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					                                    What is search

Smith v. Maryland

     Woman was robbed, she described the robber’s car thereafter she received phone
       calls from the robber and once saw him driving away from her house.
     After seeing him in the neighborhood again, the police traced his license and
       installed a pen register at the phone company to record the numbers dialed by the
     The register revealed that the D had in fact called the P one day after the police
       had spotted him in the neighbor hood
     Based on that they got a search warrant for D’s home. Police found a phone book
       open to the page where P’s info was on.
     D was indicted and in pretrial motion wanted the evidence suppressed because
       the warrant wasn’t obtained before the installation of the register
     Does installing and using a pen register constitute a search with in the meaning of
       the 4th Amendment ( which is applied through the States by way of the 14th
     No, the installation and use of a pen register is not a search and therefore no
       warrant was required
     An individual assumes the risk of disclosure of information knowingly conveyed
       to a 3rd party
           o Katz Prongs
                     Subjective expectation Because D probably didn’t have an
                       expectation of privacy in dialing phone numbers
                     Objective expectation And even if he did, it wasn’t a legitimate
                       expectation that society is willing to accept since he voluntarily
                       turned over the phone #’s to 3rd party
     An individual has no legitimate expectation of privacy in the numbers dialed on
       his phone because he voluntarily conveys those numbers to the telephone
       company when he uses the phone
     Based on Katz, applying the 4th depends on whether the person wanting its
       protection can claim a Justifiable , a reasonable or a legitimate expection of
           o 1. has he by his conduct exhibited an actual expectation of privacy
           o 2. Is his subjective expectation of privacy one that society is willing to
                recognize as reasonable –
     Since register installed at phone company headquarters – he can’t claim that
       police intruded on his constitutionally protected area
     Register is different than a listening device – it doesn’t record the
           o People know that the phone company records their dialed calls – since
               they appear on their bill
      Even though D argues that he made the calls in his some so intended to keep
       the calls private –
           o this argument won’t work because he wanted to keep the contents
               private not to preserve the privacy of the number dialed

Kyllo v. US
    2 agents from the US Department of Interiors were suspecting that Kyllo was
       growing marijuana in his home
    they used a thermal imager form their parked vehicle on the street to scan Kyllo’s
       home to determine the amount of heat radiating from the home
    The scan showed that the roof over the garage were much warmer compared to
       the rest of the home and much warmer than the neighboring homes
    Federal magistrate issued a warrant to search his home based on the thermal
       scans, utility bills and tips from informants
           o Agents found an indoor marijuana operation with over 100 plants
           o D moved to suppress the evidence from the search

     Does the use of a thermal imaging device at a private home from a public street to
       detect relative amounts of heat w/I the home constitutes a “search” within the
       meaning of the 4h amendment?

      Yes, where government uses a device that is not available to the general public
       to explore details of the home that would be previously unknowable without
       physical intrusion, the surveillance is a “search” and is unreasonable w/o a

    Thermal imager capturing heat coming from the house is like a mic that picks up
      sound coming from the house
    It’s getting intimate details from the home , and there is no way to limit that type
      of a search to images that are not intitmate because in order to determine what is
      intimate you would need to view the images and by doing so conducting a search
      which would not be constitutional
                                   What is Seizure

US v. Karo
     The DEA found out that Karo was to purchase 50 gallons of ether from their
       informant, which was to be used to extract cocaine from clothes that were being
       shipped into the US
     The DEA with the informants permission, switched one of the cans of ether with
       one contained a beeper
     Does installation of a beeper into a container with the consent from the original
       owner constitute a seizure w/I the meaning of the 4th amendment, when the can is
       delivered to a buyer who doesn’t know about the beeper?

      No, the transfer of the container didn’t constitute a seizure because
      A seizure occurs when there is some meaningful interference with an individual’s
       Possessory interest in the property

    D’s possessory interest was not interfered with, perhaps there was a technical
      trespass on the space occupied by the beeper
    Because the can with the ether belonged to the informant and the DEA they could
      do anything they wanted w/o violating Karo’s rights

                              Chapter 4 Probable Cause

Spinelli v. US
    D was convicted for traveling to Missouri from Illinoiswith the intention of
        conducting gambling activities prohibited by Missouri law
    The warrant police used to get the evidence for Spinelli’s conviction was based on
        information from a confidential and reliable police informant
    Informant said that D was accepting wagers from two specific phone numbers .
        But he didn’t say whether he had personal knowledge of the alleged gambling
        activities. Part of the activities were corroborated by police investigation
            o Affidavit:
                     1. D was seen crossing Illinois into Missouri late at night and
                        entering a particular apt
                     2. FBI check showed that the apt in which D stayed had 2 phone
                        lines under another person’s name
                     3. D was known by local and federal officers to be a bookmaker
                      4. FBI was informed by a confidential reliable informant that D
                       was operating a gambling operation taking bets from the phone
                       numbers listed

     Was the tip from an informant based on hearsay and corroborated by police a
        trustworthy as opposed to one ho has seen the facts to support a search warrant?
Rule:/ holding
     No probable cause
     Informants report must be measured against Aguilar’s test to determine whether
        the search warrant based on the informants tip is valid
            o 1. . Informant himself saw the facts stated
            o 2. there is good reason to believing it , by one of the usual grounds for
                crediting hearsay information
     If the tip is deemed inadequate under Aguilar then the oter corroborated
        information should be considered
     Even so this information is still subject to the magistrates determination
            o Yes, the warrant was deficient there was no probable cause without more
            o In the affidavit the
                     1st and 2nd affirmation only showed innocent activity w/o more
                        can’t conclude anything
                     3rd was just speculation , without more the magistrate could not
                        find probable cause
                     4th nformants tip is necessary for finding probable cuase, but its
                        proper weight is determined by more analysis
            o the informants tip even when corroborated was not sufficient for the
                finding of probable cause – there was nothing to validate it
            o the information supplied by the FBI surveillance doesn’t prove criminal
                activity when taken by itself
            o something more would be required to conclude that the information was

Illinois v. Gates
      An anonymous informant sent a letter to the Bloomingdale Police department
         informing them of specific details for the D’s activities in the buying and selling
         of drugs
             o The letter contained specific information regarding
                     Where they live
                     Where they conduct their business – FL
                     Stating that the wife drives to FL leaves the car there to be loaded
                       with drugs then flies back and the husband flies there and pics up
                       the car
                    Stated that the car driven back contains over $100K in drugs
                    They currently have over $100k in drugs in their basement
      Police then followed the lead and confirmed D’s address, financial records, and
       airline information confirming their flight to FL
      Police observed D go to FL and drive back
      Confirmed that the car driven by D was registered under his name
      Mader the officer then signed an affidavit about these finding and w/ the letter
       turned it to the court and was issued a search warrant for his apt and car
      In the home they found drugs and weapons and when the D’s arrived found 350
       lbs of marijuana
    Spinelli test by itself is not enough, must look to the “totality of the
    Neutral magistrate must make a common sense decision whether
           o Given the circumstances stated in the affidavit including the veracity and
              the basis of knowledge of the person supplying the info
           o There is a fair probability that evidence of crime will be found in a
              particular place
    The duty of the reviewing ct is to ensure that the magistrate had a “substantial
      basis” for concluding that probable cause existed
    The warrant is valid under the Totality of Circumstances test
    The Agent and Dea confirmed the informants facts and this shows that either the
      informant himself got the information or he got it from a reliable source
    It is enough for the purposes of probable cause that corroboration through other
      sources of information reduced the chances of a reckless strory thus providing a
      substantial basis for crediting the hearsay

                                   Arrest Warrants

Payton v. New York
     Is it constitutional for police officers to enter a private residence w/o a warrant
       and with force ( if necessary) to make a routine felony arrest?
     police had gathered enough evidence to establish probable cause that Payton had
       murdered a manager of a gas station . Police didn’t have a warrant , they saw a
       light and heard loud music knocked on his door but there was no response so they
       broke down the door using a crow bar and entered , D was not there . In plain
       view Police however found D’s gun,.
     D surrendered later, and was indicted for murder
           o D moved to have the evidence suppressed
     Trial judge Holding: Ct ruled that according to the NY code of CP warrantless
       and forcible entry was allowed and that evidence in plain view was properly
      D, Riddick was arrested w/o a warrant for 2 armed robberies as he was identified
       by the witnesses , officers went to his home knocked on the door which was
       opened by D’s 3 year-old son ,they entered w/o giving D a chance to either
       consent or object . Officers saw D sitting on his bed they arrested him , officers
       also went thru his rawers located 2 feet away from his bed and found drugs.
      D was indicted from narcotics charges
           o D moved to suppress the evidence ,
      Trial judgeHolding: Crt held that NY statue allowed warrantless entry into the
       home and the search of the immediate area( as an incident to arrest ) was
    An arrest warrant founded on probable cause implicitly carries with it the limited
      authority to enter a dwelling in which the suspect lives when there is reason to
      believe he is inside.
          o Rule: 4th establishes for both seizures of property and persons : absent
               exigent circumstances, entrance of the home may not be crossed w/o a
          o Rule: Objects such as weapons or contraband found in a public place may
               be seized by police w/o a warrant but must have probable cause to link
               the contraband to the criminal activity
          o Rule:
    NO, based on the 4th amendment absent exigent circumstances police may not
      enter a persons home w/o a warrant . at the core of the 4th is the right of a man to
      retreat into his home and be free from government intrusion
    An arrest warrant based on probable cause implies a limited authority to enter a
      home where the suspect lives when there is reason to believe his is inside
                    Searches and seizures inside the home w/o a warrant are
                       presumptively unreasonable
                    Because no arrest warrant was obtained in both situations
                       judgments are reversed and remanded
    [Watson case: Warrantless arrest in public areas is valid assuming that probale
      cause exists which ties the property with the cimrinal activity.
    ct distinguished this from warrantless arrests inside ones home ]
          o the right of the people to be secure in their homes shall not be violated

      Dissent:
          o 4th amendment is concerned with protecting people not places
          o at common law there were requirements to prevent arbitrary entry into
                  felony
                  knock and annoces
                  daytime
                  probable cause
       o these requimrents allowed a person to surrender at his door to avoid
              the requirement for exigent circumstances create possibility of
                 error of judgment made in short time span and this also burdens the

A. Search Warrants
      a. Elements of A Valid Search Warrant
             i. 4th amendment has 2 clauses
                     1. Reasonableness clause :
                           a. declares right to be free from unreasonable searches
                              or seizures of persons, houses , papers and effects
                     2. Warrant clause:
                           a. sets out requirements of any valid warrant
                                   i. probable cause
                                  ii. describe in particularity the place to be
                                       searched and the persons or things to be
                     3. Elements of a valid search warrant
                           a. Must be based on probable cause
                           b. Supported by oath or affirmation
                           c. Neutral and detached magistrate
                           d. Stating with Particularity

              ii. 4th amendments protection requires these infrinces to be drawn by
                  a neutral and detached manistrate rather than by an officer
                       1. Johnson v. US
                              a. 4th amendment is better served if police officers
                                  apply for warrants rather than act on the basis of
                                  their own probable cause determinations
                              b. GR: Constitutional requirement: searches
                                  conducted outside the judicial process w/o prior
                                  approval by a judge are per se unreasonable under
                                  the 4th amendment , subject to only a few
                              c. Competing view: 4th amendment test is not wither
                                  its’ reasonable to get a search warrant but rather
                                  whether the search was reasonable
             iii. Lo-Ji Sales
                       1. Police investigator bought and viewed adult films which he
                          thought violated NY obsentity laws, showed the films to
                          the Town justice , he also considered them to be obscene
                          and issued a warrant based on the officers affidavit to
                          search the D’s store and seize other copies of the film
                       2. he affirmed that other similar fimls could be could
              3. warrant required that the Town justice go with the
                 investigator to the store to conduct the search
              4. Town justice searched and seized items from areas of the
                 store that werern’t described in the affidavit and also items
                 such as magazines which were not included as part of the
                 officers observations . these items were added to the
                 warrant after the search was completed and the items were
              5. Held
                     a. Warrant didn’t particularily describe the items to be
                         seized: 4th doesn’t allow open ended warrants to be
                         completed while the search is being conducted after
                         items have been seized
                     b. The Justice was not a detached magistrate because
                         be participated in the search he was not acting as a
                         judiciary but as an adjunct officer

b. Execution of a Search Warrant
c. Richards
       i. Facts
             1. Police officers got warrant to knock and enter the D’s hotel
                  room , they knocked on the door and announced tthat they
                  were maintanence men , when the D opened the door and
                  saw an officer standing behind the so called maintanence
                  guy he slammed the door shut , the officers while
                  announcing they were cops kicked open the door finding
                  drugs and other items inside the hotel room , D wants to
                  suppress the evidence because of the alleged failure to
                  knock and announces
      ii. Holding
             1. Wilson rule: knock and announces requriment could be
                  waived under circumstances presenting a threat of physical
                  violence or where police officers have reason to believe
                  that the evidence would be likely destroyed if advance
                  notice is given
                      a. Allowing exceptions to the knock and announces
                          rule would render the 4th amendments
                          reasonableness requirement meaniglness
             2. Because felony drug investigation may frequently require
                  no knock and entry – each of these cases must be reviewed
                        by the ct to determine whether the facts and circumstances
                        of the particular entry justify getting rid of the knock and
                        announce rule
                             a. To justify no- knock entry police must
                                     i. Have reasonable suspicion that knocking
                                         and announcing under the circumstances
                                         would prevent the effective investigation of
                                         the crime
                     3. ct rejects Wilson rule of exceptions the knock and entry
                        rule but hold that the officers knock and entry did not
                        violate the 4th amendment because the officers had
                        reasonable suspicion that the D might destroy the evidence
                        if given the opportunity since the D recognized the officers
                        and since it would be real easy for him to get rid of the

B. When Warrants are required
     a. Exigent circumstances
            i. Warden
                   1. Facts
                           a. D robbed cab company and ran off , 2 cab drivers
                              followed him and say him entering a home and
                              described the man to the dispatcher who relayed the
                              info the police
                           b. Officers were allowed in the D’s wife , the entered
                              and searched home for him and found the evidence
                              of the crime
                                   i. They found weapons and the money
                   2. Holding
                           a. Under the circumstances search w/o a warrant was
                           b. 4th amendment doesn’t require police officers to
                              delay investigation if doing so would endanger their
                              lives or that of others
                           c. looking for weapons was also justified because they
                              believed that he was armed
                           d. Court hints at that looking in the washing machine
                              was reasonable

              ii. Welsh
                    1. facts
                     a. D was observed serving in and out of lanes and
                        came to a stop , the driver who saw him blocked his
                        ability to get back on the road concerned that the D
                        was sick or intoxicated, he asked another passeryer
                        to call the cops , in the mean time the D asked for a
                        ride home when the driver declined he walked
                        away, when the cops arrived they checked his
                        registriation and found that he lived w/I walking
                        distance from his home. w/o a warrant the c op went
                        to his home knocked on the door and was let in by
                        D’s step daughter . D was in bed when the officer
                        arrested him for driving under the influence
               2. Rules
                     a. Warrantless felony arrests in the home are
                        prohibited by the 4th absent probable cause and
                        exigent circumstances
                             i. Before exigent circumstances are met govnt
                                 must overcome presumption of
                                 unreasonableness attached to all warrantless
                                 home entries
                            ii. determining whether exigent cirumstnaces
                                 are present : must determine on the gravity
                                 of the offense for which the arrest is being
                                     1. probable cause to believe that serious
                                         crime is committed is not enough to
                                         show exigent circumstances
               3. Holding
                     a. when govnts interest is only minor the presumption
                        of unreasonablness is difficult to overcome
                     b. D was arrested in the privacy of his home for a
                        noncriminal traffic offense
                     c. He was not an immediate threat to the public
                        because he had abandoned his car at the scene and
                        was at his home
                     d. The state has classified first offense of driving while
                        intoxicated as non criminal so this shows the intent
                        that no arrest is necessary

b. Searches incident to an arrest
       i. Chimel
              1. Facts
                      a. Police officers arrived at the home of the D w a
                          warrant authorizing his arrest for burlary of a coin
              b. Police officers knocked and announced their
                  presence and were let in by the D’s wife, they
                  waited approx 15 min until the D came home .
                  When D came home officers asked to look around ,
                  D said no and officers informed him that they could
                  still do a search based on lawful arrest
              c. Officers searched the home with the D’s wife and
                  asked her to open certain drawers and move things
                  around , they seized some coins & other objects
       2. Issue:
              a. Was a warrantless search of the D’s entire house
                  constitutionally justified as an incident to arrest
       3. holding
              a. no justification for searching any room other than
                  the one in which an arrest occurs
              b. the search went beyond the D’s person and area
                  from which he might have obtained a weapon or
                  something that could be used as evidence against
              c. there was no constitutional jutificiantion in the
                  absece of a search awrrant to exetn the search
                  beyond that area , so the scope of the search was
       4. Dissent
              a. It is unreasonable assuming that there is probable
                  cause to require the police to leave the place of
                  arrest in order to get a search warrant beuase in the
                  mean time the D can remove the items from the

ii. US v. Robinson
       1. Defendant was pulled over by a police officer. The officer
           had probable cause to arrest defendant for driving after his
           license had been revoked.
       2. The officer then searched defendant and felt an object
           under defendant's coat. The officer reached into the coat
           and pulled out a cigarette package. The officer felt there
           was something in the package that was not cigarettes.
       3. The officer opened the package and found what was later
           determined to be heroin.
               a. finding a police officer was clearly authorized to
                   reach into defendant's coat as part of his search
                   because the officer had probable cause to arrest
                   defendant. Once probable cause to arrest defendant
                         was established, a full search incident to that arrest
                         was authorized in order to protect the officer's
                         safety and to preserve evidence.

c. Arrest of Automobile Occupants
       i. New York v. Belton
              1. Defendant was a passenger in an automobile that sped by a
                 police officer at a fast rate.
              2. Officer stopped the car and smelled marihuana and saw an
                 envelope on the car's floor that was marked with a name for
              3. He told them to get out and searched them
              4. He opened the envelope and found mariihuana.& found
                 jacket in the vehicle and found cocaine.
              Lower courts
              5. In defendant's subsequent drug prosecution, the trial court
                 denied his motion to suppress the items seized in the search
                 of the vehicle. However, the final state appellate court
                 reversed, holding that the search of the jacket was not
                 incident to defendant's arrest.
              6. Holding
                     a. The Court reversed the judgment of the lower state
                         court and held that items seized in the warrantless
                         search of a passenger compartment of a vehicle,
                         incident to a lawful custodial arrest, were lawfully
                         seized during the exigencies of the situation and
                         such seizure did not violate the safeguards of the
                         Fourth and Fourteenth Amendments of the
              7. he had them out of the car when he arrested them, then he
                 could have search incident to arrest to search the car
              8. he could have looked in their wallets once under arrest and
                 ask to have their pockets turned out
              9. if he had put them under arrest while they were in the car
                 then he could have searched the car since it was in their
                 lunge space but the court here used an as good as reasoning
                 to allow the same even though they were arrested outside
                 and not near the lunge space

d. Pretextual Stops and Arrests
       i. Whren
              1. Facts
                      a. Under cover cops were patrolling "high drug area"
                         in an unmarked car. An officer who had observed
                                   traffic violations approached a vehicle that was
                                   occupied by defendants.
                                b. When the officer approached defendant driver's car
                                   window, he observed two large plastic bags of what
                                   appeared to be crack cocaine in defendant
                                   passenger's hands.
                                c. Defendants were arrested and illegal drugs were
                                   retrieved from the vehicle.
                                d. On appeal, defendants accepted that the officer had
                                   probable cause to believe the traffic code was
                                   violated, but argued that the test for traffic stops
                                   should have been whether a police officer, who
                                   acted reasonably, would have made stop for the
                                   given reason.
                                e. Court disagreed because the officer's motive did not
                                   apply outside the context of inventory search or
                                   administrative inspection, and performance of
                                   balancing analysis was unnecessary where probable
                                   cause existed and a traffic stop out of uniform did
                                   not remotely qualify as an extreme practice
                          2. Holding
                                a. Judgment affirmed; officer's probable cause to
                                   believe petitioners violated traffic code rendered the
                                   vehicle stop reasonable and the evidence seized

The Terry Doctrine
Terry v. Ohio
    Officer McFadden while patrolling area in plain clothes noticed two men standing
       in a corner for a long time, they kept on walking down the street looking in a store
       window and going back to the corner again about 12 times. A third man
       approached them talked and then after he left they followed him.
    Officer approached them and identified himself as an officer and asked for their
       names but they mumbled. Offer spun Terry around and patted the outside of his
       coat for weapons, when he felt the gun, he ordered them into the store removed
       Terry’s coat got the gun, then patted the other men finding a gun on one but not
       the other. Officer said that based on his year of experience these men initially
       looked suspicious in casing the store.

    Officer was warranted in believing that D was armed and presented a threat and
      The search and seizure were reasonable since he only did was what minimally
       necessary to determine if he had a weapon ie he patted the outside of his coat until
       he felt a weapon and then removed the coat to get the gun

      Where officer has a reason to believe that he is dealing with an armed and
       dangerolus individual, regardless of whether he has probable cause to arrest the
       individual for a crime, he can make a reasonable search for weapons for his
      He doesn’t need to be absolutely certain that the individual is armed
      The issue is whether a reasonably prudent man in the circumstances would be
       warranted in believing that his safety or that of others is in danger
      Whether officer acted reasonably under the circumstances depends on his
       specific reasonable inference drawn on the facts in light of his experience

Terry Seizures v. De Facto Arrests
Dunaway v. NY
     A few weeks after the owner of a pizza parlor was killed, Police got a tip from an
       inmate about the burgler, although there wasn’t enough information for a warrant.
       Police went to D’s neighbors home and brought him to the police station although
       he was never told he was under arrest however they would have restrained him if
       he had tried to leave. He was questioned by officers and thus incriminated himself
       in the crime.
     Police may not subject a suspect to custodial interrogation unless they have
       probable cause to believe that t crime has been committted
     Officers violated 4th Amendment when w/o probable cause they seized D and
       took him to the police station for interrogation
Seizures v. non- Seizure encounters
US v. Mendenhall
     DEA agents saw D getting out of plane from LA, and they determined that she
       had characteristics of a person who unlawfully carried narcotics. Agents identified
       themselves and stopped her asked her for ID and her ticket. Her ticket wasn’t in
       her name so they asked her to go into their offices , she did w/o protest and she
       consented to a search of her person and bag . She had 2 bags of heroin in her
     A person has been seized when in light of the circumstances a reasonable person
       would have believed that she was no longer free to leave
     Whether consent is given freely rather than a product of duress or coercion ,
       should be determined by totality of circumstances and it’s the Govn’t burden of
      Intitial contact at the airport wasn’t an unlawful seizure, but taking her to the
       DEA office taking in account all the circumstances, her age, race, education , no
       seizure of D occurred. There weren’t any threats or any force , they asked her if
       she would accompany them to the office and she agreed

Florida v. Bostick
     Police boarded a bus in Fort Lauderdale. Randomly w/o suspicion picked out the
       D and asked to inspect his ticket. They told Bostwick they were narcotics agents
       looking for illegal drugs, and asked him to search his luggage, he consented even
       though they told him he had the right to refuse. They found cocaine in this
     Police search of buses randomly for evidence of criminal activity doesn’t always
       constitute a seizure w/I the 4th. Its also not an unreasonable restraint on the
       individuals freedom to leave.
            o Q should be: whether a reasonable person would feel free to say no to the
               officers request
            o The cramped confines of a bus are merely on relevant facto of considering
               passerngers consent
     No seizure occurs when police ask questions of individual, or ask to examine ID
       and request consent to search luggage – as long as the officers don’t convey a
       message that compliance with their request is mandatory
     Here they didn’t point a gun at him or threaten him they did tell him he could
       refuse consent

California v. Hodari
    Officers were patrolling a high crime area as they saw 4-5 youth around a car as
       their car approached the kids panicked and each ran in different directions. Police
       caught up to Hodari as they approached him he threw away what was later
       discovered to be crack coaine, he then was tackled and arrested.

     When police show authority as to the application of physical force, can a seizure
       occur even if the suspect doesn’t yield?

    Arrest requires either physical force or where that is absent , need submission to
      the assertion of authority
          o Doesn’t apply when police yell “stop in the name of the law”
      Polices’s pursuit constituted a show of authority telling Hodari to stop, since
       Hodari didn’t comply he wasn’t seized until he was tackled
      The cocaine abandoned while he was running was not a fruit of seizure
      No, an arrest requires either physical force ( laying hands / application of
       physical force to restrain movement , even when its unsuccessful.
      To yell out “stop in the name of the law” at a fleeing person who continues to flee
       is not a seizure

    This could have been destruction of property , once he threw it away there was no
       expectation of privacy of discarded property
Massiah v. US
    Massiah was indicted for drug charges .
    After retaining lawyer and pleading not guilty he was released on bail
    A few days later Colson a co-D agreed to cooperate with govnt agents who
       installed ad radio transmitter in his car.
    Listening to a conversation between Colson and Massiah agents overheard
       Massiah making incriminating statements about the crimes which he was charged
    Based on this the jury convicted him and the CT of appeals affirmed

      D argued that his 5th and 6th amendment rights were violated because by using the
       device the govnt agents elicited incriminating statements from him after
       indictment and w/o the presence of his attorney

    D was denied the guarantees of the 6th amendment because his own incriminating
      statements were used in trial which agents had deliberately eleicted from him after
      indictment and w/o his attorney so the prosecution could not constitutionally use
      these statements as evidence against him at trial
    Court said that the protection applies to indirect interrogations like the one in this
      case and the fact that D didn’t even know that he was being interrogated by govnt
      agents is even more of a serious intrusion on his rights
    Colson was acting as a govnt agent he wasn’t acting on his own

   Dissent White; Clark, Harlan
       He wasn’t coerced his statements were voluntary he wasn’t in jail but in the
          presence of his friend and he could not expect that his conversations wouldn’t
          be reported to the police
       If Colson on his own had recorded the statements or just reported his
          conversation w/ D , his testimony would have been admissible at trial as
          would have the recording

Brewer v. Williams
      A 10 year old girl was at the local YMCA watching her brothers wrestling match
       she went to the bathroom and never returned
      Williams who had recently escaped from a mental hospital was seen carrying
       some clothes and a bundle out to his car by a 14 year old boy who helped him put
       the bundle in the car and noticed legs sticking out of it
      Later the police found D’s car abandoned and issued a warrant for his arrest
      D spoke to his lawyer in Des Moines and also spoke an attorney at the Davenport
       police station where he was being held. Both lawyer instructed him not to make
       any statements to the police until he was transferred to Des Moines. The
       attorney’s also instructed the police not to interrogate him under any
       circumstances and they agreed
      After he was arraigned he spoke with his Davenport attorney who again told him
       not to make any statements
      Detective leaming also told D that he was aware of both of his attorneys
      During their trip to Des Moines the D told the two officers that he would tell them
       the entire story when they got there
      In conversation Leaming referred to the D as Reverand and told him that the girl
       deserved a proper Christian burial and that the should stop to locate the girl before
       getting to their destination
      He lead the police to the girls body and was indicted for 1st degree murder
      Before trial Defense motioned to suppress the statements made during the ride
      Trial court denied the motion
           o Stating that even though the statements were elicited from Williams
               during a critical stage in the proceeding requiring the presence of counsel,
               that he waived his right to counsel during the time that he made the
      Jury found D guilty of murder and Iowa Supreme court affirmed
    The right to counsel granted by the 6th Amendment and 14th Amendment means
      that person is entitled to the help of a lawyer at or after the time that a judicial
      proceeding has been initiated against him.
          o Judicial proceeding: formal charge, preliminary hearing, indictment,
              information or arraignment

    Judicial proceeding had been initiated when he was arraigned in Davenport and
      there can be no doubt that Detective Leaming had deliberately elicited info from
      D , he knew D was represented by 2 attorneys
    The fact that he elicited the statements in a sneaky manner is irrelevant

    Crt held that the Iowa Supreme court applied the wrong constitutional standard
     by concluding that based on the totality of the circumstances D had waived his
     right to counsel
      Instead the question of waiver is a matter of federal consitutuional law that the
       state must prove an intentional relinquishment or abandonment of a known right
       or privilege
            o The right to counsel doesn’t depend on D requesting one, crts prefer to
               apply a reasonable presumption against waiver – this applies when at trial
               or at a critical stage of pretrial proceedings
      Waiver doen’st just requires comprehension by relinquishment
      Its clear based on the statmetns in the car that stating that he would tell them the
       entire story after reaching Des Moines that he did not want to be interrogated until
       his attorney was present and even before then the fact that he had retained 2
       attorneys who made it clear to both the D and the police that interrogation was
       not to take place – this it shows that he has effectively asserted his right to counsel

Michigan v. Jackson
    D was convicted for conspiracy to commit murder and for the murder of his wife
    However before his conviction he was arrested on an unrelated charge and during
       police questioning before his arraignment he made 6 incriminating statements
       after he had been advised of his Miranda rights and agreed to make statements
       w/o his attorney
    During arraignment he asked the court for an attorney
    After arraignment and after D had an opportunity to consult with his attorney the
       same officers obtained statements from the D to confirm that he was the same
       person who had shot his wife

      State argued that the Edwards case should not apply here since it concerned 5th
       amendment issues and its relevance to 6th issue is unclear
           o Argues that just because he asked for counsel during arraignment doesn’t
               mean that he intended to have one after that as well
                    Crt said there is a strong presumption against waiver of
                      constitutional rights and any doubts must be resolved in favor of
                      protecting those rights
           o Argued that state didn’t know that D had requested an attorney during
                    Crt said 6th amendment principles are imputed from one state actor
                      to another ( from the court to the police )
           o Argued the D waived his right to counsel by signing post arraignment
                    Crt said after suspect has requested counsel any advice of rights
                      and police intitiated questioning is not considered a valid waiver

    In Edwards v. Arizona ct held that person in custody who has expressed his desire
      to deal w/ police only through his counsel should not be further interrogated until
       counsel has been made available to him – unless the accused initiates further
       communication w/ the police
      5th amendment protection against compelled self –incrimination provides the right
       to counsel at the custodial interrogation
      6th Amendment guarantee of the assistance of counsel also provides the right to
       counsel at post-arraignment interrogations
           o the arraignment signals the inititation of adversary judicial proceeding and
              thus the attachment of the 6th amendment
           o after this govnt efforts to elicit information from the accused including
              interrogation, represent critical stages at which the 6th Amendment applies

     Whether the same rule applies in the 6th amendment context: when a person has
       been formally charged with a crime and has requested counsel for his arraignment
     Did D validly waive his right to counsel at the post arraignment custodial

    When a formal accusation has been made against a person, that person who was
      just a suspecft is now accused and the constitutional right to counsel becomes
      even more important and the state can not use means to elicit information from
      the D that they may have been able to do during an investigatory stage

Mc Neil v. Wisconsin
     Whether D’s invoking of his 6th amendment right to counsel during a judicial
       proceeding constituted an invocation of his Miranda right to counsel with repect
       to a crime which he wasn’t charged with
     The 6th right to counsel is offense specific [ and it doesn’t attach until the
       adversary proceedings are brought against the D and] it doesn’t apply to other
       crimes which the accused has not yet been charged for
            o In other words Just because D invoked his 6th right to counsel for the West
                Allis Crime doen’st mean that he invoked his 5th right to counsel for the
                Caldenia crime
     Court also stated that contrary to the D’s argument the 6th and 5th rights can’ be
       combined to say that D’s voluntary waiver of Miranda rights of the Caledonea
       crimes were ineffective because he invoked his 6th right to counsel as to the west
       allis crime

   D relies on this 5th right
    Under Edwards v Arizona once D asserted his 5th right to counsel the police had
      to cease all interrogation of the D until his counsel was made avaialbe to him
      But the Edwards rule is not offense specific: once a suspect invokes Miranda to
       counsel for interrogation regarding one offense he may not be reaproached
       regarding any offense unless counsel is present

    The opinion demeans the importance of the right to counsel the court seems to
       imply that the role of defense counsel hinders justice
    Developing an offense specific limitation on attorney client relationship
       undermines the protections afforded by the adversarial system