Criminal Procedure

Criminal procedure deals with the set of rules governing the series of proceedings through which the government enforces substantive criminal law. Municipalities, states, and the federal government each have their own criminal codes, defining types of conduct that constitute criminal acts.

On the MBE there are approximately thirteen criminal procedure questions. The examine taker is responsible for common law definitions unless otherwise stated. Sometimes the MBE question asks for the best answer, which may be the modern view.


Criminal Proceeding. The process of adjudicating a legal action against a person suspected of committing a criminal act. Such procedures are safeguards against the indiscriminate application of criminal laws and the wrongful treatment of suspected criminals. Specifically, criminal proceedings are designed to enforce the constitutional rights of criminal suspects and defendants, beginning with initial police contact and continuing through arrest, investigation, trial, sentencing and appeals.

  1. I. Criminal Proceedings.
    1. Arrest. An arrest is made based upon probable cause. Police may only arrest (take physical custody) of a person if they have probable cause to believe the person committed a crime.
    2. Initial charge. 
Brought either before or after an arrest. A formal charge must be filed with the court in which the defendant is to be charged.
    3. Initial court appearance. The defendant must appear in court within a reasonable period of time of the arrest. The defendant will be informed of the following:
      1. Charges against the suspect.
      2. Right to counsel.
      3. How counsel will be appointed (for indigent defendants).
      4. Their right to a bail hearing and if bail is set, the amount.
    4. Preliminary hearing. 
A preliminary hearing determines whether probable cause exists for bringing the defendant to trial. This consists of calling witnesses and presenting evidence. The defendant has the opportunity to challenge the evidence by presenting their own evidence and calling their own witnesses.
    5. Formal charges. For serious criminal cases the charges must be formalized into an indictment or information.
      1. Indictment: An indictment is a formal charging document returned by a grand jury. In jurisdictions where an indictment is required, the prosecution must first present the case to the grand jury, which then votes on whether probable cause exists. When an indictment is required, the defendant does not receive a preliminary hearing because the grand jury determines whether probable cause exists.
      2. Information: States that do not use a grand jury require the prosecutor to file an information, which is a written accusation of the charges against a criminal defendant. Following the magistrate’s determination that there is sufficient evidence to bind over the defendant for trial, the prosecutor prepares and files an information, which is a formal charging document in jurisdictions where a grand jury indictment is not required.
    6. Arraignment. The defendant pleads guilty, not guilty, or no contest (nolo contendere) to the charges contained in the indictment or the information.
    7. Pretrial. 
During the pretrial stage, the defense makes pretrial motions. In addition, both parties may conduct discovery. The motions can attempt to suppress unlawfully obtained evidence, dismiss individual charges, or dismiss the entire case. Discovery is the opportunity of each side to obtain evidence to which it is entitled.

Example of pretrial motion: Defendant may move to dismiss the charges based upon the Double Jeopardy Clause.

Example of pretrial discovery: The prosecution must divulge to the defendant any exculpatory evidence (Brady v. Maryland).

  1. Trial. At trial the prosecution must prove beyond a reasonable doubt each element of the crime(s) charged. The majority of trials require trial before a jury of the defendant’s peers (although some misdemeanors may be tried before a judge).

Confrontation Clause. The defendant has the right to be confronted with and examine the witnesses who have supplied incriminating evidence.

Verdict. After closing arguments and the jury has been instructed, the case is submitted to the jury, who deliberate the facts and law. Upon reaching a conclusion, the jury must give a verdict of guilty or not guilty (or if the jury is hung, a mistrial can be declared).

  1. Sentencing. 
If the verdict is guilty the judge will sentence the defendant. During sentencing, each party may submit evidence that it wishes the judge to consider in issuing a sentence.
  2. Appeal. 
A defendant has a right to appeal the conviction and sentence. Ordinarily, failure to exercise the right to appeal within a designated amount of time will result in a waiver of this right.

  1. II. The Exclusionary Rule. A remedy available to defendants that exclude from trial evidence that was obtained unconstitutionally by government officials for the purpose of criminal prosecution. Applies to evidence obtained in violation of a defendant’s 4th, 5th, and 6th Amendment rights. The rule originally applied to the federal government. However, the rule is applies to states through the 14th Amendment. (See Mapp v. Ohio.)

Weeks v. U.S., 232 U.S. 383 (1914). Police entered the home of Weeks and seized papers that were used to convict him of transporting lottery tickets through the mail. This was done without a search warrant. Weeks brought action for the return of his private possessions. The Court held that the seizure of items from Weeks’ residence violated his 4th Amendment constitutional rights. To allow private documents to be seized and then held as evidence against citizens would mean the protection of the 4th Amendment declaring the right to be secure against such searches and seizures would be of no value whatsoever. This was the first application of what eventually became known as the exclusionary rule. The rule was created for federal prosecutions.

Mapp v. Ohio, 367 U.S. 643 (1961). Cleveland police department received a tip that Dollree Mapp was harboring a suspected bombing fugitive. Police went to her house and demanded entrance. Mapp called her attorney and under his advice she refused to allow them entry because they did not have a warrant. Several hours later, more officers came to her door and demanded entry. After Mapp refused, they forcibly entered through a door. Mapp demanded to see the search warrant. The police waved a piece of paper in the air (claiming it was the warrant). Mapp grabbed it and put it down her shirt. The officers cuffed her feet and searched the entire house for the fugitive. They also took back the document they claimed was a search warrant. When they reached the basement they found a trunk containing lewd and lascivious books, pictures and photographs. Mapp said she was holding the trunk for a friend and was not aware of its contents. The officers arrested her for violating an Ohio law, which prohibited the possession of obscene material. No fugitive or any evidence of one was ever found at the house. At trial Mapp was convicted based on the evidence presented by the police. Mapp’s attorney questioned the police about the warrant but they never produced one. The court held the exclusionary rule applied to states and prevented them from using illegally obtained evidence to convict someone. The court’s rationale is based on the connection between the 4th and 14th Amendment. Since the 4th Amendment’s right of privacy has been declared enforceable against states through the Due Process Clause of the 14th Amendment. If the right to privacy in the 4th Amendment is valid with regard to action by the states, the exclusionary rule should apply as well. Justice Clark defended the argument that this rule allows criminals to go free just because a police officer made a mistake, “Nothing can destroy a government more quickly than its failure to observe its own laws.”

The exclusionary rule applies to:

  1. Dishonest affiant. If the warrant was issued based upon a magistrate’s reliance on information supplied by a police officer that lied or exhibited reckless disregard for the truth in their allegations in the affidavit for search warrant.
  2. Nonjudicious magistrate. 
If the magistrate abandoned their judicial role in issuing the warrant.
  3. Bare-bones affidavit. 
If the warrant was based on an affidavit so lacking in probable cause as to render the officers reliance upon it unreasonable.
  4. Facially deficient warrant. 
If the warrant failed to state with particularity the place to be searched or the person or thing to be seized.
  1. Fruit of the Poisonous Tree Doctrine. The name is a metaphor given to evidence discovered from secondary knowledge illegally obtained from an invalid search, arrest or interrogation. The poisonous tree and the fruit are both excluded from a criminal trial.

Example: Police illegally enter a house without a search warrant and view marijuana on the table. The entry into the home was illegal and as a result of that illegal entry, the marijuana cannot be used as evidence against the homeowner.

Silverthorne Lumber Co. v. U.S., 251 U.S. 385 (1920). Silverthorne was accused of tax evasion. IRS agents and the U.S. Marshalls office illegally entered their place of business and seized tax books and created copies that were turned over to the Attorney General for prosecution. The issue in this case is whether derivatives of illegally obtained evidence is permissible at trial. To allow derivatives in as evidence would encourage police to circumvent the 4th Amendment. The copies were therefore tainted and inadmissible. This precedent became known as fruit of the poisonous tree, an extension of the exclusionary doctrine.

Wong Sun v. U.S. 371 U.S. 471 (1963). Narcotics agents unlawfully entered Toy’s laundry. Toy told police Yee was selling narcotics. The drug agents searched Yee and found narcotics. Yee made a deal to give up his supplier, Wong Sun. Sun was a prominent businessman, so police invited him to the station to discuss the case. Following this conversation, Sun voluntarily returned to the station to make a deal of his own, during the process he confessed. At Yee’s trial, Toy’s statements and the drugs were excluded as fruit of the poisonous tree because the search was done without a warrant. Sun’s lawyer argued that Sun’s confession should also be excluded as fruits of the poisonous tree. The court affirmed the fruit of the poisonous tree rule, but found an exception to exclusion in Sun’s case on the grounds that Sun had voluntarily returned to station to make his statement, an act that broke the chain of evidence. Sun’s confession was admissible.

Exceptions: Where the doctrine does not apply.

  1. Independent source. The government can show that the evidence was discovered as a result of an independent and untainted source.
  2. Inevitable discovery. The police are able to show that the evidence would have inevitably been discovered anyway.
  3. Good faith. A search warrant that lacked probable cause, but was executed in good faith.
  4. Doctrine of attenuation.
    1. An act of free will by the defendant.
    2. A broken causal chain between the illegality and seizure of the evidence.

Example: A police officer illegally enters a house without a search warrant, views marijuana on the table and arrests the homeowner. If the homeowner is released on bail and then returns to the police station and confesses, this intervening act of free will breaks the chain, making the evidence admissible.

  1. Limitations to the Exclusionary Rule.
    1. Grand jury, civil and parole proceedings. Unconstitutionally obtained evidence may be used in grand jury, civil and parole proceedings. The purpose of a grand jury is to determine if probable cause exists to prosecute a criminal suspect. The 5th Amendment right to a grand jury has not been incorporated into the 14th Amendment. Grand jury’s may consider hearsay evidence and they are held in secret, meaning there is no right for a defendant to be present unless they are called to appear. An accused may assert their 5th Amendment privilege against self-incrimination. There is no right to confront witnesses, no right to cross-examine, no right to present evidence, no right to council, no right to Miranda warning.
    2. Impeaching a defense witness. The prosecution may introduce unconstitutionally obtained evidence to impeach a defendant who has taken the stand.

Example: A voluntary confession taken in violation of Miranda.

Example: Evidence obtained from an illegal search.

  1. Good faith reliance. Unconstitutionally obtained evidence may be used against a defendant if it was obtained in good faith reliance.

U.S. v. Leon 367 U.S. 643 (1961). Police received a tip identifying Stewart and Sanchez as drug dealers. Police began surveillance of their homes and followed leads based on cars that frequented the home. Police identified Ricardo Del Castillo and Alberto Leon as being involved in the operation. Based on the surveillance and information from a second informant, a detective wrote an affidavit and a judge issued a search warrant. The police conducted the search, but the search warrant was later found to be invalid because the police lacked probable cause for a warrant to be issued. The evidence obtained in the search was admissible anyway because police performed the search in good faith reliance that the warrant was properly issued.


  1. Judicial opinion. Evidence will not be excluded if police relied in good faith on an invalid search warrant, issued by a magistrate that gave them reason to believe their actions were constitutional. Unless:
    1. It was so defective they should have realized it.
    2. It was so lacking in probable cause it could not reasonably be relied on.
    3. The affiant (the person who swears to its truth) lied or misled the magistrate.
    4. Statute. Evidence will not be excluded when police rely in good faith on a statute or an ordinance later declared unconstitutional.
    5. Search warrant. Evidence will not be excluded when the police rely in good faith on a validly issued search warrant later declared defective.
    6. Harmless error.
      1. If illegal evidence was admitted at trial and the defendant was convicted, the conviction won’t be overturned on appeal if the government can show beyond a reasonable doubt that the error was harmless.
      2. Denial of a right to counsel at trial is never harmless.
      3. Reversible error.
        1. Denial of the right to council.
        2. Improper or unconstitutional jury bias.
        3. Jury pool chosen in a racially discriminatory manner.

  1. III. Fourth Amendment Searches. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
    1. 1. Neutral and detached. A warrant must be sworn, but it doesn’t have to be in writing.
      1. It must be issued by a neutral and detached magistrate. To be neutral and detached a magistrate cannot be paid for the warrant’s they issue.
      2. The magistrate issuing a warrant must be a judicial official such as a justice of the peace or a city court clerk. Not a police chief. Not a prosecutor.
    2. 2. Specificity requirement. The 4th Amendment requires that a warrant particularly describe the place to be searched and the person or things to be seized.
      1. If a warrant is issued for contraband, it’s too general and the warrant would fail.
      2. Police may have some discretion, but if they have too much discretion the warrant may be invalid.

Example: A warrant is issued for apartment #1 at 123 Maple St. Police arrive and it’s an apartment building, but there is an apartment #1 on each floor. Here, the police have some discretion, three #1 apartments, one may argue that police have some discretion and this warrant might be valid. However, if the warrant was issued for 9000 Wilshire Blvd. with more than 500 offices. That would clearly give police too much discretion.

  1. 3. Scope of executing a search warrant.
    1. Plain view doctrine. A police officer may search any where within the scope of whatever items the warrant describes and until they find those items, any other incriminating evidence that is found may be lawfully seized. Coolidge v. New Hampshire.

Example: Police enter a home with a warrant to search for a stolen stereo system. The police ask to use the bathroom and the homeowner gives permission. He enters the bathroom and lifts the toilet lid, finding drugs stashed under it. Is this a proper seizure? No, because it was not within the scope of the described items because a stereo could not be kept under a toilet lid.

Example: Police go to a home with a warrant for a stereo. The warrant is for a Yamaha stereo. On the coffee table is a stereo with its serial number removed. It’s not a Yamaha stereo. The police were lawfully on the premises, the item was in plain view and the incriminating character of the evidence was immediately apparent.

Example. Police enter the basement and find the named stereo and then decide to go up to the attic where they find another stolen stereo. May they properly seize it? No, because once the named item was found all further searches must cease.

MBE: Police enter a home with a search warrant for a stolen stereo. They find one in the living room and lift it up and turn it around and realized the identification number was removed. Here, the seizure of the stereo is unlawful because it violates the plain view doctrine where police turned they stereo around to look at it. They didn’t merely notice the serial number was removed. Arizona v. Hicks.

Good faith exception to a warrant requirement. Evidence obtained due to honest police mistakes should not be excluded. U.S. v. Leon.

Example: A magistrate makes a technical error in issuing a warrant and the police act in good faith when serving that warrant.

Example: The magistrate did not have enough probable cause to issue the warrant and the police served the warrant in good faith that there was enough probable cause.

Example: Good faith doesn’t apply where police lie or misleads a magistrate in issuing the warrant.

Michigan v. Somers. A person or occupant of a home present on the premises during the execution of a warrant may be detained. They can be detained, but they cannot be searched absent a showing of probable cause.

Knock and announce. Police are required to knock and announce their purpose before entering pursuant to a warrant. The requirement is excused if an officer has reasonable suspicion that knocking would be dangerous to the officers, or where it would be futile, such as where it would inhibit the investigation, giving the suspects the opportunity to destroy the evidence.

Warrants need not be executed in the daytime.

A search conducted pursuant to a validly issued warrant is always reasonable.

The 4th Amendment protects the privacy interests of people, not places.

Applies to government, not private citizen conduct.

Probable cause for a search warrant versus probable cause for an arrest warrant.

Probable cause for a search warrant must not be stale. An arrest warrant may remain outstanding until the defendant is apprehended.

One can be arrested today for what they did last year, but they can’t be searched for it.

Probable cause is a higher standard than mere suspicion.

When is a warrant required for an arrest?

  1. An arrest taking place at ones home.

Example: A suspect answering a door and leaning out with their foot over the threshold does not constitute being at home. No arrest warrant is required.

  1. A suspect arrested in another person’s home requires a warrant to specifically state that it is searching for that person.
  2. A warrant is never required to arrest a person in a public place.
  3. If a misdemeanor is observed in the presence of a police officer, or a private citizen no warrant is required.

Example: A person violates an anti-littering ordinance not observed by police. If they are to make an arrest a warrant is required.

  1. Felonies observed by a police officer, or private citizen do not require an arrest warrant.
  2. If police have a reasonable belief that a suspect has committed a crime no warrant is required.
  3. If a private citizen doesn’t observe a felony, no warrant is required. However, they may be liable for false imprisonment if the person arrested didn’t commit the felony.

  1. Standing requirement. Standing in criminal procedure applies to the defendant, unlike constitutional law where standing applies to the plaintiff.

Defendants have no standing to object to unconstitutionally obtained evidence unless they have a reasonable expectation of privacy in the area searched.

Rakas v. Illinois. 439 U.S. 128 (1978). A police officer on routine patrol received a radio call notifying him of a robbery and description of the getaway car. Shortly thereafter, the officer spotted a car matching the description. After the arrival of assistance, he and several other officers stopped the vehicle. The occupants of the car were ordered out and officers searched the interior. They discovered a box of rifle shells in the glove compartment, which had been locked and a sawed-off rifle under the front passenger seat. Rakas was placed under arrest. At trial, the prosecution offered into evidence the sawed-off rifle and shells that had been seized during the search of the car in which Rakas had been a passenger. He was not the owner of the automobile and denied owning the rifle or shells seized. The motion to suppress was denied and he was convicted of armed robbery. The Court held Rakas lacked standing to object to the allegedly unlawful search and seizure because he did not have a possessory interest in the car or the items seized and therefore, lacked standing to challenge the admissibility.

Example: Officer unlawfully searches Valerie and finds evidence that implicates Donald in a crime. Donald does not have standing to object to the introduction of this evidence at his criminal trial because Donald does not have a reasonable expectation of privacy in Valerie’s person.

Example: Officer unlawfully searches Valerie’s home, where Donald is an overnight guest and discovers evidence that implicates Donald in a crime. Donald has standing to object because he has a reasonable expectation of privacy in a place where he is a guest.

Possession crimes. Formerly standing was automatic. Not any longer.

Example: A is a passenger in B’s car. The car is searched. Heroin is discovered. A is charged with possession of heroin. A may not object to its introduction into evidence because A lacks a possessory interest in the ownership of B’s car.

MBE: B and D are charged with robbery and conspiracy. Both assert their Miranda right to silence and there 5th Amendment right to council. The police make an offer to B stating they will drop charges if he cooperates. B confesses and implicates D and tells police where D hid a diamond necklace stolen during the robbery. The police confront D and tell him what B said and show D the diamond necklace. D confesses. At his trial D moves to suppress both the confession and the necklace. The motion will be granted as to the confession because the statement was taken in violation of D’s Miranda and right to council. Denied as to the necklace because D had no standing. One conspirator lacks standing to challenge the admissibility of illegally obtained information used against him if that evidence was obtained from a coconspirator.

  1. Searches. Scope of the 4th Amendment.

The 4th Amendment only applies to situations where a person has a reasonable expectation of privacy.

Katz v. U.S., 389 U.S. 347 (1967). Charles Katz used a public pay phone booth to transmit illegal gambling wagers from Los Angeles to Miami and Boston. Unknown to Katz, the FBI was recording his conversations via an electronic eavesdropping device attached to the exterior of the phone booth. Katz was convicted based on these recordings. He challenged the conviction arguing that the recordings were obtained in violation of his 4th Amendment rights. The appeals court sided with the FBI because there was no physical intrusion into the phone booth itself. The Supreme Court granted certiorari. The government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a search and seizure within the meaning of the 4th Amendment. Regardless of the location, a conversation is protected from unreasonable search and seizure under the 4th Amendment if it is made with a reasonable expectation of privacy. Wiretapping counts as a search. Physical intrusion is not necessary. The Katz decision left two tests:

  1. Subjective test. The individual must have a subjective expectation that they will be free from government intrusions.
  2. Objective test. 
The individual’s expectation of privacy must be one that society is willing to accept as reasonable. Factors to remember:
    1. The nature of the property. The home is entitled to more protection than curtilage or open fields.
    2. The measures an individual has taken to secure their privacy.
      1. No protection for information knowingly exposed to the public.  One who voluntarily exposes information to the public, even if in one’s home or office is not subject to 4th Amendment protection. Examples:
        1. Sound of one’s voice.
        2. Style of one’s handwriting.
        3. Color of one’s car.
        4. Anything that can be seen from a public space.
        5. No protection for information conveyed to others.

One who voluntarily conveys information to another assumes the risk that the individual may be a government agent or will turn that information over to the government. Examples:

  1. Bank records.
  2. Unreliable ear. A person assumes the risk that the person to whom they are speaking to is an agent of the government and is wired or will report the information to the government.
  3. The degree of police intrusion through the use of surveillance or other techniques.
  4. Settled areas of law. The following areas have been decided as to whether a person has a reasonable expectation of privacy. Unless the defendant has a reasonable expectation of privacy in the property or area searched there is no 4th Amendment protection. Whether someone has an expectation of privacy is based on the totality of the circumstances.

There will always be an expectation of privacy if:

  1. One owned or had a right to possession of the premises searched.
  2. The place searched was in fact the suspects home, even if they did not have the legal right to be there.

Example. A homeless person.

  1. An overnight guest of the owner of the place searched including hotel rooms.

There is no reasonable expectation of privacy in things held out to the public. Highly tested on the MBE and essays.

  1. Open fields are not protected. 
There is no 4th Amendment protection and no reasonable expectation of privacy for open fields. Entry into and exploration of open fields does not constitute a search within the meaning of the 4th Amendment. Open field defined. An open field includes any unoccupied or undeveloped area outside the curtilage. It need not be open and it need not be a field.

Oliver v. U.S. 466 U.S. 170, (1984). Acting upon a tip that defendant was growing marijuana on his property, two police officers drove onto defendant’s land, past his house and up to a gate that was marked with a no trespassing sign. The officers left their vehicle and walked along a footpath around the gate onto defendant’s property and continued down the road for nearly a mile. The officers spotted a large marijuana crop on growing defendant’s property. The defendant was charged with marijuana cultivation. The defendant challenged the evidence on 4th Amendment grounds. The Supreme Court held that people may not legitimately expect privacy for activities conducted out doors in fields, except in the areas immediately surrounding their home. Open fields do not provide a setting for intimate activities that the amendment is intended to protect from government interference or surveillance. The Court held that open fields usually are accessible to the public and no trespassing signs are generally ineffective at barring the public from viewing open fields in rural areas and the public and police lawfully may survey lands from the air. Because of these considerations, the Court declined to accept the defendants’ expectation of privacy as one that society recognizes as reasonable.

Simply because a law-enforcement official has an open-field vantage point of the home or curtilage does not mean that he can enter these areas without a warrant.

  1. Curtilage. The area immediately around a home traditionally reserved for domestic use including patios and porches. Areas beyond the curtilage are open fields, probably includes a barn. Curtilage is partially protected. The amount of protection curtilage receives is unknown. However, aerial surveillance of curtilage does not constitute a search if it occurs from navigable airspace, is conducted in a non-intrusive manner and does not reveal intimate activities that are traditionally associated with and connected to the use of the home.
  2. Aerial surveillance. Where technology aids the police to observe what they could not have otherwise have seen with the naked eye, then there is a search. If the police used technology but could have discovered an illegality with the naked eye, just as any other ordinary citizen, then there is no search.

Florida v. Riley, 488 U.S. 445 (1989). A Florida county sheriff received a tip that a man was growing marijuana on his five acre rural property. Unable to see inside a greenhouse, which was behind the defendant’s home, the sheriff circled over the property in a helicopter. The absence of two roof panels allowed the sheriff to see, with his naked eye, what appeared to be marijuana growing inside. A warrant was obtained and marijuana was found in the greenhouse. Riley argued the police violated his 4th Amendment rights of unreasonable search and seizure. The S.C. held that police officials do not need a warrant to observe an individual’s property from public airspace. The Supreme Court held the accused did not have a reasonable expectation because the greenhouse was not protected from aerial view and that the helicopter surveillance did not constitute a search under the 4th Amendment. The Court stopped short of allowing all aerial inspections of private property, noting that any member of the public could legally have been flying over Riley’s property in a helicopter at the altitude of 400’ and could have observed the greenhouse. The police officer did no more. Also vital to the Court’s ruling was the fact that the helicopter did not interfere with the normal use of the property. No intimate details connected with the use of the home or curtilage were observed and there was no undue noise, no wind, no dust, or threat of injury. In these circumstances, there was no violation of the 4th Amendment.

Since any member of the public could have legally been flying over the property at the same altitude and made the same observation there is no violation of the defendant’s reasonable expectation of privacy. There is no 4th Amendment violation and no search requiring a warrant.

California v. Cirrolo. Acting on a tip, police flew over the backyard of a home in an airplane at the altitude of 1000’ and with the naked eye, the officer’s discovered what appeared to be marijuana growing. They then obtained a search warrant. The court held that although there was a fence around the yard and it shielded the observation from the streets, there was no reasonable expectation of privacy as to routine observations, with the naked eye, in the public airways. Therefore, no unreasonable search, no violation of the 4th Amendment and no warrant required.

MBE: Police used special night vision binoculars to make the observation discovering marijuana. It was a foggy night and they could see through heavy fog. Here, there would be a reasonable expectation of privacy because an ordinary citizen could not have made the same observation with the naked eye. Same result if the plane had been flying at an unreasonably low altitude.

U.S. v. Dunn, 480 U.S. 294 (1987). DEA began investigating Dunn when he purchased large quantities of chemicals that are used in the production of illegal drugs. Officers witnessed the defendant placing the chemicals in a barn on his private ranch. The ranch was completely encircled by a perimeter fence and contained several interior barbed wire fences, including one around the house approximately 50 yards from the barn and a wooden fence enclosing the front of the barn, which had an open overhang and locked, waist-high gates. Without a warrant, officers crossed the perimeter fence, several of the barbed wire fences and the wooden fence in front of the barn. They were led to that particular location by the smell of chemicals and they could hear a motor running inside. They did not enter the barn but stopped at the locked gate and shined a flashlight inside, observing what they took to be a drug laboratory. They left the ranch, but entered it twice the next day to confirm the laboratory’s presence. They obtained a search warrant and executed it. DEA arrested the respondent, seizing chemicals and equipment, as well as bags of amphetamines they discovered in the house. Dunn was convicted of conspiracy to manufacture controlled substances. The Supreme Court found the barn was outside the curtilage and all evidence obtained by the officers while standing outside the barn and looking in was admissible. Factors to determine if an area is an open field or curtilage.

  1. Proximity of the home to the open fields.
  2. Extent to which the area enclosed surrounds the home.
  3. The nature and use of the land.
  4. Steps taken to secure the area from observation of people passing by.

Applying these factors to the barn and the area immediately surrounding it the court had no difficulty concluding the area lay outside the curtilage of the home.

  1. Business property. People have a reasonable expectation of privacy on business and commercial property and are protected under the 4th Amendment.
  2. Luggage. Physical inspection and exploratory manipulation of luggage violates a person’s reasonable expectation of privacy.
  3. Garbage. There is no reasonable expectation of privacy in the contents of garbage left outside of the curtilage of the home for collection. Therefore, an officer’s observation of its contents does not qualify as a search.
  4. Voice and handwriting samples. No expectation of privacy.
  5. Bank account records. No expectation of privacy.
  6. Enclosed phone booths. A person does have a reasonable expectation of privacy in an enclosed phone booth.

U.S. v. Katz. A reasonable person has an expectation of privacy in an enclosed phone booth against police intrusion. Applies to enclosed toilet stalls and department store dressing rooms.

  1. Pen registers. A person has no reasonable expectation of privacy in a record of numbers that they telephoned.
  2. Enhancing the senses.
    1. Unenhanced senses are not a search. 
It is not a search where an officer that is lawfully present in a certain place and they detect something by their natural senses.

Example: Officer is on Daphne’s open field. He smells and sees marijuana plants growing in her home. This does not constitute a search. He can use that information to get a search warrant.

  1. Dog sniffs. A sniff by a trained dog does not constitute a search as long as it is brief and done in the least intrusive means. It is not a search for the police to use a dog to sniff for drugs or bombs in a public place.
  2. Electronic tracking is not a search. It is not a search to use electronic tracking devices to follow a person or vehicle except if the devices are used in the home. Electronic devices placed on bumpers to track vehicles. There is no reasonable expectation of privacy for vehicles traveling on a public road. If the beeper was placed only to follow a vehicle, there is no search. However, if the beeper was placed inside the vehicle, it would constitute a search and a warrant would be required.
  3. Use of photographic magnification equipment (telephoto lens) is not a search. It is not a search to photograph a person using telephoto/telescopic lenses, so long as the equipment is available to the public.
  4. Use of thermal imaging equipment in the home is a search. It is a search to use thermal imaging equipment to view activities in a person’s home.

MBE: The store posted conspicuous warnings that electronic surveillance was being used. In these cases a reasonable person would not have an expectation of privacy.

Example: Expectation of privacy where one is peering into a high-rise office building on the 50th floor. No reasonable expectation of privacy on the first floor, on a public street.

  1. Student’s property at school.

N.J. v. TLO. A reasonable expectation of privacy in student’s personal items at school. Includes backpacks and purses.

  1. A school administrator, acting independently where there’s a reasonable belief that contraband will be found, may search personal items. School administrators don’t need probable cause, only a reasonable belief.
  2. A greater expectation of privacy exists inside a student’s locker. However if the school gives notice that possession of a school locker is not the exclusive property of the student, it may be searched if there is a reasonable belief contraband exists.
  3. Prisoners have no reasonable expectation of privacy in any item, including a locked suitcase.
  4. Random drug testing of student athletes. Intrusion on student’s privacy rights are outweighed by the legitimate government interest in deterring drug use and avoiding physical harm to drug users and other players. Does not require individualized suspicion by a coach or a school administrator.

  1. IV. Fourth Amendment Seizures. A seizure of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.

Example: A seizure occurs when a police officer exercises control over a person’s property by destroying it or by removing it from the person’s actual or constructive possession. U.S. v. Jacobsen, 466 U.S. 109 (1984).

Arrests and  stops. An arrest is a seizure and must be based on probable cause. Probable cause is any trustworthy fact or knowledge sufficient for a reasonable person to conclude that the defendant has committed a crime. Courts make a determination if probable cause exists on a case by case basis. From the facts presented to the magistrate, a reasonable person would conclude that it was more likely than not, that incriminating evidence of the named items or persons would be found.

Example: A crime was committed by two armed men in orange jumpsuits driving off in an Edsel. Based on that type of information, it’s more likely than not, that if the police find two men fitting that description, it would be more likely than not those are the only two men who could have committed the crime. Here, there would be probable cause to search the suspects.

Example: Police receive information that two men of average height, both with brown hair, wearing jeans and t-shirts committed a robbery. Here, it would be less likely that probable cause existed for a search warrant to be issued.

Brief detentions.

  1. Stops.
  2. A stop is permitted without a warrant if police have a reasonable suspicion of criminal activity, supported by articulable facts (not just a hunch).
  3. The stop can be no longer than necessary to conduct a limited investigation in an attempt to verify the suspicion.
  4. Police may request the stopped person to give their name, if they do not comply they may be arrested.
    1. Frisks. After a stop a frisk is permitted if there is a reasonable suspicion that the person stopped is armed and dangerous.
    2. Stopping vehicles on the road.
    3. Police must have a reasonable suspicion to believe that the law has been violated or:
    4. There are special law enforcement needs including:
      1. Roadblocks that stop every car on the basis of some neutral, articulable standard.
      2. Roadblocks designed to serve a particular purpose related to driving, such as testing for drunk drivers. Not to search for illegal drugs.
      3. After lawfully stopping a vehicle the police may order the occupants out and frisk them if the officer thinks they have weapons.
      4. Police may stop a car if they think the driver committed a traffic violation, even if they secretly just want to check out a suspicious driver.
  1. Seizure of a house. A house is seized when an officer secures the premises so that the residents cannot enter or remove personal property.
  2. Slightly moving property. Moving a person’s belongings does not constitute a seizure because the interference with the possessory interest is small. It does constitute a search.
  3. Seizure of a person (arrest). A person is seized only if in view of all the circumstances surrounding the incident (including use of force and a show of authority by police), a reasonable person would believe that they are not free to leave. U.S. v. Mendenhall.

U.S. v. Mendenhall, 446 U.S. 544 (1980). After observing defendant exit a plane DEA agents asked to see their identification and airline ticket, which were issued in different names. The agents asked her to accompany them to the airport DEA office for further questions, she followed them and then was asked if she would allow a search of her person and her handbag. The defendant was told her she had the right to decline the search if she wanted. She agreed to the search and an agent found heroin packages on her person. Defendant was arrested and convicted for possession, and sought to suppress all evidence as obtained as part of an unreasonable seizure not founded on reasonable suspicion. A person has been seized within the meaning of the 4th Amendment only if, in view of the circumstances surrounding the incident, a reasonable person would have believed that they were not free to leave. Because the events took place in public, the agents requested information rather than demanded it and no force or threat of force was used, no seizure of the defendant took place.

  1. Seizure by hot pursuit. A person already fleeing from an officer is not seized when the officer yells, stop in the name of the law or another similar statement. The police may lawfully chase a person without needing probable cause or a warrant because chasing an already fleeing person does not fall within the protections of the 4th Amendment. California v. Hodari.

California v. Hodari, 499 U.S. 621 (1991). Officers were conducting patrol in a high-crime area. They were dressed in street clothes but wearing jackets with the word Police embossed on both front and back. From their unmarked car they saw four or five youths huddled around a small red car parked at the curb. When the youths saw the officer’s car approaching they panicked and ran. Hodari ran west through an alley. One officer pursued Hodari and tackled him to the ground. During the tackle he appeared to have tossed a small rock on the ground, later identified to be cocaine. In the juvenile proceeding Hodari moved to suppress the evidence relating to the cocaine, arguing that when he dropped the drugs, Hodari had been seized within the meaning of the 4th Amendment, and as a result the drugs were the fruit of an illegal search. Justice Scalia said the 4th Amendment applies to the illegal seizure of people. However, Hodari was untouched by the officer at the time he discharged the cocaine. The defense relied upon the notion 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. The defense also relied on the “Mendenhall test”, which stated that “A person has been ‘seized’ within the meaning of the 4th Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not fee to leave”. Scalia also holds that this Mendenhall test establishes that the existence of a ‘show of authority’ is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person”. Since the police did issue a show of authority and Hodari did not comply, he was not seized until he was tackled and the cocaine he threw while he was running was not fruit of the seizure.

  1. Seizure occurs when an officer touches the suspect or the suspect surrenders to authority.
  2. Seizure by questioning. A person is not seized when a police officer stops a person and questions them about their identity or criminal activity. A person, however, is seized if the questioning is accompanied by conduct of the officer that would convince a reasonable person that they were not free to walk away.
  3. Arrests for non-jailable offenses are valid. Arrests for misdemeanors, traffic infractions and other non-jailable offenses are constitutional. Atwater v. City of Lago Vista, 532 U.S. 318 (2001). A person’s 4th Amendment rights are not violated when they are arrested for driving without a seatbelt. Arrests for a misdemeanor that is punishable only by a fine does not constitute an unreasonable seizure under the 4th Amendment.
  1. V. Fourth Amendment Probable Cause.
    1. Probable cause exists when the facts and circumstances within an officer’s knowledge and of which they have reasonably trustworthy information are sufficient in themselves to permit a person of reasonable caution to believe that:
      1. Arrests. An offense has been committed and the person arrested is believed to have committed the offense.
      2. Searches. The item to be searched is located at a certain place at a certain time and is:
        1. The fruit of a crime.
        2. The instrumentality of a crime.
        3. Evidence of a crime.
        4. Contraband.
    2. Purely objective standard. Whether probable cause exists is purely an objective standard. The subjective intent or ulterior motives of the police are irrelevant. The only determination that is made is the objective determination of whether probable cause existed. Whren v. U.S.

Whren v. U.S., 517 U.S. 806 (1996). Any traffic offense committed by a driver is a legitimate legal basis for a stop. Whren and Brown were driving in a high drug area. Plainclothes officers that were patrolling the neighborhood in an unmarked vehicle, noticed them sitting in an SUV at a stop sign for an usually long time (20 seconds). Suddenly, without signaling, Whren turned and sped away. Observing this traffic violation, the officers stopped the vehicle. When they approached, the officers saw Whren holding plastic bags of crack cocaine. Whren and Brown were arrested on federal drug charges. Before trial, they moved to suppress the evidence contending that the officers used the traffic violation as a pretext for stopping the vehicle because they lacked either reasonable suspicion or probable cause to stop them on suspicion of drug dealing. The question for the court was, did the officers conduct an unreasonable search and seizure in violation of the defendant’s 4th Amendment? No, the Court held that as long as officers have a reasonable cause to believe that a traffic violation occurred, they may stop any vehicle. In the present case, the officers had reasonable cause to stop the petitioners for a traffic violation since they sped away from a stop sign at an unreasonable speed and without using their turn signal. Thus, since an actual traffic violation occurred. The ensuing search and seizure of the vehicle was reasonable, regardless of what other personal motives the officers might have had for stopping it.

Example: If the police have probable cause to pull a car over, they may do so, even if the true motive for stopping the vehicle is because the occupants are African-American.

  1. Staleness. Probable cause can be very time and place specific and can go stale. Factors for determining staleness include:
    1. Character of criminality.
    2. Type of property to be searched or seized.
    3. Opportunities to remove, destroy or dispose of property in relation to time.
  1. VI. Determing Probable Cause. For informant information to rise to the level of probable cause it must be credible and reliable.
    1. Reliable information.
      1. Direct. Information police secured by personal knowledge (personally witnessing the crime).
      2. Hearsay. Information received from informants.
      3. When can a warrant be issued based on informant information?

Totality of the circumstances. The modern test for reliability eliminates the veracity and basis of knowledge test and requires a magistrate to conduct a balanced assessment of the relative weight of the circumstances surrounding informant tips.

Illinois v. Gates, 462 U.S. 213 (1983). Police received an anonymous letter that stated, “This letter is to inform you that you have a couple in your town who live on Greenway, off Bloomingdale Rd. in the condominiums. Most of their buys are done in Florida. Sue, his wife, drives their car to Florida, where she leaves it to be loaded up with drugs, then Lance flies down and drives it back. Sue flies back after she drops the car off in Florida. May 3 she is driving down there again and the car back he has the trunk loaded with over $100,000.00 in drugs. Presently they have over $100,000.00 worth of drugs in their basement. They brag about the fact they never have to work, and make their entire living on pushers. I guarantee, if you watch them carefully you will make a big catch. They are friends with some big drug dealers who visit their house often.”

Detective Mader followed up on the tip, obtaining information that “L. Gates” had purchased an airline ticket leaving from Chicago and arriving in West Palm Beach, Florida.  Working with the DEA, Mader learned that Gates had boarded the plane and arrived in West Palm Beach. The DEA surveillance team determined that Gates had met a woman at a Holiday Inn room registered to Susan Gates and that the couple had gotten into a car driving north. They estimated the pair would be back in Bloomingdale within 22 to 24 hours. Mader signed an affidavit laying down the events as they had unfolded, in addition to the anonymous letter. A judge issued a warrant. Upon the Gates’ arrival home, the Bloomingdale Police searched the car, recovering over 350 lb. of marijuana. A search of the Gates’ residence led to the discovery of additional marijuana and weapons. The Illinois Circuit Court decided the search was unlawful based on the test established in Spinelli v. U.S. In essence, the affidavit did not provide enough evidence to establish probable cause. The case was then brought to the Supreme Court. The question presented was, may a judge issue a search warrant on the basis of partially corroborated anonymous informant tips? The Court held that an informant’s veracity, reliability and basis of knowledge are all relevant in determining the value of their information. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case. They should be understood simply as closely intertwined issues that may usefully illuminate the common sense, practical question whether there is probable cause to believe that contraband or evidence is located in a particular place. This decision rejected the Aguilar–Spinelli test and put in place a totality-of-the-circumstances standard because the court recognized that there was more evidence that the Gates were involved in drug trafficking than just the letter standing alone. The court agreed that if the letter had just stood alone it would not be probable cause to get a warrant. The court also recognized that under the Aguilar–Spinelli two-pronged test, it would be very hard for the reliability prong to ever be satisfied from an anonymous tip so it therefore should be abandoned.

  1. Conclusory assertions have no weight. Statements presented by the affiant or informant that are conclusory cannot satisfy the quality or quantity requirements. They are entitled to no weight by the magistrate. Spinelli v. U.S.
    1. Affiant. The police officer giving the sworn statement.
    2. Informant. The person who supplied the information.
  1. VII. Fourth Amendment Warrants.
    1. Warrant requirement. The general stated rule is that a warrant is required for a search or seizure. The vast majority of searches and seizures (including arrests) are conducted without warrants pursuant to one of the warrant exceptions (see below).
      1. Affidavit stating probable cause. The police officer prepares a written affidavit that sets forth, with particularity, the grounds that establish probable cause for the warrant.
        1. The requirement of a written affidavit is waived in exceptional time-sensitive circumstances. In these cases, a sworn verbal statement is sufficient.
        2. Particularity requirement. The warrant must state with sufficient particularity the place or person to be searched or the person or thing to be seized. Catchall clauses such as “any evidence of a crime is to be seized” are invalid.
      2. Neutral magistrate. The officer goes to a neutral and detached magistrate and presents the application.
      3. Questioning. 
The magistrate questions the applying officer about facts or informants.
      4. Issued. The warrant is issued.
      5. Executed. The warrant is executed.
      6. Report. The officer must return to the magistrate and explain the details of the execution, including what persons or places were searched and/or what items or persons were seized.
    2. Requirements for a magistrate.
      1. Neutral. The magistrate cannot be paid per warrant, cannot be a rubber stamp and cannot be involved in the investigation.

U.S. v. Leon, 468 U.S. 897 (1984). Police received a tip identifying Patsy Stewart and Armando Sanchez as drug dealers. Police began surveillance of their homes and followed leads based on the cars that frequented the residences. The police identified Ricardo Del Castillo and Alberto Leon as also being involved in the operation. Based on this surveillance and information from a second informant, a detective wrote an affidavit and a judge issued a search warrant. The police conducted the search, but the search warrant was later found to be invalid because the police lacked the probable cause required for a warrant to be issued in the first place. The evidence obtained in the search was upheld anyway, because the police performed the search in reliance on the warrant, meaning they acted in good faith. This became known as the good faith exception to the exclusionary rule. Exclusion of evidence obtained by the police in violation of the 4th Amendment was made applicable to individual states in Mapp v. Ohio. The exclusionary rule forbids evidence obtained through illegal searches to be admissible at criminal trials. The exclusionary rule was designed to deter unlawful police action, not punish the errors of magistrates.

White clarifies that suppression of evidence should continue in cases where the magistrate was misled by information supplied in an affidavit in bad faith. As long as the person writing the affidavit wrote it in good faith, the decision is that of the magistrate and the exclusionary rule serves no useful function. The officers enforcing the warrant must be able to rely on the decision of the magistrate.

  1. The judicial officer approving the issuance of a search warrant does not have to be admitted to the bar.
  2. The magistrate cannot accompany the officer and write the warrant at the scene of the search.
  3. Arrest Warrants.
    1. Public places. No warrant is required for arrests in public places. A warrantless arrest of a person in a public place is permissible, even if the officer could have obtained one, so long as probable cause exists for the arrest.

U.S. v. Watson, 423 U.S. 411 (1976). An informant told a postal inspector that Watson had given him stolen credit cards and would give him more. The informant’s information was enough to get an arrest warrant, but the postal inspector chose not to get one. Instead, they set up a meeting with Watson. At the meeting the informant gave a signal that Watson had the cards on him. The postal inspector arrested Watson but he did not have any stolen credit cards on him. Watson then consented to a search of is car, where stolen credit cards were recovered. Watson was charged with possession of stolen goods. Watson argued that the arrest was unconstitutional because the postal inspector did not have a warrant to arrest him. If they hadn’t arrested him he wouldn’t have consented to the search of his car, so all the evidence should be dismissed as fruits of the poisonous tree. 18 U.S.C. §3061 authorized postal inspectors to make arrests without an arrest warrant, as long as they have probable cause. The Supreme Court found there was nothing in prior case law to suggest that the 4th Amendment requires a warrant to make an arrest for a felony. Watson unsuccessfully argued that under the ancient common law, the police were only allowed to arrest someone if they had an arrest warrant, or if the person committed a crime in the presence of the police officer, or if there was reasonable grounds to believe that the person had committed a felony. The Court noted that when the informant gave a signal the postal inspector had probable cause to make the arrest.

  1. Consent or exigency. Absent consent or exigency, a warrant is required for in-home arrests 
A police officer must obtain an arrest warrant plus have “reason to believe the suspect is within” the dwelling to arrest a person in his home. Payton v. New York, 445 U.S. 573 (1980). New York police believed Payton was responsible for murdering a gas station manager two days prior to his arrest. Six officers went to Payton’s apartment and when no one answered their knock, they forcibly entered. Upon entering, they saw a shell casing in plain view that would later be admitted into evidence. New York police arrested Riddick, three years after the two robberies that he was charged for were committed. Again, the police entered his home without a warrant and they found narcotics in a drawer two feet from where Riddick was arrested. The question for the court is whether there is an illegal search and seizure when, without a warrant, police search a home during the course of an arrest and seize evidence where there is probable cause, but no exigent circumstances? It is unconstitutional, under the 4th Amendment to search a home during an arrest when there is no arrest warrant and there are no exigent circumstances. The Supreme Court holds that the entrance to a person’s home is a critical point where constitutional safeguards are heightened. This is true even when probable cause exists or when there is statutory authority permitting the searches. The Supreme Court stresses the sanctity of the home in distinguishing U.S. v. Watson, which allowed a warrantless arrest in a public space, from the current case. The Supreme Court allows an arrest under exigent circumstances, such as the high probability that a suspect would flee or if lives were in danger.
  2. Distinction between arrest and search warrants. Entry of a third person’s home to make an arrest requires a search warrant. Absent consent or exigency, an officer cannot enter a home to arrest a person who does not live there unless the police also have a warrant to search that home for the person to be arrested.

Steagald v. U.S., 451 U.S. 204 (1981). DEA agents received a tip from an informant that Ricky Lyons, a federal fugitive wanted on drug charges could be found at a particular home within the next 24 hours. Two days later the agents approached the home with guns drawn, frisked Hoyt Galtney and Gary Steagald and determined that neither man was Lyons. The agents then proceeded to the house. Gaitney’s wife answered the door and informed the agents that she was alone in the house. She was ordered to place her hands against the wall and was guarded in that position while an officer searched the house. Lyons was not found, but during the search of the house the officer observed what he believed to be cocaine. Based on this discovery the agents obtained a search warrant and uncovered 43 pounds of cocaine. Petitioner was arrested and indicated on federal charges. Petitioner moved to suppress all evidence uncovered during the various searches on the ground that it was illegally obtained because the agents had failed to secure a search warrant before entering the house. The agent testified at the suppression hearing that there had been no physical hindrance preventing him from obtaining a search warrant and that he did not do so because he believed that the arrest warrant for Ricky Lyons was sufficient to justify the entry and search. The court held that an arrest warrant is not sufficient to search the home of a third person absent exigent circumstances. An arrest warrant is issued by a magistrate upon a showing that probable cause exists to believe that the subject of the warrant has committed an offense and that the warrant primarily serves to protect an individual from an unreasonable seizure. On the other hand, a search warrant is issued upon a showing of probable cause to believe that a legitimate object of a search is located in a particular place. It also safeguards any individual’s interest in the privacy of their home and possessions against the unjustified intrusion of the police. The court held there were two distinct interests by the search. Ricky Lyon’s interest in being free from an unreasonable seizure and petitioner’s interest in being free from an unreasonable search of his home. Because the arrest warrant for Lyons addressed only the former interest, the search of petitioner’s home was no more reasonable from petitioner’s perspective than it would have been if conducted in the absence of any warrant. Since warrantless searches of a home are impermissible absent consent or exigent circumstances, the search violated the 4th Amendment.

Minnesota v. Olson, 495 U.S. 91 (1990). Joseph Ecker robbed an Amoco gasoline, killed the station manager and escaped in a car driven by Rob Olson. Police arrested Ecker that same day. The next day, police received a call from a woman who said Olson was hiding in a house where he was staying with two women. Police surrounded the house and then telephoned to ask Olson to come out. The woman who answered the phone said Olson was not there, but police heard Olson tell her to say that. The police entered the home without a warrant and found Olson hiding in a closet and arrested him. Olson later confessed to the crime and was convicted of murder, robbery and assault.

On appeal, the U.S. Supreme reversed the decision. The Court said Olson expected privacy in the house where he was staying. The 4th Amendment protects that privacy by requiring police officers to get a warrant before entering a home. Unlike in Santana, the police were not in hot pursuit of Olson. Instead, they surrounded the home to prevent Olson from escaping and there was plenty of time to get a warrant before entering to arrest Olson. Because the police failed to get a warrant, Olson’s arrest and confession were illegal under the 4th Amendment.

  1. Hot Pursuit. Probable cause is required. A narrow area that overlaps with exigent circumstances. While in pursuit of a dangerous suspect, a warrantless search of a dwelling, vehicle or any evidence obtained from searching the suspect is justified due to the dangerous nature of the situation, as well as to protect the law enforcement officer from harm. The pursuit must be immediate and continuous. There cannot be a break in the pursuit by the police.

U.S. v. Santana, 387 U.S. 294 (1967). A suspected felon who stood precisely in the threshold of her front door was subject to warrantless arrest under the Watson holding.  She was in a public place for 4th Amendment purposes, the equivalent of her standing completely outside her house. Using marked money, police officers made an undercover heroin buy from a third party who, upon taking money from the officers, entered “Mom Santana’s” house and emerged with heroin. Officers then arrested the third party and returned to Santana’s house where they identified themselves as police officers, entered the house after Santana fled into it from the porch, and, after ordering her to empty her pockets, discovered some of the marked money. The search was done without a warrant. Did the search violate the 4th Amendment? The Court upheld the search. Relying on the Court’s decision in United States v. Watson (1976), Justice Rehnquist argued that by standing on her porch when the officers arrived, Santana was “not in an area where she had any expectation of privacy.” Since the police had probable cause to arrest and search her at that point, their behavior was consistent with the Court’s Watson precedent.

  1. Exigent circumstances. Probable cause is required. A warrantless search is justified in an emergency situation where evidence may be lost or destroyed. The issue to consider is how long will it take to get a warrant.

Schmerber v. California, 384 U.S. 757 (1966). Over a suspect’s objection a state may have a physician extract blood from a person suspected of drunken driving without violating their 4th Amendment rights. A blood sample is permitted without a warrant to determine blood alcohol level because it could drop over a period of time.

  1. Only reasonable force is permissible in making an arrest. The police may use only the force reasonable under the circumstances to make an arrest. 
Deadly force is prohibited to prevent escape unless the arrestee poses a significant threat of death or serious injury to the officer or others.

Tennessee v. Garner, 471 U.S. 1 (1965). At about 10:45 p.m., two Memphis police officers, Leslie Wright and Elton Hymon were dispatched to answer a burglary call. The neighbor, who had made the police call, told the officers upon their arrival at the scene that someone was breaking into the house next door. Officer Hymon went behind the house as his partner radioed back to the station. Hymon witnessed someone running across the yard. The fleeing suspect, Edward Garner, stopped at a 6-foot-high chain link fence. Using his flashlight, Hymon could see Garner’s face and hands and was reasonably sure Garner was unarmed. Hymon ordered Garner to halt, instead he began to climb the fence. Believing that Garner would certainly get away, Hymon shot him in the back of the head. Garner died from the gunshot and a purse from the house he had burglarized was near his body.

Hymon acted according to a Tennessee statute that authorized the use of deadly force against a fleeing suspect. The statute provided that if, after notice of the intention to arrest the defendant, they either flee or forcibly resist, the officer may use all the necessary means to effect the arrest. Garner’s father brought civil action suit against the Memphis Police Department, the mayor and Officer Hymon. Justice White wrote that apprehension by use of deadly force is a seizure. The court must weigh the nature of the intrusion of the suspect’s 4th Amendment rights against the government interests, which justified the intrusion. The use of deadly force against a subject is the most intrusive type of seizure possible, because it deprives the suspect of his life and White held that the state failed to present evidence that its interest in shooting unarmed fleeing suspects outweighs the suspect’s interest in his own survival. At common law, it was perfectly legal for law enforcement personnel to kill a fleeing felon. At the time when this rule was first created, most felonies were punishable by death and the difference between felonies and misdemeanors was relatively large. In modern law, neither of these circumstances existed. Furthermore, the common law rule developed at a time before modern firearms and most law enforcement officers did not carry handguns. The context in which the common law rule evolved was no longer valid. White further noted that many jurisdictions had already done away with it and that current research has shown that the use of deadly force contributes little to the deterrence of crime or the protection of the public. Further that Hymon had no reason to believe that Garner was armed or dangerous.

  1. Search Warrants.
    1. Search warrant requirement. Although there are many exceptions, all searches require a warrant.
    2. Ten-day rule. A search warrant must be executed within ten days of it being issued, otherwise it is deemed stale. This rule does not apply to arrest warrants, because they do not go stale.
    3. Knock and announce required. The police must knock and announce their presence before executing a warrant. To justify a no-knock entry, the police, under the particular circumstance, must have a reasonable suspicion that:
      1. Knocking would be futile.
      2. Knocking would create a danger to the police.
      3. Knocking would create a danger to someone inside.
      4. Knocking would create a high probability that evidence would be destroyed.
      5. Detaining persons on the premises. A warrant to search residential premises carries with it the authorization to detain any occupants for the duration of the search.
      6. Scope of search. Police may search the place particularly described in the warrant and any closed containers found within the place, so long as the containers are large enough to contain the item for which they are searching.
      7. Seizure of items not listed in warrant. The police may lawfully seize objects not listed in the warrant so long as:
        1. The item is in plain view.
        2. The item is located in an area the police are authorized to search.
        3. The police have probable cause to believe the item is seizable.
      8. Termination of the search. The police must end their search once the articles to be searched for are discovered.
    4. Exceptions to the warrant requirement. Where no warrant is required.
      1. Search incident to a lawful arrest. Following an arrest a complete search of the person is permitted without a showing of probable cause. Chimel v. California.
        1. Scope of search.
          1. The person. A police officer may search a person’s body, clothing, pockets, and any containers found on the person (such as a pack of cigarettes or a purse). Penetrating the skin or orifices is not permissible under search incident to arrest. (But see Warrantless Intrusions below.
          2. Wingspan test. The area within a person’s immediate control (known as grab area) may be searched. A grab area is defined as the area into which the person might lunge for a weapon or to destroy evidence.

Peyton v. New York, 445 U.S. 573 (1980). A person is placed under arrest. Police follow them into their home to get a coat. The arrestee opens the closet and takes out their coat. When the arrestee enters the bedroom may the police search the bedroom? Yes. When they open the closet can the closet be searched? Yes. The search incident wingspan area can be expanded based on the conduct of the defendant.

Maryland v. Bui. An officer making an arrest may as a precaution search closets and other places immediately joining the place of arrest.

What constitutes a grab area is fact sensitive and depends upon the number of officers present, size of the person, whether they are in restraints, and the site of the arrest.

  1. If the arrest occurs in a home or an otherwise confined location, the area immediately adjoining the place of arrest from which an attack could be immediately launched.
  2. Protective sweeps. If police have a reasonable belief that accomplices may be present they may do a protective sweep. A cursory search based on articulable fact for the purpose of locating accomplices.
  3. Search of an automobile incident to a lawful arrest. Notwithstanding the scope limitations listed above, the police may search the entire passenger compartment of an automobile, including all containers found therein, so long as the containers are capable of containing a weapon or evidence. Search incident to arrest has been extended to vehicles. Police may search the entire passenger compartment of a vehicle following a lawful custodial arrest. Applies to the entire passenger compartment, including containers. Any object capable of holding another object such as a glove box, suitcases, purses, luggage, bags, clothing, open or closed.

New York v. Belton, 453 U.S. 454 (1981). The Court held that when a police officer has made a lawful arrest of a driver, he may search the passenger area of the vehicle without obtaining a warrant. An automobile in which respondent was one of the occupants was stopped by a police for traveling at an excessive rate of speed. In the process of discovering that none of the occupants owned the car or was related to the owner, the policeman smelled burnt marijuana and saw on the floor of the car an envelope suspected of containing marihuana. He then directed the occupants to get out of the car and arrested them for unlawful possession of marijuana. After searching each of the occupants, he searched the passenger compartment of the car, found a jacket belonging to respondent, unzipped one of the pockets and discovered cocaine. Subsequently, respondent was indicted for criminal possession of a controlled substance. After the trial court denied his motion to suppress the cocaine seized from his jacket pocket, respondent pleaded guilty to a lesser-included offense, while preserving his claim that the cocaine had been seized in violation of the 4th Amendment. The search of respondent’s jacket was a search incident to a lawful custodial arrest and hence did not violate the 4th Amendment. The jacket, being located inside the passenger compartment of the car, was within the arrestee’s immediate control within the meaning of Chimel v. California, 395 U.S. 752 , wherein it was held that a lawful custodial arrest creates a situation justifying the warrantless search of the arrestee and of the immediately surrounding area. Not only may the police search the passenger compartment of the car, they may examine the contents of any containers found in the passenger compartment. And such a container may be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.

Bright-line rule. An auto search is valid even if the arrestee is already in handcuffs in the police car.

Trunk and hood not included. The police cannot search the trunk or hood of the vehicle unless separate probable cause exists.

Limitations on Belton. Certain containers that are so well sealed that a weapon could not be obtained from it are outside the scope. Example: A locked toolbox attached to the flatbed of a truck. A search taking place in such places is improper and any evidence seized would be unlawful. If the arrest later proves to be invalid any evidence obtained from that search would be excluded as a tainted fruit of the poisonous tree.

  1. Limitations to search-incident-warrant exception.
    1. The search must be contemporaneous (at the same time) of the arrest.
    2. Must be a custodial arrest. A police officer cannot conduct a search for noncustodial arrests, such as when the officer issues a ticket or summons.
    3. Automobile exception. Probable cause is required. Highly tested.

When a warrantless search of a vehicle is made there are many theories, which could provide a possible basis for such a search. Applies to:

  1. Search incident to a lawful arrest.
  2. Plain view.
  3. Inventory searches.
  4. Border searches.
  5. Most commonly look at the automobile search itself.

Justification for having an automobile exception is the inherent mobility of vehicles traveling on open roads. There is an exigency presented when a vehicle is traveling on an open road and the car or items in the vehicle could escape jurisdiction and easily escape the police.

Applies to automobiles on the open road or stopped at parking lots. Does not apply to vehicles parked at ones home.

U.S. v. Ross, 456 U.S. 798 (1982). Police received a tip from a reliable source describing a man who was selling heroin stored in the trunk of his car. The informant gave the location of the car and a description of both car and driver. Police stopped the car and ordered the driver out. After noticing a bullet on the front seat, they searched the glove compartment and discovered a pistol at which point they arrested the driver, Albert Ross. Police then opened the trunk and discovered a closed brown paper bag. He opened the bag and found numerous bags containing heroin. During a later search, they found a zippered red leather pouch that contained $3,200 in cash. No warrant was obtained for these searches. Ross’ attorney made a pretrial motion to suppress the evidence on grounds that the warrantless search of the car does not extend to searching closed containers found within.

The Court held that a warrantless search of the containers found during the search of the car was constitutional, falling within the existing precedent for a warrant-less search called the automobile exception. Police officers may make a warrantless search of an automobile if they have probable cause to suspect that it contains contraband. This is known as the automobile exception to the 4th Amendment’s warrant requirement in Carroll v. U.S. The mobility of an automobile made it impractical to take the time to get a search warrant from a magistrate, since in that time the vehicle could leave the jurisdiction. Second, vehicles are presumed to have a lower expectation of privacy than houses or personal containers, since they provide clear visibility of their contents (through the windows) and their primary purpose is the transportation of people instead of the storage of personal property. The court distinguished the automobile exception with portable containers such as suitcases, that, despite their mobility they are not subject to the same warrantless search as automobiles. The rationale for this is that suitcases are not as mobile as an automobile and detaining a container while awaiting a warrant is practical. Furthermore, containers are presumed to have a much higher expectation of privacy than vehicles, since their primary purpose is to transport belongings and most are opaque (some are even locked), which implies that the owner of a container generally doesn’t expect the contents to be visible or accessible to others.

If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. Applies to packages belonging to passengers in the vehicle.

Example: If police are searching for drugs. Where can drugs be found in an automobile? Anywhere. Therefore, police can search any part of that vehicle even the trunk.

Ross applies to the trunk.

Belton does not allow police to search the trunk.

Example: If there were probable cause to believe the vehicle contained stolen rifles police would not properly search the glove box because rifles could not be hidden in a glove box.

California v. Asevedo, 500 U.S. 565 (1991). Police may search an automobile and any container within it where there is probable cause to believe contraband or evidence is contained therein. The police cannot search the entire vehicle unless the police can show the defendant had time to move the container within the car after he placed it in the vehicle. This decision overruled Chadwick, which held that if probable cause existed to search an automobile the police may perform a warrantless search of the automobile and the containers within it, but if the police only had probable cause to search a container in the automobile, the police first had to obtain a warrant before searching the container.

Impound searchers. Police may search an entire vehicle that has been impounded including closed containers. They may even do it three days later.

Delaware v. Prouse, 440 U.S. 648 (1979). Random stopping of a vehicle is unconstitutional. The Supreme Court held that police stopping vehicles for no reason other than to check the driver’s license and vehicle registration is unconstitutional.

Checkpoints. All cars may be stopped at a fixed checkpoint to check the license and registration. Stopping every 5th car, or every 10th car is permissible.

Roving border patrols must have reasonable suspicion to stop, but probable cause is required to search.

Sobriety check points are permissible.

  1. At the scene searches. The police may conduct an immediate (at the scene) warrantless search of an automobile if they have probable cause to conclude that it contains a seizable object and the automobile is:
    1. Stopped on a public road.
    2. Readily capable of use and not in a place that is regularly used for residential purposes (such as a mobile home park).
    3. Away from the scene searches. If police have the right to conduct an at-the-scene warrantless search, they may instead seize the car without a warrant and tow it to another site to conduct the warrantless search. The search must be relatively contemporaneous to the seizure.
    4. Search of containers found within a car. Containers found in cars may be searched (even if it is the passenger’s container) without a warrant during an otherwise lawful automobile exception search, so long as the container is large enough to conceal the object of the search.
    5. Away from the scene searches of containers. If police may open a container at the scene without a warrant, they may likewise seize the container without a warrant and search it elsewhere.
    6. Inventory searches.
      1. Inventory searches of automobiles. A routine inventory search of a lawfully impounded vehicle and containers found therein without a warrant or probable cause is constitutional.

South Dakota v. Opperman, 428 U.S. 364 (1976). Opperman’s car was found illegally parked on a street. Acting pursuant to police procedures, Opperman’s car was impounded. Because there were sundry items scattered about in the passenger cabin, the police decided to inventory the contents of the car. During the inventory, police found marijuana in the glove box. When Opperman came to the police station to claim his property, he was arrested for possession of marijuana. At trial, he asked to suppress the marijuana, but the trial court denied his request. Opperman was sentenced to 14 days in jail and fined $100. He appealed.

By the time of Opperman, a distinction had emerged in 4th Amendment jurisprudence between searches of the home and searches of automobiles. Because automobiles were inherently mobile, typically kept outside the home, and subject to regulation and licensing by state and local governments, the law recognized a diminished expectation of privacy in an automobile relative to the expectation of privacy a person has in his home.

Justice Powel believed that the 4th Amendment required a balancing of the interests of society against those of the individual. Balancing those interests in this case, he concluded that the search of Opperman’s car was reasonable and did not require a warrant.

Powell contended that there was little danger associated with impounding automobiles. On occasion, a car would contain some very dangerous item, and the police cannot know in advance which cars those might be. Furthermore, society has an interest in minimizing the number of false claims filed against the police. Yet Powell did not believe that inventories were completely effective in discouraging false claims, since an interloper could have stolen something before the police impounded the car, or the police could make a mistake in recording the contents of the car. Also, society has a great interest in the protection of property in impounded cars, because people might not be comfortable leaving valuables in their cars for several days even if they might do so for a few hours. Powell also asserted that people have a nontrivial expectation of privacy in the contents of their automobiles. But the search in this case did not invade that interest, because it was limited to an inventory of the contents and conducted according to standard procedures.

For these reasons, Powell concluded that the search was reasonable and therefore did not require a warrant.

The search must be made in good faith and in accordance with standardized procedures.

  1. Inventory arrest searches. A routine inventory search of a person and their belongings incident to a lawful arrest is constitutional. Horton v. California.

Upon arrest and booking a full inventory of a defendant’s personal items is permitted.

Discovery need not be inadvertent/accidental.

Inventory search.

Example: D is arrested for a misdemeanor and he is booked. His arraignment is not scheduled until the next morning. During the night police get a tip that D was involved in a separate unrelated burglary. The police then inventory D’s personal items and find a diamond ring, which was reported as being stolen during a burglary. D is then charged with burglary. At his trial he moves to suppress the ring. The motion to suppress would be denied because further examination of D’s lawfully inventoried items would be permissible.

  1. Stop and frisk.

Terry v. Ohio, 392 U.S. 1 (1968). An officer observed two men standing on a street corner. One would walk up to a store window, look inside and return to confer with his companion. This process was repeated many  times. The suspects then talked with a third man and followed him up the street. Thinking the suspects were casing the store for a robbery, the officer confronted the three men and asked their names. The men mumbled a response, at which time the officer spun Terry around and patted him down. The officer found and removed a pistol. Terry was charged with carrying a concealed weapon. Terry moved to suppress this weapon from evidence. Is it unreasonable for a policeman to seize a person and subject them to a limited search for weapons when there is no probable cause for arrest? No, an officer is justified in conducting a carefully limited search of persons whom he reasonably suspects to be dangerous in order to discover any weapons, which might be used to assault the officer or others nearby, even in the absence of probable cause for arrest. Any weapons seized may be introduced as evidence. The exclusionary rule has limitations as a tool of judicial control. In some contexts, the rule will not be effective as a deterrent and will potentially exact a high toll in human injury. The government’s interest in preventing harm must be balanced against the invasion into a person’s privacy. Police should use an objective test, and be able to point to specific and articulable facts, which reasonably justify the intrusion. The standard is facts that would be available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate? Anything less would invite intrusions upon constitutionally protected rights. The Court went on to say that, effective crime prevention and detection is a governmental interest in appropriate circumstances for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. It would be unreasonable to require that the policeman take unnecessary risks. He has a need to protect himself and others in situations where he lacks probable cause for arrest. In this case, nothing in the conduct of the defendant and his friends dispelled the officer’s reasonable fear that they were not armed.

  1. Reasonable suspicion required to stop. A police officer may stop and temporarily detain an individual for further inquiry when the officer has reasonable suspicion to believe that criminal activity is afoot.
    1. Articulable facts necessary. The police officer must be able to identify particularized articulable facts that gave rise to the reasonable suspicion.
      1. Refusal to identify one’s self does not establish reasonable suspicion.
      2. Anonymous tip does not establish reasonable suspicion, but if facts within the tip are corroborated, it may give rise to a reasonable suspicion.
      3. Unprovoked flight from a police officer in a high-crime area constitutes reasonable suspicion.

Illinois v. Wardiow, 528 U.S. 119 (2000). Officers patrolling an area  know for narcotics spotted William Wardlow fleeing the area holding a bag. Alert to the possibility of Wardlow carrying a weapon, the police patted him down upon catching him. The police discovered Wardlow was carrying a gun and he was arrested. Wardlow moved to suppress the evidence regarding the gun claiming the stop was unreasonable and that there are many legitimate reasons for fleeing from the sight of police. The Court held that fleeing a high crime area at the sight of police is enough to create reasonable suspicion under the 4th Amendment for the police to stop him.

  1. When a stop becomes an arrest. A stop becomes an arrest (requiring probable cause) if the officer uses a disproportionate amount of force to conduct the stop or brings the suspect to the police station.
  2. Reasonable suspicion required for a frisk for weapons. A police officer may, while conducting a valid Terry stop, conduct a pat down for weapons if he has a reasonable suspicion that the individual whose suspicious behavior he is investigating is presently armed and dangerous.
    1. Scope of frisk. The police officer may search for weapons only. Thus, the officer may only reach into a suspect’s pocket if they feels something that could reasonably be a weapon.
    2. Automobile frisks. 
The search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the officer possesses a reasonable belief that the suspect is dangerous and the suspect may gain immediate control of weapons.

Michigan v. Long, 463 U.S. 1032 (1983). This case extends the holding in Terry, to searches of cars during a stop where police have reasonable suspicion it may contain weapons that pose a threat to the officers.

Police questioned David Long after driving his car off a road and into a shallow ditch. Officers said he acted erratically and that he, appeared to be under the influence of something. Noticing a hunting knife on the floor of the car, they conducted a Terry protective pat down, but it turned up no weapons. They then conducted a protective search of the car believing it contained weapons that were potentially dangerous to the officers.. Inside the car, police found an exposed bag of marijuana. In the trunk they found approximately 75 pounds more, and Long was arrested for drug possession.

  1. Home protective sweeps While conducting a search incident to a lawful arrest in a home, the police may conduct a protective sweep of the home if they have reasonable suspicion that the area to be swept harbors an individual posing a danger to the police.

Maryland v. Buie, 494 U.S. 325 (1990).Two men committed an armed robbery of a pizza parlor. One of the robbers wore a red jogging suit. Several officers entered Buie’s home with an arrest warrant. One officer proceeded to a staircase leading to the basement and yelled, “Police come with your hands high.” Buie complied with the officer’s demand and was taken into custody. A detective arrived on the scene shortly after and did a thorough sweep of the basement to make sure no other suspects were hiding out. The officer noted a red jogging outfit in plain view. It was used at trial to identify Buie.

Terry authorized a limited pat down for weapons where a reasonably prudent officer would be warranted in the belief, based on specific and articulable facts and not on a mere inchoate and unparticularized suspicion or hunch that he is dealing with an armed and dangerous individual. Michigan v. Long, held it reasonable for a police pursuant to an arrest to check a glove box for weapons a frisk of an automobile fro weapons. Terry and Long give the notion of a protective sweep; the sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises. The type of search we authorize today is far removed from the top to bottom type search involved in Chimel moreover it is decidedly not automatic but may be conducted only when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene. The 4th Amendment does not prohibit this type of protective police sweep. The jogging suit would be admissible evidence under the plain view doctrine.

  1. Plain view. Probable cause is not required for items in plain view. They may be seized without a warrant if it is in plain view if:
    1. Police are lawfully on the premises.
    2. The evidence was observed in plain view.
    3. Lawful vantage point. The officer is lawfully present when they view the object.
    4. Lawful access to the object. The officer who observed the object may lawfully access it.
    5. The incriminating character of the evidence must be immediately apparent.
    6. An officer cannot search the item to see whether it is seizable.

Arizona v. Hicks, 480 U.S. 321 (198). A bullet was fired through the floor of Hicks apartment, striking and injuring a man in the apartment below. The police arrived and entered Hicks’ apartment to search for the shooter, other victims and for weapons. While in Hicks’s apartment, one of the officers noticed two sets of expensive stereos, which seemed out of place in the squalid and otherwise ill-appointed four-room apartment. The officer moved the equipment to record the serial numbers, suspecting they were stolen. The serial numbers were reported to police headquarters. The officer was informed that the equipment had been taken in an armed robbery, for which Hicks was later indicted.

The police’s initial entry into Hicks’ apartment was lawful, although it took place without a warrant, because of the emergency created by the shooting. But moving the stereo equipment was an additional search that lacked a warrant and was unrelated to the purpose the police were in Hicks’ apartment to begin with. The police’s actions violated the 4th Amendment, and affirmed the trial court’s granting of the motion to suppress.

Example: An officer lawfully enters a home after a gun was fired from the premises. Once inside, he observes a stereo that matches the description of one reported stolen. He lifts the stereo to check the serial number. Although he was lawfully present and lawfully had access to the object, the probable cause was not immediately apparent and thus the seizure of the object was unlawful.

  1. Warrantless entry of a home. The police may enter a person’s home without a warrant in any of the following circumstances:
    1. Hot pursuit. The police may enter a person’s home without a warrant if they are in hot pursuit of a suspected fleeing felon.
    2. Imminent destruction of evidence. The police may enter a person’s home without a warrant if they have probable cause to believe contraband is present and they have a reasonable belief that the evidence will be destroyed or removed before a warrant can be obtained.
    3. Prevent harm to persons inside the dwelling.
    4. Prevent the likely escape of a suspect.
    5. Warrantless intrusion of the human body. The police may conduct a warrantless search into a suspect’s body when there is a clear indication that evidence will be found beneath the skin and the method used to search is reasonable.

Clear indication is considered a higher standard than probable cause.

  1. Consent. Probable cause is required. For a warrantless search voluntariness is measured by a totality of the circumstances. Courts look at factors such as the age of the person who gave consent, the mental competency and the demeanor of the police and consider whether threats were used or authority was misrepresented.

Validly obtained consent justifies a warrantless search, regardless of the existence of probable cause.

  1. Consent must be voluntary and intelligent. The police cannot use fraud, duress, or coercion to obtain it.
  2. Police need not advise the suspect of their right to refuse to consent. Awareness of the right to refuse is not required. The consenting person need not know that they have the right to refuse for the consent to be valid.
  3. Searches of homes. The owner, occupier, or any other person with the right to use the property (except for landlords) may consent to a search of the property.
  4. Third Party consent. Any person with an apparent equal right to use or occupy the property may consent to a search. A third-party such as a roommate may only consent to a search of common shared areas.

Example: A roommate may not consent to the search of their roommate’s bedroom.

Example: MBE: A mother may not consent to her son’s locked footlocker under the bed in his room.

Example: A wife may not consent to a search of a hotel room occupied by her husband with another woman.

Example: A landlord may not consent to a search of a tenant’s apartment.

MBE: Common authority rule. Police are conducting a door-to-door search for a suspect. The go to the door of a home and ring the doorbell. A teenager opens the door and says please come in and make sure the house is safe. The police enter the kitchen and find a bag of white powder, which turns out to be cocaine. D, the owner of the house who was not present at the time, is charged with illegal possession and he moves to suppress the cocaine. Turns out the teenager didn’t live there. He had escaped from a mental institution earlier that day and had broken into the defendant’s home. Under the common authority rule, the teenager lacked the ability to consent to the search. D did not assume the risk that a co-occupant might consent to the search since no co-occupant lived with D. The motion is granted to suppress the evidence.

U.S. v. Rodriguez. Permits consent searches where the police reasonably believe the party had authority to consent. Before a reasonable belief can be performed, the police must state, “Hello, we’re the police. Do you live here?” (They cannot after the fact say, we reasonably believed the teenager lived there.)

Low level trickery by police is permitted.

Example: To obtain consent police can pretend to be drug buyers.

Example: To gain consent to enter a house police can say they are looking for money, when they are really looking for drugs.

Scope. The scope of the search is limited to the scope of consent. The scope of consent is limited to the person’s limited use or control of the property.

  1. Border searches. A complete warrantless search at a border is permitted without probable cause. A person may be routinely stopped at the international border or its equivalent (e.g., at an international airport), and their belongings searched without a warrant and without suspicion of wrongdoing.

U.S. v. Ramsey, 431 U.S. 606 (1977). Customs officials were investigating a heroin-by-mail enterprise in the Washington D.C. Without a warrant agents opened eight suspicious envelopes from Thailand discovering heroin. Border searches are reasonable and do not require a warrant by the single fact that the person or item in question had entered the country from outside.

Border searches are a longstanding, historically recognized exception to the 4th Amendment’s principle that a warrant needs to be obtained.

  1. If the person searching finds reasonable and articulable suspicion, a strip search can even been required.
  2. Body cavities can be searched where there is clear indication. More than reasonableness, but less than probable cause. What would be a clear indication that would warrant a body cavity search, if they find an ointment or observe that the individual is walking with an unusual gate a body cavity search would be justified
  3. Border searches can be performed inland not necessarily at the border, where there has been virtual constant surveillance
  4. Administrative searches. A lesser showing than probable cause is required. Reasonable standard is required.
    1. Limited to daytime hours.
    2. Require a court order, warrant or injunction.
    3. Routine searches not done by police but rather government officials.
    4. Applies to building inspections. OSHA inspections.
    5. The 4th Amendment does not apply to searches and seizures by U.S. officials in foreign countries

Example: If U.S. officials conduct a warrantless search of an aliens home in Mexico, that evidence will be admissible since the protections of the 4th Amendment do no apply to bar its use as evidence.

  1. Search of mandatory drug testing of government employees. No warrant, probable cause or reasonable suspicion is required.
  2. Wiretaps violate an individual’s reasonable expectation of privacy and its use is governed by federal statute.
    1. Must be probable cause of criminal activity.
    2. Requires a court order, which is presented to a federal judge.
    3. There must be specific details as to the time frame and scope of the communication to be intercepted.
  1. VIII. Fifth Amendment. Statements and Confessions. No person shall be compelled in any criminal case to be a witness against himself. The following are doctrines used to attack the admissibility of statements and confessions. One of the most highly tested issues on the exam.
  1. Voluntariness. Confessions must be freely, knowingly and voluntarily made, free of coercion. Based on the due process clause of the 5th and 14th Amendments.
    1. Totality of the circumstances test. The court will view two factors:
      1. The nature of the defendant such as age, mental condition, level of the defendant’s education, any history of drug or alcohol use. The more limited the defendant’s ability to resist external pressures, the more likely the court will find there is coercion, and the confession was not freely, knowingly and voluntarily given.
      2. The nature of the police conduct. There is a limit on low-level police trickery or deception. Police can lie about leniency after confession, but he can’t say the charges will be dropped.
      3. Frazier v. Cupp, 39 U.S. 731 (1969). Acting on a tip, police picked up and interrogated Martin Frazier, a 20-year-old U.S. Marine, about his involvement in the murder of Russell Marleau. Frazier, along with his cousin, Jerry Rawls, was seen at a bar with the victim before the murder. During the interrogation, police falsely informed Frazier that Rawls had already confessed and implicated him in the murder, as a result Frazier said, “Oh, yea, well now I’m going to implicate him.” Defendant’s coconspirator in fact, never had confessed. The Court held police may tell a defendant that his coconspirator has already confessed and implicated the defendant.
        1. Formerly a coerced confession was always inadmissible. The new rule is a coerced confession is subject to the harmless error rule.
        2. A coerced confession may not be used for collateral purposes, such as impeachment.
        3. Voluntariness is a preliminary question of fact for the judge, using the preponderance of the evidence standard.

Arizona v. Fulminante, 499 U.S. 279 (1991). The 11-year-old stepdaughter of Fulminante was murdered in Arizona. Later, he was incarcerated for an unrelated crime. While in prison, Fulminante met Anthony Sarivola, a fellow inmate, who was also a confidential informant for the FBI. Sarivola offered Fulminante protection from tough treatment in prison in exchange for a confession to the murder of Fulminante’s stepdaughter. Fulminante confessed to Sarivola that he murdered his stepdaughter. As a result, he was charged with the murder and his confession to Sarivola was used against him at trial. The trial court denied Fulminante’s motion to suppress the confession on the basis that it was coerced because Fulminante might have been subject to violence in prison had he not confessed. Fulminante was convicted and sentenced to death. The Supreme Court held the threat of violence was credible enough to establish a finding of coercion. The Court held that a harmless error analysis should apply to any allegedly coerced confession. A new trial was granted.

  1. Miranda Doctrine. Based on the 5th Amendment doctrine against self-incrimination. Any statement made by a suspect as a result of a custodial interrogation is a compelled statement and violates the 5th Amendment right against self-incrimination, unless the government can prove the police provided adequate procedural safeguards. Under Miranda:
    1. The defendant has a right to remain silent.
    2. If they choose to speak, anything they say will be used against them in court.
    3. The defendant has a right to an attorney.
    4. If they cannot afford an attorney the court will appoint one for them.

Minor rewording of the reading is permissible. No error will arise from minor variations in the order they are given.

Miranda must be read to everyone even an attorney if they are a suspect.

If the suspect interrupts the warning, the police may stop without error. Failure to read the warning is harmless error.

Statements taken in violation of Miranda may be used to impeach.

Miranda warnings apply even to petty offenses, provided the suspect is in custody.

When is the warnings required? When there is custodial interrogation.

Miranda v. Arizona, 384 U.S. 436 (1966). Ernesto Miranda s arrested based on circumstantial evidence linking him to the kidnapping and rape of an 18-year-old woman 10 days earlier. After two hours of interrogation by police officers, Miranda signed a confession to the rape charge on forms that included the typed statement “I do hereby swear that I make this statement voluntarily and of my own free will, with no threats, coercion, or promises of immunity, and with full knowledge of my legal rights, understanding any statement I make may be used against me.”

However, at no time was Miranda told of his right to counsel, and he was not advised of his right to remain silent or that his statements would be used against him during the interrogation before being presented with the form on which he was asked to write out the confession he had already given orally. At trial, when prosecutors offered Miranda’s written confession as evidence, his court ordered lawyer, Alvin Moore, objected that because of these facts, the confession was not truly voluntary and should be excluded. Moore’s objection was overruled and based on this confession and other evidence, Miranda was convicted of rape and kidnapping and sentenced to 20 to 30 years on each charge, with sentences to run concurrently. Moore filed Miranda’s appeal to the Supreme Court claiming that Miranda’s confession was not fully voluntary and should not have been admitted into the court proceedings.

Chief Justice Warren delivered the opinion of the Court, ruling that due to the coercive nature of the custodial interrogation by police, no confession could be admissible under the 5th Amendment self-incrimination clause and 6th Amendment right to an attorney unless a suspect had been made aware of his/her rights and the suspect had then waived them. T]he person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.

Thus, Miranda’s conviction was overturned. The Court also made clear what had to happen if the suspect chose to exercise his rights. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.

  1. Elements of the Miranda. For the protections of Miranda to apply, the following conditions must be present:
    1. Custody. Miranda’s protections only apply to a person in police custody. A person is in custody if at the time of the interrogation, a reasonable person in the suspect’s position would conclude that his freedom of action is curtailed to the degree associated with an arrest.
      1. A person is in custody when they are not free to leave. (Under arrest.) Custody is more than a Terry type detention. Determined by the reasonable expectation of the suspect, not of the police officer.

Example: If a police officer goes to a suspect’s home and asks some questions, generally there is no custody, because a suspect would expect the police to leave after the talk is over.

Example: The suspect met their parole officer at the police station to answer some questions. A reasonable suspect would feel they could get back in their car and go home.

  1. Interrogation. Interrogation requires express questioning or words or actions that the police should reasonably expect to elicit an incriminating response from the suspect. 
Occurs either directly through police questioning, or indirectly through behavior the police should know is reasonably likely to elicit an incriminating response.

Rhode Island v. Innis, 466 U.S. 291 (1980). Two police were riding through a neighborhood known to have several handicapped children living in the vicinity, with a suspect in the back. One officer said to the other, “I’m concerned one of those handicap children might find the loaded weapon from the crime scene and be injured.” The defendant heard the conversation, had not been given any Miranda warning and showed the officers where the gun was located and then confessed. The conversation was held not to be an interrogation that the police should have known would likely elicit an incriminating response. Therefore, the lack of the Miranda warning did not invalidate the confession because no interrogation occurred.

  1. Spontaneous statements made (not in response to interrogation) by a suspect in custody are admissible.
  2. Procedural safeguards. The following requirements are the procedural safeguards that must be present in order for statements given by a suspect to be used in a criminal trial against them.
    1. Adequate warning. A suspect must be warned of their right to remain silent, that anything said can and will be used against them, that they has a right to consult with a lawyer and to have a lawyer present during interrogation and that if they cannot afford one, one will be appointed.
    2. A knowing, voluntary, and intelligent waiver.
 A suspect wishing to make a statement must knowingly, voluntarily, and intelligently waive their rights.
      1. Knowing and intelligent. A waiver is made knowingly and intelligently if the suspect is aware of the nature of their rights and the consequences of abandoning them.
      2. Voluntary. A waiver is voluntary if there was no coercion. Coercion is determined by examining the totality of the circumstances including the suspect’s age and intelligence and the police’s conduct.
    3. Where Miranda does not apply.
      1. Questioning by private security guards. Because there is no state action.
      2. On the scene questioning by police.

Example: Police coming on a scene and ask, “What happened?” Why? Because the statement was not designed to gather testimonial evidence.

  1. Questions asked at a routine booking. Preliminary facts, such as name and address. However, if the suspect answers the questions with slurred speech, it may be used as admissible circumstantial evidence that the suspect was intoxicated.
  2. Testimony given to the IRS during a criminal investigation.
  3. Grand jury testimony.
  4. Truly volunteered statements.
  5. Does not apply to questioning in a jail cell by uncover informants.

Illinois v. Perkins, 496 U.S. 292 (1990). Perkins was being held in jail on an unrelated charge of murder. An undercover officer was placed in a Perkin’s cell and instructed to engage in conversation with him. Perkins confessed to the murder and the detective’s testimony was used to convict him of murder. Perkins moved to suppress the confession on grounds that the undercover officer had not read him his Miranda rights. The court held the confession did not violate Miranda just because the suspect was unaware he was speaking to a law enforcement officer. The statement was determined to be voluntary. The Court held that conversations between suspects and undercover officers are not afforded Miranda protection because they are not done in a police dominated atmosphere where compulsion to confess is present. It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation. There was no danger of coercion in this case.

  1. Most important rationale of Miranda. Miranda was meant to protect against interrogation in an inherently coercive police dominated environment. Coercion is determined from the perspective of the suspect and not meant to protect suspects from boasting about their criminal activities to people they believe are cellmates/friends.
  2. Exception where Miranda is not required even though there is an interrogation:

10. N.Y. v. Quarrels, 467 U.S. 649 (1984). Upon apprehending a suspect in a supermarket who had just committed an armed rape, the police officer saw the suspect’s gun was missing. In order not to endanger the public, the police officer asked the suspect, “Where’s the gun?” The question was asked before the suspects Miranda was given. The court held there was no interrogation. The officer was merely protecting potential victims and did not ask the question to gather testimonial evidence.

  1. When must interrogation questioning cease?
    1. When the defendant requests an attorney.
    2. Where the defendant wishes to remain silent.
    3. A defendant may stop an interrogation prior to, or during any time of an interrogation by invoking the right to council or the right to remain silent.
    4. When can questioning resume?
      1. Generally, after a period of two hours has passed is a sufficient passing of time to resume questioning.
      2. When the defendant changes their mind and volunteers.
      3. Michigan v. Mosely, 423 U.S. 96 (1975). Mosely had been arrested in connection with robberies and exercised his right to remain silent after a police officer, seeking to interrogate him about the robberies had advised him of his rights under Miranda. The police officer immediately ceased the interrogation. The defendant was then taken to a cell. More than two hours later, another police officer took the defendant to another place in the building and after properly advising him of his Miranda rights, questioned him concerning an unrelated murder. The officer obtained an incriminating statement from Mosely who neither asked to consult with a lawyer nor indicated that he did not want to discuss the homicide.

A second session interrogation is allowed if a significant amount of time passes. A two-hour time lapse is sufficient. If the defendant has invoked the right to council, the second session interrogation is invalid. For a valid second session to occur there must be a different officer investigating an unrelated crime. A new set of warnings must be issued and the defendant elects to talk voluntarily.

  1. No new Miranda warnings are required if there is a short break in interrogation, such as a lunch break, or where there is a new police agency that begins questioning.
  2. Miranda waiver. Waiver must be knowingly and voluntarily given. The test is totality of the circumstances.

Example: Miran v. Burbine, 475 U.S. 412 (1986). The defendant was given Miranda warnings and elected to remain silent. But he asked permission to make one telephone call. He called his mother, who called an attorney, who then called the police station and told the police officer that picked up the phone, “I’d like to leave a message for the suspect. Will you please give him this message.” The police officer assured the attorney he’d give the suspect the message. “Tell the defendant I’m going to represent him and that I will be coming by later today after I get off work and tell him please, do not talk to anyone until I get there.” The police officer responds, “Sure, I’ll do that.” The police officer hangs up the phone and walks over to the defendants cell and begins to engage in conversation with the defendant and befriends him. The defendant says he’s had a change in heart and confesses. The court held the waiver was a valid voluntary waiver, even though the police failed to tell the defendant the fact that an attorney sought to consult with him before he confessed.

Example: Defendant shoots the proprietor of the store during a robbery. That evening at the defendant’s booking he chose to remain silent. The next morning the defendant had a change of heart and said he wanted to confess to the robbery. The police officer then said, “You know that person in the store you shot yesterday during the robbery?” The defendant said, “yea.” The police said, “We just got a call from the hospital, he died.” Now the defendant is to be charged with felony murder, rather than robbery. The waiver was valid and the confession was admissible. Even if the police do not first inform a defendant of a key fact, such police conduct does not invalidate an otherwise valid waiver.

  1. Consequences of an assertion of rights.
    1. Right to remain silent. Once a suspect asserts their right to silence the police may not interrogate them regarding the crime for which they are in custody, but may return to interrogate them regarding a different crime, after giving a second Miranda warning.

Michigan v. Mosley, 423 U.S. 96 (1975). Mosely arrested in connection with certain robberies, exercised his right to remain silent after a police officer, seeking to interrogate the defendant as to the robberies, had advised the defendant of his rights under Miranda. The officer immediately ceased the interrogation when the defendant declined to discuss the robberies. The defendant was taken to a cell. More than two hours later, another officer after properly advising Mosely of his Miranda rights, questioned him concerning an unrelated robbery and murder. The officer obtained an incriminating statement from the defendant, who neither asked to consult with a lawyer nor indicated that he did not want to discuss the homicide.

The Miranda requirement that police interrogation must cease when a person in custody indicated that they wished to remain silent, did not create an indefinite duration upon any further questioning by any police officer at any time or place on any subject, nor imposed a blanket prohibition against the taking of the admission in evidence of voluntary statements.

  1. 6th Amendment right to counsel. The right to council protects against the deliberate elicitation of any incriminating statements from a defendant, without the assistance of council, once formal charges have been filed.

What constitutes filing formal charges? A formal judicial proceeding, either an indictment, or filing of an information by the prosecutor, or a grand jury filing charges. Not merely an arrest. To trigger a right to council an actual filing of documents with the court is required.

  1. Miranda and Fruits of the poisonous tree. An otherwise voluntary statement or confession made after a valid Miranda waiver may be inadmissible if it is the product of an unlawful arrest, search or seizure.

Example: Police enter D’s house without a warrant, perform an unlawful search and seize stolen jewelry. D then voluntarily confesses. Is the confession admissible? No, because D’s confession is the product of an unlawful search. it is the tainted fruit of the poisonous tree and would be inadmissible.

It’s a 4th Amendment violation, an unlawful search of the house where the police found the stolen jewelry, followed by a voluntary confession, which would be inadmissible as a tainted confession under the fruits doctrine. Merely, given a Miranda warning, or a voluntary confession is enough to purge a taint.

Example: Police walking down a street spots a suspect outside a liquor store. He knows this person has engaged in criminal activity in the past. He grabs the suspect and says, “What were you doing at the liquor store last Saturday night?” “Hey, don’t hurt me.” “I’m not going to let you go until you tell me what happened.” “The suspect then says, “OK, I was there during the robbery.” There is an unlawfully obtained statement because the suspect was in custody and not free to leave. The officer grabbed him, held him and said you’re not going anywhere until you talked. Miranda warnings should have been given and they were not. This was a 5th Amendment violation right against self-incrimination.

Oregon v. Elstad, 470 U.S. 298 (1985). The suspect is taken down to the police station and read his Miranda warning. He waives his right and confesses. A voluntary confession made after a valid Miranda warning, but it follows a 5th Amendment violation. Does the confession come in as evidence? Yes, this is not an example of the fruits doctrine because the first layer of police conduct was not a 4th Amendment violation. It was not an unlawful arrest, search and seizure.

Unlawful arrest. A defendant is placed into custody without probable cause. He is given his Miranda warnings and he waives and confesses. A voluntary confession that follows and unlawful arrest. Is the confession admissible? It depends. Brown v. Illinois. Where a confession follows and unlawful arrest the courts look at three factors.

  1. Time between the unlawful arrest and the confession. The closer the time to the unlawful arrest, the less likely the taint had been purged by an act of free will.
  2. Intervening circumstances. If the defendant reflects, talks to family and friends and then independently decides to contest, then the unlawful arrest is thought to have less of an affect on the unlawful confession.
  3. Flagrancy. The court will consider the flagrancy, as to whether it was a mere technical violation as to the invalidity of the arrest, or was it deliberate, flagrant. The more flagrant the arrest the more unlikely the taint will be purged.
  1. Distinction between Miranda and right to council.
    1. Miranda requires custodial interrogation. The right to council requires a filing of charges with the courts.
    2. Waiver of a right to council. Is the clients right only. An actual waiver is defined as the intentional relinquishment of a known right.
    3. U. S. v. Henry, 447 U.S. 264 (1980). Posing as an inmate a paid government informant went into the defendant’s jail cell after the defendant had been indicted. In Perkins the defendant was only a suspect, in Henry the defendant had already been indicted and formal charges had already been filed. The undercover agent engages in conversation with the defendant, and induces the defendant to confess. Was this a valid waiver to the right to council? No. The waiver was invalid and the confession inadmissible because the defendant did not intend to relinquish a known right – the right to council, and did not know he was confessing to a government agent
    4. Mere passive listening by a jailhouse informant does not violate the right to council

Interrogation under the right to council

Brewer v. Williams, 430 U.S. 387 (1977). Police were transporting the defendant to a jail facility in Iowa following his arraignment. Formal charges had been filed and one of the officers said to the other, “It’s too bad the parents of the little girl can’t give her a decent Christian burial. It sure would be nice if we could find her body, before Christmas so her parents can give her a decent Christian burial.” The defendant overheard the conversation, which appealed to his conscience and he directed the officer’s to the body. The police officers elicitation of the information from the defendant was an interrogation in violation of the defendant’s 6th Amendment right to council, and was behavior known to be likely to induce the defendant to talk. Based on that finding, the confession was held to be invalid

Under Miranda, a second interrogation is allowed, but once the 6th Amendment right to council has attached, subsequent waiver of this right as to any police interrogation is invalid. Second session interrogation is invalid under the right to council approach. However, invalid statements taken during the right to council may be used to impeach the defendant’s trial testimony

The request for counsel must be clear and unequivocal.

Davis v. U.S., 512 U.S. 452 (1994). Petitioner, a member of the U.S. Navy, initially waived his rights to remain silent and to counsel when he was interviewed by Naval Investigative Service agents in connection with the murder of a sailor. About an hour and a half into the interview, he said, “Maybe I should talk to a lawyer.” However, when the agents inquired if he was asking for a lawyer, he replied that he was not. They took a short break, he was reminded of his rights and the interview continued for another hour, until he asked to have a lawyer present before saying anything more. A military judge denied his motion to suppress statements made at the interview, holding that his mention of a lawyer during the interrogation was not a request for counsel. He was convicted of murder

After a knowing and voluntary waiver of rights under Miranda, law enforcement officers may continue questioning until a suspect clearly requests an attorney. If the suspect invokes that right at any time, the police must immediately cease questioning him until an attorney is present. Edwards v. Arizona. The Edwards rule serves the prophylactic purpose of preventing officers from badgering a suspect into waiving their previously asserted Miranda rights. This is an objective inquiry, requiring some statement that can reasonably be construed to be an expression of a desire for an attorney’s assistance. However, if a reference is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, Edwards does not require that officers stop questioning the suspect. Once the suspect invokes the right to counsel under the 5th Amendment, the police cannot reinitiate interrogation regarding any offense until counsel is present.

Edwards v. Arizona, 451 U.S. 477 (1981). Edwards, was arrested for robbery and murder. He was read his Miranda warnings and immediately requested a lawyer. The next morning, two detectives questioned Edwards without the presence of his attorney. Edwards said he didn’t want to talk to anyone. The guard told him he had to talk and the detectives obtained a confession. Is the confession admissible? No, The use of petitioner’s confession against him at his trial violated his right under the 5th and 14th Amendments to have counsel present during custodial interrogation, as declared in Miranda. Having exercised his right on January 19 to have counsel present during interrogation, petitioner did not validly waive that right on the 20th. An accused, such as petitioner, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation until counsel has been made available to him, unless the accused has initiated further communication with the police. Here, the interrogation of petitioner was at the request of the authorities and his confession made without having access to counsel and did not amount to a valid waiver and hence was inadmissible.

The police may obtain a valid waiver of the right to counsel if the suspect voluntarily initiates further communication with the police without counsel present

Oregon v. Bradshaw, 462 U.S. 1039 (1983). Police were investigating the death of Lowell Reynolds. It appeared that Reynolds had been killed in a traffic accident, when the truck in which he was a passenger careened off the road and into a creek. During the course of the investigation, Bradshaw was asked to accompany the police to the station for questioning. At the station, Bradshaw was read his Miranda warnings and admitted furnishing alcohol to Reynolds for a party at Reynolds’s house but denied being involved in the traffic accident. The police then arrested Bradshaw for furnishing liquor to Reynolds, a minor. The officer who was questioning Bradshaw explained his theory of how he believed Bradshaw was driving the truck in which Reynolds was killed. Bradshaw again denied involvement and said, “I do want an attorney before it goes very much further.” The officer ended the questioning. Bradshaw was then taken from the police station to the county jail. Either before they left the station, or en route to the jail, Bradshaw asked, “Well, what is going to happen to me now?” The officer replied, “You do not have to talk to me. You have requested an attorney and I don’t want you talking to me unless you so desire because anything you say, now because you have requested an attorney has to be at your own free will.” Bradshaw confessed and was convicted. Bradshaw’s question here, “Well, what is going to happen to me now?”, “initiated” conversation with the police “in the ordinary dictionary sense of the word.” It “evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship.” Thus, a suspect detained during an investigation may, after invoking his right to have counsel present during an interrogation, may ask for a drink of water or to use the telephone without retreating from his prior request for counsel. He may not, however, ask more generalized and open-ended questions. Accordingly, the Court held that the Edwards rule had not been violated. The police did not otherwise make any threats, promises, or inducements to Bradshaw in order to persuade him to talk; in fact they confirmed that he had the right to counsel before resuming their questioning. Under these circumstances, Bradshaw had voluntarily waived his right to counsel during interrogation.

  1. Public safety exception. The police may question a suspect without reciting the Miranda warnings if the questioning was reasonably prompted by concern for the public’s safety.

New York v. Quaries, 467 U.S. 649 (1984). A woman told officers she was raped, that her assailant went into a supermarket and that he had a gun. Officers apprehended Quarles in the rear of the store. The first officer frisked him and found an empty shoulder holster. After handcuffing the suspect, the officer asked where the gun was. He responded “the gun is over there” while he nodded to some empty cartons. The officer found the loaded revolver in one of the cartons. The officer read the suspect his Miranda rights. The suspect waived those rights and stated that he owned the revolver and had purchased it in Miami. He was tried for criminal possession of a weapon. The New York courts suppressed the statement, as well as the gun itself because they were obtained in violation of the defendant’s Miranda rights. The courts also excluded his statements about the ownership of the gun and the place of purchase as having been fatally tainted by the seizure of the gun. The state appealed. The Court held there is a public safety exception to the rule requiring Miranda rights that can justify their absence. Miranda does not require officers to refrain from asking questions reasonably prompted by a concern for public safety. In this case, the police had reason to believe the defendant had just removed the gun from his empty holster and discarded it in the supermarket. Miranda might deter suspects from answering questions if officers were required to read them prior to asking questions about the location of a weapon.

  1. IX. Sixth Amendment Right To Counsel. In all criminal prosecutions, the accused shall enjoy the right to the assistance of counsel for their defense.
  2. Right to counsel. The 6th Amendment grants the right to retain a lawyer for trial and, for indigent defendants, the right to be appointed an attorney for trial.
  3. Extension to pretrial proceedings.
  4. The 6th Amendment right to trial counsel extends to all critical stages of proceedings.

Massiah v. U.S., 377 U.S. 201 (1964). Massiah, had been indicted on a federal narcotics charge. He retained a lawyer, pled not guilty and was released on bail. A co-defendant, deciding to cooperate with police invited Massiah to sit in his car and discuss the crime he was indicted on. The police were listening to the conversation via a radio transmitter. During the conversation, Massiah made several incriminating statements and those statements were used against him at trial. The Court held the 6th Amendment prohibits the government from eliciting statements from a defendant about themselves after the point that the right to counsel attaches.

Formal adversary proceedings are required. For the 6th Amendment right to counsel to attach, a formal charge, preliminary hearing, indictment or arraignment is required. Arrest does not necessarily trigger the right.

  1. Offense specific. The lawyer only need be present at the interrogation if the defendant is being interrogated about the case for which the attorney was retained.

Texas v. Cobb, 532 U.S. 162 (2001). Cobb confessed to a home burglary, but denied involvement in the disappearance of a woman and child from the same home. Cobb later retained an attorney to represent him for the burglary charge but didn’t have one for the case involving the woman and child. While Cobb was in custody, Cobb’s father contacted the police to tell them his son had confessed to killing the woman and child. The police questioned Cobb, who waived his Miranda rights and confessed to both murders. He was charged with the murders and sentenced to death. Cobb appealed on the grounds the confession had been obtained in violation of his 6th Amendment right to counsel. Cobb argued the confession should’ve been suppressed because his right to counsel had been invoked once he had been charged in the burglary case. The Court held the 6th Amendment right to counsel is offense specific and does not always extend to offenses that are closely related to those where the right has been attached.

  1. Waiver. Waiver of the right to counsel is only valid if it is made knowingly, voluntarily and intelligently.

Need not be express. 
A waiver can be inferred from the accused’s conduct and the surrounding circumstances.

Once the right to counsel attaches, a defendant who is known to be represented by an attorney may only waive the right in the presence of counsel.

  1. Lineups and Identifications. A defendant may be subject to may types of physical identification procedures such as line-ups, photo identifications, voice recordings, blood, hair, handwriting, videotaping, put on items of clothing, asked to role up his sleeves to show a scar or reveal a tattoo or needle mark. The 5th Amendment privilege against self-incrimination is not a proper basis to attack such an identification procedure. Why? The 5th Amendment privilege only protects against evidence that is testimonial in nature.

MBE: Where there is an identification question, don’t choose the answer choice that gives the 5th Amendment as a choice to help the defendant

Whether the accused has the right to counsel depends upon the type of identification.

  1. Post-charge lineups. A lineup after the defendant has been charged gives rise to the right to counsel.
  2. Pre-charge lineups. The right to counsel does not attach when the suspect is placed in a lineup.
  3. Photograph identification. The right to counsel does not attach when a witness or victim is shown a photograph of the defendant. However, the Due Process Clause may prohibit the introduction of a photograph identification at trial if the procedure used to obtain the identification is unduly suggestive.

Two constitutional basis to attack an identification procedure.

Due process.

  1. Pre-indictment identifications are subject to the due process standard.

Right to council does not apply to pre-indictment line-ups and are not deemed to be critical stages of the proceedings.

The identification may be neither unnecessarily suggestive, nor produce a substantial likelihood of identification.

Example: A line-up where the suspect is a head taller than all the other persons and has a different skin color. This is clearly a due process violation.

Example: A show up is where there is only one person to be indentified by the victim instead of a line-up. It may be valid based on the specific facts of the case, such as in a hospital where a victim is near death, based on exigent circumstances such a showing may be justified. The court will balance several factors to determine reliability such as the opportunity the victim had to view the criminal, the time interval, and the identification.

Where there is an improper pre-indictment identification that violated due process, the remedy is no subsequent in court identification is allowed.

  1. Post-indictment line-ups. The defendant has the right to have council present because an indictment involves the filing of formal charges. The right to council has already attached.

The right to council does not apply to a mere showing of a photo identification.

Remedies for post-indictment violations. The defendant has the absolute right to suppress testimony about the unconstitutional line-up or other identification procedures.

Gilbert v. California, 388 U.S. 263 (1967). Are subsequent in court identifications allowed following a post-indictment unconstitutional line-up? The courts will apply the independent basis test. If what the witness remembers is the original crime rather than the unconstitutional line-up, then the subsequent in court identification will be permitted. If the witness remembers the line-up and not the original crime, then subsequent in court identification will be invalid.

  1. Exclusionary rule.
    1. Out-of-court identification. If a lineup is conducted in violation of an accused’s 6th Amendment right to counsel, the government may not introduce the results of the lineup at trial.
    2. In-court identification. 
If a lineup is conducted in violation of an accused’s 6th Amendment right to counsel, the government may not obtain an in-court identification by the witness unless it proves by clear and convincing evidence that the in-court identification is not a fruit of the tainted out-of-court identification.

X. Other Rights.

  1. Bail. The 8th Amendment mandates excessive bail shall not be required.
    1. Excessive bail defined. 
Bail is excessive if the conditions for release are greater than what is reasonably calculated to serve a compelling government interest. U.S. v. Saierno, 481 U.S. 739 (1987).
    2. Requirement of individualized determination. 
The 8th Amendment requires an individualized determination of bail conditions for each accused based upon the particular facts of the defendant’s case.
    3. Right to Speedy Trial. The 6th Amendment guarantees the right to a speedy trial.
      1. Attachment. The right to a speedy trial attaches upon an arrest or formal charge for an offense. When does it attach? When legal proceedings begin, either at an arrest or charged, but not a pre-arrest delay.
      2. Suspension of the right. The clock stops running when charges are dismissed and the accused is released, or at the moment the trial begins.
      3. Balancing test. What constitutes a speedy trial?

Barker v. Wingo, 407 U.S. 514 (1972). One factor recognized by the Court is the length of delay, but the Court has never explicitly ruled that a particular time limit applies. Another factor recognized by the Court was the reason for the delay. The prosecution may not excessively delay a trial for its own advantage, but a trial may be delayed to secure the presence of an absent witness. The other factors to be considered are the time and manner in which the defendant has asserted his right, and the degree of prejudice to the defendant, which the delay has caused. Factors to consider:

  1. Length of the delay. 
The length of delay is considered a trigger for a speedy trial claim. In general, delays longer then one year are considered sufficient to trigger the balancing analysis.
  2. Reason for the delay. 
The reason for the delay must be weighed when determining whether the right to a speedy trial has been denied.
  3. Defendant’s assertion of the right. A failure to assert the right to a speedy trial will not deny the defendant this right, but it will be weighed in the balancing test.
  4. Prejudice to the accused. 
The amount of prejudice the defendant suffered by the delay. Whether the defendant was detained prior to trial is usually the essential factor in this element of the balancing test.
  5. Remedy. Once it is determined that the defendant was denied the right to a speedy trial, the only remedy is dismissal of all charges. If it is found a defendant’s right to a speedy trial was violated, then the indictment must be dismissed and/or the conviction overturned.
  6. Right to Jury Trial.
    1. Right to a public trial. Members of the public and press have a 6th Amendment right to be present in all criminal proceedings, except a grand jury. The right can be limited by a judge where they find closure is necessary.
      1. A judge can issue a gag order, which are viewed as prior restraints and usually will not be upheld because the judge has other less restrictive means available, such as jury instructions, or change of venue. If the judge feels there is no other way to proceed, then a gag order may be permitted.
      2. Defendants have a 6th Amendment right to a public trial, but this right can be limited by the discretion of a judge.
      3. There is a constitutional right to televise a trial.
      4. The key issue of whether a trial will be open or closed to the public and press is the issue of trying to avoid unfair prejudice to the defendant.

What constitutes unfair prejudice?

  1. Prejudicial pre-trial publicity because it can violate due process by preventing impartiality
  2. Improper jury exposure to outside media information, which can result in reversible error.

Example: The 6th Amendment right to a public trial implicates the 1st Amendment right to free speech and freedom of the press.

  1. The defendant must argue a due process violation occurred due to the delay causing prejudicial error.

Example: A witness has died, or a witness has forgotten key facts. The remedy is dismissal with prejudice. (Rarely happens.)

  1. There has been no determination by the court as to what a speedy trial is. The determination must be made on a case-by-case basis. Barker v. Wingo, 407 U.S. 514 (1 972). The court balances four factors to determine an unreasonable delay.
    1. Courts look at the length of the delay.
    2. The reason of the delay. If the delay was caused by the prosecutor the more likely a constitutional violation exists.
    3. Did the defendant request a speedy trial? If so, then it is more likely that a constitutional violation exists.
    4. Prejudice to the defendant. Did the witness die? Did a witness forget material information?

Example: Dogget v. U.S. The defendant was arrested 8.5 years after his federal indictment. The defendant had asserted his right to a speedy trial. Under these facts there is a violation of a right to a speedy trial.

  1. Speedy Trial Act of 1974. Applies to federal courts. A federal indictment is required within 30-days of arrest, and the trial must commence within 70-days of indictment.
  2. Attachment. The right to a jury trial attaches when the defendant faces a sentence of six months or more in prison. The right requires and actual jail sentence.
  3. Jury selection. No identifiable group may be excluded. Standard for exclusion of prospective jurors for cause. Whether the individual jurors views would prevent or substantially impair the performance of their duties.

Example: If a juror doubts about the death penalty would substantially impair the performance of their duties, exclusion of that prospective juror would be proper. If a pro death juror is chosen, it does not constitute a violation of the defendant’s constitutional rights.

Exclusion for cause is proper for any potential juror for voir dire questioning, that they would automatically give the death penalty upon a guilty verdict, in violation of jury instructions, exclusion would be proper.

  1. Peremptory jury strikes made on the basis of race is unconstitutional and violates equal protection and applies to both criminal and civil cases. Neither the defendant nor prosecutor may exclude a juror on the basis of race. Same rule applies to gender.
  2. Jury size. The minimum jury size is six persons.
    1. Federal courts require a 12-member jury. The verdict must be unanimous. A 11-1 verdict is a hung jury and retrial is permitted.
    2. State court. The 7th Amendment right to jury trial has been incorporated for the states in criminal cases. In state criminal courts 6 person juries are allowed in non-capital cases. Their verdict must be unanimous. 12 person juries do not require a unanimous verdict in non-capital cases. 9-3 decisions have been upheld in non-capital cases.
    3. Cross-section. The jury pool must be a cross-section of the community, but the jury actually selected need not be a cross-section.
    4. Waiver must be knowing and voluntary. The suspect must be aware of the rights they are waiving and voluntarily choose to waive them.
    5. Right to a Fair Trial.
      1. Right to council. When does the right attach? Attached at any time after a formal charge has been filed such as post-indictment line-ups, preliminary hearings and arraignments. They extend all the way to sentencing and non-discretionary appeal. (Appeals as a matter of right.)
      2. Right to council does not apply to non-critical stages such as preliminary identification procedures, such as the showing of mug shots or identifications photos, -pre-indictment line-ups, grand jury proceedings, or habeas corpus proceedings.
      3. What offenses does the right to council apply? Any crime in which the defendant actually receives a jail sentence. A fine alone without an imposition of a jail sentence, even if a jail sentence was possible, does not trigger a right to council violation.
        1. There is a constitutional right not to have a lawyer. For the court to appoint council over defendant’s competent refusal is reversible error. If a pro se defendant requests back-up council it may not be denied.
        2. There is a right to competent council. The Supreme Court requires reasonably affective assistance of council. An attorney may prepare, may study, and may associate with another co-council to gain the expertise necessary to become competent. These are not billable hours
      4. For a defendant to successfully claim incompetent council, the burden is on the defendant to show incompetency with specific reference to the facts of the case. The defendant must show prejudice affecting the outcome of the case. A more likely than not test.

Example: Improper multiple representation by one attorney, creating conflicts of interests. Not if the attorney has poor strategy or makes poor tactical decisions.

  1. Post-trial right of habeas corpus. A state criminal defendant may collaterally attack the lawfulness of their detention in a civil suit by filing a writ of federal habeas corpus.
  2. Strict requirements. Federal constitutional rights must be violated by the state detention.
    1. State procedures must have been complied with at the trial.
    2. State remedies must have been exhausted.
    3. Any factual error must be shown by a clear and convincing standard.
    4. No 4th Amendment claims will be relitigated.

Example: Grand jury racial discrimination.

Example: Ineffective assistance of council.

Right to confrontation. 6th Amendment right of confrontation does not apply to grand juries or to sentencing, but does apply to every other stage of a proceeding.

Due process requires a prosecutor to prove every element of the crime charge, or a defense to the charge beyond a reasonable doubt.
The burden of production shifts to the defendant to prove his defense, but only by the preponderance of the evidence standard.

Presumptions. Mandatory presumptions that shift the burden of proof to the defendant violate due process and are unconstitutional in criminal cases.

Sentencing. During sentencing there is no right to confrontation, or cross-examination and federal rules of evidence — hearsay evidence is admissible.

Enhancing a sentence beyond the statutory maximum is for the jury who makes this determination, not the judge. Any evidence, which increases the penalty for a crime beyond the statutory maximum, must be charged in the indictment, submitted to the jury and the jury must make the determination, and must be proved beyond a reasonable doubt.

  1. Double Jeopardy. Always tested on the MBE. 5th Amendment prohibits a person from being twice tried for the same offense. What is the same offense? One offense is the same as another if either crime is a lesser included offense of the other.

Example: Larceny and robbery. All the elements of a larceny are obtained in the crime of robbery. A robbery is a larceny plus the elements of force and fear.

Example: If a defendant robs a bank and is tried and acquitted, he cannot later be prosecuted for robbery.

Example: Felony murder. During a robbery, the defendant shoots and kills a teller. It was an unintended killing, which results in the death of a teller. A felony murder charge would be proper. He cannot be tried separately for the charge of robbery, and for murder. If the defendant is tried and acquitted for the felony murder, then cannot later be tried for the robbery.

Example: During the course of a bank robbery, the defendant kills fiver people. He kills the teller and four other customers. Can the defendant’s be prosecuted for five murders in separate trials? Each killing is not the same offense. They are considered separate offenses. Therefore, the defendant may be tried for victim number one, and retried for victim number two, three, four and five without violating double jeopardy.

Example: During a robbery five people are killed. After defendant’s trial for the murder of victim number one, he raises affirmative defense of alibi and the jury believes him. He is acquitted of murder for victim number one. Can he then be reprosecuted for victims number two, three, four and five? No. This is not a situation of double jeopardy, rather collateral estoppel. Issue preclusion. Collateral estoppel serves as a bar for retrial. The defendant cannot be retried because the killings occurred during the same course of conduct and the jury had already concluded that the defendant was not there during the robbery/murder.

  1. Attachment. 
Jeopardy attaches in a jury trial at the point the jury is sworn, and in a bench trial, at the point when the first witness is sworn or at the beginning of the introduction of evidence. After this point, a defendant generally cannot be tried for the same offense.
  2. Proceedings that constitute a second jeopardy. What does it mean to be twice tried for the same offense? At what point does a trial begin? A trial begins once the jury has been sworn in. Jeopardy attaches at a jury trial once the jury has been sworn. If a prosecutor subsequently dismisses the charges, the defendant would be free and double jeopardy would bar a retrial.
  3. For a non-jury trial jeopardy attaches when the prosecutions first witness is sworn.

MBE: The defendant will move to dismiss claiming a double jeopardy violation. Motion granted because jeopardy attached when the jury was sworn is the wrong answer. Many things can happen after a jury has attached.

  1. Two areas where retrial is permitted even after jeopardy has attached.
    1. Successful appeal by the defendant. A defendant has waived the double jeopardy objection by appealing.
    2. Limitations. The defendant cannot be retried for a more serious crime or given a greater sentence than the one originally sought and reprosecution cannot be permitted if the appeals court finds the first conviction was improper due to the insufficiency of the evidence.
    3. Reprosecution is permitted after a mistrial. A mistrial results where there is no verdict. Retrial is permitted in three situations.
    4. Where the defendant consents to the mistrial is a waiver of the double jeopardy objection.

Example: A judge grants a mistrial based on jury prejudice, or improper prosecutorial comments.

  1. Where the mistrial is based on a hung jury. 11-1 decision in federal courts retrial is permitted.
  2. Where the mistrial is based on a manifest necessity. A catchall term despite the defendant’s lack of consent to the mistrial the court finds no other way to have a fair trial, except to declare a mistrial.

Example: The prosecutor drafts a defective indictment.

Example: A jury member observes a television broadcast that contains harmful inadmissible evidence.

Example: Where a judge dies.

  1. Same sovereign. Two offenses can only be the same if they are crimes in the same sovereign.

Separate sovereignty doctrine. Reprosecution by separate sovereigns does not violate double jeopardy.  Two crimes are not the same offense if they have been made crimes by different sovereigns.

Example: Defendant is tried for robbing a national bank and tried in federal court and then he is subsequently retried in state court. Is there a violation of double jeopardy? No because both courts are separate sovereigns.

Example: First trial is in state court and the second trial is in state court. No violation of double jeopardy.

Example: Two separate state courts where the defendant is tried in one state, and then tried in another state. There is no violation of double jeopardy because each state is a separate sovereign.

Example: The defendant is tried in a state or federal court and the second trial is in an Indian tribunal. No double jeopardy because each trial is a separate sovereign.

Example: A state and its municipalities are merely sub-units of the same sovereign. If the defendant is tried in a state court and then retried in a municipal court in the same state, there would be a violation of double jeopardy.

Example: A person cannot be required to stand trial for federal murder twice, but he can be charged for murder in state court and subsequently in federal court.

  1. Same act. Two offenses can be the same only if they are based on the same transaction or occurrence.
  2. Same facts. 
A single act that violates two separate statutory provisions nonetheless constitutes the same offense unless each provision requires proof of additional facts that the other does not. Blockburger v. U.S., 284 U.S. 299 (1932). The defendant was charged with narcotics violations, and was indicted on five separate counts, all involving the sale of morphine to the same purchaser. The jury returned a verdict against petitioner upon the second, third, and fifth counts only. The second count charged a sale on a specified day of ten grams of the drug not in or from the original stamped package; the third count charged a sale on the following day of eight grains of the drug not in or from the original stamped package; the fifth count charged the latter sale also as having been made not in pursuance of a written order of the purchaser as required by the statute. The defendant was sentenced to five years and a $2,000 fine on each count, the terms of imprisonment to run consecutively. The defendant advanced two legal theories as his defense. That the two sales charged in the second and third counts as having been made to the same person constitute a single, continuous offense. That the sale charged in the third count as having been made not from the original stamped package, and the same sale charged in the fifth count as having been made not in pursuance of a written order of the purchaser, constitute but one offense, for which only a single penalty lawfully may be imposed. The Court held that two sales, having been made at different times (albeit to the same person), were two separate and distinct violations of the law and did not violate the double jeopardy standard.
  3. Exceptions. A person can be tried for the same offense twice if:
    1. Hung jury. The jury is unable to reach a verdict.
    2. Mistrial caused by or at the request of the defendant.
    3. Defendant breaches plea bargain. If the charges against a defendant were dropped or reduced pursuant to a plea bargain, they may nonetheless be reinstated and the defendant tried if the defendant breaches the plea bargain.

Concurrent. Together.

Consecutive. Repeating.

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  1. #1 by Jason Tolerico on December 16, 2014 - 11:59 pm

    Yeah, this was pretty good. Nice work! Clearly laid out in English. I can tell you were a writer.

  2. #2 by Criminal Case Cheats on August 2, 2013 - 5:20 pm

    I learned some excellent stuff here. It must have been a lot of work to make this great site.

  3. #3 by Pike Thorne on July 26, 2012 - 2:05 am

    Thanks for the comprehensive overview!

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