have counsel present. (Kirby).
 If defendant is subjected to a suggestive identification procedure when
Wade/Gilbert does not apply (not charged with a crime yet), the Due
Process Clauses of the Fifth and Fourteenth Amendments prohibit lineups
that are unnecessarily suggestive and conducive to irreparable mistaken
identification. (Kirby)
 Wade/Gilbert does not apply to non-corporeal identifications, even if
formal adversary judicial criminal proceedings have attached. (Ash). NB.
These are usually photo displays.
 Mason v. Braithwaite (1977)- A suggestive identification procedure does not
automatically require excluding the evidence under the Due Process Clause if,
considering the totality of the circumstances, the identification is reliable.
Opportunity of witness to view the criminal at the time of the crime; witness’s
degree of attention; accuracy of prior description of criminal; level of certainty at
time of confrontation; time between crime & confrontation.
B. DUE PROCESS OF LAW
 Perry v. New Hampshire (2012)- A suggestive identification procedure does not
violate due process if the police are not involved in creating the suggestive
circumstances.

46
 Due Process and Eyewitness:
 Evidence deriving from identification procedures that are suggestive are
not automatically excluded.
 Defendant has the burden of showing that the identification was derived
from police-arranged impermissibly suggestive means.
 If defendant makes that showing, trial court must assess the reliability of
the evidence based on the totality of the circumstances. Opportunity of
witness to view the criminal at the time of the crime; witness’s degree of
attention; accuracy of prior description of criminal; level of certainty at
time of confrontation; time between crime & confrontation. (Braithwaite)
 If there is a substantial likelihood of irreparable misidentification, the
judge should not allow the evidence in.
 If the identification is reliable enough to outweigh the “corrupting” effect,
then the identification is admissible.

47