Fall 2016 Crim Pro Outline (Freiwald) Lauren Nikkhah

Exam Tips:
Separate IRACs even for specific sub-issues of main/big issue; separately analyze each issue/sub-issue (ex: traffic stop 1) PC to
stop?, 2) traffic stop a pretext for actual reason for stop (racist suspicion) invalidate stop?)
S/S Concl: no 4th Am violation to search/seize/etc

1) INTRO TO CRIM PRO

4th Am. Rt. of pp to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures, shall not be violated; and no warrants shall issues, but upon PC,
supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
5th Am. No person shall be compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law;
6th Am. In all criminal prosecutions, the accused shall enjoy the right to have the assistance of
counsel for his defense.
14th Am. No state shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any state deprive any person of life, liberty, or
property, without due process of the law;

Powell Black boys on train; arrest to trial in less than Incorporates 6A (right to counsel) as a right w/i 14A (due
a week; no counsel. maybe all lawyers of process)
Alabama is their counsel; really NO counsel;
Patterson LEO used physical abuse & coercion to get highlights importance of judicial oversight; Const. rts.
witnesses to testify against for 2 murders; are critical in ensuring that LEOs respect pps rts. have
forced D to confess; checks, reporting, & transparency on all levels & branches
of govt.
Duncan was convicted of simple battery by a judge 14A guarantees right to jury trial (incorporated to the
in state court. sought trial by jury but LA state) & trial by jury under 6A. Nation has demonstrated a
const. only granted jury trials in cap. Punish. deep deference for the right of jury trial, this right meets
Cases or imposement of imprisonment at hard standard of a fundamental principle of liberty & justice &
labor. should be protected by Due Process Clause & respected

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by states.

2) SEARCH & SEIZURES

A. SEARCH: a types of investigation that LEO conduct which is prohibited unless if it is done w/W or an applicable exception
to the W requirement;
- 4th Am. Search only applies to Govt. Officials (LEO) not private indivdiuals
- Only applies to pp w/in the U.S., not those in foreign countries;

FRAMEWORK:
STEP 1: Was whatever took place a search or seizure?
If NOT a search, 4A doesnt apply
STEP 2: If yes, was it unreasonable?

If an investigation is a search, the court will apply either the Physical trespass test or REP test.
- PHYSICAL TRESPASS (Jones): physical trespass into a constitutional protected area is a search and requires a
warrant;
Jones GPS tracker on car for 4 wks after SEARCH: 4A: Right to be followed but not for 4 wks (focus on
drug possession arrest; checked privacy right, 4 wks reveals too much personal info); Katz test was
only in public; added to, not substituted for; uses Katz REP test but adds property-
based trespass test

- REASONABLE EXPECTATION OF PRIVACY (REP) (Katz): constitutional protected area is not limited to
instances of physical trespass since the 4th Am. protects people, not places;
- Thus 4th Am applies to instances where a person has a reasonable
expectation of privacy which requires:
1. Person exhibit an actual (SUBJ.) expectation of
privacy (usually requires some act); AND
2. that expectation be one that society is prepared to
recognize as reasonable.
Katz Bugged phone booth from outside; SEARCH b/c REP: REP is obj (regardless of location, 4A protects
in w/door closed; rt to privacy people not places); Trespass is not necessary or suff
for existence of search; Estab. REP, req: 1) exhibit ACTUAL
expect. of privacy (subj) & 2) society recognizes that THAT expect.
as REASONBLE (obj);
Berger State Statute that authorized Ct. rejected as insufficiently restrictive; HELD need for particularity
wiretapping and bugging by LEO and evidence of reliability in the showing required for judicial
in NY authorization which is especially great in the case of eavesdropping;

- OPEN FIELDS DOCTRINE (OFD) No Search

Three categories to consider when determining search of area surrounding a home:
Home: 100% covered by 4th Am. as pp have a rt. to be secure in their housesfrom unreas. S&S> W w/PC
Curtilage: area immediately surrounding the home; area so intimate w/home that 4th Am. protects;
Factors to determine (Dunn): *the more domestic uses/nature, the more likely curtilage;
1. prox to area claimed to be curtilage to home
2. whether area is included w/in an enclosure surrounding the home
3. uses/nature of area
4. steps taken to protect area from observations by pp passing by;
Open Field: property that is neither the home or curtilage may be accessed to investigate and is not a const. (4th Am.)
protected area;
Oliver Weed plants in field w/"No NO SEARCH b/c OFD; individual may not demand privacy for
Trespass" sign activities conducted outdoors in fields, except in area immediately
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surrounding home; REP in open fields is not recognized by
society;
Dissent: police officers, ignoring clearly visible NT aigns,
entered upon private land in search of evi of a crime. spot that
couldnt be seen from any vantage point accessible to the public
police didnt have a warrant auth their activities
Dunn Barn w/ meth lab 50 yards from NO SEARCH b/c OFD; Not curtilage; curtilage: area so intimate
fence surrounding home 60 yards w/ home that 4A protects; factors: (1) proximity of area claimed to
away; be curtilage to home; (2) whether area is included w/i an enclosure
surrounding home; (3) uses/nature of area; (4) steps taken by
resident to protect area from observation by people passing by

- PLAIN VIEW DOCTRINE (PVD) - No Search

Plain View: if 1) LEO in lawful position where may view an object 2) in plain sight/feel or touch/smell, AND 3)
incriminating nature is immediately apparent or immediately apparent to the LEO that there is evidence before him/her;

o Public thoroughfares (sidewalks, highways, streets, etc).

o Aircraft (normal/safe/legal altitude) (no intimate details, didnt look inside home Riley)
o Trash on curb (w/3rd Party & AOR)

3rd Party Rule & AOR: there is a risk one assumes, thus no REP, when a 3rd Party has the ability to relay to LEO when:
o giving something to 3rd party
o knowingly place something in public even when w/express purpose to convey to 3rd party (Greenwood)
o telling something to 3rd party, (White)
o know or should have known that 3rd party has or collects the information; (Smith, Schultz)

Ciraolo Saw weed plants growing in between NO SEARCH b/c PVD; no REP in open field viewable from
two sets of fences w/ an airplane above; had subj. REP from most views but not from above where
flying low & legally w/ naked eye passenger planes could see; LEO had legal right to be there;
physically non-intrusive
Riley PD flew helicopter at low altitude to NO SEARCH b/c PVD: No REP in partially covered area Ciraolo
see weed inside open part of applied b/c public flies at that altitude, w/i FAA limits, didnt
greenhouse above curtilage interfere w/ activities on ground, didnt look inside home, no
intimate details were revealed, & no obj. expectation of privacy
Trash on curb (outside curtilage) NO SEARCH: not curtilage; PVD & AOR/3rd Pty REP; court
thinks even no subj. REP b/c trash readily accessible to public;
Greenwood AoR: knowingly place w/ purpose of conveying to 3rd party &
incur risk they may give to LEO; LEO not expected to avert eyes
from home, property from public thoroughfare or place legally
allowed to be;
White Informant wearing wire where NO SEARCH b/c PVD/3rd/AOR REP: assumed the risk that
partner was listening informant may relay to LEO, thus no REP
Schultz v. Inspection of bank records NO SEARCH b/c PVD/3rd/AOR REP: someone in govt. already
Bankers had access (since business obligated to file w/govt.),

- TECHNOLOGY: - No Search if
Sensory Enhancing Technology: LEO restricted to technology in use by general public otherwise 4th Am violation;
(Kyllo)
*but search OK though if 1) consent, 2) LEO could have done it anyways w/o tech and did use that method as well, OR
3) if had no subj REP b/c of AOR w/3rd Party tech; (Knotts, Smith)

Kyllo Thermal image of interior of home SEARCH b/c REP & Tech (sensory enhancing):
from outside revealed likelihood of (1) LEO obtained info of interior of home which normally could not

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heat lamps for weed; have been obtained w/o physical intrusion; & (2) use of tech that is
not in general public use is restricted/requires W;
Knotts Beeper in container sold to was NO SEARCH b/c Phys. Trespass test (w/consent to) & done w/o
w/ consent of seller of chloroform; tech; of legally const. protected area; car protections are much less
around 4 days of tracking of car; than home b/c on public thoroughfares > REP; LEO could have
obtained info by actually, physically following; Court made
distinction that may be different between a few days vs. a month;
Smith LEO requests phone company NO SEARCH b/c AOR & Gen. Used Tech > REP b/c no subj.
install pen register (tracks #s) to expectation of privacy b/c business normally collects info & uses that
see if harrassing woman w/calls; tech > AOR b/c that info may voluntarily be turned to LEO;

SEIZURE: reasonable person would feel restricted in their movement;

Traffic Stop: seizure of driver even though purpose of the stop is limited & the resulting detention is brief (Delaware v. Prouse p. 415 of
Brendlin); traffic stop/seizure justified if RS (???or PC) that traffic violation occurred, even if that is the pre-textual reason;
B/C official conduct that does not compromise any legitimate interet in privacy is not a search subj. to 4 th Am;
A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the
time reasonably required to complete that mission;

- DOG SNIFFS - No Search

SUI GENERIS (of their own kind, unique)
Dog Sniff is NOT A SEARCH (thus no requirement for PC) b/c the LEOs method of investigation, conducting a dog sniff,
only reveals if there is possession of drugs, in such a limited manner and revealing of limited information, such that does
not compromise any legitimate privacy concern; (check page 41 of SUPP)
Dog has no legitimate interest in possessing contraband (dog has no interest)
Must be conducted before the LEO is done w/the mission of the traffic stop;
EXAM ISSUES:
Search: Does a Dog Sniff Search require PC? No
Seizure: Did it enlarge scope of routine traffic stop?
- stop lawful?
- conducted before LEO done w/mission (ex: write ticket)?
- prolonged beyond the time reasonably required to complete the mission?
- Dog sniff just turned up contraband?
Search of Car/Effect: Dogs alert sufficient to provide PC for the physical search of the car? Results of dog sniff
investigation may create PC;

Caballes Dog sniff at traffic stop & DEFAULT: NO SEIZURE (& SEARCH): dog sniff (sui generis/unique
while another LEO writing & of their own kind b/c manner/ info obtained & type/content of info
ticket; took 10 mins total; revealed very limited); Scope of stop not enlarged since stop lawful & not
prolonged beyond time reasonably required to complete mission/objective
of stop; dog sniff alert does not need PC or exception to W b/c intrusion
does not compromise any REP/intrusion does not rise to a level which
infringes constitutional protections;
Rodriguez LEO waited for back up to SEIZURE then SEARCH: limit on dog sniff: LEO cannot extend duration
arrive & after writing ticket, of stop (several minutes/half hour) beyond what is needed to carry out
to perform dog sniff traffic stop in order to facilitate dog sniff; authorization of seizure ends
when task tied to traffic infraction are, or reasonably should have been,
completed;
Jardines Dog sniff on porch of home SEARCH: per Phys. Trespass Test (Jones): dog sniffing on curtilage, which
is constitutionally protected area required W or exception; Scope: limited
not only to a particular area but also to a specific purpose; OK to walk to
porch to ask ?s; diff from sidewalk;

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B. KNOCK & ANNOUNCE REQ.

K&A is part of reasonableness inquiry of 4th Am., thus LEO required to K&A their presence and
purpose before entering a dwelling (to execute a search or seizure w or w/o W), but there may be
exceptions when LEOs interests establish the reasonableness of announced entry (ex: destruction of
evid w/advance notice OR in hot pursuit); (Wilson)
may or may not be part of the execution of W, but separate analysis

Absent exigent circumstances, LEO MUST K&A in order to enter a home (Payton) by:
making their presence known, and
waiting before entering a residence to execute a search warrant;
If not home, must come back;

EXCL. RULE n/a for violations (Hudson)

Wilson LEO had W to search home of after seeing K&A Req per 4th Am to Enter: LEO must K&A (b/c part
drug sale; During execution of W, main door of reasonableness of 4th Am) before entering a dwelling (w
was open, while opening screen & entering, or w/o a W in order to search and seize), but there may be
LEO announced themselves; LEO found exceptions when LEOs interests estab. the reas of
drugs & contraband > arrested ; unannounced entry (ex destruct of evid/hot pursuit)

EXCEPTIONS to K&A (EXIGENT CIRCUMSTANCES)

To justify no K&A, LEO must have reas. suspicion that K&Aing their presence, under the particular
circumstances, would be dangerous or futile, or that it would inhibit the investigation of the crime by, for
example, allowing the destruction of evidence; (Richards)

Hot Pursuit of suspected/recently escapted felon (an ex

in Wilson)

Destruction of Evidence:
- LEO must have reas susp (not PC) that K&A under particular circumstances would
be:
1) dangerous or futile ,OR
2) inhibit effective investigation of the crime; (Richards) (an ex in Wilson)

Prevent Violence/Danger/Medical Emergency (Stuart?)

Richards POs had W to search s room for drugs. POs Part Poss Destruc of Evid = Except to K&A, had W:
identified themselves as maintenance, HELD no blanket rule w/drugs allowed, but to justify a
cracked door & realized they were police. no knock entry, LEO must have reas suspicion that
POs kicked down door & found drugs. K&A their presence, under the particular circumstances,

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would be dangerous and futile, or inhibit the effective
investigation of the crime (ex: dustruc of evidence); does
not require PC of inhibition of investigation of crime;

B. PROBABLE CAUSE REQUIREMENT

Courts and LEO must use TOC approach to determine & review ?s of PC (Gates);
- 1) Totality of Circumstances of the facts and circumstances before the LEO (fluid concept).
- 2) to Warrant a Person of Prudence and Caution in believing there is a fair probability that a crime has been committed or
evidence will be found;
o Gates held this new approach from old Spinelli approach w/rigid rules for informants, and Stacey more than just mere susp;

- PC for Search: PC based on ToC that search will uncover fruits/evidence of suspected crime; (papers & things - Anderson)
- PC for Seizure: PC based on ToC that person is believed to have committed or going to commit a crime;

- INFORMANTs Info as basis/support for PC requires two-prong test based on TOC that
information is Reliable & Credible when (Gates):
o 1) particular informants basis of knowledge is adequate
(specified facts/knows what hes talking about/doesnt keep changing the story)
o 2) LEO must have knowledge/verification that informant himself is reliable
(worked w/him before, informants information is verified/corroborated);
- Note: Anonymous Tip only up to RS, not PC;

- Multiple People: need particularized belief of guilt to the person S&/orS, not just b/c merely physically close to
incident/suspected person; OK to arrest all if belief one of group (no one claiming guilt) is responsible;
Gates Informant revealed info about s, NO SEARCH b/c TOC for PC; Required substantial verification of
drugs, flights, travel. LEOs an anonymous informants tip but not a rigid satisfaction of formal
conducted investigation & were able rules; Cts will use ToC approach to determine & review questions of
to secure W of s home & car > PC; W application satisfies 4A PC reqts so long as it establishes
found drugs, weapons & contraband substantial basis for concluding search will uncover evidence.
Pringle 3 men in car were pulled over for NO SEARCH: PO had PC to arrest b/c officer had a reasonable
speeding. Cocaine & money were ground for belief of his guilt, particularized w/ respect to him;
all found in car & 3 men denied presence of drugs in a car gives rise to PC to arrest any occupant
any knowledge & all were arrested. who had knowledge of drugs, exercised dominion & control of them

- MOTIVATION/Lawful PRETEXT for actual reason - still requires PC/RS for Arrest/Stop
does the fact that the traffic violation was a pretext for actual reason for the stop, racist motivation, invalidate the stop?
Motivation: LEOs subj. motivation is irrelevant so long as a reasonable LEO, in same situation, COULD have stopped the
car for the suspected traffic violation;
Pretext: reason given in justification of a course of action that is not the real reason;

Whren POs became suspicious of drug NO SEARCH: RS of traffic violation legitimized seizure; legal test
deal. Plainclothes POs pulled over is COULD a reasonable officer in same circumstances have stopped
car for traffic violation. POs saw for suspected traffic violation; Officers subj. motivation does not
cocaine in s hands. matter; officers true motive for searching or detaining a person
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does not negate constitutionality of S&S

- MISTAKE - still PC: PC can be based on a mistake of fact or law so long as mistake is objectively reasonable;

Heien was pulled over b/c of one NO SEARCH: PC can be based on mistake of fact or mistake of law as
non-working brake light; PO long as mistake is reasonable; was obj. reasonable to believe code required
believed state code required 2 to have 2 working brake lights; S&S may be permissible even though
working brake lights the justification for the action includes a reasonable factual mistake

D. WARRANT REQUIREMENT
Absent an applicable exception, a warrant is required for searches of dwellings or to arrest in home otherwise 4th
Am. violation. (arrest: Payton, Anderson) W requires:
- 1) Issued based on PC,
- 2) Supported by sworn affidavit
- 3) Describes with particularity the place of search, AND the items or persons to be seized; (papers ok Anderson).
Arrest W: focus on the person, PC that subject of W has committed a crime;
Arrest in house: must have reason to believe suspect will be at home at time of arrest; (cant use home
arrest W to search home)
Search W: PC to believe that evidence/fruits of a crime is located in a particular place;
Purpose of Particularity: to prevent general & broad searches; assures indiv being searced/seized of the lawful auth. of
LEOs conduct;
General W (prohibited from 4th Am): a W that allows general, exploratory searches w/sweeping authorizations; VS.
Anticipatory W: search will only occur if certain events take place; still requires fair prob that evid of crime and PC that
triggering event will occur;
Payton LEOs believed w/ PC that was guilty of NEED W for S&S/entry of HOME for Arrest: LEO cant
murder. W/o W LEOs went to his apt to arrest enter home w/o W to make routine arrest unless exigent
him. was not home but POs found gun circumstances; S&Ss of the home under 4th Am. w/o W are
casing that was entered into evidence. presumably unreasonable; protection of home against
needless intrusion; PVD means if LEOs are lawfully in
position to view an object, they may seize it w/o W
Andersen investigated for fraud; investigators showed OK W even w/o DETAILS OF PAPER: Catch all
PC to search s offices & argued W was phrase in W does not violate 4As specificity requirement
too general so long as it is limited by language of W to items relating
to specific crime; Ws may be used to obtain papers as
well as things;
Groh ATF agent became aware of weapons on s INSUFF W b/c listed Specf. ITEMS: W that does not
ranch. Magistrate signed W which did not specifically describe person or property to be searched &
include specific items to be seized although seized or incorporate supporting documents w/ those
agents described these items orally to descriptions is invalid under 4A; Reasonableness

EXECUTION OF WARRANT:
In executing a search w. Leo may take reasonable action to secure the premises, and ensure their safety and the
efficacy of the search; even if occupants detained (Mueler) or mistake (Rettele, Garrison):
Occupants dehandcuffed for 2/3 hours, have them stand naked, or detained by mistake;
Unreas: Excess. use of force/restraints that cause unnecessary pain; detained for unnecessary, prolonged period of time;
must execute during daytime (6 a.m-10 p.m.) unless judge auth nother time for good cause *does not apply to narcotics;
Muehler LEO obtained search W of suspected DETAIN per EXEC of SEARCH W: in executing a search W, LEO
gang members home; Held for 2-3 may take reas. action to secure premises & ensure their safety and
hrs, in garage & questioned her efficacy of the search; HELD length of detention was reas & ?ing s
immigration status while conducting immigration status did not enlarge the scope of or prolong the
search of home; detention;

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Rettele LEO had search W for home (looking for 4 black men); Reas MISTAKE SEARCH w/W OK (PP): The risk
During EXEC of W, white man opened door and LEO of harm to both the police & the occupants is
found naked white couple in bed; LEO ordered them out minimized if the officers routinely exercise un-?ed
of bed, wouldnt let them cover themselves, until command of the situation; A search conducted
protective sweep and IDd mistake > Immediately left reasonably & pursuant to a valid search W does not
home; violate 4A
Garrison LEO gained W authorizing search Reas MISTAKE SEARCH w/W OK (Place): A search made under an
of apt.; thought only 1 apt. on 3rd otherwise valid W containing a mistake does not violate 4A if LEO acted
floor but there were 2; LEO found reasonably. LEO reasonably believed there was only 1 apt, conducted reas
drugs in wrong apt & immediately search, & stopped search when mistake was realized. Maj: W was broad
ceased search upon IDing their (permitted search of entire floor & based on mistaken belief that 1 apt. on
mistake about wrong apartment; floor), but did not invalidate the W b/c it was reas. mistake based on info
available to LEO;
E. EXCEPTIONS TO WARRANT REQUIREMENT
Justified Warrantless Searches & Seizures

a. Exigent Circumstances
i. Hot Pursuit
ii. Destruction of Evidence
iii. Immediate Need for Emergency Aid/Threat of Violence

b. Plain View Doctrine (PVD)

c. Automobile Exception
d. Search Incident to Arrest (SITA)
e. Inventory Searches
f. Protective Sweeps
g. Consent
h. Probationers & Parolee Searches
i. Searches When There are Special Needs
1. Administrative Searches
2. Border Crossing
3. Check Points
4. Schools
5. Drug Testing of Those Arrested
6. Searches in Jails & Prisons

WE

E
P
A
S
I
P
C
P
S
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a
b
c
d
school
govt
drug
jail/strip

EXIGENT CIRCUMSTANCES (EXCEPTION to W Req)

Exigent Circum: emergency situation where there is no time to get a W; whether reas requires a consideration of
TOC, on a case by case basis, if LEO faced exigent circum to justify as an excep to 4th Am W req. (McNeely)
1) Hot Pursuit 4th Am does not require LEO to delay in the course of an investigation (obtain a W) if it
would gravely endanger their lives or the lives of others; (Warden v. Harden)
permissible scope of a search must be as broad as may reas necessary to prevent dangers that at large in
the house may resist or escape; Items seized during search subj. to exception may be const admitted;
2) Destruction of Evidence:
1) Objectively reasonable basis that individuals are destroying evidence, or will if they K&A**;
2) LEO conduct must not be unreasonable: threaten to break down the door;
BAC issues: dissipation of BAC is not an exigent circumstance (destruction of evidence);
3) Prevent Violence/Immediate Medical Aid: objectively reasonable basis that:
1) a person w/in the house is in need of immediate aid, and/or
2) prevent further violence and injury;
doesnt depend on the seriousness of the crime or subj. intent of LEO
Limits on Exig. Circum: gen, LEO cannot create exigency (excep: RS that K&A > destruc of evid**)

Warden v. LEO got call of robbery w/ description of EXG. CIRCUM to W = HOT PURSUIT: permissible
Hayden man & residence he entered. Wife answered scope of a search must be as broad as may reasonably be
door & let LEO in where they found , gun, necessary to prevent the dangers that the suspect at large in
ammo & clothing. the house may resist or escape; 4th Am does not require
LEO to delay in the course of an investigation if to do
would gravely endanger their lives or the lives of others;
Items seized during search subj. to exception may be
constitutionally admitted;
Stuart LEOs called to loud party at home; on EXG. CIRCUM to W = VIOLENCE; Not permissible to
arrival heard fight in home and saw indiv. enter home to arrest w/o W unless exigent circumstances
Throw a punch; LEOs announced (Emergency Aid); K&A diff from entry but both need
themselves, no one heard, they opened door exceptions; Constructively reasonable to enter w/o W b/c
& entered, announced themselves, & fight LEO reas believed (1) injured adult needed help & (2)
stopped. prevent further violence & injury among partiers;
Fisher was seen inside home screaming & EXG. CIRCUM to W = VIOLENCE to requirement of
throwing objects. LEO saw blood on car, W for entry into a home requires an obj. reasonable basis
went to door, , had bloody hand, refused for believing that a person w/in the house is in need of
them entry, LEO entered anyway. immediate aid;
King LEO had a Search W but went to the wrong EXG. CIRCUM to W = Destruc. Of Evid; exig circum
apt (thus, no W); LEO smelled weed, did excused W req b/c LEO REASONABLY believed that
K&A, then heard scurrying; LEO kicked drugs being destroyed; the same analysis would apply if
door in and arrested individuals; they hadnt K&A so long as they REASONABLY believed
the individuals would destroy evid;

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Welsh drove erratically, pulled off/parked in BAC Dissipation Destruc of Evid for Wless Entry; No
open field, walked home; exigent circumstances were present. The exigent
LEO entered s home by consent of circumstances exception to 4A does not allow W-less entry
another resident and arrested in bed for into a home to make an arrest for a minor offense; BAC
driving while intoxicated; = issues NOT destruct of evidence;
McNeely failed field sobriety tests, declined BAC Dissipation Destruc of Evid for Excep to W;
breathalyzer; LEO relayed that refusal of HELD TOC, on a case by case basis, must be considered to
tests is a condition of a drivers license; LEO
determine if LEO faced w/exig. circum to justify as an
ordered hospital to w/draw blood w/o W; exception to the 4th Am. W requirement; Blood is different
than other evid which may be destroyed by flush of a toilet;
LEO MUST obtain W when they reasonably can; may be
circumstances where dissipation of alcohol in blood will
support an exigent circumstance justifying (Schmergber) no
W; states provide legal tools to enforce drinking/driving
laws: implied consent to non-consensual blood draws
PLAIN VIEW DOCTRINE (EXCEPTION to W Req): AKA Plain Feel, Smell, Etc
- Seizure of items revealed in W-less searches (during execution of arrest W or stop & frisk) justified only if:
1) LEO in lawful position to lawfully access object. AND
2) incriminating nature of object must be IMMEDIATELY apparent;
if not, further search requires W or applicable exception
Hicks (w/ LEO entered home w/o W but were lawfully W Excep PVD; must be IMMEDIATELY APPARENT
Horton pg there to search for shooter; LEO noticed that item is illegal; if search is outside of scope (taking
161) stereo equip., thought might be stolen, turned some action to see if illegal) of justification for initial
over & called in serial number from bottom; search (why there in first place), it is not admissible;
actions were unrelated to objectives of the authorized
intrusion;
Dickerson outside crack house; switched directions & INSUFF since NOT PVD > Need W; 1) LEO was in
evasive when saw LEO; was ordered to stop lawful potion to lawfully access object, but 2)
& submit to pat down; no weapons, but felt incriminating nature if object must be immediately
lump in jacket, used fingers to turn lump, apparent; if not immediately apparent, then further search
LEO took it out and examined it, realized it requires additional justification including a W based on
was drugs & arrested him for possession PC or an applicable exception;

AUTOMOBILE SEARCHES (EXCEPTION to W Req)

- AUTOMOBILE EXCEPTIONS: permits cars and other movable vehicles can be searched w/o a W if there is PC;
May search passenger compartment, trunk, and containers w/in car if there is PC for car;
*autos are exception to W requirement, but not the PC requirement;
WHY? there is a diff b/w protections afforded to the home & structures (not heavily regulated) vs. autos,
boats, (heavily regulated, use public thoroughfares, less REP, can quickly move our of JX in which W may be
sought)
- SEARCH OF AUTO AFTER ARREST:
SITA: if in car when arrested or w/in immediate vicinity & reason to believe weapons may be in car > search
passenger compartment
Inventory search (may be subj to part of routine LEO procedures)
- SEARCH OF CONTAINER IN CAR: W/O PC for whole car, LEO may search a closed container in a car
ONLY if they have PC for container; this does not auth or create PC to search entire car;
Weird: b/c other rule: LEO may search container in a car if they could have also conducted a W-less search of
the container OUTSIDE of the car;

Carney Informant told LEO that Dude in motor home Auto W Exception w/PC LEO can search auto w/o W
was exchanging sexual favors for drugs; LEO so long as LEO has PC;
entered motor home w/o W; -Car has less privacy interests/ protections than home
(regulations/public highway);

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-Auto excep DOES NOT permit cops to search cars
pursuant to arrest of an occupant.
-Auto excep DOES apply to passenger compartment &
trunk;
Acevedo LEO intercepted a FedEx box w/weed; set up Auto and Container W Exception w/PC; LEO can only
to arrest person to pick up at FedEx; Person search container in a car if LEO has PC of that suspected
picked up & went home (LEO attempted to item could be found in the container, does not provide PC
get W); put a bag (looked package of weed) for car or authorize search of entire car;
in trunk of car & drove away; Fearing loss of
evidence LEO stopped & opened trunk &
the bag & found weed

SEARCH INCIDENT TO ARREST (EXCEPTION to W Req)

- SITA: permits searches, conducted immediately after arrest, of the person arrested and the area w/in his
immediate control/ reach (personal prop assoc. w/arrestee > purse ok, luggage); (Chimel);
Why (PC)? justified b/c protecting LEO safety from weapon, prevent escape destruction/concealment of
evidence => LIMITED SCOPE to weapons but Plain Feel/View Doctrine applies;
Not w/in scope (need W): other rooms in the home or outside of immediate reach (only allowed w/W or
exigent circumstances), or as a subterfuge for other criminal investigation;
Does not apply if LEO just giving a TRAFFIC CITATION, must be arrested of crime; (Knowles)
- SEARCH OF PERSON: (plain feel applies)
- SEARCH OF CAR: LEO may search car if w/in the arrestees immediate control or reach at time/moment of
arrest when arrestee unsecured & has reason to believe that something dangerous in car;

Chimel LEO had Arrest W, waited at s home, w/ SITA = Excep to W is reason & permitted of person &
wifes consent & arrested upon coming area w/in his immediate control (to remove weapons that
home; LEO asked permission to look around; may use to resist arrest or escape, LEO safety, preserve
declined; LEO then searched entire home evid); it does not allow a search beyond immediate
on the basis of arrest W; control (other rooms/whole house) w/o W or exception;
Robinson Stopped for driving w/expired DL > got out SITA = Except to W: Held SITA is traditional except to
of car and LEO told him under arrest; Search W, and rejected claim that search may only be for frisk of
revealed heroin; weapons; Held requires
1) search may be made of the person of the arrestee by
virtue of the lawful arrest, AND
2) the search may be of the area w/in the control of the
arrestee;
Knowles Stopped for speeding; LEO issued citation, he Cant SIT Citation; SITA N/A w/traffic citations, only
could arrest per state law & did full search of when LEO arrests; SITA permits searches of person &
car, found weed & arrested him area w/in immediate control for 1) disarming suspect for
custody & 2) preserve evidence for trial; SITA does not
require PC b/c part of arrest procedures;
Gant arrested for driving w/ suspended license & SITA N/A if Immed Control; Held search was a 4th Am
placed in back of LEOs car; LEO searched violation b/c search only when D is:
cars passenger compartment & found coke; 1) unsecured and
2) w/in reaching distance of passenger compartment;
Also could have searched passenger compartment if there
was PC that evidence would have been there but this
situation requires PC, but SITA doesnt;
Riley v. CA Traffic stop for expired tags > Arrest & car SITA N/A for content of Cell Phone- not viable
impounded. Inventory search revealed guns > exception to search a cell phone; info on cell phone is
suspected gang ties > searched cell phone I2A immune from search, even when seized I-A;
Wurie LEO observed drug sale > Arrest > @ station SITA Not for Investigative of other Criminal
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seized two cell phones; Home kept calling Wrongdoing; SITA does not require PC b/c of
w/pic of girl; opened phone, accessed call log, reasonableness and exigencies (prevent destruct of
traced phone # to apt. location where executed evidence, remove weapons w/in immed control of
a search W and found drugs; arrestee), but this does not apply when LEO purpose of
search is for other wrongdoing/criminal investigation;

INVENTORY SEARCHES (EXCEPTION to W Req)

- Inventory Searches: do not require a W so long as 1) lawfully in govt. custody, and 2) for non-investigative
purposes; (Opperman) and 3) so long as part of the standard/routine LEOs administrative procedures;
Based on Community Caretaking Functions
Why for car inventory: Protect owners prop while in LEO poss, LEO from claims of lost/stolen prop, LEO
from potential dangers (weapons), respond to vandalism,/theft, attempt to determine if stolen or abandoned;
Why for Arrest inventories: protect safety of those in jail from dangerous instrumentalities, ensure
contraband not taken to jail, protect police, prevent theft of arrestees prop by other inmates/jail employees;
Search of container MUST BE part of the standard/routine LEO procedures of the dept for it be reasonable
under 4th Am; if incriminating nature of item inventories is not immediately apparent, then further search
requires a W based on PC or applicable exception;
CANNOT use Inventory Searches to circumvent W requirement when purpose is to search for evidence/
investigate for illegal evid/crime;

Opperman Tickets for illegal parking > Impounded by Inventory Search W Exception; Held W not required for
LEO. Searched car b/c of personal property non-investigative LEO inventories of autos lawfully in
(watch) in open view (inventory). Found govt custody; Cant be pre-textual (sole purpose for
weed. investigative purposes for evidence of crimes); based on
community caretaking functions and protect owners prop
from theft and LEO from theft/damage claims;
Lafayette arrested, at station ordered to empty Inventory Search of Container Search W Excep: Held
pockets; LEO emptied contents of cigarette reasonable for LEO, as part of routine procedure incident
pack in bag (which took out) & found to incarcerating an arrested person, to search any
amphetamine pills; container or article in his possession in accordance w/
established inventory procedure; (LEOs subj. fear of
particular container is irrelevant); *if incriminating nature
of items inventoried are not immediately apparent, then
further search would require W based on PC or applicable
exception

PROTECTIVE SWEEPS (EXCEPTION to W Req) - w/arrest at homes & dwellings REQ RS

- LEO may conduct a protective sweep as a precautionary matter for a search of dangerous people who
could pose a danger (attack) in the immediate adjoining area to the place of arrest so long as there are
articulable facts to reas. believe the area may harbor such dangerous person (RS).
- **up until point of arrest, LEO had auth to search anywhere in the entire home based on auth of arrest W;
- Limits:
Place: a cursory inspection of immediate adjoining area to the place of arrest of places a person may be
found; only visual, quick sweep;
What things: closets and other areas which may hold a person, cant look into things that cant hold a person,
such as a drawer;

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How long: no longer than necessary to dispel the reasonable suspicion of danger; AND ultimately: no longer
than it takes to complete the arrest and depart the premises; (dont hang around to make yourself vunerable)
Compared to ordinary search: not a search to find evidence of crime; search W will say with particularity;

Buie LEO had arrest W & Protective Sweep Except to Search W; LEO may w/ RS (not PC) look in
entered home to search immediately adjoining area to the place of arrest from which an attack could
for suspects; LEO be immediately be launched; MUST have articulable facts + reas inferences
shouted for people to exit to warrant a reasonable, prudent LEO to believe area to be swept may harbor
basement; came up & an indiv. posing a danger to those at scene; > b/c LEO lawfully allowed to be
IDd himself; LEO then in basement per Protective Sweep, the evidence was admissible per PVD;
went to basement to check sweep (cursory visual search) of area beyond room of arrest w/ reasonable
for others & saw red jump belief based on specific & articulable facts that the area harbors an individual
suit tied to burglary & posing danger to those on the arrest scene.
took as evidence;
CONSENT (EXCEPTION TO W Req)
- 1) Must be voluntary, not coerced; determined by TOC considering nature of questioning & environment;
Inherently coercive: Any use of force of threat of force;
Knowledge of the right to refuse consent is ONE factor, govt need not establish such knowledge as the SINE
QUA NON (essential condition/ absolutely necessary element) of effective consent;
b/c burden on pros, ct. relieves burden of proving knowledge (of rt. to refuse consent) b/c too hard;
If coerced, the resulting consent is a pretext for the unjustified LEO intrusion against which the 4th Am is
directed; (pretext: reason given in justification of a course of action that is not the real reason);
- 2) From someone w/authority (reasonable to believe has authority);
Shared Space: ok if consent from someone w/shared auth (or reas appears) of the are to be searched;
No Consent for W-less search if one CT is PRESENT and EXPRESSLY REFUSES consent to search,
even if other CT consents;
If one consents and other does not object, OKAY to enter and search w/o W;
Consenting Co-Tenant Can: deliver evidto LEO, tell LEO what she knows (to help get search W), exigent
circum (abused spouse, LEO reas believe person in need of immed aid) may justify W-less search (Fisher);
Schneckloth Traffic stop; Only passenger produced ID. Consent = Excep to Search W; to determine whether
LEO asked to search car (w/no mention of consent to search is voluntary, must determine whether
arrest) & passenger said go ahead & even consented based on TOC; IF consent is coerced (by
opened trunk and glove compartment for implied threat or covert force), the resulting consent is a
LEO; 3 fraud checks were found; driver pretext for the unjustified police intrusion against which
arrested. 4A is directed.
Drayton 3 LEO on bus b/c drug enforcement effort; Consent = Excep to Search W (+ seizure); reaffirmed
LEO did not block aisle, so stood next that test for consent is whether it is voluntary under the
to/behind person ?ing; LEO: pp who ROC; HELD there was nothing coercive or
declined to cooperate or chose to exit would confrontational: no application of force, no intimidating
have been allowed to do so; LEO asked movement; no brandishing of weapons, no blocking of
which bag was his and if okay to check; go exits, no threat, or authoritative tone of voice;
ahead; which had no contraband; sure to
LEO request for pat down; revealed drugs;
Randolph Possibly separated wife told LEO of domestic Consent if one occupant refuses consent to Search;
abuse & husbands () drug use; LEO asked LEO may not enter space with shared authority or
husbands consent to enter/search home, he reasonably shares authority w/o W if one co-occupant is
refused; LEO asked wife who consented present and expressly objects, even though one consents;

S&S When There Are SPECIAL NEEDS (EXCEPTION TO W Req)

- Touchstone of 4th Am (requires) REASONBLENESS: under TOC, must balance the degree to which
it intrudes on individual privacy vs. degree to which it is needed to promote legitimate govt interests;
special needs searches which use the special needs doctrine for justification the purpose is
beyond the normal need for law enforcement making the W & PC requirement impracticable, but
may still requires a reasonableness balancing test on occasion (never PC);

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normal need for LEO: purpose is general crime control (deter &/or find evidence of)

immediate objective of searches/seizures cannot be to generate evidence for LE purposes;
relevant when suspicion-less intrusions pursuant to a general scheme are at issue
- TYPES:
Administrative Needs
Border (Crossing) Searches & Seizures
Check Point Seizures
Schools
Govt. Employee Searches
Drug Testing
Searches in Jails/Prisons
DNA Testing of Arrestees
- ADMINISTRATIVE SEARCHES (EXCEPTION TO W Req)
Admin Searches: for regulatory purposes & conditions of certain govt benefits or heavily regulated
industries that are beyond LEOs general crime control purposes; it is reas when the intrusions:
1) solves or serves govt. interests
2) got. interests are high and govt. intrusions are low
3) it must be part of a discretion less, standard scheme
(no individualized suspicion, thus no PC/RS required, cant
pick & choose who is searched) (Camera);
In practice: Inspectors will attempt to enter w/consent and only get W if consent is refused UNLESS they
need to enter immediately (citizen complaint or emergency);
Must provide for magistrates review and assurance to occupant that:
1) enforcement of municipal code REQUIRES inspection of premises
2) there are LAWFUL LIMITS to the inspectors power to search
3) the inspector is acting under PROPER AUTHORIZATION
Pre-Compliance Review Required: must provide recipient ability to attain review, prior to punishment,
either (pre) w/warrant or (after) with subpoena where recipient may file motion to quash to instigate review;
Facial challenge: whether a statute at issue is unconstitutional in ALL its applications? If it is
unconstitutional in all of its applications, it fails;
Dont need PC; may be based on passage of time, nature of building condition of entire area, but will not
necessarily depend upon specific knowledge of condition of particular dwelling;
Purpose for conducting the inspection is not to search to find criminal evidence, but rather for public health
and safety compliance;
need routine periodic inspections in order to ensure everyone to complies to prevent problems, so not
just investigate after problems mature into crimes;
since not for discovery of crimes, limited invasions on an urban citizens privacy
Wless Admin Searches Exception: heavily regulated industry + signigicant risk to public welfare (1) liquor
sales, 2) firearms dealing, 3) mining, 4) car junkyard);

Camera refused housing inspection on multiple Administrative Searches Excep to W- Judge may
occasions w/o search W; was using part of approve W for code inspection program when reasonable
space on ground floor as residence (of leg. or admin. standards for conducting an area inspection
apartment building that did not have a permit are satisfied w/ respect to a particular dwelling; standards
for residential dwelling on ground floor); for these inspections may be based on passage of time,
nature of building, condition of entire area, but will not
necessarily depend on specific knowledge of condition of
particular dwelling; inspection has to be for leg. or admin.
purposes NOT to proceed w/ crim investigation
Burger Auto junkyard in open lot w/ no buildings Admin. Searches w/o W; Closely regulated industry;
special 3 part test used for W-less search: (1) substantial
government interest informs scheme (2) W-less
inspections must be necessary to further regulatory

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scheme (3) Scheme must provide constitutionally
adequate substitute for a W in terms of certainty &
regularity of application
Patel Statue required hotel operators to record and Admin. Searches Req Pre-Compliance Review; Held
keep specific info of guests (for 90 days on regulations must provide operators w/an opportunity for
premises) & make records available to any pre-compliance review otherwise it is facially
LEO for inspection on demand; LAPD unconstitutional; HELD fails b/c it did not offer a pre-
requested records from hotel b/c of statute in compliance judicial review before punishment; can get
place that required them to do so. Hotel pre-compliance through an administrative subpoena or W
refused.

BORDER (CROSSING) SEARCHES SPECIAL NEED (Exception to W Req)

Border Searches (mail across border): are inherently reasonable, even though general crime control,
because 1) occur at the border, & 2) are routine; 3) govt.s interest/purpose is in a) preventing entry of
contraband, b) entry of unwanted people, and c) to collect duties owed;
Do not require reasonable suspicion or PC
Cars: Routine search of includes search of gas tanks (taking it apart and putting back together),
(Flores-Montano);
People: w/reasonableness test, reasonable suspicion is not required UNLESS the search is BEYOND
THE SCOPE of a ROUTINE search, there is prolonged detention and/or intrusive search of body
(alimentary canal);
Beyond Routine Search Requires Reas Suspicion: A non-routine search is justified at
inception if LEO, considering all facts surrounding the (traveler) reasonably suspect that the
is smuggling illegal contraband (drugs in alimentary canal)
Flores- Station wagon inspected at CA/Mexico Special Needs - border searches; there is interest in
Montano border; told to exit vehicle LEO tapped gas protecting border; routine border searches are reasonable
tank, sounded solid; mechanic removed gas by virtue of fact that they occur at border; Govt.s interest
tank & found 81 lbs. of weed; took 20 min in 1) preventing entry of contraband, 2) preventing entry
of unwanted people, 3) collecting duties;
Montoya- flew into LA from Colombia. LEOs Special Needs- border searches; Detention of traveler at
Hernandez believed she was smuggling drugs & detained border, beyond scope of routine customers search &
her and forced to defecate in bucket. inspection, is justified at its inception if custom agents,
Prolonged detention & search of alimentary considering all the facts surrounding the traveler & her
canal. trip, reasonable suspect that the traveler is smuggling
contraband in her alimentary canal
Ramsey s were sending drugs through the mail. Special Needs- Mail; Mail entering the country can be
Customs inspector intercepted & searched 8 searched w/o PC or a W. Mail=people when crossing
envelopes. Envelopes were then sent to DEA border.
who made arrest

CHECK POINT SEIZURES SPECIAL NEED (Exception to W Req)

specific criminal activity, not deterrence or detection of any general crime: If LEO pursue general
crime control purposes at checkpoints, stops can only be justified by some quantum of indiv susp;
LIMIT/Exception to Doctrine: may use in emergency situations like fleeing felon or terrorists;
DUI ok: b/c particular area was having a really big issues, but this set a precedent;
Sitz LEOs set up sobriety checkpoints. All CheckPt Seizures = Special Needs; LEO may routinely
vehicles passing through were stopped, seize individuals at temporary check points along state
drivers ID & reg. were examined, & sobriety roads b/c system advances states interest in preventing
tests done if LEOs believed drivers were drunk driving accidents & state interest outweighs
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intoxicated. intrusion upon motorists imposed by checkpoints; so
long as not for general crime control purposes;
Edmond LEOs set up roadside checkpoint in order to Norm Crime Control Check Pt Sezire Special Needs
intercept drugs w/dog sniffing; stop = 2-3 Suspicion-less highway check pts cant be operated to
minutes; find illegal narcotics (away from border) b/c it is for
general purpose of deterring crime. Primary Purpose
Test.

SCHOOLS SPECIAL NEED (Exception to W Req)

Reas Bal Test: RS, based on articulable facts and rational inferences that:
1) student engaged/engaging in proscribed act, AND
2) search measures must be related to objectives of search & not excessively intrusive (per age,
sex, and nature of infraction) (Safford);
RS, not PC b/c must weigh the factors of the interests of the govt. (school to provide safe learning
environment) vs. students privacy interests and intrusion;
Safford School suspected 13 y.o girl of distributing SPECIAL NEEDS b/c School Needs REAS SUSP:
USD v. ibuprofen students. Backpack & outer Held 4th Am Violation b/c School needs 1) reas suspicion
Redding clothing searched > nothing found; Strip of danger, OR 2) reas susp that student would resort to
searched incl. underwear > nothing found; hiding evidence in underwear (ex: if it were common
practice for students to do that at school);

GOVT. EMPLOYEE SEARCHES SPECIAL NEED (Exception to W Req)

Reasonableness requires (OConnor 2 part test) on a case by case examination of workplace
operational realties TOC:
1) Is there REP?
2) If yes REP, apply reasonableness under all the
circumstances (make W-less search ok):
a. Justified at its inception (search measures reas
related to search objectives), AND
b. not excessively intrusive in light of the
circumstances giving rise to the search;
Quon , govt employee, used work phone to text; Govt Empl Search = Special Needs W: b/c 2 step test
Employer (Govt) went through texts in order (analyze case by case basis of works operational realites):
to check if monthly text allotment enough; 1) Is there REP?
Policy stated there are no privacy, but verbal 2) Yes, then W-less search is reasonable if meets
assurance that govt would not look if paid reasonable standard for intrusion: (a) justified at its
for overage fees; inception b/c measure reas related to search objectives
AND (b) not excessively intrusive;
HELD b/c search motivated by legitimate work-related
purposes and not excessive in scope, search = reas.

DRUG TESTING SPECIAL NEED (Exception to W Req)

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There is a REP that medical information will be confidential; thus W-less or non-consensual drug
testing cannot be to gather criminal evidence (too closely aligned with any LEO purpose);
Ferguson Program which drug tested pregnant women W-less Search (4th Am violation) Special Needs: Special
w/o PC claimed purpose was to help them Needs doctrine may only apply if the purpose is not too
enter drug treatment, BUT really used threat closely aligned w/LEOs purpose; ALSO test invaded
of arrest to pressure them into rehab; REP (b/c REP medical = confide) & intruded on womens
body THUS HELD may not perform drug screening w/o
W based on PC or consent;.immediate obj of search was
to ge

Searches in JAILS &PRISONS SPECIAL NEED (Exception to W Req)

Reas Bal Test: a jail/correctional officers (CO) interests and security outweighs (vs) an individual
inmates REP > a strip search of all is justified b/c of health, security, & safety risks;
Limit on Doctrine: only applies to those mixed in w/general detainees & N/A Minor Offenders:
Minor Offenders: LOOK only, no touch, if able to segregate from other, general detainees;
Courts allow deference to LEO over inmates unless substantial evidence of problems w/jail security;
Florence Man was arrested for minor offense & was Search in Jail/Prison = Special Needs: HELD strip
strip searched upon intake. searches, even for minor offenses, is reas search (&
excep) b/c govt./penological interests outweigh
individual; OK implement routine strip search of those
charged w/any offense to protect LEO & other inmates
unless minor offense and will be segregated from main
population (in those cases, look only, no touch);

DNA TESTING of Those ARRESTED SPECIAL NEED (Exception to W Req)

DNA TESTING OF ARRESTEE: DNA Identification Testing of arrestees can be considered to be a part
of routine booking procedure and thus is reasonable under 4th Am b/c in applying the reasonableness
balancing test: the legitimate govt. interests outweigh the minor intrusion of the persons privacy interest:
Reasonableness balancing test:
Govt interests: for correct ID and informed decisions re pre-trial custody
(responsible for ensuring arrestee does not pose risk to staff or detained population;

vs. Arrestees REP: in light of an arrest supported by PC, the arrestees PC not
offended by minor intrusion for brief swab of cheek
Like: fingerprinting or photographing
Kings Man was arrested for assault. Testing of DNA Arrestees DNA Test Search Special Needs: DNA ID
upon intake led to his conviction for rape that test of arrestees is search but can be considered part of
occurred years earlier. routine booking procedure and reas under 4th Am b/c
govts interests (correct ID & informed decision re pre-
trial custody) outweigh individuals (w/valid arrest
supported w/PC, REP not offended by minor intrusion for
brief swab of cheek;

PROBATION & PAROLE (EXCEPTION TO W Req)

(reasonableness test: degree of intrusion of ind. privacy vs. degree of need to promote leg. govt. interests)
- Probation: probationers home may be searched, regardless if for criminal investigatory purposes, b/c a
reduction in freedom and rights w/probationers, but REQUIRES Reas Susp based on TOC;
Consent to Search as a Condition of Probation: is a factor, but not dispositive;
Knights Probationers home was searched when he Probation = Excep to W (but Req Reas Susp); HELD
was suspected of vandalizing PG&E. Had not a search in violation of 4th Am, b/c of 4th Am requires
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signed consent to search upon release based reasonableness: TOC & balancing test, balance: the
on probation. govt.s needs outweigh the probationers (reduced) right
to privacy;

- Parole: may be searched w/o W, PC or Reas Susp b/c they are constructively in prison (although not tech in);
Samson Parolee was walking down the street & LEO Parole = Except to W (RS, PC): HELD not a search in
thought he had an outstanding warrant. Upon violation of 4th Am, b/c of 4th am reasonableness requires
finding out there was no warrant, LEO still TOC & balancing test: the degree for the promotion of
searched parolee & found drugs. the govt. interests outweigh the intrusion of the
individuals privacy, which is essentially none since
parolees rights are as if hes still a prisoner, not
probationer. 4A does not prohibit suspicion-less search of
a parolee whose release was conditioned on agreement to
submit to search or seizure w/o cause.

F. SEIZURES & ARRESTS

ARREST: requires PC, but does not always require a W;
Detention & custodial interrogation: severely intrudes interests, protected by the 4th Am., thus triggers the traditional
safeguards against an illegal arrest;
Misdemeanors: can arrest which must be based on PC, W not required (Moore);

SEIZURE: per TOC, a reasonable person would have believed he was not free to leave
b/c his freedom of movement is:
1) restrained by physical force OR
2) submitting to a show of authority; (Mendenhall)
time of seizure: why matters? b/c if seized w/o sufficient justification before the search, it will
invalidate the search (fruit of an unlawful detention)> possibly ER application;
traffic stop: seizure of driver even though purpose of the stop is limited & the resulting detention is
brief (Delaware v. Prouse p. 415 of Brendlin);

Watson Informant (who LEO worked w/before) told Held arrest based on PC w/o W okay, thus search of car
postal inspector that was in possession of was not the product of illegal arrest;
stolen credit card & would furnish them to the
informant; informant set up meeting with ,
was to signal if had multiple stolen CCs,
gave the signal > LEO arrested where he
consented (go ahead) to search of car;
Mendenhall at airport, 1) agents approached & asked to SEIZURE w/Physical Arrest: HELD when in view of all
see her plane ticket & ID; > 2) LEO asked the circumstances surrounding the incident, a reas person
her to go to DEA office for more questions; would have believed he was not free to leave b/c his
> 3) female LEO took her to another room for freedome of movement is 1) restrained by physical force,
strip search, > 4) stayed even though she or 2) a show of auth; HERE, was free to disregard ?s
wanted to catch her plane; > 5) arrested for and walk away (no intrusion on her liberty or privacy) up
possessing heroin; to the point of arrest;
Hodari Homie ditches (ABANDONS) crack rock SEIZURE @ time EVID ABANDONED: HELD
while running away from LEO; tackled and seizure req. no freedom of movement by restraint or show
arrested; of physical force; b/c did not comply nor submit
w/LEOs show of auth by running away or arm grabbed
thus seizure occurred at moment of tackle; thus
abandoned incrim evid while running not the fruit of a
seizure;

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G. STOP & FRISK

TERRY STOP (Investigative Stop)
STOP & FRISK: since privacy intrusions are so minimal and temporary, it requires less than arrests & searches under 4th
Am > requires only RS;
Terry Stop: temporary detention which requires only RS,
What happens: 1) LEOs suspicion is dispelled during stop & talking
to suspect, OR 2) stop elicits more suspicion, increasing it to PC (find
weapons, drugs immediately, apparent per other cause);
Terry Frisk: If LEO has RS that suspect is armed & dangerous, may
conduct a limited protective search for weapons (Terry);
Scope of Frisk: since sole justification of frisk, is LEOs protection,
the frisk MUST be confined to scope, the intrusion must be reas related
to the discovery of weapons that could pose this threat to LEO;

REAS SUSP: requires LEO to be able to pt. to specific & articulable facts which taken together w/rational inferences from
those facts, reasonably warrant a brief stop of a suspicious individual;
How Ct determines: Must determine LEO ha RS, in view of TOC, if LEO had particularized and objective basis for
suspecting legal wrong doing;
Rational InferencesCan be from:
Inferences draw from LEOs experience and specialized training (Arvisu);
Flight from LEO in a high crime area (Arvisu);(not only flight/evasive action)
Reliable anonymous tips (Navarette) (must be verified, not unverified)
Observations that are readily susceptible to innocent explanations (?)
Cannot be from: Inarticulable hunches or officers good faith (Terry);
Why? LEO interest for effective crime prevention and detection, there are circumstances where appropriate manner is
to approach a person for purposes of investigating criminal behavior even though no PC to make an arrest;

Terry stopped and searched by LEO who STOPs must be based on specific, articulable facts that
observed him pacing in front of a store; LEO engaged or about to engage in a crime; Frisk is based on
thought he was preparing to rob, & robberies RS that is armed & dangerous; actions must be justified
typically include a weapon; at inception and reasonably related in scope;

Permissible LEO Conduct during Stop

Hiibel failed to ID himself when asked by LEO 11 UPHELD STATE LAW REQ ID (OKAY w/4th);
times, who was investigating a call about HELD state law (req person to ID himself to LEO when
assault; drunk was standing by car, woman asked) is permissible w/4th Am IF the request for ID is
in car; reasonably related to the circumstances justifying the
stop;

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REAS SUSPICION
Arvizu Border Patrol LEO received alert that van RS STOP w/TOC; LEO may stop a car if there is RS of
driving on unpaved road, commonly used for criminal activity based on the TOC;
drug smuggling to circumvent border check
point; LEO saw passengers avoided eye
contact, childrens knees up, van registered to
area w/high crime, stopped van, driver
consented to search,
Wardlow
Navarette CHP from neighboring county, that driver RS - Verified Anonymous Tip; Under TOC, an a
with silver ford had run a car off highway and reliable/credible anonymous tip may be used for RS;
headed in their direction; CHP saw truck, reliable = the tip is verified somehow by LEO;
pulled over, as LEO walked up, smelled weed
& searched truck
H. ELECTRONIC SURVEILLANCE (NOT ON FINAL)
Wiretapping/Bugging Content:
4th Am Search under Katz, which overruled Olmstead
Katz provided additional REP test to the Physical Trespass Requirement
Berger v. US: Wiretapping, bugging are special so need heightened protections; Needs more Protection b/c:
Hidden, intrusive, indiscriminate, continuous;
by nature eavesdropping involves an intrusion on privacy that is broad in scope (Berger)
w/o adequate oversight, wiretap order risk being general Ws

Berger State Statute that authorized wiretapping and Ct. rejected as insufficiently restrictive; HELD need for
bugging by LEO in NY particularity and evidence of reliability in the showing
required for judicial authorization which is especially
great in the case of eavesdropping;

Wiretap Act of 1968: (codified extra restrictions on wiretaps/bugs broader than 4th Am protections, since states & congress
may go beyond the constitutionally protection reights)
last resort rule
minimization rule & limited duration
notice to target (afterwards) & statutory suppression remedy
other procedural requirements: reporting to public, application requirements;
Electronic Communications Privacy Act of 1986 (ECPA)
Extends Wiretap Act to electronic communications except the suppression remedy
Authorizes pen register investigations - relevance standard (Smith)
Regulates access to stored communications (Stored Communications Act)
Foreign Intelligence Surveillance Act of 1978 (FISA):
Permits govt. to conduct surveillance for foeign intelligence purposes
Lots of amendments post 9/11
Was the basis for programs Snowden revealed
Designed to facilitate intelligence gathering & counter intelligence gathering
Communications Assistance for Law Enforcement Act of 1994 (CALEA):
Requires telecommunication providers to ensure that their networks are wiretap accessible;
So they companies can quickly comply with requests for wiretaps & pen/traps
Bud does not cover info services providers & does not require design mandates or decryption if the provider does not
have a key;
All Writs Act 28 U.S.C. 1651
SCOTUS & all courts estab. by Act of Congress may issue all writs necessary or appropriate in aid of their respective
JXs and agreeable to the usages & principle of law
Residual source of authority for courts
Should not be unreasonably burdensome
Apple v. FBI Conflict

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Does the All Writs Act five the ct authority to order Apple to code something that will disable a security features that
block FBIs ability to brute force their way onto the phone?
Issues:
Precedent?
Gap filling vs. contravening Congressional intent
Undue Burden: what may be taken into account?
Reputational harm vs. duty to help
Security risks vs. Apples capacity
Precedent vs. handle next case next
Institutional competence;

3) EXCLUSIONARY RULE (ER)

A. ORIGINS & HISTORICALLY:

Exclusionary Rule states that material obtained in violation of the Constitution cannot be introduced at trial against a
criminal defendant.

Applies to Federal & State Govt. Officials b/c ER is of Constitutional Origin and the Court MUST grant exclusive remedy
when govt. officials 4th Am. rights (Mapp);
BUT originally only applied to Federal govt, when Cont. Am incorporation was at issue (Weeks, Wolf);

PUPROSE (Historically)
Most important enforcement mechanism for consequences of acts/procedures which violate const. rights
Judicial Integrity: prevents cts. from sanctioning unconst. practices;
Govt must respect the law & lead by example
Maintains value of 4th Am. right (empty promise - otherwise have 4th Am rts, but no ability to enjoy them)
Need exclusion to deter the incentives to disregard them get honest LEO;
Critique:
cost of letting potential guilty people go;
inhibit effective LEO duties;
state should own approach;
exclusion keeps relevant evidence from trial;
other means to penalize past official misconduct;

Weeks used mail to send coupons/tickets for the ER to Fed Govt; Applied ER to fed officials involved,
lottery (illegal); After arrest, LEO, & then but did not address the issue as applied to State LEO;
later US Marshal, went to s house, found
key (told by neighbor), S&S evidence w/o W;
Wolf State Not Subj. to ER Const; SCOTUS rejected use of
ER in STATE court b/c ER was not CONSTITUTIONAL
(it was a judicially created remedy) so not an essential
ingredient of the right;
Mapp had lewd books and photos; LEO had info BROAD ER RULE + State Subj. to ER; HELD state
that bombing suspect & paraphernalia were courts must grant excl. remedy when state agents violate
hidden in home > LEO K&A, refused their the 4th am; Overturned Wolf; HELD that ER is of
entry after talking to her attny; 3 hrs later, constitutional origin; IDd that it would otherwise lead to
LEO K&A, refused, LEO forced entry shenanigans (fed officials, subj to ER, would walk the
provided search W but then forcibly took it evidence to their counterparts in State, who not subj. to
from her; obscene matersials found in ER);
widespread search;

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B. EXCL RULE NOW: What, When & Who Can Raise?

Exclusionary Rule states that material obtained in violation of the Constitution cannot be introduced at trial against
a criminal defendant; evidence obtained illegally is inadmissible
ER prohibits introduction of evidence against criminal of tangible materials seized during an unlawful search
and of testimony concerning knowledge acquired during an unlawful search (Murray) as well as derivative
evidence (fruits of poisonous tree); the obtained remedy is suppression;
Since ERs SOLE/ONLY PURPOSE is to deter LEO misconduct t/f it may ONLY be applied when
deterrence benefits outweigh the substantial social costs (Herring, Hudson);
If LEO is acting negligently (Herring) or in good faith (Davis), unless as a result of systematic govt.
policies, the deterrence benefits DO NOT outweigh the substantial social costs;
REQUIRES that when LEOs acts are violating a persons 4th Am right, they be:
Deliberate or reckless, OR
As a result of systematic government policies (Herring);
Deterrence Benefits Social Costs
Sets guilty free Minimal incentive to violate the K&A rule
Excludes relevant evidence Plenty of behavior goes undeterred
Toll on truth seeking function other means to penalize official misconduct (Civil actions,
Opens flood gates for K&A litigation LEO internal discipline)
Impact to LEO procedures > would wait longer to enter >
destruct of evid or dangerous entry)
Critique of Cost/Benefit Approach: No real damages, b/c immunities to LEO; civil cases are $$$, so no one brings them;
essentially rt. w/o remedy; negligent record keeping errors by LEO threaten individual liberties;

WHAT EXCLUDED?
Exclusionary rule prohibits the introduction of TANGIBLE & TESTIMONIAL evidence that is:
1) evidence seized during an unlawful search, as well as
2) derivative evidence that is a product of the primary evidence or acquired as a direct result of the unlawful search;
fruits of a poisonous tree: evidence derived from the illegally obtained evidence;
unless independent source rule may apply (Murray)

WHO CAN RAISE ER ISSUES? only the/a person whose 4th Am rights are personally infringed (REP); (Rakas)
Not: anyone a target/victim of the search, who is on premises searched = old rule;
Passenger of car: passengers of cars normally do not have a legitimate expectation of privacy > raise ER (Rakas)
Visitors in Homes: must have a legitimate REP in the invaded place to raise ER; although a home, its not their home
Overnight Guest: may claim protec of the 4th Am (Raise ER) b/c had the sort of expect of privacy that 4th Am protects;
REP just b/c: there for commercial purposes; merely being present, no prior relationship, visit of short duration (hours);
Note: Property used for commercial purposes treated differently (w/4th) than residential prop, less REP;

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??????? (not from reading/cases): AOR/3rd Party issue/analysis?
Rakas s passengers in car where LEO S&S sawed- ER Challenge Req Vio of 4th Rts (= REP) Standing;
off rifle & shells; did not own car or claim HELD only a person whos 4th Am rights were violated
to own gun; (gen req REP) may raise the ER;
Minn v. s were in someones home for the first time ER Challenger & Visitor in home S&S Req. REP;
Carter to package coke for two hours; HELD visitor raising ER MUST have a legitimate REP in
the invaded place; merely being on premises not enough;
if overnight, maybe;
Brendlin was passenger in car LEO pulled over to Passenger Seized Too>ER for evid from Arb TrafStop;
check renewal permit matched car reg; LEO, during traffic stop passengers (same as the driver) are
b/c of outstanding arrest W, ordered out of submitting/subj to LEO show of auth, no free will to
car & then arrested; SITA produced meth move/leave; expects to be subj. to some scrutiny by LEO
making materials; & no pass feel free to leave b/c LEO obviously object to
attempt to leave (even if just for LEOs safety concern);
E. EXCEPTIONS to ER:
GOOD FAITH or NEGLIGENCE (except to ER): ER may not be applied when violations of 4th Am. rights due to
LEO acts done w/ good faith or negligence; BUT it will apply when LEO violates 4th Am deliberately, recklessly, or
w/gross negligence OR the violations occur as a result of recurring or systemic negligence;
Negligence/Mistake: ER is not an individual right & applies only where it results in appreciable deterrence (Herring);
Good Faith w/Obj. Reas. Reliance on:
Binding Appellate Precedent: exclusion of evidence when LEOs acts were reasonably relying on binding law at
time of S&S, would not deter LEO misconduct, & instead would impose a substantial social costs; (Davis);
Facially Valid W: ER n/a when LEO acts w/obj good faith and reasonably relied/acted w/W presumed to be valid;
(Leon);
Scenario presents an exception to 1) exclusionary remedy & 2) PC requirement;
Exceptions/Scenarios when Good Faith exception N/A:
A facially deficient W
LEO submits an affidavit based on knowing/reckless falsity
LEO relied on W w/a affidavit lacking PC, that it cannot be reasonable for LEO to presume it is valid;
Magistrate abandons role (rubberstamping), when supposed to ensure PC is there;

Herring came to LEOs to retrieve smthg from ER w/Negligent Violations; but not when LEO violates
impounded truck; LEO clerk searched for any 4th Am deliberately, recklessly, or w/gross negligence OR
arreat W on file, none, but called other county as the result of recurring or systemic negligence; ER is
and told there was one; During SITA, LEO not an individual right & applies only where it results in
found gun & drugs; found out arrest W appreciable deterrence;
mistake, Bad record keeping; all w/in 15 mins
Davis Routine TStop > DUI Arrest & placed in ER Good Faith (Obj Reas Reliance) on Binding
back of car; LEO then searched car & found Precedent; LEOs acts were relying on old law in good
gun in jacket; faith; not deliberate, reckless or w/gross negligence nor of
recurring or systematic negligence; excl. of evidence here
would not deter LEO misconduct and imposes substantial
social costs;
Leon Magistrate issued W, that LEO effectuated the ER Good Faith (Obj Reas Reliance) on Facially Valid
search > W is ruled invalid for lack of PC; W; HELD ER N/A when LEO acts w/obj good faith and
reasonably relies/acts w/W presumed to be valid; LEOs
acts must be reas; BUT there will be instances that W
were be so deficient that cannot be reasonable for LEO to
presume valid; to evid when LEO had obj. reasonable
reliance on a facially valid W even though it was
subsequently determined tha the W was invalid;

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INDEPENDENT SOURCE RULE (except to ER): even if LEO obtain evidence in violation of the 4th Am, it is
still admissible if it is also obtained through a source independent of the LEO misconduct & untainted by the illegal
actions of LEO (Murray);
ER may not be applied to evidence:
1) obtained for the first time during an independent lawful search, OR
2) discovered during or as consequence of an illegal search, but later obtained independently from activities
untainted by the initial illegality (Murray);
When evidence has an independent source, exclusion of such evidence would put LEO in worse, not
same, position than they would have been absent any 4th Am. error/violation;
Requires:
Untainted by the initial illegality
Obtained Independently
Murray example: 1) LEO did not reveal info of/re their Wless entry to the magistrate when later obtaining a W; 2)
remanded back to dist. ct. to ID whether LEO would have sought the W, even if they had not entered the warehouse
earlier;
Why no ER? When evidence has an independent source, exclusion of such evidence would put the LEO in a worse
position than they would have been absent any error/violation;
Why Policy? Deterrence of LEO unlawful conduct vs. public interests (in juries receiving all the crimes probative
evidence) are properly balanced => by putting the LEO in the SAME, not WORSE position than they would have been
if no LEO error/misconduct had occurred;
Exclusionary rule prohibits the introduction of TANGIBLE & TESTIMONIAL evidence that is:
1) evidence seized during an unlawful search, as well as
2) derivative evidence that is a product of the primary evidence or acquired as a direct result of the unlawful search ;
fruits of a poisonous tree: evidence derived from the illegally obtained evidence;
unless independent source rule may apply (Murray)

Other LEO arrested pp (had driven out of ER INDEP SOURCE; HELD that ER prohibits
Murray warehouse, they were watching) for lrg weed introduction of evidence of tangible materials seized
poss; those LEO told LEO @ warehouse who during an unlawful search & testimony re knowledge
then entered, saw weed, touch/seize; then got acquired during an unlawful search UNLESS LEO would
a W (approved w/o providing any info re have sought a W even if they did not have tainted
entry or what they saw); used W to seize weed evid/info; evidence derived from the illegally obtained
& notebooks w/customer names; evidence is fruit of a the poisonous tree

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INEVITABLE DISCOVERY (except to ER): ER does not apply if LEO can demonstrate that they inevitably
would have discovered the evidence w/o a 4th Am violation (Nix);
WHY? The application of the balance test (interest of society in deterrence of unlawful LEO conduct vs. public
interest in juries getting all of a crimes evidence) is properly balanced by putting the LEO in the same, not a
worse, position that they would have been in if no LEO error/misconduct had occurred;

Nix Girl was murdered; 200 volunteers search for ER Inevitable Discovery; HELD must show that
body; surrendered to LEO (w/arrest W) > evidence would have inevitably discovered using fully
driving him police station to meet w/attny & lawful means; b/c when challenged evid has an ind
LEO told not to ? him; LEO gave hypo: source, exclu would put LEO in a worse position than
Christian burial before snowing; directed they would have been absent any error/violation b/c the
LEO to body; LEO stopped search when one balance test is proper by putting LEO in the same, not
team was 2 miles from body;; worse position as if violation had not occurred;

ATTENUATION OF THE TAINT (except to ER): ER may only be applied to evidence that is acquired as a direct
result of the unlawful search up to a certain point at which the connection w/the unlawful search becomes so
ATTENUATED as to DISSAPATE THE TAINT (Brown);

Factors to show dissipation of the Taint (Burden on Govt.):

temporal proximity b/w arrest & confession
presence of intervening circumstance
purpose/flagrancy of official misconduct
*always looking if free will established;
Miranda warnings per se not suff to attenuate the taint

Wong Sun LEO illegally broke into s laundry & ER w/Attenuation of Taint; Must be sufficient act of
apartment, handcuffed & held @ gunpoint; FREE WILL to PURGE the primary taint of unlawful
made incrim statements; After release, LEO S&S, not just that the statements were voluntary; HELD
?d him after giving him MWarn & again s statements @ time of arrest must be excluded b/c
made self incrim statements; fruits of unlawful arrest BUT, later statements admissible
b/c the connection w/earlier illegal LEO activity became
so attenuated as to dissipate the taint.
Brown v. LEO w/o PC: searched s apt & arrested ER: Miranda (per se) doesnt DISSAPATE THE
Illinois him for murder; gave MWarn, ?d & gave TAINT; HELD factors to be considered whether
admission/ signed statement; 2 hours later: confession obtained by exploitation of an illegal arrest: 1)
2nd ?d, gave statements, refused to sign; temporal prox of arrest & confession, 2) presence of
intervening circumstances, 3) purpose & flagrancy of the
LEO misconduct; none dispositive;

K&A (except to ER): ER may not be applied K&A violations b/c the social costs outweigh the deterrence benefits;
Along w/other social costs (setting guilty free & exclude relevant evidence), it would also lead to 1) flood of K&A
litigation and 2) LEO would WAIT TO ENTER, risking destruction of evidence &/or dangerous entry;

Hudson LEO w/W K&A but only waited 3-5 seconds ER When Deter Benefits > Sub. Soc Cost; N/A for
before barging in; K&A; Only apply ER where its deterrence benefits
OUTWEIGH its substantial social costs; HELD ER is
N/A to victims of K&A vio b/c would lead to flood of
K&A litigation, sets guilty free, Consq: LEO would
WAIT at door risking destruct of evid or dangerous entry

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F. Suppression Hearings (NOT ON FINAL)
before trial, mechanism for raising the exclusionary rule is via a suppression hearing (w/o jurors);
obj to truth of affidavit: must show that LEO engaged in deliberate falsification or reckless disregard for the truth;
cant be merely conclusory, but must pt to specific portions of W & support it w/more than a mere desire to cross-
examine (statements from witnesses); allegations of negligence or innocent mistake are insufficient to mandate an
evidentiary hearing; (Franks v. Delaware)
even if requirements met, no hearing is required if there is sufficient other content in W application to support
issuance;
Concern: usually only witnesses are & LEO;
LEOs word against criminal caught w/contraband, courts tend to believe the LEO;
concern is that LEO violate the 4th Am and then lie in court to ensure that the fruit of their illegal search is admitted;

EXAM ATTACK PLAN:

1) Default Rule: if evidence collected
2) Look for an exception:
a. Invalid W? (Leon)
i. LEO obj. reasonably relied
ii. Magistrate abandoned role (supposed to ensure PC is there)
iii. No, assume that magistrate did not abandon role & LEO obj. reas relied on W;
b. Violation of K&A? (Hudson)
c. Good faith violations of 4th Am? (Herring)
i. Look for trigger words such as:
1. Clerical
2. Database
3. Negligence
4. Reasons they violated b/c they were following something that made it okay;
ii. Evidence obtained in obj. reasonable reliance on binding appellate precedent?
(Davis)
d. Whos rights were being violated? (Rakas)
i. Standing Issue;
e. Inevitable? (Nix)
3) if not sure after analyzing that fact patter meets one of the exceptions, THEN use balance test
(Hudson) determine if social costs outweigh individual rights;

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4) PRIVILEGE AGAINST SELF-INCRIMINATION

A. DUE PROCESS:
5th & 14th Am. - VOLUNTARINESS & compliance w/MIRANDA Requirements)

DUE PROCESS independently requires:

1) Voluntariness (5th for federal, 14th for state courts) &
2) compliance w/Miranda warnings (MW);

which are both independent requirements;

a confession obtained by violations of due process creates a sham/pretense of trial b/c the state auth have contrived a
conviction from that voluntariness/due process violation;

Brown v. convicted of murder after LEO obtains an V if w/VIOLENCE; HELD confession must be due to
Miss admission b/c extreme physical torture free will, cannot use methods that violate due process,
(thought would die otherwise); raised 14th liberty & justice; HERE trial is a pretense (sham) when
Am & Due Process violations; the state auth have contrived a conviction on a confession
obtained by violations of due process;

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B. VOLUNTARINESS: product of a free & unconstrained choice free will

is a requirement of due process, implemented to regulated LEO conduct, thus Coercive LEO activity is a predicate for finding
that a confession is not voluntary under the Due Process clause;

Determined by TOC, but requires some coercive act by LEO, which may be determined by the following factors:
1. Length of Interrogation
Ashcraft: was not permitted to sleep for 36 hours while interrogation occurred;
2. Use of Force or Threats of Force (Arizona v. Fulminante)
Payne: LEO told suspect that 30-40 pp waiting to get him unless he confessed;
3. Education/Mental Condition (& Age) (Connely)
4. Deprived of Basic Bodily Needs
Not allowed to drink water, food, use bathroom; (Payne: food for 24 hours);
5. # of Interrogators in Room
6. Psychological Pressure Tactics (Spano)
7. Deception:
If told that cooperation would result in no prosecution, but otherwise would be imprisoned; (Lynumn):
Lying re anothers (accomplice) confessing = acceptable deception & still voluntary; (Leyra v. Dennis);
Good Cop Act = confession still voluntary; (Frasier v. Cupp);

Fulminante In jail w/ inmate (former LEO) but now govt. V Coercion: Threat of Violence (Mental/Psych Issue);
informant; Inmate instructed by FBI to extract HELD a finding of coercion is not restricted to actual
info; Inmate stated knew was getting tough violence by govt., but also a credible threat of violence is
treatment & would only get protection if suff b/c coercion can be mental as well as physical;
talked about s murder of step-daughter =
credible threat of phych viol by informant
Spano (25 y.o w/JR. high educ,) shot boxer from V Will overborne by Psych Pressure tactics; Ct
bar who took his $ & fought him; LEO recognized that other factors, other than threat of violence,
interrogated throughout the night, used friend impact voluntariness, and must consider psychological
to force confession, credible threat of force; forces as well (official pressure, fatigue, sympathy falsely
ignored repeated requests for attorney; aroused); violence not necessary factor;
confessed;
Ashcraft not permitted to sleep for 36 hrs while ?d; V Length of Interrogation & Basic Bodily Needs;
Payne told 30-40 pp going to get him unless V threats of force & Deprived of Basic Bodily Needs;
confesses; no of food for 24 hrs; 5th grade Ed;
Lynumn LEO told cooperate & admit, not prosecuted; V Deception; Held clear that a confession made under
if not then 10 yrs in prison & kids taken away; this type of deception = not voluntary;
:will say whatever LEO wanted
Leyra v. LEO lied & stated that accomplice had V if Deception of accomplices confession; HELD a
Dennis already confessed; confession acquired by lying about accomplices

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confession is still voluntary;
Connely (had voices in head, approached LEO & V MUST Coercive LEO Activity; HELD to be held as
confessed voluntarily w/o initial ?s from involuntary, there must be overt overreaching (police
LEO; LEO gave MWs & advised of rts coercion); b/c purpose is to deter future violations; No
multiple times; & acted w/o coercive tactics; Subj analysis of s state of mind;
No signs of mental illness, but Dr said had
mental illness;

C. MIRANDA: 5th Am Limits on Custodial Interrogations

MIRANDA WARNINGS (MW) you have the right to remain silent. Anything you say can and will be used against
you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you (not
held to these words exactly)

MW REQUIRED if:
1) In Custody (or has otherwise been deprived of her freedom of action in any significant way)
AND, 2) Interrogation (?d by LEO or functional equivalent)
requires inherent coercion to trigger Miranda protections;

Under the 5th Am, must be given to every suspect subject to custodial interrogation or else statements will be suppressed
b/c of the inherently coercive nature of in-custodial interrogation unless an exception applies;
Covers the right to remain silent,
5th Am/M right to attorney
attaches to custodial interrogation;
except routine booking questions;

Designed to Address:
Clear guidelines to prevent LEO abuse
Ensure that statements were truly a product of free will;
Has increased professional behavior by LEO & enhanced publics awareness of const. rights;
Critique: los of trustworthy & highly probative evidence of voluntary confessions, necessary for effective law
enforcement;
Custodial interrogation is psych over physical issue;
Custodial interrogation per Miranda : ?ing initiated by LEO after a person has been taken into custody or
otherwise deprived of his freedom of action in significant way;

Miranda was suspected of kidnapping & rape, Pros may not use an exculpatory/inculpatory statements
arrested & taken LEO station for ?ing; from custodial interrogation of the unless it
interrogated, after 2 hrs confessed and signed demonstrates the use of procedural safeguards effective to
written statement; never told of his right to secure the privilege against self-incrimination; Custodial
counsel; Interrogation: ?ing initiated by LEO after a person has
been taken into custody or otherwise deprived of his
freedom of action in any significant way;
Dickerson Congress enacted law which required that CONGRESS OVERRULE MW; Held MW is Const.
admissibility of incriminating statements need requirement in that Congress may not override it;
only be determined if voluntary or not; MW Congress can come up w/something better that is at least
not necessarily required; as effective as MW;

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Eagan LEO, suspected of involvement w/womans NOT REQ to RELAY EXACTLY; Held warning which
attack, read statement of rights, but stated reasonably conveys to the suspect his rights under M,
that: Dept. has no way of giving you a MUST: 1) touch all the bases, 2) accurate reflection of
lawyer, but one will be appointed for you , if procedure, 3) there are not station house lawyer (not req.
and when you go to court per M);

CUSTODY: Formal Arrest, OR has otherwise been deprived of freedom of any action in any significant
way ( freedom of action curtailed to degree as a formal arrest); (focus on coercion inherent part of custody)
Why Formal arrest automatically equates to custody; BUT LEO will wait to state under arrest, b/c LEO may
build/get more evidence; Thus, ask ?s first b/c warning may impede on s likelihood to answer;
Child/Age has bearing on custody analysis b/c kids will submit to authority sooner than adults would; 1) LEO knows
of childs age, or 2) childs age is reasonably apparent to LEO;
more susceptible to coercion/outside pressures;
less mature and responsible than adults
lack judgment to recognize & avoid choices which may be detrimental (self-incrim)
Misdemeanors irrelvant: M governs custodial interrogations (regardless of severity of crime or if
felony/misdemeanor); SCOTUS did not want to hinder normal ROUTINE TRAFFIC STOPS (so many of them) b/c:
PUBLIC: road stops are more public (no coercion/deterrence)
TEMP/BRIEF: detention is brief/temporary; similar to terry stop, can stop pp to briefly ? (MW not need)
ROUTINE TRAFFIC STOPS: @ traffic stops, pp not completely at the mercy of LEO;
Mathiason Cop left note for to come into station; , on FREE TO LEAVE CUSTODY MW; Held a person is in
his own went to LEO station, went into office custody anytime has otherwise been deprived of her
w/one LEO & door closed, volunteered info; freedom of action in any significant way; Need
Interrogation, & Custody (which requires coercive
element);
JDB 13 yo child gets pulled from class; in closed CUSTODY, b/c Consider Childs AGE w/ MW Req;
door room w/ 1 LEO, 1 resource offers Held Childs age (LEO knows or apparent to reas LEO)
(another LEO), and 2 school officials; never has bearing on the custody analysis b/c kids will submit to
told could leave; authority soon than when adults do; REQ LEO knows
(reas apparent) childs age); remanded to see if child
thought he was in custody;
Berkemer DUI TStop; given misdemeanor; asked to MW REQ CUSTODY Regardless of OFFENSE;
balancing test & breathalyzer; asked to step HELD M governs custodial interrogations (regardless of
out of car & ?d, couldnt stand; but never severity of crime or if felony/misdemeanor); Routine
told or he was under arrest; LEO took TStops & ?d generally not custodial interrogations, but
him to the station and then ?d again; stated case by case; BUT if s freedome of action is curtailed to
drank a few beers & a few joints a degree associated w/formal arrest = Custody;

INTERROGATION: Express/Direct Questioning OR Functional Equivalent:

Functional Equivalent: a practice that LEO should know is reasonably likely to evoke an incriminating
response from a suspect (Innis);

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Exception: s Awareness: MW not required when the suspect is unaware that he is speaking to a LEO & gives
voluntary statement; undercover LEO posing as fellow inmate need not give MW to an incarcerated suspect before
asking ?s that may elicit an incriminating response;
Innis After s arrest for suspected murder; read Interrog: NO Express? & Functnl Equiv; Held NO
MW; overheard LEOs hypo that disabled girl express ?ing or functional equivalent (practice LEO
would find the gun & shoot herself dead; should know is reas likely to evoke an incrim response
interrupted & admitted where gun was; from ) b/c nothing more than dialogue b/w two LEOS to
which no response from the was invited; LEO had no
reason to know that their short convo (hypo) was reas
likely to illicit an incrim response;
Perkins Inmate (informant) in jail asked questions KNOW LEO/Relationship w/Govt Informant ?ing =
about crime where responded to w/self- INTERROGATION DECEPTION OK; HELD,
incrim statements; did not know that other although meets custody, it is not an interrogation if has
inmate was an informant; no knowledge that informant is LEO b/c there are no
coercive issues which would trigger MW and also AOR
w/3rd party; Statements = V;
MW Given MIDSTREAM (after already interrogated/?d): GO W/KENNEDY & LOOK AT INTENT;
When question first, and warn later, it must be reasonable to find that the warnings could function as effectively as M
requires:
Effectively advise the suspect that he had a real choice about giving an admissible statement at the juncture;
Reasonably convey that he could choose to stop talking even if he had spoken earlier?
Look at good faith vs. intentional conduct (designed to circumvent M);
Intentional conduct may be cured: measures designed to ensure that a reasonable person in the
suspects situation would understand the importance & effect of the MW & of the M waiver;
One way to cure:Substantial break in time & circumstances
One way to cure: Additional warning about the inadmissibility of the pre-warned statement;

Elstad LEO asked ?s at home (if involved Midstream MW = SUFF w/Non-Coercive 1st ?ing:
w/robbery), said he was there; LEO took HELD OK b/c the initial unwarned statements were not a
to station and given MW, waived & made result of coercive/improper tactics AND short, un-warned
incrim statements about burglary; conversation & postMW custodial interrogation were
different experiences; Reas person in suspects shoes
could have seen the ?ing at station as a new & distinct
experiences;
Seibert LEO arrested and ?d w/o MW, once Midstream MW SUFF; HELD LEO strategies adapted
obtaining confession LEO gave MW and then to undermine MW w/intentional conduct designed to
began ?ing again & reminded her of the circumvent M req & Ws ineffective in preparing the
previous conversations; confessed again; suspect for successive interrogation (too close in time &
Ntionl LEO training orgs & depts. use tactic content); Unwarned ?ing done w/systematic exhaustive &
psych tools = inherent coercive efforts meant to be
protected w/MW;

Patane arrested for harassing GF; 2nd arrest, LEO MW inadmiss N/A Physical Fruits; HELD b/c M rule
only said rt. to remain silent & cut her off protects against violations of Self-Incrim Clause, it is
saying he knew his rights; LEO asked about NOT IMPLICATED/TRIGGERED by intro of physical
gun, 1st said Im not sure I should say, b/c I fruit/evid that results from voluntary statements of a
dont want you to take it away, but then told unwarned but voluntary statements ; ER from Wong Sun
her where it was; Gun introduced in trial; does not apply w/this;

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INVOCATION of RIGHTS: (must be expressed)

Same for Rt. to REMAIN SILENT & COUNSEL:
Requires affirmative, clear, unambiguous statement; (Silent: Thompkins v. Berguis, Counsel: Davis)
Not invoked just by remaining silent OR unambiguous statement (LEO not required to clarify or respond to
ambiguous or equivocal statement;
I want to remain silent/ I dont want to talk to LEO/ I want an attorney
when invoked, questioning must stop until rt is waived or revoke invocation;

Invocation honored?
Rt. to Remain Silent (scrupulously honored): admissibility of evidence after invocation of rt. to remain silent
depends on whether his rt. to cut of ?ing was scrupulously honored; (Mosley)
honored if:
LEO immediately ceased interrogation
LEO may resume ?ing only if:
after a significant passage of time
Provided fresh warnings
restricted subsequent interrogations to separate subj/another crime (charge specific)
not honored if: LEO refuses to discontinue ?ing, persistent efforts to wear down resistance/badgering for to
change mind & talk;

Right to Counsel Invocation Respected: once requested, interrogation must cease & LEO may not reinitiate
interrogation w/o counsel present, whether or not the accused has consulted w/an attorney (Minnick);
made available is more than just an opportunity for counsel to meet/consult the outside of the interrogation
room;
Counsels presence = protective device at custodial interrogation (inherent coerciveness)
A single consultation w/attorney does not remove possibility of persistent attempts by LEO to persuade
to waive his rights OR the coercive pressures that accompany custodial interrogation, which may increase
as custody is prolonged;
Three scenarios when rt. to counsel has been invoked:
1) LEO stops ?ing
2) ?ing may be initiated by LEO if attorney is present
3) initiates ?ing
4) 14 days have passed;

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WAIVER: (can be implied) intentional relinquishment of a known right w/3 elements; 1) knowing, voluntary, &
intelligent;
(DIFF for Rt. to Remain Silent & Counsel) statements made are admissible;

TOC Test for Waiver of Rights:

Waiver of rights must be voluntary, knowingly & intelligently done;
Although LEO conduct not great, so long as it doesnt impact s V,K, I waiver, waiver = suff; (Moran)

Rt. to Remain Silent Waiver - based on TOC

May be implicit waiver of rt. to remain silent, not required to be express;
Requires:
1) MW given
2) understood rights (additional requirement to original M, per Berguis)
3) knowingly & intelligently waived rights (knowingly & voluntarily waived MW when making a
statement)
4) voluntary (uncoerced) statement given (separate analysis: voluntariness under due process - product of a
free & deliberate choice, not intimidation, coercion or deception)
BOP on pros to show that: voluntarily (separate DP/V analysis), knowingly & intelligently waived right; Not
presumed simply from the s silence or b/c a confession was eventually obtained;

Rt. to Counsel Waiver

Per TOC, may be inferred from words & actions; course of conduct plus silence;(Butler);
Must (Edwards):
1) be voluntary, AND
2) constitute a knowing & intelligent relinquishment or abandonment of a known rt. or privilege which
depends in each case upon the particular facts & circum surrounding the case, background, experience
& conduct of the accused (Edwards v. AZ);
additional safeguards are necessary when an accused asks for counsel for increased risk from
LEOs persistence in trying to get the suspect to talk, and continued pressure of custody that
increases as custody is prolonged;

Butler MW given, didnt sign waiver form, stated Rt. REMAIN SILENT = EXPRESS WAIVER; HELD
he understood his rights; agreed to speak to that a waiver may be implicit, not required to be explicit;
LEO & made incrim statements;
Burghuis Given MW, refused to sign form indicating Rt. REMAIN SILENT REQ EXPRESS WAIVER
understood them; said nothing in 3hr AMBIG SILENCE; HELD may (implicitly) WAIVE
interrogation except one inculp statement by failing to invoke his rights, after fully understanding
you know about that them; a may implicitly waive his right by making a
voluntary statement to police (even if just one statement);
Moran LEO failed to let know that his sister hired Suff Waiver Even W/O Imp Knowledge Outside;

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an attorney who was looking for him, HELD that events occurring outside the presence
waived his M rts & confessed of/unknown to the suspect, do not impact his ability to
comprehend & knowingly relinquish M rts; LEOs
conduct didnt impact the voluntariness, knowingly &
intelligently waiver of rights;

Waiver after Invoking the Right:

Rt. to Remain Silent: merely by initiating/talking again (so long as the invocation was scrupulously honored); Must
be a proper waiver: 1)

Rt. to Counsel: subsequent interrogation initiated by (Edwards Rule), not LEO, or LEO initiated interrogation in
presence of counsel OR expressly waives rt. to counsel after invocation (Im going to talk even though my attorney is
not here)
Waiver Must be?
1) be voluntary, AND
2) constitute a knowing & intelligent relinquishment or abandonment of a known rt. or privilege which
depends in each case upon particular facts & circum surrounding the case, background, experience &
conduct of the accused.
additional safeguards are necessary for the increased risk from LEO persistence in trying to get the
suspect to talk and the continued pressure of custody that increases as custody is prolonged (req that
initiate ?ing after invocation of rt. to counsel);
BUT this only lasts until after a break in Miranda custody that is of sufficient duration to dissipate its
coercive effects, which means a break of 14 days or more; (Shatzer)

Mosley Arrested for robbery & given MW; ?d re If invokes rt. to counsel, then no further interrogation
robberies, invoked Rt. to remain silent & ?ing unless initiates;
stopped; Later that day, 2nd LEO gave MW &
?d re murder; did not invoke rts & made
incrim statement;
Edwards v. MW given & stated he understood rts & Interrogation Stops w/Invocation Rt. to Counsel &
AZ willing to submit to ?ing; spoke to attny on Waiver b/c responded to ?s; HELD who expresses a
the phone & later stated that he wanted an right to counsel is not to be subjected to further
attny before making a deal > ?ing stopped; interrogation until 1) counsel is made available to him or
Next morn, LEO said he had to talk, MW 2) initiates further communication with LEO; if
given, gave self incrim statements; invoked, waiver requires 1) voluntary, AND 2) is a
knowing & intelligent relinquishment AND is not
established by showing ONLY that responded to further
custodial interrogation even w/fresh MW (concern:
badgering/pressure to change mind to talk w/o attny)
Minnick refused, but LEO said had to or else; give Invoke Rt. to Counsel> Interrog Stops Until Counsels
MW, acknowledged rts & understood, but Present; HELD When counsel is requested, interrogation
refused to sign waiver; said wouldnt must cease & officials may not reinitiate interrogation w/o
answer very many ?s w/o attny; made self counsel present, whether or not the accused has consulted
incrim statements; said come back on Mon w/attorney; b/c a single consultation w/attny does NOT
when I have an attny; Monday, after met remove persistent attempts by LEO to persuade to
w/attny, LEO told that he would have to waive rts OR coercive pressures that accompany custody,

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talk & coud not refuse; declined to sign which increases as custody is prolonged; LEO must
waiver; made self-incrim statements; terminate interrogation of accused in custody, if the
accused requests the assistance of counsel;
Shatzer interrogated based on allegations that he TIME BREAK IN CUSTODY> OK to INTERROG;
sexually abused his child; invoked rts & HELD Req of suspect initiate ?ing for waiver to be valid
?ing stopped; ?d again 3 years later by lasts until after a break in Miranda custody that is of suff
someone who didnt know had invoked his duration to dissipate its coercive effects which means a
right; break of 14 days or more; (being released back into prison
population for 2.5 is suff) lawful imprisonment imposed
upon conviction of a crime does not create the coercive
pressures IDd in M;
Davis v. US stated Maybe I should talk to a lawyer; INVOCATION Rt. to Counsel = UNAMBIG; HELD
LEO did not stop ?ing until he said later I the invocation of the right to counsel must be
think I want a lawyer before I say anything unabmibious; LEO are not required to clarify or respond
else; then ?ing ceased; to ambiguous or equivocal statements; LEO may continue
?ing until suspect clearly requests an attorney;

Exceptions to Miranda Requirement

Routine Booking Exceptions:
statements in response to routine booking ?s (names, DOB, address, etc) when taken into custody are admissible in
court even w/o MR, b/c it is for record keeping purposes/LEOs admin concerns; BUT if outside of the scope of
routine booking ?s, then would subject to MW compliance and suppression; (Muniz)
Note: video of suspect during routine booking ?s was permissible b/c MW only if a person is compelled to make
statements, physical evidence or observation of physical characteristics are not testimonial;

Muniz Drunk driver; LEO asked ID ?s (name, dob, ROUTINE ?s @ BOOKING TRIGGER M
etc) & what was the date of his sixth birthday; Protections; HELD LEO can ask a person questions that
are needed in the booking process (name, address, DOB,
height & weight) when taking him into custody b/c for
record keeping purposes & related to LEOs admin
concerns; The answers to these ?s are admissible even
w/o administering MW; BUT HERE, asking ?s about the
date of 6th birthday, does not fit w/in booking exception =
suppressed, but not the video tape which recorded his
slurred speech;

Impeachment: unwarned statements may not be used in the prosecutions case in chief against the , but if testifies, the
has not right to commit perjury thus prosecution CAN use unwarned statements to impeach the credibility of a suspect
during cross-examination; b/c suppressing evidence from a case in chief is a suff deterrent; (Harris)

Harris During cross exam, prosecution attempted to UNWARNED STATEMENTS OK w/IMPEACH s

impeach s testimony by asking questions CREDIBILITY PROSs CASE IN CHIEF; HELD
about unwarned statements made after unwarned statements used in the prosecutions case in
arrest. Jury was instructed that statements chief against the suspect must be suppressed; BUT b/c
could only be used to assess s credibility. this is suff deterrent & no right to commit perjury the pros
Statements were not used during CAN use unwarned statements to impeach the credibility
prosecutions case in chief. Both attorneys of a suspect who testifies at trial;
discussed statements during closing
arguments. was found guilty.

Emergencies

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The public safety exception, which is not dependent upon the motivation of the individual LEO involved, is an
emergency situation that allows unwarned statements to be used against the when questions are reasonably prompted
by a concern for public safety; (Quarles)
b/c per the cost benefit analysis, the costs (pub public & LEO safety at risk and may lead to LEO making split
second decisions) outweigh the typical MW benefits of a prophylactic rule protecting the 5th AM privilege
against self-incrimination; ;

Quarles LEO, told by rape victim, that the attacker PUBLIC SAFETY EXCEPTION TO MW; HELD the
w/gun was in a store; ran when he saw public safety exception applied on a cost benefit analysis,
LEO, chase, lost sight of and then caught regardless of motivation; COST: where if warned, may
him w/4 LEOs; LEO asked where the gun put public & LEO safety at risk ; Dont want LEO to
was; pointed and said the gun is over make a split second decision; BENEFITS: typical MW
there; LEO found gun & then gave MW; benefits but ct implied that highest risk of coercion occurs
at station;

C. 6TH Am Rt. to COUNSEL

6th Am: In all criminal prosecutions, the accused shall enjoy to have the assistance of counsel for his defense; (rt. to an
attorney at trial & critical stages)
ATTACHES: The 6th Am right to Counsel attaches at the initiation of an adversary criminal judicial proceeding (when your
freedom is curtailed by way of a formal charge which is when the govt uses the judicial machinery to signal a commitment
to prosecute) and counsel must be present at any & all critical stages that occur afterwards;
Adversary Criminal Judicial Proceeding: when your freedom is curtailed, by way of a formal charge which is when the
govt uses the judicial machinery to signal a commitment to prosecute;
Critical Stages include: preliminary hearings, interrogations, arraignments, indictments, police line ups, pre-trial
hearings, psychiatric exams
Not Critical Stage: handwriting exemplars, if by LUCK or HAPPENSTANCE

6th Am Rt During Interrogations:

self-incriminating statements made in interrogations in the absence of s counsel by LEO/agent, once
adversarial process has begun where the right to counsel has attached, attaches, can not constitutionally be used
by the prosecution against the at trial; (Massiah);
INTERROGATION includes:
EXPRESS/DIRECT QUESTIONING OR
INTENTIONAL CREATING A SITUATION LIKELY TO INDUCE an accused to make incriminating
statements; LEO acting with purpose to elicit incriminating statements; (Brewer v. Williams);
Undercover informants are not permissible under 6th Am (but note that they are permissible under
M/5th if did not know);
Does not include: if by LUCK or HAPPENSTANCE (Kulmanm)
Massiah After indictment, got out on bail w/lawyer; W/O COUNSEL @ INTERRO, SELF-INCRIM
Later, s conversation w/accomplice STATEMENTS 6th VIOL ADMISS; Once adversarial
(informant) recorded in his car but no lawyer process begun, Rt to Counsel attached w/indictment >
present; incrim statements in car overheard by subsequent interrog/statements in absence of counsel by
LEO; fed agent /informant & use of the s own self incrim
statements is a violation of 6th Am. rt if w/o waiver;
Brewer v. arraigned, spoke to 2 attnys who advised INTENTIONAL SITUATION TO LIKELY INDUCE
Williams not to answer ?s; read MW multiple times; INCRIM STMTS 6th VIOL ADMISS; HELD
LEO aware represented by counsel, Interrogation after 6th Am attached includes when LEO
purposefully sought to be isolated in order intentionally create a situation likely to induce an accused
to obtain as much inrcim info as possible to make incrim statements; HERE LEO acted w/purpose
(admitted at trial); LEO gave Christian burial and intention to elecit incrim statements;
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Speech and made self incrim statements;
Henry arrested and in jail for robbery; FBI Agents INTENTIONAL SITUATION TO LIKELY INDUCE
paid informant inside the jail. LEO told INCRIM STMTS 6th VIOL ADMISS; HELD delib
informant to be alert, but not initiate any eliciting incrim statements by planning and intentionally
convo or ? & others; At trial, informant creating a situation likely to induce to make incrim
testified about conversations w/ about the statements w/o the assistance of counsel, the govt.
robbery. The jury was never told informant violated s 6th Am rt to counsel; susceptible to ploys of
paid by FBI. undercover govt agents;.
Kuhlmann arraigned & to jail; Prior to placed in cell, 6th Am Vio w/ LUCK or HAPPENSTANCE; HELD 6th
cell-mate agreed to be LEO informant; LEO Am is not violated whenever by luck or happenstance, the
told inform to keep his ears open for s state obtains incriminating statemtns form the accused
accomplices info; & informant talked re after the right to counsel has attached; the MUST
robbery over a few days, inform told & demonstrate that the LEO and their informant took some
provided LEO w/handwritten notes while action, beyond merely listening, that was designed
sharing a cell; trial found informant obeyed deliberately to elicit incriminating remarks; cant show a
LEO instruction to no ask ?s & that s violation of the right by simply showing that an
statements were unsolicited and spontaneous; information reported incrimingating statements;
Right to Counsel is OFFENSE SPECIFIC
When the same act/transaction constitutes a violation of 2 distinction statutory provisions & each provision requires a proof
of a fact which the other does not, then the rt to counsel attaches to one of the offenses, not attached to the 2nd ; (Cobb);
Requires: 1) same act & transaction (closely and factually related) AND 2) same proof of fact statutory requirements

Cobb suspected of burglary & the disappearance 6A's Right to Counsel, once triggered by the initiation of
of 2 women. While in custody on suspicion of formal criminal proceedings, does not attach to the
unrelated crimes, confessed of burglary but investigation of unrelated offenses arising from the same
claimed no knowledge of womens set of facts that led to the original charge.
disappearances. appointed counsel w/
burglary indictment; After was released,
LEO recd a call from s father informing
them that had confessed to the killings.
Police took into custody & administered
Miranda warnings. waived his right to
counsel & confessed to murdering the woman
& her daughter.

WAIVERS of 6th Am Right to Counsel Requires LEO to show that:

Voluntary (separate DP analysis)
Knowingly, and
Intelligently;
even if did not initiate the questioning (rejection of applying Edwards 5th Am. rule)
no requirement to presume waiver is invalid in context of LEO initiated ?ing;
IS COUNSEL REQUIRED TO BE THERE WHEN WAIVE/COUNSEL ADVISE ON s WAIVER?

Montejo LEOs questioned about a murder & OK FOR LEO TO INITIATE ?ing; In order for a
waived his rights under Miranda & was waiver of the right to 6A counsel to be valid, it must be
interrogated for several hours. changed his voluntary, knowing, & intelligent. Police can seek a
story several times & finally admitted that he knowing & voluntary waiver from an individual charged
had killed the victim. He was brought before a w/ a crime even after the individuals 6A rights have
judge, & a lawyer was appointed for him even attached & become operative.
though he had not expressly asked for one.
wrote a letter of apology to the widow of the
victim which was admitted into evidence &
was convicted of 1D murder

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D. Privilege Against Self-Incrimination in Other Contexts

5th Am designed to protect autonomy, the innocent, balance & prevent the CRUEL TRILEMMA:
1) self-accusation (admit the truth & be punished)
2) Lie under oath (commit perjury & be punishment)
3) Fail to Answer (held in contempt of court & punished).

Privilege Applies to:

People only (not corps, unions, custodian of records on behalf of business)
It is an individual right; The privilege exists to protect the privacy and dignity of the individual;
only w/Testimonial
physical evidence that may be incriminating may be introduced (Schmerber)
incriminating docs that are already made that govt. knows about (Fisher)
At Trial, but also not compelled to testify outside of trial in a way that could incriminating in future
criminal trials;
N/A
to Production of Tangible Things or Documents (if already created & LEO suspects its existence)
if provided Immunity for Use & Derivative Use

Requirements for the Privilege Against Self-Incrimination to Apply

To violate the 5th Am, the evidence compelled must be of a COMMUNICATIVE or TESTIMONIAL nature that has
the possibility to INCRIMINATE;
PHYSICAL/REAL evidence: compelling rea/physical evidence from someone does not make that person a witness
against herself, not matter how incriminating;
TESTIMONIAL: a communication that explicitly or implicitly relates to a factual assertion or disclose information;
ACT: testimonial when the accused is forced to reveal his knowledge of facts relating him to the offense or from
having to share his thoughts or beliefs with the government;
To Incriminate: communications that could be used in criminal prosecution OR could lead to other evidence that
might so be used (communications that would furnish a link in the chain of evidence needed to prsecute the person
raising the privilege);

Schmerber was taken to the hospital after a car accident PHYSICAL EVID VIOL of 5th Am, TESTIMONY
& refused to give a blood sample; LEO ONLY: 5A privilege against self-incrimination only
directed a doctor to take one anyway. was prevents the admission of testimonial evidence from the
intoxicated at time of accident. was tried for accuseds own mouth = testimonial; p.s. exig circum
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a DUI, & test was entered into evidence. existed so no 4th Am violations per McNeely;

Govt. Require Production of Documents & Things

a person may be compelled to produce specific documents that contain incriminating assertion of fact or belief
when the creation of those documents are not compelled; (Fisher);

but a 5th Am violation occurs w/compelling Docs/Things when:

1) compelled to create documents/things (of s thoughts or beliefs, use of brain);
There is no 5th Am issue, when compelled to produce already made documents; (Fisher);
2) if the act of production has a compelled testimonial element b/c it implicitly communicates that the doc/thing
exists (may be in s control or possession) and confirms it authenticity; (Hubbell)
act of producing documents compelled testimony is testimony inherent in producing documents/things, not the
doc or thing itself;
Exception to confirming existence/location:
Foregone Conclusion Doctrine: (Govt already know of its existence or location) when the existence & location of the
docs under subpoena are a foregone conclusion and the witness adds little to the sum total of the govts knowledge by
conceding that he in fact has the docs, then no 5th Am right is touched b/c the question is not of testimony but of
surrender; (LEO fishing for evidence and relying on s trush telling about the existence/authenticity)

Fisher The taxpayers, s, gave tax documents to 5th Am EXTENDS TO s ATTORNEYS TESTIMON
their respective attorneys. attorneys ordered to DOCUMENTS CREATED; HELD Clients 5th applies
produce their clients docs for investigation of to attorney b/c a lawyer can act as an agent for the client
income tax laws violations; BUT HERE handing over documents does not violate 5th
Am privilege b/c they are already created & LEO already
knew that docs were in tangible form and knew about it;
Hubbell Ind Counsel appointed to investigate poss fed NOT REQ COMPELLED TO DISCLOSE
law vio, subpoenaed to produce docs in 11 EXISTENCE OF DOCS; HELD the act of production
broad categories. plead the 5th, pros granted compelled testimonial element b/c it implicitly
immunity; produced 13K docs, indicted for communicated that the papers existed, were in his
tax-related crimes but prosecution never possession or control, and were authentic; LEO didnt
introduced any produced documents; know if docs existed, required Hubbel to use his brain to
ID that docs would be relevant, existed and authentic;
Baust convicted of strangling; video on phone; PASSCODE=TESTIMONY; FINGERPRINT
touch ID case; UNLOCK = PHYSICAL; HELD passcode reveals
knowledge of facts t/f violates 5th Am to compel; BUT
FINGERPRINT: physical evidence not equivalent to
knowledge of facts or sharing of thoughts t/f no Const
violations; ISSUE if LEO relying on to prove existence
and authenticity of video, but not if the existence &
location were a foregone conclusion of LEO/already knew
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of the existence and authenticty;
Creation of video voluntary = not compelled to CREATE:

Govt. Require Testimony if it Provides Immunity

w/Use & Derivitive Use Immunity, then cannot claim 5th Am privilege/pleads the 5th and may be punished w/contempt;

Kastigar granted use & derivative use immunity for CANT PLEAD 5th w/IMMUNITY; HELD An
his testimony for subpoena; s argued that individual may not assert 5A privilege against self-
immunity granted was not as broad as incrimination & refuse to testify if there has been a grant
privilege against self-incrimination & could of use & derivative use immunity from criminal
not justify compulsion. Ct ordered s to prosecution (=same position as pleading 5th); WHY? Ct
testify & s refused, court found them in will find out if govt misuses testimony, trust the system; if
contempt; end up being prosecuted, it is b/c the govt got evid
independently & the pros has BOP to that;

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