STATE ACTION ♦ Protection depends on type of intrusion:

State actors: ◊Non-physical: defendant ("D'') must establish a reasonable

♦ ALL government ("gov't'') officials, on- and off-duty police (look expectation of privacy
to motivation-serving gov't or private interests) ◊Physical: constitutes a search; warrant required ("req'd'')
Private individuals: Not subject to 4th, 5th, and 6th Amends. Open fields: anything outside the curtilage; NO privacy protection =
Private action as state action: no warrant req'd
1. Nexus (relationship): (i) gov't encouragement and (ii) private
actor's intention Curtilage and Open Fields
2. Repetition (not state action) v. Extension ( state action) $ U.S. v. Dunn, 480 U.S. 294 ( 1987) factors:
1. Proximity
2. Enclosure
AMENDMENT: IS IT A SEARCH?
4TH
3. Activity or uses
TWO TESTS
4. Precautions to exclude others
♦ Reasonable expectation of privacy test - Katz v. U.S., 389
$ California v. Ciraolo, 476 U.S. 207 (1986) ( ( aerialsurveillance) if
U.S. 347 (1967)
the public has access or opportunity to view the property, police
◊State action that invades a space protected by a reasonable
officers can do the same)
expectation of privacy = search
$ Bond v. U.S., 529 U.S. 334 (2000) ( (tactile invasion) if members of
♦ Trespass test - U.S. v. Jones, 565 U.S. 400 (2012)
the public regularly conduct themselves in a certain way, police
◊ Uninvited state action that physically intrudes on or occupies
officers can do the same)
a constitutionally protected area for the purpose of acquiring
private information = search
Warrantless search: presumptively unconstitutional ELECTRONIC TRACKING ANDENHANCEMENT
Reasonable expectation of privacy: DEVICES
$ U.S. v. Jones, 565 U.S. 400 (2012) (gov't places GPS device on
♦ Eavesdropping: key issues are invitation and scope
$ U.S. v. White, 401 U.S. 745 (1971) (electronic eavesdropping the D's car while it is in a public parking lot and then monitors his
with consent of third party = not a search) movements 24 hour/day for 4 weeks)
$ Smith v. Maryland, 442 U.S. 735 (1979) (use of a device to track ♦ Trespass analysis: placing a device on a car for the purpose of

numbers dialed from a phone (pen register) = not a search) acquiring information = a search
$ U.S. v. Miller, 425 U.S. 435 (1976) (looking at bank records = not ♦ Reasonable expectation of privacy analysis:

a search) ◊ Public roadways = not a search

$ Carpenter v. U.S., 138 S. Ct. 2206 (2018) (collecting historical ◊ Private area = a search
$ Florida v. Jardines, 569 U.S. 1 (2013) ( officer enters D's curtilage
location information over a seven-day period = search)
$ Gouled v. U.S., 255 U.S. 298 (1921) (0 invited undercover agent with drug-sniffing dog to gather evidence of marijuana growing
into office to talk; D temporarily left the room and agent in the D's home = search)
$ Grady v. North Carolina, 575 U.S. 306 (2015) ( GPS device
searched through desk drawers, finding evidence of crimes;
search exceeded scope of consent) placed on the ankle of a convicted sex offender = search)
♦ Physical attributes: external physical characteristics exposed
to the public are outside the scope of the 4th Amend. (e.g., voice, Enhancement Devices
handwriting, and fingerprints) ♦ Readily available to public = not a search
♦ Use of drug-sniffing dog to sniff luggage at a bus terminal or
train station = not a search
SEARCH: PHYSICAL LOCATION $ Kyllo v. U.S., 533 U.S. 27 (2001) (gov't's use of thermal imaging
Home: extremely strong 4th Amend. protection
device to measure heat emanating from a house = search)
Curtilage: land immediately surrounding and associated with the
home; similar level of protection to the home

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SEARCH WARRANTS $ Illinois v. Gates, 426 U.S. 213 (1 983) (whether, based on the
♦ Warrant requirement: an officer who, in pursuit of information, totality of the circumstances, there is a fair probability that
wants to trespass onto a constitutionally protected area, or search evidence will be found in the location)
a location in which the subject has a reasonable expectation of $ Florida v. Harris, 568 U.S. 237 (2013) ( ( canine sniffs) dog only
privacy, needs a search warrant needs a certification or passed a training course)
♦ General rule: searches of private areas conducted without a
warrant = per se unreasonable, even if probable cause ("PC") exists EXIGENCY PRINCIPLES
Exigency: if a reasonable person would conclude that there is a fair
Arrest Warrants probability that a sufficient harm will occur during the time necessary
♦ Arrest for a felony in a public place = warrant not req'd to secure a warrant, an officer can justify warrantless action
♦ Arrest of felon inside the felon's home = warrant req'd Factors: officer's behavior, nature of the harm at stake, the degree
$ Payton v. New York, 445 U.S. 573 (1 980) (nonexigent, of certainty that harm will result if officers delay, seriousness of the
nonconsensual, otherwise unjustified entry into a felon's home crime at issue
to arrest him requires an arrest warrant and reason to believe
he's home) WARRANT EXCEPTIONS: CONSENT
◊ Limited search authority: can look anywhere a person may be Four issues gov't must prove by preponderance of the evidence:
hiding; any evidence of crimes found is fair game ,. Indication of consent-viewpoint of reasonable officer
$ U.S. v. Santana, 427 U.S. 38 (1 976) (standing in a doorway is 2. Authority to consent-third-party consent is when target of the
standing in a public place; warrantless arrest is OK) search is not present and objecting to the search and either:
♦ Arrest of felon inside a third party's home: requires arrest ♦ The consenter possesses actual common authority, OR
warrant for the felon and search warrant for the home ♦ Based on the totality of the circumstances, a reasonable person
♦ Arrest of felon while staying overnight in a third party's would believe the person possessed actual authority
home: only arrest warrant req'd $ Georgia v. Randolph, 547 U.S. 1 03 (2006) (if the objecting
co-tenant is of equal status to the consenter, is present, and
makes objections known, police cannot rely on consent of the
PROBABLE CAUSE: WARRANT COMPONENTS
other co-tenant)
Warrant must:
$ Illinois v. Rodriguez, 497 U.S. 177 (1990) ((apparent authority) a
♦ Be issued by a neutral and detached magistrate
reasonable mistake about a third-party's authority to consent
♦ Be based on PC
makes it a reasonable search)
♦ Be supported by oath or affirmation
3. Voluntariness - totality of the circumstances
♦ Particularly describe the place to be searched and the person or ♦ Factors (Schneckloth v. Bustamonte, 412 U.S. 218 (1 973)):
thing to be seized
◊Characteristics of the D
◊Characteristics of the situation
Probable Cause-facts and circumstances within officer's
◊Gov't responsibility-need coercive activity
knowledge based on reasonably trustworthy information supports
4. Scope of consent-depends on how consent was sought
a person of reasonable caution to believe that:
♦ To arrest: an offense has been committed and this is the person
responsible SEARCH INCIDENT TO ARREST (SITA)
♦ To search: an item subject to seizure would be found in the Rule: pursuant to lawful arrest, officers can search the body of
place to be searched at the time of the search arrestee and the area immediately surrounding him (wingspan)
♦ Based on affidavit from police officer: Rationale: protect officers and prevent evidence destruction
◊ Lays out facts and circumstances (look to quality/quantity) Criteria: (i) valid arrest and (ii) contemporaneous
◊ Swears they are true
◊ Explains why they are sufficient to justify a reasonable Scope
person's belief in PC ♦ Wingspan: area within the immediate control of the arrestee;
♦ Aguilar-Spinelli Test-validity/basis of knowledge; veracity fact-dependent inquiry

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$ Chimel v. California, 395 U.S. 752 (1 969) (wingspan in an ♦ Criteria:
in-home arrest does not extend to other rooms) ◊ PC to believe a felony has been committed
$ U.S. v. Robinson, 414 U.S. 218 (1973) ( can search arrestee's pockets, ◊ PC to believe the suspect is in the house
containers in the pockets, and other containers on the arrestee) ◊ Reasonable belief that suspect is dangerous
♦ Containers: can search closed or concealed containers in the ♦ Scope: anywhere the suspect or weapon might be
same room and within the arrestee's wingspan $ Warden v. Hayden, 387 U.S. 294 (1 967) (officers pursued a
$ Riley v. California, 573 U.S. 373 (2014) (SITA does not extend to suspected robber into his home; suspect was found on bed;
digital containers (phones, computers, etc.); search warrant req'd) officer downstairs in the basement opened the dryer and found
◊ Locks: officers may search locked containers robber's clothing; Court: it was reasonable to think there may
◊ Size: for physical containers, size is irrelevant have been weapons in the dryer)
$ Welsh v. Wisconsin, 466 U.S. 740 (1 984) (officers pursuing DUI
Timing suspect, suspect abandons car and walks home; officers arrive
♦ SITA search of home or person: anything the arrestee could sometime later and arrest him; officers did not have consent or
have accessed at the moment before the arrest warrant; Court: not a valid hot pursuit entry - minor infraction,
♦ SITA search of car: wingspan is determined at the moment of officers not in hot pursuit)
the search - Arizona v. Gant, 556 U.S. 332 (2009) $ Missouri v. McNeely, 569 U.S. 141 (2013) (destruction of blood
◊ Car is within wingspan only if the arrestee is unrestrained and alcohol content in a DUI arrest is not enough to allow police to
within reaching distance forcibly draw blood from a suspect without a warrant)
◊ Includes entire passenger compartment and any containers, $ Mitchell v. Wisconsin, 1 39 S. Ct. 2525 (201 9) (if DUI driver
but not the trunk is unconscious, gov't can almost always establish exigent
◊ "Reason to believe" search - regardless of D's access, officers circumstances to justify taking blood)
can search if there is reason to believe the car contains $ Kentucky v. King, 563 U.S. 452 (2011) ( officers pursued a drug
evidence of the crime for which the D was arrested deal suspect and kicked in door after suspecting the destruction
of drug-related evidence; Court: exigent circumstances exception
justifies pursuit and entry)
VEHICLE EXCEPTION
$ Carroll v. U.S., 267 U.S. 132 (1925), and Chambers v. Marony, 199 U.S. 42
(1970): officers can search a car they have PC to believe contains INVENTORY SEARCHES
evidence, weapons, contraband, or fruits or instrumentalities of a crime Exception to warrant requirement AND PC requirement
♦ Scope: anywhere in the car, including the trunk and closed Cars
containers, as long as PC that the particular location contains ♦ Criteria:
the things sought ◊ Lawful impoundment
♦ What is a vehicle? ◊ Must be of a routine nature (housekeeping purposes)
◊ Mobility ♦ Scope: all readily accessible areas of the car (passenger
$ California v. Carney, 471 U.S. 386 (1 985) (any readily mobile compartment, unlocked glove box, the trunk)
mode of transportation that has its own locomotive power and
is not being used exclusively for residential purposes) Arrested persons - booking search
♦ Criteria:
◊ Lawfu I arrest
WARRANT EXCEPTIONS: HOT PURSUIT ◊ Arrestee is going into the jail for any length of time
Entry: if officers have PC to believe a suspected criminal who has ◊ Standard department procedures are followed
fled a crime scene is inside a private space, they may enter without ♦ Scope: includes any article in the arrestee's possession
a warrant and without consent ◊ Containers - based on department policy
Search: officers may search private space for fleeing felon and $ Florence v. Board of Chosen Freeholders, 566 U.S. 318
weapons until the suspect is apprehended or it is clear the suspect (2012) (strip searches permitted)
is not in the home $ Maryland v. King, 569 U.S. 435 (201 3) (includes DNA cheek swab
for "serious crimes")

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ADMINISTR ATIVE SE ARCHES, SPECI AL $ U.S. v. Chadwick, 433 U.S. 1 (1977) (officers suspected that a
NEEDS SE ARCHES, AND PERVASIVELY foot locker in a train station contained drugs; can seize it
REGULATED INDUSTRIES without warrant but opening it requires a warrant)
♦ Private places: usually requires a search warrant to seize
Administrative Searches ◊Exception: if officers are properly in a private location, they
♦ Usually conducted by state actor other than police can seize items within that space without a warrant if PC
♦ Violation leads to fines or administrative sanctions, not jail
♦ Use administrative warrants: based on generalized PC to Special rules for containers in cars
believe the industry or neighborhood presents a risk to safety ♦ Container placed in car:
$ California v. Acevedo, 500 U.S. 565 (1991) (if officer has PC to
Special Needs Searches believe the container is or contains evidence, contraband, etc.
♦ Usually conducted by state actor other than police and the container is placed in a car, officer can stop the car,
♦ Do not require individualized suspicion open the car, seize the container, and open the container
♦ Common settings: without a warrant; cannot search the entire car)
◊ School searches ♦ Containers found during Carroll-Chambers search of a vehicle:
◊ Prisons and jails $ U.S. v. Ross, 456 U.S. 798 ( 1982) (if officers have PC to believe
◊Airports the container contains the thing they are looking for, officers
◊ Railways - drug testing of employees can search the container without a warrant)
◊ Automobile checkpoints ♦ Containers found during a SITA: officers can search containers
found in passenger compartment; cannot open trunk
Pervasively Regulated Industries ♦ Containers found during inventory search: can only be opened
♦ Exception to administrative warrant requirement pursuant to department policy
♦ Applies to inspection of buildings that house industries that are ♦ Containers found during a consent search: depends on the
heavily regulated scope of the consent
♦ Criteria: substantial gov't interest in activity being regulated,
proof that warrantless searches are necessary for effective 4TH AMENDMENT: PLAIN VIEW
enforcement, and statutory criteria for inspections are an Plain view during warrant-based search
adequate substitution for a warrant If police are (i) lawfully in a particular area, (ii) see an item in the
open from that lawful vantage point, (iii) have lawful physical
access to that item, and (iv) it is immediately apparent that the
4THAMENDMENT: COMMUNITY CARETAKING
item is contraband, a weapon, drugs, or fruits or instrumentalities
ENTRY
of a crime, then officers can seize the item without a warrant
♦ Officers may enter private property to render assistance if they
Plain view during warrantless searches: anything officers
have an objectively reasonable basis to believe someone inside is
see in the lawful search area is fair game.
in immediate danger or has been injured
"Immediately apparent" requirement
♦ No probable cause or warrant req'd $ Arizona v. Hicks, 480 U.S. 321 (1987) ( officers were lawfully
$ Brigham City v. Stuart, 547 U.S. 398 (2006) (police officers
present in apartment; moved equipment to get a better look at
could see through a window that an occupant of the house was
the serial number = improper search)
hurting another person)
Officers must have PC to believe the object is evidence,
$ Michigan v. Fisher, 558 U.S. 45 (2009) (entering a home after
contraband, etc. as soon as they see it; not permitted to
observing a chaotic situation, blood outside, and a man
manipulate, move, or touch item to determine if contraband
screaming and throwing things inside the house)
Other sensory perceptions
$ Minnesota v. Dickerson, 508 U.S. 366 (1983) ( "plain feel" rule:
4THAMENDMENT: CONTAINER SEIZURE when officers lawfully conduct a frisk for weapons, other items
AND SEARCH that are immediately apparent as contraband can also be seized;
♦ Public places: only PC is req'd to seize the item, but need a cannot manipulate the object to determine what it is)
search warrant to search the item

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4TH AMENDMENT: PRETEXT $ U.S. v. Hensley, 469 U.S. 221 (1985) ( officers can conduct a
$ Whren v. U.S., 517 U.S. 806 (1996) (pretextual stops and searches Terry stop if they have RS to believe the person has already
do not violate the 4 th Amend. as long as the officer was aware of committed a felony)
facts that objectively support PC to believe a crime has occurred; ♦ Officer can conduct a frisk if RS that the person is armed
PC to believe a traffic violation occurred = reasonable stop) and dangerous
♦ Circumstances known to the officer, not her subjective intent, RS is based on the totality of the circumstances
control the analysis ◊ Presence in a high-crime area = not enough, by itself, to justify
$ Devenpeck v. Alford, 543 U.S. 146 (2004) (facts need only a stop
support PC for some crime) ◊ Unprovoked flight from the police
$ Heien v. North Carolina, 574 U.S. 54 (2014) (traffic stop based ◊ Drug courier profiles
on a reasonable mistake of law = lawful) ◊Tip from an informant
♦ Subjective intent in administrative and inventory searches: ◊ Presence at the scene of a warrant execution
proper motivation is critical; not based on PC $ Michigan v. Summers, 452 U.S. 692 (1981) (detention of
occupants is reasonable when search warrant authorizes the
search of a residence, but no occupant can be frisked in the
4TH AMENDMENT: CHARACTERIZING CONTACT absence of individualized RS)
♦ Consensual encounter = not a seizure = no 4th Amend. issues
$ Bailey v. U.S., 568 U.S. 186 (2013) (if a person is found some
♦ Stop or detention = must be supported by reasonable suspicion
distance away from the site, cannot be detained absent
♦ Arrest = must be supported by PC
individualized RS)
Seizure requires either (California v. Hodari D., 499 U.S. 621 (1991)):
♦ Intentional application of physical force to a suspect's body, or
♦ Submission to the officer's show of authority-a reasonable,
4TH SCOPE OF CONTACT
innocent person in the suspect's shoes would not feel free to
Factors:
♦ Duration-reasonableness of Terry stop hinges on brevity
leave, terminate the encounter, or ignore the officer
♦ Purpose
◊ Look to the totality of the circumstances (e.g., number of
♦ Content
officers, location, displaying weapons, touching the suspect, etc.)
$ Hayes v. Florida, 470 U.S. 811 (1985) ( even a brief transport to the
$ Brendlin v. California, 551 U.S. 249 (2007) (when officers stop a
car, they are seizing both the driver AND passengers) police station for investigative purposes turns detention into arrest)
$ Hiibel v. Sixth Jud. Dist. Ct. of Nev., 542 U.S. 177 (2004) (not
$ Arizona v. Johnson, 555 U.S. 323 (2009) (seizure of passengers
continues and remains reasonable until the end of the traffic stop unreasonable for officers to require a suspect who is lawfully
or until a reasonable innocent person would feel free to leave) detained to provide identification)
$ Arizona v. Johnson, 555 U.S. 323 (2009) (requesting additional
information unrelated to the initial detention does not convert
4TH AMENDMENT: JUSTIFYING CONTACT the encounter into something other than a lawful stop)
Arrest: requires PC a crime was committed and the suspect is involved $ Pennsylvania v. Mimms, 434 U.S. 106 (1977) and Maryland v.
♦ In public = no warrant needed Wilson, 519 U.S. 408 (1997) (requesting a driver or passenger to
♦ In arrestee's home = requires arrest warrant and reason to exit during a traffic stop does not transform it into an arrest, as
believe suspect is home long as it does not prolong)
$ Atwater v. Lago Vista, 532 U.S. 318 (2001) (police can make $ U.S. v. Place, 462 U.S. 696 (1983) (detaining a traveler's
warrantless arrest in public for any offense committed in possessions: officer must have RS to believe the possessions
their presence) contain contraband; can briefly detain to investigate)
$ Virginia v. Moore, 553 U.S. 164 (2008) (even if state law
◊Use of a drug-sniffing dog does not transform stop into an
prohibits custodial arrest for a type of offense, as long as arrest; must be performed expeditiously
officers have PC, arrest does not violate 4h Amend. )e to leave)

Detention/Stop: Terry v. Ohio , 329 U.S. 1 (1968)

♦ Stop and frisk can be justified on reasonable suspicion (RS)

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4TH AMENDMENT: FRISKS $ Hiibel (asking for ID in the context of a stop does not qualify)
Scope: limited to concerns for officer safety; requires RS of weapons $ Beckwith v. U.S., 425 U.S. 341 (1 976) (interview occurs in the
Frisk of a person suspect's home and he has not yet been formally arrested;
During lawful Terry stop, officer can conduct quick pat down of not custody)
outer clothing for weapons $ Oregon v. Mathiason, 429 U.S. 492 (1 976) (interview occurs
$ Minnesota v. Dickerson (plain feel extension) at police station and suspect has not been formally arrested;
Frisk of a car not custody)
$ Michigan v. Long, 463 U.S. 1 032 (1 983) (pursuant to a lawful
traffic stop, officer can perform cursory search of passenger INTERROGATION: DEFINING INTERROGATION
compartment for weapon; does not include trunk) ♦ Direct questions OR conduct that is reasonably likely to elicit an
Frisk of a house incriminating response (constructive interrogation)
$ Maryland v. Buie, 494 U.S. 325 (1 990) (protective sweep $ Rhode Island v. Innis, 446 U.S. 291 (1 980) (officers speaking to
doctrine: officers can conduct a protective sweep of a house one another in car with the suspect and suspect then speaks;
pursuant to a lawful in-home arrest; limited to adjoining not interrogation)
areas-if RS, then other areas) ♦ Asking booking questions = not interrogation
♦ Third-party questioning = not interrogation
♦ Questioning by undercover agent/informant = not interrogation
INTRODUCTION TO MIRANDA
$ Miranda v. Arizona, 384 U.S. 436 (1 966): no custodial
interrogation is permitted unless the police: (1) warn the THE WARNINGS REQUIREMENT
suspect of his sh Amend. rights, and (2) obtain a knowing and ♦ Must be given before custodial interrogation begins
intelligent waiver of those rights ♦ Substantial compliance: did the officer reasonably convey the
substance of the Miranda warnings?
Scope of protections: limited to use of the statement in $ California v. Prysock, 453 U.S. 355 (1 981) (officer alludes to the
case-in-chief against speaker right to counsel but never says fully that it applies during
♦ Can still be used to impeach interrogation; Court: substantial compliance)
♦ Physical fruits of statements can be used $ Duckworth v. Eagen, 492 U.S. 1 95 (1 989) (last sentence of the
warning appears to associate the right to a free lawyer with the
Exceptions to Miranda next appearance in court; Court: substantial compliance)
♦ Public safety $ Florida v. Powell, 595 U.S. 50 (201 0) (telling a suspect he can
$ New York v. Quarles, 467 U.S. 649 (1 984) (rape suspect with have a la wyer with him before questioning and that the rights
empty shoulder holster asked where is the gun; D's statement can be invoked at any time is sufficient to inform that he has the
and gun itself could be used at trial against D) right to have a la wyer present during questioning)
♦ Booking questions $ Dickerson v. U.S., 530 U.S. 428 (2000) (court judged a federal
statute for compliance with Miranda; held it did not comply; only
covered voluntariness requirement)
DEFINING CUSTODY
♦ Relevant inquiry: would a reasonable person feel restrained to a
degree equal to being arrested? WAIVER OF MIRANDA RIGHTS
♦ Custody standard = constructive arrest ♦ Burden of proof: prosecution by a preponderance of the evidence
♦ No formal arrest: look to the totality of the circumstances ♦ Existence of waiver
(e.g., location, number of officers, any communication regarding $ Berghuis v. Thompson, 560 U.S. 370 (201 0) (following
custodial status, etc.) warnings, demonstrated understanding plus giving an uncoerced
♦ On the scene questioning = not custody statement = waiver)
$ Berkemer v. McCarty, 468 U.S. 420 (1 984) (questioning a
♦ Validity of waiver
driver on the side of the road during a traffic stop on suspicion ◊Must be knowing and intelligent
of DUI does not qualify as custodial interrogation) $ Moran v. Burbine, 475 U.S. 41 2 (1 986) (police do not have to tell
a suspect when a lawyer is waiting to talk to him)

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$ Colorado v. Spring, 479 U.S. 564 (1 987) (police do not have to DELIBERATE ELICITATION AND SAME CRIME
tell a suspect about all the subjects they intend to discuss) Deliberate Elicitation
◊ M ust be vol u ntary ♦ Active ind ucement of statements from the D by a gov't agent or
informant, or
INVOCATION ACTIVITY ♦ Deliberate construction of a situation to ind uce the D to make
Invocation of the right to silence an incri m i nating statement
$ Michigan v. Mosley, 423 U.S. 96 (1975) (must be clear and police ◊ I nd u cement other than q uestion ing
must scrupulously honor it) $ Fellers v. U.S., 540 U.S. 51 9 (2004) (officers' conduct amounted
♦ U pon invocation, police must stop i nterrogation i m med iately to deliberate elicitation even though they did not engage in
♦ Pol ice can rei n itiate contact if: direct questioning; showed up at house with arrest warrant, told
◊ They wait a sign ificant amount of time (2 hou rs) he had been indicted, mentioned others who had been indicted,
◊ They give fresh warni ngs and sec u re a val id waiver wanted to talk to him)
◊ They only q uestion the suspect about a different crime $ Brewer v. Williams, 430 U.S. 387 (1977) (arrested and arraigned
♦ Exception: D re-initiates the contact-passage of time doesn't for murder and kidnapping of 10-year-old girl; police give
matter and can tal k about same crime Williams speech about Christian burial; Williams says where the
body is; conduct violated right to counsel)
Invocation of right to counsel (RTC) ♦ Use of undercover agent: can engage in active i n d ucement
$ Edwards v. Arizona, 451 U.S. 477 (1 981) (all questioning must that violates RTC
stop until an attorney is present)
♦ Appl ies to ALL crimes; not offense specific Same crimes v. different crimes
♦ Protection lasts for two weeks after release from custody $ Texas v. Cobb, 532 U.S. 162 (2001) (use the Blockburger test
♦ Req uest must be u nambiguous and specifically mention (Blockburger v. U.S., 284 U.S. 299 (1932)): compare statutory
cou nsel's assistance elements of each crime and see whether each crime contains an
◊ Test: wou ld a reasonable officer i n the circu mstance element that the other does not
understand this to be a req uest for cou nsel's assistance with
the i nterrogation? COMPARISON OF 6 AMENDMENT RIGHTTH

♦ Exception: D rei n itiates contact; req u i res fresh warni ngs and TO COUNSEL WITH 5 AMENDMENT AND TH

val id waiver MIRANDA

s'
h
Amendment
6
TH
AMENDMENT RIGHT TO COUNSEL 6'h Amendment
and Miranda
Attachment
YES NO
♦ Occ u rs at earl ier of (1) fi l i ng of charges or (2) i n itial appearance Offense Specific?

in cou rt Irrespective of
Only to custodial
custody at all
♦ Right is offense specific-attaches only to crimes for which Application
critical stages interrogation
charges have been fi led
Automatic at time Only if D unequivocally
Critical Stage charges are filed or com municates desire for
Attachment
initial appearance counsel and only while
♦ Any cou rt appearance on the c ri me charged is made in custody
♦ Any q u estion ing by u niformed officers or undercover agents on
the crime charged Undercover Agent Applies Does not apply

♦ Pre-trial identification proced u res after charges have been fi led

(not photo arrays) ♦ Val id waiver of 5th Amend. RTC = effective waiver of 6th Amend.
RTC for i nterrogation pu rposes
Waiver: subject to the knowing, intelligent, and voluntary requirement ♦ 5 Amend.: once i nvoked, can not question the D about any
th

$ Montejo v. Louisiana, 556 U.S. 778 (2009) (at any point in the crime or try to get a waiver u n l ess the attorney is present
case, D can waive the right; lawyer does not need to be present ◊ Exception: D rei n itiates the conversation
to make the waiver valid) ◊ Protection lasts while D is in custody plus two weeks

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♦ 6th Amend.: officers may try to get a waiver even if the lawyer is ♦ If D claims procedure was impermissibly suggestive and court
not present agrees, it considers:
♦ Police efforts to prevent attorney access: 1 . Opportunity of witness to view offender at the time of the crime
◊5th Amend.: police do not need to provide full information to 2. Witness's degree of attention to the offender's face at the
the suspect time of the crime
◊6th Amend.: D can try to establish waiver was involuntary if 3 . Accuracy of the witness's prior description of the offender
officers misrepresent whether a lawyer had been appointed 4. Level of certainty demonstrated at the time the witness
made the identification
5 . Time between the crime and the identification procedure
INTERROGATION: DUE PROCESS
Rule: An involuntary statement and its fruits cannot be used for
any purpose EXCLUSIONARY RULE
♦ 4th Amend.: gov't cannot use evidence seized during an
Involuntary confession unreasonable search or seizure to prosecute the person from
♦ Test for involuntariness = totality of the circumstances whom it was seized
♦ Gov't must prove voluntariness by a preponderance of the evidence ♦ 5th and 6th Amends.: statements obtained in violation of the right
♦ Consider traits of the suspect and nature of the interaction to counsel, Due Process, or Miranda cannot be used against the
$ Colorado v. Connelly, 479 U.S. 157 ( 1986) (there must be some speaker in a criminal trial
coercive police conduct) ♦ Limitations:
♦ Compliance with Miranda-not sufficient to prove confession ◊ Proceedings-generally limited to criminal prosecutions
was voluntary ◊ Standing-conferred only on those persons directly victimized
♦ Noncompliance with Miranda-noncompliance + one other by police conduct
factor = involuntary confession $ Rakas v. Illinois, 439 U.S. 128 (1978) ( car stopped with four
passengers; gun found under seat, ammo in glove compartment;
Boundaries of the coercion doctrine passengers did not have standing to challenge the search)
1 . Police responsibility ◊ Houseguests:
2. Undercover agents • Overnight guest-legitimate expectation of privacy in the
3 . Promises portions of the home with a connection
$ Arizona v. Fulminante, 499 U.S. 279 (1991) (D arrested and • Houseguest not staying overnight and limited
convicted for felon in possession of firearm; suspected of connection-no reasonable expectation of privacy
murdering stepdaughter (not charged); informant placed in cell
who pretends to be a mob boss and offer protection if D
discussed murder; coercion caused D to speak in violation of EXCLUSIONARY RULE: GOOD-FAITH
due process) EXCEPTION
♦ Based on the objective reasonableness of an officer's reliance on
a warrant that later turns out to be defective
IDENTIFICATION PROCEDURES
♦ Four instances when the exception cannot be claimed:
Types:
◊ Officers misled the magistrate with information they knew
♦ Line-up
was false or recklessly disregarded the truth
♦ Show-up
◊ Magistrate has wholly abandoned its judicial role
♦ Photo array
◊ It is entirely unreasonable for officers to believe PC existed
◊ The warrant is so facially deficient that it is unreasonable for
6th Amend. RTC: live-action identification after charges have been
officers to presume it was valid
filed = D has right to have counsel present
♦ Extensions of the exception:
5th and 1 4th Amend. Due Process $ Illinois v. Krull, 480 U.S. 340 (1987) ( officer can reasonably
rely on a statute that is later determined to be invalid)
♦ Regulates the reliability of the identification procedure
♦ Applies to all types at any time

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t Arizona v. Evans, 514 U.S. 1 (1995) (officer can reasonably rely ATTENUATION: MIRANDA VIOLATIONS
on information provided by a courthouse staffer that later turns t Missouri v. Seibert, 542 U.S. 600 (2004) (interrogation
out to be invalid) before warnings and then after; second statement (after
t Herring v. U.S., 555 U.S. 135 (2009) (exception protects officer warnings) will be suppressed unless prosecution shows Miranda
who reasonably relies on the actions of another law warnings could reasonably be found effective from the point of
enforcement employee from another agency; actions must be view of the suspect)
negligent, not deliberate, reckless, etc. ) ♦ Factors:
t Davis v. U.S., 564 U.S. 229 (2011) (officer who reasonably relies ◊ Completeness and details in questions and answers
on binding appellate case law that is later overturned can claim ◊ Overlapping content
good faith and prevent exclusion) ◊ Timing and setting
◊ Continuity of police personnel
FRUIT OF THE POISONOUS TREE ◊ Officers' intent to circumvent Miranda
♦ Direct evidence: obtained immediately and directly from police action ♦ Physical fruits and new witness testimony-should not be
♦ Derivative evidence: obtained by police who follow the trail suppressed just because of a Miranda violation
produced by direct evidence
♦ Both are presumptively excludable if obtained from a INDEPENDENT SOURCE DOCTRINE
constitutional violation-causal connection req'd If police engage in misconduct but the challenged evidence is
♦ T hree exceptions: obtained from a source independent of the misconduct, the
◊Attenuation evidence should be admissible
◊ Independent source Basic independent source: two separate and independent tracks
◊ Inevitable discovery of police action
Complex independent source (rediscovery)
ATTENUATION: 4TH, 5TH, AND 6TH AMEND. t Murray v. U.S. (officers broke into warehouse and searched
VIOLATIONS without warrant, found marijuana, applied for warrant,
♦ Gov't may use evidence derived from methods that are far conducted warrant-based search, seized marijuana and
removed from the illegality customer records; admissible)
♦ Dissipation of the taint: totality of the circumstances Genuinely independent:
♦ Police decision to get a warrant must not have been prompted
t Brown v. Illinois, 422 U.S. 590 (1975) (attenuation factors: (i) by the unlawful search
purpose and flagrancy of misconduct, (ii) time between police ♦ Magistrate's decision to issue a warrant must have been
illegality and the collection of evidence, and (iii) significant independent of the illegality
intervening events)
♦ Attenuation in 4th Amend. cases: INEVITABLE DISCOVERY DOCTRINE
t Wong Sun v. U.S., 371 U.S. 471 (1963) (admissibility of Gov't may use evidence discovered illegally if it can establish that it
statements following an illegal arrest; made a few days after inevitably would have discovered the evidence through an
release following arraignment; returned to the station independent legal channel that was already being pursued
voluntarily to speak with police) t Nix v. Williams (467 U.S. 431) (1984) (officers violated D's 6th
t Brown v. Illinois (illegal arrest: no PC, officers were violent; Amend. RTC by giving the "Christian Burial Speech," which
confessed twice after; Miranda compliance establishes absence caused D to reveal the location of the body; at the time this
of compulsion for 5th Amend. purposes but does not dissipate happened, a search team was already looking for the body-2.5
taint of illegal arrest) miles away when officers who violated rights found the body;
◊ Attenuation applies to statements and physical fruits body would have been found in 3-5 hours; evidence is admissible)
t Utah v. Strieff, 136 S. Ct. 2056 (2016) (discovery ofan arrest warrant
can break the chain of illegality stemming from an illegal stop) EXCLUSIONARY RULE: IMPEACHMENT
♦ 5th and 14th Due Process: same attenuation doctrine applies, but t Walder v. U.S., 347 U.S. 62 ( 1954 ) (used cost-benefit analysis to
more difficult to establish allow prosecutors to impeach with most types of illegally
♦ 6th Amend. RTC: open question; likely applies obtained evidence)

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♦ Evidence used to impeach the D's direct testimony EFFECTIVE ASSISTANCE OF COUNSEL
$ Harris v. New York, 401 U.S. 222 ( 1971) (statements obtained ♦ Two-part test (Strickland v. Washington, 466 U.S. 668 (1984)):
after incomplete Miranda warnings or in the absence of warnings) ◊Deficiency-performance beyond the bounds of objective
$ Oregon v. Hass, 420 U.S. 714 ( 1975) (fruits of Edwards reasonableness under prevailing professional standards
violation-statements after invocation of RTC) ◊ Prejudice-resu lt would have been different
$ U.S. v. Havens, 446 U.S. 620 ( 1980 ) (fruits of a 4th ♦ Effective assistance in plea bargaining
Amend. violation) $ Padilla v. Kentucky, 559 U.S. 356 (2010 ) (failure to inform D
$ Michigan v. Harvey, 494 U.S. 344 ( 1990) and Kansas v. of mandatory immigration consequences of plea deal =
Strickland error)
Ventris, 556 U.S. 586 (fruits of a 6th Amend. violation)
$ Missouri v. Frye, 566 U.S. 134 ( 2012) ( counsel failed to inform D
♦ Evidence used to impeach the D's direct testimony about offer to reduce felony charge to misdemeanor; D pied
$ Mincey v. Arizona, 437 U.S. 385 ( 1978) (fruits of due process guilty to felony; Strickland error)
violation); James v. Illinois, 493 U.S. 307 ( 1990) (use of illegally $ Lafler v. Cooper, 566 U.S. 156 (2012) (counsel advised D
obtained evidence to impeach witness other than D not permitted) charged with attempted murder to decline plea offer based on
TH counsel's error; D declined offer and received mandatory
6 AMENDMENT RIGHT TO COUNSEL sentence; Strickland error)
♦ Rule: in all criminal prosecutions, the accused shall have the
♦ Structural ineffectiveness and presumed prejudice:
right to have the assistance of counsel for his defense
◊Complete or explicit denial of counsel
♦ Right to appointed counsel in felony cases ◊Actual conflict of interests
♦ Misdemeanors: right to counsel depends on the fact of $ Cronic v. U.S., 466 U.S. 648 (1984) (counsel's utter failure to
incarceration after conviction subject the prosecution's case to meaningful adversarial testing
( e.g., failure to give an opening statement, failure to
RIGHT TO COUNSEL: WAIVER cross-examine witnesses, etc. ) )
♦ High standard for waiver (Faretta v. California, 422 U.S. 806
(1975))-D must:
◊ Prove he is knowingly choosing to proceed without counsel PROSECUTOR FILING
♦ Prosecutor has discretion over who and how to charge
◊ Make a clear and unequivocal assertion of the desire to
♦ Equal Protection: Selective Prosecution
represent himself ◊Prima facie case-D must prove that the gov't:
◊ Not abandon the effort to represent himself • Used an arbitrary classification
♦ Competency to waive RTC:
• Was motivated by discriminatory purpose, and
$ Godinez v. Moran, 509 U.S. 389 ( 1993) (whether the D • Created discriminato ry effect with its enforcement policy
understands the nature of the right and the consequences of ♦ Due Process: Vindictive Prosecution
the waiver) ◊violation occurs when D is punished for asserting his constitutional
◊ Must get explicit statements on the record demonstrating waiver rights by a prosecutor motivated by actual vindictiveness
�
◊ D must demonstrate a minimal degree of cognitive capacity � Blackledge v. Perry, 417 U.S. 21 (1974) (presumption of
◊ Court must inform D of dangers of self-representation vindictiveness when, after a successful appeal, prosecution files
♦ Self-representation on appeal: �
more serious charges)
$ Martinez v. California (right to represent oneself does not � U.S. v. Goodwin, 457 U.S. 368 (1982) (no presumption of
extend to appeals) vindictiveness for pretrial behavior)
TH
5 AMENDMENT: DOUBLE JEOPARDY
RIGHT TO COUNSEL OF CHOICE When does jeopardy ("DJ") attach?
♦ Right belongs to non-indigent Ds ♦ Jury trial-when jury is sworn
♦ Indigent D: no right to choose public defender or to change ♦ Bench trial-when the first witness is sworn
appointed counsel mid-trial, except for "good cause" ♦ Plea-when the court accepts the guilty plea
$ U.S. v. Gonzalez-Lopez, 548 U.S. 140 ( 2006) (right to choice of
Basic rule: no person shall be subject to multiple punishments or
counsel & right to effective assistance are separate rights under multiple prosecutions for the same offense
6th Amend.; no proof of prejudice req'd to show violation of ♦ No person can be: (i) retried after acquittal, (ii) retried after
right to choice) conviction, or (iii) punished twice for the same offense
♦ Limitations-conflict of interest; too many conflicting ♦ I F conviction overturned on appeal, new prosecution does not
schedules; not a lawyer; inability to afford violate DJ unless appeal was granted for insufficient evidence

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Limitations ◊ PC does not exist = must release
♦ Separate sovereign rule: do the two jurisdictions derive their 8th Amend.
power from independent sources or from same source? ♦ Prohibits excessive bail
◊ Each state = independent of other states and the fed. gov't ♦ No right to bail
◊ Native American tribes = separate authority ♦ Purposes of bail:
◊ Municipalities and counties = not separate ◊ Prevent flight
◊ Territories = not independent of the U.S. gov't ◊ Prevent commission of more crimes (dangerousness)
♦ Use of illegally obtained evidence-generally subject to
exclusionary rule in both state and fed. courts; state's rules more PROSECUTORIAL DISCLOSURE DUTIES
restrictive than fed. rules = evidence obtained illegally by state ♦ Goal = no surprises
standards usable in fed. court ♦ Governed by statutes and court rules
Prosecutorial disclosures
"Same offense": same elements test (Blockburger/Dixon) - when ♦ Grounded in the Due Process Clause
same behavior constitutes a violation of two distinct statutory
$ Brady v. Maryland, 373 U.S. 83 (1 963) (prosecutor has
provisions, the court asks whether each provision requires proof of affirmative disclosure obligation to turn over evidence that is
an element that the other does not exculpatory and material)
♦ Rule: failure to disclose evidence in its possession, regardless of
PRETRIAL SCREENING DEVICES whether requested, violates DP if (i) the evidence is favorable to
5th Amend. Grand Jury Clause: prosecution of a felony in federal the accused (i.e., exculpatory or impeaching), (ii) the evidence
court must be based on an indictment issued by a grand jury was suppressed by the gov't willfully or inadvertently, and (iii)
prejudice ensued
Preliminary Hearing Grand Jury
SUBSTANCE OF PLEAS AND PLEA BARGAINS
Most jurisdictions: PC
Standard Types:
Minority of jurisdictions - prima facie case
♦ Plea to the court/open plea/non-negotiated plea
Judge's presence Present and presides Not present ♦ Pleas resulting from bargain with prosecutor
Most states: 13-23 $ Weatherford v. Bursey, 429 U.S. 545 (1 977) (no constitutional
Decisionmaker Judge Federal court: 1 6-23 right to plea bargain)
(vote of 12 required) ♦ Charge bargain
D's presence and right ♦ Sentence bargain
Yes No
to counsel $ North Carolina v. Alford, 400 U.S. 25 (1970) (authorized trial courts
Rules of Evidence Relaxed evidentiary rules (e.g., ad mitting hearsay) to accept a guilty plea even when the D insists on factual innocence)

Right to confront
Appellate rights
Adversarial quality
and cross-examine
No cross-examination
♦ Waives ability to contest guilt or the sufficiency of evidence
Presentation of Not constitutionally required ♦ Waives trial rights unless (i) specifically reserved in the plea or
exculpatory evidence 1/3 of states: required (ii) goes to legality of the prosecution itself
Transcript Public Sealed
VALIDITY OF INDIVIDUAL PLEAS
Effect of dismissal: not a final judgment; jeopardy has not attached Competency
♦ D must have: (i) sufficient present ability to consult with an attorney
PRE-ACCUSATION DELAYS and (ii) rational and factual understanding of the proceedings
♦ Time between crime and filing Knowing
♦ Remedy: dismissal w/ prejudice ♦ Understanding the charge-must receive notice of the true
Due Process violation: elements (U.S. v. Lovasco, 431 U.S. 783 (1977)): nature of the charge
◊ Delay was unreasonable D's defense was thereby prejudiced $ U.S. v. Ruiz, 536 U.S. 622 (2002) ( Constitution does not
require complete knowledge; court may accept guilty plea
PRETRIAL DETENTION despite D's misapprehension)
4th Amend. ♦ Understanding consequences of the plea:
♦ Gerstein hearing: basis for PC is judged by the court within 48 ◊ Judge must advise D of direct consequences (maximum
hours or a reasonable time penalty and mandatory minimums), not collateral
◊ PC exists = judge can authorize continued detention until ♦ Understanding rights waived:
arraignment or bail hearing $ Boykin v. Alabama, 395 U.S. 238 (1 969) ( court's acceptance of

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guilty plea to capital murder without showing that D knew ♦ Waiver must be:
the rights he was giving up = plain error) ◊ expressly and intelligently made
◊ Judge must advise D of privilege against self-incrimination, ◊ in writing, signed by D, or stated on the record by D
right to trial by jury, and right to confront accuser(s) $ Majority rule (Singer v. U.S,,_ 380 U.S. 24 ( 1965) ): D must obtain
prosecutor's consent, court's consent, or both

VOLUNTARINESS OF INDIVIDUAL PLEAS STRUCTURE OF JURY TRIAL

♦ Courts generally consider whether the plea is the result of ♦ Jury size
threats, improper promises, misrepresentation, or bribes $ Williams v. Florida, 399 U.S. 78 (1 970) ( 6th Amend. not violated
♦ Prosecution's behavior: by use of juries smaller than 12 members; 6 was sufficient)
◊ Prosecutor promises to drop certain charges, but charge the $ Ballew v. Georgia, 435 U.S. 223 (1 978) (5-person jury violates 6th
whole complaint or add charges if negotiations break down = OK Amend. right to jury trial)
◊ Negotiations fail and prosecutor brings more serious charges, ♦ Unanimity-6th Amend. requires unanimity in state and federal court
but did not present these during negotiations = possible claim $ Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (applied
for vindictive prosecution requirement to state courts for the first time)
◊ D pleads guilty but prosecutor misrepresented sentence JURY SELECTION {VOIR DIRE)
exposure = possible claim for involuntary plea
♦ Purpose: ascertain the ability of prospective jurors to decide
Judge's behavior:
the case on the merits
◊ Participation in negotiation, by itself = OK
♦ Array: pool of jurors that represents a fair cross section of
◊ Look to particular facts of the case the community
◊ Involuntary pleas-judge significantly overstates D's
$ Duren v. Missouri, 439 U.S. 357 (1 979) (to prevail on a fair cross
predicament were he to stand trial; presses for guilty plea when
section claim, D must show: (1) group alleged to have been
D manifests desire not to plead guilty; indicates conviction at
excluded is a distinctive group in the community, (it)
trial is a foregone conclusion
representation of the group is not fair and reasonable in relation
6TH AMENDMENT: RIGHT TO SPEEDY TRIAL to the number of such persons in the community, and (iit) the
Attachment under-representation is due to systematic exclusion of the group)
$ U.S. v. Marion, 404 U.S. 307 (1 971) attaches automatically at the ♦ Venire: group of prospective jurors sent to a particular
time of arrest or formal charge, (whichever occurs first) courtroom to be questioned
Assertion: before trial begins ♦ Panel: drawn from the venire; seated to hear the case
Remedy: dismissal with prejudice ♦ Required characteristics for jurors: U.S. citizen, 18 years old,
resident of county or district, impartiality (among others)
ASSESSING 6TH AMEND. VIOLATION ♦ Peremptory challenges:
Factors (Barker v. Wingo, 407 U.S. 514 (1 972)) ◊ Strikes for any reason other than race (Batson v. Kentucky,
♦ Length of delay-most courts: delay of 9 months or one year 476 U.S. 79 (1986)) or gender (J.E.B. v. Alabama, 511 U.S. 127
♦ Reason for delay (1994)) bias
♦ Whether, when, and how often D asserted the right ◊ Batson challenge:
♦ Whether D was prejudiced by the delay • Opponent claims racial or gender bias by the opposing party
RIGHT TO PUBLIC TRIAL • Lawyer who has been accused is asked to give a race or
Four requirements before closing a courtroom to the public gender-neutral reason for the strike to rebut the presumption
(Waller v. Georgia, 467 U.S. 39 (1 984)): • Judge decides if race or gender-neutral reason is pretext
1. Party seeking to close must advance an overriding interest
likely to be prejudiced COLLATERAL ESTOPPEL (CLAIM PRECWSION)
2. Must be no broader than necessary to protect interest RULE:
3. Trial court must consider reasonable alternatives to closing When an issue of ultimate fact is determined by a valid and final
4. Trial court must make findings adequate to support the closure judgment, that issue cannot be relitigated by the same parties in
any future prosecution
RIGHT TO JURY TRIAL
$ Duncan v. Louisiana, 391 U.S. 145 (1 968) (jury trial available only ♦ Only the prosecution is bound by collateral estoppel
Typically does not apply to guilty pleas
for non-petty crimes)
$ Baldwin v. N.Y., 399 U.S. 66 (1 970) (maximum jail term of: 6
months or less = presumptively petty; more than 6 months =
non-petty)

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