Fundamental Rights

A right is incorporated against the sates if it is: o Among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. o Whether it is basic in our system of jurisprudence, and o Whether it is a fundamental right, essential to a fair trial. Duncan v. Louisiana (p. 2)

Fourth Amendment Search and Seizure

Exclusionary Rule: if the evidence is illegally obtained, then that evidence cannot be admitted at trial to prosecute the defendant. Weeks v. United States (p. 3) Exclusionary rule applies to the states and the 4th Amendment is completely incorporated. Mapp v. Ohio (p. 4) o Mapp incorporated the 4th Amendment to the states via the 14th. Maryland v. Pringle (p.5) Katz Test: o A persons 4th Amendment right is violated if: The person exhibits an actual (subjective) expectation of privacy, and The expectation must be one that society is prepared to recognize as reasonable (objective standard) o essentially: a person must have a reasonable expectation of privacy (REP) for their rights to be violated. o The 4th protects people, not places. Katz v. United States (p. 5) Misplaced reliance on the loyalty of others is not entitled to constitutional protection. United States v. White (p. 6) [E]ntry of an open field does not violate the 4th Amendment. Oliver v. United States (p. 6) Curtilage = Search o Factors to determine if Curtilage or Open Field: The areas proximity to the house, Inclusion of the area in an enclosure around the home, The uses of the area, and The steps taken to protect the area from observation. United States v. Dunn (p. 7) TH AMENDMENT VIOLATION FOR AREAL SURVEILLANCE IN LEGAL AIRSPACE NO 4 o So long as the government observes the defendants property from a place they are legally allowed to be, there is no search. Legal airspace for fixed wing aircrafts 1,000 ft. California v. Ciraolo (p. 7) No 4th Am. violation for aerial photos using hi-tech camera. Dow Chemical Co. v. United States (p. 7) Legal airspace for helicopters 400 feet. Florida v. Riley (p. 8) Dog sniffing is NOT a search. o Person exposes the smell of drugs to the public wherever he goes. Limited in manner and content: Non-intrusive, Only alerts to drug contraband. United States v. Place (p. 8) o Any interest in possessing contraband cannot be deemed legitimate. o Thus any government conduct that only reveals the possession of contraband compromises no legitimate privacy interest. Illinois v. Caballes (p. 8) Squeezing bag is a search o if the cops do something beyond what a person would reasonably expect a member of the public to do, then the cops actions constitute a search. Bond v. United States (p. 9) Use of a pen register does not constitute a search. Smith v. Maryland (p. 9) No search beeper case 4th Amendment not implicated when government observes something that can be observed with the naked eye. United States v. Knotts (p. 9)

~1~

The constraints of the 4th Amendment apply when a device revals information that could not have been obtained through unaided surveillance. United States v. Karo (p. 9) Thermal imaging is not a search. o The gov. may not investigate a home with sense enhancing technology that reveals information about the interior of the home that could not otherwise be obtained without intrusion into the home, unless the technology the government uses is generally available for public use. Kyllo v. United States (p. 10) No REP in garbage taken to the street NO SEARCH. California v. Greenwood (p. 10)

Factors for Determining Whether Search Occurred (Outline p. 10)

Seizures
It invades a persons possessory interest in the seized property. Texas v. Brown (p. 12) [W]hen there is some meaningful interference with an individuals possessory interest in that property. United States v. Jacobsen (p. 12) A seizure occurs when a police officer exercises control over the defendants property by: o Destroying it United States v. Jacobsen (p. 12) o Removing it from the defendants actual or constructive possession. U.S. v. Place (p. 12) A seizure occurs when there is some meaningful interference with a persons possessory or ownership expectations. United States v. Karo (p. 12) PC Defined: The quantity of facts and circumstances within the police officers knowledge that would warrant a reasonable person to conclude: o That the individual in question is committing or has committed a crime (arrest); or o That specific items related to criminal activity will be found at a particular place (search). Totality of the Circumstances Test: o Practical, common-sense decision, whether, given all of the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Arrest Warrants
Warrantless arrests during the daytime in public are constitutional if PC is shown. United States v. Watson (p. 14) Warrantless searches/seizures that occur in the home are presumptively unreasonable. o Arrest warrant is required to enter and effect a non-exigent arrest of the subject in his own home. Payton v. New York (p. 14) Search warrant required for search when arresting in 3rd partys home. o Otherwise, police would just use arrest warrants to search other peoples house. -Steagald v. United States (p. 15) Gernstein Hearing Police can determine initial probable case to arrest, but after the arrest need judicial determination of probable case to keep them. (p. 15) Arrest warrant/cause outline p. 15 Ingredients for a valid search warrant: (p. 16) o probable case o oath or affirmation o particular description o due process o detached, neutral magistrate th Amendment prohibition on unreasonable searches and seizures contains an implicit 4 knock-and-announce rule. o NOT EVERY entry must be preceded by an announcement. Wilson v. Arkansas (p. 16)

Search Warrants

~2~

Reasonableness requires knock and announce before forced home entry, unless reasonable suspicion that there is a reason not to. o To justify no-knock police must have a RS that knocking or announcing under the particular circumstances would be dangerous or futile or lead to destruction of evidence. Richards v. Wilson (p. 17) The exclusionary rule does not apply to failure to comply with the knock-and-announce requirement. Hudson v. Michigan (p. 17) FREEZE THE SCENE The police can freeze a situation while getting a warrant. Illinois v. McArthur (p. 17) INCORRECT ADDRESS ON WARRANT allows latitude for honest mistakes. Maryland v. Garrison (p. 18) The police can search the premises, but not the people, unless the people are named in the warrant. Ybarra v. Illinois (p. 18) Situations constituting Exigent Circumstances: -Minnesota v. Olson (p. 19) o hot pursuit of a fleeing felon, o imminent destruction of evidence, o need to prevent a suspects escape, and o risk of danger to the police or to other persons inside or outside the dwelling Exigent circumstances are not an exception to probable cause, its an exception to the warrant requirement. Warden v. Hayden (p. 19) Once pursuit turns cold, excuse for circumventing warrant requirement evaporates. Welsh v. Wisconsin (p. 19) If suspect is lawfully arrested in the house, the police may search his person and his grabbing area. Chimel v. California (p. 20) Police have an automatic right to conduct a full search of an arrestees person and his grabbing area incident to lawful, custodial arrest. U.S. v. Robinson (p. 20)

Terry Stop Stop & Frisks

A search and seizure without PC is constitutional so long as it is reasonable. o A stop is reasonable for investigation. o A frisk of the person being stopped is reasonable for the officers slef-protection. o Terry search is limited to weapons. o The stop is a seizure and the frisk is a seizure. o It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person. o only when the officer by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred. o must be prepared to state specific facts giving rise to reasonable suspicion of criminal activity. Terry v. Ohio (pp. 21-22) The Frisk accompanying a Terry stop is limited to weapons. Minnesota v. Dickerson (p. 22) An unverified tip that a person has a weapon gives rise to RS. Adams v. Williams (p. 22) Police can Terry Stop a container or object with RS. o Reasonable suspicion that package or piece of luggage contains contraband/evidence of a crime justifies temporary seizure. United Stats v. Place (p. 23) If the police: have RS that a suspect is armed or might be able to reach a weapon during a Terry Stop of a car, or have PC based on a traffic violation; o Then the police may search: any part of the car the suspect may be able to get a weapon from (not trunk) inside any containers that could hold the weapons. Michigan v. Long (p. 23)

~3~

Factors to Determine Whether PC is required: magic words youre under arrest movement to a different location; the level of intrusion; the duration of the stop; the extent of the frisk/search o The Court essentially hold that any intrusion beyond a Terry Stop is an arrest. Probable case is required when the intrusion exceeds beyond a stop resulting from reasonable suspicion and for searches beyond frisks for weapons. -Dunaway v. New York (pp. 24-25) Although the police may have RS to conduct a Terry Stop, when the stop becomes a serious intrusion on personal liberty then the stop becomes a de-facto arrest and PC is required. -Florida v. Royer (p. 25) Police may order a driver from the car during a lawful traffic stop. Penn. v. Mimms (p. 25) Reasonable time for a Terry Stop o Along with degree of intrusion, courts also weigh duration. o No bright line rule. (40 min 16 hrs have been held permissible.) U.S. v. Sharpe (p. 26) Court treated detention as stop, not arrest, because it concluded duration did not exceed the time necessary to complete preliminary field investigation. U.S. v. Montoya De Hernandez (p. 27) The police can use stop and frisk for the investigation of past felonies. U.S. v. Hensley (p. 27) A person is seized under the 4th Am. if a reasonable person would believe that he was not free to leave under the Totality of the circumstances. o Court splintered on whether encounter amounted to illegal seizure but agreed gov. didnt need PC or RS for initial questioning. U.S. v. Mendenhall (pp. 27-28) Bus sweep = no seizure. Appropriate inquiry = whether a reasonable person in the subjects position would feel free to decline the officers request. U.S. v. Drayton (pp. 28-29 Seizures can occur in two ways: o application of physical force with lawful authority, or o Showing of authority. California v. Hodari (p. 29) Court adopted totality of the circumstances test (for informants/information) o Two pronged test: veracity and accuracy. Alabama v. White (p. 30) Flight + High Crime Area = Reasonable Suspicion o Terry line of cases have shown that a suspect acting nervously and evasive support a finding of RS. Illinois v. Wardlow (p. 31) If an officer has RS to make a stop, this permits the officer to demand ID. Hiibel v. Nevada (p. 31) Buie = SITA + Terry o Officers can do an automatic protective sweep of the room and adjacent areas when making a home arrest. o This is Terry frisk of house

SITA & Automobile Occupants (general rules outline p. 32)

The police can search the car and all containers in it contemporaneous with lawful custodial arrest, even if the person is no longer in the car. New York v. Belton (p. 33) The police may do a SITA on the arrestees vehicle if the arrestee was a recent occupant of the vehicle. (Extending Belton to recent occupants.) Thornton v. United States (p. 33) When the suspect has merely been cited for an offense rather than actually arrested, no custodial arrest occurs. (Thus SITA exception to 4th Am. inapplicable) Knowles v. Iowa (p. 34) The police can do a full custody arrest (and therefore SITA) for non-jailable offenses. -Atwater v. City of Lago Vista (p. 34) Pretext or ulterior motive does not invalidate police conduct otherwise justified on the basis of PC under the 4th Am. (Challenging arrest should be made under EPC.) Whren v. U.S. (p. 34) If PC to search the car, then the car may be searched w/o a warrant. Carroll v. U.S. (p. 35)

Cars & Containers

~4~

If the police have PC to search the car, then they may: Seize the car and apply for a warrant, Seize the car and search it later w/o a warrant, or Search the car immediately. o During a SITA search may only conduct search to protect officer safety, during Chambers search may search EVERYWHERE inc. trunk. Chambers v. Maroney (p. 35) Chambers doesnt apply in situations in which no exigency exists. Coolidge v. New Hamp. (p. 35) Automobile Exception applies to mobile homes parked in a public area are not fixed the ground. o Factors for analysis: its location whether the vehicle is readily mobile, its elevated on block, the vehicle is elevated on blocks, if its licensed, or whether it has convenient access to a public road. California v. Carney (p. 36) Automobile inventory search cases to be reasonable: o the search must be done according to std. operating procedure (SOP), and o the SOP allows little discretion to the officer conducting the search -South Dakota v. Opperman & Florida v. Wells (p. 37) If the police have PC to search the car in general then they can search: (p. 37) o The car, and o Any container in the car that reasonably could contain the suspected contraband/evidence. If the police have PC for a container in the car, then they can search: (p. 37) o the container, BUT NOT the car in general o PC for the container does not create PC for the entire car. To search a container, the police need a warrant (limited by Acevedo) U.S. v. Chadwick (p. 37) If: Cops have PC to search a car for the container, and The search falls within the vehicle exception, and The cops come upon a container in the car, o Then the cops may open the container assuming it is big enough to hold the container.

Plain View & Touch Doctrines

Requirements for the Plain View Doctrine: o The officer must not be in violation of the 4th Am. when he sees the object in plain view. o When the officer sees the object in plain view, the objects incriminating character must be immediately apparent. o The officer must have a lawful right of access to the object itself. Horton v. Cal. (p. 39) Rule: -Arizona v. Hicks (p. 40) o the incriminating nature of the item in plain view must be immediately apparent for the police to have PC under the Plain View Doctrine. o The police must have PC to believe the item in plain view is contraband. o The police must have PC prior to touching or moving the item in plain view. Plain Touch during a pat down search for the officers safety, if the officer touches an object whose incriminating nature is immediately apparent, then the officer may seize the object. -Minn. v. Dickerson (p. 40)

Consent
Consent is an exception to the Warrant Clause o The government has the burden of proving the consent was given freely and voluntarily, and not as the product of coercion or duress. Schneckloth v. Bustamonte (p. 40) Burden to prove consent not met by a showing of no more than acquiescence to a claim of lawful authority. Bumper v. North Carolina (p. 41)

~5~

A co-inhabitant of a residence can consent to a search of the common area. U.S. v. Matlock (p. 42) A co-inhabitant who is present at the time the officers request consent to search, can veto another coinhabitants granting of consent. Georgia v. Randolph If the police reasonably believe the party giving consent has the authority to consent to the search, then the consent is valid. Illinois v. Rodriguez (p. 42) An overnight guest has a REP in their temporary quarters. Minnesota v. Olson (p. 43) If the scope of the search exceeds the scope of the consent granted, then the consent is invalid as to the excess. o A party can limit or withdraw consent. o A party can only consent to searches of objects for which he has authority. Florida v. Jimeno (p. 43)

Special Needs Search

The search of a home even for administrative purposes is a search. However, because the search is reasonable, probable case exists for the warrant. Camara v. Municipal Court (p. 43) Inspections of licensed or highly regulated business establishments fall within the definition of administrative searches, and thus, they do not require individualized suspicion. o Evidence creating criminal liability that is found during an administrative search is admissible as fruits of a valid administrative search. New York v. Burger (p. 43) If a school admin. has RS that a student has violated a school rule or the law, then the school admin. may search the student for evidence of the violation so long as the search is not overly intrusive. o Whether a search is overly intrusive, a court will examine the TOC, including: Age of the student Sex of the student, and Scope of the search. New Jersey v. TLO (p. 44) If a roving border patrol has RS that a vehicle near the border contains illegal aliens, then the patrol may stop the vehicle and question the occupants about their immigration status. U.S. v. Brignoni-Ponce (p. 44) Permanent inland, immigration checkpoints, do not violate the 4th Am.s prohibition against unreasonable seizures. o For the police to conduct a search at one of these checkpoints they must have PC for the specific vehicle or consent. U.S. v. Martinez-Fuerte (p. 44) An international airport is the functional equiv. to an international border. U.S. v. Ramsey (p. 45) Three part test for special needs searches: o the importance of the gov.s special need; o the effectiveness of the prog. in achieving this need (subjective); and o the level of intrusion on individual privacy (objective). Brown v. Texas (p. 45) If the police stop an individual car not at a checkpoint, then they must have RS that the motorist is violating the law. Deleware v. Prouse (p. 46) Narcotics checkpoint is unconstitutional. City of Indianapolis v. Edmond (p. 46) Police may set up a highway checkpoint to obtain information from motorists about a crime recently committed at the same location. Illinois v. Lidster (p. 46) In determining whether the rule should be applied to a particular proceeding, the issue is whether the cost of its use in a particular context is likely to outweigh the incremental deterrent benefit of extending the doctrine to a new situation. U.S. v. Calandra The exclusionary rule applies to the states. Mapp v. Ohio (p. 47) Establishes the good-faith exception o For the good-faith exception to apply, a reasonably well-trained officers reliance on an issue warrant must be objectively reasonable. U.S. v. Sheppard (p. 48)

Car Checkpoints

Exclusionary Rule (outline/intro p. 47)

~6~

Good faith exception extended to non-warrant searches. (Case centered around ct. employee mistake.) -Arizona v. Evans (pp. 48-49)

Fruits of the Poisonous Tree Doctrine (intro/outline AND EXAMPLES p. 49)

o Identify the Poisonous Tree the constitutional violation constitutes the poisonous tree. o Identify the Fruit evidence that is obtained after the constitutional violation. o Casual link between tree/fruit if no casual ink the fruit will not be suppressed based on the tree. The government cannot use the fruits of 4th Am. violation to secure a conviction. o Nor can the gov. make indirect use of such evidence for its case, or support a conviction on evidence obtained through leads from the unlawfully obtained evidence. Walder v. U.S. (p. 50)

Attenuated Connection Doctrine (fruit exception, start p. 50)

Evidence secured as the result of poice illegality is admissible if the connection between the illegality and the challenged evidence has become so attenuated to dissipate the taint. Nardone v. U.S. (p. 50) Where the secondary evidence was discovered by exploitation of the original illegality, it must be suppressed. o Where, however, it is obtained by means sufficiently removed from the initial illegality, it is admissible. o Attenuation determination is mad on TOC, including flagrancy of the violation, time, intervening events, free will of the defendant. Wong Sun v. U.S. (p. 51) In determining attenuation, the court should consider: o The length of time that has elapsed between the initial illegality and seizure of the fruit in question; o The flagrancy of the initial conduct; o Existence or absence of intervening causes of the seizure of the fruit; and o Presence or absence of an act of free will by the defendant resulting in the seizure of the fruit -Brown v. Illinois (p. 52) However, witness testimony is more likely than physical evidence to be free of taint; witnesses often come forward of their own volition, whereas inanimate objects must be discovered by others. U.S. v. Ceccolini (p. 52)

Independent Source Doctrine (fruit exception, start p. 53)

If evidence is initially discovered during an unlawful search, but is later obtained lawfully with a search warrant issued on PC independent of the initial search, then the evidence is admissible under the independent source doctrine. o However, if the police would not have lawfully obtained the search warrant but for the initial illegal search, then the evidence is considered a fruit of the initial search. -Murray v. United States (p. 53)

Inevitable Discovery Exception (fruit exception, start p. 53)

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 inevitably would have been discovered by lawful means. Nix v. Williams (p. 54) Statements made to the police outside of the home are not exploitations of the polices illegal entry into the suspects home. New York v. Harris (p. 54) If the police violate the Knock-and-Announce Rule (Richards), but have a valid search warrant, then evidence obtained pursuant to the warrant is admissible. Hudson v. Michigan (p. 54) A trial cannot be built on sham confessions. Brown v. Mississippi (p. 54) 5th Am. privilege against self-incrimination applies to the states. Malloy v. Hogan (p. 55)

Confessions & Interrogations (p. 54)

~7~

Voluntariness (Due Process) Test (outline/starts p. 55)

Obtaining an involuntary confession violates a persons constitutional rights in and of itself, and it need not be introduced at the suspects criminal trial for the violation to occur. Chavez v. Martinez (p. 58) The privilege against self-incrimination only applies to testimonial or communicative evidence. Schmerber v. California (p. 59)

Miranda: New Law of Confessions: (start p. 60)

Miranda v. Arizona (pp. 59-62) o The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self incrimination. Bright line rule: must be given to everyone. A suspect being subject to a custodial interrogation must be informed in clear and unequivocal terms that he has the right to remain silent. The warning must be accompanied with the explaination that anything said can and will be used against the individual in court. The suspect has the right to consult with counsel prior to questioning and to have counsel present during questioning. If suspect cannot afford and attorney, he must be advised that one will be appointed to him. o Prosecutor must obtain an affirmative waiver suspect just talking is not enough. Covert custodial interrogation Miranda was not meant to protect suspects from boasting about their criminal activities in front of persons whom they believe to be their cell mates. Illinois v. Perkins (p. 62) If there is need for immediate action to protect the public from harm, then the polices duty to give Miranda warnings is suspended. o To determine whether the Miranda warnings are suspended, the need to protect the public from harm must outweigh the individuals rights (balancing test). New York v. Quarles (p. 62) Routine booking questions are not subject to the Miranda warnings. Pennsylvania v. Muniz (p. 63)

Exceptions to Miranda

Miranda Checklist (p. 63) De-Constitutionalization of Miranda (p. 63)

When the gov. informs the suspect of their right to remain silent, but that the suspect will lose his job if he does not respond, then the suspects answer is compelled and inadmissible in a later trial. Garrity v. New Jersey (p. 63) A confession taken in violation of Miranda can be used to impeach the defendants testimony if he testifies in his own defense at trial. Harris v. New York (p. 63) Statements taken in violation of Miranda, but satisfying the voluntariness test, are admissible against the defendant. Michigan v. Tucker (pp. 63-64) Miranda is a constitutional decision. Dickerson v. U.S. (p. 64) FOPT is derived from the 4th Am. while the 5th Am. governs Miranda. o Fruit of Miranda violation may be admissible. o A Miranda violation is not necessarily a violation of the suspects 5th Am. rights. -Oregon v. Elstad (p. 65)

~8~

Five Factors to determine if second statement is suppressed: -Missouri v. Seibert (pp. 65-66) The completeness and detail of the questions and answers in the first round of interrogation; The overlapping content of the two statements; The timing and setting of the first and second interrogations; The continuity of police personnel, and The degree to which the interrogators questions treated the second round as continuous with the first. o Applying test (3 steps): Determine whether law enforcement personnel deliberately employed the two-round interrogation strategy for the purpose of sidestepping Miranda: if no, then no Miranda violation if yes, go to next step Analyze the five Seibert factors (above): if the facts are more like Seibert than Elstad, then go to the next step if not, then no Miranda violation Determine whether the interrogator took any curative measures . if so, then statement may be admissible if not, then the statement is inadmissible Rules: o A Miranda violation is not a poisonous tree. o Un-Mirandized statements are excluded. (Elstad) o Fruits from the un-Mirandized statements are admissible. o Physical fruits are non testimonial. United States v. Patane (p. 67) Miranda warnings are required only where there has been such a restriction on a persons freedom as to render him in custody. -Oregon v. Mathiason (p. 68) Miranda becomes applicable as soon as a suspects freedom of action is curtailed to a degree associated with a formal arrest determine from the viewpoint of a reasonable man in the suspects position. o Factors suggesting a formal arrest: handcuffs, physical restraints, drawing of weapons, and saying youre under arrest -Beckemer v. McCarty (pp. 68-69) Miranda warnings are required when there is custody and interrogation. o Interrogation refers to: Express questioning, or Fundamental equivalent words or actions that are reasonably likely to elicit an incriminating response. Rhode Island v. Innis (p. 69) Waiver may be found even in the absence of an explicit statement if the suspects words and actions implicitly constitute a decision to forgo his rights. (Implied Waiver) o To determine whether a suspects conduct constitutes a waiver, look at the TOC. Waiver must be voluntary, knowing, and intelligent. Government must show by the preponderance of the evidence. N.C. v. Butler (p. 71) A knowing and intelligent waiver of Miranda rights may be shown by a suspects conduct when he answers questions after the police give proper warnings. State v. Thornton (p. 71) A waiver of Miranda is to interrogation in general and not to interrogation about a particular crime. Colorado v. Spring (p. 71)

Miranda Custody (outline/start p. 67)

Miranda Interrogation (tests/start p. 69)

Waiver & Invocation of the Miranda Rights (waiver outline/start p. 70)

~9~

Invocation and waiver of Miranda rights must be personally done by the suspect. Moran v. Burbine (p. 71) A childs parent cannot waive the childs Miranda rights over the childs objection. State v. Johnson (p. 72) If prosecution seeks to introduce statements form a suspect who initially invoked his right to council, then the prosecution must demonstrate: o counsel was made available to the suspect (physical presence), or o the suspect himself initiated the further conversation, and o that a knowing, intelligent, voluntary waiver subsequently occurred. Edwards v. Arizona (p. 72) The police must scrupulously honor the right to silence, but they may still interrogate the suspect depending on the TOC. o Factors Supporting Allowing Subsequently Interrogation: different officer than original interrogation; different crime being investigated than original interrogation; time passes between the two interrogations; and suspect is re-Mirandized for the second interrogation. Michigan v. Mosley (p. 73) Initiation occurs when an inquiry from a suspect can be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Oregon v. Bradshaw (p. 73) Once the suspect has invoked his right to counsel, the police cannot re-initiate interrogation without the attorney present. Minnick v. Mississippi (p. 74) When a suspect is released from custody, an appropriate period of release will terminate the Edwards presumption. o An appropriate period is 14 days. Maryland v. Shatzer (p. 74)

Invocation of Miranda Rights (start p. 72)

Sixth Amendment & Interrogation (Massiah outline/summary/start p. 75)

If a person invokes their right to counsel (must invoke) and has been arraigned, then the 6th Am. requires no contact w/ the person outside the presence of his attorney. o Greater protection than Miranda. Massiah v. United States (p. 75) The right to counsel attaches when a formal charge has been filed and the defendant appears before a judicial officer who has the power to restrain his liberty. Rothgery v. Gillespie County (p. 76) When the gov. instructs an informant to gain information from a suspect, then the gov. has deliberately elicited any resulting statement from the defendant to the informant. United States v. Henry (p. 77) The 6th Am. is not violated when a gov. informant merely passively listens and reports incriminating evidence (does nothing to stimulate a conversation). Kuhlmann v. Wilson (p. 77) Deliberate elicitation occurs when the government through overt or covert agents exploits an encounter set up by the accused with the accused with the agent that it knows is likely to result in incriminating information. Maine v. Moulton (p. 78) A showing that defendant has been advised of, understood, and waived his Miranda rights suffices to establish a waiver of counsel under the 6th Am. if he has not yet retained counsel. Patterson v. Illinois (p. 78) Overrules Jackson and makes Patterson the rule rather than the exception. o The 6th Am. creates no broader right to counsel during interrogation than Miranda provides. Montejo v. Louisiana (p. 78) If you waive Miranda, then you waive Massiah. If you invoke Massiah, does not mean you invoke Miranda. McNeil v. Wisconsin (p. 79)

Massiah Waiver (start p. 77)

~10~