The Fourth Amendment

The ultimate touchstone of the Fourth Amendment is ‘reasonableness’” Brigham City v. Stuart
Add in policy crap from Class 1!!
I. Remedies to a 4A Violation
A. Exclusionary Rule
Judge-made doctrine that holds if police violate ∆’s 4A/5A/6A rights in obtaining evidence, the prosecution
may not use that evidence in their CASE-IN-CHIEF to prove ∆’s guilt at a criminal trial.
1. Landmark Case
i. Mapp v. Ohio (1961) – Police asked to enter home without warrant on tip there was porn
but Mapp refused. They came back three hours later, and when she didn’t answer they
forcibly entered. Her attorney arrived, but police wouldn’t allow him to enter. They
shoved a fake warrant in her face, then seized porn in the basement. Excluded.
a. Rule: Exclusionary rule applies to the states.
b. Judicial integrity rationale: if gov’t becomes a lawbreaker, we invite everyone to
follow example. Remedy is a “dead letter” if it doesn’t apply to the states.
2. Rationale
i. Deterrence Rationale
a. Deter the government from violating a person’s con’l rights: if the gov’t can’t
use evidence that was obtained in violation of a person’s rights, it will be less
likely to violate those rights.
b. Remedy for deprivation of con’l rights.
ii. Judicial integrity rationale [see Mapp]
3. When does Exclusionary Rule NOT apply?
i. If no state action.
a. No search by police
 Ex. Ex-bf brings in incriminating evidence to station.
ii. If no standing – someone’s right other than ∆’s violated by search.
a. Must have personal 4A right violated.
iii. If evidence is used to impeach ∆’s trial testimony
iv. If evidence is used in a civil case.
v. If evidence is presented to grand jury
a. FRE 1101: ROE do not apply to grand jury proceedings, because making PC
determinations.
4. Must Have Standing
i. Rule: Only those who are actual victims of the alleged violation have standing to
challenge it. Personal rights cannot be vicariously asserted. This includes 4A rights.
a. Thus, 4A rights cannot be vicariously asserted.
ii. Rule: A defendant who has standing to challenge the initial illegality also has standing to
challenge the use of evidence derived from that illegality. Wong Sun.
iii. Ex. Rakas v. Illinois (1978) – no standing if legitimately in automobile but do not claim
the incriminating items seized or ownership of the car. If no property or possessory
interest in the place searched nor the items seized  no reasonable expectation of privacy
 no standing.
5. Procedure – FRCrP 12(b)(3)(C)
i. Prosecutor brings Motion to Suppress. Takeaways
ii. Before trial.  KATZ: Implicates 4A to gather
a. Or it is waived or forfeited because of double jeopardy. info in a way that violates reas.
b. Once jury sworn in, jeopardy begins. expectation of privacy.
iii. Judge rules on motion, not jury.  KYLLO: Implicates 4A if gather
iv. Prosecutor can appeal suppression ruling to COE before trial. info w/o trespass thru tech.
B. Alternatives means that aren’t in gen. pubic
**Vance loves Exclusionary Rule because posturally, it’s when the ∆ and lawyer is most likely to access use.
information revealing a bad search and have the ability to do a motion to suppress. Best place to vindicate  JONES/JARDINES: Implicates 4A if
the ∆’s rights in a speedy proceeding that happens pre-trial. trespass in protected area [home
1. Criminal Prosecution of Police curtilage, car] and not licensed to
i. 18 U.S.C. § 2236 [Searches without Warrant] do so.
Any law enforcement official who
*Remember, just because 4A
1. Searches a dwelling without a warrant, or
implicated doesn’t mean police
can’t do it, but to be reasonable,
need warrant, PC, or at least RS.
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 2. Maliciously and without reasonable cause searches any other building
or property w/o warrant
Shall be fined for a first offense, and for a 2d offense, shall be fined under this
title, or imprisoned not more than one year, or both.
 Cons: might chill police from acting in emergency, possibility of under-
prosecution.
2. Civil Action for Damages / Injunctions
i. § 1983 Actions
a. Against the officer
b. Against the city
 Cons: Often low damages; hard to find lawyer that will go after a cop, little
incentive from criminal ∆; jury sympathy with police over criminal; police have
no $, have to go for cities.
3. Administrative & Political Remedies ?
II. Scope of 4A – What does it cover?
A. What is a search, and how do we define it?
1. Reasonable Expectation of Privacy
i. Rule: Criminal trespass is not necessary to invoke 4A protections; to have a 4A right, a
person must have a reasonable expectation of privacy with respect to the place searched
or the item seized.
ii. Katz v. United States (1967) – Tells us whether 4A applies, not whether it was violated.
Federal agents put a listening device against wall of a public phone booth. Lower courts
held that b/c device was on outside of booth, there was no trespass. Evidence of
telephone conversations were admitted at trial. Tapping a phone booth is a search for 4A
purposes.
a. 4A protects “people, not places” and its reach cannot turn solely upon whether a
physical intrusion occurred.
b. Cannot protect what a person exposes to the public, but what a person wants to
preserve in private, even in an area accessible to the public, may be con’lly
protected.
c. Government activities of electronically listening to and recording words violated
Katz’s justifiable reliance on the privacy of the phone booth.
d. Thus, it was an unconstitutional search and seizure.
e. Harlan’s Concurrence [becomes the Katz Test]
1. In order for a search to have occurred,
(i) The person must have exhibited an actual [subjective]
expectation of privacy,
(ii) And that expectation must be one that society recognizes as
reasonable.
2. Open Fields Doctrine & Curtilage
**Knowing exposure is a theme throughout!!
i. General Rule: Police entry/search of open fields involves no 4A intrusion even if land is
privately owned.
a. Hester v. United States (1924)
b. Oliver v. United States (1984) – ∆’s were growing marijuana on their farm, in a
field a mile from the house, all highly secluded, no trespass signs. Police
discovered marijuana via warrantless entry onto and inspection of property.
Police trespass not a search for 4A purposes.
1. Displayed subjective expectation of privacy, but objectively, it’s not
reasonable expect fields are private.
2. Open fields do not provide setting for those intimate activities that the
amendment is intended to shelter from gov’t interference or
surveillance, even when efforts at concealment are made.
3. Officer’s act of trespass does not invoke 4A.
ii. Curtilage: Open fields doctrine distinguishes between open fields and curtilage, an area
surrounding the home where reasonable privacy expectations receive 4A protection.
a. United States v. Dunn (1987) – DEA agents passed 2 barbed wire fences, and a
fence to the barn where they found incriminating evidence. Barn located 50

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 yards from a fence surround ∆’s residence was outside the curtilage and in an
open field. [note: product of its time: full blown drug war]
1. Rule: Dunn Factors in deciding whether or not area is curtilage:
(i) Proximity of the area claimed to be curtilage to the home;
(ii) Whether the area is included within an enclosure to the home;
(iii) The nature of the uses to which the area is put;
(iv) The steps taken by the resident to protect the area from
observations by the people passing by.
2. Rejected bright line rule of curtilage in fear that it might lead to
diminished 4A protection.
b. California v. Greenwood – Curb ≠ curtilage. Knowing exposure to public. ∆ has
no reasonable expectation of privacy in opaque trash bags once they are on the
curb, and the police obtain them from trash men.
1. Rule: Presence of garbage in public place [curb] defeats privacy
expectation.
2. Shredding doesn’t make a difference; reas. privacy expectations still
defeated by putting on curb
iii. By Air: Generally, aerial surveillance is not a search for 4A purposes.
a. Ex. California v. Ciraolo (1986) – Police inspected backyard of a house while
flying at 1000 ft over it. Found marijuana. Ct held the aerial surveillance was
not a search, although the yard was within the curtilage of the home and a sense
shielded the yard from street observation.
b. Florida v. Riley (1989) – Plurality. Hard to discern a rule here.
Cops thought Riley was growing marijuana in greenhouse on curtilage, which
was partially covered and obscured from the road. Flew in helicopter 400 ft
above and saw enough with naked eye for them to get a warrant to search, found
marijuana plants. Not a search for 4A purposes.
1. Rule: Aerial surveillance of the interior of a partially exposed
greenhouse by naked eye not a search for 4A purposes.
2. Airplane traffic of that latitude was sufficiently common that there was
no reasonable expectation of privacy in anything from ground
observable from aerial naked eye.
3. Factors:
(i) Property within curtilage of home;
(ii) Riley intended and expected greenhouse wouldn’t be subject
to public inspection from the ground;
(iii) But b/c sides/roof were partially open, could see from air;
(iv) Helicopter broke no FAA regs or laws.
4. O’Connor Concurrence: Thinks relevant question after Ciraolo is not
whether helicopter where it had a right to be under FAA regs, but
consistent with Katz: must ask whether helicopter was in the public
airways at an altitude at which member of public travel with sufficient
regulatory that Riley’s expectation of privacy from aerial observation
was not one that “society is prepared to recognize as ‘reasonable.’”
5. Brennan/Marshall/Stevens Dissent: Thinks plurality’s admin/reg
reasons too important; access of a helicopter over that area is also
important. Issue is whether public observation of Riley’s cartilage was
so commonplace that Riley’s subjective expectation of privacy in his
backyard could not be considered reasonable.
c. Cf with Bond v. United States (2000) – border patrol on a bus to check
immigration status squeezed a duffel bag, felt what he thought was drugs. Got
permission to open bag, found meth. Ct held this was a search for 4A purposes.
1. Distinguished from Riley and Ciraolo: even though the ∆ knowingly
exposed his bag to the public, just like the ∆s knowingly exposed their
land to the public, the tactile touching goes beyond mere observation.
2. Applying Katz Test: (1) subjective expectation was exhibited [opaque
bag directly above his seat] & (2) this is a reasonable expectation in

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 society’s view [objective expectation that bag might be handled, but not
in an exploratory manner]
iv. Dog Sniffs: Consider whether protected area, license to be on property, scope of license.
a. United States v. Place (1983) – Ok to use a drug dog sniff in airport; relies on
fact that drug dog sniff discloses only presence or absence of drugs, a
contraband item, and doesn’t implicate any privacy concerns. No search, but
was a seizure – 90 min detention. [cf with Jardines; which took place at a con’lly
protected location, house, v. public airport]
b. Florida v. Jardines (2013) – Plurality, 2-3-4. Tip that marijuana being grown in
house; police brought drug dog on 6ft leash, approached front door, dog
indicated strongest point of odor was under door. Got warrant, ∆ moved to
suppress. Officers’ behavior was a search within 4A.
1. Took place clearly on curtilage/protected area. ∆ did not give license
for the officer to be on his property for that purpose.
2. Scope of a license – express or implied – limited to a particular area + a
certain purpose.
3. Knock and talks okay because that is what any citizen would do;
“Background social norms that invite a visitor to front door do not
invite him there to conduct a search.
 Note: Does not decide whether officers’ investigation of ∆’s home
violated his expectation of privacy under Katz
c. United States v. Whitaker – Split courts. Although no 4A right in all common
areas, use of drug-sniffing dogs in common areas with landlord’s permission is
a search for 4A purposes.
3. Knowing Exposure to Public
i. Confidential informants + Undercover Agents:
a. United States v. White (1971) – Plurality.
∆ wants to suppress recorded testimony that was obtained by radio transmitter
by a gov’t informant. Unable to locate gov’t informant by trial. No unreasonable
and unconstitutional search for 4A purposes.
1. ∆ who trusts another knows risk that information might be disclosed to
police.
2. Evidentiary justification – recorded is more reliable than hearsay of
agents
3. Ct doesn’t see “bugged” informant v. “unbugged” informant difference
as enough to recognize a new con’l barrier.
4. Harlan Dissent: Critical question is, whether we should impose on our
citizens risks of electronic listener/observer w/o at least protection of
warrant requirement.
(i) Advocates balancing test: Nature of particular practice,
likely impact on individual’s sense of security against
usefulness of conduct as technique for fighting crime.
ii. Who can consent to entry?
a. United States v. Carloss (10th Cir. 2016) - Sign next to driveway and on front
door: “Trespassing for any purpose is strictly forbidden. Violators will be
prosecuted.” ATF agents enter curtilage, knock, ask to search: person says let
me go find the owner. Police ask to follow, Carlos says “Yes.” See drug
equipment in Carlos’ personal bedroom. No unreasonable search for 4A
purposes.
1. Rule: If a police get permission to enter during a knock and talk, police
can go in w/o violating 4A.
2. Thus, reasonable expectation of privacy defeated with consent to enter.
4. Information/Technology
i. Without Physical Trespass: Consider 3d party disclosure; if device, (1) whether device
is in general public use (2) if information from device is otherwise unattainable besides
physical intrusion.
a. Kyllo (2001) – Heat lamp thermo-tool to detect marijuana plants. Detecting heat
signature without a warrant is an unreasonable search for 4A purposes.

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 1. Rule: Police conduct implicates the 4A and is presumptively
unreasonable without a warrant where:
(i) Police use a device that is not in general public use; AND
(ii) Gather information from ∆’s home that would not otherwise
be available without physical intrusion.
2. Emphasized heightened protection of homes; criticism: social/cultural
norms of home privacy shift with time.
 Note: Police could’ve gotten utility information from gas company w/o
4A concerns. Does this collection/aggregation/data mining implicate
4A? See Jones, below.
b. U.S. v. Miller – 3d Party Disclosure. Depositor at a bank has no protectable
interest in microfilm of records. Once you make information public to a 3d party
you lose REP.
c. Smith v. Maryland – Cell phone data/location tracing. No 4A concern b/c
individual voluntary exposes information about who they are calling when they
call phone. Voluntary exposure.
ii. With Physical Trespass: If no consent + physical trespass by gov’t on private property
 search. Put physical trespass first here over reas. expectation of privacy.
a. United States v. Jones (2012) – J. Scalia; Plurality [all agree that it was search,
but 4-1-4-0] Without warrant, police attached tracking device on ∆’s vehicle to
monitor movements on public streets for several weeks. Search for 4A purposes.
1. Trespass makes a comeback! Gov’t physically occupied private
property for purpose of getting information  would’ve been
“”search” within meaning of 4A when adopted.
2. Katz test did not narrow 4A scope nor take away importance of
physical property rights/trespass.
(i) Katz Reasonable Expectation of Privacy test has been added
to, not substituted for, the common-law trespass test.
(ii) Thus, if have a gov’t trespass  don’t even have to go to Katz
analysis
3. Distinguished beeper cases
(i) Reas. Expectation Privacy Analysis: Knotts (1983) – Beeper
put into container, tracked on public roads and open fields
near ∆ cabin. No infringement of reas. expectation of privacy
b/c locations had been voluntarily conveyed to public.
Court then moves to use trespass as standard…
(ii) Trespass/Consent Analysis: Karo (1984) – at time beeper was
installed in container, container belonged to a 3d party before
∆ bought it. Installation was not a search or seizure for 4A
because the installation was with the consent of the original
owner + buyer didn’t know about it.
a. Here, ∆ was original owner of Jeep.
4. Car gets heightened protection here, more akin to home/curtilage than
just property

B. What is a Seizure? Commented [SC1]: Get clarification from supplements.

Objective Test: 4A allows police to approach bus passenger at random to ask questions and to ask for Come back to this!
consent to search, provided a reasonable person would understand that he or she is free to refuse and end
encounter. Florida v. Bostick (1991).
1. Rule: No presumption of invalidity of search/seizure if police fail to tell person of their right to
refuse and freedom to leave encounter. Fact-specific, totality of circumstances.
i. United States v. Drayton (2002) – 3 plain clothes police board bus as part of routine drug
and weapons prevention; one stays at front w/o blocking aisle; one stayed at back of bus;
one spoke to people. Avoided blocking aisle. Did not inform them of right to refuse to
cooperate. Police saw ∆s w/ baggy clothes in hot weather, ∆s agreed to pat down, found
drugs. No seizure for 4A purposes; ∆ consent to search was voluntary and not coercive.
a. Rejects per se rule that evidence obtained during suspicionless drug effort on
buses must be suppressed unless officer advised passengers of right not to
cooperate and refuse consent.

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 b. Factors
1. Not coercive or confrontational
(i) No application of force, no intimidating movement, no
weapon brandishing, no exit blocking, no command.
2. Location ø matter
(i) Just b/c on a bus does not transform standard police
questioning into illegal seizures
3. Just b/c most people cooperate ≠ reasonable people don’t feel free to
decline the search
c. Souter/Stevens/Ginsburg Dissent: Thinks that bus location + positioning of
officers is important. Here, made it atmosphere of obligatory participation;
reasonable for passengers to believe that trip would not continue until police
were satisfied. Also says air travel TSA ≠ bus travel.
2. Rule: Violation of the 4A requires an intentional acquisition of physical control. A seizure occurs
even when an unintended person or thing is the object of the detention or taking, but the detention
or taking itself must be willful. Brower (1989).
i. Scalia hypo from Brower: Parked/unoccupied police car slips brake and pins passerby
against a wall, likely a tort, but not a violation of 4A. Situation would not change if
passerby happened by chance to be serial killer w/ outstanding arrest warrant, even if at
time, was running away from two pursuing cops.
a. A 4A seizure does NOT occur whenever there is a gov’lly caused termination of
individual’s freedom of movement [innocent passerby], NOR even whenever
there is a gov’lly caused and gov’lly desired termination of an individual
freedom of movement [fleeing felon] BUT ONLY when there is a gov’l
termination of freedom of movement through means intentionally applied.
b. Thus, to be a 4A seizure, the cop must have been in the car and intentionally
pinned the person [no matter who they were] against the wall to stop them from
leaving.
3. Pursuit by Police: No seizure occurs where police have not yet caught the subject or placed any
physical restraint on him.
i. California v. Hodari D (1991) – Police pursued ∆ on foot. ∆ tossed away a rock of
cocaine as he was running, prior to being tackled. ∆ argued pursuit created a reasonable
belief on his part that he was not free to leave. At time he dropped the drugs, ∆ had not
been seized within 4A.
a. For a seizure to occur, there must be
1. Actual application of force; OR
2. Submission to police authority
b. Test: Seizure occurs when police exercise control over the suspect.
1. Applies only in situations where there is no compliance or submission.
2. Requires physical touching to show submission.
c. Rejects Mendenhall Test in this specific case
III. Justifying Searches & Seizures
So, if we decide 4A analysis is necessary, what standards are police held to? PC! Neutral magistrate decides PC.
Note: You can have searches with PC but w/o a warrant AND searches with a warrant but w/o PC. [2nd is rare]
But, unless case falls within a certain exception, must meet both PC + warrant requirements.
A. Search Warrants – FRCrimP 41 Commented [SC2]: Add in outside hours; telephonic
1. KEY ELEMENTS: warrants
i. Be based on probable cause established from facts submitted to the magistrate by a
gov’t agent
ii. Oath and affirmation of person submitting affidavits;
a. Writing or oral, better practice is writing.
b. Telephone is possible. FRCrimP 41.
iii. Particularly describe the place to be searched and items to be seized; and
iv. Be issued by a neutral and detached magistrate.
2. Procedural Execution of Warrant
i. Must be executed by the police,
ii. Without unreasonable delay
iii. Knock & announce requirement

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 a. Must knock and announce her authority and purpose and await admittance for a
reasonable time or be refused admittance before using force to enter.
1. Sufficiency of delay: if reasonable fear that evidence will be destroyed,
limited delay is OK
2. “No Knock” entry possible: if officer has RS based on facts that
knocking/announcing would be dangerous or futile or that it would
inhibit investigation by causing destruction of evidence
b. Remedy: exclusionary rule not apply to cases where officers violate knock and
announce rule.
iv. Scope of Search – limited to what is reasonable necessary to discover items in warrant
v. Seizure of Unspecified Property – police generally m ay seize any contraband or fruits or
instrumentalities that they discover, whether or not specified in warrant
vi. Search of Persons Found on Premises: not allowed if not named in warrant
3. Particularity Requirement
i. Hypo1: “Request to search premises of the last house on the left on State Street, Sanford,
ME”
a. This is a bad warrant. Needs to be specific enough so it’s crystal clear.
ii. Hypo2: Police Search Wrong Place: “Police may search apartment of James Smith Apt
#2W 719 Main Street.” Police search apt #2E (Sara Jones) find drugs; Smith was in
#2W. Ms. Jones moves to suppress.
a. Did police act in objectively reasonable manner in searching the apartment they
did?
b. No, but the warrant is still valid.
iii. Hypo3: Police may search apartment of “James Smith Apt #2 719 Main Street.” Police
don’t know, and no way to know, that floor in old house has been divided into 2
apartments.
a. Step1: Is over breadth of failure to realize objectively reasonable?
1. Yes.
b. Step2: Are the police actions objectively reasonable: once they realize in wrong
apartment, did they stop searching?
1. If they found it before realized, warrant is good.
2. If found after this realization, and continue to rummage  warrant is
still good, but search is bad, gets suppressed.
iv. Hypo4: Anticipatory Search Warrant: “Police may search for and seize child porno at ___
on or about next Tuesday September 13, 2016, after 12 noon after which time child porn
is expected to be delivered to above address.”
a. Allowed under Grubbs, but must have:
1. Strong PC showing for triggering event; and
2. Strong PC that after triggering event the evidence will be found in
location you seek to search.
b. Format of child porn = totality of circumstances evaluation
4. Neutral magistrate
i. Rule: Must be member of judicial branch. Coolidge (1971).
a. Hypo1: Warrant issued by U.S. Attorney General to search a suspected terrorist
house.
1. Impermissible, must be a neutral magistrate, aka a member of judicial
branch [does not have to be a full judge]
ii. Rule: No financial incentive to find PC unless it’s equal both sides.
a. Hypo2: Local justice of the peace is paid $25 by county for every search warrant
issued.
1. Impermissible. Can’t be financial incentive to find PC.
2. Compare paying $25 per warrant application considered. This is
permissible [as long as equal both sides; courts to date have found it
valid].
5. Oath or Affirmation [see also PC]
i. Rule: Facially insufficient affidavits cannot be rehab’d by testimony of information the
officer had when he sought warrant but didn’t tell the magistrate. Whiteley v. Warden
(1971).

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 ii. However, a ∆ may challenge a facially sufficient affidavit after the act when it is shown
to contain false statements.
a. But, negligent or innocent falsehoods will not invalidate a warrant unless:
1. ∆ can establish affidavit contained perjury or lies made in reckless
disregard for truth; AND
2. Remaining content is not sufficient to establish PC.
If above two met  warrant void, fruits of search excluded.
B. Probable Cause
1. Test: Gates – whether magistrate had a substantial basis for concluding that the evidence is in the
place to be searched. Look at totality of circumstance to decide whether police have given
magistrate this substantial basis.
i. Old Two-Pronged Test for PC [Aguilar-Spinelli]
a. Basis of knowledge of informant
b. Veracity of information + credibility of informant’s report Gates Revised PC Standard
ii. Illinois v. Gates (1983) – Anonymous letter about a couple who go to Florida for drugs Whether there is “fair probability
given to police. Anticipatory Search. PC found. that contraband or evidence of a
a. Totality of Circumstances Test crime will be found in a particular
1. Aguilar-Spinelli Test would have failed here. place”
(i) Basis of knowledge? No; letter alone gives nothing to  Permits reliance on anonymous
reliability of information. tips by allowing a strong showing
(ii) Veracity of info? No; nothing to conclude credibility of writer. via corroboration that
2. In order to keep people like the Gates from walking away, have to informant’s conclusions are
make it ok to use anonymous tips.
accurate [knowledge prong] to
b. Ct okay with inconsistencies; enough similarities w/ police corroboration to
remedy a weak or nonexistent
meet totality of circumstances test.
showing as to credibility.
 Criticism: Does totality of circumstances go too far in other direction
from rigid Spinelli? Does it make it too easy to get a warrant? Or  It’s enough that corroboration
balance? provides substantial basis for
2. Fine Points crediting the hearsay.
i. Must be more than mere affirmance of belief or suspicion that affiant believes PC exists.
Nathanson (1933).
a. Ex., can’t just say “I know this is how drug dealers operate”
b. Magistrate can’t ratify bare conclusions of others, must have sufficient
information to allow him/her personally determine whether there is PC.
ii. Standard of review: Where a search warrant was properly granted, the standard of
review on appeal is highly deferential to the lower ct’s decision. Orenelas (1996).
a. Thus, deference is reserved only for searches conducted pursuant to a warrant;
the question of whether PC existed to make a warrantless search should be
reviewed de novo on appeal.
 Real World: Because PC is fact-specific, appellate decisions unlikely to
have broad legal implications; PC also rests on credibility judgments, which
are still given deference as findings of fact, so rarely reversed.
 Policy: incentivizes cops to put in effort to get factual basis for allegations
iii. 4 Corners: Most magistrates will only consider info within “4 corners” of affidavit.
a. However, if it is information that makes it less likely to establish PC, 4 corner
rule does not apply and court can consider it when determining PC for warrant
on appeal.
iv. Staleness: Information in supporting affidavits must show that PC exists at the time the
warrant issues. Bervaldi.
a. Decide on case-by-case basis, considering [not exhaustive]:
1. Length of time,
2. Nature of suspected crime [separate or ongoing conspiracy, habits of
accused, character of items sought]
3. Nature/function of premises to be searched
b. However, stale information can establish PC if gov’t affidavit updates,
substantiates, or corroborates the stale material. Ct will be more flexible if can
show ongoing.

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 c. Hypo: “I have been told by reliable source, who gave truthful info in a prior
case, that J bought bag of coke one week ago and put it on kitchen table in his
apartment; the source was present when sale was made.”
1. No arbitrary time limitations; review case based on unique facts
presented.
2. This is probably okay. Franks Process
v. Invalidating Search Warrant that is Sufficient on its Face: A ∆ can challenge a 1) Judge looks at affidavit that
warrant that is facially sufficient. The court must hold a “Franks Hearing” to decide provided PC for warrant
validity if ∆ makes a substantial preliminary showing of all three requirements: [Franks v. 2) Delete info illegally
Delaware] obtained and [maybe]
a. False statement was included in affidavit by affiant [officer applying for evidence derived from illegal
warrant; conduct
b. Affiant intentionally or recklessly included that false statement [i.e. officer
3) Ask if remaining
knew it was false or included it knowing there was a substantial risk it was
information constitutes PC.
false]; AND
c. False statement was material to the finding of PC [i.e., w/o false statement,
remainder of affidavit not enough for PC] **BUT YOU’RE NOT DONE!
 Thus, the mere fact that an affiant intentionally included a false statement Even if Ø PC, evidence
in the affidavit will not automatically invalidate a warrant under the 4A. could still be admissible under
 Inadvertent or negligent misstatement of the officers aren’t enough. exclusionary Leon analysis
d. ***BUT! See Leon – even if all 3 requirements are met, the evidence may be [aka reasonable reliance]
admissible: despite an ultimate finding that the warrant was not supported by
PC, evidence obtained by police in REASONABLE RELIANCE on a facially
valid warrant may be used by the prosecution.
vi. Informant bias: PC not most demanding standard, if cts were concerned a lot about this,
they might not ever accept tips. Fact-based under Gates totality test.
a. Stifler (9th Cir.) – affidavit didn’t mention informant was a couple who was
fighting with ∆s; paid by gov’t for giving info. Informant bias did not invalidate
warrant. Mainly due to flexibility of Gates.
b. Glover (7th Cir. 2015) – Informant bias invalidated warrant.
vii. Standing
a. Only the driver of a car can challenge search of vehicle [reasonable expectation
of privacy].
b. Passenger can’t challenge glove compartment or trunk searches. Rakas.
c. If police search a backpack, you don’t have standing to object if it’s not yours.
d. Overnight guests in a home will have standing to challenge search of room they
are staying in because they have legitimate expectation of privacy in their
temporary quarters [unlikely the host will let someone else in their guests do not
want there] Minnesota v. Olson.
1. Thus, visitors, who are not staying overnight but have permission to be
on premises have no standing. Minnesota v. Carter.
3. Hypos: Is there PC?
i. Hypo1: Officer W states in affidavit that she has “reliable information from a credible
person that illegal narcotics are being stored at the home on 35 Main St.” Should
magistrate issue search warrant for the home?
a. No PC, too conclusory. Borderline on being mere hunch; not enough under
Nathanson.
ii. Hypo2: An anonymous call to crime stoppers… pretty specific. Important to consider
what you want the warrant for! Here, very specific.
a. PC close/maybe… if prosecutor, why run the risk. Ask the agent to do a little
more corroboration. Be on safe side. Consistent with duty of candor with the
court.
b. How would you make it better?
1. Go to bank, see if corroborate any of the details [tellers, security
cameras].
2. Also find out about the blue car, what it looks like. Did he pay cash for
luxury car?
iii. Hypo3: Williams is seeking warrant to search Johnson’s office, in her affidavit, O states;
“I was told by J’s wife that Johnson always keeps some illegal drugs in his desk at work.”

9
 When the magistrate questions W, asking why wife is turning on Johnson, Williams says
wife and J are getting divorced and are in a custody fight. Is there enough in this, is it
stale?
a. New enough, specific enough. Tip here is a good start but might not get you
there.
b. Ask them to go back and do more investigation: how much, what drug, personal
use?
iv. Hypo4: W’s affidavit says; “A reliable informant, who gave me information once before
that led to a conviction, says that drugs are being sold at 35 Main St. The informant
knows this because his sister sometimes buys there.”
a. Probably ok to establish PC.
b. Is once enough? Probably, not talking about beyond a reasonable doubt here.
This is a good start and all of this leans towards supporting. Says drugs are sold,
then says HOW they know it.
c. Hearsay factor? Doesn’t matter here given circumstances, because probable
cause is not a super high hurdle; maybe ask how long ago sister was there, etc.
C. Justifying Searches & Seizures w/o Warrants
***High preference for warrants
1. Exigent Circumstances
i. Rule: Searches conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the 4A – subject only to a few specifically
established and well-delineated exceptions. Mincey.
ii. Rule: Exigencies of the situation should make the needs of law enforcement so
compelling that the warrantless search is objectively reasonable under the 4A. Mincey.
a. Time constraints make it impracticable for officer to get a warrant. Requires
immediate action, so reasonable to search without a warrant.
iii. Generally…
a. Categories are:
1. Hot pursuit [∆ is getting away]
2. Evidence being destroyed
3. Safety of officers, public, victim, community caretaking
b. Exigency that justifies the warrantless actions should restrict the scope for the
resulting search.
c. The exigent circumstances exception lasts no longer than the exigency.
Mincey.
1. Thus, once exigency ends, police can’t constitutionally continue to
search w/o a warrant.
2. They must justify their continued warrantless conduct on basis of a
different exception.
d. **PC IS STILL REQUIRED!** To dispense with the warrant requirement,
the police must have PROBABLE CAUSE THAT EMERGENCY EXISTS.
1. Issue of whether a warrant is required is independent of the question of
whether sufficient cause exists for warrantless search or seizure. Commented [SC3]: Dig deeper on this, p. 180 in Dressler
iv. Mincey v. Arizona (1978) – Officers, inside home when homicide occurred, secured
premises and searched for other victims; 10 min later, homicide investigators arrived and
searched entire house without a warrant. Initial warrantless search for possible victims
was justifiable; subsequent warrantless search by homicide investigators after emergency
was over was unconstitutional.
a. Ct rejects gov’t argument of making a new murder exception.
1. The warrant requirement can never be discarded under 4A solely
because of efficiency.
2. Could extend to scene of rape, robbery, burglary; slippery slope.
3. Search warrant could have been easily obtained here.
b. No incrementalism to exceptions.
 Note: PC allows police to make on-the-spot decisions about safety. Think
about the argument as to how it affects their everyday life.
v. Destruction of Evidence:
a. Kentucky v. King (2011) – Police smelled recently burnt weed from apartment
door; announced themselves and banged on door, heard people and things

10
 moving inside; thought that meant drug evidence was about to be destroyed.
Kicked in door, found lots cocaine + weed. Exigency valid; warrantless search
justified.
1. Rule: Where the police did not create the exigency by engaging or
threatening to engage in conduct that violates the 4A, warrantless entry
to prevent destruction of evidence is reasonable and allowed.
2. Thus, more is needed than just proof that fear of detection by police
caused destruction of evidence.
3. Officers here did not violate or threaten to violate 4A before exigency
existed.
vi. Safety
a. Ryburn v. Huff (2012) – High school tells police there is rumor that 17 y/o is
going to “shoot up” the school. Police go to his house, mother comes outside to
talk. Police follow Mom into house, see evidence.
1. Reasonable for police to believe exigent circumstances existed.
2. Focused on perspective of police officer; lawful behavior [mother
running into house after not answering q about guns] can still be
concerning; public/officer safety justified it.
b. Martinez (10th Cir. 2011) – Police receive 911 call, but there is only static.
Police call back but get no answer, just more static. Squad car is sent to house to
check (no lights or siren), no answer at door, no signs of life inside. Police enter
through unlocked back door and find child porn. No exigent circumstances;
nothing more than a bad search.
1. Rule: Must be a person who needs help in order for an exigent
circumstance based on public safety.
vii. Community Caretaking
a. Brigham City v. Stuart (2006) – Police saw adult + teen fighting through screen
door, entered house, arrested them. Warrantless entry and arrest was justified;
exigent circumstances existed.
1. Officer’s subjective motivation for entering is irrelevant; wouldn’t
matter if his goal was to arrest them or stop the violence.
2. Entry was plainly reasonable under circumstances; had objectively
reasonable basis for believing that injured adult might need help and
that violence might get worse.
 Note: No PC or RS analysis here.
viii. Hot pursuit
a. Hypo1(a): Police see Sam rob a store; they chase him, he runs into a house,
police follow. Police arrest Sam in the home without a warrant, seize the gun.
1. Allowed; D is running, the gun is a threat to officer + public safety.
b. Hypo 1(b): Sam runs through the house and out the back. The police see gun on
Sam’s kitchen table, and seize it.
1. Likely depends on who owns the house, the gun… but the police can’t
tell in the heat of the moment whose gun it is.
2. Good: Probably could seize it.
3. Better: you do have the ability to secure the scene and get a search
warrant for later.
c. Hypo2: Police enter Sam’s apartment with an arrest warrant but he is not home.
Worried that Sam has moved out, the police open a bureau drawer to see if Sam
has packed his clothes. In the drawer is a bloody knife; police use this info as PC
to get a search warrant, then seize the knife.
1. Key here: the warrant was for the arrest of Sam. Look at scope, he obvi
wasn’t going to be in a drawer, so the warrant does not support search.
Fruit of poisonous tree.
2. Plain View
Justification for a warrantless SEIZURE, not search, of evidence in “plain view”
i. Basics
a. Object is in “plain view” and subject to warrantless seizure by police if:
1. He observes it from a lawful vantage point;
2. He has a right of physical access to it;

11
 3. Right to seize is immediately apparent [obvious that it is contraband or
a fruit, instrumentality, or evidence of a crime]
ii. Rationale:
a. Meant only to free police from inconvenience of securing warrant to seize that
which is found in plain view during an otherwise lawful search or non-search
activity.
b. It does not dispense with PC requirement for the seizure.
iii. Lawful Vantage Point: Essential that officer did not violate 4A in getting to place where
he can see the evidence in plain view. Possibilities:
a. Discover during execution of valid search warrant;
b. May come into view during in-home arrest pursuant to arrest warrant;
c. Discovered by an officer during a justifiable warrantless search [exigence
circumstance]; or
d. From an activity that does not constitute a search in the first place and thus falls
outside scope of 4A.
iv. Right of Access to Object: Officer must have a 4A justification to enter the premises,
not just the fact that the object is visible.
v. Right to Seize is Immediately Apparent: Must have PC to seize article in plain view.
AZ v. Hicks.
a. Arizona v. Hicks (1987) – Police entered ∆’s apartment w/o a search warrant b/c
a bullet had been fired through ∆s floor into apartment below, wounding
someone. Entered to search for shooter, other victims, and weapons. Police saw
expensive stereos that were out of place, but had no PC that they were stolen.
Police turned/manipulated stereo turntable to record its serial number; found out
it had been stolen; and seized turntable. Returned with warrant later to get other
parts. Warrantless seizure of the turntable was unconstitutional.
1. Observed from lawful vantage point – YES. Observed during search
justified under exception to warrant requirement [safety/hot pursuit]
2. Right of physical access – YES.
(i) Had a 4A justification to be in apartment
3. ***Immediately apparent – NO.
(i) Moving the turntable to get to serial number was a new search
[not seizure – no meaningful interference w/ possessory
interest] that required an additional justification.
(ii) Why? It exposed to police matters not previously visible; ∆
had a reasonable expectation of privacy for these matters on
the bottom of turntable.
4. Thus, must ask if the new “search” could be justified in light of
original justification for intrusion?
(i) Here, no: a weapon could not have been realistically under the
turntable.
(ii) Hypo: If it could have been, new search would have been
permissible and b/c it gave police info that led to PC that it
was stolen, could have lawfully seized it.
vi. Hypos
a. Hypo1: ∆ is not at home. Police go to neighbor’s house, look into ∆’s upstairs
bedroom window with binoculars, sees ski mask, jacket, gun described in
robbery. Officers enter ∆’s house and seize evidence.
1. Go get a warrant!!!
2. INVALID; seizure not authorized by plain view doctrine, no lawful
right of access.
b. Inadvertent Discovery – Hypo2: Suspect is reputed drug dealer. Police want to
search home drugs but lack PC. But police have PC that ∆ keeps illegal exotic
animals in homes. Police get search warrant, find drugs in couch seat cushions
in basement.
1. Plain view discovery does not have to be inadvertent, but still must be
where have right to search. Horton.

12
 (i) Justification: Particularity + strict exigency scope limit area
and duration of search already, inadvertency adds no add’l
privacy protection.
(ii) Interference w/ individual’s possessory interest is same in both
cases, along w/ danger of requiring officer to leave and get a
warrant in both.
vii. Plain Hearing & Plain Smell Doctrine
viii. Plain Touch/Feel Doctrine
a. Minnesota v. Dickerson: Police may seize contraband detected solely through an
officer’s sense of touch if, analogously to plain view:
1. The officer had a right to touch the object in question; and
2. Upon feeling it, the fact that it was contraband was immediately
apparent.
3. Automobile Exception
Exception to the warrant requirement, but STILL MUST HAVE PC.
i. General Rule: As a general matter, the search of a car (including integral parts: glove
compartment and trunk, etc.) can be based solely on PC to believe that the car contained
evidence or contraband; a warrant is not needed. Carroll; Chambers.
a. Ex. Carroll (1925) – Police slashed seats; had PC to believe there was liquor in
there. Search was valid.
b. Ex. Chambers (1970) – Police stopped car on PC that occupants had committed
late night robbery; police took car to police station to search rather than along
the road. Search was valid.
1. As long as there is PC at the time the car is stopped, can search car at
police station or on road.
2. Safety for police, privacy for owner of car.
 Note: A delay of a day [Ex. Cardwell v. Lewis (1974), plurality] or a few
days is reasonable; delay of a year is unreasonable [Ex. Coolidge (1971)]
c. Rationale:
1. Inherent mobility of car – police cannot find it again if they do not
search it then
2. No reasonable expectation of privacy – case law has developed this
idea.
 Note: Be aware, caselaw contains dueling rationales; some states’
constitutions are contra, ex. Tibbles (Wash. 2010).
ii. Scope of Search Depends on PC
a. Rule: Scope of a warrantless search of an automobile is defined by the object of
the search and places in which there is PC to believe that it may be found. Ross
(1982).
1. Thus, PC to search does not always apply to the entire automobile.
b. Rule: If police have reliable information that criminal evidence is somewhere in
(or throughout) a vehicle, their right to search will extend to the entire car.
1. However, if police only see ∆ place a small paper bag in trunk of a
vehicle and drive away, and they have PC to believe bag contained
drugs, but not the rest of the car, their right to search only includes the
trunk to look for the paper bag. [facts from Acevedo]
c. Rule: Police can only search any part of a vehicle that might
logically/realistically contain the object of the search [just like warrant
searches].
1. Ex. If PC to search a car for large TV, police cannot open the glove
compartment. If PC to search for jewelry, can search glove
compartment.
d. Rule: Once police discover the criminal evidence they have PC to search for,
the search must cease unless there is new information that would justify PC for a
new search.
iii. Special Problems: Search of Containers in Cars
a. General Rule: Containers may be searched without a warrant during an
otherwise lawful automobile exception search. Acevedo.

13
 1. Extends to containers belonging to anyone: passengers, those not
present, or those not even linked to the car, as long as the containers are
capable of concealing the object of the search. Wyoming v. Houghton
(1999).
2. If it may be searched at the scene, container can also be seized and
searched without a warrant shortly after at police station.
b. Applies in 3 General Circumstances: both allow opening of container w/o
warrant.
1. Part of valid warrantless car search, police may unforeseeably come
across a container. They may open it without a warrant [ASSUMING that
the container is large enough to hold what they’re searching for].
(i) Ross (1982) – Still good law.
Police had PC to search entire car; during search discovered
closed paper bag in trunk; opened it without warrant.
a. Rationale: PC to search car under valid automobile
exception, justifies search of every part of vehicle +
contents that may conceal object of search.
b. Applies to all containers in a car.
2. Police have PC to believe that a particular container holding evidence
will be found in a car. Police may conduct a warrantless search of the
car for the container and then open the container, also without a
warrant.
3. Police may have PC to believe that a particular container holding
evidence will be found in the trunk/specific area of vehicle. Police may
conduct a warrantless search of that specific area of vehicle, and upon
finding the container, may conduct a warrantless search of that
container even though they don’t have PC to search the entire car.
(i) Acevedo (1991) - Overruled Chadwick-Sanders line of cases.
See general rule above. Search valid.
a. Don’t have to have PC to search an entire car to open
a container in it!!!
b. Chadwick-Sanders distinction provided minimal
protection of privacy; impeded effective law
enforcement.
c. Limitation: Unless exigent circumstances, consent, or SIA, cannot open
container outside automobile without warrant.
d. Rule: All containers are treated alike for 4A purposes.
1. One Exception: Containers which “by their very nature cannot support
any reasonable expectation of privacy because their contents can be
inferred form their outward appearance.” Acevedo.
(i) Literal plain view [open/transparent; ex. plastic bag]  no
REP
(ii) Figurative plain view [container is distinctive as to announce
contents; ex. gun case]  no REP. Robbins.
iv. Scope
a. RVs, motorhome [unless permanently hooked up to utilities], airplane, train,
boats, buses
b. If it can move  exception applies.
v. Stops
a. Must have PC.
b. Officer can develop PC during a stop, but they cannot search vehicle without
PC.
1. However, the stop must be a good stop.
2. Ex of good stop: officer has PC you violated traffic law: taillight out.
[bad stop would be if taillight wasn’t really out]. Can pull you over for
that even if they really think you’re driving around w/ drugs. Can have
dog sniff if officer thinks you have drugs as long as stop isn’t stretched
longer than a normal traffic stop would take.

14
 vi. Hypos.
Acevedo facts and police…
a. Hypo1: Open trunk, immediately spot paper bag, open it, find pot
1. Bag admissible? Yes. They had PC to search trunk and therefore bag in
trunk
b. Hypo2: After find drugs in paper bag, search rest of trunk, find transparent bags
of coke under blanket.
1. Admissible? No. Suppressed under automobile exception, couldn't
move blanket to get to another area.
c. Hypo3: Open trunk, immediately spot paper bag, open it, find no contraband.
What happens? What do police have to do?
1. Say police search rest of trunk, find transparent bags of coke under
blanket. Can evidence be admitted?
(i) Not admissible; bad search, exceeded exception. Once finding
no drugs in paper bag, PC goes away. Ok to go into paper bag
that you have PC for, but can't go further.
d. Hypo4: Open trunk, do not see paper bag, search rest of trunk, see briefcase, see
gun it in, police know person is felon. Can this come in?
1. If you have PC to search the area, can search entire area. Can search
anything you find in that area. If you find container in that area, you
can open it.
2. Thus, can open briefcase here.
4. Warrantless Arrests
i. PC Requirement: At time of arrest, the officer has within her knowledge reasonable
trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to
believe that the suspect has committed or is committing a crime.
a. No staleness; cf. with PC to Search
ii. No Warrant Rule: Generally, police do not need a warrant to arrest someone in a public
place, even if they have time to get one and there is no practical impediment to doing so.
Watson.
a. Exception: Home arrests require an arrest warrant. Payton.
1. Ex. Payton (1980) – Ct struck down NY Statute that authorized
warrantless entries into homes to make felony arrests.
(i) If search warrants are necessary to look for property in private
homes, arrest warrants should be necessary to look for people
in private homes.
(ii) Arrest warrant that has PC implicitly carries with it limited
authority to enter suspect’s private home when there is reason
to believe suspect is within.
b. Homes of Third Parties: Absent exigent circumstances, the police executing an
arrest warrant may not search for the subject of the warrant in home of 3d party
without first getting a separate search warrant for the home. Steagald.
1. However, if the police do violate this, the arrest is still valid, but
evidence of any crime found in home during search cannot be used
against the owner of the homes since it is the fruit of an
unconstitutional search.
(i) Can be used against the arrestee; no standing to challenge 4A
b/c his personal property right was not violated [not his home]
2. Ex. Steagald (1981) – Police had arrest warrant for R; informant said R
could be found at S’s house. Searched S’s house; did not find R but
found cocaine. Search was unreasonable; evidence suppressed.
(i) Regardless of how reasonable police belief is that arrestee may
be in the 3d party home, the warrant was never subjected to
detached scrutiny of a judicial officer to determine PC to
search the home for anything else other than arrestee.
(ii) However, if R had been there, the arrest would have been
valid; no 4A standing to challenge b/c not his home and thus
no REP.

15
  Policy: Reaffirms bright line rule that warrantless searches of
a home are impermissible absent consent or exigent
circumstances.
iii. Rule: A suspect cannot defeat a warrantless arrest that begins in a public place by
escaping to a private place. Watson.
5. Search Incident to Lawful Arrest (“SIA”)
If lawful arrest  automatic right to search.
NO PC REQUIRED FOR SEARCH/SEIZURE.
i. Arrest Requirements
a. Must be lawful [PC]
b. Must be custodial [ex. cannot be traffic citation]
ii. Three Areas where Police can do SILA
a. The person arrested. Robinson (1973).
b. Area in arrestee’s immediate control [“lunging/grabbing area”]. Chimel (1969).
c. If in home, police may search for persons in closets and areas immediately
adjoining the place of arrest that might hold people [protective sweep]. Buie
(1990).
iii. Generally
a. Rule: If a SIA involving a vehicle,
1. Exception: permits warrantless search of passenger compartment if
there is PC for evidence of crime in vehicle.
iv. Searching Person Arrested
Automatic, everywhere, no matter if arrested in home, vehicle, boat, public place, etc.
a. For Weapon: Police have automatic right to perform a warrantless search and
seizure of an arrestee to find weapons and protect themselves.
1. Arrest gives ∆ incentive to use a weapon
2. Police need a chance to find it
b. Evidence: Police have an automatic right to perform a warrantless search and
seizure of an arrestee in order to prevent destruction of evidence. Robinson
(1973).
1. Police have right to search containers found on the person; ex. cigarette
box containing heroin in Robinson.
(i) However, limited to personal property immediately associated
with the person. Chadwick.
c. Smart Phones: Police must have a warrant to search a cell phone seized
incident to an arrest. Riley/Wurie.
1. Riley/Wurie (2014) – 8-1. Police seized cell phones from arrestees and
used information in texts/photos to get incriminating evidence leading
to their convictions of serious offenses. Search of cell phones seized
incident to arrest falls out of SIA exception; must have warrant.
(i) Balancing Test
a. Gov’t Interests [Chimel’s Twin SIA Rationales]
i. Safety – Digital content, unlike physical
objects, could not directly endanger police
ii. Evidence Preservation – though remote
wiping and encryption unique to digital, ct
said neither prevalent and could be
addressed in other ways.
b. ∆s Privacy Interests
i. Cell phones have a ton of info on ∆s life,
background, geolocation data, apps, history,
etc.
(ii) Rejected two other holdings
a. Gant-inspired rule to permit “a warrantless search of
an arrestee’s cell phone whenever it is reasonable to
believe that the phone contains evidence of the crime
of arrest”
i. Ct: no practical limit

16
 b. Analogue Test to allow access to info on phone that
would be otherwise obtainable from non-digial
sources
i. Ct: no practical limit, expansive
functionality of most phones
v. Searching Grabbing Area in Immediate Control
There is no bright line rule for scope of “immediate control.”
a. Belton (1981) – Overruled by Gant.
∆ and passengers in car, lawfully stopped. Police saw marijuana, arrested ∆.
Ordered occupants out of vehicle considerable distance from car. Searched
passenger compartment for further evidence + weapons.
1. Special bright line rule for grabbing area: Police may,
contemporaneously to the arrest of automobile occupant, automatically
search entire passenger compartment [front seat, back seat, under seat]
of vehicle + all containers found therein whether or not open or closed.
Trunk off limits.
2. Criticism: We obviously should allow them to search the arrestee but
why should we believe that the entire passenger compartment of a car
is always within the grabbing area of arrestee? Esp. since search will
almost certainly occur after arrest, when ∆ out of car, or handcuffed
even in the cop car.
3. Extended in Thornton to include if arrestee is “recent occupant” of car.
b. Gant (2009) – 5-4. Explicitly overruled Belton.
∆ arrested for suspended license. Removed, handcuffed, locked in back of patrol
car. Then, police searched passenger compartment of car incident to arrest and
found cocaine in jacket in backseat. Police justified search under Belton.
Warrantless SIA unconstitutional.
1. Rule: Police may search a vehicle incident to a recent occupant’s arrest
only if
(i) The arrestee is within reaching distance of passenger
compartment at the time of the search; OR
(ii) if it’s reasonable to believe that the vehicle contains
evidence of the offense of arrest.
2. Neither were present here; at time of search, Gant could not reach
passenger compartment. No evidence to believe that any evidence of
crime of driving with suspended license was in the car.
3. Alito Dissent:
(i) Stare decisis grounds
(ii) General issues
a. What does the court mean by “reason to believe the
vehicle contains evidence of the offense of arrest?”
Different standard/less than PC?? [maybe, but not
sure yet]
b. Why should rule be limited evidence of offense of
arrest? If they think they’re gong to find other
evidence of another crime, why restrict them from
that?
vi. Searching Arrestee’s Home
a. For Evidence: A warrantless search of an arrestee’s entire house is not
constitutionally justified as a SIA. Chimel.
1. Ex. Chimel (1969) – Police had arrest warrant for ∆ for burglary; wife
let in before ∆ got home. ∆ got home, officers asked to look around, ∆
said no, but officers said they could anyway because of arrest. No
search warrant. Search entire house for 45min-hr; found evidence of
burglary. Search of entire house uncon’l; not SIA.
(i) Ct wants close tie b/w scope of search and justification like in
SIA.

17
 (ii) No comparable justification for “routinely searching any room
other than that in which an arrest occurs”; here, search went
beyond area ∆ could have gotten weapon or destroyed
evidence.
(iii) Abrogates Rabinowitz “possession/control” standard for
search.
b. Protective Sweep: Police may, w/o PC or RS, make a “cursory inspection” in
closets and areas immediately adjoining place of arrest from which an attack
could be immediately launched. Buie.
1. Thus, to look in areas not immediately adjoining place of arrest, there
must be articulable suspicion that that area harbors a dangerous person.
2. See Chimel for what a protective sweep of a home is not.
6. Inventory Search
Automatic, just like SILA.
i. Rationale: Because an inventory search is not part of a criminal investigation, and is just
a routine, administrative process, then the warrant requirement of 4A, which relates to
searches for criminal evidence, simply does not apply.
a. Because the PC requirement in 4A is linked textually with warrant requirement
– “no warrant shall issue except for PC” – then since no warrant requirement, no
PC requirement.
b. What’s left: Is an inventory search reasonable or unreasonable?
1. Protect police from false claims of theft;
2. Protect police from dangerous items in car;
3. Protect items in car from being stolen.
c. Weighed against these interests is car owners reduced expectation of privacy in
the car: a warrantless search of car as part of routine inventory is reasonable.
ii. People: Can do inventory search of person after arrest without warrant and with no PC.
Illinois v. Lafayette.
a. Mere fact of arrest entitles you to inventory search if the arrest is valid.
b. What can you seize? Anything in pockets, containers, personal effects.
c. Must be routine, like before ∆ goes to jail.
iii. Cars: Can do inventory search of car without warrant and with no PC if it is conducted to
routine operating procedures in that community for conducting car inventories.
Opperman.
a. Must be standardized list, not loosy-goosy. Checklist.
b. Police cannot be acting solely to investigate; ex. prosecutor can’t ask a police
officer to make a stop in order to get an inventory search to get evidence to
arrest.
iv. Limits
a. Limited discretion when to impound and inventory cars; must be routine.
1. Distinctions can’t be based on suspicion of crime.
2. Courts are split as to whether you can have a pre-textual decision to
search.
3. Written guidelines help.
b. Rule: cannot have a policy that requires towing/impoundment if the driver is
suspected of a crime.
1. Ex. Taylor (CA8, 2011) - Police responded to a request by a fellow
officer to follow a [certain] green truck and initiate a traffic stop if the
driver, ∆, committed a traffic violation. Police were informed that
Taylor was suspected of involvement in a narcotics transaction and that
narcotics were believed to be in his vehicle. Observed Taylor fail to
signal, and made a stop. Impounded car, drugs were found. Throw it
out — not a proper stop.
(i) Policy here was to impound every vehicle suspect used in a
crime. Thus, inventory search not being used administratively,
but for criminal investigation. Not ok.
(ii) Ct will have issue with reasoning of stop and search regardless
of inventory quality/list.

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D. Consent: Justifying Searches and Seizures without PC or Warrant
Waives PC and warrant requirement.
1. Ask:
i. Was the consent voluntary?
ii. Did the officer’s actions exceed scope of consent given?
iii. Was consent given by someone with authority to give consent?
iv. What if a police officer gets consent from someone with apparent, but not actual
authority, to give consent?
2. Voluntary
i. Prosecutor has burden to prove by preponderance of evidence.
ii. Totality of Circumstances Test
a. Factors:
1. Knowledge of right to refuse [not dispositive]
2. Age, intelligence, education
3. Language ability
4. Degree of cooperation with police
5. Attitude about likelihood of discovery of contraband
6. Length of detention
7. Threat of coercive behavior by police
(i) Show of force?
(ii) Badger?
b. Schneckloth (1973) – Police stopped car w/ multiple passengers b/c of missing
license plate and headlight. Driver did not have license, officer asked to search
car; granted. Found evidence connecting passenger to a crime. ∆ argued consent
invalid b/c prosecution did not prove consenting party knew he had right to
refuse to consent to the search.
1. Issue: What must the prosecution prove to demonstrate voluntary
consent?
2. Rule: Knowledge of right to refuse is not dispositive of voluntariness;
it is only one factor.
3. Unwilling to incorporate Miranda-style warning; didn’t think threat of
coercion enough in these situations + didn’t want to put obstacles in
way of efforts to get reliable evidence of guilt
3. Scope of Officer Actions
i. Determined by objective reasonable standard: What a reasonable person might have
interpreted the exchange b/w officer and suspect to mean.
ii. Follows general search warrant principle that scope of search is limited by its object.
4. Third Party Consent
If evidence is used against the person who gave consent, there is no issue!!!!
i. Problem is when X voluntarily consents to search of premises or personal effects that also
belong to D, and the evidence is used against the person who did not give consent, D.
a. Two factual possibilities:
1. D is physically absent when X grants consent (Matlock);
2. D and X and both present; X consents, but D refuses to consent
(Randolph).
b. Rule: One party can consent to full search of area over which that party has
joint control if the other party is physically absent. Matlock.
1. Matlock (1974) – M arrested in front yard of house that he shared a
room with X. Police got consent from X to search the room. Did not
ask M, although he was nearby in custody. Consent valid against M.
(i) Assumption of risk – joint ownership/custody/living comes
with possibility that other person will consent to give up your
shared privacy if you are not there.
 Note: M could have easily been asked here. Thus, standard for
absence is low; fact that police had control over M’s location
irrelevant?
c. Rule: A warrantless search of a shared dwelling for evidence over the express
refusal of consent by a physically present resident cannot be justified as
reasonable consent. Randolph.

19
 1. Georgia v. Randolph (2006) – 5-3; Domestic dispute; police arrived;
wife told police husband used cocaine; husband denied. Police asked
husband to search house, he refused. Police asked wife to search, she
consented. Police searched house, found suspected cocaine.
(i) Ct shifted away from Matlock assumption of risk reasoning;
emphasized social expectations’ role in 4A reasonableness.
a. No common understanding that one co-tenant has
authority over the other to overrule their express
wishes.
(ii) If co-tenant not physically on premises, this rule doesn’t
apply.
(iii) If co-tenant doesn’t come to door because sleeping, eating,
showering, watching tv, etc.; they must be PHYSICALLY
ABSENT from premises, not just unaware of situation.
(iv) CJ Roberts Dissent:
a. Criticized inconsistency of societal standards, lead to
incons. results
b. Advocates Matlock assumption of risk reasoning
because more in line with “knowing exposure” of 4A
c. Policy: Domestic victim consents, abuser objects;
police cannot search  retribution on victim for
wanting search or destruction of evidence
5. Apparent v. Actual Authority to Give Consent
i. Rule: Warrantless entry of a residence is valid when it is based on the consent of a
person whom the police, at the time of entry, reasonably (but incorrectly) believe has
common authority over the premises. Rodriguez.
a. [Or, a search based on a reasonable mistake of fact as to the authority of the 3d
person to give consent is a reasonable search within 4A.]
b. Objective Test: Would the facts available to the officer at the moment… warrant
a man of reasonable caution in the belief that the consenting party had authority
over the premises?”
ii. Illinois v. Rodriguez (1990) – Scalia, 6-3. X reported to police she had been severely
beaten by R in specified apt. X told police R was now asleep in apt, offered to let police
in so they could arrest him. X said “our” apt, told police she had clothes + furniture there.
With X’s consent, police entered apt, found drugs, R arrested. Trial ct excluded evidence
b/c X lacked common authority over apt. X’s consent was valid.
a. Issue is NOT whether right to be free of searches has been waived, but whether
the right to be free of unreasonable searches has been violated.
b. 4A does not always demand that police/magistrates issuing or executing
warrants be CORRECT, but that they always be REASONABLE.
6. Hypos [add in later] Commented [SC4]: ADD HYPOS IN LATER FROM CLASS!
E. Stop & Frisks – Terry Doctrine
1. Basics
i. To conduct a brief-detention seizure [stop], police must have RS that person is about to
commit a crime or has been involved in a crime.
ii. To conduct a brief pat-down search for weapons [frisk], officer must have RS that the
subject is armed and dangerous.
iii. When is a person seized?
a. When a reasonable person, as a result of force or show of authority, would
consider herself not to be free to go.
b. In pursuit, no seizure occurs unless the suspect is touched or the persons submits
to authority.
2. Terry v. Ohio (1969) - Commented [SC5]: UM DO TERRY !!!!! SIGNIFICANCE!
3. Reasonable Suspicion
i. Less stringent standard than PC, considerably less proof than preponderance of evidence
standard.
ii. Requires some objective evidence; cannot be an “inchoate and unparticularized suspicion
or hunch”

20
iii. Types of Information
a. Generally
1. Based in whole/considerable part in officer’s (O) personal observations
of the suspect + surrounding circumstances.
2. O can make common sense conclusions about human behavior.
(i) Ex. Wardlow
3. O can draw upon her personal law enforcement expertise and
specialized training to make inferences/deductions about cumulative
information available to them that might not occur to an untrained
person. Arvizu.
b. Hearsay/Tips
1. Rule: RS [like PC] may be based on hearsay.
(i) Thus, because RS less demanding than PC, can be based on
info less reliable than that required to show PC.
(ii) Use Spinelli factors (1) basis of knowledge (2) veracity of
knowledge; lesser showing for both ok
2. Rule: Anonymous tips are not enough by themselves to constitute RS.
Ex. Florida v. J.L. (2000) – Anonymous phone call reported young
black male wearing plaid shirt was standing at bus stop had a gun.
Police went to stop, 3 young black guys there; saw no guns, ∆ in plaid
shirt was not threatening/made no unusual movements. Police frisked
JL and found gun. No RS to search.
(i) Nothing other than tip indicated illegal conduct; no prediction
of future conduct
(ii) Accurate descript of person at particular location helpful to get
police there, but tip lacked predictive information that police
could corroborate.
(iii) Rejected Terry firearm exception – potential to harass
3. However, confirming predictive details can be enough to support
anonymous tips.
Ex. Navarette – Anonymous 911 call that truck ran caller off road; gave
color, make, model, plate of truck, direction of travel, + mile marker as
of 5 min ago. Police pulled truck over, found weed. 911 call gave
police RS to support terry stop.
(i) Basis of knowledge:
a. Eyewitness knowledge of caller – specific vehicle
b. Victim of dangerous behavior
(ii) Veracity
a. Police confirmed timeline of events;
contemporaneous = reliable
b. 911 tracks/records callers, less chance of someone
using it falsely
(iii) Totality of circumstances – dangerousness of potential drunk
driver,
c. Flight in High Crime areas
1. Rule: Unprovoked headlong flight, when coupled with other factors,
can constitute Terry-level suspicion justifying a seizure. Wardlow
 Note: Ct was unanimous in this rule, but split 5-4 as to
whether facts in Wardlow sufficient
2. Illinois v. Wardlow (2000) – 5-4; Plain clothes officers in unmarked car
caravan in known drug trafficking area; saw ∆ w/ opaque bag who saw
cops and fled. Caught him on street, frisked, felt hard object that felt
like gun in bag, found gun, arrested. Officer had RS for Terry Stop.
(i) Totality of circumstances
a. High crime location relevant consideration
b. Coupled w/ unprovoked flight
(ii) Ambiguous conduct that may be innocent can justify seizure
to investigate ambiguities

21
 (iii) Partial Dissent: Facts here not sufficient to justify seizure:
events were in daytime, uncertain ∆ recognized them as cops;
thought prosecution failed to satisfy burden of proof. Agree
with overall rule though.
d. ???
1. Whren
4. Difference b/w Terry Stop and Arrest
i. Length of Detention
a. Sharpe (1985) – 20 min detention of suspects stopped in vehicle on public
highway to investigate criminal activity. Seizures upheld on basis of RS; not an
arrest.
1. 3 Critical Temporal Factors
(i) Officer pursued investigation in diligent and reasonable
manner
(ii) Method of invest. Likely to confirm/dispel suspicions fast
(iii) Lasted no longer than necessary to achieve purpose
2. *Significant factor: evasive actions of ∆ made stop longer
 Note: Does not mean a seizure of any length is justified on RS
as long as police are diligent and reasonable; even if above are
met, @ some point, can’t be justified as TS
 BUT: 16 hour detention of woman w/ RS that carrying drug
balloons in butt upheld as TS and not arrest. (1) method of
suspected smuggling impossible to resolve quickly (2) int’l
border. Montoya de Hernandez.
ii. Forcible Movement of Suspect
a. Dunaway (1979) – Police took ∆ into custody at neighbor’s home, brought to
station to question. Told not under arrest. Seizure was a de facto arrest,
requiring PC.
b. Florida v. Royer (1983) – Plurality. Police moved ∆ from airport concourse to
small rm 40ft away to continue investigation. Seizure was an arrest, requiring
PC.
1. No finding of legitimate law enforcement purpose for moving suspect.
iii. Existence of Less Intrusive Means
a. Rule: Length of a seizure should be the least intrusive length reasonable
available to verify or dispel the officer’s suspicions. Royer.
b. Place – 90 min detention of ∆ luggage + ∆ in airport concourse to get a dog to
sniff luggage. Unreasonable.
1. Gov’t agents had prior warning of arrival, could have minimized
intrusion on ∆’s 4A interests by having dog available when ∆ arrived
5. Vehicles Commented [SC6]: Flesh out if have time
i. Extending b/c of Officer safety concerns
a. Michigan v. Long – Authorized a ‘frisk’ of car for weapons. Can search car
even if driver/passenger is outside it b/c stop is temporary intrusion and person
will be able to get back in car and have access to weapons. Officer safety
b. Arizona v. Johnson: when driver or passenger lawfully detained in connection
w/ a traffic stop, police may pat down the person whenever they have RS that
the person is armed and dangerous, regardless of whether police also have cause
to believe vehicle’s occupant is involved in criminal activity.
6. Discretion, Pretextual Stops, Checkpoints
i. Indianopolis v. Edmund Commented [SC7]: FLESH OUT
IV. Exclusionary Rule
A. Basics
1. Judicially-crated remedy designed to safeguard 4A rights generally through its deterrent effect. If
police violate ∆’s 4A/5A/6A rights in obtaining evidence, the prosecution may not use that
evidence in their CASE-IN-CHIEF to prove ∆’s guilt at a criminal trial.
2. Not a personal con’l right of the party who was aggrieved.
B. Landmark Case

22
 1. Mapp v. Ohio (1961) – Police asked to enter home without warrant on tip there was porn but
Mapp refused. They came back three hours later, and when she didn’t answer they forcibly
entered. Her attorney arrived, but police wouldn’t allow him to enter. They shoved a fake warrant
in her face, then seized porn in the basement. Excluded.
i. Rule: Exclusionary rule applies to the states.
ii. Judicial integrity rationale: if gov’t becomes a lawbreaker, we invite everyone to follow
example. Remedy is a “dead letter” if it doesn’t apply to the states.
C. Rationale
1. Deterrence Rationale
i. Deter the government from violating a person’s con’l rights: if the gov’t can’t use
evidence that was obtained in violation of a person’s rights, it will be less likely to violate
those rights.
ii. Remedy for deprivation of con’l rights.
2. Judicial integrity rationale
i. Wiped out by Leon
D. When Exclusionary Rule Does NOT Apply
1. Non-criminal proceedings
i. Civil
ii. Habeas corpus
2. Criminal Proceedings
i. Non-trial proceedings [FRE 1101: ROE do not apply to grand jury proceedings, because
making PC determinations]
ii. Criminal Trial
a. Impeachment
b. Knock-and-Announce: Hudson (2006) – Scalia; 5-4. Police went to ∆’s home,
had valid warrant for search of drugs/guns; entered ∆’s home 3-5 sec after
announcing presence = KAA violation. Drugs/guns not suppressed.
1. Rule: Exclusionary rule does not apply to fruits of search conducted
pursuant to a valid warrant executed in violation of the con’l knock-
and-announce rule.
2. New attenuated connection rule: exclusionary rule applies only when
interest protected by constitutional guarantee that has been violated
would be served by suppression of the evidence.
(i) Here, KAA con’l guarantee violated = (1) police protection
from defensive actions of surprised residents (2) resident
property protection from damage from forcible entry (3)
resident protection privacy interests by giving opp. to prepare
for police entry
(ii) B/c none of these was shielding of potential evidence from
gov’t, exclusion was inappropriate remedy.
3. Balancing Test: deterrence v. social costs
(i) Social costs: flood of litigation, letting criminals go free, hard
for police to comply with KAA rule  wait too long to enter
and risk evidence destruction and violence against police
(ii) Deterrence: police little incentive to violate KAA b/c right to
not be seen in pajamas not that important

E. Good Faith Exception

Narrowing the Exclusionary Rule
1. General Rule: When a police officer relies in objective good faith on the warrant, and the warrant
turns out to be defective because it lacks PC, exclusionary rule does not apply. Leon.
i. Objective good faith = “whether a reasonable well-trained officer would have known the
search was illegal despite the magistrate’s authorization”
ii. Rationale: When the source of error that led to the 4A violation was someone other than
law enforcement, there is no deterrent value to the police in suppressing the evidence.
iii. Leon (1984) – Police executed facially valid search warrant; motion to suppress granted
in part [standing issues for most respondents]; even though it was a close case, warrant
invalid b/c ø PC. *gov’t asked ct to find key finding of fact that O acted in good faith

23
 reliance on warrant. Scope of issue: only whether ER is appropriate given facts in this
particular case. Exclusionary rule not appropriate here.
a. Everything is good about the search except the rationale [PC] for the search
itself.
b. ER designed to deter police misconduct, not judges and magistrates.
1. No evidence judges/magistrates are inclined to ignore or violate 4A...
so an extreme sanction like exclusion is not proper here.
2. If it’s the judge’s fault, good faith exception to ER should apply.
 Note: Wipes out judicial integrity rationale. Limited to error in warrants
where mistake was made by judge.
 **PC: CITE LEON FOR REASONABLE MINDS MAY DIFFER!
2. Exceptions to Good Faith Exception
i. Warrant Probable Cause Issues [listed in Leon]
These are all situations where no reasonably objective officer would rely on warrant in
good faith!
a. Police knowingly or recklessly supplied false information to get the warrant.
[Franks violation]
b. Judge just “rubber stamped” warrant
c. Police affidavit bare bones [Gates violation]
1. “so lacking in PC as to make official belief that there is PC entirely
unreasonable”
2. Ex. O1 supplies super bare bones affidavit, judge signs off on it as
having PC; O2 who is executing warrant has no good faith exception
for reliance on that obviously bad warrant.
d. Warrant facially deficient, making reliance on it unreasonable
1. Ex. failure to specify place or things to be search
ii. [Facially Valid] Improperly Executed Warrants
a. Situations where the cop clearly messed up during the search, so ER could serve
deterrent purpose.
b. Ex. O executes warrant allowing him to search ∆ bedroom for clothing from a
rape. If during search O inspects files and seizes incriminating papers in them,
this search would not be protected by Leon good faith rule, and papers would be
suppressed.
3. Warrantless Searches
i. Searches authorized by statute
a. Rule: Good faith exception applies.
b. Ex. Krull (1987) – no culpable police conduct, following laws, ER can’t do
deterrence.
ii. Reliance on Computer databases
a. Reliance on Court-Managed Databases
1. Arizona v. Evans (1995) – patrol car computer said outstanding arrest
warrant; SIA revealed weed; arrest warrant had actually been quashed
but clerical error by court employee left it on database. No suppression
of marijuana justified.
(i) Rule: Leon reasoning justifies categorical exception to ER for
clerical errors of court employees.
b. Reliance on Police-Managed Databases
1. Rule: Evidence that result from police simple negligence errors cannot
be suppressed with ER.
(i) However, reckless or deliberate errors; knowing/intentional
misconduct, or “systematic negligence” still ground for
exclusion.
(ii) Ex.
2. Herring (2009) – CJ Roberts; 5-4. Police in arrested ∆ based on active
warrant listed in another co.’s sheriff-run database; SIA, found drugs
and a gun. Computer had not been updated + warrant recalled. Arrest
was unlawful thus search incident to UNlawful arrest violated 4A. ER
not apply; evidence not suppressed.

24
 (i) Reaffirms use of balancing test; benefits of deterrence must
outweigh costs.
a. Extent to which exclusionary rule justified by
deterrence principles depends on culpability of law
enforcement conduct.
b. To trigger the exclusionary rule, police conduct must
be sufficiently deliberate that exclusion can
meaningfully deter it, and sufficiently culpable that
such deterrence is worth the price paid by the justice
system.
(ii) Ct emphasized very fact-specific reasoning
a. Thus, gross, recurring, systemic negligence may
trigger ER suppression
 Note: Good example of disconnect b/w 4A right and remedy. Just b/c
Herring’s 4A right was violated ≠ suppression of evidence via ER
(iii) Ginsburg Dissent: Without ER, 4A has no real meaning. Even
finding the officers acted in good faith still strips the ∆ of their
4A rights. Thinks this view puts judiciary on outskirts of 4A,
where they have no way to protect 4A rights.
c. Reliance on Binding Precedent
1. Davis (2011) – 7-2. ∆, passenger in car pulled over for routine traffic
stop, both arrested. Handcuffed, put in back of patrol car; police then
searched car and found gun in ∆’s coat. @ time of stop, Belton still
good law [2 years before Gant] so police relied on Belton for SIA.
While on appeal, Gant was decided [narrow SIA doctrine]  facts here
clearly violate 4A. B/c on direct appeal, Gant applied retroactively;
thus, SIA search of car violated 4A. Exclusionary rule not apply.
(i) Ct emphasized again deterrence rationale can’t be met here
a. Police were following gov’t precedent and doing
RIGHT thing
(ii) No systemic or recurring negligence
F. Standing
1. Rule: Only those who are actual victims of the alleged violation have standing to challenge it.
Personal rights cannot be vicariously asserted. This includes 4A rights.
i. Thus, 4A rights cannot be vicariously asserted.
2. Rationale: If no property or possessory interest in the place searched nor the items seized  no
reasonable expectation of privacy  no standing.
i. Ex. Rakas v. Illinois (1978) – No standing if legitimately in automobile but do not claim
the incriminating items seized or ownership of the car.
3. Rule: A defendant who has standing to challenge the initial illegality also has standing to
challenge the use of evidence derived from that illegality. Wong Sun.
G. Expansion of ER: Fruit of Poisonous Tree Doctrine
FPT addresses the outer limits of ER. Pay attention to the facts! ID poisonous tree + fruit.
1. Overview
i. Rule: Generally, when 4A ER applies, it extends not only to direct products of
governmental illegality, but also to secondary evidence that is “fruit of poisonous tree.”
a. Ex. P, police, on a hunch, uncon’lly searches ∆’s house for evidence of ∆’s
connection to murder. During search, P seizes a diary. Diary names W as a
witness to the murder, who agrees to testify against ∆ at his trial.
1. Unconstitutional search of house = poisonous tree
2. Diary  Witness testimony = fruit
ii. Wong Sun
2. Identifying the Poisonous Tree
i. There are 5A & 6A poisonous trees, too! [but Miranda tree is very limited]
ii. Hypo1: ∆ is arrested without PC, informed of Miranda rights, voluntarily waives rights,
and confesses.
a. Nothing under 5A, 6A or Miranda principles keeps confession out
BUT

25
 b. Confession COULD BE INADMISSIBLE/KEPT OUT as a fruit of a 4A
poisonous tree [tree = the unlawful arrest].
iii. Hypo2: ∆ is lawfully arrested, not informed of Miranda rights, subjected to custodial
interrogation, tells police where he hid gun in crime.
a. Confession is INADMISSIBLE under Miranda principles
1. Gun = fruit of Miranda violation
2. Confession admissibility is in Miranda jurisprudence [ordinarily
permits fruits of violations to be introduced at trial] and not 4A law.
3. Independent Source Doctrine (ISD)
i. Threshold issue: evidence must be product of illegal governmental activity for FPT to
keep it out.
a. Thus, evidence must be causally linked to governmental illegality.
1. If it is not causally linked to gov’l illegality, it is admissible pursuant to
the independent source doctrine.
ii. Rule: Independent source doctrine applies if the challenge evidence is discovered for the
first time during lawful police activity.
a. Ex. Police lawfully seize ∆’s diary in criminal investigation. Diary ID’s W,
eyewitness to ∆’s crime. W agrees to testify against ∆. Later, police search ∆’s
house again, unlawfully; find W’s name in another doc.
1. Under ind. source doctrine, ∆ may not successfully challenge W’s trial
testimony as a fruit of poisonous tree b/c police originally got W name
in first lawful search.
iii. Rule: Independent source doctrine applies if evidence is initially discovered unlawfully,
but is later obtained lawfully in a manner independent of the original discovery. Murray.
a. Murray (1988) – Police uncon’lly searching S. Boston warehouse [PC but no
search warrant]. Saw packages & suspected marijuana. Left w/o touching or
seizing packages. Got warrant to search building based on untainted affidavit,
only using info police gathered lawfully before the illegal entry [for PC, they
have x, y, z. z = bad entry info. They drop z.] Returned and seized packages.
Remanded to decide whether warrant-search was independent source of
challenged evidence.
1. Warrant search likely was independent source b/c warrant was
supported by PC, which was developed solely with pre-illegal entry
info.
(i) Thus, evidence not product of unlawful search.
2. However, hypo: if the police decision to get warrant was prompted by
what they saw in first illegal search, second legal search would be fruit
of that illegality.
(i) Warrant = poisonous fruit of unlawful search
3. How do you tell whether decision to get warrant was prompted by
illegal conduct earlier?
(i) Requires looking at subjective state of mind of officer.
(ii) Ct says this OK b/c where facts make it unrealistic for an
officer to have said “I would’ve gotten warrant anyway,” ISD
won’t apply.
 Policy: may provide incentive to police to do unlawful confirmatory
searches before getting warrant to double check on PC  if find nothing,
save time of getting warrant and no 4A violation for unreasonable search
b. Hudson v. Michigan (2006) – 5-4; Scalia. Police had valid warrant; entry
uncon’l [violated knock-announce rule during execution]. Evidence admitted, no
FPT justification for applying ER.
1. Ct: ISD applies to facts here.
(i) Con’l violation of illegal manner of entry is not a but-for cause
of finding the evidence.
(ii) Whether or not knock-announce rule was violated, police
would have executed warrant and discovered evidence inside.

26
 2. Dissent: Majority causation analysis wrong: Unlawful behavior
attaches to the actual entry  unlawful entry necessary for them to be
in the home  being in home necessary to finding/seizing evidence.
 Note: Scalia confuses ISD w/ inevitable discovery doctrine
4. Inevitable Discovery Rule (“Hypothetical Independent Source Rule”)
i. Rule: Evidence linked to an earlier illegality is admissible in a criminal trial IF the
prosecutor proves by a preponderance of the evidence that the challenged evidence
ultimately or inevitable would have been discovered by lawful means.
ii. Ex. Nix v. Williams (1984) – ∆ subjected to police questioning violating 6A right to
counsel. Led to body in ditch 2.5 miles away from where search teams were looking. ∆
claimed evidence from body fruit of illegal questioning. ER does not apply, evidence not
FPT b/c inevitable discovery.
a. Search teams probably would have found the girl’s body fairly soon had the
search not been called off once the defendant showed police to the right spot.
 Criticism: Rejected by 4 states as contra to their constitutions; some require
clear/convincing, certain as a practical matter standards. So, can make good
arguments for it using Nix, or against it by requiring prosecution to prove
w/ higher burden of proof, or arguing it is dependent on nature of the crime:
how much effort/time police would put in.
5. Attenuation (“Wong Sun Rule”) –
i. Overview
a. Rule: Even if certain evidence is causally tied to an earlier illegality – even if
the tree is poisoned – at some point the fruit from that tree is sufficiently
untainted to as to be admissible in a criminal trial. Wong Sun.
ii. Factor: “Protected Interest” Limitation
a. Bright line situation in which taint always is legally dissipated.
b. Rule: Attenuation also occurs where, even if there is a direct causal connection,
the interest protected by the constitutional guarantee that has been violated
would not be served by the suppression of the evidence. Hudson [violation of
knock and announce rule interests not served by suppression]
iii. Other attenuation factors: none are determinative; weigh all together.
a. Temporal proximity
1. Ex. Wong Sun – A statement from ∆ in bedroom immediately after
unlawful arrest suppressed because it “derived so immediately from
unlawful entry”
b. Intervening events
1. Generally: The greater number of factors intervene b/w initial illegality
and seizure of challenged evidence  the more likely evidence
admitted as untainted.
(i) Rationale:
a. As causal chain of events get longer, less likely that
police used illegal conduct in advance to find
evidence
b. Thus, deterrent value of ER reduced.
2. Intervening act of free will
(i) Ex. Wong Sun – WS released from jail after unlawful arrest;
voluntarily returned to give written statement. Voluntary
nature of conduct made statement free of taint & admissible.
(ii) Waiver of Miranda warnings do not per se break causal chain
for 4A.
a. If illegal arrest on less than PC, read Miranda, ∆
waives, confesses – whether or not confession was
free will [and thus taint dissolved] is determined on
totality of circumstances.
b. If everything else but voluntary waiver of Miranda
warnings points to no dissipation of taint, likely will
suppress.
c. Flagrancy of Violation

27
 1. Derivative evidence less likely to be free of taint if initial illegality was
deliberate rather than accidental.
2. Flagrancy  more poison  longer to dissipate.
d. Nature of Derivative Evidence
1. Witness testimony more likely than physical evidence to be free of
taint. [weak sauce]
(i) W often come forward of own volition; objects must be
discovered by others; thus, greater likelihood police will
lawfully find witness  less incentive to violate Constitution
to get W testimony
(ii) Relevant/material testimony of W would be permanently
disabled
iv. Ex. Strieff (2016) - Police illegally stopped ∆; during stop learned of outstanding warrant;
arrested, found drugs. No RS for Terry Stop, but prosecution argues the learning of
warrant is attenuation enough to make the drugs found not tainted. Learning of warrant
attenuated evidence from illegal stop.
a. Rule: When no flagrant police conduct and when police discover valid,
untainted warrant, evidence seized for that warrant is valid and admissible, even
if the stop was uncon’l.
b. *Bright Line Rule: No matter how police learn of the warrant, they have the
right to make an arrest.
c. Considerations:
1. Temporal proximity
2. Intervening circumstances
(i) Warrant is good intervening circumstance!
3. Purpose and flagrancy of violation
(i) “particularly significant”
(ii) Here, RS is squishy standard.. they were wrong, not
purposeful or intentional
6. Impeachment
i. Rule: If ∆ testifies in cross examination that he previously possessed particular evidence
of a crime, prosecutor may introduce testimony that contradicts these claims in order to
impeach ∆’s credibility, even though impeachment evidence was obtained in violation of
∆’s 4A rights. Havens.

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H. Procedure – FRCrP 12(b)(3)(C)
1. Prosecutor brings Motion to Suppress.
2. Before trial, or it is waived or forfeited because of double jeopardy. Once jury sworn in, jeopardy
begins.
3. Judge rules on motion, not jury.
4. Prosecutor can appeal suppression ruling to COE before trial.
I. Alternatives
**Vance loves Exclusionary Rule because posturally, it’s when the ∆ and lawyer is most likely to access
information revealing a bad search and have the ability to do a motion to suppress. Best place to vindicate
the ∆’s rights in a speedy proceeding that happens pre-trial.
1. Criminal Prosecution of Police
i. 18 U.S.C. § 2236 [Searches without Warrant]
Any law enforcement official who
a. Searches a dwelling without a warrant, or
b. Maliciously and without reasonable cause searches any other building or
property w/o warrant
Shall be fined for a first offense, and for a 2d offense, shall be fined under this
title, or imprisoned not more than one year, or both.
 Cons: might chill police from acting in emergency, possibility of under-
prosecution.
2. Civil Action for Damages / Injunctions
i. § 1983 Actions
a. Against the officer
b. Against the city
 Cons: Often low damages; hard to find lawyer that will go after a cop, little
incentive from criminal ∆; jury sympathy with police over criminal; police have
no $, have to go for cities

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Entrapment
I. Criminal law defense, not a constitutional doctrine
A. Two tests: Subjective & Objective
1. Subjective [Federal + some states]
i. When a governmental agent induces an innocent [not pre-disposed] person to violate the
law.
a. However, it is enough that the ∆ was not predisposed to commit the type of
offense for which she was prosecuted at the time the gov’t first approached her.
b. Ex. a lifelong pickpocket is predisposed to commit minor theft acts, but is not by
that facts alone disposed to commit, ex, drug offense or murder. As to those, she
is a “non-predisposed” individual.
ii. Jacobson (1992) – non-predisposed ∆.
a. Gov’t failed to prove beyond a reasonable doubt that ∆ was predisposed to
purchase child porn prior to being contacted by gov’t gents.
1. Although ∆ HAD become predisposed to break the law by the date of
actual purchase, the gov’t did not prove that this predisposition was
independent and not the product of the attention the gov’t had directed
at ∆ since 1985, more than 2 years later.
b. Basically, ∆ was predisposed to commit the offense when the gov’t offered to
sell him the magazines, but he was NOT so predisposed until after the gov’t had
softened him up for more than 2 years.
2. Objective [Some states]
i. Would police inducement have caused a hypothetically law-abiding citizen to commit the
crime?

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6A Right to Counsel
I. Generally
Full-blooded right to counsel. Separate from Miranda right to counsel.
Totality of circumstances.
A. When does 6A right attach?
1. Rule: 6A right to counsel applies only after the commencement of adversarial judicial
proceedings, which starts the “criminal prosecution” for right-to-counsel purposes. Massiah.
i. Thus, a ∆ has no 6A right to counsel during custodial interrogation if adversarial judicial
proceedings have not begun. Ex. Escobedo
a. Standing alone, the possibility that an encounter may have important
consequences at trial is not enough to trigger attachment. Moran v. Burbine.
2. Rule: Once attached, it applies at trial itself and at any critical stage of the post-attachment
proceedings.
i. Attachment occurs when gov’t has used judicial machinery to signal commitment to
prosecute by way of:
a. Formal charge
b. Preliminary hearing – critical stage [Coleman v. Alabama]
c. Initial/first appearance – critical stage [Brewer]
d. Indictment
e. Information
f. Arraignment – critical stage [Hamilton v. Alabama]
 Note: Does not require prosecutor involvement; police is enough.
ii. Attachment and critical stage are two separate questions.
Was there attachment?
If yes, is the time at which ∆ was denied counsel a critical stage?
If no critical stage  no 6A right to immediate counsel,
regardless if there was attachment. Rothgery.
iii. So, once right to counsel attaches, ∆ is not necessarily entitled to appointment of counsel
in every single stage: the stage must be “critical”
3. Critical Stages
i. Pretrial interrogation [see below]
ii. Pretrial lineup
iii. Initial/first appearance [Brewer]
iv. Preliminary hearing [Coleman v. Alabama]
v. Arraignment at which rights may be lost [Hamilton v. Alabama]
vi. Pretrial psychiatric exam
vii. Sentencing proceedings
4. Rule: You do not have to explicitly invoke 6A rights; they are always there! Montejo.
i. Cf with Miranda – invocation matters, if you don’t invoke, 5A rights don’t attach.
5. Rule: 6A right is specific to the offense.
i. Thus, Protection against interrogation for other crimes must come through 5A invocation
of right in Edwards.
ii. Ex. Police do not violate 6A, even if formal adversary proceedings have commenced
against ∆ for Crime X, when they deliberately elicit incriminating statements from ∆
about Crime Y, for which formal proceedings have not yet been initiated.
6. Compare to Miranda:
i. Both can attach in interrogations.
a. If pre-adversarial judicial proceeding  5A-Miranda
b. If post-adversarial judicial proceeding  6A and/or 5A-Miranda
ii. 6A right to counsel is broader than 5A b/c it can apply when ∆ is out of custody; 5A right
to counsel only applies in custodial interrogation circumstances
iii. 6A right to counsel is narrower than 5A b/c it only attaches after adversarial judicial
proceedings have begun; 5A right to counsel can apply pre-adversarial judicial
proceedings to just a suspect.
B. Waiver [Williams]:
1. Must be
i. Voluntary,
ii. Knowing,
iii. Intelligent

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 2. Thus, no issue of waiver in secret interrogations [ex. Massiah, Henry, Moulton]
i. Exception: if ∆ doesn’t know talking to police, cannot waive.
3. Gov’t agents can approach accused in order to seek waiver of 6A right to counsel. True even if
accused has informed magistrate that she wants attorney.
4. If in custody and thus properly informed of Miranda rights, she may:
i. Assert Miranda right to counsel [Edwards rule applies  questioning must stop]; OR
ii. Voluntarily and knowingly waive Miranda rights.
a. Rule: This also serves as valid waiver of 6A right to counsel. Patterson.
5. If already has a lawyer and gov’t agent confronts accused and wants to interrogate her while
lawyer is absent?
i. Rule: ∆ may waive right to counsel whether or not she is already represented by counsel;
the decision to waive need not itself be counseled. Montejo.
C. Consequence of 6A Violation
1. Rule: ER – statement obtained in violation of 6A cannot be used in case-in-chief.
i. However, it can be used for impeachment. Ventris.
D. 6A applies to federal cases automatically
1. Rule: Counsel must be appointed for indigents in federal criminal cases without case-by-case
examination of the circumstances. Johnson v. Zerbst.
E. 6A applies to the states automatically through 14A DP
1. Gideon v. Wainwright (1963) – ∆ charged with felony under state law. Appeared in ct w/o funds
and no lawyer, asked court to appoint counsel for him. State ct said that under Florida state law,
only time ct can appoint counsel for a ∆ is when that person is charged w/ a capital offense. ∆
represented himself, jury sentenced him to 5 years. ∆ has 6A right to appointed counsel in state
court if indigent.
i. Rule: Counsel must be appointed for indigents in state criminal cases without case-by-
case examination of the circumstances.
a. Mechanism: due process clause of 14A applies 6A to the states
b. Fundamental right essential to a fair trial.
ii. Explicitly overruled Betts v. Brady.
F. Post-Gideon: Misdemeanor Cases
1. Rule: Absent a knowing and intelligent waiver, no person may be imprisoned for any offense,
whether petty, misdemeanor, or felony, unless represented by counsel at his trial. Argersinger.
i. Argersinger (1972) - ∆, indigent, charged w/ misdemeanor with a max penalty of 6 mo
imprisonment, $1,000 fine, or both. Requested and was denied counsel. Convicted to 90
days in jail. ∆ was entitled counsel under 6A.
a. Ct rejects trial-by-jury analogy [premise that because prosecutions for crimes
punishable by imprisonment for <6 months can be tried without a jury, they may
also be tried without a lawyer]
b. Applied 6A to misdemeanors, not just felonies.
c. Limitation:
1. Indigent entitled to counsel if he actually, not just potentially, will be
jailed (even for one day) if convicted. Risk of assembly-line justice
otherwise
2. Thus, a judge who wishes to preserve possibility of a jail term as a
sentence must appoint counsel for indigent ∆ at the beginning of formal
prosecution.
ii. Scott (1979) – 5-4; ∆ convicted of misdemeanor, fined but not imprisoned. Potential
penalty for crime was 1 year jail, thus entitled to trial by jury. ∆ had no right to appointed
counsel.
a. Reaffirmed Argersinger: con’l right to appointed counsel only extends to cases
resulting in actual imprisonment.
G. Adequacy of Counsel
1. Rule: ∆ must show that counsel’s performance was “deficient” such that counsel’s errors were “so
serious that counsel was not functioning as the ‘counsel’ guaranteed the D by the 6A.” Strickland
v. Washington.
i. Thus, the deficient performance must be so serious as to deprive the D of a fair trial.
Strickland.
II. Interrogations & Confessions
A. “Deliberately Elicit” Standard

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1. Generally
i. Rule: Occurs when the government through its overt or covert agent:
a. Acts with the purpose of eliciting incriminating information from the accused
regarding the pending charges, without regard to the likelihood that the
elicitation will be successful [Massiah, Brewer];
b. Purposely sets up an encounter in which incriminating information is likely to be
elicited [Henry]; OR
c. Exploits an encounter set up by the accused with the agent of the government
that it knows is likely to result in incriminating information. [Moulton]
ii. Compare with Miranda-Innis definition:
a. Massiah-Williams standard focuses on subjective motivation of officer.
b. Miranda-Innis focuses on suspect and based on objective finding that process
will likely result in incriminating information
1. Thus, negligent action under Miranda-Innis can constitute violation of
5A, but higher standard required under Massiah-Brewer to cause 6A
violation
iii. Massiah (1964) – ∆ federally indicted, retained lawyer, pled NG, released on bail. Fed
agents convinced co-∆ to put microphone in car, invited ∆ into car, got him to confess. ∆
argued admission of trial of statement obtained after he had been indicted in absence of
lawyer violated his 6A right to counsel. Confession suppressed.
a. Rule: 6A is violated when evidence of ∆’s own incriminating words that were
deliberately elicited from him after he had been indicted in the absence of
counsel are introduced at trial.
b. Rule: Right can attach if there is no custody, as long as adversarial judicial
proceedings have commenced + stage is “critical”
1. Massiah was: (1) indicted (2) had counsel (3) was “set up” [gov’t
deliberately elicited confession from him thru wire-wearing co-∆/CI]
(4) without his lawyer being present.∆ had been indicted
2. Interrogation is critical stage, even here where covert
c. 6A must apply to direct stationhouse and subtle interrogations that occur after
attachment.
iv. Brewer v. Williams (1977) - ∆ arrested + arraigned for abduction of child believed
murdered. After retaining lawyer, ∆ transported to diff area of state; police subjected ∆ to
Christian burial speech knowing he had mental issues; no questions, soliloquy-style.
Violation of 6A.
a. Rule: Deliberate elicitation occurs when the government acts with the purpose
of eliciting incriminating information from the accused regarding the pending
charges, without regard to the likelihood that the elicitation will be successful.
b. Confusing case. Ct said burial speech “tantamount to interrogation” but also
used Massiah deliberately elicit standard.
 Note: 5A-Miranda interrogation possibly synonymous with deliberate elicitation;
clarified in Innis that 5A-Miranda interrogation standard not interchangeable with
6A standard
2. Expansion of “Deliberate Elicitation”
i. Henry (1980) - ∆ indicted + put in jail. Police put informant in jail cell w/ ∆, told not to
ask questions but to just LISTEN to ∆. Informant initiated convos w/ ∆ anyway that led
to ∆ confession. CI in jail cell was deliberate elicitation for 6A purposes; violation of 6A.
a. Rule: Deliberate elicitation occurs when government purposely sets up an
encounter in which incriminating information is likely to be elicited
b. Gov’t must have known that putting informant there would likely lead to
incriminating statements; doesn’t matter that it was not purpose of police
conduct
c. Doesn’t matter whether informant brought up criminal activities or just engaged
in conversation about it
ii. Maine v. Moulton (1985) – factually similar to Massiah. ∆1 + ∆2 indicted for theft,
released from custody pending trial. Without ∆1 knowing, ∆2 agreed to cooperate and
testify against ∆1. Tapped ∆2 phone, ∆1 called ∆2 and talked about pending trial. ∆1
asked to meet ∆2 to plan defense. ∆2 had wire on, most of conversation ∆2 encouraged
was about theft charges that 6A applied to. ∆2 said he had bad memory, repeatedly asked

33
 ∆1 to remind him about details of theft. Prosecution claimed different from
Massiah/Henry b/c police set up encounters in those cases, but here, ∆1 was the one who
initiated calls and the meeting. 6A violation.
a. Rule: Deliberate elicitation occurs when government exploits an encounter set
up by the accused with the agent of the government that it knows is likely to
result in incriminating information.
1. 6A guarantee includes state’s affirmative obligation not to act in a way
that circumvents ∆’s right to rely on a counsel as a medium b/w him
and the state.
b. Rule: 6A is not violated if gov’t gets incriminating information by luck or
happenstance.
3. What is “elicitation”?
i. Kuhlmann (1986) – Informant put in ∆’s jail cell, told to listen, not ask any questions,
and report to police anything ∆ says. Trial ct found informant followed these instructions.
No 6A violation.
a. Rule: 6A is not violated by putting police agent in a jail cell with a person
against whom formal charges have been brought as long as the gov’t does not
conduct investigatory techniques that are equivalent of direct police
interrogation.
1. Prove violation:
(i) Show police + informant took action beyond listening that was
designed deliberately to elicit incriminating remarks
2. Distinguish:
(i) Henry – informant in Henry stimulated conversations
(ii) Moulton – informant asked ∆ questions to refresh memory
III. Appeals
A. First appeal – no 6A, due process applies
B. Discretionary appeals – no 6A [state does not have to “equalize economic conditions” b/w rich and poor]
C. Post conviction habeas appeals – no 6A [in reality you are never going to have a ∆ unrepresented at
supreme ct]
IV. Eyewitness Identifications
A. Lineups: Post-indictment lineups and show-ups are “critical stages” at which ∆’s 6A right to counsel
applies. Wade-Gilbert.
1. Thus, pre-indictment lineups and show-ups are not critical stages because adversarial judicial
proceedings have not attached yet; 6A right to counsel does not apply. Moore.
2. Rationale for post-indictment:
i. High degree of suggestion from those administering process, able to manipulate
presentation, etc.
ii. Hard to know what really goes on during process
iii. ∆’s inability to reconstruct what happened during eyewitness identification at trial may
deprive him of only opportunity to meaningfully attack credibility of witness’ courtroom
identification
3. Wade – right to counsel violated b/c ∆ was not represented nor had waived his right to counsel
4. Gilbert – imposed per se exclusionary rule to witness testimony in court that directly mentioned
uncon’l lineup
B. Photo Arrays: Not “critical stages”; thus no 6A right to counsel applies.
1. Rationale: Since the accused himself is not present at the time of the photographic display, and
asserts no right to be present, no possibility arises that the accused might be misled by his lack of
familiarity with the law or overpowered by his professional adversary. 6A goal not advanced by
counsel presence.
C. Rule: Otherwise proper identification might still violate DP clause if it is unnecessarily suggestive and
conducive to mistaken identity. Stovall.
1. Suggestive
i. Words or actions by police that convey to W that person being viewed is perp; fact-based
determination.
ii. Ex. “Are you sure?”; tone of voice
2. Reliable factors:
i. How long did W observe perp at time of crime?
ii. Degree of certainty W had about identification

34
 iii. How accurate description compared to actual ∆?
iv. How long between crime and ID?
3. Underlying thought – juries shouldn’t hear ID evidence from W unless there is an indication it’s
reliable; not 100%, just reliable.

35
5th Amendment Right Against Self-Incrimination [Miranda]
I. Cases on 14A Due Process Clause
The “voluntariness” totality of circumstances test for coercion here was the test used for all interrogation situations
before Miranda. Now, just used for Non-Miranda settings in which 5A/DP still applies.
A. Rule: Due process is violated if police obtain an involuntary confession, and any such involuntary
confession is inadmissible at the ∆’s criminal trial.
1. But what is “involuntary confession”? No simple bright line rule.
2. Look at each case by case-by-case basis. Totality of circumstances.
3. No empirical way of saying “∆ will has been overborne”  Courts are really trying to draw line
that police cannot go past; morally objectionable… but still want to give police wiggle room.
4. Goal: Prevent police interrogation techniques that create a fair risk of resulting in an unreliable
confession.
i. Not so much looking to decide if this particular person being interrogated is
guilty/innocent, but what TYPE of police techniques are likely to create a fair risk of
causing even an innocent person to confess to a crime they did not commit.
B. Factors
1. Was confession obtained by threat, or actual use of violence by police?
i. Almost always declared involuntary if linked. [*closest bright line rule we have]
ii. Ex. slap, hit, etc.
2. Psychological: suspect himself + objective circumstances leading to confession
i. How long interrogation?
ii. What were physical conditions of interrogation?
a. Deprived of food, water, sleep?
b. Hot stuff small room or in better condition?
iii. Suspect age?
3. Police made promises?
i. Ex. of leniency if confesses, render involuntary?
a. Yes, theoretically, b/c theoretically everything can render confession
involuntary, but in practice this is rarely held to render confession involuntary
4. Deception
i. Under some unusual circumstances, active deception by police might render confession
involuntary.
a. But these cases have been truly extreme cases [police often use mild deception
in interrogation room – ex. witness to crime when they don’t, DNA evidence
when they don’t]
b. Court don’t find these sufficiently coercive to make confession involuntary
c. BUT remember case-by-case basis!!
II. 5A Privilege against Self-incrimination [Dressler lecture]
A. Invocation of 5A in Non-Miranda Settings
1. No custody or interrogation requirement.
B. Did not apply to states until 1964.
1. Until 1964, if state case  14A DP; if federal  5A privilege
2. Impact: since 1964, any ∆ state or federal can claim this privilege.
i. isn’t unusual: states will still talk in terms of DP instead of 5A. theoretically, call could
be argued under theory of 5A self-incrimination
C. Bram: compelled interrogation = any improper technique by police, even included promises of leniency,
that caused suspect to confess was deemed compelling.
1. After: later self-incrimination cases began to talk about 5A compulsion same way talked about
involuntariness under 14A.  began to blur together.
i. Whether talking about involuntary confession under 14A, or confession that was
compelled under 5A, look at each case individually as to totality of circumstances,
a. Thus, all factors above for 14A DP = factors for 5A privilege against compelled
self-incrimination.
b. The two lines of cases have effectively merged together.
ii. POTENTIAL DIFFERENCE: Martinez v. Chavez – text and history of 5A indicates
that this right [against self-incrimination] is not violated unless and until witness is a
compelled witness unto himself.

36
 1. If they don’t use compelled statement against trial thus never
compelled to incriminate himself  NO 5A VIOLATION, only 14A
DP violation.
2. Thus, if person is tortured into confession, and that confession is not
used against him, that person CANNOT bring lawsuit claiming 5A
rights violated against agents who tortured him b/c they haven’t been
violated [haven’t used at trial].
3. BUT in Chavez [dictum]: general DP right may be violated at the
moment the confession is coerced/obtained involuntarily even if it isn’t
used at trial.
4. If violation of 5A self-incrimination or DP, exclusionary rule here is
ABSOLUTE AND PURE: THAT CONFESSION THAT IS COERCED
IS INADMISSIBLE AT ∆’s CRIMINAL TRIAL FOR ANY PURPOSE,
INCLUDING IMPEACHMENT.
(i) No such thing as good faith exception. Pure, strong
exclusionary rule.
(ii) FPT doctrine with it. So, secondary fruits of confession
potentially inadmissible.
a. Independent source doctrine, inevitable source
doctrine, attenuated-taint doctrine. All apply.
D. Rule: In a non-custodial, voluntary setting [non-Miranda setting], 5A rights must be affirmatively invoked;
muteness/silence is not enough. Salinas.
1. Salinas (2013) – 5-4. Suspected in double-murder by shotgun; police went to ∆’s house; ∆
voluntarily answered questions about murder/his shotgun, but balked when officer asked whether
a ballistics test would show that shell casings were same. [Miranda ø apply b/c not arrested, not in
custody]. At trial, prosecution used reaction to question to imply guilt; ∆ asserted 5A violation of
self-incrimination. No 5A violation.
i. ∆ did not expressly invoke privilege against self-incrimination in response to question.
a. 5A privilege not self-executing; must claim it if you want it.
b. No ritualistic formula but saying nothing is not enough to invoke it.
ii. Exceptions to express invocation requirement based on official compulsion denying ∆
free choice to admit/deny/refuse to answer. No benefit here to ∆ because interview w/
police was voluntary. ∆ could have invoked if he wanted, he just didn’t.
iii. Rationale: 5A privilege against self-incrimination is exception to general principle that
gov't has the right to everyone's testimony. To keep the exception tight and not too broad,
have to claim it at time rely on it.
E. Historical context leading to Miranda…
1. Escobedo – Holding has been limited to own facts; thus, it is only SCOTUS case to depart from
general rule that 6A right to counsel attaches only w/ commencement of formal adversarial
criminal proceedings.
i. Long term significance = majority’s attitudes about interrogations and confessions 
formed basis for Miranda
ii. 6A right to counsel violated when [as in facts]:
a. Investigation focuses on him;
b. He is in custody;
c. Police interrogate him;
d. He requests and is denied opportunity to speak with lawyer;
e. Police have not informed him of his privilege against self-incrimination.
iii. Note: Police lied to ∆ about lawyer being at station; did not allow him to speak with
lawyer.
III. Miranda
4 appeals chosen from 101 “Escobedo” Cases to clarify the Massiah-Escobedo doctrine; instead, Miranda ended up
shifting the focus from 6A right to counsel to 5A privilege against compulsory self-incrimination.
A. MIRANDA v. ARIZONA (1966) – Common facts in 4 appeals cases: (1) each of suspects had been taken
into custody [three, by arrest; one, before formal arrest]; (2) questioned in an interrogation room; (3)
questioning occurred in police-dominated environment in which each suspect was alone w/ questioners; (4)
suspects were never informed of their privilege against self-incrimination.
1. Rights in interrogation room
i. Right against compelled self-incrimination

37
 ii. Right to counsel
2. Waiver
i. Voluntary
ii. Knowing and intelligent
a. b/c the rights at stake are fundamental, no case-by-case basis to decide if ∆
aware of rights before warning given; if no warning, cannot have a waiver.
b. No amount of circumstantial evidence that person may have been aware of
rights is enough to substitute for having the ∆ told of his rights
B. Rule: Any statement obtained in violation of Miranda warnings is per se involuntary. Miranda.
1. At first: no totality of circumstances test here; if violates = violation of 5A privilege against
compulsory self-incrimination
2. But no! violation of Miranda ≠ violation of 5A.
i. Instead, violation of Miranda = violation of prophylactic rule
a. Why do we care? If not con’l rule, then what right does SCOTUS have to tell
states they have to apply Miranda, or congress that they can’t make their own
rule?
b. Dickerson (2000): SCOTUS stated Miranda is con’l decision; thus, legislation
overruling it = uncon’l.
1. Rationale: we know it’s con’l decision b/c Miranda told us so! applied
to Arizona in the case. [Scalia scathing dissent]
c. But it is still the case, violation of Miranda does not result in exact same result
as violation of 5A. Thus, keep Miranda as own body of law separate from
DP/5A.
d. Exam: it is possible to find violation of Miranda w/o finding violation of 5A.
e. Don’t ignore voluntariness cases. Don’t go straight to Miranda.
3. Custodial interrogation may not be used against speaker unless prosecutor proves that police
provided certain procedural safeguards intended to secure 5A privilege against self-incrimination.
4. State in clear and unequivocal terms:
i. Right to remain silent
ii. Anything he says can and will be used against him
iii. Has a right to consult with a lawyer and to have lawyer with him during interrogation
[“Miranda Right to counsel”]
iv. If indigent, a lawyer will be appointed at no cost.
5. Even if give Miranda rights, cannot use in trial against ∆ unless:
i. Waives right to remain silent
ii. Waives right to consult with a lawyer.
C. What is custody?
Custody is term of art. Not the same as 4A custody.
1. Any person taken into custody or deprived of freedom of action in any significant way.
i. Rule: Custody occurs for Miranda purposes if they are under arrest or tantamount to
being under arrest. Berkemer v. McCarty.
a. Thus, terry detention/stop is not custody for Miranda purposes.
b. A police officer’s hidden, unstated intentions are irrelevant to whether or not a
situation is “tantamount to being under arrest.” Stansbury.
c. Relevant inquiry = how would a reasonable person in suspect’s shoes have
understood the situation. If they would think under arrest, have custody. So look
at circumstances and specific facts unless they have been formerly arrested.
ii. JDB (2011) – ∆ was 13 y/o suspected of burglaries. Police questioned him in CLOSED-
DOOR conference room at school w/ school officials and juvenile police investigator.
Legal guardian not contacted. Interrogated for 30-45 min; eventually confessed after
being told by investigator that he faced possible juvenile detention. After confession he
told he could refuse to answer investigator's questions + free to leave if he wanted. Age
can be a factor in objective test of determining custody for Miranda purposes.
a. Rule: So long as the child’s age was known to the officer at the time of police
questioning, or would have been objectively apparent to a reasonable officer, its
inclusion in the custody analysis is consistent with the objective nature of that
test.
b. Whether suspect is "in custody" = objective requirement aka totality of
circumstances test used... examine all circumstances incl. any circumstance that

38
 would affect how a reasonable person in suspect's position would perceive
his/her freedom to leave.
1. Basically, a reasonable child being interrogated will sometimes feel
pressured to submit while a reasonable adult would feel free to go.
Thus, it’s a factor.
2. But won’t always be a determinative or relevant factor in every
circumstance.
iii. Rule: Probation meetings are not custody for purpose of Miranda. Minnesota v. Murphy.
D. What is interrogation?
“Reasonably likely to elicit” standard; cf with 6A “deliberately elicit” standard.
1. 2 Forms [Innis]
i. Express questioning; or
ii. Any conduct by police that is functional equivalent of express questioning.
a. Functional equivalent = “any words or actions on part of police that the police
should know are reasonably likely to elicit an incriminating response from the
suspect”
b. Essentially a negligence standard.
iii. Innis (1980) – Gun used in crime hadn’t been discovered; ∆ in back of police car; officer
in ∆ presence made statement to second officer in car [overhead by ∆] about how terrible
it would be if missing gun not found b/c handicapped children nearby might find it and be
hurt or killed. Based on that statement, ∆ made incriminating statements that led to gun.
Statement by officer not functional equivalent of interrogation.
a. Should officer have realized that that statement would provoke incriminating
response?
b. Case-by-case: nothing about ∆ specifically that would suggest to police that
playing to his conscious re: handicapped children would result in an
incriminating statement.
c. Thus, statement not inadmissible under Miranda.
E. Waiver Issues
There is a distinction between whether a ∆ has WAIVED his rights, and whether ∆ has INVOKED his
rights. “After giving a Miranda warning, police may interrogate a suspect who has neither invoked nor
waived his Miranda rights.” An eventual statement will be presumed to be implicit waiver.
1. Waiver
i. Rule: Government must prove valid waiver by preponderance of evidence [heavy
burden]. Colorado v. Bertine.
ii. Rule: An express waiver of suspect’s Miranda rights is neither sufficient nor necessary to
make it valid. Butler.
a. Thus, even if person signs waiver form or expressly says he is waving, doesn’t
necessarily make waiver valid because coercion is always possible.
b. Conversely, can implicitly waive Miranda rights without an express waiver or a
form.
iii. What is valid waiver?
a. Voluntary
1. free and deliberate choice rather than result of intimidation by police.
2. Totality of circumstances test: look at same factors courts used in 5A +
DP coercion
b. Knowing and intelligent
1. Full awareness of what rights are
2. Full awareness of consequences if gives up
3. Note: Miranda warnings tell rights + consequences [used against them].
So, probably need special facts like intoxication, spoke a foreign
language, etc. Short of this, will be knowing and intelligent as long as
Miranda is fully given.
4. Hypo: ∆ arrested for bank robbery, Miranda warnings given. Valid
waiver. But assume officer starts questioning ∆ not about bank robbery
but about another crime – a murder for which ∆ is not in custody. Has
there been a valid knowing and intelligent waiver if questions shift to
the murder? Yes. Miranda waiver in those circumstances are valid.
Colorado v. Spring.

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 (i) Miranda warnings are not crime-specific.
(ii) Waiver of Miranda rights is not invalid merely because the
suspect was mistaken about what crimes were going to be
subject of interrogation.
iv. Rule: Although a suspect must be informed of his right to counsel, he is not
constitutionally entitled to know that his counsel wishes to see them. Moran v. Burbine.
a. Moran v. Burbine (1986) – 6-3. ∆ was arrested for burglary, given Miranda
rights; ∆ refused to sign written waiver; police spoke with two other suspects in
burglary and got info further implicating ∆ in a murder. ∆ sister telephoned
public defender to get lawyer; lawyer called the police and was told that they
would not question ∆ any more that night. Police further interrogated ∆ that
night about the murder multiple times; prior to each session, ∆ informed of
Miranda rights and signed written waiving right to counsel. Signed 3 written
statements admitting to murder. **At all times, ∆ unaware of sister trying to get
him an attorney** Waiver of Miranda rights was voluntary, knowing, and
intelligent.
1. Unlike Escobedo where police falsely told suspect his attorney did not
want to see him, here, the deception was directed at the lawyer.
(i) Thus, police misconduct [although distasteful] could not have
affected voluntariness of ∆’s waiver.
2. Didn’t deprive ∆ of knowledge essential to ability to understand what
his rights are and the consequences of waiving them.
(i) Unwilling to require constitution to provide flow of
information to suspect to help make best decision of whether
to invoke rights.
(ii) Unwilling to mandate code of behavior for police unconnected
to federal right or privilege
v. Rule: A suspect who has received and understood the Miranda warnings, and has not
invoked his Miranda rights, impliedly waives his right to remain silent by making an
uncoerced statement to the police. Berghuis v. Thompkins.
a. Thus, the standard for INVOKING Miranda right to remain silent is an
unambiguous assertion.
b. Berghuis v. Thompkins (2010) – ∆ in 8X10 room, straight back chair,
interrogated for 3 hours. Had rights read to him from paper, read out loud,
refused to sign waiver. Said mostly nothing except yes/no the whole time except
for at end when police brought up God and whether he had “prayed for
forgiveness for shooting down boy.” Valid waiver; no invocation of rights.
1. Rule: The police are not required to end the interrogation or ask
questions to clarify whether the accused wants to invoke his or her
Miranda rights.
2. Issue 1: Thompkins did not invoke right to remain silent.
(i) Because Thompkins didn't say he wanted to remain silent or
talk with the police, he did not invoke right to be silent.
(ii) Must be unambiguous.
3. Issue 2: Thompkins [impliedly] waived right to remain silent.
(i) Voluntary
a. No evidence of coercion
(ii) Knowing & Intelligent
a. Understood his rights - received written copy, police
tested that he could read and understand English;
given time to read them; read aloud the 5th warning.
(iii) Conduct showing waiver = ∆ answering police's question
about whether he prayed to forgiveness for shooting
2. Invocation
i. ∆ invokes right to remain silent.
a. Rule: To invoke Miranda right to remain silent, you must assert it
unambiguously. Berghuis v. Thompkins. [same as Miranda right to counsel]
b. Effect of Invocation

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 1. Rule: After Miranda warnings are given, if a person asserts right to
silence, police MUST cease interrogation immediately and must
scrupulously honor suspect’s right to silence. Mosely.
(i) Scrupulously = case-by-case totality of circumstances.
Factors:
a. How long did they cease interrogation? Days, hours?
Or go out for 15 seconds?
i. Significant time passing is good
b. When they returned, did they re-Mirandize? [not
legally required but vastly helps argument]
i. ∆ must waive new set of warnings
c. When return, did they talk about same crime or
different? Crime X silence might not apply to Crime
Y.
d. Did police who come back know about earlier
invocation of silence?
2. Rule: ∆ can invoke right to silence even after he agrees to answer
questions, and has answered questions. Mosely.
(i) Mosely – ∆ arrested, Mirandized. Invoked 5A privilege. Police
ceased interrogation and put in jail cell. Two hours later, diff
officer, wanting to interrogate about a diff crime [one ∆ was
not in custody for], went to cell, re-Mirandized. ∆ signed
waiver form, answered questions. Scrupulously honored 5A
rights.
a. Scrupulous factors here:
i. Police ceased interrogation immediately
upon request
ii. Two hours elapsed
iii. Different officer conducted second
interrogation in different location, for
different rime
iv. Miranda warnings re-read.
ii. ∆ says “I want to see my lawyer.”
a. Rule: The Miranda right to counsel must be asserted clearly and unequivocally
[unambiguously]. Edwards.
1. Edwards (1981) – Police read ∆ Miranda. ∆ originally agreed to talk
but told police “I want attorney before making a deal.” Interrogation
ceased; put in cell. Next morning police came to cell to resume
questioning. ∆ said did not want to talk, guard said ‘he had’ to talk.
Officer re-Mirandized and ∆ answered. ∆ properly invoked Miranda
right to counsel; second interrogation violated 5A.
b. Effect of Invocation
1. Bright Line Rule [door slams shut]: Any time suspect invokes
Miranda right to counsel, that suspect is not subject to further
interrogation unless/until counsel is made available to him, OR
unless/until the accused himself initiates further communication about
that crime. Edwards.
(i) Thus, police cannot reinitiate questioning unless counsel is
present. Minnick.
a. Rationale: meeting with lawyer changes nothing
about invocation; Edwards Rule protects more than
right to consult with lawyer, it protects right to
presence of lawyer during questioning.
2. Exceptions
(i) Exception 1: Edwards Rule only applies if ∆ clearly and
unequivocally asserts request to see lawyer.
a. Thus, if ambiguous or waffles, then Edwards rule
doesn’t apply at all, and police can plow through with
interrogation.

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 (ii) Exception 2: Edwards rule does not apply after there is a
break in Miranda custody lasting 14+ days between first and
subsequent attempt of interrogation. Shatzer.
a. Rationale: Edwards rule is to prevent badgering. If
suspect goes home and returns to normal life, low
chance that second interrogation 14 days later is
going to rise to that level of police badgering.
b. Ex. ∆ in custody, asserts desire for lawyer. Released,
goes home, goes back to genera life before
interrogation. Police may now come back to him after
2 weeks, put back into custody, and resume
interrogation without it being a violation of Miranda.
F. Exception to Miranda Warnings
Statements admissible even if custodial interrogation without warnings.
1. Public Safety Exception (“Quarles Exception”)
i. Quarles (1984) – ∆ arrested in supermarket after pursuit; wearing empty shoulder
holster. Police asked where gun was before giving Miranda rights; ∆ told police where
gun was. Gun admissible.
a. Police thought gun was immediately in vicinity of supermarket: accomplice
could use it to harm police or innocent citizens; customer or employee might
find it.
b. If Miranda rights had to be read, ∆s’ might be deterred from responding which
would make dangerous situation worse.
c. Asking for gun is almost “instinctual”; ct would not try to find any hidden
motivations. Just look at situation objectively to determine if response was
appropriate given public safety concern. If appropriate, no Miranda warnings
need to be given and evidence admissible.
d. Emphasized cost-benefit:
1. Cost of Miranda is usually possibility of fewer convictions.
2. Here, cost would be more – potential death or harm for public.
 Note: No further public safety exception cases have been decided. Scope of this
unknown – terrorism?
ii. Even if a statement is admissible under Miranda b/c of Quarles public safety exception,
don’t forget to analyze under DPC and trad’l self-incrimination cases as to what
constitutes compulsion as distinguishes to violation of Miranda.
a. Even if Miranda warnings don’t need to be given, you still can’t coerce a
statement and have it be admissible at trial!!
2. Covert Custodial Interrogation
i. Rule: Miranda warnings are not required when suspect is unaware he is talking to law
enforcement and gives an otherwise voluntary statement. Perkins.
ii. Illinois v. Perkins ( – Police put undercover informant in jail cell with ∆. Informant
claimed to be a burglar; during “forced togetherness,” informant elicited information
from ∆, some through direct questioning. Statements admissible; not necessary to give
Miranda warnings.
a. Here, there was (1) custody, (2) questioning by informant who was gov’t agent
[interrogation] but no Miranda warnings given.
b. No violation because ∆ unaware of fact that questions were coming from
equivalent of police rather than a fellow inmate.
1. What makes Miranda warnings essential is the pressure that comes
from being in custody COMBINED with knowledge that person
interrogating you is police.
2. Absence of this combination makes the Miranda warnings unnecessary.
3. Routine Booking
i. Name, address, etc.
G. Scope of Miranda Exclusionary Rule
1. Impeachment
i. Rule: Statement obtained in violation of Miranda can be used to impeach ∆ if ∆ testifies
in a manner inconsistent with that earlier statement.

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  Note: If pure coerced in violation of trad’l DPC or 5A grounds, it is wholly and
completely inadmissible for any purpose at trial and cannot even be used for
impeachment purposes.
a. So important to keep Miranda line of cases separate from trad’l DPC/5A cases!!!
2. Fruit of Poisonous Tree Doctrine
i. Generally, there is no FPT doctrine. Elstad.
a. Oregon v. Elstad – Police interrogated ∆ without Miranda warnings because
they didn’t consider him in “custody.” ∆ gave statement1. Later in interrogation
process, police gave Miranda warnings, ∆ waived, and provided statement2.
Statement1 inadmissible, statement2 admissible.
1. If errors are made by police in administering prophylactic procedures
[Miranda], they should not give same consequences as police
infringement of 5A.
(i) A violation of Miranda should not be treated the same, or as
seriously, as violation of 5A.
(ii) Unwilling to apply FPT Doctrine.
b. Rule: Non-testimonial evidence acquired as fruit of un-Mirandized statement is
not excluded by FPT Doctrine. Patane.
1. Patane ( ) – Gun that was discovered as fruit of un-mirandized
statement was admissible, even though un-mirandized statement itself
was inadmissible.
ii. Limited FPT Doctrine for Two-Step Interrogation Strategy
a. Police dept. strategy: purposely don’t give Miranda warnings even when they
know they are required. Aware first statement would be inadmissible, but that
statement may lead to admissible statements b/c based on Elstad, it seems like
no FPT doctrine. Purposeful avoidance of Miranda.
b. Missouri v. Seibert (2004) – 5-4; Deeply divided court. Confusing, can argue
what I want if I support it.
1. 5 held: FPT does apply  second statement inadmissible on FPT basis.
2. 4 held: FPT does not apply  second statement inadmissible but not on
FPT basis [invalid waiver].
(i) Instead, looked at factors:
a. Completeness and detail of the questions and answers
in 1st round of interrogation;
b. Overlapping content of the two statements;
c. Timing and setting of the first and second;
d. Continuity of police personnel;
e. Degree the interrogator's questions treated the second
round as continuous with the first.
(ii) Based on this, these 4 held that the Miranda warnings that
were eventually given to ∆ did not effectively inform ∆, who
had already confessed, that she really had a choice about
giving an admissible statement at that juncture.
(iii) Basically, ∆ waiver after Miranda warnings did not meet
required standard that it be “knowingly and intelligently”
given.
(iv) Statement 2 kicked out NOT because FPT, but because waiver
not valid
3. Breyer with 4, but also separate concurrence:
(i) Real lesson of plurality is that court will exclude FPT unless
failure to initially give warnings occurred in good faith.
(ii) Elstad did not apply FPT b/c initial violation was made in
good faith.
(iii) Here, b/c violation made in bad faith, so FPT applies.
4. Kennedy: put great weight on deliberate 2 Step Strategy violation;
should result in exclusion except if curative measures are taken, ex.
substantial break in time b/w first and second interrogations.

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Miranda Checklist
A. Was there custody?
B. Was there interrogation?
C. If both custody + interrogation  Miranda warnings must be given
3. Subject to 3 exceptions
i. Public safety
ii. Covert interrogation
iii. Routine booking
4. Assuming they had to be given, and assuming they were given:
i. Was there a valid waiver?
a. Can be express or implied, but must be
1. Voluntary
2. Knowing and intelligent
ii. Did ∆ invoke?
a. If ∆ asserts desire to silence
1. Scrupulously honor
b. If ∆ unambiguously asks for lawyer:
1. BRIGHT LINE RULE: Must cease interrogation until lawyer present
unless:
(i) Suspect initiates conversation about crime
or
(ii) Suspect released from custody and 14 day break
D. No FPT Doctrine for Miranda violations EXCEPT MAYBE bad faith case like in Seibert [SCOTUS not
clear, still in flux, not developed yet – make own argument]
E. Statements obtained in violation of Miranda are admissible in impeachment situations.

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