Crimprooutline G

CRIMINAL PROCEDURE I
Epps/ Kamisar & LaFave, 8th Edition
Key: Small caps indicates the cases that were anchors during class discussions
TABLE OF CONTENTS
I. An Overview of the Criminal Justice Process................................................................................................. 1
A. Due Process Model of Criminal Justice............................................................................................ 1
B. Crime Control Model of Criminal Justice......................................................................................... 1
II. Nature & Scope of the 14th Amendment Due Process................................................................................. 1

A. Incorporation Theories.................................................................................................................... 1
B. The Problem of Bodily Extractions: Due Process and Selective Incorporation ................................ 1
C. Federal Supervisory Power Over Administration of Federal Criminal Justice.................................... 1
III. 4th Amendment: Arrest, Search & Seizure.................................................................................................. 3

C. The Exclusionary Rule..................................................................................................................... 3
D. The Fruit of the Poisonous Tree....................................................................................................... 5
E. New Federalism............................................................................................................................... 5
F. Protected Areas and Interests........................................................................................................... 5
G. What May be Seized?...................................................................................................................... 8
H. The Requirement of Probable Cause................................................................................................ 9
12. Requirements of Search Warrant....................................................................................... 12
I. Warrantless Arrests and Searches of the Person................................................................................ 13
6. Searches Incident to Arrest.................................................................................................. 15
7. Other Searches of Premises................................................................................................. 17
8. Auto Searches..................................................................................................................... 19
9. Inventory Searches.............................................................................................................. 20
10. Intrusions on Less than Probable Cause (Stop & Frisk)..................................................... 21
11. Consent Searches.............................................................................................................. 22
IV. Police Interrogations and Confessions (5th A)............................................................................................ 23

A. Introduction to Police Interrogation................................................................................................ 23
B. Due Process Voluntariness.............................................................................................................. 23
3. Right to Counsel and Accusatorial, Adversary Trial............................................................. 24
4. The Court Closes in on the Confession Problem.................................................................. 24
C. Miranda and the Fifth Amendment Privilege Against Self-Incrimination......................................... 25
D. Custodial Interrogation and Exceptions.......................................................................................... 25
a. custody v. focus................................................................................................................... 25
b. what constitutes custody or custodial interrogation.............................................................. 26
c. what constitutes interrogation w/in meaning of Miranda..................................................... 26
d. custodial interrogation & booking question exception to Miranda....................................... 26
e. public safety exception......................................................................................................... 27
E. Invocation & Waiver of Rights........................................................................................................ 28
2. qualified waiver................................................................................................................... 28
4. resumption of questioning following exercise of rights......................................................... 28
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F. Evolution of Interrogation Rules...................................................................................................... 31
3. The jail plant situation; surreptitious interrogation............................................................... 31
4. Incriminating statements taken after 6th Amend right to counsel has attached...................... 31
G. Due Process "Voluntariness" Test Revisited.................................................................................... 32
V. Pre-Trial Identification Procedures.............................................................................................................. 33

A. Eyewitness Identifications............................................................................................................... 33
4. The Meaning of Lineup Decisions....................................................................................... 34
B. Photo Identifications....................................................................................................................... 34
C. Due Process Limitations................................................................................................................. 34
VI. The Scope of the Exclusionary Rule.......................................................................................................... 35

A. Fruit of the Poisonous Tree............................................................................................................. 35
4. verbal evidence as fruit of illegal search and seizure............................................................. 35
5. confession as the fruit of an illegal arrest.............................................................................. 36
6. identification of a person as a fruit of an illegal arrest........................................................... 36
7. confession as a fruit of a Payton violation............................................................................ 36
8. a warrant search as the fruit of an illegal entry & occupation of the premises....................... 36
9. the tainted witness............................................................................................................... 36
11. inevitable discovery doctrine.............................................................................................. 36
B. Standing to Object to the Admission of Evidence............................................................................ 37
Criminal Procedure Page ii

TABLE OF CASES
*Aguilar v. TX...................................................................................................................................................9
*Andreson v. MD...............................................................................................................................................8
*Arizona v. Mauro...........................................................................................................................................26
*Arizona v. Roberson.......................................................................................................................................29
*Arizona v. Hicks.............................................................................................................................................17
*Beckwith v. U.S.............................................................................................................................................25
*Berkemer v. McCarthy...................................................................................................................................26
*Brewer v. Williams (Williams I)......................................................................................................................27
*Brooks v. U.S.................................................................................................................................................11
*Brown v. U.S..................................................................................................................................................11
*Burdeau v. McDowell......................................................................................................................................4
*CA v. Acevedo...............................................................................................................................................20
*CA v. Carney..................................................................................................................................................20
*CA v. Greenwood.............................................................................................................................................6
*CA v. Hodari....................................................................................................................................................7
*Chimel v. CA..................................................................................................................................................16
*Colorado v. Bertine........................................................................................................................................21
*Colorado v. Connelly......................................................................................................................................33
*Connecticut v. Barrett....................................................................................................................................28
*Crooker v. CA................................................................................................................................................24
*Dow Chemical Co. v. U.S................................................................................................................................6
*Draper v. U.S...................................................................................................................................................9
*Edwards v. Arizona........................................................................................................................................28
*Escobedo v. U.S.............................................................................................................................................24
*Fare v. Michael C...........................................................................................................................................28
*Florida v. Bostick.............................................................................................................................................7
*Florida v. Riley.................................................................................................................................................6
*Franks v. Delaware.........................................................................................................................................10
*Gerstein v. Pugh.............................................................................................................................................14
*Gouled v. U.S...................................................................................................................................................8
*Illinois v. Gates...............................................................................................................................................10
*Illinois v. Lafayette...................................................................................................................................15, 20
*Illinois v. Perkins............................................................................................................................................31
*Katz v. U.S.......................................................................................................................................................5
*Kirby v. Illinois...............................................................................................................................................28
*Kuhlman v. Wilson..........................................................................................................................................32
*Maine v. Moulton...........................................................................................................................................31
*Mallory v. U.S................................................................................................................................................23
*Manson v. Brathwaite.....................................................................................................................................34
*Mapp v. Ohio...................................................................................................................................................3
*Mass. v. Upton...............................................................................................................................................10
*Massiah v. U.S...............................................................................................................................................24
*McCray v. Illinois...........................................................................................................................................11
*McNabb v. U.S...............................................................................................................................................23
*MD v. Buie.....................................................................................................................................................17
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*Michigan v. Long........................................................................................................................................5, 22
*Michigan v. Mosely........................................................................................................................................28
*Miller v. Fenton..............................................................................................................................................32
*Minnick v. Mississippi....................................................................................................................................29
*Miranda v. Arizona.........................................................................................................................................25
*Moran v. Burbine...........................................................................................................................................30
*New York v. Quarles......................................................................................................................................27
*Nix v. Williams (Williams II)...........................................................................................................................36
*NY v. Belton..................................................................................................................................................16
*Oliver v. U.S....................................................................................................................................................6
*Oregon v. Bradshaw.......................................................................................................................................30
*Oregon v. Elstad.............................................................................................................................................36
*PA v. Muniz....................................................................................................................................................26
*Patterson v. Illinois.........................................................................................................................................30
*Payton v. NY..................................................................................................................................................14
*Rawlings v. Kentucky.....................................................................................................................................16
*Rhode Island v. Innis......................................................................................................................................26
*Rochin v. CA....................................................................................................................................................1
*Schmerber v. California..................................................................................................................................15
*Schneckloth v. Bustamonte.............................................................................................................................22
*Segura v. U.S.................................................................................................................................................18
*Spinelli v. U.S...................................................................................................................................................9
*Steagald v. U.S...............................................................................................................................................19
*Stone v. Powell...............................................................................................................................................31
*Stovall v. Denno.............................................................................................................................................34
*Terry v. Ohio..................................................................................................................................................21
*U.S. v. Ash.....................................................................................................................................................34
*U.S. v. Cortez.................................................................................................................................................21
*U.S. v. Edwards.............................................................................................................................................15
*U.S. v. Leon.....................................................................................................................................................3
*U.S. v. Place.....................................................................................................................................................7
*U.S. v. Robinson............................................................................................................................................15
*U.S. v. Wade..................................................................................................................................................33
*U.S. v. Watson................................................................................................................................................13
*United States v. Henry....................................................................................................................................32
*Vale v. Louisiana............................................................................................................................................17
*Warden v. Hayden..........................................................................................................................................18
*Weeks v. U.S....................................................................................................................................................3
*Withrow v. Williams.......................................................................................................................................31
*Wolf v. Colorado..............................................................................................................................................3
*Wong Sun v. U.S..............................................................................................................................................5
*Zurcher v. Stanford Daily.................................................................................................................................8
Criminal Procedure Page iv

OUTLINE
I. An Overview of the Criminal Justice ProcessI 1

A. Due Process Model of Criminal JusticeA
1. goal: protection of individual rights and autonomy
2. focus: individual, how their rights are protected
3. adversarial
B. Crime Control Model of Criminal JusticeB
1. goal: efficient, quick, rational crime solving
2. focus: law enforcement and its successes
3. managerial, administrative
II. Nature & Scope of the 14th Amendment Due ProcessII 36-39
A. Incorporation TheoriesA
1. Total incorporation (never commanded a majority of the Supreme Court
a. argument that the 14th Amendment made all 10 amendments apply to states exactly as
they do to the states
2. Selective Incorporation (this is the majority view)
a. only some of the first 8 apply
3. 14th Amendment has its own meaning
a. that it is something separate from the Bill of Rights
B. The Problem of Bodily Extractions: Due Process and Selective Incorporation B
1. Rochin v. CA, 342 U.S. 165 (1952) NOTE CASE 43
a. Rochin was apprehended in his home. Feds broke down the door, entered his
bedroom. 2 capsules were on the night table, which Rochin promptly swallowed. Feds
handcuffed him and forced him to have his stomach pumped. The capsules contained
morphine, and Rochin was convicted.
b. H: this police conduct violated 14th Amendment due process
c. Test: coerced confessions (like this) offend the community's sense of fair play and
decency
d. BLACK concurrence:
(1) 5th Amendment's protection against compelled self-incrimination applied to
the states
(2) a person is compelled to be a witness against himself not only when he is
compelled to testify by also when, as here, incriminating evidence is forcibly
taken from him by a contrivance of modern science
e. DOUGLAS concurrence:
(1) words taken from an accused's lips, capsules taken from his stomach, blood
taken from his veins are all inadmissible provided they are taken from him
without his consent
C. Federal Supervisory Power Over Administration of Federal Criminal JusticeC
1. derives its power from "right" and "wrong"
2. applies to federal courts only
3. derive from Supreme Court
Criminal Procedure Page 1

4. regulates the conduct of trials
5. one more place for defendant to get remedy/relief
III. 4th Amendment: Arrest, Search & SeizureIII

A. Search cases --> privacy interests
B. Seizure cases --> possessory interests
C. The Exclusionary RuleC 128
1. Scope of analysis: what should be the remedy?
a. exclusion of evidence from the trial against you
b. reparation for damages caused (knocking in your door, damaging your things)
c. punishment of agents
d. the case dropped completely
2. Weeks v. U.S. 232 U.S. 383 (1914) (cited in the Wolf decision)
a. H: in a federal prosecution, the 4th Amendment barred the use of evidence secured
through an illegal search and seizure
b. decision was a matter of judicial implication
3. Wolf v. Colorado, 338 U.S. 25 (1949) 128
a. State court convicted an individual of a state offense, suing evidence obtained by an
illegal search
b. H: The state court is not required to adhere to the Weeks rule. Evidence that was
obtained by an illegal search is admissible in a state court against a state defendant.
c. R: It is not for this Court to condemn as falling below minimal standards assured by
the D.P. clause a state's reliance upon other methods, which, if consistently enforced
would be equally effective
d. Key: why should one remedy alone be elevated to constitutional status and made
mandatory on the states
4. Mapp v. Ohio, 367 U.S. 643 (1961) 130
a. Police broke into an apartment, w/o a search warrant and found materials for which
Mapp was later convicted
b. H: Reversed Wolf. All evidence obtained by searches and seizures in violation of the
Constit'n is by the 4th A inadmissible in a state court
c. R: 4th A right of privacy is enforceable against the states by the 14th A by the same
sanction of exclusion as is used against the Feds. (seems to suggest that the 4th A creates
a right of privacy)
d. purpose of exclusionary rule is to deter bad police conduct
e. Therefore, finds the exclusionary rule to be part of the Constitution
5. U.S. V. LEON, 468 U.S. 897 (1984) 135
a. Search warrant was later found not to be based on probable cause. Prisoner sued
based on 4th A violation
b. I: Whether the 4th A exclusionary rule should be modified to allow evidence obtained
by a search warrant which was later found not to have probable cause
c. H: The officer's reliance on the magistrate's determination of probable cause was
objectively reasonable, and the application of the extreme sanction of exclusion is
inappropriate.

d. Test: weigh the costs and benefits of preventing the use in the prosecution's case-in-
chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant
issued by a detached and neutral magistrate that ultimately is found to be defective.
e. Exclusionary rule was designed to punish police misconduct, not errors of judges and
magistrates
f. No per se rule of exclusion
g. Derivation of Exclusionary Rule: NOT Constitutionally Required
(1) remedy justified by deterrence value
(2) THUS, it's not a constitutional right
h. Exceptions to this holding (it doesn't apply when . . . )
(1) when the reliance on the warrant is unreasonable
(2) when the magistrate was misled
(3) when magistrate abandoned his rule
(4) magistrate had unreasonable belief in probable cause
(5) warrant is so bad that executing officers don't know what should be searched
i. Mapp said the excl. rule came from the Constitut'n, but Leon says it's a judge-made
remedy
(1) Mapp not actually overruled
(2) Instead, Good faith exception: suppression is not required where officer
acted in good faith
Leon: Mapp:
* Rule is NOT * Rule is constitutionally derived
Const'nlly derived * THUS, fully enforceable against the
* So, where it states, whether or not in a given case it
cannot deter, it is deters
not required
6. Burdeau v. McDowell, 256 U.S. 465 (1921) NOTE CASE 155

a. declined to exclude evidence in a criminal case when it was obtained by private
persons
b. BUT, contrary result if private person is acting on behalf of police
7. Illinois v. Krull, 480 U.S. 340 (1987) NOTE CASE 151
a. extends the good faith exception to searches based on statutes later held
unconstitutional
D. The Fruit of the Poisonous TreeD 806-808

1. Historical Background and Overview
a. U.S. v. Caceres, 440 U.S. 741 (1979) 152
(1) Should the fruits of constitutional but yet illegal arrests and searches be
excluded
(2) H: No. The failure of an IRS agent to follow IRS electronic surveillance
regulations did not require suppression

b. Wong Sun v. U.S., 371 U.S. 471 (1963) NOTE CASE 807
(1) H: verbal evidence can also be a fruit of illegal search and seizure, and thus
excludable
(2) Police here, however, were able to purge the taint of the arrest by allowing
Wong Sun to leave on his own recognizance, and return later to give his
confession
c. Principle of Fruits of Poisonous Tree
(1) if you can link the illegality, then sometimes the evidence subjection to
dispute may not be problematic on its own
(a) just linked to a problematic process
d. See supra at on p. 32 for more discussion of the fruits of the poisonous tree analysis
E. New FederalismE in Crim Pro and New Limits on State Rights Protections 57
1. This is where almost all of Criminal Procedure is being practiced
2. Raised recognition that states can interpret state constitutions without interference by
the Supreme Court
3. Michigan v. Long, 463 U.S. 1032 (1983) NOTE CASE 61
a. key: if interpreting your own state constitutional provision, do so loudly and clearly, or
we (S.Ct) will presume you are interpreting the Fed Constitution (and S.Ct. will correct
you)
F. Protected Areas and InterestsF 161
1. KATZ V. U.S., 389 U.S. 347 (1967) 161
a. Personal Phone Conversations Protected
b. Fed agents bugged phone w/o a search warrant and used Katz's conversation as
evidence. Was convicted of transmitting wagering info by phone from LA to Miami and
Boston.
c. I: Did the eavesdropping violate Katz's rights when he had used a public phone booth;
whether search/ seizure conducted complied with the Constitution
d. H: Yes. No. The eavesdropping violated his privacy upon which he had
justifiably relied while using the phone booth and THUS was a search/ seizure
under the 4th A. Failing to get the search warrant prior to bugging phone violated
4th A.
e. 4th A's applicability turns on the concept of privacy
f. What one seeks to preserve as private, even in public accessible area, may be
constitutionally protected
g. std: what you voluntarily expose to the public is not protected
2. CA V. GREENWOOD, 486 U.S. 35 (1988) 165

a. Garbage NOT protected
b. Police ordered trash collectors to deliver Greenwoods' trash to police. Searched it
and found drugs. Used as basis for requires for search warrant.
c. H: Having deposited their garbage in an area particularly suited for public inspection
for the express purpose of having strangers take it, Greenwood could have had no
reasonable expectation of privacy in those items
d. 4th A only applies where:

(1) the citizen has manifested a subjective expectation of privacy
(2) the expectation of privacy is one that society (through the Court) accepts as
objectively reasonable
e. Here, however, Greenwoods put trash in an opaque bag -- sought to keep it private
f. Court found that it was "exposed" (no requirement of "knowing exposure")
(1) then, decided that this was not the type of thing we want protected
g. Could be equivalent to video rental records (b/c voluntarily exposed to a 3d party)
3. OLIVER V. U.S., 466 U.S. 170 (1984) NOTE CASE 170
a. Open Fields NOT protected
b. H: Open fields doctrine was not overruled by Katz
c. Open Fields Doctrine: police entry and examination of a field is free of 4th A restraints
(1) consistent with respect for reasonable expectations of privacy
(2) activities that society deems private generally do not happen in an open field
(thus, not protected)
d. Curtilage (the land immediately surrounding and associated with the home) IS
PROTECTED
e. No societal interest in protecting open fields
f. 4th A only protects people, houses, paper and effects
4. Florida v. Riley, 488 U.S. 445 (1989) NOTE CASE 171
a. Avoiding naked-eye view from air NOT a protected interest
b. surveillance by helicopter 400 feet above greenhouse
c. Whether the surveillance of the interior of a partially covered greenhouse in a
residential backyard from the sky constitutes a "search" requiring a warrant
d. H: No. No search because anyone in that position can legally fly that low and see
what the officer's saw with their naked eyes
e. O'Connor concurrence: Here, Riley's expectation of privacy from naked-eye aerial
observation was unreasonable
5. Dow Chemical Co. v. U.S., 476 U.S. 227 (1986) NOTE CASE 177
a. $22K camera with magnification
b. H: Aerial photos of a chemical company's industrial complex was not a 4th A search
c. No search b/c photos were not so revealing of intimate details as to raise
constitutional concerns
d. This 2000 acres not analogous to curtilage of a dwelling for purposes of electronic
surveillance
6. U.S. v. Place, 462 U.S. 696 (1983) NOTE CASE 174

a. Subjecting Luggage to drug-dog's sniff is not a search
b. Temporary seizure of luggage at an airport so that it could be brought into contact
with a drug detection dog
c. H: This course of investigation did not constitute a search w/in 4th A meaning
d. No search b/c not an intrusion into the individual's personal effects
7. Police Action Short of a Seizure (Stop & Frisk Cases)
a. Difference between Search Warrant and Subpoena Duces Tecum (Production
Subpoena)
(1) see p. 12 of Notes for this discussion

(2) Search Warrant
(a) issued by a judge
(b) presumption that search warrant is valid (b/c gotten from a judge)
(c) can't dispute until charges are actually filed
(3) SDT issued by law enforcement
(a) could file a motion to quash immediately upon receipt
b. When have you been seized
(1) standard: free to disregard police requests or otherwise terminate the
encounter
c. Florida v. Bostick, 501 U.S. 429 (1991) NOTE CASE 315
(1) Searching bags on a bus with owner's "consent" not a 4th A search
(2) Bus passenger was singled out by police and asked for id. Then asked for his
consent to search his bags (found drugs)
(3) Whether a reasonable person would have felt free to decline the officers'
requests or otherwise terminate the encounter
(4) H: Yes. Δ's feeling of confinement was restricted by a factor
independent of police conduct (ie., by his being a passenger on a bus). No
4th A seizure here.
(5) Refusal to cooperate, w/o more, does not furnish the minimal level of
objective justification needed for a detention or a seizure
(6) *** The encounter will not trigger 4th A scrutiny unless it loses its
consensual nature ***
d. CA v. Hodari, 499 U.S. 621 (1991) NOTE CASE 318
(1) Fleeing suspect drops crack vial. Officer had not touched suspect. Crack
vial used against suspect; convicted.
(2) Does a seizure occur when police shows authority even though subject does
not yield
(3) H: No. An arrest requires either physical force or submission to the assertion
of authority. Neither was present here.
G. What May be Seized?G

1. Gouled v. U.S., 255 U.S. 298 (1921) NOTE CASE 178
a. H: search warrants may not be used as a means of gaining access to a man's house or
office and papers solely for the purpose of making search to secure evidence to be used
against him in a criminal or penal proceeding.
2. ANDRESON V. MD, 427 U.S. 463 (1976) 179
a. Search warrant obtained to search Δ's law office and corp offices for business
documents related to fraudulent land sale. Docs were found and seized. Conviction
resulted from their use at trial
b. I: Whether the seizure of those business records, and their admission into evidence at
his trial, compelled Δ to testify against himself in violation of the 5th A

c. H: No. The statements seized were voluntarily committed to paper before the police
arrived to search for them, and Δ was not treated discourteously during the search
d. When the individual against whom the search is directed is not requested to aid
in the discovery, production or authentication of incriminating evidence, there will
be no 5th A infringement
e. Court says:
(1) this was testimonial (documents represented Δ's thoughts)
(2) there was no compulsion (b/c not required to do anything except get out of
the way)
f. have 5th A protection against a subpoena, but NOT against a search warrant.
3. ZURCHER V. STANFORD DAILY, 436 U.S. 547 (1978) 181
a. 9 officers were injured during a demonstration. 2 days later, the Daily carried articles
and photos of the event. Search warranted was obtained to search newspaper officers
for the negatives (b/c it was likely that the photographer had photographed the
attackers)
b. Whether a search warrant is properly issued to search newspaper offices when the
neither newspaper nor reporters were potential suspects (THUS, should they have
gotten a subpoena duces tecum instead)
c. H: Yes. The 4th A does not impose a general constitutional barrier against warrants to
search newspaper premises, nor does it demand prior notice and hearing in connection
with issuance of search warrants
d. Under existing law, valid warrants may be issued to search any property,
whether or not occupied by a 3d party, at which there is probable cause to believe
that fruits instrumentalities or evidence of a crime will be found.
e. law enforcement does not want to risk:
(1) materials will be destroyed
(2) that witnesses will lie about their non-existence
f. w/ search warrant, can look anywhere the files might be
4. Thus,
a. what can you search for?.................................................................................anything
b. where can you search?...................................................................................anywhere
H. The Requirement of Probable CauseH

1. Overview
a. if private citizens get info that violates constitutional rights of another and later sell
that information to the police
(1) no state action violating constitution!
b. Standard for probable cause for warrants (p. 206, note 3)
(1) for arrest: there must be a substantial probability that a crime has been
committed and that the person to be arrested committed it
(2) for search: there must be a substantial probability that certain items are the
fruits, instrumentalities or evidence of a crime and that these items are presently
to be found at a certain place
c. How much is enough to establish probable cause

(1) more probable than not?? NO -- THUS, the same facts can be used to
implicate more than one person in a crime that could have been committed by
one of them
(2) "substantial probability" can certainly be less than 50%
(3) Probable cause CAN be satisfied by hearsay (eg. informants, anonymous
callers)
d. Information from informants
(1) doesn't matter what the informant said
(2) only important that officer reported it accurately
(3) McCray (below): "The magistrate is concerned, not with whether the
informant lied, but with whether the affiant is truthful in his recitation of what he
was told."
2. Aguilar v. TX, 378 U.S. 108 (1964) (cited in Spinelli) 187
a. TWO PRONG TEST: application for a search warrant must
(1) Basis of Knowledge Prong: set forth any of the underlying circumstances
necessary to enable the magistrate independently to judge the validity of the
informant's conclusion (detail of the tip)
(2) Veracity Prong: support the officer's-affiant's claim that their informant was
credible or his information is reliable
3. Draper v. U.S., 358 U.S. 307 (1959) (cited in Spinelli) 189
a. where informant told police that accused had gone to Denver the day before, would
return today, with three ounces of heroin. Informant also detailed exactly what the
accused would be wearing.
b. Tip found sufficient as basis for search warrant because informant gave predictive
information about the accused's activities
4. SPINELLI V. U.S., 393 U.S. 410 (1969) 187
a. Spinelli convicted of crossing state lines with intention of bookmaking.
b. Whether a search warrant resting on an informant's tip without any detail of
source/reliability is sufficient to demonstrate probable cause
c. H: NO. The informant's tip, which was corroborated by the FBI's surveillance was not
sufficient to provide the basis for a finding of probable cause b/c the allegation lacked
detail necessary for the magistrate to conclude that the tip was reliable.
d. Probable cause can be satisfied by hearsay
e. In the absence of a statement detailing the manner in which information was gathered,
detail about the accused's criminal activity is required
f. So, the Aguilar test has been slightly modified:
(1) detail can be substituted for the basis of knowledge prong
(2) corroboration can be substituted for the veracity prong
5. ILLINOIS V. GATES, 462 U.S. 213 (1983) 190
a. Police rec'd anonymous letter detailing Gates' future activities in drug trafficking.
Chief of Police decided to pursue letter and investigation corroborated certain elements
of the letter. Upon Gates' arrival, police conducted warranted search of his car and
home. Found drugs
b. Whether the magistrate was justified in finding probable cause where the anonymous
letter did not detail the basis for the knowledge

c. H: Yes, should look at totality of circumstances
d. Decides probable cause with an informant
(1) compare to Leon: says that if you assume that Gates standard for p.c. is not
met, but the officers rely in good faith, there's no remedy
e. Corroboration through other sources of information which reduces the changes of a
reckless or prevaricating tale is sufficient
f. Thus, letter on its own was not enough, but was okay when combined with
independent corroboration
g. Could have a deficiency in one prong that's outweighed by the other prong's strength
6. Mass. v. Upton, 466 U.S. 727 (1984) NOTE CASE 205
a. Police searched Kelleher's motel room and found some of the stolen items searched
for (w/ warrant). Police then received call about Upton's motor home full of the other
stuff. Said Upton purchased these things from Kelleher. Admitted caller was ex-
girlfriend of Upton and wanted to burn him
b. H: Upheld warrant. No one piece of evidence is conclusive, but the pieces fit neatly
together and so viewed, support the determination that there was a fair probability that
contraband or evidence of the crime would be found at Upton's home.
c. tip was corroborated by earlier search warrant that she knew about
7. Franks v. Delaware, 438 U.S. 154 (1978) NOTE CASE 208
a. I: May a Δ challenge an affidavit for search warrant which is sufficient on its face
b. H: Yes. Where the Δ makes a substantial preliminary showing that a false statement
knowingly and intentionally or with reckless disregard for the truth was included by the
affiant, and if the allegedly false statement is necessary to the finding of probable cause,
the 4th A requires a hearing be held at Δ's request
8. McCray v. Illinois, 386 U.S. 300 (1967) NOTE CASE 209
a. Police based arrest and search on informant's tip. Refused to divulge name of
informant at motion to suppress hearing
b. I: Whether accused's right to confront his accuser (6th A) compels law enforcement to
divulge name of informant during a pre-trial hearing (to demonstrate probable cause)
c. H: No. Police officers need not invariably be required to disclose an informant's
identity if the trial judge is convinced that the officer's relied in good faith upon the
credible info supplied by a reliable informant
d. Offense 1: possession (accuser is cop)
e. Offense 2: delivery of contraband to informant (accuser is informant)
(1) w/ offense 1, informant is not a necessary witness
(2) would never know who informant was
(3) Prosecutor decides which charges to try (can eliminate those charges where
informant is the key witness)
9. See Notes p. 14A for discussion of other problems/ remedies regarding the affidavit itself
10. Timing issue: If at a motion to suppress, want to know if probable cause existed when?
a. (w/ a warrant) when magistrate issues warrant
b. (w/o a warrant) immediately before the search
11. Other Sources of Probable Cause 211
a. Victim Witness case
(1) Brown v. U.S., 365 F.2d 976 (1966) NOTE CASE 212

(a) police received radio report of armed robbery at 4:30a.m.. told: look
for heavily built black male driving maroon 1954 Ford. About 5'5"
wearing a brown jacket and cream colored straw hat. Found Mr. Brown:
in 1952 ford, 5'11" wearing blue and only had on a felt hat. Arrested
(b) I: Whether general description given by the victim or witness is
sufficient to justify the arrest of only one person
(c) H: Yes. These discrepancies which can be result of the victim's
excitement or poor visibility or of the suspect's changing clothes, need no
destroy the ascertainment made on the basis of the accurate portion of
the identification, which was by itself enough to constitute probable
cause.
b. Direct observation by police
(1) Brooks v. U.S., 159 A.2d 876 (1960) NOTE CASE 212
(a) Officer observed 2 men, both known to have prior convictions for
larceny. They were carrying a console-type record player in a
commercial area around 6:30. Player was new and still had store tags.
Questioned two men. One claimed was taking it in for repair. Police
pointed out new tags, suspect changed story
(b) H: Acted on probable cause. The probabilities must be measured by
the standards of reasonable, cautious and prudent police officer, not
those of the casual passerby.
c. Information and orders from official channels
12. Requirements of Search Warrant12 (p. 16 Notes)
a. Issuance
(1) warrants must be issued by neutral and detached officials of the court
(2) place to be searched must be identified with particularity
(3) particular description of things to be seized
(a) contraband does not need to be described with particularity
(b) BUT, books and records must be identified with precision
b. Execution
(1) time of day not a constitutional issue (statutory)
(a) probable cause must exist until executed (cannot be a stale warrant)
(2) gaining entry
(a) knock & notice requirement
(b) can only forcibly enter when notice has been given (or when no one is
home) and entrance is not granted
(c) exception: exigent circumstances:
i) eg. bookmaking operation—hear toilets flushing when you
approach
(3) detention and search of persons on premises
(a) can't be searched merely because they are there
(b) no probable cause to search merely b/c of their presence (Ybarra)
(c) can be detained while search is conducted
(4) intensity and duration of search
(a) can look anywhere item might be

(b) BUT ONLY where the item might be
i) eg. looking for tv's, can't look in a file folder
(5) seizure of items not named in the warrant
(a) PLAIN VIEW DOCTRINE: law allows police officers to seize
items in plain view, but only if they are incriminating on their face
(b) components of PVD
i) officer must be lawfully present
ii) item must be incriminating on its face
a) (it must be immediately apparent that evidence is
incriminating)
c. The Preference for Warrants
(1) Strong preference
(2) commonly explained on the ground that it prevents illegal searches
Problem Affect Validity All Evidence Suppressed under Leon?

of Warrant? Suppressed? [Good Faith Excep'n?]
1. Not issued by neutral and Yes Yes Yes
detached person
2. Description of place is wrong Yes Yes ? (Cts not sure)
3. Items not described with Yes Yes ? (depends—"so facially deficient")
particularity
4. Info in warrant is stale Yes Yes Probably not (stale can be forgiven)
5. Unlawful entry No Yes ? (not mentioned in Leon)
6. Unlawful detention of someone No No, as to subject's ? (not mentioned in Leon)
on premise items (target of search)
Yes, as to detainee
7. Plain view violation No No; but items taken "in ?
plain view" will be
suppressed
8. No probable cause Yes Yes depends on good faith
[But "NO" if Leon
jurisdiction]

I. Warrantless Arrests and Searches of the PersonI 227
1. U.S. V. WATSON, 423 U.S. 411 (1976) 227
a. reliable informant told postal inspector that Δ had supplied stolen credit cards and had
agreed to furnish additional cards at their next meeting. Inspector accompanied, and
upon informant's notification that Δ had cards, Inspector arrested Δ w/o a warrant
b. I: Whether warrantless arrest, when condoned by statute as made by postal inspector
violated 4th A
c. H: No. Congress decided that it is not unreasonable under the 4th A for postal
inspectors to arrest w/o a warrant provided they have probable cause to do so
d. When crime is committed in an officer's presence can make a warrantless
misdemeanor or felony arrest either in public or on private property
e. When not in officer's presence, can make a public arrest w/o a warrant only for
felonies
f. left open the question of whether in-home arrests required a warrant (Payton
answered this, see infra, at on p. 13
2. Tennessee v. Garner, 471 U.S. 1 (1985) NOTE CASE 233
a. H: the use of deadly force to arrest a fleeing felon is sometimes unreasonable under
the 4th A
b. stands for the proposition that it's not better to have a felon dead than escaped
(1) can only use deadly force when suspect presents risk/danger to officer or
others
3. Two models of 4th A 226
a. in terms of who we arrest
(1) bright lines
(a) standard: a warrant is always required for every search and seizure
when it is practicable to obtain one
(b) BUT, in order to make the requirement workable,
i) warrant need not be in writing
ii) can be phoned in or radioed into a magistrate (where it will be
taped and the record thus preserved) who will authorize or forbid
the search orally
(2) OR no lines
(a) standard: a search or seizure must be reasonable considering all
relevant factors on a case-by-case basis
(b) if not reasonable, evidence must be excluded
(c) factors considered
i) whether probable cause existed
ii) whether a warrant was obtained
iii) whether exigent circumstances existed
iv) the nature of the intrusion
v) the quantum of evidence possessed by the police
vi) the seriousness of the offense under investigation

4. Gerstein v. Pugh, 420 U.S. 103 (1975) NOTE CASE 235
a. Δ arrested based on probable cause — but w/o a warrant
b. I: Following a warrantless arrest, must a judge review the arrest to determine if indeed
probable cause existed
c. H: Yes. 4th A requires a judicial determination of probable cause as a prerequisite to
extended restraint on liberty following arrest
d. grand jury indictment suffices to meet this standard (ok for it to be sealed)
(1) can eliminate Δs right to Gerstein hearing
(2) then, Δ doesn't learn what government has against Δ
5. PAYTON V. NY, 445 U.S. 573 (1980) (ENTRY CASE, not a search case) 266
a. Payton suspected of murdering gas station attendant. Police go to home w/ intent to
arrest Payton w/o arrest warrant. They break in but he's not home. They find a 30-
caliber steel casing in plain view
b. H: Arrest warrant is required in all circumstances where law enforcement goes into a
suspect's home (either for arrest or subsequent search)
(1) does not require a search warrant (impossible to be sure about the presence
of a "moving target")
c. 4th A draws a firm line to protect against warrantless entrance into one's home.
Absent exigent circumstances, that threshold may not reasonably be crossed
without a warrant.
d. Plain view doctrine applies when officers are legally present in that place
(1) here, they were not legally present
6. Searches Incident to Arrest6
a. U.S. V. ROBINSON, 414 U.S. 218 (1973) (LEAD CASE IN THIS SECTION) 239
(1) Δ was convected of possession of heroin (concealed). Was stopped and
arrested for driving after his license was revoked. Cop patted down Δ found
crumpled cigarette package, in which there was a heroin capsule.
(2) I: whether a search following a bona fide full custody arrest satisfied 4th A
scrutiny
(3) H: Yes. In the case of a lawful custodial arrest, a full search of the person is
not only an exception to the warrant requirement of the 4th A, but is also a
"reasonable" search under that A
(4) Well settled: A search incident to a lawful arrest is a traditional exception to
the warrant requirement of the 4th A.
(5) Justification: this authority rests on the need to disarm the suspect in order
to take him into custody AS WELL AS to preserve evidence on his person for
later use
(6) THUS, probable cause requirement to search is gone (incident to arrest)
b. Illinois v. Lafayette, 462 U.S. 640 (1983) NOTE CASE 247
(1) if don't do it at scene of arrest, ok to search as a delayed Robinson search
(2) Justification:
(a) additional weapons and contraband should not be introduced into the
jail
(b) inventory (BUT, must be standardized inventory process)
(3) See discussion of Lafayette at p. 18

c. U.S. v. Edwards, 415 U.S. 800 (1974) NOTE CASE 249
(1) Δ's clothing searched and seized 10 hours after arrest, while he was in jail.
Found paint chips from a window at the crime scene
(2) H: Once Δ is lawfully arrested and is in custody, it doesn't matter when his
possessions are searched, as long as they were capable of being searched at the
time and place of his arrest
(3) It will be unlawful if the grounds for arrest have dissipated prior to the time
of the search
d. Schmerber v. California 250
(1) H: the attempt to secure evidence of blood-alcohol content in this case (by
drawing blood) was an appropriate incident to petitioner's arrest
e. Winston v. Lee 250
(1) H: Proposed court-ordered surgery on Δ, for the purpose of removing a
bullet expected to show that Δ was the robber hit by the victim's gunfire, would
constitute an unreasonable search
(2) The reasonableness of surgical intrusions beneath the skin depends on a case-
by-case approach, in which the individual's interests in privacy and security are
weighed against society's interests in conducting the procedure
f. CHIMEL V. CA, 395 U.S. 752 (1969) 252
(1) Police w/ arrest warrant go to Δs home. Are allowed inside to wait for Δ to
get home from work. Once he arrives, they show him the arrest warrant and
proceed to search his home for evidence against him
(2) I: Whether the warrantless search of Δs entire house can be constitutionally
justified as incident to that arrest
(3) H: No. The search here went far beyond the Δs person and the area from
within which he might have obtained either a weapon or something that could
have been used against him
(4) When an arrest is made, it is reasonable for the arresting officer to remove
any weapons that the later might seek to use in order to resist arrest or effect his
escape
(a) AREA = from which Δ might have gotten a weapon
(b) Can look for weapons and evidence
g. NY V. BELTON, 453 U.S. 454 (1981) 293
(1) Vehicle pulled over by state trooper b/c of excessive speed. Officer smelled
marijuana and saw a packet of it on the floor of car. Arrested all four occupants
then searched car. Found coke in Δs jacket
(2) I: Whether a police officer may lawfully search the interior of a car incident
to lawful custodial arrest of the occupants
(3) H: Yes. Ok to search interior of car following a lawful arrest
(4) Police may also search containers inside passenger compartment
(a) THUS, can search
i) any open/closed containers in car
ii) passenger compartment of car
iii) glove compartment
iv) CANNOT search trunk

h. Rawlings v. Kentucky, 448 U.S. 98 (1980) NOTE CASE 252, note 3
(1) doesn't matter if search is immediately before or immediately after the
arrest
(2) BUT, probable cause must be completely unrelated to fruits of the search
(a) see Notes, p. 20A
i. Summary
(1) search incident to arrest -- free shot (no pc required)
(2) BUT, with body searches, there are limits
(a) Schmerber said there must be exigent circumstances
7. Other Searches of Premises7 257
a. Incident to and After Arrest Therein
(1) MD v. Buie, 494 U.S. 325 (1990) NOTE CASE 258
(a) protective sweep (requiring articulable facts)
(b) getting you into places w/in house where you otherwise would not be
(c) Two men (one wearing a red running suit) committed an armed
robbery. In entering house to arrest Buie, officer said he would "freeze"
basement—from where Buie emerged. Once B was outside house, an
officer entered the basement and noticed a red running suit in plain view
and seized it.
(d) H: Warrant not required. Also, as an incident to arrest, the officers
could look in closets or other spaces immediately adjoining the place of
arrest from which an attack could be immediately launched.
b. Warrantless Seizures While in Premises to Arrest 259
(1) Arizona v. Hicks, 480 U.S. 321 (1987) NOTE CASE 260
(a) cursory search (w/o p.c. or reasonable suspicion)
(b) already lawfully present (THUS, no privacy right being violated)
(c) Police lawfully entered premises from which a weapon was fired.
One of the officers noticed 2 sets of expensive stereo equipment which
seemed out of place in the squalid 4 room apartment. Suspecting they
were stolen, officer read and recorded their serial numbers, sometimes
moving the components, which then reported by phone to his
headquarters.
(d) H: The moving of the equipment was an unreasonable search
(e) BUT: a truly cursory inspection—one that involves merely looking at
what is already exposed to view, without disturbing it—is not a "search"
for 4th A purposes, and therefore does not even require reasonable
suspicion
c. Warrantless Search of Premises Under Exigent Circumstances
(1) Some categories of Exigent Circumstances
(a) emergency circumstances
(b) hot pursuit
(2) Vale v. Louisiana, 399 U.S. 30 (1970) NOTE CASE 260
(a) protective sweep
(b) Officers observed narcotics transaction on Vale's steps. Arrested both
parties outside the house. Officers entered house twice (one for

protective sweep, then for a full search w/o a warrant). Upon search of
the house, found a quantity of narcotics in the bedroom.
(c) H: Search was unconstitutional. A search may be incident to arrest
only if it is substantially contemporaneous with the arrest and is
confined to the IMMEDIATE vicinity of the arrest
(d) THUS, the arrest must be inside the house
(3) Segura v. U.S., 468 U.S. 796 (1984) NOTE CASE 263
(a) Δs were arrested in their apartment building (not inside the
apartment). Police made a warrantless entry of the apartment and
remained there until a search warrant was issued some 19 hours later
(b) H: Seizure was fine. There is no interference here with privacy,
instead, only possessory interests were at stake
(c) What were they legally entitled to do?
i) search for suspects (Buie search)
ii) NOT for evidence (Chimel, Vale)
iii) at the very least, the cops might have to go to the bathroom
a) legally there
b) plain view doctrine kicks in
c) can seize whatever is in plain view
(4) Rubin NOTE CASE 264
(a) tells how far a Segura analysis can go
(b) Emergency Circumstances Exception Factors
i) degree of urgency and amount of time necessary to get warrant
ii) reasonable belief that contraband is about to be removed
iii) possibility of danger to cops guarding site while warrant is
sought
iv) info indicating that possessors of contraband are aware that
police are on their tail
v) ready destructibility of contraband & knowledge that such is
typically destroyed
(c) Supreme Court has never adopted this exception
(5) Hot Pursuit Exception
(a) Warden v. Hayden, 387 U.S. 294 (1967) NOTE CASE 270
i) Police were reliably informed that an armed robbery had taken
place and that perp had entered a certain house five minutes
earlier
ii) H: Police acted reasonably when they entered the house and
began to search for a man of the description they had been given
and for weapons which he had used in the robbery or might use
against them
iii) Police cannot search for evidence under this exception
iv) BUT, plain view doctrine applies
v) strong argument here against getting a warrant:
a) impractical to do so
b) cops can arrest him on street

c) why not be able to follow him when he enters a private
home??
(6) Third Party's Home
(a) Steagald v. U.S., 451 U.S. 204 (1981) NOTE CASE 274
i) Police entered Steagald's home w/ an arrest warrant for Lyons.
Did not find Lyons, but did find drugs in plain view, resulting in
Steagald's prosecution and conviction
ii) H: In the absence of exigent circumstances, police need
BOTH arrest warrant and search warrant for 3d party's home
Watson Payton Steagald

Arrest in public Arrest in Δ's home Arrest in 3d party's
home
Felony in Presence No warrant req'd NWR NWR
(NWR)
Misdemeanor in Presence NWR NWR NWR
Felony Pvsly Committed NWR Arrest WR (AWR) AWR and Search WR
and pc that person is (SWR)
home
Misdemeanor Pvsly Committed AWR AWR and pc that AWR and SWR
person is home
8. Auto Searches8
a. Carroll (1925) Cited within Carney case 276
(1) started auto exception
(2) where cops shredded he upholstery, during prohibition, high-speed chase on
dark roads
(3) H: there was pc to search vehicle
b. Chambers (1970)
(1) H: where there is pc to search vehicle, you may conduct search at
stationhouse later (can simply tow car)
c. Chadwick and Sanders
(1) H: if your pc goes to container only, then can't search container merely b/c it's
in a car
(2) Auto exception applies when there is pc to search the vehicle. If no pc
to search vehicle, then can't search containers in vehicle just because they
happen to be there
d. Ross (1982)
(1) H: if have pc to search vehicle, you may then search containers inside the
vehicle
e. CA V. CARNEY, 471 U.S. 386 (1985) 275

(1) Carney observed approaching a youth, who followed him into C's motor
home. Agents had info that motor home was used to exchange drugs for sex.
Agents approached youth after he came out—who said he got it in exchange for
sexual contact. Agents entered motor home and observed m.j, plastic bags and a
scale.
(2) Whether auto exception applies to motor homes
(3) H: Yes. Vehicle is obviously readily mobile, and there is a reduced
expectation of privacy stemming from its use as a motor vehicle
(4) Exception has been applied to:
(a) locked car trunk
(b) sealed package in car trunk
(c) closed compartment under dashboard
(d) interior of vehicle's upholstery
(e) sealed packages inside a covered pickup truck
(5) Probable cause is still required to search cars
f. CA v. Acevedo, 500 U.S. 565 (1991) 282
(1) Police watched suspect pick up FedEx pkg they knew to contain m.j.
Suspect went to his apartment. Acevedo entered that apartment and shortly
thereafter left carrying a brown paper bag about the size of one m.j. pkg. Cops
watched A. put package in his trunk
(2) I: Whether 4th A requires police to obtain a warrant to open the sack
contained inside the trunk because they lack probable cause to search the entire
car
(3) H: No. Police may search an auto and containers w/in it where they have
probable cause to believe contraband or evidence is contained
(4) Bright-line rule: Doesn't matter whether you had PC in the car or PC in
the containers, you can then search the whole car
(5) HAS NOT BEEN ACCEPTED IN EVERY JURISDICTION
9. Inventory Searches9
a. Illinois v. Lafayette, 462 U.S. 640 (1983) NOTE CASE 247
(1) search incident to arrest
(2) Δ's shoulder bag was searched for inventory list before he was jailed. Found
amphetamines
(3) H: Of course it's appropriate to search materials in the jail prior to
incarceration
(4) It is immaterial whether the police actually fear any particular package or
container, the need to protect against such risks arises independent of a particular
officer's subjective concerns
b. Colorado v. Bertine, 479 U.S. 367 (1987) 298
(1) Van searched (to inventory) following arrest for drunk driving. Found
controlled substances and paraphernalia and a large amount of cash
(2) Whether 4th A prohibits state from proving additional charges with the
evidence discovered during the inventory of Bertine's van
(3) H: No. Reasonable police regulations relating to inventory procedures
administered in good faith satisfy 4th A requirements

10. Intrusions on Less than Probable Cause (Stop & Frisk)10 306
a. TERRY V. OHIO, 392 U.S. 1 (1968) 306
(1) Cop observed 3 men milling around, looking suspicious. Appeared to be
planning a day-time robbery. Cop stopped them and asked them their names.
They only mumbled, and officer spun them around and frisked them. Found gun
on Terry
(2) I: Whether it is reasonable to seize a person and conduct a limited search for
weapons
(3) H: Yes. Ok where:
(a) cop observes unusual conduct which leads him to reasonably believe
that illegal activities are afoot, and they may be armed and dangerous
(b) where he identified himself and made reasonable inquiries
(c) where nothing in the initial stages of the encounter does anything to
dispel his reasonable fear for his own safety
(4) He may search for weapons only:
(a) guns, knives, clubs or other hidden instruments for assault of the
officer
(5) Does not need probable cause to arrest for this search
b. Grounds for Temporary Seizure for Investigation 321
(1) U.S. V. CORTEZ, 449 U.S. 411 (1981) NOTE CASE 321
(a) I: When can you temporarily seize someone
(b) H: When an assessment of the whole picture yields a particularized
suspicion:
i) assessment must be based on all circumstances (probabilities)
(objective)
ii) process must raise a suspicion that the particular individual
being stopped is engaged in wrongdoing
(2) Alabama v. White 323
(a) anonymous tip
(b) reasonable suspicion is a less demanding standard than probable
cause
(3) Sokolow 325
(a) approves of drug courier profiles to qualify as "reasonable suspicion"
(4) Royer 328
(a) R: Investigative detention must be temporary and last no longer than
necessary to effect purposes of statute
(5) Minnesota v. Dickerson 334
(a) not allowed to manipulate objects as part of Terry search
(6) Michigan v. Long, 463 U.S. 1032 (1983) NOTE CASE 334
(a) 2 cops saw car swerve into a ditch. Stopped to investigate. Driver
met them at the back of the car with license. Started back toward car
when asked for registration. Cops saw large knife inside car. Frisked
Long. One officer searched inside of car for more weapons—found m.j.
(b) H: Allows frisk of car without requiring cop to say "I think he was
armed and presently dangerous"

(c) Requires states to announce loudly and clearly that they are
deciding on the basis of the state constitution
i) otherwise, will assume that the state was trying to interpret the
federal constitution
11. Consent Searches11 342
a. SCHNECKLOTH V. BUSTAMONTE, 412 U.S. 218 (1973) 342
(1) 6 men in car were pulled over b/c of busted tail light and non-working license
plate lights. Driver and 4 others had no licenses. One did -- said it was his
brother's car. He consented to search of the car and even helped. Stolen checks
were found in back seat and used against one of the men who had not consented
(2) I: How do you prove consent was voluntarily given
(3) H: 4th and 14th A require state to demonstrate voluntarily given, and not the
result of duress or coercion, express or implied
(4) Factors to take into account
(a) Knowledge
(b) Claim or show of authority (eg if cops allege they have a warrant
when they don't)
(c) prior illegal police action
i) fruit of poisonous tree
ii) R: A consent may be ineffective b/c obtained in exploitation of
prior illegal arrest
(5) Cops DON'T need to tell someone they have a right to refuse consent
(6) No constitutional right not to consent
IV. Police Interrogations and Confessions (5th A)IV 440

A. Introduction to Police InterrogationA
1. What are we trying to prevent
a. coercion
b. untruthful confessions
c. police misconduct
d. physical abuse: striking or even torture
e. uneven treatment
f. psychological attack
(1) emotional blackmail
(2) prolonged isolation
(3) things that would make innocent person confess
(4) promises of leniency
(5) deprivation of human needs (food, water, bathroom)
(6) communication deprivation
(7) lying by police
g. denial of attorney after asking
h. police rewards for confessions
i. isolation
2. Reverse lineup:

a. person is put in line-up for burglary & fake witness claims recognition for rape or
murder
b. line-up is staged
c. thus, puts pressure on person to say "I'm not a rapist, I'm a burglar"
B. Due Process VoluntarinessB

1. 1Due Process "Voluntariness" Test for Admitting Confessions
a. excludes certain types of confessions
(1) of doubtful reliability
(2) produced by offensive police methods, even if reliable
(3) involuntary in fact, even if reliable
b. 2 and 3 deter police misconduct
c. Ashcraft H: 36 hours of continuous interrogation raised a conclusive presumption of
coercion
d. 5th A -- uses word "compelled"
e. 14th A -- uses word "coerced"
2. McNabb—Mallory Rule: Supervisory Authority v. 14th A Due Process
a. McNabb v. U.S., 318 U.S. 332 (1943) NOTE CASE 458
(1) H: An otherwise voluntary confession, elicited during a prolonged and hence
illegal precommittment detention must be excluded from federal prosecutions
(even though perfectly admissible in state prosecutions)
b. Mallory v. U.S., 354 U.S. 449 (1957) NOTE CASE 459
(1) reaffirmed, saying extended delay resulting in confession violated Fed R Crim
Pro 5(a) and thus excludes use of the confession
(2) R: Police may not arrest and then interrogate in order to determine if they
have probable cause to charge a suspect
3. Right to Counsel and Accusatorial, Adversary Trial3
a. Crooker v. CA, 357 U.S. 433 (1958) NOTE CASE 460
(1) suspect made specific request for attorney (denied, and was interrogated and
alter confessed). Claimed violation of 6th A (b/c 5th A right to counsel was not
required until after Miranda
(2) H: Requiring that questioning stop until counsel was obtained would impede
the investigation. Thus, no right to counsel required here
4. The Court Closes in on the Confession Problem4
a. MASSIAH V. U.S., 377 U.S. 201 (1964) 6th A NOTE CASE 461
(1) Massiah, after being indicted on fed narcotics charges, got attorney, pled not
guilty and was released on bail. Co-defendant, wearing a wire, invited Massiah
to discuss case in Colson's car. Massiah made several incriminating statements
that agents heard
(2) I: Whether this evidence can be used against Massiah w/o offending M's right
to counsel
(3) H: No. Δ was denied the basic protections of 6th A right to counsel. Standard
is:

(a) police must "deliberately elicit" from suspect after indictment
(b) AND in the absence of counsel
(4) Rule against using confessions elicited w/o counsel present (and following
indictment) must apply also to indirect and surreptitious interrogations as well as
those conducted in the jail house
(5) Doesn't matter if Δ knows he's up against the police
(6) Extended remedy of exclusion (suppression) to 6th A right to counsel
(7) 5th A = talks about criminal cases
(8) 6th A = talks about criminal prosecutions
b. ESCOBEDO V. U.S., 378 U.S. 478 (1964) 6th A NOTE CASE 463
(1) Suspect arrested on charges of murder. Attorney obtained writ of habeas
corpus and suspect was released. Rearrested when 2nd defendant fingered
suspect as "trigger man" and interrogated. Suspect repeatedly asked for attorney,
attorney repeatedly asked for suspect. Both were denied. Suspect incriminated
himself
(2) I: Whether suspect is entitled to 6th A right to counsel upon arrest
(3) H: To some degree, yes. When the process shifts from investigative to
accusatory (as here) our adversary system begins to operate, and suspect is
entitled to counsel. The confession must, therefore, be suppressed.
(a) key: initiation of judicial proceedings against suspect
(4) Factors considered
(a) investigation is no longer a general inquiry into an unsolved crime,
but has begun to focus on the suspect
(b) suspect has been taken into police custody
(c) police carry out a process of interrogation that lends itself to eliciting
incriminating statements
(d) suspect has requested and been denied attorney
(e) police have not effectively warned him of his absolute constitutional
right to remain silent
(5) Because this is a state case, it applies the 6th A to the states
(6) Tests:
(a) prime suspect
(b) focal point (of investigation)
(c) accusatory state
C. Miranda and the Fifth Amendment Privilege Against Self-IncriminationC 471
1. MIRANDA V. ARIZONA, 384 U.S. 436 (1966) 5th Amendment Right 477
a. In each of several cases, Δs were interrogated for varying lengths of time (from 2
hours to 9 days) without first being warned of their right not to incriminate themselves
b. I: Whether 1) statements obtained from an individual who is subjected to custodial
police interrogations are admissible; and 2) procedures which assure that the individual
is accorded his privilege under 5th A not to be compelled to incriminate himself are
necessary
c. H: No. Yes. The prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the Δ unless it demonstrates the
use of procedural safeguards effective to secure the privilege against self-incrimination

d. The warnings themselves may be changed (not constitutionally required)
e. based on finding that there is inherent compulsion in custodial interrogation
(1) presumed compulsion (no need to prove)
f. 5th A right to counsel
D. Custodial Interrogation and ExceptionsD
1. Definition: questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way
a. volunteered statements ok
b. only questioning is prohibited
2. The fruit of Miranda violation is admissible
a. because in order to have a fruits argument, the roots of the requirement (eg. Miranda)
must be constitutionally required
b. Miranda warnings are NOT required
3. Applying and Explaining Miranda 508
a. custody v. focusa
(1) focus is the language of Escobedo (6th A right)
(2) Beckwith v. U.S., 425 U.S. 341 (1976) NOTE CASE 515
(a) agents of IRS met with Δ at private home where he occasionally
stayed. Full Miranda warnings were not given
(b) I: Should full Miranda warnings be given where Δ is not in custody
(c) H: No. Although focus of an investigation may have been on Δ, he
hardly found himself in a custodial situation described by Miranda Court
b. what constitutes custody or custodial interrogationb
(1) Berkemer v. McCarthy, 468 U.S. 420 (1984) NOTE CASE 517
(a) roadside questioning of motorist is not custody
(b) presumptively temporary and brief
(c) don't care about intent of officer OR mindset of suspect
(2) is there any 5th A right that a suspect can rely on to protest touching by
cops? *NO*
c. what constitutes interrogation w/in meaning of Mirandac
(1) RHODE ISLAND V. INNIS, 446 U.S. 291 (1980) 519
(a) Suspect was arrested at 4:30 am, was read his rights three times.
Was placed in police car with 3 officers. Front seat was separated by
wire mesh. Cops talked about "God forbid" the handicapped children at
nearby school find the loaded shotgun. Suspect volunteered the location
of the loaded gun. Suspect was convicted of murder
(b) I: Whether suspect was "interrogated" in violation of Miranda (b/c he
had requested an attorney)
(c) H: No. "Subtle compulsion" is not a functional equivalent of
interrogation.
(d) Miranda applies only when a person is subjected to either express
questioning or its functional equivalent
(e) Std: functional equivalent = any words or actions on the part of
the police that they should have known were reasonably likely to
elicit an incriminating response from the suspect

(f) intent of officer is not controlling
i) might be relevant, but not dispositive
(2) Arizona v. Mauro, 481 U.S. 520 (1987) NOTE CASE 527
(a) police allowed suspect's wife to speak to suspect. cops requested
that an officer be present—wife agreed. That officer placed a tape
recorder in the middle of the table. Suspect made incriminating
statements used against him at trial
(b) I: whether the interrogation was custodial, governed by Miranda
(c) H: No. Officers did nothing in this situation to elicit incriminating
information. Officers do not interrogate a suspect by simply hoping that
he will incriminate himself
d. custodial interrogation & the BOOKING QUESTION EXCEPTION to Mirandad
(1) PA v. Muniz, 496 U.S. 582 (1990) NOTE CASE 532
(a) Δ was stopped for driving while intoxicated. As part of the
investigation, cops asked him 7 booking questions (he had slurred speech
answering them); conducted a field sobriety test (made incriminating
statements) and asked him a 6th birthday question.
(b) I: Where any of these areas barred by Miranda
(c) H: Only the 6th Bday question was
i) ROUTINE BOOKING QUESTION EXCEPTION
a) was not testimonial
b) THUS, not barred
ii) field sobriety tests
a) not prompted by interrogation
b) THUS, not barred
iii) 6th Birthday question and answer
a) testimonial, incriminating in response to a direct
question
b) THUS, BARRED
e. public safety exceptione
(1) New York v. Quarles, 467 U.S. 649 (1984) 535
(a) Rape suspect apprehended in supermarket. Frisked and found to be
wearing an empty shoulder holster. Ofc asked him where gun is, suspect
told him. At all times, suspect was handcuffed. Did not read Miranda
warnings until after suspect gave location of gun
(b) I: Whether admitting that answer against Δ at trial violated Miranda
(c) H: NO. Public safety exception to giving Miranda warnings
(d) Availability of exception does not depend upon the motivation of
the officers involved
f. rescue doctrine
(1) Shld there be limits on what cops can ask suspects in order to save lives
(a) Mirandizing a kidnapping suspect may deter answers
(b) COMPROMISE: can ask the question, but can't offer the answer in
evidence

4. Brewer v. Williams (Williams I), 430 U.S. 387 (1977) 628
a. Suspect in kidnapping of 10 year-old girl was captured. Had to be transported back to
correct county. Had an agreement that he would not be interrogated w/o presence of
counsel. During trip, was given the Christian Burial speech and suspect led cop to
location of body. Was Mirandized 3 times
b. I: Whether Miranda rights had been denied, whether statements were voluntary and
whether right to counsel was violated
c. H: Only need to consider the 6th A violation
d. Waiver of 6th A right to counsel requires not merely comprehension but intentional
relinquishment (of a known right). William's consistent reliance upon advice of counsel
in dealing with authorities refutes any suggestion that he waived his right
e. Standard:
(1) 6th A right attaches when adversary proceedings commenced
(2) cops violated 6th A by deliberately eliciting damaging statements
(a) officer intent matters most
(b) focus is on the cop (not the suspect)
5. Kirby v. Illinois, 406 U.S. 682 (1972) 666
a. Suspects were identified in a police station show-up as robbers of victim. No
proceedings had begun against them
b. I: Whether the per se exclusionary rule should extend to situations where suspect was
identified in a show-up before charges are filed
c. H: No. We decline to import into a routine police investigation an absolute
constitutional guarantee
6. Custody v. the initiation of adversary judicial criminal proceedings 669
E. Invocation & Waiver of RightsE
1. Zerbst (quoted in Miranda)
a. requires intentional relinquishment
2. qualified waiver2 544
a. Connecticut v. Barrett, 479 U.S. 523 (1987) NOTE CASE 544
(1) Δ didn't want to make written statement without attorney. Instead,
implicated himself orally
(2) H: this waiver was voluntary. Miranda gives the Δ a right to choose between
speech and silence, and Barrett chose to speak
3. what constitutes an invocation of Miranda rights 545
a. Fare v. Michael C., 442 U.S. 707 (1979) NOTE CASE 545
(1) Juvenile was told that he could talk to cops without attorney present, or ask
for one. Asked for probation officer, was denied. Incriminated himself
(2) H: The statements are admissible. The requires to see a probation officer is
not a per se invocation of Miranda rights (the equivalent of asking for a lawyer)
4. resumption of questioning following exercise of rights4 546
a. Michigan v. Mosely, 423 U.S. 96 (1975) NOTE CASE 546
(1) Mosely arrested on suspicion of robbery. After being given his Miranda
rights, he declined to talk about the robberies, Police accepted this and left him
alone. 2 hours later, homicide detectives reMirandized and talked to him about

his possible involvement in a separate homicide. He made some incriminating
statements
(2) I: Whether the homicide detectives honored his wish not to talk about
robberies
(3) H: Yes. Subsequent questioning by another detective about an unrelated
homicide was quite consistent with a reasonable interpretation of Mosely's earlier
refusal to answer any questions about the robberies
(4) Standard: was request to cut off questioning "scrupulously honored"
(5) 5th A right to silence case
b. Edwards v. Arizona, 451 U.S. 477 (1981) NOTE CASE 547
(1) Edwards arrested for burglary, and murder. Was taken to police station. Was
read Miranda rights, waived these rights and agreed to talk about these crimes.
But, some time later he asserted his right to counsel. Was taken to jail. Next
morning, 2 detectives came to the jail, met with Edwards, informed him of rights.
Agreed to talk. Made incriminating statements which led to his conviction
(2) I: Whether his agreement to talk constituted a valid waiver
(3) H: No. When an in-custody suspect does assert his right, a valid waiver
cannot be established by showing only that he has responded to further police-
initiated custodial interrogation even if he has been advised of his rights
(4) 5th A Right to Counsel case
(5) Minnick's interpretation of Edwards: bars police-initiated questioning unless
the accused has counsel w/ him at time of questioning
c. Arizona v. Roberson, 486 U.S. 675 (1988) NOTE CASE 549
(1) Suspect was interrogated. Was informed of his rights and he requested
counsel. After 3 days of still not providing counsel, police questioned him again
on a separate offense
(2) I: Whether the second round of questioning was ok under Miranda after
suspect invoked his Miranda rights
(3) H: No. Once a suspect-effectively asserts his Miranda-Edwards right to
counsel the police cannot initiate interrogation about crimes other than the one
for which the suspect has invoked his right to counsel
(4) Presumption: that suspect considers himself unable to deal with the pressures
of custodial interrogation without legal assistance
(5) presumption does not disappear simply b/c the police have approached a
suspect, still in custody, still without legal counsel, about a separate investigation
d. Minnick v. Mississippi, 498 U.S. 146 (1990) 550
(1) Extension of Edwards
(2) Minnick arrested on Fri by local police in California. Next day, FBI
interviewed him. Minnick refused to sign a waiver, but agreed to answer
questions. Made incriminating statements. Requested an attorney, interrogation
ended. Had spoken to attorney over weekend. Monday, Mississippi sheriff
interrogated him w/o counsel being present -- Minnick was told he could not
refuse
(3) I: Whether Edwards protection ceases once the suspect has consulted an
attorney

(4) H: No. When counsel is requested, interrogation must cease and officials may
not reinitiate interrogation w/o counsel present, whether or not the accused has
consulted with an attorney
(5) A single consultation with attorney does not remove the suspect from
persistent attempts by officials to persuade him to waive his rights
(6) Counsel must be present
e. is there a time limit to Miranda rights once invoked

(1) Green NOTE CASE 556
(a) indicates that once the right to counsel is invoked [5th A] it is
perpetual
f. what constitutes initiating further communication
(1) Oregon v. Bradshaw NOTE CASE 557
(a) H: Subjective standard: did suspect show general interest in talking
about investigation
i) if yes, then no violation of Edwards
g. Moran v. Burbine, 475 U.S. 412 (1986) 572
(1) Δ was mirandized 3 times, confessed to murder of young woman.
Unbeknownst to him, his sister retained an attorney who tried to see him.
Attorney was told "will be no interrogation" and was denied seeing suspect
(2) I: Whether pre-arraignment confession preceded by an otherwise valid waiver
must be suppressed because 1) police misinformed attorney; or 2) they failed to
inform Δ (suspect) of the attorney's efforts to reach him
(3) H: No. On these facts, the challenged conduct falls short of the kind of
misbehavior that so shocks the sensibilities of civilized society as to warrant a
federal intrusion into state crim pro
(4) Whether intentional or inadvertent, the state of mind of the police is
irrelevant to the question of intelligence and voluntariness of Δ's election to
abandon his rights
(5) This is trickery after Miranda
(a) S.Ct has remained silent about what kind of trickery can remain
following the Miranda Decision
h. Patterson v. Illinois, 487 U.S. 285 (1988) NOTE CASE 638
(1) Δ was arrested and indicted. When informed that the other gang member
was not indicted, he made a statement that the other gang member "did
everything." Was Mirandized and waived his (5th A) rights to counsel during
questioning. Made incriminating statements
(2) I: Whether the accused had been sufficiently aware of both 5th and 6th A
rights.
(3) H: an accused who has been given Miranda warnings has been sufficiently
apprised of the nature of the 6th A rights and of the consequences of abandoning
those rights, so that his waiver on this basis will be considered a knowing and
intelligent one

(4) THUS, standards to waive both are the same, but after indictment, 6th A is
different than at trial
5. what constitutes a valid waiver of 6th A—Massiah right 638
a. Michigan v. Jackson NOTE CASE 566
(1) Δs were arraigned, and asked magistrate to appoint attorneys for them. After
arraignment, police obtained waivers, questioned Δs and obtained confessions
(2) H: b/c the police initiated the questioning the waivers of 6th A rights were
invalid
b. 6th A right is offense-specific (cannot be invoked once for all future prosecutions)
c. 5th A right is general (can be invoked once)
F. Evolution of Interrogation RulesF
1. Withrow v. Williams, 113 S.Ct. 1745 (1993) 590
a. Wms a murder suspect, was not advised of Miranda rights until after he was
interrogated for 40 minutes and had made incriminating statements. State court refused
to suppress the statements. Was convicted. Conviction affirmed.
b. I: Whether Miranda claims may be reviewed by federal courts on habeas
c. H: Yes. Stone (below) does not extend to a state prisoner's claim that his conviction
rests on statements obtained in violation of Miranda
d. Unlike the 4th A (which confers no "trial right") the 6th A confers a fundamental right
on crim Δs, one that assures the fairness and thus legitimacy of our adversary process
2. Stone v. Powell, discussed in Withrow 590
a. bars a state prisoner from litigating a 4th A claim on habeas
3. The jail plant situation; surreptitious interrogation3 530
a. Illinois v. Perkins, 496 U.S. 292 (1990) NOTE CASE 530
(1) Perkins was incarcerated for crimes unrelated to Stephenson murder.
Undercover cop was placed near Perkins, along with a former associate of
Perkins from prison. They started talking about escape — and cop asked P if he
had ever "done" anyone. P said yes, and described in detail the Stephenson
murder
(2) I: Whether the placement of the undercover cop with an incarcerated suspect,
where the cop induces the suspect to discuss the crime for which he has not yet
been arrested, violated Miranda and was "custodial interrogation."
(3) H: This was not "custodial interrogation". Miranda warnings are not
required when the suspect is unaware that he is speaking to a law enforcement
officer and gives a voluntary statement
(4) R: custodial interrogation required to get relief from a 5th A violation
(a) this was undoubtedly interrogation (express questioning or its
functional equivalent—Innis)
(b) BUT, this was not custodial because suspect didn't know that he was
dealing with the cops
4. Incriminating statements taken after 6th Amend right to counsel has attached4 642
a. Maine v. Moulton, 474 U.S. 159 (1985) NOTE CASE 642

(1) Govt obtained incriminating statements from a Δ after her right to counsel
had attached. The govt did so for legitimate reasons unrelated to the gathering
of evidence concerning the charges to which the right of counsel had attached
(was concerned that Δ was going to have a witness for current charges killed)
(2) I: Are those statements admissible at the trial of the crimes for which the
formal charges had already been filed (for which 6th A rights had attached)
(3) H: No. Incriminating statements pertaining to pending charges are
inadmissible at trial are inadmissible at trial of those charges if, state violated the
6th A, by knowingly circumventing the accused's 6th A right to counsel
(4) THUS, suppression for current trial; the statements are fine for use in the 2d
investigation b/c right to counsel had not attached
b. United States v. Henry, 447 U.S. 264 (1980) NOTE CASE 643
(1) FBI instructed it paid government informant (Δ's cellmate) not to question Δ
about the crime. Δ had already been indicted (6th A right attached)
(2) I: Whether Δ's subsequent incriminating statements made during the course
of casual conversation were admissible
(3) H: No. By intentionally creating a situation likely to induce Henry to make
incriminating statements w/o the assistance of counsel, the govt violated his 6th
A right to counsel
(4) Informant was not merely a passive listener, he was instead engaged in
conversation (asked Δ what he was going to say)
c. Kuhlman v. Wilson, 477 U.S. 436 (1986)
(1) Δ, suspected of robbing a garage and fatally shooting the night dispatcher,
turned himself in (said he was a witness—but, claimed not to have any part in it).
Was placed in a cell with Benny Lee, who had agreed to be an informant. Lee
was instructed not to ask any questions, and obeyed. Was instead told to listen
for the names of Δ's confederates. Wilson voluntarily (spontaneous, unsolicited)
told him
(2) I: Whether the statements should be suppressed b/c the police "deliberately
elicited" Wilson's comments
(3) H: No. Not deliberately elicited. Δ must demonstrate that the police and the
informant took some action, beyond mere listening, that was designed to
deliberately elicit.
(4) THUS, if no questions, informer's conduct is fine
G. Due Process "Voluntariness" Test RevisitedG 609
1. What kinds of deception, if any, can police use after suspect has waived his rights
a. Miller v. Fenton NOTE CASE 609
(1) Miller, prime suspect in a brutal murder was brought to state police barracks.
Was advised of his rights and signed a waiver. After 45 minutes of interrogation
by a cop who told him that he was a friend, etc., Miller confessed to the murder
and collapsed into catatonic state
(2) I: Whether the cop's statements were so manipulative or coercive that they
deprived Miller of his ability to make an unconstrained autonomous decision to
confess

(3) H: No. Boyce's promises of psychiatric help etc may have been a form of
psychological trickery, but these elements of the interrogation didn't affect the
voluntariness of the confession
(4) Bram test: To be voluntary, confession must NOT have been
(a) extracted by any sort of threats or violence, NOR
(b) obtained by any direct or implied promises, however slight
(5) Totality of the circumstances is thus required
2. Did Court Decline to Expand Volutariness Test?
a. Colorado v. Connelly, 479 U.S. 157 (1986) NOTE CASE 622
(1) Respondent, mentally ill, flew from Boston to Denver, walked up to a cop on
the street and confessed to a murder of 9 months ago. He was responding to
command auditory hallucinations (voices in his head)
(2) I: Whether this confession violated due process voluntariness
(3) H: No. Coercive police activity is a necessary predicate to the finding that the
confession was not voluntary within the meaning of the Due Process Clause
V. Pre-Trial Identification ProceduresV 650

A. Eyewitness IdentificationsA
1. U.S. v. Wade, 388 U.S. 218 (1967) 650
a. Δ was suspected of robbing a bank and leaving 2 witnesses. Counsel was appointed
following Wade's arrest. 15 days later, and w/o notice to Wade's attorney, FBI agents
rigged a line-up for the two witnesses. Both identified Wade. Identification in court
based on the line-up
b. I: Whether courtroom ids of an accused at trial are to be excluded b/c the accused was
exhibited to the witnesses before trial at post-indictment line-up without notice to and in
the absence of appointed counsel
c. H: Yes. There can be little doubt that for Wade, the post-indictment line-up was a
critical stage of the prosecution at which he was as much entitled to aid of counsel as
the trial itself
d. The behavior violated 6th A right to counsel
(1) impedes the Δs ability to confront and challenge witnesses and to reconstruct
2. Gilbert (companion case to Wade)
a. provides example of concept of independent source
b. witness said in identifying in court "I recognized that person the first time I saw a
lineup
3. Kirby revisited
a. Not indicted, no criminal proceedings
b. H: Kirby loses because right of counsel has not attached
4. The Meaning of Lineup Decisions4

a. role of counsel

(1) make sure that your client looks like the other "suspects" (e.g., same gender,
height, race, etc
(2) make sure police don't suggest who your client is
(a) or treat one person any differently than another
(3) make sure that police don't bring one in wearing handcuffs and others
walking in freely
(4) make sure that police don't use any other subtle ploys
(a) placing suspect on the far left (b/c that's where most people look first)
(b) officer's eyes are constantly on the suspect
B. Photo IdentificationsB
1. U.S. v. Ash, 413 U.S. 300 (1973) 671
a. Almost three years after the crime, the prosecutor showed 5 color photos to 4
witnesses who had previously tentatively identified the black-n-white photo of Δ.
Neither Δ nor Δs counsel was present
b. I: Whether failure to notify Δs counsel, or failure to allow him to be present violates
the Wade rule (6th A)
c. H: No. We are not persuaded that the risks inherent in the use of photographic
displays are so pernicious that an extraordinary system of safeguards is required
(1) this photo spread is easy to reconstruct at trial
(2) THUS, photo spreads are not a critical stage
d. Critical stages are those that cannot effectively be reconstructed at trial
C. Due Process LimitationsC
1. Stovall v. Denno, 388 U.S. 293 (1967) Due Process NOTE CASE 673
a. Δ, handcuffed and w/ 7 officers, was brought before victim in hospital. Officers said
"is this the man?"
b. I: Whether the identification of Δ, as above, and in the absence of counsel violated due
process rights
c. H: No. Claimed violation of due process depends on totality of circumstances.
d. Here, state had an important duty to do this identification (victim was in the hospital,
threatening to die!)
2. Manson v. Brathwaite, 432 U.S. 98 (1977) Due Process 677
a. Glover, an undercover cop, bought heroin from suspect. Gave description
immediately to backup officer. W/in 2 days, Glover identified suspect from a single
photo left on his desk
b. I: Whether the showing of a single photo was suggestive and evidence pertaining to it
was subject to a per se exclusionary rule
c. H: No. The Biggers factors are to be applied here.
d. Biggers Factors (to be considered for totality of circumstances)
(1) the opportunity to view the criminal at the time of the crime
(2) the witness's degree of attention
(3) the accuracy of his prior description of the suspect
(4) the level of certainty demonstrated at the confrontation
(5) the time between the crime and the confrontation
3. 3Summary
a. if right to counsel argument fails, can still fall back on due process argument

VI. The Scope of the Exclusionary RuleVI 785
A. Fruit of the Poisonous TreeA 806
1. Difference between types of evidence
a. direct (primary)
(1) where evidence sought to be suppressed directly resulted from the unlawful
conduct
(a) kick down door and seize evidence (that evidence comes directly
from the illegally kicking down the door)
(b) getting confessions without Mirandizing
b. indirect (secondary)
(1) where the link is indirect
(2) where there is an event or occurrence between the unlawful conduct and
evidence to be suppressed
(a) kick door in & seize evidence which prompts suspect to confess
i) the confession is indirectly related to kicking the door in
2. Roots and Fruits
a. illegality = root
b. evidence obtained = fruit
3. Government defenses to Fruit of Poisonous Tree Analysis
a. independent source
(1) it's not the fruit
(2) I didn't get it from the illegality
(3) got it from another way
(4) sort of like a but-for test
(a) eg. but for the unlawful search, wouldn't have gotten the evidence
(b) BUT, if can show that you would have gotten the evidence anyway,
then you've shown independent source
b. attenuation
(1) assumption that you meet the but-for part
(2) BUT, there was so much between the illegality and the evidence that the
court won't suppress b/c it's too far apart
4. verbal evidence as fruit of illegal search and seizure4 807
a. Wong Sun (Attenuation)
(1) See supra page Error: Reference source not found for a discussion of the
facts
(2) H: too attenuated b/c Wong sat home for three days after the wrongful arrest
before he returned to confess
(3) Court said can't blame the confession on the illegality
5. confession as the fruit of an illegal arrest5 808

a. Brown v. U.S.
(1) Following illegal arrest, suspect Mirandized and made incriminating
statements.

(2) H: The giving of Miranda warnings in no way purge the taint of the arrest to
allow the confession to be admissible. (Thus, excluded)
6. identification of a person as a fruit of an illegal arrest6 811
a. Suspect illegally arrested and photographed. Was released. Witness was shown the
photo taken of the suspect and identified him as the culprit. Id'd again in line-up and in
court
b. H: Victim's in-court identification inadmissible b/c obtained by official exploitation of
the primary illegality (the arrest)
7. confession as a fruit of a Payton violation7 812
a. New York v. Harris
(1) H: Where police have probable cause to arrest a suspect, the exclusionary
rule does not bar the use of a statement made by the suspect outside his home
even though the statement is obtained after an in-house arrest in violation of
Payton
8. a warrant search as the fruit of an illegal entry & occupation of the premises8 814
a. Segura (see above)
(1) H: The legality of the entry had no bearing on the admissibility of the
challenged evidence because there was an independent source for the warrant
under which the evidence was seized
b. Murray v. United States 815
(1) H: evidence observed by the police during an illegal entry of premises need
not be excluded if such evidence is subsequently discovered during the execution
of an otherwise valid search warrant sought and issued on the basis of
information wholly unconnected to the prior entry
9. the tainted witness9 817
a. U.S. v. Ceccolini
(1) Witness illegally picked up envelope containing money and policy slips
owned by suspect. Testified later against suspect, not having mentioned the
envelope to investigators
(2) H: Live testimony admissible (not per se).
10. is a confession obtained in violation of Miranda a "poisonous tree"?
a. New York v. Quarles (see above)
b. Oregon v. Elstad, 470 U.S. 298 (1985) 824
(1) NO. Miranda warnings are not a constitutional requirement
(2) THUS, can't be a "root"
11. inevitable discovery doctrine11
a. Nix v. Williams (Williams II), 467 U.S. 431 (1984) 818
(1) Same facts as Williams I, but Wms statements and his willingness to direct
police to the body were not admitted
(2) I: Whether the inevitable discovery doctrine applies here to provide an
exception to the exclusionary rule
(3) H: Yes. Search parties were approaching the actual location of the body. We
are satisfied that the search teams would have found the body.

(4) Rule: Can suppress the statements because they were the result of the
illegality, but the body itself (the physical evidence) would have been found
eventually, so it can still be admitted
1. inevitable discovery not limited to fruit of PT

2. attenuation however, really wouldn't come up w/
direct evidence
3. independent source requires fruits because wouldn't make
the argument otherwise
B. Standing to Object to the Admission of EvidenceB

1. General Rule: Δs must have standing to challenge a constitutional violation
2. In order to have standing, you must have been the victim of a constitutional violation
a. e.g., if A puts incriminating documents in B's briefcase w.o B's knowledge
(1) B's briefcase is seized
(2) A can't challenge that seizure b/c B was the victim
(3) B won't get suppression because no evidence is being used against him
b. THUS, B has standing, but doesn't need to suppress
(1) A does not have standing, but the evidence can be used against him

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CRIMINAL PROCEDURE I

Epps/ Kamisar & LaFave, 8th Edition

II. Nature & Scope of the 14th Amendment Due Process................................................................................. 1

III. 4th Amendment: Arrest, Search & Seizure.................................................................................................. 3

IV. Police Interrogations and Confessions (5th A)............................................................................................ 23

Criminal Procedure Page i

V. Pre-Trial Identification Procedures.............................................................................................................. 33

VI. The Scope of the Exclusionary Rule.......................................................................................................... 35

Criminal Procedure Page ii

Criminal Procedure Page iii

Criminal Procedure Page iv

I. An Overview of the Criminal Justice ProcessI 1

Criminal Procedure Page 1

III. 4th Amendment: Arrest, Search & SeizureIII

Criminal Procedure Page 2

6. Burdeau v. McDowell, 256 U.S. 465 (1921) NOTE CASE 155

D. The Fruit of the Poisonous TreeD 806-808

Criminal Procedure Page 3

2. CA V. GREENWOOD, 486 U.S. 35 (1988) 165

Criminal Procedure Page 4

6. U.S. v. Place, 462 U.S. 696 (1983) NOTE CASE 174

Criminal Procedure Page 5

G. What May be Seized?G

Criminal Procedure Page 6

H. The Requirement of Probable CauseH

Criminal Procedure Page 7

Criminal Procedure Page 8

Criminal Procedure Page 9

Criminal Procedure Page 10

Problem Affect Validity All Evidence Suppressed under Leon?

Criminal Procedure Page 11

Criminal Procedure Page 12

Criminal Procedure Page 13

Criminal Procedure Page 14

Criminal Procedure Page 15

Criminal Procedure Page 16

Watson Payton Steagald

Criminal Procedure Page 17

Criminal Procedure Page 18

Criminal Procedure Page 19

IV. Police Interrogations and Confessions (5th A)IV 440

Criminal Procedure Page 20

B. Due Process VoluntarinessB

Criminal Procedure Page 21

Criminal Procedure Page 22

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e. is there a time limit to Miranda rights once invoked

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V. Pre-Trial Identification ProceduresV 650

4. The Meaning of Lineup Decisions4

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5. confession as the fruit of an illegal arrest5 808