Criminal Procedure I: Kamisar

Criminal Procedure I

Professor Kamisar




A.    The Problem of Bodily Extractions: Another Look at the “Due Process” and “Selective Incorporation” Approaches. 4

1.     Rochin v. California (34) 4


A.    Arrest, Search and Seizure. 5

1.     The Exclusionary Rule. 5

d.     Wolf v. Colorado. 5

f.      Mapp v. Ohio. 6

g.     United States v. Leon. 6

iv.        Evidence obtained by private persons, used in criminal proceedings. 7

B.     Protected Areas and Interests. 9

1.     Katz v. United States. 9

b.     Garbage. 9

c.     “Curtilage” vs. “open fields.”. 10

d.     Other premises. 10

e.     Vehicles (page 256) 10

f.      Effects. 10

g.     Enhancing the senses. 10

3.     Kyllo v. United States. 11


2.     Illinois v. Gates. 13

4.     Notes on the Informers Privilege. 14


1.     United States v. Watson. 16

3.     Notes and Questions on Unnecessary, Pretextual, and Arbitrary Arrests. 18

5.     Notes and Questions on Other Searches of the Person. 18


1.     Chimel v. California. 19

2.     Notes on Search of Premises Incident to and After Arrest Therein. 20

3.     Notes on Warrantless Seizures While in Premises to Arrest 21

a.     Plain View Test 21

4.     Notes on Warrantless Search of Premises Under Exigent Circumstances. 21


1.     Automobile exception. 23

14.       3 Overlapping doctrines pertaining to a car: 25

20.       Standardized Procedures: South Dakota v. Opperman and Illinois v. Lafayette. 27


4.     Terry v. Ohio. 28

5.     The Significance of the Stop-and-Frisk-Cases. 28

a.     The Utility of the Balancing Test 28

b.     Police Action Short of a Seizure. 28

6.     Grounds for Temporary Seizure for Investigation. 30

7.     Protective Search. 31

8.     Other Brief Detention for Investigation. 32

H.    Administrative Inspections and Regulatory Searches: More on Balancing the Need Against the Invasion of Privacy. 33

1.     Two kinds of departures from the traditional probable cause requirement: 33

2.     Safety inspections. 33

b.     Border searches. 33

c.     Vehicle checkpoints. 34

d.     Search of students. (page 442) 34

e.     Supervision of parolees and probationers. 34

f.      Drug testing. 34


2.     The Nature of “Consent”. 36

3.     Third Party Consent 37

b.     Who May Consent?. 38


1.     Constitutional Permission. 39

a.     Olmstead v. United States. 39

B.     Berger, Katz, and the Legislation that Followed. 39

2.     Title III of the Omibus Crime Control and Safe Streets Act of 1968 (Title III), the Electronic Communications Privacy Act of 1986 (The ECPA) and the USA Patriot Act of 2001: An Overview.. 41

a.     The Scope of Title III. (Omnibus) 41

C.     The Use of Secret Agents (With and Without Electronic Devices) to Obtain Incriminating Statements. 42


C.     The Right to Appointed Council and Related Problems. 44

1.     The Right to Appointed Council in Criminal Proceedings. 44

a.     Betts v. Brady. 44

t.      If an indigent defendant is not provided counsel, can he be given a suspended sentence or placed on probation?. 46

D.    The Griffin-Douglas “Equality” Principle. 47

g.     The Indigent Defendant’s Right to Expert Services in Addition to Counsel 50

3.     Withdrawal of Appointed Counsel on Appeal: The Potential Tension Between the Indigent Defendant’s Right to Counsel on First Appeal of Right and the Lawyer’s Ethical Obligation Not to Assert Frivolous Claims  50

4.     The Right to Appointed Counsel in Proceedings Other Than Criminal Prosecutions: The Continued Vitality of the Betts v. Brady Approach. 51

e.     Parental status termination proceedings; is potential loss of liberty a necessary, if not a sufficient, requirement, for the automatic right to appointed counsel?. 51


1.     The Interests Protected by the Due Process “Voluntariness” Test for Admitting Confessions. 53

2.     The Shortcomings of the Voluntariness Test 54

5.     Massiah and Escobedo: The Court Closes in on the “Confession Problem”. 55

a.     Massiah v. United States. 55

b.     Escobedo v. Illinois. 55

C.     The Miranda “Revolution”. 56

2.     Miranda v. Arizona. 56

e.     Voluntariness Test Notes: 58

4.     Applying and Explaining Miranda. 59

b.     Adequacy of Warnings. 59

c.     Need for police admonitions in addition to the four Miranda warnings. 60

iii.        The consequences of silence. 60

iv.        The right to be made aware of the subject matter of the questioning. 60

v.     “Custody” vs. “Focus.”. 61

vi.        What constitutes “custody” or “custodial interrogation”?. 61

vii.       What constitutes interrogation within the meaning of Miranda?. 62

viii.      The “jail plant” situation; “surreptitious interrogation.”. 63

x.     Questioning prompted by concern for “public safety.”. 63

a.     PUBLIC SAFEY Exception: 63

xii.       When, if ever, should interrogators be allowed to use “torture” in order to obtain information from suspected terrorists?. 64

xiii.      Meeting the “heavy burden” of demonstrating waiver: should tape recordings of the warnings and police questioning be required?. 65

xiv.      Implied waiver 65

xv.       “Qualified” waiver 65

xvi.      What constitutes an invocation of Miranda rights?. 65

xvii.     The scope of “second level” Miranda safeguards—the procedures that must be followed when suspects do assert their rights—and the distinction between invoking the right to remain silent and the right to counsel. 66

xix.      When does the “question-proof status” of a person who has asserted his right to counsel come to an end?  67

xxi.      What constitutes “initiating” further communication with the police?. 67

xxii.     How direct, assertive and unambiguous must a suspect be in order to invoke the right to counsel?. 68

xxvii.       Use of a pretrial psychiatric examination at a capital sentencing proceeding. 71

xxviii.      Miranda and mentally retarded suspects: The Cloud-Shepherd-Barkoff-Shur study. 71

d.     The Impact of Miranda in Practice. 71

e.     Can (Did) Congress “Repeal” Miranda?. 72

i.      §3501—Admissibility of Confessions. 72

D.    Miranda, the Privilege Against Compelled Self-Incrimination and Fourteenth Amendment Due Process: When Does a Violation of These Safeguards Occur?. 74

2.     There are 4 levels of violation: 74

E.     The Patane and Seibert Cases: Is Physical Evidence or a “Second Confession” Derived From a Failure to Comply with the Miranda Rules Admissible?  The Court’s Answers Shed Light on Dickerson. 75

F.     The “Due-Process”—“Voluntariness” Test Revisited. 77

1.     Miller v. Fenton: What Kinds of Trickery or Deception, if any, May the Police Employ After a Suspect Has Waived His Rights?. 77

e.     Some courts take the position that a promise not to prosecute makes the resulting confession inadmissible, but other strongly resist “freeing a murderer” because of a promise not to prosecute. 78

v.     Offering to protect a prisoner from physical harm at the hands of other inmates. 78

ii.     What if the Ku Klux Klan had kidnapped and tortured a murder suspect?. 79

G.    Massiah Revisited; Massiah and Miranda Compared and Contrasted. 79

1.     The Revivification of Massiah. 79

a.     Brewer v. Williams-Christian burial speech. 79

b.     3 Hypothetical: Are the incriminating statements admissible. 80

g.     What constitutes a valid waiver of the ‘Sixth Amendment—Massiah” right?. 82

i.      The “no contact” rule: Should prosecutors be bound by the ethical rule prohibiting a lawyer from communicating with an opposing party represented by counsel without the consent of the other lawyer. 82

2.     Passive v. Active Secret Agents. 82

c.     The distinction between placing an “ear” in the defendant’s cell and placing a “voice” there to encourage conversations. 83

f.      Once the Sixth Amendment Right to Counsel Arises, Does it Attach to All Other Offenses Closely Related to the Particular Offense Charged?. 83


A.    Wade and Gilbert: Constitutional Concern About the Dangers Involved in Eyewitness Identifications. 84

5.     The Due Process ‘Back Up Test’ 84

B.     The Court Retreats: Kirby and Ash. 84

6.     When are adversary judicial criminal proceedings “initiated”?. 85

12.       Photographic displays and other pretrial interviews of prospective witnesses. 85


3.     Verbal evidence as the “fruit” of illegal search and seizure. 86

5.     Confession as the “fruit” of an illegal arrest. 86

6.     Identification of a person as a “fruit” of an illegal arrest. 87

7.     Confession as the “fruit” of a Payton violation. 87

8.     A warrant search as the fruit of an illegal entry and occupation of the premises. 87

9.     The “tainted” witness. 88

a.     United States v. Ceccolini 88

B.     The “Inevitable Discovery” Doctrine: The Sequel to Brewer v. Williams. 88

1.     Nix v. Williams (Williams II) 88

C.     Use of Illegally Obtained Evidence for Impeachment Purposes. 89

1.     The Expansion of a Once-Narrow Exception. 89

c.     The 4th Amdendment vs. the 5th. 90

d.     What Kind of Constitutional or Other Violations are Encompassed Within the Impeachment Exception?  90

e.     Use of Defendant’s Prior Silence for Impeachment Purposes. 91

f.      Use of defendant’s prearrest silence for impeachment purposes. 91




A.     We have always been in a “crime crises.”

B.     Lower courts are much more police oriented than the Warren court was.  The further away from the trial court you are, the easier it is to think about criminal procedure and to forget about the violent crime.  Those courts closer to the crime have a different view.


A.     The Problem of Bodily Extractions: Another Look at the “Due Process” and “Selective Incorporation” Approaches

1.      Rochin v. California (34)

a.    Police forced themselves into the room, the defendant swallowed some drugs and the police had the doctor pump his stomach.

b.    “Shock the conscience.”

c.       Frankfurter is stuck with Wolf, Rochin came late.  Rochin is an aggravated search and seizure.  If Wolf v. Colorado had been decided the other way, this would have been easy.  Frankfurter makes this a confession case, you would never know it is a search and seizure case.

d.      Frankfurter throws out confessions not if they are unreliable, but if they are IF the police did something wrong.  So you could throw away a statement that has been independently established to be true, if the police conduct was wrong.

e.       Self-incrimination doesn’t apply to height, scars, etc., it applies to testimony or words.  That is why people have to submit their fingerprinting. 

f.       Frankfurter never mentions Wolf v. Colorado, because it is a problem.

2.      Possibilities:

a.       Frankfurter never said 4th amendment is binding on the states, he only said the core of the fourth amendment was binding on the states.  In Wolf, it wasn’t the core, it was at the out edges of the fourth amendment.

i.        There was one big problem with this, if this was true, we would have to look at the facts of the case to see whether or not it was a super search and seizure, etc., or one of lesser magnitude…but there are no facts to the case.


A.     Arrest, Search and Seizure

1.      The Exclusionary Rule

a.       If you look at the fourth amendment you will discover that it doesn’t have anything to say about the exclusionary rules.

i.        4th amendment doesn’t say anything about exclusionary rule, exclusionary rule is a matter of judicial implication.  But are there any Supreme Court cases that are not matters of judicial implication (professor can’t think of any).

b.      Impressive argument: what is the importance of the 4th amendment if the police can bypass the judge?

i.        If you have a system with no exclusionary rule, then you are laundering the evidence.

ii.      If the judge won’t grant a warrant for no probable cause, you illegal search and then bring evidence and the judge asks where it is from, and you say don’t ask, this bypasses the 4th amendment.

c.       Greatest evidence to support exclusionary rule was the police’s reaction to the overturning of Wolf in Mapp.

d.      Wolf v. Colorado

i.        What was Frankfurter’s main theme?

a.       Police violated the fourth amendment substantively.  Frankfurter seems to be saying that fourth amendment (specifically one’s right to privacy against arbitrary intrusion by the police) is enforceable against the states.

ii.      What is the problem?

a.       There is more than one way to show condemnation of the police, there are other ways of enforcing the 4th amendment than throwing out the evidence.

b.      Convoluted way in which Frankfurter stated the question. 

1.      Frankfurter could have asked the question in a different way. 

2.      Frankfurter said whether there are other ways to do this aside from the exclusionary rule. 

iii.    Are there alternative ways to enforce the 4th amendment?

a.       Frankfurter talks about an alert media. 

b.      The more brutal the conduct, the more likely the victim is to recover against the police. 

c.       Brutality makes it more likely that you can rely on the alternatives, however, you don’t need the exclusionary rule for the outrageous.

iv.    The dissent argued that there was no other way to enforce these rights.

e.       Professor is in favor of exclusionary rule, but there are some things to be said against the exclusionary rule.

i.        Most of these provisions stand in the way of law enforcement.

ii.      Impededes truth finding as it excludes relevant evidences,

iii.    Severe consequence for a minor violation.

iv.    Leads to more perjury.

f.       Mapp v. Ohio

i.        Clark is trying to demolish any argument ever made by anybody against the exclusionary rule. 

ii.      Clark: exclusionary rule is part of the 4th Amendment, the 4th amendment is part of due process. 

iii.    There was never a warrant and the Supreme Court knew that (if there was a warrant, they would have produced it).

iv.    HOLDING: In a prosecution in a state court, for a state crime the Fourteenth Amendment does not allow the admission of evidence obtained by an unreasonable search and seizure.

v.      Harlan writes an interesting dissent:  Says that some states are already doing things.

a.       Problem of law enforcement varies within the state from town to town.  Harlan says on p. 223—unsatisfactory experience with the exclusionary rule. 

b.      Harlan makes an interesting argument that is true today, but was not true when he said it: difference between 4th and 5th-you don’t violate 5th until you admit the evidence.  At the time 5th didn’t apply to states (might be a much better argument now than previously).

g.       United States v. Leon

i.        Clearly Leon breaks with Mapp.

ii.      Wolf v. Colorado separates the 4th amendment and the exclusionary rule.  Leon says “you have no right to exclude the evidence, we decide whether it is worthwhile to exclude, even though it is undisputed, your rights have been violated.”

iii.    What is the holding in Leon:

a.       Is Leon this broad, or is it limited to search warrants?  The main theme seems to be search warrants.

b.      HOLDING:  The balancing approach that has evolved in various contexts—including criminal trials—forcefully suggests that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good-faith belief that a search or seizure was in accord with the 4th Amendment.

c.       There is a good faith exception to the exclusionary rule.

d.      “I thought the warrant was valid.”

iv.    LEON Dissent:

a.       Thinking about it in terms of a pure deterrent.  Police officer thinking that sometimes I will get away with it, sometimes I won’t.  Think of it as a disincentive.  It is not a deterrent, it is an effort to influence the upper brass.  Brennan says that in his dissent.

b.      In Weeks there was no indication of whether the exclusionary rule had to justify its existence, it was just a way of reading the fourth amendment.  Brennan says in Leon that what people have done is make it an empirical question, of which there is no empirical support.

h.      Notes on the “Dimensions” of the Exclusionary Rule

i.        Evidence obtained by government agents, used as basis for questions to grand jury witness.


1.    Held that a grand jury witness may not refuse to answer questions on the ground that they are based on evidence obtained from him in an earlier unlawful search.

ii.      Evidence obtained by government agents, used in criminal case after conviction.

a.       Supreme court had denied to extend the exclusionary rule beyond the criminal trial context (citing Janis, Calandra, and Lopez-Mendoza).

b.      Pennsylvania Board of Probation and Parole v. Soctt

1.      Exclusionary rule doesn’t apply to parole revocation hearings because there is no deterrent benefit.

iii.    Evidence obtained by government agents, used in “quasi-criminal” or civil case.

a.       One 1958 Plymouth Sedan v. Pennsylvania

1.      Weeks/Mapp exclusionary rule applies to forfeiture proceedings.

b.      Boyd v. United States

1.      forfeiture is quasi criminal in nature and

c.       United States v. Janis

1.      Holding that exclusionary rule didn’t apply in civil case.  Court says that deterrent effect in such cases is speculative.

2.      How are you going to deter the police from doing this the next time when they work hand and hand with the federal government in this area?

3.      If you are trying to deter the police, you must throw out the evidence for both, or else the police will have an incentive for doing this.

d.      I.N.S. v. LOPEZ MENDOZA

1.    Exclusionary rule inapplicable in a civil deportation hearing.

2.    Cost-benefit approach, the deterrent value of the exclusionary rule is reduced.

iv.    Evidence obtained by private persons, used in criminal proceedings.

a.       If a private citizen breaks into your house and goes through your house and finds evidence of crime, then you neighbor can turn this over to the police and you can’t complain.

b.      Burdeau v. McDowell (244)

1.      Evidence obtained by private citizens used in criminal proceedings.  No exclusionary rule for this, unless there is collusion between police and private citizen.  A private citizen who works as an agent of the police doesn’t escape the exclusionary rule.  Cases where people on their own search somebody else’s house.

c.       4th Amendment doesn’t say it, but it has come to mean that the rights guaranteed are from the government.


1.      Fed Ex employees came across a suspicious box, which when cut open exposed a tube with white powder.  Federal drug agents were summoned, but before their arrival the substance was put back into the box.  The court allowed a search without a warrant.

v.      Evidence obtained by virtue of conduct of nonpolice government employee, used in criminal proceedings.

a.       Arizona v. Evans

1.      Court clerk failed to enter a decision into the computers.  Subsequently the suspect was pulled over and as a result of the clerk’s error had an outstanding warrant (since the clerk accidentally failed to remove warrant), court held that to exclude this evidence would not offer a deterrent effect.

b.      New Jersey v. T.L.O.

1.      Student searched by high school principle, search was reasonable, so court avoided discussing whether exclusionary rule applies in this case.

vi.    Evidence obtained by foreign officials, used in domestic criminal proceedings.

i.        The exclusionary rule has been attacked on many grounds and there are various proposals to limit it in various ways, and one way is to say that the exclusionary rule should not apply in the most serious cases—such as kidnapping, murder, espionage, armed robbery.

i.        Professor against making an exception for heinous crimes:

a.       A shocking crime puts the law to a test.  If you did this you would say that you can’t comply with the 4th amendment in serious crimes. 

b.      However, Orfield says that police take 4th amendment more seriously in serious crimes, so you would be nixing the amendment in its most rigorous context.

ii.      Another argument, you can’t keep the list of heinous crimes short.  The list would become a very long list.

j.        Another proposal is that in deciding whether the evidence is admissible or not the court should balance the gravity of the crime with the misconduct of the officer.

k.      Note 8: Page 237, proposal in footnote g that we compare the reprehensibility of the crime with the gravity of the police misconduct.  This would be a nightmare, this would give the trial judge enormous discretion.  If you are dealing with a serial killer, the reprehensibility of the crime would be so big that it would outweigh anything the police have done.

2.      The Exclusionary Rule  Revisited (Supplement)

a.       Hudson v. Michigan

i.        Held that evidence seized in violation of the knock-and-announce rule could be used against a defendant in a later criminal trial in comport with the Fourth Amendment and that judges cannot suppress such evidence for a knock and announce violation alone.

ii.      Scalia wrote an opinion that would essentially overturned Mapp v. Ohio.  Is it the exclusionary rule that has a lot of social cost?  Is it the exclusionary rule that leads to the release of criminals, or is it the fourth amendment itself?

iii.    Scalia does a good job of saying that things have changed since Mapp v. Ohio.  What Scalia is saying that the reasons for Mapp v. Ohio don’t apply.  This is a blueprint for overturning the case.

iv.    We talk about lost arrests and lost searches, would they have been lost anyhow?  Suppose we had no exclusionary rule, we had an alternative (i.e. every cop was suspended for six months without pay, etc.)?  If these alternatives were in place, we would lose the same cases, but we wouldn’t know the names of the criminals.  Cops will not go after evidence, because they don’t want to get suspended or penalized, it would just be that we lose the case in advance.  If the cop never made the search, we would lose the same case, but we wouldn’t know the name of the guy, we wouldn’t see him grinning.  A society whose police officers obey the law in advance lose just as many cases as a society where they do not obey the law and the court steps in.

v.      It’s not the exclusionary rule, it is the fourth amendment we are talking about.

vi.    The exclusionary rule doesn’t reach all police conduct, so don’t attack it for being incomplete.  Supplement it.  If the cop breaks down a door to search for drugs and doesn’t find anything, there is no exclusionary rule, nothing was found, yet the cop’s behavior must be deterred.

B.     Protected Areas and Interests

1.      Katz v. United States

a.       Charles Katz was convicted in California of illegal gambling. He had used a public pay phone booth in Los Angeles to place bets in Miami and Boston. Unbeknownst to Katz, the FBI had recorded his conversation via an electronic eavesdropping device attached to the exterior of the phone booth.

b.      In the decision the Supreme Court sided with Katz, holding that the Fourth Amendment protects his right to privacy, wherever he may be.

c.       The thrust of the Court's argument was that the Amendment protects people and not just places.

d.      It turns out that Katz was not that big a deal because there were certain phrases that are sneaky.  You don’t realize how damaging they are until the court starts interpreting them.

e.       The test is not whether the individual person’s feeling is reasonable.  The expectation has to be one that society is prepared to recognize as reasonable.  How can you decide this?

f.       This is probably not what Stewart mean, Stewart gets lost in the shuffle.

g.       Hugo Black in Katz: Black was very uneven when it came to the fourth amendment.  Says that the framers were aware of eavesdropping.  If the framers were bothered, they could have excluded it in the fourth amendment.  There is a big difference between eavesdropping and the use of microphones or bugs.

2.      Notes

a.       Fourth Amendment interests.

i.        The fourth amendment not only protects against the defendant’s right to privacy.  The Fourth Amendment also protects the interests in possession of property and liberty of person.

ii.      Seizures of property are subject to Fourth Amendment scrutiny even though no search within the meaning of Amendment has taken place.

iii.    United States v. Place

a.       Detention of traveler’s luggage 90 minutes was unreasonable seizure in two respects, as it constituted deprivation of defendant’s possessory interest in his luggage and his liberty interest in proceeding with his itinerary.

iv.    Soldal v. Cook County

a.       Seizures of property are subject to Fourth Amendment scrutiny even though no search within the meaning of the Amendment has taken place.

b.      Garbage.

i.        California v. Greenwood

a.       Case where police took garbage bags from garbage men from a particular house and found evidence of drug usage.  This discovery was the basis for a search warrant, which in turn led to discovery of drugs in the home. 

b.      Court ruled that these actions did NOT violate the fourth amendment. 

c.       There was no reasonable expectation of privacy.  The Δ’s exposed their garbage to the public and this sufficiently defeats their claim to 4th amendment protection.

d.      What is the holding of Greenwood: What is the rationale?  When you give your keys to a valet, does this mean that the cops can search your car and glove compartment.  What are they saying? Professor thinks that the whole theory of this is basically wrong.

e.       This is a very subjective expansive test.  This is what happened with Katz.

ii.      What choice to people have? 

a.       Smith v. Maryland-Pin register case.  Individual has no legitimate expectation of privacy in the numbers dialed on a telephone, because he voluntarily conveys those numbers to the telephone company.

b.      I.e. when people voluntarily make a phone call.  What choice do we have? 

c.       You want to use a phone, you have to dial a phone number.

c.       “Curtilage” vs. “open fields.”

i.        Oliver v. United States

a.       The court held that the open field doctrine of Hester, by which police entry and examination of a field is free of any Fourth Amendment restraints, has not been implicitly overruled by Katz.

ii.      Courts have extended Fourth Amendment protection to the curtilage; and they have defined the cartilage by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private. 

a.       See U.S. v. Dunn footnote e on page 253.

b.      No expectation of privacy legitimately attaches to open fields.

iii.    Florida v. Riley

a.       ISSUE: Whether surveillance of the interior of a partially covered greenhouse in a residential backyard from the vantage point of a helicopter located 400 feet above the greenhouse constitutes a ‘search’ for which a warrant is required under the Fourth Amendment.

b.      HOLDING: The accused did not have a reasonable expectation that the greenhouse was protected from aerial view, and thus that the helicopter surveillance did not constitute a search under the Fourth Amendment. However, the Court stopped short of allowing all aerial inspections of private property, noting that it was "of obvious importance" that a private citizen could have legally flown in the same airspace.

d.      Other premises.

i.        Business and commercial premises

a.       Covered by the Fourth Amendment

ii.      Private areas in public places

a.       Restroom of a store was protected.  State v. Bryant.

iii.    Detention facilities

a.       The Fourth Amendment has no applicability to a prison cell.

e.       Vehicles (page 256)

f.       Effects

i.        Bond v. United States

a.       Police lawfully stopped a Greyhound bus and squeezed Bond’s luggage.  Traveler’s personal luggage was clearly an “effect” protected by the Fourth Amendment.

g.       Enhancing the senses

i.        Generally it is fair to say that it is not a search for an officer, lawfully present at a certain place, to detect something by one of his natural senses.

ii.      The result is ordinarily the same when common means of enhancing the senses, such as a flashlight or binoculars, are used.

iii.    See footnotes on page 257.

iv.    True of False, the use of a drug sniffing dog is not a search?  The use of a drug searching dog in certain circumstances is not a search.

v.      Unknown as to whether police can use drug sniffing dogs in a traffic jam.  Not clear under Caballes, but does it make a difference that Caballes did something wrong.  This is a way to limit the decision.

3.      Kyllo v. United States

a.       Kyllo case:  Thermal imager is a search, it is not always a search, just as you can’t say that a drug sniffing dog can never search, it depends on the circumstances and is not absolute. 

b.      Holding of Kyllo: held that the use of a thermal imaging device from a public vantage point to monitor the radiation of heat from a person's home was a "search" within the meaning of the Fourth Amendment, and thus required a warrant. Because the police in this case did not have a warrant, the Court reversed Kyllo's conviction for growing marijuana.

c.       After Kyllo: professor thinks that Scalia would vote with the four moderates on this issue.  Very powerful precedent for saying that a drug sniffing dog is not allowed to sense or smell what is going on without probably cause/a warrant.  This is a search.

d.      Common argument made all the time—I could have gotten a search warrant and had probable cause for a search warrant and therefore the inevitable exception could apply.  That is not how the inevitable discovery exception works.  What is the bottom line—you would never need a search warrant if that argument prevailed because you would never need a search warrant if there is probable cause because you could have argued “I could have got one” so that is the end of search warrants.

e.       The inevitable discovery exception has to be limited, otherwise it wipes out everything else.  It only means that the police would have discovered the evidence anyhow, even if they hadn’t violated the law.

f.       Katz. vs. Kyllo

g.       The canine nose.

i.        United States v. Place

a.       Exposure of respondent’s luggage, which was located in a public place, to a trained canine—did not constitute a ‘search’ within in the meaning of the Fourth Amendment.

ii.      Illinois v. Caballes

a.       Reaffirmed Place as applied to a dog sniff of a vehicle during a traffic stop.

h.      Weapons detector.

i.        Electronic tracking.

i.        Knotts and Karo provide good background for Kyllo.

ii.      Unites States v. Knotts

a.       Case involved placing a beeper inside chemical packaging (chemicals were known to be used in drug manufacture.

b.      The court held that a use of a beeper did not constitute a Fourth Amendment search. 

c.       Electronic tracking device does not constitute a search if the tracking could have been achieved via conventional means, i.e. placing a police officer equidistant on a long route.

d.      Think about the case where they walk into a stadium and look and facial imaging.

iii.    Unites States v. Karo

a.       Police do whatever they do until the court says he can’t do it.  There is one limit we know of, the Karo case—installing a beeper with the consent of the original owner to follow a suspect, but not when it reveals information that could not have been obtained via video surveillance.

b.      Beeper was stuck in a package of chemicals, with consent of owner, used to manufacture drugs.  Buyer has no knowledge of beeper.

c.       Not legal because it was giving them information about the inside of the home.  Only becomes a search when it reveals information about the inside of the house. 

d.      Scalia is thinking down the road and he is really thinking of all the future developments about devices that can x-ray through the walls of housing and all kinds of technology that can constitute a threat to privacy and he is trying to head it off before it gets any further. 

e.       Stevens says that Kyllo cuts off all attempts to head off criminals.

j.        Cell phone tracking.

k.      Photographic magnification.

i.        Dow Chemical Co. v. United States

a.       Court upheld the use of a high powered camera.

l.        Enclosed space detection system.

m.    Interception of computer communications.

i.        The transmitter of an e-mail message enjoys a reasonable expectation that police officials will not intercept the transmission without probable cause and a search warrant.  United Sates v. Maxwell.

n.      Decryption

i.        You only have a right not to be searched when the police lacked probable cause.  If you have probable cause, you shouldn’t be able to fall back on encryption.

o.      CRT Microspy

p.      Digital contraband detector.

q.      Facial character recognition.

i.        Facial Character recognition: Biometrics.  Is this a search or not?  Prof. says court will probably say that the police can—i.e. if there were 50 cops who had memorized the face and walked through the stadium it would be okay, i.e. an analogy to the Knotts case.

r.        Gas chromatography.

s.       Passive alcohol sensor.

t.        Gouled v. United States

i.        Gouled—is of historical significance only.  If you had all the probable cause in the world you couldn’t search for purely evidentiary value only.

4.      Andresen v. Maryland

a.       Is there a violation of the 5th amendment by the seizure of documents from a corporation or law office?  Court says no.

b.      Based on an incredibly technical argument—you can’t make the client himself comply with the subpoena because the very act would indicate he has these documents, but if he gives these documents to his lawyer or accountant…

c.       If I turn my tax records over to my lawyer or client, they are better protected, not unprotected.  Same thing as car searches, police may not be able to search your briefcase when you check it with your coat, but if it is in your car, no search warrant is required.

d.      Zurcher v. Stanford Daily

i.        What is really the issue in Zurcher—why didn’t the government subpoena the documents they wanted instead of searching for them?

ii.      Would you prefer to have the documents via subpoena or via search warrant?  If the police are searching for documents they will go through every drawer and they may find other things.

iii.    If they proceed by subpoena their lawyers can come in and argue that it is too broad, but you can’t do anything once the cops are there.  This is why the government wants to proceed via search warrant rather than by subpoena.

iv.    Justice White says: newspapers are tough, they are robust and bold and they haven’t been intimidated in the past, in the past hey assumed that the police couldn’t do this.  Moreover it is a college newspaper and a government will not lightly search through the offices or the desks of the NY Times or Post, but they might be inclined to search from some offbeat paper that doesn’t have the muscle of the times or the post.

v.      3rd party search via a warrant is okay—this probably wouldn’t have happened if it was the WSJ or NYT. 


1.      Spinelli v. United States

a.       What was wrong with the search warrant in Aguilar—one way of stating what was wrong with it was that the magistrate couldn’t do his job, he couldn’t decide whether to issue the warrant himself.  What he’s got are conclusions.  We have no idea why he is reliable or why the information is reliable.  The Magistrate can’t decide for himself, he has nothing but conclusions.

b.      Aguilar v. Texas

i.        Search warrant insufficient where officers swore only that they had received reliable information from a credible person.

a.       Credibility

b.      Reliability

2.      Illinois v. Gates

a.       Anonymous letter was sent to police describing in detail the m.o. of a drug-dealing husband and wife.  Wife drives to Fla. from Chicago, flies back.  Husband flies down and drives car back after it’s loaded with drugs.  Letter said this would happen on May 3.  Police pursued tip, verified some of the info, surveiled Ds, obtained warrant after H began driving north.

b.      Court overturned the two-pronged test for probable cause as set in Spinelli v. United States with the "totality of circumstances" test.

c.       Totality of circumstances approach is far more consistent with prior cases than IL SC’s complex test.  Veracity, reliability, and basis of knowledge are highly relevant, but they shouldn’t be viewed as entirely separate and independent requirements to be rigidly exacted in every case.  A deficiency in one can be compensated for by a strong showing of another.

d.      Is Aguilar still good law after the Gates case? Aguilar is still good law.

e.       Did the police have probable cause?

f.       If this thing happens every week or every other week it gets suspicious.  And if you find out that he doesn’t have a job it gets more suspicious.

g.       The trouble with this statement is that it is very misleading.  Innocent behavior can be very suspicious and at some point it becomes so suspicious

h.      Draper: Informant predicted itinerary.  Good benchmark because there the informant provided more detailed information, and because independent police work corroborated much more than one small detail that had been provided by the informant.

i.        White and Rhenquist have different views of what Draper means.  Everybody agrees, including Rehenquist that there is no probable cause, it’s because of the letter.

j.        Is this a peculiar way to describe what happened?  They have to bring in Chicago because the anonymous tip said Chicago.  It is one thing for the government to say this, but for the Supreme Court of the US to say it the same way is too much.

k.      Stevens dissent (footnote 3 on page 293)

i.        The search warrant had been issued long before they arrived in Chicago.  The main point of having a search warrant today is that the police officer is stuck with what he said in the affidavit.  Without a warrant, he can think about it some more and think about some things that he didn’t have in mind, but which he now has in mind.

l.        Don’t know if there is anything left in the two prong test.  He says, the very fact that police are not legally trained cuts the other way, because they are not lawyers and they are not legally trained is all the more reason for why they need a structure.  The two pronged test gave them a structure.

m.    The problem is that it is not clear that there is nothing left of the two prong test.  It is clear that it is a softer test, it may be that before Gates you needed so many units of each prong.  Now you may need fewer, but you still need something.  As White said, the police officer is the informant, obviously he is reliable, but that is not enough if you have no idea how the police officer got the information.

n.      Innocent seeming v. innocent details—very misleading terms

o.      Substantial chance means significant probability—not more probable that not.  Well below 50. More than probable cause.

p.      Probable cause 33%. More than reasonable suspicion.

q.      Reasonable suspicion.

3.      Notes

a.       Massachusetts v. Upton

i.        A warrant was upheld under Gates after the magistrate determined that there was a fair probability that contraband or evidence of a crime would be found in the suspect’s motor home.

ii.      Warrant issued for search of motor home on basis of a tip.  Informant called anonymously, but cop knew she had personal knowledge of defendant.  The cop also verified the location of the motor home. 

iii.    Franks v. Delaware

a.       Held that where the Δ makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the Δ’s request.

iv.    Split of authority on whether everything supporting warrant must be in affidavit and/or whether the sufficiency of probable cause can later be established by statements from the officers or judges as to other information known at the time but not stated in the affidavit.

a.       US v. Clyburn

1.      Holding that magistrates can consider sworn, unrecorded testimony

b.      Whiteley v. Warden

1.      Holding that insufficient affidavit cannot be rehabilitated by testimony possessed b the affiant but not included in affidavit.

4.      Notes on the Informers Privilege

a.       McCray v. Illinois

i.        FACTS: Petitioner was arrested and found to have heroin on his person after an informant who had supplied reliable information in about 20 previous cases told them that he had observed the petitioner selling drugs.

ii.      HOLDING: Police officers need not invariably be required to disclose an informant’s identity if the trial judge is convinced, by evidence submitted in open court and subject to cross-examination, that the officers did rely in good faith upon credible information supplied by a reliable informant.

iii.    There are some things you have to have, and one assumption is that unless there is pressure from above, the general proposition is that state judges are not going to be too defense oriented.

iv.    Judges who run for election don’t dread being soft on crime.

v.      If you don’t require them to disclose their identity, then they won’t do it.


i.        Way to address situation where defense couldn’t find out who informant was.  Taped, defendant doesn’t have an opportunity to cross examine informant to see if there is probable cause.

c.       Maryland v. Pringle

i.        FACTS: Car was stopped by a police officer who noticed a large amount of cash inside.  The after searching the car and the three occupants inside the car, several bags of heroin were found.  Pringle confessed to owning the drugs and insisted he was the only one involved. 

ii.      ISSUE: Did the officer have probable cause to believe Pringle committed the crime?

iii.    HOLDING:  Yes, the officer had probable cause.  From the facts it is possible that any one of the three defendants had knowledge or exercised dominion over the drugs.  A reasonable officer could conclude that Pringle committed the crime of possession, either solely or jointly.

iv.    Footnote 13 on page 287.  “substantial chance” They are not saying it is more probable than not, they are saying that there is a significant probability, but it is not more probable than not.

v.      Some justices are just like, “I’ll decide this case, that’s it.”  Some justices have agendas, i.e. Frankfurter and Black, and they wouldn’t sign each other’s opinions.  We don’t know exactly what this means, but substantial chance is well below 50 on a scale of 1 to 100.

d.      Notes on Other Sources of Probable Cause

i.        Information from an alleged victim of, or witness to, a crime.

a.       A victim or witness does not need to have prior reliability.

b.      The critical question usually is whether the general description given by the victim or witness is sufficient to justify the arrest of any one person.

c.       Brown v. United States

1.      Brown v. United States on page 303, the judges bend over backwards to help the police.

ii.      Direct observation by police.

iii.    Information and orders from official channels.

5.      Ybarra v. Illinois

a.       Police executed a warrant in a bar in the late afternoon.  Cigarette package containing heroin was located and retrieved from customer Y’s pocket.

b.      Held: warrant to search bartender only, no probable cause to search all of the customers.

6.      Plain view doctrine

a.       Horton v. California

i.        Warrant to search house for rings; police found and seized guns in plain view.  Ct disagreed with Horton’s argument that Coolidge (p. 12, supra) also required that the discovery be inadvertent.  The Ct said that police practices are best administered by objective rules.  As long as officer has a lawful right of access—that is, where warrant particularly described the place to be searched and persons or things to be seized, and where the search is circumscribed by the exigencies that justify its initiation—no additional 4th Am interest is further by inadvertence req’t.

7.      Supplement

a.       United States v. Grubbs

i.        Information that is premature rather than stale.

ii.      For a conditioned anticipatory warrant to comply with the Fourth Amendment’s requirement for probable cause, two prerequisites of probability must be satisfied:

a.       It must be true not only that if the triggering condition occurs there is a fair probability that contraband or evidence of a crime will be found in a particular place, but also that;

b.      There is probable cause to believe the triggering condition will occur.


1.      United States v. Watson

a.       Based on informant information, posted officer arrested a man selling stolen credit cards.  Officer concededly had time to obtain a warrant, but chose to make a warrantless arrest. 

b.      Is a warrantless arrest illegal if the officer could have obtained a warrant?

c.       Court: No.

d.      Does it strike you as odd that even though we have all the probable cause in the world, if you have time to get a search warrant, you don’t have to get one?

i.        Majority notes U.S. v. Di Re (1948) (222 n.8), which held that even in the absence of a federal statute granting or restricting the authority of federal law enforcement officers, the law of the state where an arrest w/o warrant takes place determines its validity.


i.        You can arrest the woman even if would not equate to jail time.  K-If in doubt arrest.  O’Connor hates outcome of case.

f.       Tennessee v. Garner

i.        The use of deadly force to arrest a fleeing felon is sometimes unreasonable under the Fourth Amendment.

ii.      We come to case on bottom of page on 324—when a police officer can shoot a fleeing felon.  Unless it is a violent criminal, it is better to let them go than to shoot. 

iii.    The strange twist to this case is that it doesn’t apply to private citizens, the fourth amendment only covers agents of the police.  4th amendment has no direct bearing on private citizens.

iv.    Graham v. Connor (1989)

          i.   Reasonableness standard applies to all claims of excessive force, deadly or not, in the course of arrest, investigatory stop, or other seizure.

         ii.   Case-by-case analysis considers severity of crime, whether immediate threat to safety of officers or others, and whether resisting or attempting to evade arrest.

        iii.   Allow for fact that officers must make split-second judgments.

        iv.   Are officers’ actions “objectively reasonable” in light of the facts and circumstances surrounding them, without regard to their underlying intent?

g.       Gerstein v. Pugh

i.        Held that a policeman’s on the scene assessment of probable cause provides legal justification for arresting a person suspected of a crime, and for a brief period of detention to take the administrative steps incident to arrest.

ii.      Never had police establish that there were further grounds to hold a person.  Now that you have arrested a guy, there is no longer any justification for having a magistrate examine whether or not there was probable cause.

iii.    Suspect can be taken into custody w/o warrant, but shouldn’t be detained for too long without going to magistrate to make sure there’s PC.  “We hold that the 4th Am requires a judicial determination of PC as a prerequisite to extended restraint on liberty following arrest.”  Grand jury hearing counts.

h.      County of Riverside v. McLaughlin

i.        Court finally says in County of Riverside v, McLaughlin that there should be probable cause within 48 hours of arrest.

ii.      What constitutes prompt judicial review under Gerstein?  Bright line = 48 hours.  But courts must allow a substantial degree of flexibility.  Even if it’s within 48 hrs, it may still be unreasonable in particular case.  By the same token, 48 hours may not always be enough time.

2.      United States v. Robinson

a.       Facts:  Officer stopped D w/ PC for operating a motor vehicle w/o license; effected full custody arrest.  In accordance w/ dept regulations, officer patted Ddown and found in his breast pocket a crumpled cigarette package containing heroin.  Officer testified that he could tell from feeling the pkg that it contained objects.

b.      HELD: Search was permissible.  In the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search that amendment.

c.       Robinson has to be understood as a case where the Nixon appointees had gotten on, and people were reacting to the Warren court reforms.  They aren’t going to give an inch, the last thing they are going to do would be to expand civil liberties and the power of the police.  There are some remarkable statements here:

i.        Rhenquist makes the statement that he and the court are not going to assume that a person arrested for driving without a license is less likely to be dangerous than bank robbers or murderers or anybody else.  To say that all suspects in a car should be treated alike, whether they are bank robbers, felons, etc., is an amazing statement.


i.        Robertson is one of those cases that reflects impatience with civil liberties and rights.  Marshall writes a very good dissent—in full custody arrest the person will be in the car and they will have much more time to pull out the weapon, pat down, etc., the question is, why are they opening the package?  The officer didn’t know what it was, but he knew what it was not, a gun.

ii.      There is not way to hide the ball, it is clear that what we are seeing in big strokes is a liberal court that probably read the precedents more expansively than it should have, this court was the Warren court, and then 50 years since then it has been one way or another cutting back on the Warren court, notably Mapp, Miranda.

iii.    Robertson is one of those cases that reflects impatience with civil liberties and rights.  Marshall writes a very good dissent—in full custody arrest the person will be in the car and they will have much more time to pull out the weapon, pat down, etc., the question is, why are they opening the package?  The officer didn’t know what it was, but he knew what it was not, a gun.

3.      Notes and Questions on Unnecessary, Pretextual, and Arbitrary Arrests

a.       Atwater v.City of Lago Vista

i.        Why the police officer who is arresting a woman with children is calling for back up.  As O’Connor points out, you are put in a huge holding cell with violent criminals, for what?  Not having a seat belt.

b.      Whren v. United States

i.        Vice-squad officers patrolling high drug area were suspicious of truck containing youthful occupants.  Truck remained at stop sign for more than 20 seconds.  When cops made U-turn to head back toward truck, it took off at “unreasonable” speed.  Cops stopped truck, saw bags of drugs in W’s hands.  Ds argued that stop was not based on PC and that officer’s reasons for approaching vehicle—to give warning concerning traffic laws—was pretextual.  SC aff’d convictions.

ii.      Doesn’t matter if there is an alternative motive or reasonable cop would do this.

iii.    Undercover cops, weren’t even supposed to stop them for traffic violation.

iv.    Suppose that there was a rule that everybody violated, everybody was violating one of these rules or another.  As a practical matter you don’t have any fourth amendment rights when you are driving.

v.      Hunch—“that guy doesn’t belong in a Mercedes,” so we will just drive behind him and sooner or later he will inevitably make a mistake.  Essentially you can stop whoever you want.

vi.    Defendant in Whren:  Defendant is making a particular argument, he is suggesting a theory and a standing—the question is whether the police officer would have stopped the car if he hadn’t had an ulterior motive.  We are dealing with plain clothes cops who aren’t supposed to be making traffic stops at all.  We have a specific reason for knowing that these officers would not have stopped these defendants absent a hunch or a suspicion.

vii.  Does the equal protection clause have an exclusionary rule?  Probably not.  If the police stop you and find drugs, even if you establish a violation of the equal protection clause, you still get arrested, you just bring a tort action for the equal protection violation.

viii.The Whren case is an important case, it gives the police a lot of power.  Whren is a low visibility case, it doesn’t attract much media attention.

4.      Supplement

a.       Scott v. Harris

i.        Case where police officer tried to pull over a person going 73 mph in a 55 zone.  The suspect sped off and a high speed chase ensued whereby the officer used his bumper to ram into the suspect’s car.  Suspect was paralyzed as a result.

ii.      The court used a balancing test—in judging whether Scott’s actions were reasonable, we must consider the risk of bodily harm that Scott’s (police officer) action posed to respondent (Harris—bad guy) in light of the threat to the public that Scott was trying to eliminate.

iii.    The court held that Scott’s action was reasonable.

5.      Notes and Questions on Other Searches of the Person

a.       Illinois v. Lafayette (another low visibility case)

i.        FACTS:  This case concerned the admissibility of amphetamines found in respondent’s shoulder bag during an at-the-station inventory of his effects following his arrest for disturbing the peace.

ii.      Suspect arrested for disturbing the peace; drugs found in shoulder bag during at-the-station inventory search held admissible.  SC:  This is okay.

iii.    What are the fine and subtle distinctions?  What is the argument specifically—the government is arguing that the police themselves might steal property or find money or valuable, or there might be belts, knives, or razorblades in the knapsack, or there might be drugs. 

iv.    What does the defendant say in response to those arguments?  That they are not necessary—you just put a seal on the bag and put it in the locker. 

v.      The court  says we can’t impose these fine and subtle distinctions on the police---professor, are they really so fine and subtle, is it really that hard to put this stuff in a plastic bag?

vi.    The word “second guess” is a wonderful word, it is a normative term, whenever the court doesn’t want to get involved in prison matters, it is always easy for the Supreme Court to say, “we’re not going to second guess the military/school board/police/etc.”  This case is very disturbing.

b.      United States v. Edwards

i.        Concerned the admissibility of paint chips obtained from defendant’s clothing, taken from him without a warrant while he was in jail about 10 hours after his arrest for attempted breaking and entering.

ii.      Court concluded: once the defendant is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing on the one hand and the taking of the property for use as evidence on the other.

iii.    Dissent:  Could’ve gotten warrant.

c.       Schmerber v. California

i.        Blood can be seized from drunk driving suspect.  Balance intrusiveness w/ emergency/risk of delay.

d.      Winston v. Lee

i.        Applying Schmerber balancing test, Ct held that proposed court-ordered surgery on D (for purpose of removing bullet expected to prove that D was robber hit by victim’s gunfire) would constitute an unreasonable search.  Reasonableness of surgical intrusions depends on case-by-case approach that balances individual’s privacy interests with society’s interests in conducting the procedure.

ii.      Should we dilute or reduce traditional probable cause?  We don’t need traditional probable cause to stop and frisk somebody, but Winston v. Lee where MORE than traditional probable cause is required.

iii.    If you want to subject somebody to surgery that requires general anesthetic, etc., you must have MORE than probable cause, you must have compelling circumstances.

e.       Knowles v. Iowa

i.        You can’t search after you give a citation.  Threat for officer safety is a good deal less than custodial arrest.

f.       Cupp v. Murphy

i.        Where person voluntarily showed up at police station for questioning, they could take scrapings from his fingernails because it looked like he was trying to get rid of evidence.


1.      Chimel v. California

a.       Police went to Chimel's home with a warrant authorizing his arrest for burglary. Upon serving him with the arrest warrant, the officers conducted a comprehensive search of Chimel's residence. The search uncovered a number of items that were later used to convict Chimel. State courts upheld the conviction.

b.      The Court held that the search of Chimel's house was unreasonable under the Fourth and Fourteenth Amendments. The Court reasoned that searches "incident to arrest" are limited to the area within the immediate control of the suspect. While police could reasonably search and seize evidence on or around the arrestee's person, they were prohibited from rummaging through the entire house without a search warrant. The Court emphasized the importance of warrants and probable cause as necessary bulwarks against government abuse.

c.    They never asked the wife if they could look around.  They asked the husband, and he said “no.”  Police figured that they had an arrest warrant.  They had an arrest warrant, so they could arrest the person, but what could they search?  Rule used to be that they could search entire house (this wasn’t really clear).  Defense, you should only be able to search the grabbing area, if that fails, then argue that it should be one room under Rabinowitz.

i.        Rabinowitz (1950) Rule:  Warrantless search “incident to a lawful arrest” may generally extend to the area that is considered to be in the “possession” or under the “control” of the person arrested.  That rule, however, can withstand neither historical nor rational analysis.

ii.      When arrest is made, it’s reasonable for arresting officer to search the person arrested in order remove any weapons that the arrestee might seek to use in order to resist arrest or to escape.  It’s also entirely reasonable for officer to search for and seize any evidence on the arrestee’s person in order prevent its concealment or destruction, and the area into which an arrestee might reach in order to grab a weapon or evidentiary items—that is, the area “within his immediate control”—must be governed by a like rule.

d.      Finally court clarifies and says grabbing distance.

e.       But not other rooms or concealed areas.  Rabinowitz and Harris overruled.

f.       Harlan, wouldn’t mind this, but now everything is imposed on the states.

g.       White is making an argument that this is a terrible result, it is unreasonable to require police to leave scene of arrest.  White is arguing that he would have to follow the wife around, this would be a greater invasion of privacy—this argument is so ridiculous that it is almost laughable.

h.      Chimel was probably the last liberal case of the Warren court.  It is cut down in various ways.  One of the ways in which it is cut down is in car searches.

i.        Another way to cut down this case is to read the “grabbing distance” VERY broadly.  We also have the phantom accomplice.  I.e. the police hear things upstairs, or there is a light on or something.  Wherever the suspect moves in the house, the grabbing distance moves with him.

2.      Notes on Search of Premises Incident to and After Arrest Therein

a.       Maryland v. Buie

i.        Once they are out of the house, doesn’t the basis for the protective sweep end.  Judges may say that the guy can be in headquarters but you can search the grabbing distance of where he was found.  Professor doesn’t think you could do this.

ii.      Protective sweep case—held that as an incident to arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.

iii.    Two-Part Sweep Rule:  (1)  There must be articulable facts that, taken together w/ rational inference from those facts, would warrant a reasonable, prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.  (2)  Protective sweep is not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found.  The sweep lasts no longer than necessary to dispel the reasonable suspicion of danger and, in any event, no longer than it takes to complete the arrest and depart the premises.

iv.    Phantom accomplice—reasonable suspicion that accomplice is looking elsewhere but sweep can’t last longer than necessary to dispel reasonable suspicion of danger.

v.      They can’t leave the house and then come back because they think that somebody else is there.

b.      Washington v. Chrisman

i.        Dorm room case, kid walks back to dorm room, police find marijuana.

ii.      Warrantless entry of premises may be permissible incident to and following an arrest elsewhere.  Here officer arrested D and then accompanied him into dorm room to obtain I.D.; found marijuana and pipe in room.  “We hold… that it is not ‘unreasonable’ under the 4th Am for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest.”

iii.    Plain view doctrine.  See below.

3.      Notes on Warrantless Seizures While in Premises to Arrest

a.       Plain View Test

i.        There are actually two plain view doctrines and they are confusing.

ii.      Public view: police walking down the street and they see a guy growing marijuana in the street.

iii.    The other plain view doctrine is that the police are where they have a right to be.  There is a scream from the second floor of a building and they rushed there and they had a right to be there.  Or they have a search warrant to search and they were in the house pursuant to a search warrant and they see a body or a machine gun or piles of money.  If it is immediately apparent to them that there is evidence of a crime then they don’t have to get a search warrant.  The question is what is immediately apparent.

iv.    Professor thinks that this is really a close call.

v.      Suppose the police arrest somebody downstairs at a lobby and one of them goes to get a search warrant and the other one is there to secure the premises and he sees drugs.  You can’t use what you see and put it in a search warrant.  Nothing the police saw affected the affidavit.  They didn’t exploit the fact that they were inside the house waiting for a search warrant to be detained.  There was no evidence that the agents in any way exploited…see bottom of page 361

vi.    Suppose there is new evidence, and now you know if you get a search warrant you will hit paydirt.  You can’t use what you found.  How do you prove that they didn’t add to it via the affidavit.

b.      Arizona v. Hicks

i.        Police lawfully entered into a house from which a weapon was fired and noticed suspicious stereo equipment.

ii.      HELD: Moving of stereo equipment to obtain serial numbers was an unreasonable search. 

4.      Notes on Warrantless Search of Premises Under Exigent Circumstances

a.       Segura v. United States

a.       Police arrested D when she answered door of apt.  Made warrantless entry of apt and remained until search warrant was issued—19 hours later (b/c of “administrative delay”). 

i.        Ct:  This is okay.  Cops had PC for entry and arrest of occupants.  Good faith attempt to obtain warrant, despite delay.  Evidence first discovered in execution of warrant was not a fruit of illegal entry.  Didn’t decide whether police action constituted seizure, but even if it did, it was reasonable.  “Wiser course” may have been to secure from outside, but method doesn’t change the 4th Am result insofar as seizure is concerned.  Interference with property interests was almost nonexistent b/c occupants had been taken into custody

b.      U.S. v. Rubin (3d Cir. 1973)

i.        When agents have PC to believe that evidence will be destroyed or removed before they can secure a search warrant, a warrantless search is justified.  Courts should consider degree of urgency; possibility of danger to officers if they guard evidence; reasonableness of belief that evidence is about to be removed; indications that suspects know police are on their trail; and ready destructability of contraband.

c.       Payton v. New York

i.        Facts:  Consolidated cases.  P’s case:  Police had PC to believe P committed murder.  Went to apt, w/o warrant; no response to knock, but light and music emanated from apt.  Used crowbars to enter; no one home.  Seized shell casing in plain view.  In Riddick’s case, police went to R’s home w/o warrant.  When his young son opened door, they could see R sitting in bed.  They entered and arrested him; also searched chest of drawers two feet from bed in search of weapons and seized narcotics found inside.

ii.      Case concerning warrantless entry into a private home in order to make a felony arrest. The Court struck down a New York statute providing for such warrantless entries because the Fourth Amendment draws a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not be reasonably crossed without a warrant. The court, however, did specify that an arrest warrant (as opposed to a search warrant) would have sufficed for entry into the suspect's residence if there had been reason to believe that the suspect was within the home.

iii.    Rule:  Absent exigent circumstances, the threshold of the home may not be crossed without a warrant.  Unequivocal constitutional demand.

iv.    In Payton and in Stago, you get the problem of entering a home to make an arrest.  We don’t need an arrest warrant to arrest somebody outside the home, but we do need an arrest warrant to enter somebody’s home to make the arrest.

v.      Once again, White complains bitterly—what is wrong with a front door arrest?  What is so bad about a front door arrest?  They can’t search the house if he comes to the front door?  What if the guy is not home?  Payton wasn’t home.  They found a shell casing, what if the guy is sleeping or taking a shower.  Once the police is in the house they can look around the guy and so fourth.

vi.    If you did have an arrest warrant for Riddick and you were on the premises lawfully, then that is plain view, that is okay.

vii.  A person is a green suitcase on wheels.  If you have probable cause to seize a green suitcase, you couldn’t go to 10 homes where the green suitcase might be, if all you have is probable cause the green suitcase has evidence of a crime but you don’t have probable cause to think where the suitcase is.

viii.If you have probable cause to believe that x is guilty of a crime and you are going to x’s house then you don’t need a search warrant.  The likelihood that x is at his house is high enough.  If you go to somebody else’s house, then the arrest warrant is not enough.

ix.    The basic problem with White dissenting in Payton is in talking about the policeman must make subtle discriminations—what is the response to that argument?

a.       White is essentially attacking the search warrant requirement.  We have a search warrant requirement right now.  You have to have a search warrant unless there is good reason to believe that the guy is escaping.

b.      If there is a hot pursuit, you don’t need a search warrant.  How is this different?

c.       All the arguments he makes about the problems facing the police, all those problems exist right now.  What is new?  If what he says is true, we would get rid of the search warrant requirement generally.  One of the problems is whether there is exigent circumstances.  Attacking the long established rules of the search warrant requirement.

d.      He says, in page 368—White makes up a rule that doesn’t exist.  He doesn’t have an arrest warrant if the guy is outside the house, but you do need a search warrant.  Prof doesn’t think that White is very persuasive.

d.      Welsh v. Wisconsin

i.        Held that an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made.

e.       United States v. Santana

i.        Allowed arrest when a person is standing in their doorway.

f.       Steagald v. United States

i.        Facts:  In the course of executing a warrant for L, police entered D’s home, where they discovered drugs in plain view.  D arrested and convicted.  SC rev’d.

ii.      Reasoning (Marshall):

a.    Agents sought to do more than to use warrant to seize L in public place.  They relied on it as authority to enter home of 3rd person based on belief that L might be there.  This belief was never subjected to the detached scrutiny of a magistrate.  D’s privacy interest was violated. 

a.       If we allowed this, the police, armed solely w/ an arrest warrant, could search houses of all of that individual’s friends and acquaintances.  Or arrest warrant could be used as pretext for entering home in which police have a suspicion, but not PC to believe, that illegal activity is taking place.

iii.    In Steagald, White is back again.  It seems to me that you have to have the rule that Steagald established, or otherwise

iv.    Lankford case—had an arrest warrant for a single person or maybe two persons and they searched 300 homes, that is what could happen if you adopted the rule that an arrest warrant for someone gives you the right to search all these homes, so we have to have this result. 

v.      Some people have standing to object to search and some people don’t.

vi.    Arrest warrant for Lyons but suppose they came into the house, could Lyons object to the illegal search of the house?  If he had been there for a couple of hours, then no, but if he had been there longer, then yes.  He would have to take economic advantage of his host home.


1.      Automobile exception.

2.      The term automobile exception is used a lot.  This means that they can search an automobile without a warrant.

3.      Why is there a lower expectation of privacy in a car?

a.       Originally it was the mobility factor alone.  Since a car was mobile, then you have the exception.

4.      The theory of Belton was that even though several people were out of the car, they could have made a sudden move into the car and reached into the car to get something dangerous, so even though they were out of the car, they could have leaped in a sudden move.

5.      It is certainly not probable if the guy is handcuffed.  The question is not where he would always do it, but if he would generally do it.  If there is a significant chance that he would do it and the police don’t have to gamble and they would go in and search the car.

6.      What if you lock the suspect into a police car, you are locked in a box.  You can stretch this only so far, but now it has been stretched beyond reality.  How are you going to get out of the cuffs, out of the police car, and then get back to your car?  Scalia addresses this in Thornton on p. 392.

7.      Why do we keep allowing the police to keep searching the car when the suspect is locked in the squad car.  The argument is that we penalize the cop for doing what he or she is supposed to do.  If a police officer doesn’t put a guy in the car, then it seems to be that he should get away with it.

8.      If you walk down your driveway and the cops arrest you, they can’t go back and search your house

9.      California v. Carney

a.       Facts:  DEA agents questioned youth after he exited motor home they had seen him enter with D over an hour earlier.  They had reports that D was exchanging marijuana for sex; youth corroborated that info.  Agents entered motor home w/o warrant and observed drugs and paraphernalia in plain view.  They arrested D and took possession of motor home; subsequent search revealed more marijuana.  US SC aff’d conviction.

b.      Carney Case: guy in a mobile home.  Result oriented approach to searching cars.

c.       HOLDING: The warrantless search of a motor mobile home does not violate the Fourth Amendment to the U.S. Constitution.

d.      Carroll v. U.S. (1925) established “automobile exception” to the general rule that a warrant is req’d before search.  Carroll reasoned that privacy interests in automobile exist, but they’re entitled to less protection b/c of mobility.

e.       Dissent: Warrant would’ve been easy: They were close to courthouse, or could’ve called.

10.  Maryland v. Dyson

a.       No separate exigency required.  Just need probable cause (see case on page 376).

11.  Florida v. White

a.       Upholding the warrantless seizure of a car under the state forfeiture law on probable cause that the vehicle was contraband.

12.  Chambers v. Maroney

a.       Court held that what is required, even if no warrant need first be obtained, is probable cause to search a particular auto for particular articles.

13.  California v. Acevedo

a.       Facts:  Police observed D, w/ paper bag in hand, leaving apt of man known to have marijuana in his possession.  D placed bag in trunk of car and drove off.  Police stopped him, searched trunk and bag, and found drugs.

b.      Does the 4th Am require police to obtain a warrant to open a sack in a movable vehicle simply because they lack PC to search the entire car?  SC:  No.

c.       What if the police have probable cause to search a car and they have probable cause to search a briefcase? Acevedo.  Court rejected notion of worthy containers and unworthy containers.

d.      There is a rule that you must pay homage to Saunders, Carroll, etc., by saying that if it is a suitcase case, if the focal point is on the suitcase, you can’t wait until he puts it in a car and then say, well we have probable cause to search a car and we can search everything in the car, including the suitcase.  Acevedo got rid of that.  The liberal said—a container is a container, a briefcase is a briefcase, and a suitcase is a suitcase, you shouldn’t be able to open up a suitcase under any circumstances found in a car and then it was just too difficult and so the liberals said that you should never be able to search a container even if you had probable cause to search the car.

e.       In Acevedo, the majority said that a container is a container and we can search it all the time without a warrant whether it is the focal point of the search.

f.       Very flat opinion by Blackmun—says things that aren’t true—

g.       Blackmun completely distorts the Johns case.  Police can only search a container if the informant has focused on the container.  If they open the container and don’t find anything, they can’t search the rest of the car.  The court hasn’t focuses on whether if drugs are found in the container in the car if that gives the police probable cause to search the rest of the car.

h.      Probable cause to search a car has become equivalent to a search warrant to search the car.  You can do whatever you could do with a search warrant, WITHOUT a search warrant for a car.

i.        What is wrong with Scalia’s concluding marks—does it matter whether or not it in fact contains contraband?  It shouldn’t matter, a search is good or bad once it begins. If it didn’t contain contraband, it would be a case, so every case the court gets will be a case where it hit pay dirt.

14.  3 Overlapping doctrines pertaining to a car:

a.       The Carroll doctrine may be what they mean when they are talking about the automobile doctrine, but the Belton doctrine may be what they mean when they are talking about the automobile doctrine, and the inventory exception may be what they mean.

b.      Belton

i.        Facts:  Cop stopped car carrying four men for speeding.  Smelled burnt marijuana, saw enveloped marked “Supergold.”  Ordered men out, arrested them, and patted them down.  Searched each individual and the car, including B’s leather jacket, where he found cocaine.  NY Ct of App held that a “warrantless search of the zippered pockets of an unaccessible jacket may not be upheld as a search incident to a lawful arrest where there is no longer any danger that the arrestee… might gain access to the article.”  SC rev’d. 

ii.      Rule:  When police make lawful custodial arrest of occupant of vehicle, they may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile.  Police may also search the contents of any containers found within the passenger compartment.

iii.    Belton is a case of a search incident to an arrest, and we have already discussed the case to some extent in light of Thornton.

iv.    Belton, you have probable cause because the guy was speeding, or the guy had bad license, but don’t have anything to believe that anything is in the car.  The original idea was that on a significant number of occasions the guy may pull a weapon or swallow evidence, or something like that.

c.       Carroll

i.        Established “automobile exception” to the general rule that a warrant is req’d before search.  Carroll reasoned that privacy interests in automobile exist, but they’re entitled to less protection b/c of mobility.

ii.      Two-Fold Rationale emerges from prior cases:

a.       Ready mobility.

b.      Lower expectation of privacy than in home or office.

iii.    Carroll gives the police much more leeway to tear the car apart.  Even though the two doctrines overlap (Carroll and Belton), it confuses people.

d.      The car inventory is another doctrine.

15.  The case of a drug dealer carrying a briefcase—if you were a prosecutor and you wanted to make the argument that it is okay for the police to search the briefcase? 

a.       One argument is that you ought to be able to search the briefcase incident to arrest. 

b.      Another argument would be the inevitable discovery exception—if we had arrested the guy we could have taken the case away from him and then inventoried it at the police station. 

c.       As of now we are assuming that until the court speaks otherwise you can’t search the briefcase incident to the arrest of the drug dealer for whom you have probable cause to arrest.

16.  Wyoming v. Hougton

a.       Facts:  Cops stopped car for speeding and faulty brake light.  While questioning driver (Y), officer saw syringe in his pocket and ordered him out of car.  Y admitted he used syringe to take drugs.  Another officer ordered respondent (H) out of car and searched the passenger compartment of the car.  On the back seat, he found a purse, which H claimed was hers.  Inside he found a brown pouch and a black wallet-type container, both of which contained drugs.  H acknowledged that the wallet was hers, but she said the pouch was not hers, nor did she know how it got there.  WY SC rev’d conviction, holding that search violated 4th & 14th Am; officer knew purse didn’t belong to driver, and no PC to search passengers’ personal effects or reason to believe there was contraband in them.  US SC rev’d.

b.      The case where if a passenger’s personal belongings are in a car, the police can search the belongings of the passenger, even though they know these items don’t belong to the driver. 

c.       Scalia makes the argument that we have to do this because once it became known that the police couldn’t search a passenger’s property as opposed to the driver’s property, the driver would see the police in the rear view mirror and then tell the passenger to claim everything as their own. 

d.      What is the trouble with this argument? 

i.        You can say here, don’t put this in your bag, put it in your purse and put it in your pocket.  I.e. the criminals can still do it, Scalia hasn’t accomplished anything unless he says that we can go one step further. 

ii.      They can still pass the evidence or drugs to the other person, as long as the other person just puts the drugs in their person (i.e pockets).

17.  Illinois v. Andreas

a.       No protected privacy interest remains in contraband in a container once government officers lawfully have opened that container and identified its contents as illegal.

b.      HELD: absent a substantial likelihood that the contents have been changed, there is no legitimate expectation of privacy in the contents of a container previously opened under lawful authority. 

c.       upheld the arrest and search of a man who had drugs hidden in table delivered to him by undercover cops.  Once an item is lawfully searched, one’s privacy interests in it are destroyed.  An individual’s privacy interests in the item are restored when there is a substantial likelihood that, during a gap in surveillance, the contents of the container have been changed.

18.  Thornton v. United States

a.       In Thornton, the guy is out of the car, isn’t he?  Good argument, you shouldn’t be able to search the car once you are out of the car anymore than you can’t search the house when you are out of the house.

b.      Rhenquist majority—did the cop really signal him to get out of the car before he did, or he never saw the police wave at him, professor doesn’t know that this is even more difficult than other questions—I.e. this isn’t that big of an argument.

c.       Can handcuff guy then return to search car.

d.      POINT:  Scalia’s discussion is a very good argument for saying that there is no free firing zone, there is no longer a necessity to come back and search something because the police could have done it an hour ago or a half hour ago.

19.  Having gone as far as you have gone with Thornton, you might as well go as far as the professor is suggesting:

a.       If you are one or two feet away from the car, there is no difference if you are moving toward or away from the car.

b.      Now we are not stopping with the guy in the car, now a good argument can be made to include the guy getting in the car.

20.  Standardized Procedures: South Dakota v. Opperman and Illinois v. Lafayette

a.       Cases involving inventories conducted pursuant to standardized procedures.

b.      The police are pretty good at this, they always seem to find drugs, well you don’t get the cases where they don’t find anything.

c.       Fourth Amendment doesn’t apply to routine administrative caretaking functions.

d.      How are they guarding the police from danger?

e.       What is the system?  What is the reason for police regulations?

f.       What kind of standardized procedures are those?  They mention other procedures where you can open the containers you find in the car if it is not obvious on the face of the containers of what the container contains.  Problem, how do you tell what the container may contain without opening it?

g.       Seems to professor that these standardized procedures don’t have to be very standardized.  They distinguish Lafayette, but unlike Lafayette, where the guy could take the backpack into his jail cell, here there was no danger since the car was being impounded.

h.      There is enormous leeway here for the police.


1.      By definition you don’t have a right to stop and frisk somebody.  But you have a right to protect somebody’s life.  It is sort of a special power that the police are seeking in order to protect yourself. 

2.      Why don’t we limit the special power to weapons?  Just take the weapons, but leave the cocaine.  Why does it follow that we admit what the police find on these persons.

3.      Why should the special power extend its reach to everything you find, even though it is not a weapon. 

a.       The answer was that this is a matter of evidence, and that is not relevant to the basic question. 

b.      Professor, of course this is relevant, this is the whole debate.  If you find marijuana, leave it out, assuming you are searching for weapons and bombs at the airport.  This is a plausible argument according to the professor.

4.      Terry v. Ohio

a.       Officer observed 3 men casing a store.  He stopped them and frisked them for weapons, finding guns.

b.      Held that the Fourth Amendment prohibition on unreasonable searches and seizures was not violated when a police officer stopped a suspect on the street and searched him without probable cause to arrest.

c.       Reasonable suspicion based on a number of facts.

d.      Cops love this opinion because it is mushy and sloppy.  They don’t talk about the stop, they talk about the frisk. 

e.       It is an amazing opinion, it is not a stop case, it is a frisk case.  Words that sort of discuss stop, but don’t.  He is avoiding the term arrest, stop, and seize.

f.       Notice that he uses the words: encounter, approach, investigate.  Who can be against investigating, every cop should have the right to investigate.  What do you mean approach.

g.       He wants to get to the frisk and skip the stop, why?  Because now he can use the balancing test, to get to the frisk, he can put the officer’s life in the scales for the balancing test.

h.      Opinion is so confusing and vague that they have a lot of leeway.

i.        The Warren courts revolution is over, even before Warren steps down, and this case illustrates that the revolution is over.  They have taken a terrible beating and they are being attacked by Nixon.

j.        A very mushy opinion and you can see that it has not been restricted very well.  When people say we are doing it anyhow, make it legal.  This falls victim to the slippery slope, if you don’t keep this stuff illegal, then the conduct will continue and continue to expand.

5.      The Significance of the Stop-and-Frisk-Cases

a.       The Utility of the Balancing Test

i.        Michigan v. Summers

a.       Facts:  As cops were about to execute search warrant, they encountered S, the occupant, leaving the house.  They asked him to let them enter and then detained him while they searched.  After finding narcotics, they arrested S, searched his person, and found drugs on him.

b.      Court, per Stevens, upheld seizure on basis of Terry and related cases, which establish that some seizures constitute such limited intrusions on personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than PC, so long as police have an articulable basis for suspecting criminal activity.  Ct noted that, because detention was in S’s own residence, it added minimally to stigma, inconvenience, and indignity.  Police had legitimate interests in preventing flight and in minimizing risk of harm to themselves.  Existence of search warrant w/ PC verified by magistrate provides objective justification for detention.

b.      Police Action Short of a Seizure

i.        Florida v. Bostick

a.       Facts:  Police, w/ badges and guns prominently displayed, boarded bus and, admittedly w/o articulable suspicion, asked B if they could search his bags; found drugs

b.      Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions.  So long as a reasonable person would feel free to ‘disregard police and go about his business,’ the encounter is consensual and no reasonable suspicion is required.  The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.

c.       “So long as a reasonable person would feel free ‘to disregard the police and go about his business,’ the encounter is consensual and no reasonable suspicion is required.”  Reasonable person test presupposes innocent person.

d.      ISSUE: whether cops blocking the aisle and standing over somebody sitting in a bus, is that a seizure?  If it is not covered by the fourth amendment, then there aren’t any limits on it.  Therefore it is a pretty radical thing to say that something isn’t a search or a seizure.

e.       What about the elevator scenario?  It is even worse on the bus, since the bus won’t leave.

f.       Suppose Bostick got up and ran out, the cops would chase them down, they would be convinced he was guilty and they might even shoot him.

g.       One test is whether you are free to walk away, but that is not the test here because you don’t want to walk away, because you want to go to your destination.  The test is not whether you are free to walk away, but in these circumstances it is whether or not you are free to go about your business.

h.      One of the things that is disturbing is that Delgado  (case referenced in Bostick opinion)is an illegal immigration test.  The court calls it a survey.  Professor thinks that the police are exploiting the situation because the guy is trapped on the bus.  Request is colored by the uniform and the gun.

a.       INS v. Delgado (1984) (313):  INS agents came into factories and asked employees if they were illegal aliens.  Ct upheld practice despite fact that agents were guarding exits, essentially preventing interviewees from leaving. 

1.      Remanded to determine whether seizure occurred.

ii.      United States v. Drayton

a.       Kamisar--Drayton is even worse: Coercion--Fellow passengers are staring at you thinking-“open up your package, let’s get on with the bus trip!”

1.      No seizure since there was no application of force, intimidating movement, no threats, and no authoritative tone of voice.

iii.    California v. Hodari, D.

a.       D fled upon seeing an approaching police car, only to be pursued on foot by officer.  D tossed away what appeared to be a small rock but which, when retrieved by police, proved to be crack cocaine.  State ct suppressed.  SC rev’d.

b.      Reasoning (Scalia)

a.       No physical force; show of authority does not constitute seizure. 

b.      “Seizure” means laying on of hands or application of physical force, even when it is ultimately unsuccessful.  Police yelling, “Stop!” is not seizure. 

c.       An arrest requires either physical force or submission to the assertion of authority. 

1.      K:  Before Hodari, if police made show of authority, it was a seizure.  But Hodari adopts the “no restraint, no seizure” model”:  You’re not seized unless you’ve been stopped or until you submit.

c.       No submission, no seizure, no yielding, no seizure. 

d.      It is quite natural for people to run when they see cops, especially in a high crime neighborhood.

e.       Is it three points for being in a high crime neighborhood and 2 points for running? 

f.       Dissent—You don’t add because they are running, you take points off because in a high crime neighborhood kids are more likely to run than in a wealthy neighborhood.

6.      Grounds for Temporary Seizure for Investigation

a.       United States v. Cortez

i.        What grounds are needed for a stop?

ii.      The totality of the circumstances, or the whole picture must be taken into account.  Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.

b.      Sibron v. New York

i.        Companion case to Terry.  Kind of disturbing how justices manipulate the facts.  He is just changing the facts, and what is scary is that if a Supreme Court Justice tries to do this, what in the world is the trial court doing?

ii.      Harlan tries to limit the stop and frisk cases to violent crimes or at least serious crimes, but this is gone, it just dropped off.  Now they can stop and frisk whether or not they have reason to believe the guy is a criminal or not.

c.       Florida v. J.L.

i.        Florida v. J.L.—what is the minimum amount of cause for probable cause or suspicion.  If a guy has a bomb, it is okay and it gives the police enough grounds to intrude on privacy, that is really loosening up the grounds for unrest.

ii.      Facts:  Anonymous caller reported to police that young black male standing at particular bus stop wearing plaid shirt was carrying a gun.  Officers went to bus stop, saw youth, but had no reason to suspect him apart from tip.  Nonetheless, they frisked him and found gun. 

iii.    SC held search unreasonable.

d.      United States v. Sokolow

i.        Sokolow case: p. 420—a lot of this stuff is weak—Miami a source of drugs, etc.

ii.      “Reasonable suspicion” defined as a level of suspicion “considerably less than proof of wrongdoing by a preponderance of the evidence.”  Police had reasonable suspicion that D was drug courier where he paid $2,100 for two tickets from Honolulu to Miami from a roll of $20s, traveled under fake name, stayed in Miami only 48 hours, seemed nervous, and checked no luggage

e.       United States v. Hensley

i.        Held that if a flyer or bulletin has been issued on the basis of articulable facts supporting a reasonable suspicion that the wanted person has committed an offense, then reliance on that flyer or bulletin justifies a stop check identification, to pose questions to the person, or to detain the person briefly while attempting to obtain further information.

f.       Illinois v. Wardlow

i.        Case where police officers were converging on high drug traffic area and the suspect saw the police car and ran.  The officer then pursued the suspect and stopped and frisked him, finding a hand gun. 

ii.      The court held this was not a violation of the 4th Amendment.

iii.    Ct (Rehnquist):  Standing in high-crime area doesn’t constitute “reasonable, particularized suspicion” of criminal activity.  But fact that individual is in a high-crime area is on factor that cops can consider.  Here, suspicion was also aroused by unprovoked flight, and “nervous, evasive behavior is a pertinent factor.”  There may be innocent reasons to run, but cops can stop to resolve the ambiguity. 

iv.    Stevens, for 4 dissenters, said the totality of the circumstances, as always, should dictate result and found that record failed to establish reasonable suspicion. 

v.      K:  Kids are more likely to flee in high-crime neighborhood; it’s more suspicious in a low-crime, high-income neighborhood.

g.       Illinois v. Caballes

i.        FACTS:  Man was pulled over for speeding, and while waiting for a ticket a drug sniffing dog was brought to his car and it detected drugs.  The resulting search of the car revealed marijuana.

ii.      Officer stopped Caballes, didn’t call in for drug sniffing dogs, another officer heard this and came over with dogs and they sniffed the car.

iii.    Everybody agrees that you can’t hold somebody for an unreasonably long period of time.  For the defendant, the detention lasted only 10 minutes and that was held to be not unreasonable.

iv.    Things to consider-length of detention, method of detention.

v.      There was no indication this guy had drugs, the argument was that when the police converted the traffic stop to an investigation of drugs it was not the time, but the purpose of the detention.

vi.    It is unclear how broadly—this case seems to be inconsistent with Kyllo (thermal imaging case), but you can reconcile the two by saying that Kyllo was limited to the home.

vii.  Related question, can you interrogate people about other crimes if you stop them for a traffic violation?  Both the 9th and 10th circuit says that based on Caballes, you can.  If you can convert a traffic stop into an investigation for drugs, you can convert the stop to anything else.

h.      Ohio v. Robinette (p. 431):

i.        The traffic stop was completed and the drivers license was returned to the defendant.  The argument was that the officer should have said that the person was free to go, so that he knew he had an option if and when the police continued to ask him further questions.  The Ohio supreme court said this was right.  They violated the laws by not saying that he was able to go. SC rev’d

ii.     People don’t know how to say no to a cop.  You add up all these cases and the cumulative effect is overwhelming.  It is incredible how much power has been transferred back to the police.  There has been an enormous change in the power between the citizen and the police power.

iii.    Facts:  Deputy on “drug interdiction patrol” stopped D for speeding.  After issuing verbal warning, he asked D if he had drugs in car and asked to search the car.  D consented; deputy found small amt of drugs.  OH SC suppressed the evidence, holding that cop who is through must tell person s/he is free to leave before further interrogation.  SC rev’d. 

iv.    Ct (Rehnquist):  Such a warning is not a prerequisite to a voluntary consent.  Requiring them would be just as impractical as the right-to-refuse-consent warnings held unnecessary in Schneckloth v. Bustamonte (343) (infra).  Citing Whren, Ct declared that the subjective intentions of officer didn’t make the continued detention illegal. 

v.      Stevens in dissent characterized OH SC’s decision differently and noted that this deputy had used this tactic to make 786 consent searches in one year.

7.      Protective Search

a.       Sibron (supra p. 28):  Officer may conduct a frisk where he can point to particular facts from which he reasonably inferred that the individual was armed and dangerous.

b.      Harris, “Frisking Every Suspect,” observes that lower courts have stretched the law governing frisks to the point that SC might find it unrecognizable, consistently expanding the types of offenses, persons, and situations where it’s permissible. 

c.       Minnesota v. Dickerson (1993) (334):  During weapons frisk, officer felt a small lump in D’s pocket and, after some squeezing and manipulating it, determined it was crack cocaine in a plastic bag.  Ct struck down search b/c it continued after officer knew no weapon was present.

d.      Michigan v. Long (1983) (334):  Cops stopped to investigate after car swerved into ditch.  D got out, supplied I.D., and headed back to car for registration.  Cops saw hunting knife on dashboard, so they frisked him and searched passenger compartment, where they found drugs.  Ct upheld search:  “[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” 

a.       Hayes v. Florida (1985) (335):  Majority in dictum opined that on-the-scene fingerprinting would be permissible if reasonable suspicion that suspect has committed a criminal act and that fingerprinting will establish or negate suspect’s connection to crime.  Must be carried out with dispatch.

8.      Other Brief Detention for Investigation

a.       Davis v. Mississippi

i.        Fingerprints of D thrown out where they were obtained when police simply rounded up 25 black youths.

ii.      Held that finger prints should have been excluded as the fruits of a seizure of petitioner in violation of the Fourth Amendment, but intimated that a detention for such a purpose might sometimes be permissible on evidence insufficient for arrest.

iii.    Something that the officer would be encouraged by even though the case came out for the defendant.  If the police had asked for a court order to fingerprint this guy, the police officer would have succeeded because it is a very limited intrusion, it needn’t come unexpectedly.

b.      United States v. Dionisio

i.        Held that the Fourth Amendment was not violated by subpoenaing witness to appear before a grand jury to give voice exemplars. No person can have reasonable expectation of privacy in the sound of his/her voice, b/c it’s constantly exposed to the public.

ii.      Suppose that the court subpoenaed somebody for a note to see if the handwriting.  Is this a violation?  Voice is okay.  If you wrote a letter or made an incriminating statement that would be an incriminating statement, but this isn’t the case.  This is more on an issue of identification—voice recognition, and this is not a violation.

c.       Dunaway v. New York

i.        Ct rev’d conviction of man who had been “picked up” for questioning where police lacked grounds for arrest.  He was read Miranda rights and interrogated for almost an hour.  Ct (Brennan):  This is not at all like Terry.  Detention for custodial interrogation, regardless of its label, intrudes so severely on 4th Am interests that traditional safeguards against illegal arrest apply.  Dissenters (Rehnquist and Burger):  Voluntary; no seizure.

ii.      Dunaway case—page 438—Would be devastating if it came out the way Rhenquist wanted it to come out.

iii.    If you were a prosecutor, and you know Davis has been in the army and you are thinking of a way to get the fingerprints into evidence, what argument comes to mind? 

a.       Inevitable discovery-the fact that they are on file, despite the unreasonable search they will inevitably come up.  We routinely search the files to see if somebody’s fingerprints are on file and we would have gotten the fingerprints anyway, we could have gotten his fingerprints independently of the illegal arrest and therefore that exception should apply.

iv.    Authority is in the uniform, in the weapons that they carry.

v.      Not only would it not be a seizure, but it would also mean that the suspect was not in custody so that he is voluntarily coming down.  If the person is not in custody, you don’t have to give them Miranda warnings.  In this case the police did give them a Miranda warning.  Does this cure what would otherwise be an illegal arrest or an illegal seizure (No, as we will see later on in the course, Miranda is not a cure all).

d.      In Re Fingerprinting

i.        Case where 22 members of an eight grade class were fingerprinted in connection with a homicide where a class ring was found.  Affirmed by SC.

ii.      What if the class has 400 people or 4000 people?  Probable cause and suspicion is individualized.  You haven’t got probable cause with respect to any one person out of the 400.

H.     Administrative Inspections and Regulatory Searches: More on Balancing the Need Against the Invasion of Privacy

1.      Two kinds of departures from the traditional probable cause requirement:

a.       Terry type departure is to require individualized suspicion (typically referred to as reasonable suspicion less compelling than is needed for the usual arrest or search.

b.      Another kind of departure is to require no individualized suspicions whatsoever, but instead to require that the seizure or search be conducted pursuant to some neutral criteria which guard against arbitrary selection of those subjected to such procedures.

2.      Safety inspections.

a.       Camera v. Municipal Court

i.        This case dealt with fire and health inspector programs.

ii.      The court concluded that if an occupant did not consent to an inspection the authorities would ordinarily have to get a warrant, but that “probable cause” to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling.

iii.    If people refuse the administrative inspection of their home for fire, health, and housing code violations, the authorities need a warrant, but PC exists if scheme of inspection is reasonable.  Balancing approach.

iv.    Neighborhood of 250 homes and we think that there is bad sanitation or wiring or something somewhere in the 250 homes.  This is not probable cause, it is a group.  The court upholds it.

v.      In some ways requiring these inspection warrants is a blow to civil liberties because they apply to a group.

b.      Border searches.

i.        Longstanding rule is that border searches are considered to be reasonable by the single fact that the person or item in question had entered into our country from the outside.

a.       U.S. v. Ramsey (1977) (340) upheld a customs inspection of mail entering U.S. (which, by regulation, could not extend to reading of correspondence).  Search was constitutional under longstanding rule that border searches are considered “reasonable” by the single fact that person or item entered country from outside.  

ii.      But nonroutine border inspections require more.  Must have “real suspicion” for strip search and “clear indication” for body cavity search.

c.       Vehicle checkpoints.

i.        See casebook for discussion, p. 441-442

ii.      Searching for Illegal Aliens:  Stopping vehicles and searching for illegal aliens away from the border requires probable cause, Almeida-Sanchez v. U.S. (1973), even at a permanent checkpoint, U.S. v. Ortiz (1975).  But brief questioning of vehicle occupants at such checkpoints is permissible without any individualized suspicion whatsoever, U.S. v. Martinez-Fuerte (1976), and only Terry-type reasonable suspicion is needed to stop motorists away from border and inquire as to their residential status.

a. Delaware v. Prouse (1979) (341):  Absent reasonable suspicion, police may not stop individual vehicles for purpose of checking driver’s license and registration.  K:  So you can set up roadblocks, but you can’t randomly stop individual cars on the highway.  There is less of a stigma attached to—and a greater political check on—roadblocks, because everyone is being checked. 

iii.    Mich. Dep’t of State Police v. Sitz (1990) (341) upheld checkpoint stop and brief sobriety check.  Edmond characterized Sitz as concerning and “immediate-vehicle bound threat to life and limb.”

iv.    One case says that you can’t just stop a car at random, but you can set up road blocks to stop all the cars.  Rhenquist things you can stop the cars that you want.

v.      When you have road blocks there is a certain practical check.  This is why they are allowed vs. the individual stops.

d.      Search of students. (page 442)

i.        Court established a balancing test between the student’s expectation of privacy and the school’s equally legitimate need to maintain an environment in which learning can take place.

ii.      Don’t need a warrant to search a student who is under their authority.

iii.    New Jersey v. T.L.O. (1985) (341):  Teachers may reasonably search students where they have reasonable grounds for suspecting that search will uncover evidence that student has violated or is violating a rule of the school.

e.       Supervision of parolees and probationers.

i.        Griffin v. Wisconsin

a.       A State’s operation of a probation system likewise presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements.

b.      No warrant—and not even full PC—are req’d for probation officer to search home of probationer.

f.       Drug testing.

i.        Cases involving drug testing—prof—it has really broken down.

ii.     School district case—random drug testing for high school athletes—to see what happens in this case is really sad.   All kinds of arguments limited to athletes, and then there is another case where kids going out who are not athletes, but who are doing extracurricular activities, the next case is random drug testing for everybody in high school.  It is amazing how these cases expand and expand.

iii.    Nat’l Treas. Emp. Union v. Von Raab (1989) upheld as reasonable the suspicionless drug testing of people being promoted to drug interdiction jobs and those who will be carrying firearm.  Proper balancing process. 

iv.    Skinner v. RR Labor Exec. Ass’n (1989), by similar balancing, upheld blood and urine testing of railway employees following major train accidents or incidents and the breath and urine testing of employees who violated certain safety rules. 

v.      Vernonia Sch. Dist. 47J v. Acton (1995):  Upheld district’s policy under which each week 10% of students then participating in school athletics were randomly selected for urinalysis.  Ct:  Students in schools have reduced expectation of privacy, and the expectations of athletes are even less; minimum privacy invasion; fight drug problem by reducing the “role model” effect of athletes’ use.

vi.    Role Model Theory:

a.       Footnote e on page 443—Chandler v. Miller.

1.      invalidated a Georgia statute requiring each candidate for public office to submit to drug testing.  No evidence of drug problem; no high-risk, safety-sensitive tasks; just symbolic.  K: much-welcome turnaround.

g.       “Special needs” vs. ordinary law enforcement.

i.        City of Indianapolis v. Edmond

a.       Edmond (Edmund) is the controlling case and the much more important case.

b.      Court held that city-operated vehicle checkpoints, complete with drug dogs, undertaken to interdict unlawful drugs, opposed the Fourth Amendment.

ii.      Ferguson v. City of Charleston

a.       ISSUE: Whether the interest in using the threat of criminal sanctions to deter pregnant women from using cocaine can justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant.

b.      Can’t justify the departure since the interest cannot be separated from the genera interest of law enforcement.

h.      Circumventing the Edmond-Ferguson limitation: probation searches revisited.

i.        United States v. Knights

a.       Another probation case. Page 445.


a.       Administrative Inspections and Regulatory Searches: More on Balancing the Need Against the Invasion of Privacy

i.        Terrorist Checkpoints

ii.      Supervision of probationers and parolees; “special needs” v. balancing of interests

a.       Samson v. California

1.      Footnote 4 supplement, p. 95—the touchstone of the fourth amendment is not reasonableness, this is the Due Process touchstone.

2.      Convicting Samson of possession of speed, the amount of speed was so small that it would not even be grounds for invoking his parole.  This is the first time that any state or jurisdiction said that you don’t need anything.

3.      Some cases said that you don’t need a search warrant, you don’t need probable cause, but this time, CA said that you don’t need anything.  The notion that every parolee shall agree in writing that he can be searched day or night, etc.

4.      What is the theory of the majority?  Did Samson consent to this condition?  That could have been the theory that it wasn’t, even for the majority it is absurd to say that the guy consented.

5.      It is not consent, they reserve judgment on that, they go on the grounds that the search is not unreasonable.  The guy is told he has no rights.

6.      You can’t take away people’s expectation of privacy by telling them that they don’t have any privacy.


1.      There are probably more searched conducted pursuant to consent than of all other searches combined.  The great majority of time, there is consensus.

2.      The Nature of “Consent”

a.       Schneckloth v. Bustamonte

i.        FACTS: Police officer stops a car with 6 men inside.  The officer asks if he can search the car, and the passenger said yes. Contraband was found and Bustamonte’s motion to suppress this evidence was denied.

ii.      ISSUE: What must the state prove to demonstrate that a consent was “voluntarily” given.

iii.    HOLDING: When the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied.

iv.    Schneckloth: Which of their arguments do you find most persuasive?  Turn to the law pertaining to voluntariness, the question is whether the dissent was voluntarily given.

v.      First the court goes through this whole rigamorol, how do we know whether he is aware he has a right to refuse consent or whether he doesn’t know.  How do you solve these problems?  If you tell him, you solve the problem!!!  I.e. the police tell him.  The court says that this would be thoroughly impractical.

vi.    Why would it be impractical?  It would be frustrating for the police, it would be an obstacle for the police, but it would not be impractical.

vii.  Court says that the voluntariness test is no good and we are coming up with a new test.  Turns on whether police gave the Miranda warnings.

viii.Why do we keep turning back to the voluntariness test?  That was the trouble with the test, everything was relevant, but nothing was decisive.

ix.    This is an exploitation of confusion or vagueness.

x.      What about a situation where the suspect is in the police station and they question him about a murder and they say, we would like to search your apartment, is that okay with you?  The guy says, “it is okay with me,” and then gives the police his keys.

a.       Is this a valid consent?  The court is careful to compare and contrast dealing with somebody on the street than with somebody in the interview room.  The court puts that case aside and leaves it open.

b.      The court at various places leaves open the question that the police have to advise the person to consent if they are in the police station.

xi.    What would be the law today if they were asked today?  Note 7, p. 454.  The court won’t address the case that they left open.

a.       The lower court authority is in favor of the police it is always in favor of the police, unless the Supreme Court says it can’t be.

b.      Notes on the Relevant Factors in Determining the Validity of a Consent

i.        What is the issue?

a.       Do courts view this issue in terms of a waiver and thus look at the individual’s mind?  Or do courts look at the issue in terms of what the police officer thinks?

ii.      Claim of show of authority.

a.       Bumper v. North Carolina (1968) (350) held that officer cannot lie about having a search warrant.  If they obtain consent on the strength of such a lie, the evidence will be excluded.  (Stewart wrote for 7-2 majority.)  When officer claims to have a warrant, he in effect announces that suspect has not right to resist the search.

iii.    Threat of incarceration.

iv.    Prior illegal police action.

v.      Mental or emotional state of person.

vi.    Denial of guilt.

vii.  Custody; Warning of Fourth Amendment Rights

a.       Gentile v. United Sates

1.      Where consent was obtained from the defendant during stationhouse custodial interrogation after the giving of the Miranda warnings but without 4th Amendment warnings.

viii.Warning of Fifth Amendment rights.

ix.    Right to counsel.

x.      “Consent” by deception.

xi.    Scope of consent

a.       Standard for measuring scope of consent is neither the suspect’s intent nor the officer’s perception thereof, but rather one of objective reasonableness—i.e., what would the typical reasonable person have understood by the exchange between the officer and the suspect?  See Florida v. Jimeno.

xii.  The proper place of consent searches in law enforcement.

3.      Third Party Consent

a.       Illinois v. Rodriguez

i.        FACTS: A woman who did not live at Rodriguez’s apartment opened up the apartment using a key and consented to the police searching the apartment. Police observed drugs in plain view; arrested D and seized drugs. 

ii.      Rodriguez claims the search was illegal. Claimed F had vacated apt several weeks earlier and had no authority to consent to entry.

iii.    Can ex-girlfriend’s consent legitimize the search?  Ct:  Yes.

iv.    RULE: The basis for third party consent is not that the basis of the government or officer be correct, but that they be reasonable.

v.      Scalia rights a pretty good opinion.  It is plausible to interpret it the way he did, a police officer should know that a hotel clerk doesn’t have the authority to search the room of a customer, or a 6 year old kid doesn’t have the right to give consent to search a house.

vi.    The better answer: if two people are living together, they assume the risk that with some exceptions, you assume the risk that the other one will consent to a search of the house.

vii.  In the old days, the wife was the agent of the husband, but not she has authority in her own right as somebody who lives there, and he can’t stop her from consenting, unless he is there.  That is the case in the supplement, this is the latest case.

viii.Matlock “common authority”—mutual use of property by persons generally having joint access or control for most purposes.  Anyone w/ common authority has right to consent; others assume risk that this will occur.

ix.    But 4th Am does not demand that officers’ judgments be correct—only that they be “reasonable.”

x.      Objective standard:  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?

b.      Who May Consent?

i.        Husband-wife.

ii.      Parent-child.

a.       If the child (not of age of adulthood) lives at home, then the head of a household may give consent to a search of the child’s living quarters.

b.      A child may not give consent to a full search of the parent’s house.

iii.    Landlord-tenant; co-tenants.

a.       Landlord may not consent to search of tenant’s premises.

iv.    Employer-employee.

a.       Employers may consent to search of top of employee’s workbench, but not to employee’s desk.  Employees in charge, such as managers, can consent to search of business.

v.      Bailor-bailee.

c.       Notes on Limits of Third-Party Consent

i.        Even if the consent was given by a third party who, at least in some circumstances, could give effective consent, it may still be questioned whether other circumstances of the particular case made that person’s consent ineffective vis-à-vis the defendant.

ii.      Antagonism.

iii.    Defendant’s instructions.

iv.     Defendant’s refusal or failure to consent.

a.       Georgia v. Randolph (supplement page 105)

1.      Husband was suspected of using drugs, the husband refused a search of the premises but the wife consented. 

2.      Court held that the evidence obtained was the fruit of an invalid consent search.

3.      The court is willing to say that a cotenant in some cases a husband or wife, they draw the line where the other spouse is there at the scene objecting.

4.      Case where the husband is asleep in the apartment, and the police don’t have to wake them up.  Amazing that Souter pulled it off, but he was right.  Police can search in this instance, there is consent.  See page 106-107 of the supplement.

b.      Both come to the door together, if the wife said yes and the husband doesn’t say anything, then he is not objecting.

c.       There are some cases which the professor things are outrageous.  Page 104—this notion that the police tell the person his wife has been injured in a car accident, this is outrageous fraud on the part of the police.

v.      Exclusive control by defendant of effects or areas within shared premises or objects.

vi.    Seizure v. search.

a.       U.S. v. Woodrum (1st Cir. 2000) (Supp 31) held that the logic of third-party consent to searches can apply to seizures, upholding a program whereby police may stop to check on safety of drivers of those cabs bearing a decal indicating the owner is voluntarily participating in a program contemplating stops; passenger, by entering cab w/ decal, assumed risk).


A.     Historical Background

1.      Constitutional Permission

a.       Olmstead v. United States

i.        Dissent is important part of this case.  Brandeis fears what will happen when technology is developed.

ii.      HELD: that wiretapping did not amount to a search and seizure for reasons that have since been rejected by the Court.

iii.    We have two very different dissents in Olmstead, one by Brandeis and on by Holmes.  Brandies loves facts, Holmes was not this way.

iv.    The DISSENTING opinion by Brandies went through 6 drafts.  Brandies argues that we protect first class mail, and yet if we hadn’t protected mail at this point, this majority would have said no because it is not literally covered by the fourth amendment, but he says that phone tapping is just as bad or worse as opening up first class mail, it is worse.  Why is it worse?  It is worse because as a general proposition people are less guarded when they are on the phone than when they write.

v.      Holmes DISSNETING doesn’t even say that wiretapping without probable cause without an order or warrant violates the fourth amendment.  All he says is that he is going to talk about wiretapping that violates a law.  He makes the one government view, the view that was rejected by a majority of the court in Leon (good faith exception case), the argument that we are all part of one government and none of us should have a hand in such dirty business, such dirty business being not wiretapping per se, but the gathering of evidence against a statute.

b.      Would it be fair to say that before Katz, the fourth amendment provided no protection against the seizure of conversations?

c.       When you drive a mic into the person’s home, why?  It is an example of the fruit of the poisonous tree.  Even though the seizure of the conversation per se is not a violation of the fourth amendment, when the seizure is tainted by a prior violation of the fourth amendment, it is tainted.  The fruit of the poisonous tree doctrine applied before Olmstead.

2.      Statutory Prohibition: §605 of the 1934 Federal Communications Act

3.      Wiretapping, §605 and Federal-State Relations

a.       You are not tapping one person, you are tapping the phone, this could be hundreds of people.  How can you reconcile wiretapping with the fourth amendment.

b.      Typically you search for a particular thing, but in wire tapping you don’t start with evidence, you start with a person.  You don’t know what the person is doing, you want to put them in surveillance to find out.  The court felt that wiretapping had to be covered by the fourth amendment, and it did.

4.      Non-Telephonic Electronic Eavesdropping

a.       Brandeis’ fears become a reality.

b.      The Constitution did furnish some protection.

B.     Berger, Katz, and the Legislation that Followed

1.      The Implications of Berger and Katz

a.       Berger v. New York

i.        Struck down NY electronic surveillance statute, calling it a “blanket grant of permission to eavesdrop… w/o adequate supervision or protective procedures.”  Among other infirmities, it required only reasonable grounds, not PC; continued for an indefinite time w/o subsequent showing of cause, even after conversation was heard; didn’t require application to identify crime or conversation.

ii.      There is a case just before Katz, where they use a device that they have to tack into the wall, but if you just place it on the wall, it is not a violation of the fourth amendment.  Douglas, says, what the hell, why should it turn on what type of equipment you are using?  We have this right now, professor agrees with Douglass.

iii.    Berger—how skillful the draftsmanship is.  Talks about reasonable grounds, it sort of copies the search and seizure language but it doesn’t say what crime or conversations are to be overheard.

iv.    You are not trying to seize a particular conversation, you are trying to figure out what is going on, you think there might be a conspiracy.  You have never seized the conversation you are looking for, because you don’t know what you are looking for.  You don’t know how big the conspiracy is, how do you know when you have achieved your objective if you objective is to find out how many people are in the conspiracy, then how do you know you have all the people in the conspiracy, how will you ever know.

v.      Another provision, you should be careful not to pick up conversations that are not relevant to the conspiracy.  The people in this case didn’t seem to be very diligent, they listened to everything.  Wasn’t this a violation of these provisions.  If the police decided to go to a ball game and they set up audio equipment so that they could record everything.  The question is whether they violated the provisions of the statute, what would Rhenquist say?

b.      Scott v. U.S.

i.        § 2518(5) of Title III requires every order to contain a provision that the authorization to intercept “be conducted in such a way as to minimize the interception of communications not otherwise subject to interception.”

ii.      Facts:  Gov’t agents intercepted virtually all conversations over a phone for 1-month period.  Only 40% of conversations were related to the crime at issue (narcotics trafficking).  Agents admitted that they made no attempt to comply with the minimization provision.  SC upheld reasonableness of agents’ actions.

iii.    Reasoning:

a.       An evaluation of compliance w/ the minimization req’t should be based on the objective reasonableness of the actual interceptions, in light of the facts and circumstances confronting the agents, and not on whether the agents’ subjectively intended to minimize their interceptions.

iv.    Subjective intent alone does not make otherwise lawful conduct illegal.  Rejects contention that the failure of the surveilling officers to make any effort to comply with a minimization requirement was alone a basis for suppression.

v.      No violation that police minimize the interception, because one of the conspirators could have been impersonating the grandmother, you never know, what is left of the minimization requirement if you take the position that you never know whether this guy or this girl is pretending to be a priest or a rabbi or a doctor you never know.  At that point, you can listen to every conversation.

vi.    That is surely not what Congress had in mind when Congress said that, but there is nothing left of it.  Since you don’t know what your objective is, you will never know when you achieve it, so all the safeguards seem to fade away—this in response to the rule that you have to stop once the objective is obtained.

vii.  Seems to be saying that it doesn’t turn on motivation or whether they try to limit the number of phone calls that they over heard, the question is whether or not you can defend on grounds of the fact that you can’t tell who it is based on the person you are calling.

c.       Katz v. United States

i.        FACTS: This is the case where police had placed surveillance equipment onto a phone booth and only used the equipment when they were fairly certain that the suspect was transmitting gambling information.

2.      Title III of the Omibus Crime Control and Safe Streets Act of 1968 (Title III), the Electronic Communications Privacy Act of 1986 (The ECPA) and the USA Patriot Act of 2001: An Overview

a.       The Scope of Title III. (Omnibus)

i.        Designed to regulate all “nonconsensual” electronic surveillance (i.e., when none of the parties overheard have consented to interception), except “national security” eavesdropping.

b.      The definition of “interception”; herein of “pen registers,” “trap and trace” devices and, more generally, of “content information” and “envelope information”; application of the pen register laws to the Internet; silent video surveillance.

i.        PIN device records the numbers that you dial and the length of the call, but not the conversation, is this permissible under the 4th Amendment or the Statute?  Yes, it is permissible under both.  Does this make sense.

ii.      Page 472—2nd paragraph under heading number 2, all you need to certify that information is relevant to an ongoing investigation, that is not probable cause.

c.       Also keep in mind that if one person consents, there is no violation of the statute.  In other words, the easy case is if the kidnapper is calling the parents and the parents allow the FBI to listen then one party has consented to the rights of both parties being violated.

d.      More of a problem is if an FBI agent infiltrates a student group and he consents.

3.      Title III’s “exclusionary rule.”

a.       Exclusion required only when the particular statutory provision violated “was intended to play a central role in the statutory scheme.”

b.      United States v. Giordano

i.        holding that AG Mitchell could not authorize wiretaps through his secretary; 600 convicted Ds consequently went free.

ii.      Note 4 on page 474—United States v. Giordano—person not able to authorize wiretaps did, somebody else who was authorized to apply for a warrant or a tap order got it for a person who wasn’t authorized.  The court said that it was a violation of a statute, violation that directly and substantially implements Congressional…where did this language come from?  The court ended up ruling against the tap.

c.       United States v. Chavez

i.        Attorney General has personally approved the application but hadn’t step forward and said he approved it, but he has approved a cover a lower official to approve it.  The court said that there was a violation of the statute because you are supposed to correctly identify the person who was the authorized official, and so that was a violation of the statute, but the violation wasn’t of a provision that significantly implemented the Congressional decision, so they let the tap proceed.

ii.      Where does the court get this stuff?  It just made this stuff up, a violation does not require exclusion unless the provision violated played a central role, and even if that were a requirement, I think that making the person who seeks the wiretap step up and apply for it, DOES play a central role.

iii.    One of the reasons that people were sold on the statute was that the Attorney General was involved.

iv.    Professor:  It is important for the attorney general to identify himself so that he can take accountability for what was involved.

v.      When the attorney general is the guy who wants the tap, he is accountable.  Who ever is personally involved should be identified as the one who does that so that people know that the person accountable sought a wire tap on somebody.

C.     The Use of Secret Agents (With and Without Electronic Devices) to Obtain Incriminating Statements

1.      Series of very difficult cases: Starting with Lopez

2.      Under what circumstances can the police infiltrate a criminal organization, under what circumstances pretend to be a friend of somebody, or more specifically, under what circumstances can a government agent secretly tape record or transmit to somebody outside a conversation.  Footnote on page 488— On Le Case:  Chin Poy (or On Lee, not clear..) doesn’t have a good record so his words won’t be accountable if he testifies because of his case, but Chin Poy is broadcasting to a clean cut agent, who will testify.

a.       Everybody agrees that if Ong Lee had simply walked out of the laundry and written notes, that’s okay.

3.      Lopez v. United States

a.       Petitioner made an unsolicited bribe offer to an IRS agent, who following his superiors’ instructions to pretend to play along with the scheme, met petitioner in the latter’s office and recorded his subsequent bribe offers by means of a concealed wire recorder.

b.      Court rejected the argument that considering the agent’s falsification of his mission, he gained access to Lopez’s office by misrepresentation and consequently illegally seized Lopez’s words.

c.       Court said there was no eavesdropping here.

d.      Risk that petitioner took in offering a bribe to IRS agent included the risk that the offer would be accurately reproduced in court whether my memory or recording.

4.      Lewis v. United States

a.       Facts:  D invited “Jimmy the Pollock,” an undercover narcotics agent, into his home to buy drugs.  Agent testified at D’s trial and drugs were introduced.  Ct upheld.

b.      D relied on Gouled v. U.S. (1921) (invalidating a search of D’s office where the searcher, pretending to pay a social visit, waited for D to walk out of office before searching paper).

c.       Court however distinguished this case from Gouled, by saying that agent here was invited into home for purpose of dealing drugs.

d.      If we excluded this, we’d basically be establishing a per se rule against the use of undercover agents.  When, as here, the home is converted into a commercial center to which outsiders are invited to commit crimes, that business is entitled to no greater sanctity than if it were carried on in a store, garage, or car on street.

e.       The Lewis case, where  on page 490, where a police officer comes in pretending to be a buyer of drugs and this happened during the prohibition era, how far does this go?  Guy puts down a big bag of salt when he delivers it for a soft water system, and he sees that you are growing marijuana.  The distinction is that one guy is coming in to purchase drugs or illicit whiskey and you are offering to sell him that, so he is coming in for the purpose that you are advertising.  The other guy is just pretending to be a business man, he is sneaking in and you are not selling anything.  In once case you are opening up your illegal business for the public, and that is the distinction.  In Lewis you voluntarily decide to disclose your criminal activity to anybody taking part of it, but that is not true for the guy coming in to repair your furnace and so forth.

5.      Hoffa v. United States

a.       Partin volunteered, from prison, to be complicitous in capture of Hoffa.  Ct upheld the use of Partin to obtain information from meetings to which he was invited.

b.      Hoffa case:  Professor thinks that there are a lot of arguments you can make here, once you have probable cause to arrest him, the best argument on these facts is the argument that Earl Warren made.  Distinction between undercover agents who have hidden microphones and those that don’t.  Shouldn’t have because his credibility is this.  The guy said get me out of here and I will deliver Jimmy Hoffa.  Brennan knows he can’t get rid of undercover agents so he is trying to figure out a way to try to preserve basic undercover agents, well if they have a hidden microphone or tape recorder, you assume the risk that the guy you are talking to will betray you.  The ability to get Hoffa, or go back to jail, what an incentive to lie.   Last line of page 492—no conviction should stand based on testimony of a guy like this.

6.      Weatherford v. Bursey

a.       ISSUE: Does an undercover agent’s participation in a pretrial meeting between defendant and his lawyer constitute a per se violation of defendant’s right to the effective assistance of counsel with respect to the criminal action?

b.      HOLDING: Bursey’s constitutional rights were not violated and that the right to counsel establishes no per se rule forbidding an undercover agent to meet with a defendant’s counsel.

c.       Argument made by majority—undercover agent was invited to join the attorney client conversation.  The co-defendant said “let’s have a joint defense.”  According to White, that is the premise of the case, if he turned down the invitation it would have revealed the fact that he was a government agent.

d.      All you have to say is that “my lawyer told me that you shouldn’t be involved in the case.”

e.       According the record, the chief of police said that Weatherford would reveal his identity when the case broke anyway.  The argument is that the identity of the agent must be protected, but this argument is bunk, since the identity will come out during trial.

f.       The point is that you can’t assume that a co-defendant is a secret government agent.  Why can’t there be a bright line rule barring the agent from participating in pretrial meetings between the defendant and his lawyer?

7.      Is a Justice Department Order Permitting the Monitoring of Communications Between Federal Prisoners and Their Lawyers Supported by Weatherford v. Bursey?

8.      United States v. White

a.       Facts:  Informer carried concealed radio transmitter in numerous conversations w/ D that were overheard by feds, who either listed to transmitter or, in one instance, were concealed in informer’s kitchen closet.  No warrant or court order.  Informer didn’t testify at trial; instead, agents’ testimony was admitted.

b.      Key to the White case (with an opinion of White): Katz didn’t change anything when it comes to undercover agents equipped with microphones, bottom of page 497—if the law gives no protection to the wrongdoer…Interesting the way White slides right over it.

c.       D assumes risk in trusting confederates.

d.      Undercover agent can, of course, write down his conversations w/ a D and testify concerning them.  It’s no different if he records them electronically with device on his person or through transmitter, or if other agents electronically monitor it.

e.       It is untenable to consider the activities and reports of the police agent himself, though acting without a warrant, to be a “reasonable” investigative effort and lawful under the Fourth Amendment but to view the same agent with a recorder or transmitter as conducting an “unreasonable” and unconstitutional search and seizure.


A.     1964 several important cases came down, because until 1964 the courts had been administering the involuntariness test for confessions.

1.      Massiah case, once a person is indicted or arraigned, the government cannot get at him anymore and can’t obtain evidence from him anymore.  Once the adversary proceedings have begun, the government can’t use any information gathered from the defendant, the evidence gathering phase is over.  People were worried about what this meant, when does the adversary proceeding begin?

2.      Then Escobedo came down and it seemed to say that once you are the prime suspect you are entitled to council and certain rights and this seemed to imply that interrogation as we know it is over, because once you tell somebody that he has a right to council and a right to remain silent, he will never confess.

3.      In both those cases the defendant had money and lawyer, and the government tried to limit these cases to these facts, but by this time, Gideon had already been decided.

4.      “Just because the gangster could beat the rap, doesn’t really mean that anybody should beat the rap.”  I.e. those cases are limited to people who can provide a lawyer, or an army of lawyers, why should people who can’t afford a lawyer beat the rap?

5.      Beat the rap means swindle, defraud, it connotes something illegitimate.  It is an emotional term.  These terms are very misleading.  This should apply to everybody, why should only rich people and the people who can afford lawyers be afforded protection from illegal search and seizure.

6.      It is not the gangster, it is not beating the rap.  It is true that among the people who can afford a lawyer, but among them are also businessmen, doctors, and people who have money.

7.      The basic principle is that we have a rule (such as illegal confessions, etc.), why should it matter if the guy can afford a lawyer or not?

B.     Report of the Attorney General’s Committee on Poverty and the Administration of Federal Criminal Justice

1.      The indigent defendant’s “obligation” to repay the government for defense costs; reimbursement as a condition of probation.

a.       Most such statutes requiring reimbursement have been overturned.

C.     The Right to Appointed Council and Related Problems

1.      The Right to Appointed Council in Criminal Proceedings

a.       Betts v. Brady

i.        FACTS:  Petitioner, an indigent, was indicted for robbery.  His request for counsel was denied because local practice permitted appointment only in rape and murder prosecutions.  Petitioner then pled not guilty and elected to be tried without a jury.  At the trial he chose not to take the stand.  He was convicted and sentenced to eight years imprisonment.

b.      Betts v. Brady was the rule for a long time and until it was overturned by the famous Gideon case.  Professor says that this along with Wolf v. Colorado is one of the 10 worst opinions ever written.

c.       It turns out that the trial judge and the Chief judge of the Maryland court was cited a lot and they must have socialized with Judge Bond.  They said “judge Bond” would never let this or that happen, well who cares about judge Bond, this is the Supreme court we are talking about every state, not just Judge Bond.  At the time of Gideon there were only six states left that were not giving council and they were all in the South.  Who cares about Maryland?

d.      Flexibilty…rape and murder are the only times a council is appointed, what kind of flexibility is this!?

e.       The simple issue was that his is the way he played it.  There were a lot of issues in the case that Betts was not aware of.  If Betts had a lawyer it would have been different, there would have been more issues.  I.e. Betts didn’t own the car, there was another person involved in the robbery and there was a HUGE issue with IDENTIFICATION. 

f.       Here is the way in which he was identified, “the victim of the robbery says that the robber had a dark had and sunglasses on with a dark overcoat and a handkerchief over his face.”

g.       The judge could always get a lawyer if it was clear the defendant couldn’t handle it.  The professor has never seen this happen.

h.      Take the opposite case [15 year old kid accused of murdering and old man case].  Without a lawyer nobody would have investigated the witness and found that the girl was a liar.

i.        The Aftermath of Betts v. Brady—Notes and Questions

i.        Was Betts “prejudiced”?

ii.      The “flat” requirement of counsel in capital cases.

iii.    The absolute right to retained counsel.

j.        Gideon v. Wainwright

i.        Facts:  D charged w/ entering a public place w/ intention of committing a misdemeanor, which was a felony in FL.  He requested that counsel be appointed for him, but the judge refused because it was not a capital case.

ii.      Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants unable to afford their own attorneys.

iii.    by the time the court took this case, no lawyer could use this case.  Harlan admits this on page 87.

iv.    The government should not have taken this case.  The only time they should have taken the case is if it was a plea bargain.  Many prosecutors were embarrassed and felt bad having to deal with a guy like this.  22 states came in on the side of the defendant, but it is not as good as it looks.

v.      It is just happenstance, 3 conditions.  1. The case can’t be applied retroactively, 2. It only applied to felonies, and 3. It only applied to the courtroom and not before, there is no lawyer in the police station.

vi.    If you were asked, (the Burger court came after the Warren court), did the Burger court shrink or expand the Gideon principle, what would you say? Scott case—confinement test.  Argersinger case also.

a.       Professor—some ways they expanded it and some ways they shrunk it.  The ultimate test would be if the crime was punishable by more than 6 months in prison, you got a lawyer.  The court said in Scott that you didn’t.

b.      You would be uncomfortable having to tell a potential employer you are convicted of shoplifting.  But you would be comfortable with a speeding ticket, etc., so that the Scott case is a shrinkage.

k.      The Significance of Powell v. Alabama and Johnson v. Zerbst

i.        Powell v. Alabama (1932):  In capital case, where D is unable to employ counsel and is incapable adequately of making his own defense, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.

ii.      Johnson v. Zerbst (1938):  6th Am requires the appointment of counsel in all federal cases where D can’t procure atty and hasn’t waived right to counsel.  Prosecution must show an intentional relinquishment of a known right.

l.        Alternative techniques of overruling available in Gideon.

m.    Why did the Gideon opinion take the route it did?

n.      The unrealized dream of Gideon.

o.      Argersinger v. Hamlin

i.        Ct struck down Florida rule requiring that counsel be appointed only for “nonpetty offenses punishable by more than six months imprisonment.”

ii.      Held that absent knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony unless he was represented by counsel.

iii.    The Argesinger case: This in some ways expands Gideon, although it doesn’t make much sense to the professor.  How is the judge going to know before the trial begins whether he is going to sentence the guy to jail?  The judge doesn’t know how flagrant it was, how mild it was, etc., once he goes ahead without a lawyer he can’t sentence the guy to jail anymore.  He may not know all the facts until the trial develops.  As a practical matter, once the judge makes a decision not to give him a lawyer, he can’t send him to jail.

p.      Scott v. Illinois

i.        The Supreme Court of Illinois declined to extend Argersinger to a case where one is charged with an offense for which imprisonment upon conviction is authorized but not actually imposed.—the Supreme Court (5-4) agreed.

ii.      This case was for a crime punishable by up to a year in jail or a $500 dollar fine.

iii.    The Supreme Court held that the Sixth and Fourteenth Amendments require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.

q.      How important are misdemeanor cases when no imprisonment is actually imposed?

i.        The stigma of a misdemeanor conviction is significant.  It impacts jobs, etc.

r.        Gideon revisited—and criticized.

i.        Dripps article.

s.       Can an uncounseled misdemeanor conviction still be used to enhance a prison sentence when, after being given counsel, a defendant is convicted of a second crime?

i.        Yes, according to Nichols v. United States.

a.       An uncounseled conviction (nolo contendere) valid under Scott (because no prison term was imposed) may be relied upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment.

t.        If an indigent defendant is not provided counsel, can he be given a suspended sentence or placed on probation?

i.        Alabama v. Shelton

a.       Alabama court took the position that a suspended sentence constitutes a term of imprisonment within the meaning of Argersinger and Scott, even though the incarceration is not immediate or inevitable.  The 30 days of suspended jail time was invalidated from the sentence imposed.

b.      By reversing Shelton’s suspended sentence, the court also vacated the two-year term of probation.

c.       The Supreme Court affirmed this decision.

d.      ISSUE: Where the State provides no counsel to an indigent defendant, does the Sixth Amendment permit activation of a suspended sentence upon the defendant’s violation of terms of probation?

e.       The court concluded that it did not.

f.       What about Alabama v. Shelton—also in the assignment from last class: Guy given a suspended sentence and two years probation and then he does something that revokes the probation.  Didn’t get a lawyer originally, so why should he get a lawyer when his probation is revoked.

g.       Why wasn’t Scalia’s position (Dissent) the correct one, which is that move people put on probation don’t get their probation revoked, so why not just give them a lawyer when they are facing revocation of probation?

h.      The only issue at the probation revocation is whether the guy violated his probation.  The point is that he never got a lawyer originally so he may not have been guilty of the underlying crime.  He will still go to jail for a crime that he never had a lawyer for, so the majority is right.

2.      The “Beginnings” of the Right to Counsel: Herein of “Criminal Prosecutions” and “Critical Stages”

a.       Compelled self-incrimination aside (Miranda), a defendant is NOT entitled to the assistance of counsel unless:

i.        Adversary judicial proceedings have commenced (the Sixth Amendment right to counsel is guaranteed only in all criminal prosecutions); and

ii.      The encounter is a “critical stage” of the criminal proceeding.

b.      United States v. Gouvia

i.        Reaffirmed that right to counsel does not attach simply because one has been attained by gov’t authorities.  This was true even though D were placed in administrative detention for 8-19 months.

ii.      The argument has been made many times: you are not dealing with the intricacies of a trial, so you don’t need a lawyer.  BUT, what do you think is going on in the interrogation room?  There is a plea bargaining going on in the interrogation room.  The police know a lot more about the law, and the suspect doesn’t know anything.  Plea bargaining between a guy who knows nothing about the law and somebody who knows something about the law, so you NEED a lawyer.

D.     The Griffin-Douglas “Equality” Principle

1.      Appeals are not abolished because rich senators would make a huge stink, so the poor people ride in under the equal protection coattails of the rich who do need the appeals process.

2.      Griffin v. Illinois: “There Can be No Equal Justice Where the Kind of Trial a Man Gets Depends On the Money He Has”

a.       Griffin, upheld by a 5-4 vote the contention that the due process and equal protection clauses of the fourteenth amendment require that all indigent defendants be furnished a transcript, at least where allegations that manifest errors occurred at a trial are not denied.

b.      Cases on page 98—what these cases are saying is that it doesn’t matter how important or essential or necessary these items are, it is enough whether or not these transcripts would be helpful, if a rich person could afford it.

c.       It costs a lot of money to have a transcript at the trial, why should the state pay for this.

d.      Black’s plurality opinion contains strong language that K says is unfortunately not true.  “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”

e.       Application (or Extension) of Griffin

i.        Mayer v. Chicago

a.       The Court carried the Griffin principle further than it has the Gideon principle by holding that an indigent appellant cannot be denied a record of sufficient completeness to permit proper consideration of his claims because he was convicted of ordinance violations punishable by fine only.

b.      Was Griffin’s high-water mark.  Unanimous Court, per Brennan, held that even in a non-felony case, punishable only by fines, an indigent D must be provided with a free transcript for appeal.  But see Ross v. Moffitt, supra.

f.       The Impact of the “Equality” Principle on Those Who Cannot Afford Counsel or Other Forms of Assistance

i.        Douglas v. California

a.       Indigent defendants requested, and were denied, the assistance of counsel on appeal.

b.      The court viewed the denial of counsel on appeal to an indigent under such circumstances a discrimination at least as invidious as that condemned in Griffin.

c.       Holding:  If you offer appeals as a matter of right, you must provide counsel.  Reasoning (Douglas):

1.      “[A] State can, consistently with the 14th Am, provide for differences so long as the result does not amount to a denial of due process or an ‘invidious discrimination.’  Absolute equality is not required…  [But] where the merits of the one and only appeal an indigent has as of right are decided w/o benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.”

d.      Harlan’s dissent:

1.      This doesn’t violate EPC, b/c it’s a laws of general applicability.  It may affect the poor more harshly than the rich, and it may not eliminate economic imbalances, but EPC doesn’t require a State to give to some whatever others can afford.

2.      Real question is whether it meets the requirement of fair procedure guaranteed by Due Process Clause.  This is entirely different from Gideon.  Appellate procedures are not required by 14th Am.  At least D had counsel at trial.  Doesn’t violate DPC.

e.       K:  There’s a problem with the equal protection principle.  Court doesn’t know where to stop it.

ii.      Ross v. Moffitt

a.       Facts:  D was denied appointed counsel under a NC law that authorized appointment of counsel for a D appealing to the intermediate court of appeals, but not for a D who seeks either discretionary review in the state supreme court or a writ of cert. to U.S. SC.  4th Cir. held that Douglas required appointment of counsel in all instances.

b.      Q: Does the State have an obligation to pay for counsel for one who seeks discretionary review or certiorari to the Supreme Court?  SC:  No.

c.       Reasoning:

1.      DPC doesn’t require NC to appoint counsel here.  There are differences between the trial stage and the discretionary appeal sought here.  D, not the state, initiates the appeal.  Thus, appointed counsel is used on appeal as a sword, not a shield.  State need not provide an appeal at all.  “Unfairness results only if indigents are singled out by the State and denied meaningful access to that system because of their poverty.”

2.      EPC:  There are limits to EP.  14th Am requires that indigents have an adequate opportunity to present their claims w/in adversarial system, but it’s a matter of degrees.  At least D had one appeal, so he had meaningful access.  “[T]he fact that a particular service might be of benefit to an indigent D does not mean that the service is constitutionally required.  The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal D in a continuing effort to reverse his conviction, but only to assure the indigent D an adequate opportunity to present his claims fairly in the context of the State’s appellate process.”  D got that.

d.      K:  Rehnquist initially gets the DP/EP distinction right:  DP “emphasizes fairness between the State and the individual dealing with the State,” while EP “emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable.”  But then he screws it all up.  Fighting chance, fair chance, “adequate opportunity,” and “meaningful access” are about DP, not EP.  When you get through Rehnquist’s opinion, there’s nothing left of EP.

e.       Compare and contrast equal protection v. due process?

f.       Is Ross v. Moffitt a case about due process or equal protection?  This is one of the most incredible opinions ever written, because after Rhenquist describes due process, he goes on to talk about equal protection.  Rhenquist makes it clear that he would have dissented in Douglas, but Rhenquist says that Douglas departed from the court’s limited doctrine, it went too far, it is okay to appoint council at trial because there is a presumption of innocence and you want to give the guy protection against the state and now the indigent doesn’t want a lawyer as a shield, he wants it as a sword.  But then he says correctly, “due process emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated.

g.       Then he says equal protection…see quote on page 101.  The incredible thing is that as he goes on and on discussing the case and equal protection he starts talking about on page 102, the 14th amendment doesn’t require—this is not equal protection talk, this is due process talk.

h.      Rhenquist admits that on the second stage of appeal, there is no question that he says the person who doesn’t have a lawyer is somewhat handicapped and that they would benefit from a lawyer.  It isn’t required under the Due Process, but this doesn’t address the equal protection requirement.

iii.    Does the Ross opinion’s “equal protection analysis” closely resemble a “due process analysis”?

iv.    Is there a right to appointed counsel on discretionary appeal from a plea of guilty?

v.      What light, if any, is shed on the meaning of Ross by the MacCollom case?

a.       U.S. v. McCollum (1976) (89):  Upheld federal statute that provides a free transcript for an indigent’s habeas appeal only if trial judge certifies that the claim is “not frivolous” and that the transcript is needed to decide the issues presented.  Hostile language:  “Nor does the Constitution require that an indigent be furnished every possible legal tool, no matter how devoid of assistance it may be, merely because a person of unlimited means might choose to waste his resources in a quest of that kind.”

b.      You get the flavor of the new approach when you read MacCollom on page 105, note 5.  Black says, how do you know when the transcript is necessary or not?

c.       It is not necessarily a bad thing, it is easy when you are taking the law as it applies to rich people and then just apply it to the poor person as well, but there comes a time when the law isn’t shaped for the rich person, but rather the backwards, where you don’t give it to the rich person because of what must then be given to the poor person.  For example: If you give this right to somebody who can afford a lawyer, EVERYBODY is going to get this right, therefore don’t let the rich guy get it either.

d.      After Ross v. Moffitt, a court can say listen, we can recognize the right of a rich person to have a lawyer represent him when his parole is being revoked, etc., without having to worry that if we establish that right for the rich person, then everybody else gets it as well.

g.       The Indigent Defendant’s Right to Expert Services in Addition to Counsel

i.        Ake v. Oklahoma

a.       Holding (Marshall):

1.      When D has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the state must provide access to “the psychiatric examination and assistance necessary to prepare an effective defense based on [the D’s] mental condition.”

2.      When, at a capital sentencing proceeding, the state presents psychiatric evidence of the D’s future dangerousness, due process requires access to psychiatric assistance.

b.      Reasoning: Due process language—“fair opportunity,” “meaningful access,” “basic tools of an adequate defense or appeal.”

c.       Does this case extended the Gideon principle to experts like psychiatrists as well as lawyers?

d.      First, is it the Gideon principle?  No, it doesn’t not extend the Gideon principle, they are not saying that the right to council says the right to other things.  It is not about the right to council, it is about the right to 14th Amdendment due process.  Marshall uses the language of Due Process.

e.       3rd paragraph on page 106—not equality, he is only getting an adequate opportunity.

f.       Burger and Rhenquist are simply wrong—it is not about capital cases, it is about any case where there is a preliminary showing and it is not easy to establish, you have to make a preliminary showing that insanity is likely to be a showing at trial.

g.       Is it fair to say that you’re entitled to a lawyer wherever the consequence of losing the trial or proceeding means the loss of your liberty?

ii.      The Sixth Amendment v. Fourteenth Amendment due process.

iii.    Ake’s impact on the equality principle.

iv.    The breadth of the supporting services that may be needed.

v.      The meaning of “basic tools.”

vi.    A new approach.

vii.  The resource imbalance—a problem the Simpson case illustrates.

3.      Withdrawal of Appointed Counsel on Appeal: The Potential Tension Between the Indigent Defendant’s Right to Counsel on First Appeal of Right and the Lawyer’s Ethical Obligation Not to Assert Frivolous Claims

a.       Anders v. California

i.        If court appointed counsel believes an appeal should not be filed because it lacks any merit, how should she proceed?

ii.      Held: A no merit letter (letter where counsel states to the state appellate court that he would not file a brief because he was of the opinion that there is no merit to the appeal) was insufficient because it affords neither the client nor the court any aid.

4.      The Right to Appointed Counsel in Proceedings Other Than Criminal Prosecutions: The Continued Vitality of the Betts v. Brady Approach

a.       Gagnon v. Scarpelli

i.        Facts:  D (S) pled guilty to armed robbery, sentenced to 15 years, suspended for 7 years probation.  A month later he was caught in the course of a burglary and confessed, but he claimed his statement was made under duress.  Probation was revoked w/o a hearing.

ii.      Q:  Does an indigent propationer or parolee have a due process right to be represented by appointed counsel at hearings?  Ct:  No.

iii.    Reasoning (Powell):

a.       Betts’ case-by-case approach may have been bad in the context of criminal trials, but it’s not bad for all types of proceedings.  This is different from a criminal trial—no prosecutor, just a parole officer; no jury, just a judge familiar with parole issues; no rules of evidence or formal procedures; lawyer may make hearing body less attuned to rehabilitative needs.  We like Betts’ flexibility.

b.      Rule:  Need for counsel must be made on a case-by-case basis in the discretion of the parole administering authority.  Should consider whether timely request for counsel was made on basis of colorable claim that D didn’t do it; substantial reasons that mitigated the violation; whether D can adequately represent himself.

iv.    It’s Betts v. Brady all over again.  You would think that you could never tell with a cold record what the case would look like with a lawyer.  Page 116, first full paragraph—how do you know whether or not it is a doubtful case or not, whether or not a lawyer is there to throw doubts—what an incredible statement.  Nobody tells the guy these things, what the professor finds more scary—the court is saying don’t make a big deal out of this, or you will be sorry.

b.      Betts, Gideon and Gagnon compared.

c.       Juvenile court proceedings.

d.      Summary courts-martial; loss of liberty does not trigger the Sixth Amendment right to counsel.

i.        Mittendorf v. Henry

a.       He doesn’t get a right to council for 30 days hard labor by a court martial.  The fact that a court martial is not a criminal prosecution, so what?  That gets around the 6th amendment, but there is also the 14th amendment.

e.       Parental status termination proceedings; is potential loss of liberty a necessary, if not a sufficient, requirement, for the automatic right to appointed counsel?

i.        Lassiter v. Department of Social Services

a.       No right to appointed counsel in formal judicial proceedings to terminate parental status.  State courts should determine this on a case-by-case basis.  “[A]s a litigant’s interest in personal liberty diminishes, so does his right to appointed counsel.”  Dissenters protested that a parent has a uniquely important interest in the care and custody of his/her children.

b.      Incredible that this could happen after all these years.  She didn’t know what avenues of defense to pursue in the first place!  It wasn’t pursued in the first place because she didn’t have a lawyer.  The court relies heavily in Scarpelli, but the difference is that there weren’t rules of evidence or procedure, but that isn’t true in a parental rights proceeding.

c.       What is bothering the court, why is your argument difficult, thing about the argument against you.  In Lassiter, the argument against you is gee whiz, in thousands of divorce cases, custody is an issue and many people can’t afford to pay lawyers extra for custody fight, the difference is that you should anticipate that argument as a lawyer and say look, the difference is this is a private matter and is too bad that you can’t pay for that, but this is not a private case this is the government with all its resources is trying to take away this woman’s kid and if ever you want to challenge the government when it is doing something like that, you need a lawyer to make the challenge meaningful and that is why the professor things Lassiter was wrongly decided.

d.      K:  Betts v. Brady all over again.  There are some things that are as important as liberty.  K suggests drawing a line by saying that you’re entitled to appointed counsel in order to challenge the gov’t whenever the gov’t is trying to do something to you.  This distinguishes eviction and private custody proceedings.


A.     Some Different Perspectives

1.      Fred E. Inbau: Police Interrogation—A Practical Necessity

a.       “Privacy.”  Actually, says K, it’s secrecy.

b.      Is there a usual criminal suspect?  Is it misleading to say “the killer” or “the criminal defender.”

c.       There is no such thing as “the criminal suspect.”  What typically happens is that a murder is committed, and the police round up 20-30 people and they don’t know which one, if any of them, is the killer.

d.      In the only study ever done, of every 20 people interrogated, only 1 out of 20 is ever charged with anything, which means a great majority of people questioned are not killings, they are innocent.  The trouble is that the police control the facts and you are only going to get information by accidents.

e.       CA case, the suspect was a prisoner in the prison, and his name was on his jacket and another inmate was stabbed, and the prisoner left his bloodstained jacket at the scene.  They find the murder weapon which is a shank with a handle made out of yarn and they find the same yarn in his cell.  Rule of automatic reversal—even when they find the guy’s jacket with his name on it, they have to throw out the confession. 

f.       The murdered women—that’s a problem, but is that an interrogation problem?  It’s a fourth amendment problem, you don’t know who to arrest. 

g.       They could have done that before they spent the whole night questioning the guy, they should have looked around in the first place before grilling the husband.

h.      Phrase, “unhurried interview.”  Always look at the words—professor scoffs at this phrase. 

i.        Suspects who are not unwilling to be interviewed.  If you are not unwilling to be interviewed, are you willing to be interviewed.  If he really is not unwilling to be interviewed, then there is no problem, you don’t have to arrest him, if you are not unwilling to be interviewed you don’t have to arrest them, and you don’t have to take them into custody and they don’t have to give him any Miranda warnings, the problem is that people are unwilling to be interviewed and they don’t know how to say it. 

j.        What does it mean to be privately conducted?

k.      An attorney wants privacy talking to his client, etc.  Is privacy the issue?  Is privacy the right word?  Privacy is a nice word, but is that the right word to explain what the police really want?  What is really going on is not privacy, but secrecy.  The FBI refuses to have any video taping done, but it is interesting that if you read the old manuals and the old books about interrogation, if a police officer was questioning a woman and he was worried that she might claim he molested or harassed her, he would have other officers watch through a one sided window.  The police have been taping all along and avoiding secrecy all along when it suits them. 

l.        In no other administrative situation does one side controls the facts. 

m.    Once the guy confesses, he is done, he is broken.  Once you have confessed and they write it up, are you going to say that you changed your mind?  It just doesn’t happen. 

n.      “I’ll stand by to protect you.”  Inbau is saying that the average defense lawyer should change their approach—talk to the police and tell them the truth, “I’ll stand by you to protect you.”  What he is saying is, the defense lawyers should no longer tell their clients to clam up.  Defense lawyers should no longer say, “assert your right to remain silent.”  From now on the defense lawyer should talk to the police and I will stand by to protect you from abuse. 

o.      Can you imagine a tax lawyer saying to his client?

p.      The criminal defense lawyers have never been considered first class lawyers compared to corporate lawyers, etc., they are given advice to which they themselves would laugh at. 

q.      Last paragraph on page 545—why is it one or the other?  Why can’t it be both?

r.        What does he mean by politically inspired interference?  He is talking about the ACLU, the NAACP, etc., these are liberal groups.  But what about the ACLE—American Citizens for Law Enforcement, isn’t this a politically inspired group just like the liberals?

2.      Yale Kamisar—Equal Justice in the Gatehouses and Mansions of American Criminal Procedure

a.       Main point of Kamisar extract was that until Miranda this worked backwards.  Incredibly, the privilege didn’t apply in the police station until Miranda.  It only applied when the suspect was through with the police.

b.      The police had one more reason to get a confession, because once he got past the police station, then his rights would come into play.

c.       The guy is being compelled to incriminate himself in the police station, they won’t stop until the guy tells the “truth.”  What they mean, is all we want is for you to confess.  In context, the truth means confess, tell us why you did, etc.

d.      The argument is that the police have no authority to make you answer.  There is no statute that makes you answer your questions, the police have no right to an answer, but you don’t know that and they don’t tell you that.

e.       If police had to advise people of their rights, then nobody would confess.  This is why the police hated Miranda.

f.       The basic point—the cops are in the business of getting people to confess.  There is no such thing for the Earl Warren award for distinguished civil liberties.  No award for a police officer who gives the most Miranda warnings, etc.  The guys who don’t want you to assert your rights, aren’t going to tell you what they are.

3.      Joseph D. Grano—Confessions, Truth, and the Law

B.     Historical Background

1.      The Interests Protected by the Due Process “Voluntariness” Test for Admitting Confessions

a.       Ashcraft v. Tennessee—the continuous 36 hour confession case.

i.        For example, the cases on page 555, just offended the court.  One of the transitional cases was Ashcraft on page 553.  If the police got tired of questioning him, imagine how tired the guy was of being questioned!  Any confession obtained after 36 hours is inherently coercive.  Black didn’t have the votes for saying that 1 hour of interrogation is inherently coercive.  Black didn’t answer the point that Jackson (dissenting) made that even one hour is coercive.  The court answered this question 22 years later in Miranda.  You hear the tape and the guy doesn’t know what is happening to him.

2.      The Shortcomings of the Voluntariness Test

a.       We use the same words, voluntariness, involuntariness, coercion.  We use the same words, but the meaning of the words changes.  Ironically they were both circumstances which made the circumstances unreliable.  As the years went on, the courts used the same terminology, but there was a second reason to throw out the confession, even if it was corroborated with extrinsic evidence.

b.      Schaeffer on page 557 talked about in class.  In Mincey, footnote c on page 557—question was whether the statement he made—the cop writes the questions a week after the statements were made.  Incredibly the trial court says, with unmistakable clarity that Mincey’s statements were voluntary.  This is the way things were before Miranda, the Supreme Court overturned this, and Rhenquist dissents thinking it was voluntary.

c.       Mincey v. Arizona (1978):  Excluded a confession from a suspect who was barely hanging onto life in the intensive care unit during interrogation.  Rehnquist, dissenting, said D’s statement wasn’t involuntary.  This case shows that it’s easy for judges who are removed from the particular man involved to dilute the effect of the interrogation on a hypothetical D.

d.      Brown v. Mississippi (1936) (452):  The first 14th Am due process confession case, Brown excluded a confession when the deputy admitted that the D was whipped, but “not too much for a Negro.”

3.      The McNabb-Mallory Rule: Supervisory Authority Over Federal Criminal Justice vs. Fourteenth Amendment Due Process

a.       McNabb/Mallory Rule

i.        A confession is inadmissible if obtained during an unreasonably long period of detention between arrest and preliminary hearing.

ii.      McNabb v. United States 

a.       Frankfurter, for majority, pointed out that the federal courts are limited to the 14th Am in upsetting state convictions, but that the courts can exercise “supervisory authority” over the administration of federal criminal justice, going well beyond due process.  Ct threw out a voluntary confession obtained while a suspect was illegally detained (i.e., not taken before magistrate).

b.      Attempt to get rid of the swearing contest.  This was never a popular rule and it was more or less repealed by legislation.

iii.    Mallory v. U.S. (1957) (458) emphatically reaffirmed McNabb, holding that an extended, 7-hour delay in bringing an arrestee before a committing magistrate was excessive.

4.      The Right to Counsel and the Analogy to the Accusatorial, Adversary Trial

a.       Crooker v. California

i.        Petitioner had attended 1 year of law school and indicated that he knew of his right to remain silent and was denied a request to contact his lawyer.

ii.      In Crooker on page 560—the court almost dropped the bombshell.  The majority said that the argument that if you asked for a lawyer you can’t be questioned, fair as well as unfair.  Is it fair to continue the question after you have asked for a lawyer?

b.      Spano v. New York

i.        Appeared that the Court had reached the view that once a person was formally charged by indictment or information his constitutional right to counsel had “begun”—at least his right to the assistance of counsel he himself had retained.

ii.      Made clear that Court was applying a “police methods” test as well as a “trustworthiness” test.  Ban against “involuntary” confessions turns not only on their reliability but also on the notion that “the police must obey the law while enforcing the law.”

5.      Massiah and Escobedo: The Court Closes in on the “Confession Problem”

a.       Massiah v. United States

i.        Defendant had been indicted on a federal narcotics charge. He retained a lawyer, pled not guilty, and was released on bail. A co-defendant, after deciding to cooperate with the government, invited Massiah to sit in his car and discuss the crime he was indicted on, during which the government listened in via a radio transmitter. During the conversation, Massiah made several incriminating statements, and those statements were introduced at trial to be used against him.

ii.      Held that the Sixth Amendment to the United States Constitution prohibits the government from eliciting statements about the defendant from him or herself after the point at which the Sixth Amendment right to counsel attaches. The statements made by the defendant outside the presence of his attorney must be suppressed.

iii.    This rule survives Miranda.  Once you’ve been indicted and formal proceedings have begun, the cops can no longer bypass a lawyer and go at you directly, whether you have a lawyer or not.

iv.    oddball case, not really an interrogation case, but the case smelled bad.  Stewart paints himself into a corner.  Why should it matter whether the guy has been arrested or not?  Why does it matter that he wasn’t indicted, but Stewart dissents because he thinks it’s a big deal.

b.      Escobedo v. Illinois

i.        The police arrested Danny Escobedo early the next morning, tried without success to interrogate him, and eventually released him that afternoon. Ten days later, on January 30, the police interrogated Benedict DiGerlando, who told them that Escobedo fired the fatal shots. The police arrested and interrogated Escobedo that evening. Escobedo asked to speak to an attorney. His attorney went to police headquarters and tried to talk to Escobedo during the interrogation. Both requests were refused. When the police told Escobedo about DiGerlando's claim, Escobedo asked to confront him. When this happened, Escobedo implicated himself as an accessory in the murder, later confessed the same to a prosecuting attorney, and was eventually convicted for aiding and abiding.

ii.      The Supreme Court overturned Escobedo's conviction and recognized a suspect's right to an attorney during police interrogation. Writing for the majority, Justice Arthur Goldberg viewed the police interrogation in this case as more of an interrogation of a specific suspect than a general questioning of witnesses. As such, he held the distinction between pre- and post-indictment to be immaterial, since the police and prosecutor elicited a confession after they'd already gotten the damning statement necessary to indict Escobedo.

iii.    “We hold… that when the process shifts from investigatory to accusatory—when its focus is on the accused and its purpose is to elicit a confession—our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.”

iv.    What exactly is Escobedo’s right?  Does he want the presence of his lawyer, or does he want the right of his lawyer?  These are two different rights.  What exactly is the right?  It is has never been made clear, although there is a difference between the rights.

v.      Escobedo is an incredible case—it is written by a committee, and Douglas is saying you have to add this sentence or I won’t join the opinion, it is a mish mash. 

vi.    Unless the Supreme court rescues Escobedo, it is going to be dead, and so they rescue it with Miranda.

6.      A Late Arrival on the Scene: The Privilege Against Self-Incrimination

a.       Malloy v. Hogan (1964) (468) (holding that 5th Am’s Self-Incrimination Clause is incorporated in the Due Process Clause of the 14th Am and thus applies to the States).

C.     The Miranda “Revolution”

1.      Oral Arguments in Miranda and Companion Cases

a.       Nedrud—is saying that if the lawyer gets in there very early and says “clam up, don’t say a word,” the lawyer has essentially cut off any chance of getting enough evidence to find him guilty.

b.      The answer is, the honest issue is, are we going to allow the police to determine guilt or innocence or the defense council?  The police are going to keep the guy there indefinitely, they won’t let him go until he makes an incriminating statement.

c.       Earle statement about written waiver—professor says you can still be conned into giving a written waiver.

d.      About the written waiver in Miranda:

i.        The crucial point is that before he confesses, he isn’t going to take it back, he won’t take it back in the presence of the police, so big deal.  They type of the written confession and put in that he was warned of his rights.  If the police told him to write in his own handwriting, “I have been advised of my rights,” he probably would have written this on his confession.

e.       Stewart doesn’t like the waiver bit—middle of page 573—How do you respond to Stewart’s claim of “how can anybody waive rights without the consent of counsel or without the advice of counsel.”

i.        He is asking that question so that he can convince his fellow justices that this is too much.  Stewart is trying to trap you into asking for too much to persuade his colleagues against this.

f.       There is a difference between a compelled confession and a coerced confession.  The word coerced is a very different word, coerced means pressure on the suspect which is so great that it violates due process to admit such a confession.  It takes much more to coerce somebody to confessing than it does to compel them.

g.       Fortas talks about an ideal world and Black says that this is nonsense, we don’t have an ideal world, we have the Constitution, we are not talking about an abstract world, we are talking about our legal system—professor likes this.

2.      Miranda v. Arizona

a.       Facts:  D arrested for kidnapping, rape.  Questioned by 2 officers w/o being advised of right to have atty present.  Confessed after 2 hours.  3 companion cases featured similar facts.  In Westover, D was questioned for 14 hours; in Stewart, 8 or 9 interrogations were spread over the course of 5 days

b.      Holding: 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. This includes questioning after a suspect has been deprived of her freedom in any significant way. The suspect must be informed he has a right to silence, that his statements may be used against him and that he has the right to an attorney, retained or appointed.


a.       Right to remain silent.  Objective inquiry—we won’t consider whether D was aware of his rights w/o warning.  Just do it.

b.      Anything you say can and will be used against you. 

c.       Right to have counsel preset at interrogation.

c.       If you can’t afford a lawyer, one will be appointed for you.

d.      The Dissents in Miranda:

i.        Page 590: The manuals aren’t shown to be the manuals of any police department, and it isn’t known whether these practices are widely used…White makes the same argument as well.  The court doesn’t examine any interrogation transcripts.

ii.      If you were making an argument to the court and had cited those manuals, what would you say to White who claims that these manuals aren’t depicting a real interrogation?

a.       You could say—what else do we have?  The police don’t let you see what is going on, they don’t record the interrogation, they just give you their version of what happened during the interrogation.  The psychology of interrogation hasn’t changed since 1955, or 1962, or even now.

b.      If the people who wrote the manuals are willing to put their name on the line, such as Inbau, if he is instructing police to persuade suspects not to get a lawyer, probably things worse than this go on during interrogations.

iii.    Dissent is saying that we should continue to use the old test which relied on whether the defendant’s admission was voluntary or not.

iv.    The first paragraph in Harlan’s dissent-- some of things he says are valid.  The analysis is basically how bad are the police?  The police would be fuzzy about what they did under the voluntary test, most police wouldn’t lie about the warnings.  The answer is to tape record the warnings, but the court stopped short of doing this because they knew they would be criticized for legislating.

v.      Harlan says on page 592—the difference is that the lawyer can prevent his client for incriminating himself.  The lawyer can’t say, “don’t let him search the house,” but he can say don’t answer this question.

vi.    3rd paragraph on page 593—no other states have given Miranda warnings, we don’t know what will happen. 

vii.  How do you respond to this?  It sounds good, but how are you going to get more data?  No Governor would say, “hey police, advise your suspects of their rights.”  Well, nobody would do this, so there wouldn’t be any data.

viii.Harlan top of page 594—we don’t have enough data, so let’s wait and see what happens.  Legislation is working on it, etc.  Essentially, Harlan is saying that we don’t know what will happen.

ix.    White asks a great question—if the police just arrest the guy and he is in custody and they ask him one question, “did you kill your wife,” and he says, “yes I did,” why can’t this be admitted. 

x.      No interrogator would come in cold and ask if you killed your wife.  They come in and ask if you are okay, do you need anything, etc. What is the rule?  Are you allowed one question, two questions, etc.?  You will have a huge body of law as to what is persistent questioning, and what is sustained questioning, and what is unimpressive or light questioning, and the lower courts are going to interpret it, and that is what would happen.

xi.    White is trying to come up with alternatives to Miranda.  So on the last paragraph on page 595 he gives alternatives—where do these things come from?  Not from the constitution.

xii.  White says that 30% of the cases actually tried.  The cases actually tried are only 4%.  Look at the stats, “cases actually tried.” 

xiii.Another point by White, if he talked to the police, he might be home for dinner, but on the other hand he might be gone for 30-40 years.  Why not let the lawyers decide whether it is worth talking or not, even if you might miss dinner.

e.       Voluntariness Test Notes:

i.        The voluntariness test is also called the totality of the circumstances test.  It was also called the Due Process test.  Whether you were advised was relevant, but it was not decisive. 

ii.      White hypothetical—if you ask one question, “did you kill your wife?” What is wrong with that?  Does Miranda change this?  Even if he had been given the Miranda rights, he could still waive his rights and confess. 

iii.    Amazing thing about the case is that there is no discussion about what the police can do when they waive his rights. 

iv.    Do we go back to the voluntariness test once you waive your rights?

v.      The voluntariness test kept changing.  The voluntariness test was real low in 1936 (rope marks on neck, etc.,) and then by the 1960’s, you couldn’t question him for more than 7 or 8 hours.  The test was changing in favor of the defendant.

f.       The majority opinion relies heavily on the manuals because that is all that they have, and the manuals are pretty damning on the police.

g.       Davis case—the blotter said don’t let anybody see the accused.  He was held for 16 days, and the trial judge found as a matter of fact for the police, finding that they had disregarded their own warnings.  The Supreme Court reversed, but Clark had dissented.  This is what is known as protecting the defendant effectively, this is the test that is claimed to work well in Miranda—professor finds this unbelievable.

h.      Warren: It is just simpler to give everybody a Miranda warning. 

i.        The right to remain silent is the key right, the right to counsel is not the principle right, the principle right is the right to remain silent.

j.        Today, you can only ask for a lawyer, not a family member or anything else.

k.      Justice Kennedy’s Question About Miranda’s Constitutional Status:

i.        Said that Miranda was constitutional, but the warnings were not constitutionally required…how do you reconcile this? 

ii.      Throughout the opinion, Warren says, we encourage Congress to come up with some alternative, that Congress might have another solution, nobody knows what this is specifically, time limits, etc.  The opinion does say that the Miranda warnings are not the only way to solve the problem, Congress could come up with another way.  It is a little too simple to say that Warren says we encourage Congress to come up with other ways, the problem is this, the police practices are not reconciliable with the presence of the privilege of self incrimination in the police station and what the police are doing is no longer acceptable.

iii.    Everytime he says there are other ways to do this, the Miranda warnings are just one way, the original draft says that there had to be warnings, but Brenan said let’s loosen it up and add other ways.

iv.    Back to Kennedy’s question—something is required, we can’t go on the way we are going now.  It doesn’t have to be Miranda it could be recording, it could be judge’s questioning, Miranda is not constitutionally required, but in the absence of anything else, it is required.

l.        Answer to question--Miranda is a constitutional decision, but the warnings are not necessarily required, but in the absence of anything else they are required.

m.    Rhenquist says that even Earl warren says that Miranda warnings aren’t required, so they are not constitutional, but if you look at what Warren is saying on page 576 for example and on page 581: Rhenquist doesn’t go on to say that unless we are shown other methods, the Miranda warnings are required.

n.      The mere fact that…the suspect has the right to cut off questioning at any time, you can stop at any time, that is not one of the warnings.  Nor is one of the warnings, of saying that your silence will NOT be used against you.  Many people confess because they think that their silence will be used against them. 

o.      Once somebody starts talking, he will almost never stop.

p.      There were a number of weaknesses in the opinon and the biggest one was on page 582—if the circumstances are going to overwhelm the guy, the extra warning will not help, the only solution is council advising him of what to do before he waives his rights.

q.      More page 582—what is the answer to how the lawyer’s presence can make the interrogation more meaningful and reduce coercion and help guarantee that the accused can give a coherent statement—the virtues of having the defense lawyer there, what is wrong with this?  THERE WON’T BE ANY INTERROGATION.

r.        A lot of the language on 585—what is going on here, the Escobedo test, the focal point test, as some point the suspect becomes a prime suspect the focal point, at that point his constitutional rights go into effect.

s.       Under Miranda, the cop can tell you “tell me more,” you called me.  Miranda has a stopping point, the focal point doesn’t.  Privilege against incrimination is really against compelled incrimination.  You can’t be compelled to incriminate himself.

3.      What happened after Miranda:

a.       Even if a guy asserts his rights—the police have no incentive to honor his rights.  Serious blow to Miranda.

b.      Then custody is read very narrowly.  It is one thing if a guy agrees to at least meet you at the station, that is okay, but if the car comes and asks to pick you up what does this mean?

4.      Applying and Explaining Miranda

a.       “Exploiting a criminal’s ignorance or stupidity”; “intelligent” waivers vs. “wise” ones.

i.        The issue is not whether the suspect has made a wise decision or not, as long as the suspect has been told that he can remain silent and have a lawyer, that is all—if the suspect wavies these warnings, then it is his problem.

ii.      State v. McKnight

b.      Adequacy of Warnings

i.        Duckworth v. Eagan

a.       Admitted confession even though warnings were not given word for word and officer implied that counsel would only be appointed if and when the D went to trial.  Courts should examine warnings like construing a will; the inquiry is simply whether the warnings reasonably convey the Miranda rights.

b.      K thinks suspect should be advised that his silence cannot be used against him. (But this is not the case today).

c.       Was he told that he had a right to a lawyer before questioning?  He was told he as an abstract right, but then they add—you’re not going to get one in this jurisdiction until you go to court.  So why would he ask for one now?  He was just told that he wasn’t going to get one.

d.      Rhenquist says-it’s true in this jurisdiction—if you were arguing for the defendant, you would say, what if the judge gives you the maximum sentence for not confessing, that’s the truth.  “That’s the truth” argued by Rhenquist is a horrible argument.

e.       Rhenquist says that the police are just being helpful, they are anticipating what he is wondering—well why don’t you tell him what happens if I ask for a lawyer now?  What does happen?  The police have to stop questioning.  If the suspect asks for a lawyer now, the police have to leave—don’t you think that would be helpful to tell the suspect.

f.       The thing that makes this case really ridiculous, is the following statement—“Miranda has not been limited to station-house questioning…”

g.       The reason this case really upsets the professor is that 10 years earlier, the same question came up and the 7th circuit said that the warnings were inadequate and 10 years later the police are giving the same warnings, and they go to the supreme court…and they win. 

c.       Need for police admonitions in addition to the four Miranda warnings.

i.        No court at this point will tell suspects that their silence will not be used against them.  Moreover, you really ought to say, anything you say orally or in writing can or will be used against you.

ii.      If a DEA agent is questioning you and it is about drugs, he can hit you with a question about drugs or killing.  Once you start talking, it is very hard to stop, that’s why the professor would not give the warning that if you start talking you have the right to stop at any time.  This is very seductive, because once you start talking, you don’t stop, you make a mistake, you will want to talk yourself out of it.

iii.    The consequences of silence.

a.       Should the suspect be explicitly advised not only that any statement he makes may be used against him but that his silence may NOT be used against him?

iv.    The right to be made aware of the subject matter of the questioning.

a.       Colorado v. Spring

1.      D waived his Miranda rights on March 30, when ATF agents questioned him about interstate shipment of firearms and he admitted that he “shot [a] guy once.”  Then, on May 26, Colorado officials obtained another Miranda waiver as well as incriminating statements from him about the murder. 

2.      Court held that “a suspect’s awareness of all possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his 5th Am privilege.” 

3.      Dissent:  Trickery + surprise à coercion.

4.      The Supreme Court has never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights.

5.      Held that a suspect’s awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege.

6.      DISSENT: Additional questioning about entirely separate and more serious suspicions of criminal activity can take unfair advantage of the suspect’s psychological state…

v.      “Custody” vs. “Focus.”

a.       Beckwith v. United States

1.      IRS agents “interviewed” D in his private home.

2.      The focus test as it had generally been understood at the time of Escobedo was expressly rejected in this case.

3.      Ct (Burger):  Miranda warnings are required only when D is in custody.  This situation doesn’t present the inherently coercive elements that Miranda was concerned about.  Miranda specifically defines “focus” for its purposes, as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

b.      Stansbury v. California

1.      Held that an officer’s subjective and undisclosed view concerning whether the person being interrogated is a suspect is irrelevant to the assessment whether the person is in custody.

c.       Berkemer v. McCarty

1.      Held that the roadside questioning of a motorist detained pursuant to a traffic stop is quite different from questioning at the stationhouse and thus should not be considered custodial interrogation.

vi.    What constitutes “custody” or “custodial interrogation”?

a.       Yarborough v. Alvarado

1.      Defendant was involved in the theft a truck where the owner was shot.  The detective in charge of the investigation informed Alvarado’s parents, who later brought him to the station.  Alvarado was 17.5 years old at the time.  The questioning lasted two hours and he was not given Miranda warnings.

2.      The Court held that the California State Courts had considered all necessary factors and reached a reasonable conclusion in determining that Alvarado was not in custody.

3.      Good case, primarily because of Breyer’s dissent—

4.      The majority seems to be saying that you don’t have to look at the suspect’s age.

5.      The fact that they asked him if he wanted a break, proved that he is in custody and that the police were in control.

6.      Professor—at some point age is relevant, what if you had a 12 year old, or a 90 year old on crutches?

7.      O’Connor’s concurrence—we talk about reasonable, what do we mean?  How does it look from a reasonable person in the suspect’s shoes or the police officer’s shoes? O’Connor is saying you can’t expect a cop to tell the difference between someone who is 17.5 or 18, it is what a reasonable cop should perceive, and that is different.

8.      Even if he came into the interviewing room, in the course of the interrogation, when they tell him that he may not be the key guy but he is suspected of being involved in the case, it doesn’t matter whether the cops were holding you in a cell or whether you could go home, it doesn’t matter what the cops were thinking of doing without telling him.  Who knows what they would have they done.

9.      The test is either how it looks to the reasonable person in the suspect’s shoes or how it looks to a police officer who is doing the questioning.

vii.  What constitutes interrogation within the meaning of Miranda?

a.       Rhode Island v. Innis

1.      Facts:  D arrested at 4:30 a.m. for murdering taxi driver.  Advised of rights and placed in back seat of squad car with one officer in the back seat and two up front.  The two cops up front talked about missing gun, said they were worried that kids might find it.  D then interrupted and said he would show them where it was.  Trial court admitted gun and related testimony; RI SC rev’d, concluding that he was interrogated without valid waiver of Miranda.

2.      Question is whether respondent was “interrogated” in violation of Miranda.

3.      Holding:  “‘[I]nterrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.”  Focuses on perceptions of suspect, not intent of police.  “A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.”

4.      This wasn’t interrogation under this definition, b/c it was just a dialogue, off-hand remarks.  It was neither express questioning nor the “functional equivalent” of questioning.  Not designed to elicit a response.

5.      At least the court didn’t say that if you don’t talk directly to someone it is not interrogation.  If this was the case, you could get around the Miranda warning quite easily.

6.      As Stevens says, there are many techniques for use to interrogate a suspect without asking him questions.

7.      The test seems to be was the action that the police took likely to invoke an incriminating response from the suspect.  Is this a good test or a plausible test?

8.      Why don’t we say, when the police talk directly to someone it is interrogation if he is likely to respond by incriminating himself, so why should we say it when the cops are talking to each other.

9.      The test ought to be not whether the police action is probably going to invoke a criminal statement, but whether a police action has the same impact as the direct question—should be viewed as the equivalent of a direct question.

10.  Stevens dissent is really good, but unfortunately it is not the prevailing view.

b.      There is an exception for so called administrative questioning.  I.e. how tall are you, what are the colors of your eyes, you are questioning him, but not about the case—this is okay if the guy confesses.  I.e. “do you want a sandwich”? and the guy says, “I did it.”  This is okay during administrative questioning.

c.       Arizona v. Mauro

1.      Ct, per Powell, held that it was not custodial interrogation under Miranda for police to accede to the request of D’s wife to speak to D in presence of a police officer, who placed a tape recorder in plain sight on a desk.  The officers had tried to discourage the wife, but she insisted.  Ct doubted whether D felt he was being coerced by cops.

2.      K agrees.  K says Miranda is about the impact of the environment on the mind of the suspect.  Interrogation means questioning by an officer or someone known to be a police agent.  Husband was aware that police were listening.

3.      It was the wife’s idea, she goes in there with a detective in there and the husband does confess.

4.      Focus on something that Stevens says:

a.       If two people talk to each other they are friends, and somebody is secretly tape recording the conversation, is that a violation of Miranda?  No, because there is no inherent coercion, the inherent coercion is generated by the fact that a cop who has you in his power is holding a gun.

b.      If you don’t know that you are talking to a cop, then there is no coercion and the whole point of Miranda was to negate the coercion of the two or three interrogators talking to you.  So even though his opinion is good, Stevens is wrong.

c.       This becomes a hard case only because the detective walked in.  This would have been an easy case had the woman secretly tape recorded what happened.

d.      From the point of view of the suspect, he thinks he is talking to his wife.  It wouldn’t make a difference in this context, whether she is a police agent or not.  THE KEY THING IS HOW THIS LOOKS TO THE SUPSECT.  As far as he knows, he doesn’t need any warnings because he is talking to his wife.

viii.The “jail plant” situation; “surreptitious interrogation.”

a.       Illinois v. Perkins

1.      Facts:  D was suspected of murder but jailed on other charges.  Cops put two agents—a former cellmate and an undercover officer—in his cellblock in order to engage D in casual conversation and report any incriminating statements.

2.      Q:  Does “custodial interrogation” occur when a secret gov’t agent, posing as a fellow prisoner, is placed in the same cell or cellblock with an incarcerated suspect and induces him to discuss the crime?  Ct:  No.

3.      Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement.

4.      Coercion s determined from the perspective of the suspect.

5.      Marshall, dissenting:  Miranda was concerned not only with police coercion, but also with any police tactics that may operate to compel a suspect in custody to make incriminating statements w/o full awareness of constitutional rights.

ix.    When does a response to an officer’s question present a reasonable danger of incrimination?

a.       Hibel v. Sixth Judicial Court

1.      Sustained against a Fourth Amendment challenge Nevada’s “stop and identify” statute.

2.      Disclosure of name presented no reasonable danger of incrimination.

x.      Questioning prompted by concern for “public safety.”

a.       PUBLIC SAFEY Exception:

b.      New York v. Quarles

1.      Facts:  At 12:30 a.m., rape victim told police that D had just run into supermarket w/ gun.  Cops pursued D to back of store; officer frisked & cuffed him, found that he had an empty holster, and asked him where gun was w/o giving Miranda warnings.  Surrounded by 4 officers, D nodded toward cartons and said, “the gun is over there.”  D was then read his rights, which he waived before answering questions about gun.  State courts suppressed statements and gun.  SC rev’d.

2.      Public safety exception:  “We conclude that under the circumstances involved in this case, overriding considerations of public safety justify the officer’s failure to provide Miranda warnings before he asked questions devoted to locating the abandoned weapon.”

3.      Quarles case—did the police think that they were in any danger?  They put their guns back in their holsters, but Rhenquist says—so long as the gun was concealed somewhere in the supermarket…Rhenquist is the master of the phantom accomplice.

4.      It happened in the middle of the night, the police could have closed the store.

5.      Quarles was one of the decision that Rhenquist wrote saying that Miranda was an unconstitutional decision. 

6.      In a way, what Rhenquist is doing in Quarles is what Warren did in the stop and frisk cases—balancing somebody being killed vs. the rule of law. 

7.      This case could have been decided very differently by another route that would have led to the same result—where is the inevitable discovery.  They could establish that whenever they corner someone with a gun they inevitably would have found the gun.  The court could have gone off on inevitable discovery, but they didn’t want to.

8.      Why the police ask him where the gun is, when they will probably find it anyhow.  They ask him because people get nervous and they are going to talk.  They are always trying to pick up more information.

xi.    Asking an arrestee whether he has drugs or needles on his person.

a.       United States v. Carillo

1.      before issuing Miranda warnings, officer asked if suspect had any drugs or needles on his person.  Suspect responded, “no, I don’t use drugs, I sell them.”

2.      Is this statement admissible under the public safety exception to Miranda?

a.       The 9th circuit says yes.

xii.  When, if ever, should interrogators be allowed to use “torture” in order to obtain information from suspected terrorists?

a.       Does torture work?  Professor thinks that it probably doesn’t work.  If you torture 100 people and 50 confess. 

b.      Assuming it does work, should we do it?

c.       The court says in Quarles, footnote 5 on page 630.  Question is, why isn’t there a public safety exception for a coerced confessions if there is one for Miranda violations?

d.      Marcy Strauss—there is no end to this thing.  You (the suspect) may be happy to die, but we are going to bring in your 5 year old daughter.  If you believe that anything goes, you can do anything to stop an act of terrorism. 

e.       Welsh White—argument on 637.

xiii.Meeting the “heavy burden” of demonstrating waiver: should tape recordings of the warnings and police questioning be required?

a.       Tape recording—it is hard to believe that after Miranda, it is unbelievable that after all these years we still only have tape recording required in a handful of states. 

b.      Walter—see book—argues for recording (might argue for recording, but no Miranda).

c.       Professor—if tape recording had been allowed in the 1960s, there would have been no Miranda.

d.      Two reason why Miranda didn’t require tape recording: 1. it didn’t have the votes, and 2. the court thought that they would build on Miranda in the future (in a few years though, 4 justices had been appointed  by Nixon and the process of reading Miranda narrowly began).

e.       If the court had said in 1960-we have to require police to require interrogation, we never would have had Escobedo or Miranda or Massiah, but the court still hasn’t required this.

xiv.Implied waiver

a.       One of the biggest weaknesses in Miranda is the waiver.  What happens now is the police either say, we want to hear your side of the story, but you can’t hear this if you assert your right to silence.

b.      North Carolina v. Butler

1.      “The question is not one of form, but rather whether the defendant knowingly and intelligently waived [his rights]…  The courts must presume that a D did not waive his rights; the prosecution’s burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.”  (Emphasis added.)  Berger (543) says Court really just cares about the “knowing” part.

2.      Implied waiver on 642-major blow to Miranda.  You give the Miranda warning and then you say, ‘what happened.”  The guy then starts talking, he never gets a chance to say that he wants a lawyer, etc.  This is not the way Warren and the justices thought things should work.

c.       Johnson v. Zerbst

1.      The prosecution must demonstrate an intentional relinquishment or abandonment of a known right.

xv.  “Qualified” waiver

a.       Connecticut v. Barrett

1.      Suspect was advised of his Miranda rights 3 times.  Suspect indicated that he would not make a written statement without counsel, but was willing to talk about the incident that led to his arrest.

2.      The Court, per Rhenquist, C.J., rejected the contention that respondent’s expressed desire for counsel before making a written statement served as an invocation of the right for all purposes.

xvi.What constitutes an invocation of Miranda rights?

a.       Fare v. Michael C.

1.      After being fully advised of Miranda rights, D, a juvenile, asked to talk to his probation officer.  Police denied request.  Ct held incriminating statements admissible, holding that the request was not the same as asking for a lawyer.  Test is totality of circumstances, including age, experience, background, and intelligence.  Ct noted that probation officer is actually more closely allied to police.  Dissent said that probation officers have a duty to represent minors’ interests and are trusted guardian figures.

xvii.          The scope of “second level” Miranda safeguards—the procedures that must be followed when suspects do assert their rights—and the distinction between invoking the right to remain silent and the right to counsel.

a.       “Second level” Miranda safeguards are the procedures that must be followed when suspects do assert their rights.  The procedures that must be followed depend on whether the suspect has invoked his right to remain silent or his right to counsel.

b.      The two basic cases are Mosley—what happens if the suspect asserts his right to remain silent and Edwards, about what happens if the suspect asserts his right to a lawyer. 

c.       The reason the court just slid right over that is because the Edwards case had not been decided.  The question is whether they honored his right to counsel which he asserted. 

d.      It doesn’t make any sense to say that difference consequences flow depending on what right he asserts (lawyer vs. silence).

e.       Even though Edwards had not come down, Mosley had been decided and so if asserting the right to a lawyer meant at least as much as asserting the right to remain silent, then they still should have applied Mosley and said that once he asserted his right to counsel the question is not whether he was interrogated, but whether the police scrupulously honored his right to remain silent.

f.       2nd level warnings and safeguards (p. 645)—hard for professor to see why a person who asserts a right to a lawyer gets more protection than somebody who asserts his right to remain silent.

g.       If somebody asserts his right to remain silent, all the officer has to do is leave for a few hours and then come back. 

h.      Right has to be more scrupulously honored if it is an assertion of a right to a lawyer, than an assertion to remain silent.

i.        You have to change the mind yourself.

j.        Michigan v. Mosley

1.      The admissibility of statements obtained after the person in custody has decided to remain silent depends on whether his right to cut off questioning was scrupulously honored.

2.      D was questioned about a crime, invoked right to remain silent, and was left alone.  Later, the police gave him a fresh set of warnings and questioned him about a separate set of crimes.  Court admitted his subsequent intimidating statements, concluding that his right to silence was “scrupulously honored.”

k.      Moseley suggests three minimal requirements for resuming questioning after a suspect asserts his right to remain silent:

1.      immediately ceasing the interrogation;

2.      suspending questioning entirely for a significant period; and

3.      giving a fresh set of Miranda warnings at outset of second interrogation.

l.        Edwards v. Arizona

1.      D arrested and taken to station, where he asserted his right to counsel.  Questioning ceased, and D remained in jail, w/o seeing counsel, overnight.  Next morning two officers again read him his rights; he waived rights and made incriminating statements.

2.      This case held that once a suspect has invoked his right to counsel he may not be subjected to further interrogation until counsel has been made available to him unless he himself initiates further communication, exchanges or conversations with the police.

xviii.        Clarification (and extension?) of the Edwards rule.

a.       Arizona v. Roberson

1.      Held that once a suspect effectively asserts his Miranda-Edwards right to counsel, the police cannot even initiate interrogation about crimes other than the one for which the suspect has invoked his right to counsel.

2.      can you question a suspect about a different crime, a crime unrelated to the crime you were investigating when he asked for a lawyer.  Court says no, if you are questioning suspect about a burglary, and he asks for a lawyer, you can’t ask him questions about an unrelated murder.

b.      Minnick v. Mississippi

1.      D was refused to sign a waiver form but agreed to answer some of the FBI’s questions.  He then said he would make a more complete statement w/ lawyer present.  Interview ended, and D met w/ appointed counsel on 2 or 3 occasions.  Then a state sheriff questioned him, and he declined to sign waiver form but made incriminating statements.

2.      Does the Edwards protection cease once the suspect has consulted with an attorney?  Ct:  No.

3.      The court held that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney.

4.      The Edwards rule, especially as reinforced or expanded by Minnick is a very formidable rule, it gives the suspect quite a bit of armor, but there are chinks in the armor, and what are those chinks or gaps?

5.      professor not sure the case is right—in a way the professor likes it because it expands Miranda, but Warren probably wouldn’t have decided the case this way.

6.      What is the reason why we don’t want a police officer to keep coming back every two hours to have a suspect who asked for a lawyer change his mind. 

7.      Professor agrees with Scalia on the point that there shouldn’t be distinction over which right you assert (silence vs. lawyer).

xix.When does the “question-proof status” of a person who has asserted his right to counsel come to an end? 

xx.  Does a sentenced prisoner who has settled into the routine of his new life in prison population need the extra protection of Edwards?

a.       United States v. Green

1.      When arrested on a drug charge, defendant refused to answer any questions without having a lawyer present.  The next day an attorney was appointed to represent him.  He was later transported to a juvenile facility where he was charged with a murder.  He confessed the murder to a detective shortly after agreeing to talk to the detective.

2.      Court suppressed the confession, stating that the guilty plea in the drug case cannot be the pivotal break in events that Edwards demands before a waiver can be regarded as an initial election by the accused to deal with the authorities on his own.

xxi.What constitutes “initiating” further communication with the police?

a.       Oregon v. Bradshaw

1.      Facts:  D invoked right to counsel.  Officers terminated conversation, but while squad car, D asked, “Well, what is going to happen to me now?”  Officer reiterated right to remain silent, but then conversed w/ D and invited him to take lie-detector test.  Next day, D given warnings, failed polygraph, and confessed.

2.      Court, in splintered opinion, held that D could not avail himself of Edwards.

3.      Rehnquist, for plurality, said some inquiries, like a request for a drink of water or a request to use the phone—i.e., statements “incident to the custodial relationship—are so routine that they don’t fairly indicate a desire on the part of the accused to discuss the investigation.  But D’s ambiguous statement can fairly be viewed as evincing a desire for a generalized discussion of the investigation.  Since there was a valid waiver, this is admissible.  Thus, Rehnquist used a two-step analysis:  (1)  Did suspect initiate a conversation?  (2) If so, was there, in light of the totality of the circumstances, a valid waiver?

4.      if he asks for water, this will not open up a general discussion, the court thinks that as long as it is not a routine question, it opens it up.  Professor: terrible decision.

5.      Administrative questioning is not questioning about the crime—i.e. name, age, etc.  Professor thinks that questions like “what is going to happen to me now, etc.,” shouldn’t count either.

xxii.          How direct, assertive and unambiguous must a suspect be in order to invoke the right to counsel?

a.       Davis v. United States

1.      Facts:  D questioned about a murder for an hour and a half before he said, “Maybe I should talk to a lawyer.”  Agents tried to clarify whether he was actually requesting counsel, and he said, “No, I don’t want a lawyer.”  After a short break, questioning resumed for an hour, and D again said, “I think I want a lawyer.”  Questioning then ceased, but prior incriminating statements were admitted.  SC aff’d the conviction.

2.      Court (O’Connor):  Edwards requires an objective inquiry into whether D actually invoked his right to counsel.  Questioning doesn’t have to cease when D makes an ambiguous or equivocal reference to an attorney.  Suspect must unambiguously request counsel; “he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.”

3.      The courts should not place a premium on suspects making direct, assertive unqualified invocations of the right to counsel; and

4.      Souter, in a separate opinion affirming the conviction, called for a “rule barring gov’t agents from further interrogation until they determine whether a suspect’s ambiguous statement was meant as a request for counsel.”

5.      K likes Souter’s rule a lot, and he says that the agents did clarify here, so the majority didn’t need to decide something not before them.  K also says that you could read Davis narrowly to cover only cases where the suspect initially waives his rights and then tries to change his mind.  That is, only after waiving his rights does the suspect have to be forceful in asserting them.

6.      This is not talking about an initial assertion to a right to counsel.  Talking about when a suspect waives his right to counsel, but then later changes his mind.  Talking about subsequent assertion after you waive your rights.

7.      Nevertheless the professor thinks that it is a poor decision.

8.      TANGENT:

a.       [Is it a problem that the police give the Miranda warnings?  It’s a good argument and probably why Miranda hasn’t had the effect that people though it would.  Police say the warning in a matter that makes suspects overlook it, etc.  Making the people who don’t want the warning and who it is not in their best interest to give the warnings.]

b.      It was nice that they asked him if he wanted a lawyer, but they didn’t have to.

9.      What do you do when the suspect says, “I think I need a lawyer.”  The police shouldn’t influence the suspect in one way or another, they should say “it is your call, you can have one if you want or not.”

xxiii.        The Miranda-Edwards-Roberson rule and the Sixth Amendment right to counsel compared and contrasted. 

a.       Michigan v. Jackson

1.      Indigent Ds agreed to talk to police w/o counsel before their arraignment, but when brought before a magistrate, they requested appointed counsel.  After arraignment but before Ds had opportunity to consult with counsel, police again Mirandized them and obtained confessions.  Court said Edwards applied.  Court adopted a “broad” interpretation of request for counsel “at every critical stage of the prosecution.”

2.      The Edwards rule applies by analogy to those situations where an accused requests counsel before the arraigning magistrate.

3.      Because police initiated questioning, the post-arraignment waivers of Sixth Amendment rights were invalid.

b.      McNeil v. Wisconsin

1.      Facts:  D, following arrest for crime #1, appeared at bail hearing w/ counsel.  On several subsequent occasions, he was interrogated about crime #2 and made incriminating statements.  SC aff’d conviction.

2.      Reasoning:

a.       Sixth Amendment right to counsel provides less protection than does the Miranda-Edwards-Roberson rule.

b.      To invoke the Sixth Amendment interest is, as a matter of fact, not to invoke the Miranda-Edwards interest.

c.       6th Am is offense-specific; doesn’t attach until prosecution is commenced.  So also its Jackson effect of invalidating subsequent waivers in police-initiated interviews is offense-specific.

d.      Purpose of 6th Am right is to protect layman during confrontations with gov’t after adversarial positions have solidified w/ respect to particular crime.  The 5th Am Edwards right is different—it’s designed to protect the suspect’s desire to deal w/ the police only through counsel.

xxiv.        “Anticipatorily” invoking the Miranda-Edwards-Roberson right to counsel.

a.       Relying heavily on footnote 3, most lower courts have balked at the notion that Miranda-Edwards protections can be triggered anticipatorily.  But they have left open the possibility that a suspect might be able to invoke the Miranda-Edwards right to counsel if custodial interrogation is about to begin or is “imminent.”

xxv.          If a suspect has not requested a lawyer but, unbeknownst to him, somebody else has retained one for him, does the failure to inform the suspect that a lawyer is trying to see him vitiate the waiver of his Miranda rights?  If the police mislead the attorney about whether her client will be questioned or otherwise deceive an inquiring attorney, should the confession be excluded?

a.       Moran v. Burbine

1.      Facts:  While D was in custody, his sister, unbeknownst to him, retained counsel for him.  Atty called police station and was told that he wouldn’t be questioned until next day.  But interrogation by different police commenced later that evening.  (There was no collusion.)  D was properly Mirandized, signed waivers, and confessed. 

2.      ISSUE: Whether either the conduct of the police or respondent’s ignorance of the attorney’s efforts to reach him taints the validity of the waivers and therefore requires exclusion of the confessions.

3.      SC held his confession to be admissible.

4.      “Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.”

5.      Waiver must be knowing, intelligent, and voluntary.  The inquiry has two dimensions:

a.       Must be product of a free and deliberate choice rather than intimidation, coercion, or deception.

b.      Must be made with full awareness both of nature of right being abandoned and consequences of decision to abandon it.

6.      If you never asked for a lawyer, or knew that your sister had got a lawyer for you then you wouldn’t be worried that a lawyer isn’t showing up.

7.      But if you ask for a lawyer and he doesn’t show up, then it has an effect on you, because you are expecting a lawyer to show up. 

8.      Why should it turn on whether you have a relative who is alert enough to get you a lawyer?  What if a suspect waives his rights, but the rule is that a lawyer can cut off questioning?  This would be an arbitrary rule. 

9.      This is one of those few cases where the post Warren case said, “Miranda is not that bad,” it is not really an ultra liberal decision, it is balanced. 

10.  Professor: this is maintaining a balance, a compromise.

11.  Burbine-  In Illinois v Perkins, Marshall dissented, it is the government agent posing as a fellow prisoner, although Marshall dissented, Brennan did not.  The same type of argument can be made about Burbine.  Let’s assume it is not a violation of Miranda, you can still argue that deceiving a lawyer who is called by police should be serious enough to warrant examination.

12.  The court is not consistent.  What would happen if the police told a lawyer, “he was taken away to this police station and he is being driven to another police station 10 miles away.”

13.  Burbine—Stevens dissenting—footnote: in Escobedo he knew he had a lawyer and the police were preventing him from seeing his lawyer. 

14.  Stevens talks about incommunicado questioning, and this is a very bad word.  The implications of Stevens opinion are also stunning.  What does it mean to say that a lawyer can prevent a suspect from waiving his rights?  This would give a big advantage to organized crime.  Also a public defender could say, “I’m defending the rights of all the poor.”

xxvi.        When U.S. law enforcement officers subject non-American citizens abroad to custodial interrogation, must they “Mirandize” them?

a.       United States v. Bin Laden

1.      Would have been better for the interrogator to say nothing, than saying “if you were in America you would have a right to a lawyer, but you’re not in America.”

xxvii.      Use of a pretrial psychiatric examination at a capital sentencing proceeding.

a.       Estelle v. Smith

1.      Man was subjected to psychiatric evaluation before trial and wasn’t given any warnings that his statements during the evaluation could be used against him.

2.      State announced before trial that it would seek death penalty.  Judge ordered psychiatric examination of D, who was examined w/o his counsel’s permission and w/o being told he had right to remain silent.  Psychiatrist then testified not only to D’s capacity to stand trial, but also to his “future dangerousness,” a critical sentencing issue. 

3.      The Supreme Court held that both respondent’s Fifth and Sixth Amendment rights were violated by the use of the psychiatrist’s testimony during the penalty phase of the case.

4.      SC, per Burger, held that D’s 5th and 6th Am rights were violated.  “Just as the 5th Am prevents a criminal D from being made ‘the deluded instrument of his own conviction,’ it protects him as well from being made the ‘deluded instrument’ of his own conviction.”  Court was unanimous on the Massiah 6th Am issue, but Rehnquist dissented on 5th Am grounds.

xxviii.    Miranda and mentally retarded suspects: The Cloud-Shepherd-Barkoff-Shur study.

xxix.        Comparing and contrasting Miranda with (a) the prohibition against the use of involuntary or compelled statements and (b) the Fourth Amendment exclusionary rule.

a.       Withrow v. Williams

1.      Facts:  D not Mirandized; incriminating statements admitted in state court.  D turned to federal courts; district court held that his Miranda rights were violated

2.      ISSUE: Should the remedy of habeas corpus be routinely available for claimed violations of Miranda rights?

3.      Held that Stone does not extend to a state prisoner’s claim that his conviction rests on statements obtained in violation of Miranda.

4.      Stone v. Powell held that when a state has provided a full and fair chance to litigate a Fourth Amendment claim, federal habeas review is not available to a state prisoner claiming that his conviction rests on evidence obtained through an unconstitutional search or seizure.

xxx.          Other Miranda problems discussed elsewhere in the book.

d.      The Impact of Miranda in Practice

i.        It is clear and almost universally agreed that Miranda has not hurt law enforcement.  The question is why has it NOT hurt law enforcement and why the public thought it would.

ii.      Why-crime went way up—blamed on Miranda.

iii.    Also-prosecutors having to let people go who murdered people because police failed to give Miranda warnings.

iv.    The clearance rate of law enforcement dropped a lot.  Clearance rate is the number of cases that police think they have solved, versus the number of cases they have. 

v.      Conviction rates pre and post Miranda are the same. 

vi.    Why hasn’t Miranda had more of an adverse impact?   Now the question is reversed—what good is Miranda, people keep confessing.

vii.  Professor George Thomas on page 675—people want to tell their story.  Another argument is that they have implied waiver now, and once it is established that you understand the warnings, that it’s waiver (what you say after the warnings).

viii.The police have learned how to circumvent or undermine Miranda.

ix.    How to Get People to Confess in the Post-Miranda World: Have Modern Police Interrogators “Adapted” to Miranda or are They Violating It?

x.      Yale Kamisar-Killing Miranda in Baltimore: Reflections on David Simon’s Homicide

e.       Can (Did) Congress “Repeal” Miranda?

i.        §3501—Admissibility of Confessions

a.       What is the most important provision of this statute?  (§3501).  All these yack and then “…need not be conclusive on the issue of voluntariness.”

b.      Statute looks good at first blush, until you think about it.  This is all about what the judge should do when he decides what is permissible or not, but you don’t have to tell the suspect anything.

ii.      Dickerson v. United States

a.       Facts:  D arrested for bank robbery.  Trial court suppressed statement on grounds that he had not received Miranda warnings before interrogation.  4th Cir. rev’d, holding that Miranda is not a constitutional decision and, therefore, § 3501’s voluntariness test controls.  SC rev’d.

b.      Holding:  Miranda is a constitutional decision; therefore, that decision and its progeny, not § 3501, govern the admissibility of statements made during custodial interrogation in both state and federal court.

c.       Reasoning (Rehnquist):

1.      Miranda concluded that the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk to the 5th Am privilege against self-incrimination.  Miranda accordingly laid down “concrete constitutional guidelines.”

2.      Miranda is a constitutional decision.

a.       It applied to proceedings in state courts, and since our supervisory powers don’t reach the States, it could only reach them if constitutional.  Echoes Douglas’s dissent in Tucker and Stevens in Elstad.

3.      Language of Miranda itself indicates that majority thought it was announcing a const’l rule.

4.      Stare decisis.  Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”

d.      Why is this a short opinion?  It is a bad opinion. 

e.       Rhenquist had written Tucker—saying Miranda is not a constitutional decision.  Quarles—Rhenquist makes it clear again that Miranda is not a constitutional decision. 

f.       Then along comes Rhenquist and he delivers the opinion in Dickerson.

g.       First reason for why Miranda is constitutional: It is enforced in the state courts.  The only way it can tell a state what to do is if it is interpreting the constitution.

h.      If Miranda is a constitutional decision, why isn’t evidence derived from Miranda excluded, just like search and seizure evidence is excluded?  How does Rhenquist respond?  See 2nd paragraph on page 683.

i.        Why were there no concurring opinions?  Why didn’t Stevens say that this was a pretty begrudging opinion and we should address all those exceptions we have carved out of Miranda saying it isn’t a constitutional decision.  Those Tucker and Quarles conclusions will remain, DESPITE the fact that we are saying that Miranda is unconstitutional.  Stevens would open up all those decisions based on Miranda.  Opinion more powerful if it is united.

j.        Scalia dissenting:  Some of the things he says are right.  Professor doesn’t like that they use the words compel and coerce interchangeably. 

k.      [Coerce means voluntary test—but it takes much less to compel somebody than to coerce somebody.]

l.        Scalia kept saying that the court never said Miranda was constitutional, but the court did say that as far as the professor could tell. 

m.    If he already knows all of his rights, what is the harm in telling him?

n.      There wouldn’t be any interrogation if counsel was there, the police wouldn’t even bother.  It is true that some people know their rights. 

o.      Scalia is right half way down on page 686—make a good argument that Miranda is not constitutional. 

p.      Still much harder to administer the voluntariness test.  The fact that a decision is famous is a good reason of getting rid of it as it is of keeping it.  Last paragraph—this is like civil disobedience.  Why doesn’t Scalia have to respect a majority of the Supreme Court?

q.      If Miranda were ever to be abolished we would go back to the voluntariness test and in the last decade before Miranda the voluntariness test was clearly imposing more and more restrictions on the police. 

r.        If we abolished Miranda, the police would still give warnings, but there would be chaos.  Nobody would know what was going on.

iii.    Reconciling the prophylactic-rule cases with Miranda.

a.       K thinks all the cases that cut down Miranda are still good.  Rehnquist wrote the decision in order to contain the damage that Stevens might have done.  So the Court simply reaffirms Miranda compete with all of its limitations.

iv.    Foolish confessions.

v.      Why did Chief Justice Rehnquist come to the rescue of Miranda?

a.       The Supreme court decided many Miranda cases, and all those would be wasted if Miranda was overturned.  Rhenquist realized that it was a big plus, for various reasons, he wanted to take the opinion away from Stevens.  The whole “Miranda is pretty good, once we got through with it…”  why he upheld Miranda in Dickerson.

vi.    Does Dickerson leave Miranda incoherent?

a.       Cassell makes the argument that Miranda is common law until Congress filled the gap and reacted, and what Congress did should be upheld as long as it provides meaningful protection.   How could you make this claim when Congress’ return was to the same method which the Supreme Court overruled.

vii.  Is constitutional law filled with “prophylactic rules”?  On the other hand, as Justice Scalia defines “prophylactic rules,” is Miranda such a rule?

a.       A prophylactic rule is a rule designed to make a constitutional provision meaningful and more practical; it provides “breathing space.”

viii.“The advantage of reactivism.”

ix.    Why does the “right seek to do away with Miranda’s restrictions on police questioning? Why does the “left” or center seek to maintain them?  Does Dickerson represent an opportunity missed?

a.       Stuntz-693, Miranda does nothing to protect defendant against abusive pleas—anything that took Miranda’s place would be an improvement.  Say to Stuntz, what test may protect the suspect. 

b.      Stuntz also says that there is a sorting out, that the suspect decides for himself whether he wants to be questioned or not, and if the suspect is savvy or experienced, he will refuse to be questioned, it is self sorting.  Response: you make it sound like all the other tests were model tests, it is unfair to criticize Miranda when you don’t have anything better to replace it with.

x.      Is Congress still free to replace Miranda warnings with other procedures?  Is it likely to do so?

a.       Tape recorders, the Supreme court said that you would still have to give the warning for the right to remain silent, and for some reason the police complain more about the right for counsel than the right to remain silent.

xi.    Unrepentant dissenters.

D.     Miranda, the Privilege Against Compelled Self-Incrimination and Fourteenth Amendment Due Process: When Does a Violation of These Safeguards Occur?

1.      Chavez v. Martinez

a.       Case involves a§1983 suit arising out of Ben Chavez’s allegedly coercive interrogation of respondent Martinez.  Martinez had been shot and the police officer questioned him during the ride to the hospital.

b.      Court held that Chavez did not deprive Martinez of a constitutional right.  The court concluded that Martinez’s allegations fail to state a violation of his constitutional rights.

c.       Troubling exchange—this guy thinks he is dying and thinks he is talking to a doctor.  The police officer does not make it clear that he is not a doctor.  Assuming it were clear, it seems to me, that if a reasonable police officer would think he is a doctor, he has to clarify that quickly, otherwise it is a coerced confession.

d.      There is no majority of the opinion, Thomas is just announcing the judgment of the court.

e.       Professor doesn’t think the court held that Martinez was not deprived of a private constitutional right.

f.       Failure to give a Miranda warning is not a violation of Constitutional rights, if the statement was never used against the person who was the victim of the failure to comply with Miranda.

2.      There are 4 levels of violation:

a.       Failure to give Miranda warnings

b.      privilege against self incrimination

c.       coerced/involuntary

d.      torture/”shock the conscience”

3.      Once you say that the police violated the constitution, it doesn’t get any lower.  The shock the conscious wasn’t used until the stomach pumping case.  Once we tell you we’re not going to use anything against you, you have no privilege to rely on, and now if you don’t answer the question, we hold you in contempt, but this doesn’t explain everything.

4.      A mere failure to give the Miranda warnings is not a ground for a civil action.  You can’t say that Miranda was violated, you can just say that there was a failure to comply with Miranda rules.

5.      Professor a constitutional violation occurs once they do anything that makes a statement coerced (i.e. if a police officer puts a gun to somebody’s head and says answer.

6.      The recurring use of “prophylactic rule” terminology.

a.       Miranda was not called a prophylactic rule in Dickerson.  Now, incredibly, Rhenquist is joining Scalia and Thomas, even though they are paying no attention to his majority in Dickerson.

7.      The meaning of “criminal case.”

E.      The Patane and Seibert Cases: Is Physical Evidence or a “Second Confession” Derived From a Failure to Comply with the Miranda Rules Admissible?  The Court’s Answers Shed Light on Dickerson.

1.      Background

a.       Oregon v. Elstad

i.        Because a violation of Miranda is not a violation of a real constitutional right (but only a rule of evidence designed to implement the privilege against self-incrimination), it is not entitled to, or worthy of, the “fruit of the poisonous tree” doctrine.

ii.      Facts:  Cops went to 18-yr-old D’s home w/ arrest warrant.  Before telling him about warrant, they asked him if he was involved in burglary.  He said, “Yes, I was there.”  D was then taken to station and Mirandized.  He confessed.  State conceded that statement in house was in violation of Miranda but argued that taint had dissipated prior to written confession.  SC agreed.

iii.    Q:  Does an initial failure of law enforcement officers to administer Miranda warnings, without more, “taint” subsequent admissions made after a suspect has been fully advised of and has waived his Miranda rights?   Ct:  No.

iv.    Fruit of the poisonous tree doctrine doesn’t apply to Miranda. 

v.      Now we know that the court is reaffirming Elstad, but expanding this exception established by Elstad.

vi.    O’Connor is pretty much saying in Elstad that Miranda is not a constitutional rule.

2.      United States v. Patane

a.       Facts: Patane was arrested outside his home and handcuffed.  A federal agent began to administer the Miranda warnings, but Patane stated that he was aware of his rights.  No further Miranda warnings were given.  When the agent then questioned Patane about a gun, Patane revealed the location of the gun and was subsequently sentenced for parole violations.

b.      The court held that the gun was admissible and that the exclusionary rule doesn’t apply.

c.       Court reasoned that failure to give warnings does not, but itself, violate a suspect’s constitutional rights.

d.      The gun doesn’t involve self incrimination—this isn’t involving testimonial evidence.

e.       From 1964 on the privilege against self incrimination is the basis for the self incrimination rule, so why does Thomas concede that if you found the location of a gun as the result of coerced confession, the gun would have to be excluded, since the gun would be derived from this.  This is the most confused opinion the professor has ever read.

f.       Why downgrade Miranda?  If it is a constitutional right, is it a junior varsity constitutional right? 

g.       Souter writes a very good opinion.  First Kennedy—he says, that the central concerns are guilt or innocence, but why not say that about the privilege for self incrimination and coerced confessions generally?  Souter is right that the question is, are we going to provide an incentive for police to omit Miranda warnings, and that the 5th amendment privilege extends to this evidence.  5th Amendment has its own exclusionary rule, certainly how its been construed over the last 100 years.

3.      Does the word “witness” in the text of the Self-Incrimination clause prevent the exclusion of the piston in a case like Patane?

4.      Are some “voluntary” statements less voluntary than others?

5.      The clear implication of Miranda.

6.      Patane and Dickerson.

7.      What was the violation of the Miranda rules in the Patane case?

8.      Missouri v. Seibert

a.       This case tests a police protocol for custodial interrogation that calls for giving no warnings about the rights to silence and counsel until interrogation has produced a confession.  Since such a statement is normally inadmissible, the officer then proceeds to administer a Miranda warning, and then leads the suspect to cover the same ground again.

b.      Are these second statements admissible?

c.       Court: No, these second time around statements are not admissible.

d.      Court holds that a statement repeated after a warning in such circumstances is inadmissible.

e.       The midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda’s constitutional requirement.

f.       Instead of a second confession, we had a gun.  2nd confession makes a joke about Miranda, this case is such an obvious case, the cops did everything wrong.  Instead of the second statement, she tells them where the gun is.  No matter how deliberate and calculated and bad faith the acquisition of a second confession is, the gun would still come in, because the way Thomas wrote the opinion, the gun always comes in because physical evidence has nothing to do with the privilege against self incrimination insofar as it involved Miranda.  Gun wouldn’t come in if it was under the typical bounds of the Fifth Amendment, so this doesn’t make any sense.

g.       What Thomas is saying is—there are two categories of confessions, coerced and voluntary.  A confession obtained in violation of Miranda is still a voluntary confession, and so all physical evidence derived from a voluntary confession is admissible.  What is wrong with this analysis?  There are three categories of these cases voluntary, involuntary, and presumed involuntary. Thomas is saying we will classify presumed involuntary as voluntary—one category.  He says if it is presumed involuntary, then we will treat it as voluntary, that is the slip.  He should say that we treat presumed involuntary as involuntary.

h.      Seifert was worth almost nothing, 5th vote was Kennedy and it was a very weak vote, he considers Patane the main rule and Seifert a very weak exception.

i.        Prosecutor all we have to do is have a 2 hour intermission instead of 15 minutes.

9.      Suppose a defendant had shot someone with a Glock pistol and been arrested for murder.

10.  The Seibert case and the assertion of a right to counsel.

11.  If the suspect is unaware of the nature of the police conduct, is the deliberate and flagrant nature of the police action relevant?

12.  Is it permissible for a police officer to use a two-stage interrogation technique in which (a) he tells an unwarned custodial suspect to “just listen” while he relates the evidence against the suspect and (b) advises the suspect of his rights only after the suspect indicates he is ready to talk?

a.       Hairston v. United States

i.        Case where guy was shackled to the chair.

ii.      Court held that Hairston’s confession was admissible. Police can use two stage.  This is just an informal discussion between the cop and the subject.  Supplement page 124.

iii.    Whether the police officer engaged in interrogation, and apparently the court went along with the officer and said he didn’t interrogate, he just wanted the suspect to listen.

iv.    The cop is trying to persuade him that he is in bad shape and that he might as well cooperate.

v.      Professor thinks this is interrogation, but this isn’t 100% clear and professor is not 100% what the court would do.

F.      The “Due-Process”—“Voluntariness” Test Revisited

1.      Miller v. Fenton: What Kinds of Trickery or Deception, if any, May the Police Employ After a Suspect Has Waived His Rights?

a.       Miller v. Fenton

i.        Facts:  D, prime suspect in brutal murder case, signed Miranda card.  A 53-minute interrogation ensued, which the police taped.  (Thus a transcript was available to the court.)  One of the interrogators, Detective Boyce, was highly sympathetic, calling himself D’s brother, saying D had mental problems and needed help, appealing to D’s conscience, etc.  Boyce also lied about certain facts.  When D at last confessed, he collapsed in a state of shock and had to be taken to the hospital.

ii.      Court held that under the totality of the circumstances of this case, the confession was voluntarily given.

iii.    Is there something remarkable about this case?  The most remarkable feature about this case, is that there is a tape recording in this case and they still can’t agree what happened.  If we can’t agree with the tape recording, then what can we say about the voluntariness test.

iv.    Also, how can the majority write this opinion and never mention that the guy collapsed.  Did the detective promise him that he wouldn’t be prosecuted if he cooperated?  It is not clear, although he says, “you are not a criminal, you are not a criminal.” Page 721.

v.      The majority makes a big deal out of that statement.

vi.    Imagine this, are you in the proper mood or distinction to be making these decisions, probably not.  The suspect is scared.

vii.  Does Miranda disappear once the guy waives his rights, or does it still have an impact over what the police can or can’t do?  You don’t return to the pre Miranda voluntariness rights when Miranda is waived.  See Welsh White page 716.

viii.When an interrogator pretends to be a brother or a friend, that is inconsistent with one of the assumptions of the Miranda case, that the police and the suspect have adversary roles.  If the police officer pretends to be a brother or friend, then he softens the Miranda warnings.  You can’t go back to the old days and the usage of the police tricks in play before Miranda.

ix.    This subjective line—(two years in high school, etc.) is reminiscent of Betts v. Brady.

x.      Is it clear that if you flatly say “you will not be prosecuted” then the confession can’t be used

b.      Should “police trickery” in obtaining confessions be barred?  What is “trickery” in the confession context?

i.        The term trickery, when used in the confessions context, should be defined as police elicitation of a confession by deliberate distortion of material fact, by failure to disclose to the defendant a material fact, or by playing on a defendant’s emotions or scruples.

c.       The relationship between Miller and Det. Boyce.

d.      Drawing the line between expressions of sympathy and implied promises of leniency.

e.       Some courts take the position that a promise not to prosecute makes the resulting confession inadmissible, but other strongly resist “freeing a murderer” because of a promise not to prosecute.

i.        United States v. LeBrun

a.       Court upheld a confession where the interrogators promised the suspect immunity from prosecution if he cooperated.

b.      There is one case which says differently, LeBrun.  LeBrun—this is a flat promise.  The district court said it was involuntary, but they are overruled. 

c.       What about the argument that trickery should be viewed as a type of fraud and it should be prohibited?  (Stanford law review note).

d.      Some courts simply cannot free a murderer.  LeBrun case.

ii.      How should the law respond to empirical data indicating that the interrogation tactics of threatening harsh punishment if the suspect does not confess and /or significant leniency if he does are likely to induce false confessions?

iii.    Distinguishing among different kinds of trickery.

iv.    More on false verbal assertions by the police vs. the fabrication of scientific evidence.

v.      Offering to protect a prisoner from physical harm at the hands of other inmates.

a.       Arizona v. Fulminante

1.      Facts:  After D’s stepdaughter was murdered, he was convicted of an unrelated federal offense and incarcerated.  A paid FBI informant befriended him and eventually elicited a confession after he said that he would protect D from his fellow inmates if D told him about murder.  AZ SC threw it out.  US SC aff’d.

2.      Reasoning (White):  Totality of the circumstances test.  AZ SC found a “credible threat of violence” resulting in “extreme coercion.”  “[A] finding of coercion need not depend on actual violence by a gov’t agent; a credible threat is sufficient.”

3.      Court also abandoned the “rule of automatic reversal,” which had held that no conviction based in any part on a coerced confession could stand.  Court now performs case-by-case inquiry.

4.      Case where an FBI agent acting as a prisoner offered to protect suspect from harm in prison if he confessed.  The court held this was coerced.

5.      Rule up until this case, any conviction where the trial judge had erroneously admitted a confession that was reversed on appeal, the case was overturned.  This was the automatic reversal rule.

6.      In order to overturn the automatic reversal, you have to have a case involving coerced confessions.

f.       Colorado v. Connelly: Did the Court Decline to Expand the “Voluntariess” Test or Did it Revise the Test Significantly?

i.        Colorado v. Connelly       

a.       Facts:  D flew from Boston to Denver, approached a uniformed police officer, and, w/o any prompting, said he’d killed someone and wanted to talk about it.  He was repeatedly Mirandized and fully confessed to murdering a young girl in Denver 9 months earlier.  D was found competent only after 6 months of drug and psychiatric therapy.  Psychiatrist testified that his statements were the result of a mental disorder; the “voice of God” told him to confess.  Psych. believed D was unable to make a free and intelligent waiver of his rights.  Trial court suppressed; US SC rev’d.

b.      Reasoning (Rehnquist):

1.      Coercive police activity is a necessary predicate to finding that a confession isn’t voluntary under DPC.  Absent police conduct causally related to the confession, there is not basis for concluding that any state actor deprived D of due process.

2.      Prior cases all involved police overreaching.  See, e.g., Townsend v. Sain (suppressing confession of D who, because he was suffering from severe heroin withdrawal symptoms, was injected by a police doctor with a drug that had the properties of a “truth serum”; doctor and police interrogators didn’t know about these properties, but Rehnquist nonetheless characterizes it as a case of “police wrongdoing.”)

3.      Purpose of suppression is deterrence, which wouldn’t be served here.

c.       There is another reason to throw out confessions, it is to show that we don’t like what the cops did.  We don’t care whether it is corroborated by evidence, but now Rhenquist says that is the only reason we throw out evidence.

d.      But that aside, as an original proposition, is it a good rule to say that if the police were not responsible, the confession ought to come in?