THE FOURTH AMENDMENT
A. The 4th Amendment
1. Text: “the right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no warrants shall issue but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched and the persons
or things to be seized”
2. SC places little weight on text and history because there weren’t organized
police forces when written. Instead, Court tries to uphold underlying
3. Values of the Fourth
a. Protection of Privacy
b. Regulation of Police (and other government actors)
4. Interpretative Question – What is the Relationship Between the Clauses
a. Read together: Reasonableness = Warrant Based on Prob Cause
B. The Exclusionary Rule
1. Primary Remedy to 4th Violations – excludes ev from trial
a. Loss of convictions?
b. Better alternative?
i. Amendment itself says nothing about exclusion
ii. Not everyone agrees that this is best alternative
a. Weeks – SC decides that remedy for fed violations of 4th will be
exclusion of ev (but not binding on states)
b. Wolf v Colorado – states must honor 4th b/c it is “implicit in the
concept of ordered liberty,” but they are free to design own remedies.
c. Mapp v Ohio – applies the exclusionary rules to the states. Majority
believes that the other possible remedies are illusory and inadequate.
States must have exclusionary rule to protect the right. Based on the
language of the amendment, the rule is seen as restoring status quo
4. Rationales for Exclusionary Rule
a. Police Deterrence – primary justification. Only matters of police
internalize the rules and care about use of evidence
b. Individual compensation
i. Only guilty people get to use exclusionary rule. So question about
whether is protects innocent people.
ii. Court says YES b/c it deters police and protects them from
searches and seizures. Also, can fall back on civil remedies.
c. Judicial Integrity – can’t allow courts to condone and encourage 4th
violations by letting in illegally obtained ev
II. THE SCOPE OF THE FOURTH AMENDMENT
A. The Meaning of “Searches”
1. Relationship Between Privacy and Property
a. Pre-Katz: “physical invasion of Constitutionally protected area,” which
included persons, houses, papers, and effects
b. Katz – FBI agents use attach listening device to top of phone booth to
record conversations about gambling
i. Majority says it is a violation. Test is whether the activities violate
privacy on which the person justifiably relied. And going into
booth, shutting door, paying toll makes him entitled. Prof notes
the connection between property and privacy – need the former to
get the latter.
ii. Courts rationale seems to be that the 4th protects people, not places.
If you seek to protect something as private, even in a public place,
iii. The two-prong test that develops is from Harlan’s concurrence:
Was there a subjective expectation of privacy by the actor?
a. Whose expectations?
b. Expectations as to what? Against whom?
Was that expectation something society finds reasonable?
a. Did suspect expose it to public?
b. Did suspect take precautions?
c. Was their physical intrusion?
iv. Black’s Dissent: framers only wanted to protect certain activities
and only tangible objects. Court creates privacy in intangibles.
c. Oliver – police go to farm where D is growing marijuana. Police go
down dirt road, hop fence onto his property, see no trespassing signs.
i. Powell’s majority opinion jumps right to second prong of Harlan’
test. Says intimate activities, which is what 4th is to protect, don’t
go on in open fields. What goes on in open fields is farming and
crops and other stuff in which society isn’t prepared to recognize a
reasonable expectation of privacy.
ii. This is now pretty set law
d. Thornton – marijuana patch is in woods behind his house. No
reasonable expectation of privacy that society is prepared to recognize.
e. Ciraolo – guy puts up huge fences around yard. Cops get tip about
dope. Stand from street and can’t see. So they charter a plane and fly
over at 1000 feet and take photos with 35mm camera. Court says not a
4th search. Might have privacy of visual inspection from ground, but
not protection from air. Fails first part of Katz test. Any member of
public could look down and see.
f. Riley – police get tip about drugs in greenhouse in curtilage of home.
They go and can’t see into greenhouse. So they get in a helicopter and
hover at 400 feet and look down. B/c they’re in navigable airspace
where they have the right to be.
i. O’Connor seems to think that not only do they have to have right
to be there, but the general public has to be there with sufficient
regularity. If so, then you don’t have expectation of privacy that
society thinks is reasonable.
ii. But upshot is no 4th amend justification needed before conducting
iii. According to the plurality, when would an overflight be
If you’re not complying with the regulations
Imposing on “intimate” behavior
a. If you convince court that cops would see something
innocent but intimate, they’re not going to like it
Or if there is a physical disturbance – dust, wind, noise
i. Focus on nature of place, if members of public are making
observations of that place, if they routinely do, if it’s not a
violation of regulations, if they’re seeing anything intimate,
whether there is physical invasion of area
2. Knowingly Exposed to the Public
a. Early cases
i. Hoffa – Court says not search when friend turns you into police.
There is no interest legitimately protected by the 4th amendment.
No protection from the faithless friend
ii. Lewis – use of unbugged, under cover police infiltrators is not a
iii. Lopez – Recording of statements elicited by an undercover agent is
not a search
iv. On Lee – Agent w/wire and transmitter – not a violation of 4th.
b. White – Use of transmitter on an informant is NOT a 4th search.
i. B/c this is just like a faithless friend, only more accurate.
ii. Conversation is consensual. So no REOP
iii. Assumption of Risk – criminals don’t expect much privacy, always
run the risk of informants. Note court assumes the perspective of
iv. Harlan’s dissent: thinks we should be examining from perspective
of innocent person. Police will be able to tape anyone b/c not a
search, but innocent people will not have the same expectation as
c. Greenwood – No REOP in garbage left at curbside. You’ve run the
risk that anyone can go through it, especially garbagemen
i. Can make argument similar to that of open fields – you can try to
take steps to keep people out of your garbage, but members of the
public can just stray in there and see it.
ii. Reflects importance of exposed to the public
d. Bond v US – Police physically manipulated bags on a bus and
discovered cocaine. Court says that this was a violation of the 4th:
tactile inspection is a greater intrusion and not expected on buses,
based on social norms
3. Privacy and Technology
a. Karo – police use surveillance beeper that can be tracked. Placed on
can consensually. Court says surveillance of beeper while moving in
car is not a search. B/c not any different from what any member of the
public can see you do. But, using a beeper to locate property or
whatever else inside of a private residence IS a 4th violation
i. Prof notes we have expectations of privacy in other places beyond
homes – private garage, trunk of car. So she thinks opinion is
completely wrong when it says that warrant untainted b/c used
beeper fairly with storage locker. She says surely you have
expectation of privacy there.
ii. Note that we’re dealing with technology that allows police to
engage in surveillance in extraordinary ways, but court analogizes
the enhancement of senses here to use of naked eye (when on road)
b. Kyllo – police use heat emission detector. No physical invasion. All
lower courts but one analogized heat emanating from home to garbage
– heat waste, any member of public could detect it. But Scalia holds
that it is a search, b/c the use of the technology enhances the senses.
This is not naked eye viewing from the street. And technology not
available to public. But Scalia also concerned that it’s the home. So
when police are conducting surveillance of a home, using tech not
available to the public, and they obtain info they couldn’t obtain
without physical invasion, then it is a 4th amendment search.
i. Prof notes that what she thinks this comes down to is that it’s a
home. Home home home. Sanctity of home.
ii. How would this court treat White? Seems they’d have to come
out the other way
iii. What about Katz? Prof thinks they affirm. White is what is
4. Dog Sniffs
a. Caballes – guy pulled over for speeding; lawful stop. During stop,
officer walks a sniffing dog, who signals at the trunk. This gives p/c,
they search the trunk. Question is whether using dog is a search.
Court says not a 4th search.
i. B/c not as great an expectation of privacy as in car
ii. But more importantly, dogs can only detect contraband, and no
legit privacy interest in contraband
So this “kind of information” rationale is driving opinion
Dogs can only detect illegal information
5. Laundry list of considerations: people not places, home v. curtilage v.
open fields, knowingly exposed to public (routinely v. conceivably),
assumption of risk, technological enhancement of senses v. naked eye,
whether technology is available to public, kind of information obtained
B. The Meaning of “Seizures”
a. Note: Real distinction is between seizure and conversation. Where is
b. Suppression of ev is remedy
c. Note that there is widespread acceptance that we want society in which
police can go up to people and ask them questions and consult with
them. So we need to be able to draw lines.
2. Florida v. Bostick – Police boarded bus, picked out a guy, explain that it
was a drug interdiction mission, asked for consent to search bag. Court
says that this is not a seizure.
a. Test: Was there an official show of authority that communicates to the
reasonable person that s/he is not free to decline the police requests or
terminate the encounter?
i. Based on totality of circumstances
ii. Tone of voice, location, body language, etc.
b. Court indicates that there must be some indicia of authority that the
police “add to the mix” that goes beyond the normal pressure to
comply. So brandishing a gun, telling him that he’s getting searched,
that sort of stuff wold make this situation a seizure. Mendenhall
c. Remember we are going to use state of mind of innocent person, says
3. Drayton – police board bus and begin asking passengers questions. Ask if
they could search D’s person. He consents, but they never told him he
could refuse. Court says you don’t have to advise passengers of their right
not to cooperate.
a. Court adopts perspective of average innocent person – would s/he feel
free to leave/terminate.
b. Societal pressures lead people to cooperate with the police, and court
seems to think it’s good that police are able to take advantage
4. Hodaari D – suspect flees when he sees a police car. Police pursue him.
Right before he is tackled he throws away his crack. Suspect argues that
he was seized when the chase ensued – before he threw away the crack.
B/c at that time it was an official show of authority to a reasonable person
that he was not free to terminate the encounter. If he is seized at moment
he is chased, police have to show that chase was reasonable, which it
wasn’t b/c all the officer had was three kids huddled around a car. Court
holds that the chase was not a seizure, seizure only occurred when he was
a. So court saying that the application of physical force = seizure
i. Uses language of “slightest physical touching”?
ii. But is placing hand on soldier really the case? No – must be
contact that reasonable person would think is for the purpose of
b. And, Saying that suspect must submit to a show of authority to
constitute a seizure
i. Flight can now be considered a factor that creates p/c or r/s
ii. Subsequent flight – if seizure occurs and the suspect flees, then the
c. Some states have rejected Hodari under their constitutions, saying if
suspect flees, seizure occurs at time of official show of authority
5. Seizure Test – Seizure Occurs when:
a. Any application of physical force to the body of the suspect that a
reasonable person would believe was for the purpose of restraining
b. An official show of authority that (a) communicates to a reasonable
person that he is not free to terminate the encounter, AND (b) to which
the suspect submits
C. To Whom Does Fourth Amend Apply?
1. Verdugo-Urquidez – note use of “the people”
III. PROBABLE CUASE AND WARRANTS
1. Once it’s established that a search/seizure has occurred, next ask if it was
2. “Reasonableness” implies a need to balance competing interest in order to
give police flexibility to do job
3. After Katz, reasonableness is defined/presumed from a warrant based on
4. What is probable cause?
a. A quantum of evidence that would make a reasonably prudent officer
believe that a crime may be afoot
b. Must be a factual basis – hunch wont do.
c. The inquiry will be very fact/context specific
d. Lenient standard, though – don’t need to be right, just reasonable
B. The Probable Cause Standard
1. Draper – police informant who has provided information in past gives
detailed tip about where drug dealer would be getting off a train, what he
would be wearing, etc. Police corroborate details of tip and arrest. Court
says that a tip plus corroboration equals probable cause.
a. The Hearsay concern – Draper argues it was hearsay. Court says
hearsay can be used to satisfy P/C. But why does hearsay concern us?
Informant not in court or under oath. No way to threaten them to
make sure they’re telling truth
2. Spinelli – 3rd party informant claims that Spinelli is involved in book-
making using certain phone numbers. Court says no PC after applying
a. Veracity – how do we know tipster is telling the truth?
b. Basis of Knowledge – how did the informant get the information?
i. First hand information
ii. Self-verifying information (very detailed)
3. Gates – police get anonymous letter describing husband and wife drug
running scheme in which one drives from Chicago to Florida, other flies
down and drives car back full of drugs. Also says that their basement has
drugs and they talk about success selling drugs. Court confirms address,
travel plans, and monitored. Court says there is PC based on totality of
a. Note that the Court still considers veracity and basis of knowledge, but
deficiency in one can be made up with the other. Rejection of Spinelli
two prong test
i. Anonymous tipster – no presumption of truthfulness
ii. Citizen informant – more likely to be truthful
iii. Informants with Track Records – presumed to be truthful
c. Basis of Knowledge
i. Prefer assertions of first-hand observation
ii. Prefer highly detailed accounts – makes us believe it’s an insider
iii. Prefer predictions about the future
d. Police Corroboration
i. Tip alone may satisfy PC if veracity and basis of knowledge are
ii. Corroboration makes it more likely that the tip is true
iii. What kind of corroboration is needed?
Corroboration of innocuous details is enough – looking for
reason to connect it to the allegation
e. Theory Behind the Standard
i. Want to protect against bad information, lying informants
ii. Also want to accommodate the use of tipsters b/c they’re important
iii. Worried about police perjury – making up tips
f. The Analysis
i. Look at tip first – is that enough for p/c?
ii. If not, need corroboration
4. Ornelas – police officer suspicious because of car type, license plate, time
of night. Checks DEA database, which gives officer Reasonable
Suspicion to stop the suspects when getting in car. Police get consent to
search car. In process, sees loose panel, removes and finds drugs. Suspect
claims that there was no PC to search behind handle. Court says that there
was PC to search, relying heavily on police expertise.
a. Rule from the case is that when police search without a warrant, the
reviewing court will review the PC determination de novo
i. But will still be deferential to lower court and the police officer
b. When the police obtain a warrant from a magistrate, a reviewing court
will give deference to the magistrate’s decision
i. This is supposed to incentivize police to get warrants, b/c they’ll be
subject to less scrutinty
ii. We want PC determination to be made by neutral party
5. Pringle – 3 men in car, stopped for traffic violation. They consent to
search. Officer finds cocaine and wad of cash in backseat armrest. Police
arrest all three. Suspect confesses. Later claims that the confession was
the product of illegal arrest. Didn’t have p/c b/c didn’t know whose stuff
was whose. Court holds that there was PC to arrest, b/c when there are
three men together in a car, it is reasonable to believe they were engaged
in a common enterprise.
a. Note the different outcome than in Ybarra, where cops had warrant to
search bartender for drugs but then go on to search all the bar patrons.
Court said they did not have PC to search the other patrons absent
individualized suspicion, basing their decision on physical space.
C. The Warrant “Requirement”
a. Oath or Affirmation Requirement – police attach an affidavit
b. Magistrate – supposed to be neutral party, often are just “rubber
c. Particularity Requirement – warrant must describe what is to be
searched and the persons/things to be seized very particularly
d. Knock and Announce requirement – police must knock and announce
their presence before executing warrant. Execution of warrant is also
measured by reasonableness and can be grounds for a 4th amendment
2. Reasons for It
a. See 2.21 notes
b. Want officers to stop and think
c. Want them to get permission from someone else
d. Prof thinks it has a lot to do with paperwork – officers don’t like to do
it, so won’t unless case is strong
3. Banks – knock and announce case. Police have warrant to search for dugs.
After they knock, there is no response for 15-20 seconds. They break
down door and enter, Banks was in shower. Court says it was reasonable.
There was exigency of destruction of ev. Amount of time required to pass
is related to the exigency – how long until the drugs started being
4. Wilson v. Layne
D. “Exceptions” to the Warrant Requirement
1. Exigent Circumstances
a. Mincey v. Arizona – Undercover cop goes to house for drug guy, with
other cops waiting outside. Undercover cop goes in (okay per White),
shots are fired. Other officers rush in, they check for other people and
victims and weapons then stop. Homicide detectives arrive and order
4 day search with no warrant. Police argue for an exigency of a
homicide scene. Court says once the police had secured, the exigency
is over. Search by homicide detectives a violation for failure to get
i. Prof says initial entry by backup officers valid based on the P/C of
the undercover agent’s previous work and the exigency of shots
Trouble she has with this that they know before the exigency
that they are going to bust in.
ii. Court is saying that there is no homicide exception.
iii. So, scope of initial search determined by scope of exigency. Once
that exigency ended, they had to get a warrant to continue
searching. Once secured, exigency is over. During exigency,
could look for where other people might be (can’t tear up carpet).
And weapons in places they might be. But that’s it
b. Warden v. Hayden – police receive info from 3rd party about suspect of
taxi robbery. Cab driver followed him and saw him flee into home.
Court says police did have exigency to enter house b/c there was a
fleeing suspect with a weapon and we’re concerned about what might
i. Scope determined by exigency – so police can search for the man
and his weapon, not his clothes or money
ii. If cop finds clothes in washing machine, that’s okay, b/c gun could
have been there. We care about objective reasonableness, not
officer’s subjective intent
iii. Court seems like it does not want to micro-manage police
c. Welsh – 3rd party calls in report of apparent drunk driver who ran off
road. In meantime, driver stumbles off. Police track him down to his
home, family member allows them in, and they find him drunk in bed
and arrest him for drunk driving. Police argue exigency of BAC
dropping – destruction of evidence. Court says no sufficient exigency.
Seems to be based on fact that at time, the state’s offense for drunk
driving is a nonjailable one – more analogous to running a red light
than it is to possessing drugs. A traffic violation. And court says
based on that, just not a great offense. Need greater crime to get an
exigency. Relying on legislature’s judgment.
d. Illinois v. McArthur – police accompany wife to husband’s trailer to
get her possessions. She tells them that there are drugs inside. He
refuses to consent to a search. One officer goes to get warrant while
the other won’t let him go back in unaccompanied. He argues that he
was seized. Court says this was okay.
i. Issue is not seizure of him – they had p/c and could have arrested
him outside (no warrant needed for public arrest). Issue is
“seizure” of the home.
ii. Court says it will balance the privacy interests against the law
enforcement interest. Here, finds law enforcement interests
Cops had PC that he had drugs plus exigency that he would
Restraining was relatively short and they made an effort to
protect the privacy of his home
Court seems to think that fact that this arose out of community
policing helps the case
iii. Could police have searched without a warrant?
Souter’s concurrence seems to think so due to exigency
iv. What if he doesn’t come outside?
Well, they have p/c. Is the exigency sufficient enough to get
them in? It’s a jailable offense.
Court would look at whether invasion of home outweighs this
minor, but jailable, offense
e. Knock and Talk
i. The Practice: They knock on door of home, listen, knock on door
and ask for consent to enter. If they think they see something that
would give rise to exigent circumstances, then they can enter.
ii. Concern is that this would give the police too much ability to
search any home they want based on exigencies that they
iii. Court wants to protect homes – fear of general warrants
iv. And might be concerned about police targeting specific
2. Plain View
i. Definition: An exception to the warrant requirement that is
triggered when police are engaged in a lawful search (based on
warrant or exigency) and they find something that wasn’t part of
the search or exigency.
Police must lawfully occupy the place where they make the
plain view sighting
Police must have lawful access to the item
Must have PC to believe that the item is contraband/evidence
(incriminating nature must be readily apparent)
Destruction of evidence (exigency)
No reduction in privacy interest
b. Arizona v. Hicks – police enter apartment from which shot was fired
into apartment below based on probable cause and exigency. Find no
people in the pretty sparse apartment, but two stereos that don’t seem
to fit. Police turn them over, take serial numbers. Call serial numbers
in, turns out they’re stolen. Court rules that this action was a separate
search that required its own PC that they were evidence of a crime.
i. Rationale – scope of search is tailored to the exigency. Mere
suspicion that item is contraband is not enough.
ii. Rule – In order to search or seize an item in plain view which is
outside the scope of the original search, officer must have PC that
the item is incriminating in nature.
iii. Prof suggests that police made mistake from only admitting he had
RS from the beginning. Should have made a case for PC – found
shotgun, ski mask. This is PC for sure.
c. Horton v. California – police had PC to search robbery suspect’s home
for proceeds and weapons. Warrant only authorized search for
proceeds. Police find weapons and other stuff. Court says cops can
seizure plain view.
i. Court does away with inadvertence requirement. Previously
allowed seizure only in cases where inadvertently discovered, to
limit sweeping searches by police. And to limit pretext.
ii. But here, court says inadvertence not required
Particularity itself enough of a check. Can only search for
where they have PC to search. Plus, police have incentive to
make particularity case as broad as possible, so fear of
manipulation isn’t too great
Don’t care about officer’s subjective intent, only objective
3. Automobiles (see class notes from 2.28 – 3.2)
a. The Rules
i. If police have PC to believe that there is contraband or other
evidence of criminal activity inside a car, the police may search it
without a warrant
May search every area and container that is capable of holding
the items sought – scope of the search is still defined by PC
Exigency – cars can drive away
Reduced Expectations of Privacy – cars are more exposed to
Police Operational Concerns – making the police impound a
car and get a warrant would strain police resources
Preference for Bright-Line Rule
b. The Early Cases
i. Carroll – prohibition case, police searching for liquor. Court first
recognizes ability of police to do warrantless search of car based
ii. Chadwick – court rules that closed footlocker in car was not part of
the auto exception. B/c of heightened EOP in container
iii. Chambers – police have p/c that two guys committed robbery and
evidence of it is in their car. So they arrest them and have car
towed away, then search at station. Court said there was an
exigency at the time they stopped the car, so they could invoke the
exigency plus p/c exception to warrant requirement. And since it’s
safer for the officers to move it to the station, we’ll let them do
that. So the seizure is valid based on exigency and p/c. And since
the seizure passes the 4th test, the search might as well too. Might
as well let them search it. Search of car at station is valid.
c. Avecedo – Police wait to see who picks up FedEx drug package,
follow man to apartment. Another man came and left with brown bag,
placed in trunk. Police stopped him, searched trunk and brown bag,
found drugs. Court holds that police can search an automobile and the
containers within it where they have PC to believe contraband is
located. They can search the bag without PC to search whole car.
i. Note, they only had PC for paper bag, not whole car.
ii. Scalia’s concurrence – wants to go back to original understanding.
Thinks that jurisprudence has been very inconsistent because there
are so many exceptions to the warrant requirement. To suggest
that warrantless searches aren’t searches is wrong
iii. Prof’s Question: Does Chadwick have any legs after this?
d. Houghton – police stop car, officer sees needle in driver’s pocket.
Gives police PC to search the car. Find drugs in purse belonging to a
passenger in the car. Court find that PC to search the car means that
police can search all packages capable of holding the object of the
search, including those packages belonging to passengers
i. Methodology: balancing test.
Privacy interests – passenger could be an innocent party. But
there is a reduced expectations of privacy in a car.
Law enforcement interest – administrability. Hard to tell what
belongs to whom. Guilty person could try to hide contraband
in passenger’s things.
e. Containers Outside Vehicles or Houses
ii. If you’re carrying a bag that cops have PC to believe contains
drugs, you can be arrested, then they can do search incident to
iii. Reasons for warrant requirement
Mobility – luggage is mobile, but it’s easier for cops to secure
it, then get warrant, then be able to search
Expectations of Privacy – think that there’s no reduced EOP
for luggage, at least not compared to cars. Cars are not places
for storing things, they have reduced EOP b/c of car accidents,
public thoroughfares, etc.
Textual arg – luggage are “effects”
a. Watson – arrest made in public for some kind of credit card fraud.
Based on tip from informant that he is about to engage in transaction
with Watson, informant gives signal, agents go in and arrest. So they
have PC, but no warrant. And despite almost per se rule where court
calls for warrants, here they says that for arrests in public, probable
cause is enough. Really based on history and common law felony
arrests in public without warrants.
b. Payton – rule that comes out is that arrests at the home of the suspect
require an arrest warrant based on PC and reason to believe that the
suspect is in the home.
i. What is home v. public? If on patio, that’s public
c. Steagald – police go into S’s house looking for Lyons, who isn’t there.
They find drugs and want to try to use them against Steagald. Court
says that arrests at the home of a third party require an arrest warrant
for the suspect and a search warrant based on PC that the suspect is in
the home. Designed to protect the home, not person, from seizure –
only owner of home has standing to claim 4th violation here
d. Atwater – TX law allows officer to either arrest or issue a citation for
failure to wear a seatbelt. Does the 4th amendment prohibit
warrantless arrests for minor “qualify of life” offenses”? Atwater
argues that you can’t have option of custodial arrest for crimes only
punishable by fine – need some sort of compelling need plus PC.
Court say no – states can set their own substantive criminal law, and
court will only be concerned with procedure.
i. Court seems to think that these types of arrest have been allowed,
even though this type of offense is different from what the framers’
probably had in mind. Balancing test – prefer bright-line rule for
police here so that they don’t have to make fine judgments. Don’t
want to micro-mange police behavior in traffic stops, b/c they can
ii. Souter worried about people being arrested for eating fries on
iii. Real problem – racial profiling
5. Searches Incident to (Full Blown) Arrest
i. Police Safety. Arrest represents dangerous situation for police
because of the stress level and the length of time the suspect will
be with the officer. Need to search for officer
ii. Destruction of Evidence. Fear that suspect will destroy any ev he
possesses whether related to offense he was arrested for or not.
Search for ev does not have to be related to the charge causing the
b. Robinson – cop stopped man with PC to believe he was driving with
suspended license. Had ability to arrest, and did. During search of
suspect police takes out cigarette pack, opens it, and finds drugs.
Suspect wants rule that says you must have PC/RS to believe that the
evidence was present – he was arrested for traffic violation, so search
of cigarette pack was illegal.
i. Court says police have broad authority to search incident to arrest,
including the “grab space” – doesn’t have to be tied to arrest
ii. In background here is the administrative search – at police station
they can go through your stuff carefully
iii. Based on hypothetical grab space – what you could hypothetically
grab (or weapon suspect could hypothetically have)
c. Chimel – officers search entire house, based on their arrest warrant.
They claimed SIA. Court said could only search person and
grabspace. For how long? For as long as reasonable. Geographic and
temporal scope both going to be determined by rationales you offer.
d. Belton – officer pulls over car for speeding, while standing outside of
car sees envelope labeled in street name for marijuana. This gives him
p/c and power to arrest. So they place him under arrest, triggering
SIA. Court says that in context of occupant in automobile, SIA
extends to entire passenger compartment. That is the grabspace.
e. Thornton – suspect is outside of car and walking away from it when
arrested. He is handcuffed and placed in squad car, then his car is
search. Court upholds Belton rule – SIA applies to people in or near
automobiles. So can search the passenger compartment. Doesn’t
matter that officer made contact with suspect after he left car.
i. Argument is based on police logistics – arrest of people outside of
automobiles can occur in variety of situations.
ii. Scalia’s dissent (concurring in judgment): following Belton rule
gives police blank check, as if SIA is an entitlement. Instead,
needs to be connected to one of the rationales. So police should be
able to search person of arrestee. And can do Belton search when
it is reasonable believe evidence relevant to the crime of arrest
might be found in the vehicle. Police can engage in an “evidence
gathering” search (which is ok), but needs to reasonably believe
that ev connected to the offense might be find.
Prof notes that he doesn’t say if it should require PC or RS
f. Knowles – court stops car for speeding. Under state law, has option to
issue citation or arrest. He issues citation, but proceeds to search
passenger compartment of car. Police argue that since he could have
placed under arrest, he should get the search incident power. Court
says this search is invalid – search must be incident to arrest.
i. Court arrest is really powerful psychological moment. Creates a
danger. So that’s what triggers rationales of search allowed b/c of
danger (and to some extent, destruction of ev). When mere
citation, doesn’t raise to this level, rationales don’t apply.
ii. Possible problem: officer places under arrest, doesn’t find
anything, so mitigates to a citation.
A. Stops and Frisks
1. Background to Terry
a. Police used to have almost unlimited power to stop people on street.
Very broad vagrancy laws that police could enforce by stopping.
Concern about abusive police practices, but also concern about
2. Terry – veteran cop notices suspicious behavior of men casing a store for a
robbery. Approaches them, asks their names. Then grabs Terry, spins
him around, and pats for weapons.
a. Court adopts an intermediate approach – police are allowed to “stop”
and “frisk” (which is less than to “search” and “seize”) based on
i. Practical arg – there are many contexts where getting a warrant
simply not work. Plus, police have been able to do this historically
ii. Officer and Public Safety – want police to be able to protect
themselves and want them to engage in community policing rather
than only reactive police work
iii. Limited nature of Intrusion – weight the power of law enforcement
interests against the relatively lower amount of intrusion going on
3. Stop and Frisk/Reasonable Suspicion: Scope
a. For a Stop
i. Police must have RS that a crime is afoot (any crime not just
ii. This is a 4th event. You are not free to leave. They can make you
stay in their presence for a limited period of time
iii. Compared to an Arrest
Arrest is full-blown custody, taken for future processing,
longer scope, involves going to station
Stop – temporary encounter. Less time, probably no change in
i. Police must have RS to believe that suspect poses a danger (ie is
ii. Power to frisk is NOT automatic from power to stop
iii. Sometimes the nature of crime itself will create RS to frisk
iv. ONLY to search for weapons, not evidence
v. “Plain Feel” Exception: if police are executing a valid frisk and
within the scope of frisk, the police develop PC of the
incriminating nature of the item, they can then pull the item out
4. Terry and Cars
a. Terry allows cops to pull people over and stop them. Valid Terry stop.
b. Mimms says cops can order driver out
c. Wilson lets them order passengers out
d. What about frisk during a traffic stop?
i. Cops can: run your plate, order you and passengers to get out of car
(Mimms/Wilson), use a dog to sniff outside car (not a search – Place),
use plain view, ask for consent, etc.
ii. If they have RS to believe driver is dangerous: cops can frisk the
passenger compartment and containers within where a weapon could be
iii. But the cops cannot unduly lengthen the encounter. If the RS doesn’t
rise to PC (which is what they are hoping for) then they have to let
you go. if he doesn’t commit a violation, they can still Terry stop him
based on the RS. The cops can ask questions and temporarily detain the
iv. If driver commits traffic violation, they can stop him based on RS. If he
doesn’t commit a violation, they can still Terry stop him based on other
RS. The cops can ask questions and temporarily detain the suspect.
v. But they cannot frisk him unless they have RS that the suspect is
dangerous – it is not automatic from the stop.
Have to tell a factual story giving rise to RS for frisk. (could just be a
persuasive story about the connection b/t drugs and guns – worked in
5. Hiibel – officer has RS of assault and battery. During exchange, develops
RS of DUI. Officer asks for ID, Hybl won’t comply. He’s arrested for
refusing to turn over ID
a. Court says this is valid arrest. If in course of lawful Terry stop, police
ask for your ID and you refuse, 4th not violated if they arrest you
(assuming there is underlying state law that authorizes such action)
b. Suspect argues that this is impermissible bootstrapping of Terry –
officer has RS of a crime, and state is then bootstrapping this along
c. Court says it’s fine. Not vague. All you have to do is identify.
6. Florida v. J.L. – anonymous tip that a youth fitting a certain description at
a certain bus stop had a gun. Court said that this tip alone is not enough to
create RS, even if cops corroborated by seeing the kid in the shirt. Like
PC context, still need indicia of reliability - predictions of future activity,
basis of knowledge, corroboration of more than innocuous details.
7. Illinois v. Wardlow – police see man flee at sight of police in high crime
area. Rule is that flight is not RS per se, but can be factor which must be
evaluated under totality of circumstances.
a. Court says that here, flight combined with the area/neighborhood
B. Police Discretion and Profiling
1. Speeding laws/Jersey Turnpike
2. Whren – Police saw suspicious youths stopped in car at stop sign. As cop
makes u-turn, car speeds away, breaking traffic laws. Police pull over, saw
drugs, and arrest.
a. Concern is that police are using traffic laws as pretext to authorize
SIA. Suspects argue for higher standard – whether “reasonable officer
would have made a stop for the traffic violation”
b. Court rejects, says subjective intent of officer does not matter. Only
thing we care about is whether the police had PC to believe that a
traffic violation occurred.
c. Implicitly supports pretext – we think pretext can be good policing to
help catch people. Only concerned about race as pretext.
3. Morales – City of Chicago tires to focus on gang loitering. Ordinance
says that if people are suspected of loitering for no apparent purpose with
known gang members, police can issue dispersal order, and if people don’t
disperse, they can be arrested.
a. Court doesn’t allow it.
b. Defect in the ordinance is in the trigger – if loitering with person
suspected of being a gang member, with loitering defined as “no
c. And justices (fragmented decision) coalesce around the “no apparent
purpose” language – it is too vague. Animating flaw is that it gives
police discretion to discriminate.
d. Note: Court says this specific ordinance violates DP for being vague.
i. So what knid of rules would court uphold?
ii. Maybe if you more specifically define gang loitering, as O’Connor
iii. Or, loitering with intent to commit another crime, as Prof suggests.
She thinks courts will uphold these third generation statutes
(Morales was second generation). But in practice, might not be
C. “Special Needs”
a. Delaware v. Krause – officer w/time on his hands pulls car over for
license and registration spot-check. In course of this, discovers drugs
and arrests driver. Question is whether he can pull them over to start.
Court says Terry stop means you have to have reasonable suspicion to
pull someone over. Can’t just spot check, even though there is state
interest in making sure of license and registration. Court emphasizes
the anxiety, shock, overall imposition on citizen. Have to have
something more to balance against that imposition. But then goes on
to say that they’re not suggesting there aren’t ways to do spot checks
at all. Could set up roadblocks to check all motorists
b. DUI roadblocks
i. Idea is that this is not roadblock for garden variety crime that does
require pc, but instead on the administrative side, b/ c protecting
life and limb and property loss are just as important as finding
ii. So special interest cases balance three factors:
Severity of intrusion on privacy
Productivity of search/seizure
c. Sitz – DUI checkpoint. No RS or PC. Avg stop is 25 seconds, during
which officer looks at license and registration. Also has chance to
look at and smell you. If the detect signs of drunkenness, they have
RS and they send you to Phase II to do battery of DUI tests. Court
accepts that this is special needs to protect and limb. So don’t need
warrant based on pc.
i. Instead court falls back on balancing
Severity of intrusion on privacy – very brief, minor delay, and
if you’re member of large group its just less invasive. Not
being singled out or stigmatized. Less frightening.
Gov interest – very weighty. A very compelling need
(highway safety, protection of life and limb and from
destruction of property)
Productivity – overall a very low hit rate. Court doesn’t
address what is implicit: deterrence.
ii. So court holds that these checkpoints are okay
But regulatory program must be in place to regulate and
monitor – lay out specific protocol
d. Edmond – drug checkpoint. That’s what they call it. Similar level of
objective intrusion as in Sitz. Same protocol. Except now they have
dogs. But point is they’re using plain view, plain smell, and dogs
don’t count as searches. But court nonetheless strikes down the
program. Rationale must be that the exigency is not the same as in
drunk driving. Court analogizes this checkpoint to “general crime
control.” No compelling interest. So really more about the character
of interest and how it’s linked to this precise program. With Edmond,
you’re looking into car and using dogs. If you’re sincere about the
Sitz case, they’re not making the same visual inspection there that they
e. Lidster – checkpoint looking for info about serious hit and run
accident. Court allows it, looking at the three factors: it is a serious
gov interest, the intrusion is not that grave, and the character of the
gov program is tailored narrowly to meet the gov interest.
f. What about situation where police pose as “UVA researchers” and
give breathalyzers? YES, police can use this kind of deception
D. Reasonableness and Police Use of Force
1. Tennessee v. Garner – report of break-in at house. Officer arrives, goes
around back where sees suspect fleeing. Yells at suspect to stop, suspect
starts to climb fence. Officer shoots suspect, fatally wounding. Turns out
it was young teenage kid stealing something really minor. Question is
whether police were reasonable in effecting the arrest. State argues that
just needed pc that felony was committed. Court says no, reasonableness
applies not just to quantum of suspicion needed for seizure, but also to
manner of seizure:
a. Need pc to effect the seizure (with exigency – fleeing), p/c to bring
b. But need something more to use deadly force: need pc to believe that
the suspect poses a significant threat of death or serious physical injury
to officers or others. Needs probable clause plus. Night-time crime
just not enough.
c. So example counter to theory that whenver court allows balancing,
that’s really giving more leeway to the police.
2. Graham v. Connor
E. WRAPUP: See 3.23 Notes. Summary of GVC/Terry/Balancing
V. CONSENT SEARCHES
1. An exception to PC/RS Req – if police have valid consent, they can search
in the absence of any suspicion whatsoever.
2. Problem- encounter in which consent is given but not consensual. The
fact that so many people consent raises questions about whether people
know they can refuse
B. Bustamonte – vehicle infraction – headlight and license plate out. Terry stop
is good. Lots of people in car. No one has ID. Only one person has it.
Officer requests they get out of car, they do so. Asks to search, guy says sure
go ahead, even helps out. Officer finds stolen checks. Suspects argue that
consent wasn’t voluntary. Push for advice of rights – argument that officers
must tell them they don’t’ have to consent. Court rejects this argument –
don’t have to inform about right to refuse. Consent searches are valid as long
as consent is given freely and voluntarily – depends on totality of
1. Prof notes that we like consent searches – they’re big business for officers.
And they allow innocents to clear their name without going through 4th
C. Robinette – guy pulled over, clearly he’s seized. Officer runs check, issues
warnings, gives back license. Then cop asks if he can do a search, guy agrees.
Prosecution says when license given back, seizure was over, all consensual
from that point forward. Citizen argues officer should have to tell him that
he’s free to leave. Court says police do not have to inform a suspect that he is
free to leave before requesting a consent search.
D. Jimeno – officer asks for consent to search car looking for drugs. Suspect
consents. Police look in bag in car, find drugs. Suspect argues that consent
did not extend to the bag. Court disagrees. Reasonable person would think
that consent included the bag. So scope of consent given determined by what
a reasonable person would think the consent covered. Very fact dependent.
E. Rodriguez – involves third party consent. Police mistakenly thought person
giving consent lived on premises, but she did not (girlfriend who hadn’t lived
there in some time). Court says consent is valid because the mistake was
reasonable. If police reasonably conclude that a third party has apparent
authority to consent, then the search will be valid. Also fact-based analysis.
1. Assumption of risk arg – if you choose to share your privacy with others
in the residence, you run the risk that they might let people in
2. Social norms are important – what counts as private space?
F. Randolph – husband won’t consent to search, wife will. Its their house.
Outcome? No consent, police can’t search. Court rejects weight of lower
authority. Relies heavily on the social expectations argument, which is what
is used to determine reasonableness.
1. Roberts dissent says that you’re using 4th analysis in determining if it’s a
search to this situation – social norms not usually applied at this point.
2. Prof agrees; likes the solution not the analysis. She’d expct the analysis to
be something along the lines of “if we have tie, we break in favor of 4th
3. Thomas says not a 4th search: you’ve exposed all of this to the public, so
you’ve given up your right to privacy.
4. Roommate hypo: you’re not there, roommate says come on in and search.
Where can they look?
a. Only where police have colorable argument that it is common space.
Test is joint access and control. Kitchen, common areas clearly apply
b. Bedrooms trickier.
c. Whole inquiry is very fact-specific.
d. Key arguments about assumption of risk.
VI. REMEDIES – Limits to Exclusionary Remedy
A. Good Faith Exception
2. Leon – Court determines that search warrant for house of former drug
dealer, related to investigation of another drug dealer, lacked requisite
probable cause. Question is whether the evidence discovered as result of
faulty warrant has to be excluded. Rule is that if the police reasonably
rely on a warrant later found to be defective, the evidence obtained from
that warrant is not excluded. So the answer will almost always be yes –
unless they lied to the magistrate or the warrant was so obviously invalid
that nobody could rely on it. If they couldn’t reasonably rely on it – if it is
so lacking of indicia of probable cause – then good faith exception won’t
a. The exception NOT extended to warrantless activity
b. Cost/benefit: Court seems to have in mind the costs of losing valuable
evidence – losing it would be harmful to prosecution of justice. And
the benefit of exclusionary rule is deterring the police. And since in
this case police acting in good faith, there is nothing to deter. So
sensible to have this exception.
c. Prof asks – will Leon make a difference among appellate courts,
magistrates, officers? She thinks after this case, magistrates will be
less likely to read the affidavit carefully and say I need you to get a
little more. But real effect is on Appellate court. Before Leon,
appellate court (applying Gates) asks if there is substantial basis for
believing there is PC. After Leon, court will just ask if there was good
faith by officer – if it was reasonable for him to rely on magistrate.
Won’t get into the PC inquiry.
1. Rakas – stands for idea that expectation of privacy as passengers in cars is
very limited. Passengers essentially are freebies. Rule is that a party
seeking to exclude evidence must have had a reasonable expectation of
privacy in the place searched. Since the passengers didn’t have such an
expectation, no standing.
2. Minnesota v Olson – Court holds that overnight guests have a REOP in
host’s home and hence standing to assert 4th violation.
a. Based on social norms analysis. When we travel, we often stay with
friends/relatives/etc, have well-settled cultural expectations about
3. Minnesota v. Carter – D bagging coke in the apartment of an
acquaintance. Police get tip about it, go to house and see it, arrest the
baggers. Court doesn’t get to question of whether it was a search – says
that D had no standing.
a. Rationale: D’s didn’t have REOP in this person’s home
i. Only a short-term, commercial transaction, and they didn’t know
ii. Court thinks they did not look like social guests under Olson – no
social norms could explain a REOP in this case
b. Rehnquist’s theory: police incentives – we get enough deterrence
from the fact that the person who’s rights have been violated has
standing. If we extend standing, we’d get marginally more deterrence,
but it would be outweighed by loss of convictions
c. Stevens says almost all social guests have standing, but not here
d. Ginsburg is concerned that whenever you have a group on premises,
police would know (under this standard) that many of them are
freebies. So she argues rule should be that whenever a homeowner
invites guests into her home to share in a common endeavor, the guest
should share host’s shelter against searches and seizures.
e. Scalia argues that they can’t possibly have standing based on textual
argument. B/c if the constitution is to read to mean you have a right to
be protected from searches and seizures in each others’ homes, that
would also mean you have a right to be protected in each others’
papers, effects, and persons. And that doesn’t make sense with respect
i. Prof doesn’t buy this arg. First, don’t you have reasonable
expectation in wife’s purse? But more importantly, she thinks the
important word is “people” – the right of the people to be secure.
Scalia uses this to mean individual people. Prof says you could
read this differently.
4. Standing for Autos
a. Generally: Driver is only person who has standing. Passengers do
not, unless they happen to be the owner, or maybe ride in the car often.
b. Passengers DO have standing to object to search / seizure of their
property. (Can also claim that seizure of vehicle itself was illegal, so
all else is FOPT).
C. Fruit of the Poisonous Tree
a. Poisonous Tree = Illegal search or seizure
b. Fruit – Evidence that is acquired directly or indirectly as a result of
c. Result – FOPT is excluded
i. Is there a poisonous tree?
ii. Did the exploitation of the violation yield the ev that they’re
seeking to suppress?
iii. Does the suspect seeking to suppress have standing as to this tree?
iv. Do any of the exceptions to the FOPT apply?
2. Wong Sun – police get tipo that man bought drugs from Blackie Toy.
They go to Oye’s Laundry and find Toy. When they say they’re cops, he
runs. Cops arrest him, he tells them he got it from Yee. Police go to
Yee’s and find heroine, arrest him. At station, Toy says they got it from
Wong Sun. Police go and arrest him. A few days later, Toy and Wong
Sun make incriminating statements.
a. Evidence at issue
i. Toy’s statement in house
ii. Narcotics from Yee
iii. Wong Sun’s statement at station house
iv. Toy’s statement at station house
b. What is the poisonous tree?
i. Court says the entry and arrest of Toy is the poisonous tree – a
seizure that violated the 4th. Because it was not based on PC or
warrant. The tip wasn’t enough.
c. Effect on the suspects
i. Toy – his statement at time of arrest is FOPT. Yee’s heroine also
FOPT because it was the direct result of illegal search and no
Attenuation is whether it loses “taint” over time. This is
proximate cause analysis
ii. Yee – violation was of Toy’s rights. So Yee does not have
standing to object to the FOPT
iii. Wong Sun – heroine from Yee is not FOPT – not an invasion of his
4th rights. Police did not have PC to arrest, so this is another
poisonous tree. However, the statements are made days later, so
they are sufficiently attenuated to eliminate the taint of the earlier
Essentially, a voluntary decision. So free will an important
factor in attenuation
3. Ceccolini – notes p. 104. Court reluctant to suppress live third party
witness testimony, even if that live testimony is FOPT.
b. Inevitable Discovery
i. If police can argue that it was inevitable that through the course of
their investigation they would have discovered the evidence
anyway, it is not FOPT.
ii. Nix v. Williams – Officer uses Christian burial speech to get
information about body illegally (had been arrested, so 6th amend
right to counsel had attached). But since they were searching close
to the location and would have found it anyway, it’s not
c. Independent Source
i. If the police can point to an independent source which led them to
the evidence even if it is also FOPT, then it will not be excluded.
ii. Murray v. US – Police illegally enter warehouse and find pot.
Later search it pursuant to a warrant not based on info obtained
during illegal search. The evidence is allowed in b/c the second
search was completely independent.
REGULATING POLICE INTERROGATIONS AN CONFESSIONS: Fifth, Sixth,
I. BACKGROUND INFORMATION
A. Fifth Amendment
1. Language: “No person . . . shall be compelled in any criminal case . . . to
be a witness against himself.”
a. Compulsion – historically meant they’d arrest you if you didn’t testify
b. Incrimination - ev must provide link in chain that could convict you
3. Privilege – this is now what we use to regulate police interrogation even
though it could be done through other ways
4. Values of Fifth
a. Protect against police abuses (torture)
b. Structure of adversarial system – put entire burden on state, no
requirement to cooperate at all
c. Protect people from “cruel trilemma” – self-incrimination, perjury, or
d. Reliability of confession
B. Sixth Amendment
1. Right to Counsel, but only after formally charged
C. 14th – Due Process
1. Requirement of voluntariness
2. Coexists with Miranda
3. So if Miranda fails, can still fall back on this argument
II. VOLUNTARINESS AND ITS DISCONTENTS
A. Due Process Test (Pre-Miranda)
1. First vehicle to regulate interrogations: interrogation must not deprive
2. Then, was confession made by a voluntary choice under the totality of the
a. Idea was that we wanted confession to be the result of suspect’s free
will and not of police over-reaching
3. But state courts would apply incorrectly – just said everything was
4. Keep in mind that Miranda Protections are in addition to Due Process
B. Massiah – suspect charged with crime (something on a ship). Police set up
bug in his cohort’s car, get cohort to engage him in conversation about the
crime. Court says 6th amendment is triggered when you’ve been formally
charged. After that point, no “deliberate elicitations” allowed without
counsel. All questioning must be done in presence of counsel.
1. Note: court did NOT rule that 6th attaches for purpose of confession
C. Escobedo – suspect arrested, released, re-arrested, but not charged. Asks for
lawyer, police don’t give him one. Then he confesses. Even though he had
not been formally charged, Court holds that confession is inadmissible. Want
police to rely on independent investigation (not strong-arming).
1. SO court seems to be saying that 6th amendment applies during
2. This idea is OVERRULED in Miranda
III. THE MIRANDA REVOLUTION
1. Rule: When a suspect is in custody and going to be interrogated, the
police must read the suspect his rights and receive a valid waiver before
a. Warnings: right to remain silent, anything you say can be used against
you, right to counsel, if you can’t afford counsel, counsel will be
provided for you
b. Principle: Custody + Interrogation = Coercion
c. Bright-Line Rule: Must be applied in all cases, or will be excluded
d. One suspect invokes, questioning must stop.
2. What Practices are Court worried about
a. Physical abuse
b. Privacy concerns
c. Talking suspect out of right to silence and counsel
d. Trickery – fake and reverse line-ups, Mutt and Jeff routines
e. Blaming the victim
f. These books on effective questioning
3. Court’s Perceived Effects of Warning
a. Remind suspect that this is adversarial moment
b. Sort of a time out to settle things down
c. Educate suspect as to rights of silence and attorney
d. Shows that police care about and will protect rights
e. Thinks that most people will invoke
4. Note: court seems to think at this point that invoking is easy – not a high
burden. Can invoke in any manner.
IV. THE SCOPE OF MIRANDA
A. What is “Custody”
1. Test is a messy totality of the circumstances one. Focuses on same test as
in arrest: is it the same level of restraint associated with formal arrest:
show of force such that reasonable person would believe he was not free
to go or terminate encounter
2. So you have to look at everything – how you got there, etc.
3. Big question is what to do about Terry stops
a. If during Terry stop (not level of formal arrest), officer asks you
question and you don’t answer, can that silence be used against you?
b. State would argue that the pre-arrest silence is not privileged. Theory
behind Miranda is that the privilege applies when you have custody
and interrogation, the confluence of which creates compulsion
i. And you’re not in custody here. So no compulsion
4. Minnesota v. Murphy – D admits to counselor that he raped a girl.
Probation officer finds out and confronts him. D says he “feels like
calling a lawyer,” but then confesses. Court says this interview was not
custody. No level of restraint associated with formal arrest under 4th.
B. What is “Interrogation”
1. Innis – D arrested after cab driver IDs him. He’s given Mirandas three
times. Asks for attorney. In paddy wagon, police begin conversation with
each other about what a shame it would be if a kid found the gun and hurt
himself. Suspect reveals where gun is located, they read him his Mirandas
again, but he insists that he wants to show them where it is, and he does
so. Was this interrogation (after invoking?)?
a. Court says no.
b. Rule: Interrogation is express questioning or its functional equivalent.
Any words or actions that police know or should know are reasonably
likely to elicit an incriminating response from the subject. Apply the
test from the D’s perspective
c. Court says exchange here not the functional equivalent of questioning.
i. A very brief exchange. Not directed towards officer. Read him his
ii. Also notion that from the perspective of innocent D, this was not
designed to elicit a response
d. Prof says
i. When she reads this, thinks it should come out the other way.
Strikes her as intending to elicit response (there is no school there!)
ii. What if there is clear ev of police’s intent to elicit?
Based on language of court, shouldn’t matter. It’s all about
D’s perceptions. And they don’t think reasonable D perceives
this exchange as one trying to elicit response.
2. Perkins – suspect is in jail for crime. Snitch reveals that suspect admitted
to another crime – murder. Police sends undercover officer into his cell
under ruse of planning a breakout. In course of conversation, undercover
officer asks if he’s ever killed anyone, defendant admits the unsolved
murder. In court, defendant argues Miranda – he was interrogated and in
custody and didn’t get formal Miranda warnings.
a. Court says that Mirandas are not required when the suspect is unaware
that he is talking to a law enforcement officer and he gives a voluntary
b. Their rationale is compulsion: suspect did not feel he was in police
dominated, coercive situation. (Interesting, b/c he is in prison)
i. But thinks he’s talking to friends
ii. Wasn’t subjected to the pressures Miranda is designed to guard
against b/c not facing the cruel trilemma
c. Dissent: says people in prison have motivation to boast to survive.
d. Due Process Voluntariness Arg? Might work. But we seem to think
this is ok, we want police to be able to use interrogation in this
e. 6th amendment claim?
i. This was deliberate elicitation, and he had been formally charged,
and no counsel present.
ii. But NO. 6th Amendment is charge specific
f. Interesting Point: Miranda court is so concerned about deception.
And this is the sympathetic friend routine to an extreme! Jeff to the
extreme! But court finds no violation
i. B/c sense is that we think this kind of police interrogation is good
cop work. We don’t want to eliminate it.
3. Muniz – man pulled over for drunk driving. Given sobriety tests, which he
fails, and he admits to being drunk, so taken for booking. There is he
asked booking questions, 6th birthday question, given sobriety test against,
breathalyzer, then Mirandized.
a. Roadside questions – Miranda does NOT apply in Terry stop. No
b. Giving breathalyzer – NOT TESTIMONIAL (just physical)
c. Booking questions – Court says these are admissible. Creates an
“administrative exception” for asking these types of questions, b/c not
i. Rehquist thinks this is not interrogation at all
d. Sobriety Tests – admissible. Just physical evidence. Even the
counting portions, b/c its just testing state of mind. Not testimonial.
e. Sixth Birthday Question – court says this not admissible. Looks like
they’re trying to trick him into giving incriminating information.
i. Rehnquist thinks this is also physical ev of impaired mental state
ii. Prof offers a few reasons for why they might do this
Maybe a sign to police that statements out of your mouth will
be approached as if privileged. Some will be considered
physical ev, but court will monitor very closely
Maybe also a confrontation to booking questions. As a
message to police to be very careful in the booking questions –
they have to be very clean
C. Valid Miranda Waivers
1. Note: can’t waiver until after Mirandas have been given. Can’t waive
2. Davis – requires that invocation is clear and unequivocal, such that a
reasonable officer in the circumstances would understand the statement to
be a request for an attorney. (Even though coming out of Miranda it
looked like it was going to be very easy to invoke.
a. This is guy who was playing pool with a buddy and beat him to death
with a pool cue
b. He said “Maybe I should talk to a lawyer.”
i. Court said this isn’t clear and unequivocal
ii. Prof doesn’t agree
c. Lower courts had required that with an equivocal invocation,
interrogator had to stop and clarify. Which they did in this case. He
said he didn’t want one, and then invoked later.
d. BUT, this practice not required by SC (is required in military). No
duty for police officer to stop or clarify.
3. Smith – suspect makes equivocal invocation to counsel in the middle of
when warnings were given. Court says this different scenario than Davis
– equivocal invocations at this point requires that police do stop
questioning. B/c Miranda is a profoundly significant moment, and it’s the
warnings that stop the coercion, because it lets the suspect know what
they’re doing. And if they’re equivocating during the giving of the
warnings, they probably don’t really understand what’s going on. So
shouldn’t be able to ignore.
4. Michigan v. Mosley – governs right to silence. Test for questioning again
after invocation is whther right to cut off questioning was “scrupulously
a. Suspect was Mirandized, questioned about robberies. Invoked right to
remain silent, questioning ceased. Later, at station, different officer
came back and questioned him about homicide, after Mirandizing. He
makes incriminating statement.
b. Suspect appeals conviction on ground that he had invoked.
c. Court doesn’t buy it, applying the test above. Look at
i. Passage of time
ii. Fresh Mirandas
iii. In a different place
iv. Different subject
d. So a fact-specific inquiry
5. Edwards v. Arizona – governs right to counsel. Once suspect invokes,
police cannot question until counsel has been made available to him,
unless the suspect re-initiates. So passage of time and fresh warnings
won’t do the trick. A more robust protection than right to silence.
6. Bradshaw – court says that, when guy asks “so what’s going to happen
now?” after previously invoking, it’s sufficient re-initiation.
7. Moran v. Burbine – Burbine arrested for serious crime, Mirandized.
Taken to station. He refuses to execute a written waiver. After officers
convince him that his buddies rolled on him, he talks. In meantime, sister
hires lawyer, who contacted police and said that he was the Burbine’s
attorney. Police told lawyer that they wouldn’t question the guy without
him there. But they never tell suspect that he called, and they question
him anyway, and he makes incriminating statements. Issue is whether the
waiver he gave is valid, given that the information about the attorney was
a. Court says that waiver has to be voluntary, knowing and intelligent.
And the “knowing and intelligent” means that you understood the
literal import of the words. That you cognitively took it in.
b. Stevens wants waiver to be knowing and intelligent in a different sense
– that it has to be a good decision given all the circumstances. A wise
c. Prof says problem with this position is that no waiver is ever
8. Miller v. Fenton – about voluntariness of confession, not voluntariness of
waiver. Relationship between waiver and DP voluntariness. Not clear to
me what’s going on. He was mirandized. Said that even so, his
confession wasn’t voluntary under DP b/c the psychological ploys
amounted to coercion.
9. Blake – suspect invokes right to counsel, so Edwards is triggered. Police
take him a charging doc (as required by state law) and say “I bet you want
to talk to us now, huh.” Other guy says no he doesn’t he invoked. They
leave. Then they come back with his clothing, and he does something
they say is re-initiation. So question for court is going to be whether you
can ever cure an Edwards violation. This is coming up before court now.
V. MIRANDA AND THE SCOPE OF EXCLUSION
A. Elstat – home burglarized, witness implicates Elstat. Officer go to his house
with arrest warrant. They tell him to get up and get dressed. One officer
talking to mom, other officer talking to son, asks him some questions, and he
says that yes he was there. They take him to station, Mirandize him, and he
1. Suspect argues Fruit of the Poisonous Tree. Arrest was proper (based on
warrant and p/c), so properly in custody. Then he was interrogated while
in custody (state conceded custody, which they shouldn’t have). So he
argues that they violated Miranda, which was a poisonous tree, and the
second confession is out as a fruit.
2. Court says FOPT analysis doesn’t apply to Miranda violations.
a. B/c Miranda is a prophylactic rule. It’s important, but it sweeps more
broadly than the Constitution requires.
b. So remedy is suppression of statements from the scene. Not second
c. Court doesn’t buy his cat out of the bag arg, where he said that second
couldn’t possibly be voluntary b/c cat already out of bag, and no one
told him that first could be suppressed based on Miranda violation.
B. Quarles - public safety exception. Some kind of shooting in grocery store.
They immediately apprehend suspect and place him under arrest. They say to
him where’s the gun? No mirandas. He tells them, they get it. Question is
whether there is Miranda violation. Court says no – this is totally out of the
Miranda realm. There was degree of safety at issue. So statement and gun
not excluded. No Miranda problem. Can see the implication – not a
Constitutional guarantee, weighing costs and benefits, the pressure to find the
gun way outweighs getting the confession things
C. Dickerson – in 7-2 Rehnquist opinion, SC says that Miranda is
constitutionally required. Based on stare decisis, and idea that 3501 (fed
statute at issue) doesn’t provide as much protection as Miranda requires, and
some other stuff, none of which is all that clear.
1. Prof asks what the opinion would look like if someone else wrote it.
2. Probably something along these lines: 5th amend rights are important and
fragile. So fragile they require some sort of protection. We’ve tried for
years to protect and have failed. Something has to be done. And in
default of states doing anything, here’s what we require.
3. Prof also notes that Dickerson has really just affirmed the status quo.
D. Seibert – terrible crime where handicapped caretaker is killed in mobile home
fire. Woman is arrested, taken to station and questioned without Mirandas,
makes incriminating statements. So then police Mirandize her, turn on tape
recorder, and say let’s go through this again. And they exploit the first round
of questioning in getting her to say stuff again. Question is whether second
set of questions can be used, or should be excluded? Remember, court said in
Elstat that there is no such thing as FOPT in 6th amendment. Court then says
that instead, we look at whether the second round of questioning is coercive.
And here, it definitely is: no substantial break, same interrogator, no curative
steps, overlapping content, no lapse of time, no change in scenery, they
exploit the first session.
1. So, the application becomes the test.
2. And note, it’s a FOPT analysis! The attenuation doctrine. That’s all it is.
Even though court says fruits analysis doesn’t apply here.
3. Breyer wants to just admit it’s a fruits test.
4. Kennedy only wants this test to be used when the two-step questioning is a
deliberate tactic by the police. In Elstat, he argues, it wasn’t deliberate – it
was good faith – no deliberate effort to evade Miranda req’s.
5. Why does this matter? Police incentives.
a. Kennedy also insinuates that there might not have been custody in
round one of questioning in Elstat. But there definitely is here.
b. Miranda doesn’t apply in pre-custody questioning.
6. But remember, Voluntariness test under DP still could apply
E. Patane – arrested for something, officer warns of rights, but suspect cuts him
off and says “I know my rights.” Then tells officer where gun is (upon
questioning), and they go and get it. Miranda violation?
1. Court could have just said effective waiver. But it doesn’t do that
2. Could also look to Quarles and the public safety exception, but doesn’t do
that either. Not a public emergency (gun in house, not in public)
3. Court seems to say that FOPT analysis doesn’t apply. But, it’s physical
evidence anyway, which isn’t protected by the 5th at all.
4. Note the plurality’s unsettling statements about the constitutionality of
If warnings aren’t given, then waiver is not possible. Suspect can talk voluntarily,
but interrogation is NOT allowed
Burbine applies - Waiver must be knowing and voluntary, but not wise
Right to Silence (Mosley)
Right to Counsel (Edwards)
Suspect Re-Initiates/Police Can Resume Questioning