Criminal Procedure I: Kamisar Outline 2


Professor Kamisar—Fall 2000



“We can’t trust the prosecutors or the police or anyone else.  That’s why we have the Bill of Rights.”           - Yale Kamisar                                   


         A.  General Reflections on the Criminal Process

               1.   Stuntz, “The Uneasy Relationship Between Crim Pro and Crim Justice” (108)

                     a.   Crim justice system is dominated by trio of forces:  crime rates, definition of crime, and funding decisions.  But that law that defines what the criminal process looks like and what D’s rights are is made by judges and Justices who have little info about crime rates and funding decisions, and whose incentives to take account of those factors may be perverse.

b.      Courts, thinking its administration is cheap, have expanded crim pro and done a lot of regulating.  Legislative response = underfunding and overcriminalization

c.       Constitutionalization of crim pro.  Crim pro = judicial policy preferences with a thin legal veneer. 

d.      Maybe it should be scaled back.  “Defendants’ interests might best be protected by less procedure, coupled with a much more activist judicial posture toward funding, the definition of crime, and sentencing.”  What good is Gideon when prosecutors are so backed up? 

2.   Skolnick and Fyfe, “Above the Law:  Police and the Excessive Use of Force”  (114)

a.       “The view of police officers is as soldiers engaged in a war on crime not only diverts attention from more effective strategies for crime control but also is a major cause of police violence and the violation of citizens’ rights.”  War model. 

b.      Low visibility decisions:  “Every day, out of their supervisors’ sight, police officers at the lowest levels of their departments make what law scholar Joseph Goldstein called ‘low visibility decisions’ that have great effects on the lives and liberties of individual members of the public.”  No opportunity to review them.  The lower in the police department you go, the greater the discretion of the official.

c.       “[The] widespread belief that the Supreme Court’s best-known decisions on search, seizure, and interrogation somehow have handicuffed the police or otherwise have made citizens less safe is not supported by any objective evidence.” 

               3.   Maclin, “Black and Blue Encounters” (117)

a.       “[T]he dynamics surrounding an encounter between a police officer and a black male are quite different from those that surround an encounter between an officer and the so-called average, reasonable person…  Black males learn at an early age that confrontations with the police should be avoided.”  Fear of possible violence or humiliation; distrust. 

b.      “Currently, the Court assesses the coercive nature of a police encounter by considering the totality of the circumstances surrounding the confrontation.  All I want the Court to do is to consider the role race might play, along with the other factors it considers, when judging the constitutionality of the encounter.”

c.       Kamisar (K) thinks its also a matter of class. 

               4.   Why have matters involving police and prosecutors become such a matter of judicial concern in this country? 

a.       Constitution/Bill of Rights and an independent judiciary.

b.      Death penalty.

c.       Police abuses. 

d.      Failure of legislature to do anything.

e.       Miranda.

         B.  Relevant Constitutional Provisions

1.   Fourth Amendment:  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath of affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

2.   Fifth Amendment:  No person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law…

3.   Sixth Amendment:  In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence. 



         A.  The Exclusionary Rule

               1.   Weeks v. U.S. (1914) (handout)

a.       Facts:  D was arrested for selling lottery coupons after federal marshals illegally searched his house and seized letters to use as evidence against him. 

b.      Held:  Evidence illegally obtained by federal officers must be excluded in fed ct. 

c.       Cited Boyd and Bram.  Man’s home is his castle; indefeasible right of personal security, personal liberty, and private property.  4th Amendment.  Violation of constitutional rights; letters should’ve been restored to accused. 

2.   Wolf v. Colorado (1949) (122)

a.       Q:  Does a conviction by a State court for a State offense deny due process under the 14th Amendment where evidence was admitted at trial that was obtained under circumstances that would’ve rendered it inadmissible for a federal offense in federal court under Weeks? 

b.      Answer (per Frankfurter):  A State allowing police incursion into privacy runs counter to 14th Amendment, but the Constitution doesn’t mandate that the evidence be excluded.  In other words, the DPC does not require the states to exclude evidence obtained in violation of the 4th Amendment.  Frankfurter drove a wedge between the exclusionary rule (ER) and the 4th Am by focusing on remedy. 

c.       Not harmful unless guilty. 

d.      State can come up with methods for enforcing DPC. 

e.       Murphy’s dissent suggests possibility of tort action as remedy.  But probably wouldn’t be effective. 

3.   Rochin v. California (1952) (40)

a.       Cops forced way into room, D swallowed capsules; dr. pumped his stomach. 

b.      Court (per Frankfurter):  Police conduct violated the 14th Amendment.  “This is conduct that shocks the conscience…  They are methods too close to the rack and the screw…”  Just as coerced confessions “offend the community’s sense of fair play and decency,” to admit this evidence “would be to afford brutality the cloak of law.” 

c.       K points out that Frankfurter avoided the constitutional question in Wolf. 

d.      Irvine v. Calif. (1954) (42) limited Rochin to situations involving coercion, violence or brutality to the person.  Facts:  Cops miked guy’s home for over a month.  Ct recognized deliberate violation of 4th Am, but still adhered to Wolf.  See also Schmerber infra (upholding the taking of blood sample from drunk driver). 

4.   Mapp v. Ohio (1961) (124)

a.       Cardozo’s famous quote:  “The criminal is to go free because the constable has blundered.” 

b.      Facts:  Cops showed up at M’s home and demanded entry.  M called atty, refused to let them in.  Cops later forcibly entered; atty arrived, buy cops wouldn’t let him see M or enter house.  Showed fake warrant.  Continued search, found obscene materials. 

c.       Court overturned Wolf.  “We hold that all evidence obtained by searches and seizures in violation of the Constitution is… inadmissible in a state court.”  Applied 4th Am against the States. 

d.      Court’s reasoning:

          i.   Ct says that the exclusion doctrine is an essential part of the right to privacy.  Purpose of ER is deterrence.  But K:  Deterrence wasn’t mentioned in Weeks.

         ii.   More than half of the states have adopted Weeks.

        iii.   Without ER, right is preserved, but enjoyment of it is prevented; unprotected. 

5.   U.S. v. Leon (1984) (129)

a.       Q:  Should the ER apply to evidence obtained under a search warrant obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupportable by probable cause?  In other words, should there be a good faith exception to the ER? 

b.      Court (per White):  Yes. 

c.       Reasoning

          i.   ER designed to safeguard 4th Am through its deterrent effect, rather than a personal constitutional right of the aggrieved.

         ii.   Substantial social costs—ER has to pay its way.  “Particularly when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty Ds offends basic concepts of the criminal justice system.”  May generate disrespect for the law. 

        iii.   We have limited the rule in a number of ways.

a.       Stone v. Powell (1976) held it doesn’t apply in habeas cases.

b.      U.S. v. Calandra (1974) held it doesn’t apply to evidence used for questions before a grand jury.  Ct in Calandra reasoned that extending ER to grand jury proceedings adds little or nothing to ER’s deterrent effect upon police conduct. 

c.       U.S. v. Janis (1976) held that ER doesn’t apply in federal civil suits.  Ct said deterrent effect in these cases is speculative and doesn’t justify the loss of probative evidence.  Dissent said disincentive is wiped out; cops can just turn evidence over to IRS. 

d.      Alderman v. U.S. (1969):  ER doesn’t apply to coconspirators.

e.       INS v. Lopez -Mendoza: ER doesn’t apply in deportation cases. 

f.       Rakas v. Illinois:  Standing to invoke the rule only where prosecution seeks to introduce the fruits of an illegal search or seizure against the victim of police misconduct.

g.      Walder v. United States:  Can still use to impeach. 

                          iv.   We consider the assertion that police will go “magistrate shopping” too speculative. 

               v.   The officer’s reliance on the warrant must be “objectively reasonable.” 

a.       Test:  “whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization.”  Consider all circumstances, including whether warrant application had previously been rejected by another magistrate.  

b.      Neither the officer nor the magistrate can rely on highly dubious affidavits; nor can warrant be facially deficient in failing to specify place or thing to be searched. 

              vi.   Excluding evidence seized pursuant to a good-faith warrant will not have a significant deterrent effect.  Doesn’t affect judges and magistrates.

             vii.   “[S]uppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” 

            viii.   “In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” 

      d.   Dissent (Brennan and Marshall):  It’s the 4th Amendment itself, not the ER’s possible deterrent effect, that mandates exclusion.  Constitutional command, not judicial remedy.  Costs overestimated.  Good faith exception puts a premium on police ignorance of the law.  When you criticize the ER, you criticize the 4th Am itself. 

      e.   Stevens’ Dissent:  Court killed one bird with two stones.

                i.   Old probable cause standard: 

                     (1)  Did the police have first-hand information? 

                     (2)  Was the informant credible?

               ii.   Illinois v. Gates (see infra) greatly simplified PC.  Court should have remanded Leon in light of Gates rather than reaching further out and carving good faith exception. 

      f.    Leon has generally been read as limited to search warrants, but K thinks language in the opinion suggests that it may not be so limited. 

6.   Proposed Alternatives to the Exclusionary Rule:

a.       Tort remedy.  Won’t work b/c it focuses on the last officer in the chain.   ER rests on the whole system, looks at police as an institution. 

b.      Wigmore:  Hold police in contempt of court.  K says this would be even more costly, b/c police wouldn’t conduct searches at all.  K points out that Orfield (140) has shown that police actually do care when evidence gets thrown out.  O says ER leads to greater police professionalism and observance of 4th Am.   

c.       Kaplan (143):  Exempt certain crimes (treason, espionage, murder, etc.) from ER and just apply the Rochin standard to them.  But K says the police take the ER most seriously in the most serious cases, so ER would be exempted where it least comes up.  And list of serious crimes would just keep growing. 

d.      Kaplan proposal #2:  ER inapplicable where police dept has taken seriously its responsibility by publishing regulations, etc. 

e.       ER applicable only where the reprehensibility of the police misconduct is greater than the gravity of D’s offense. 

7.   The Reach of Leon

      a.   Massachusetts v. Sheppard (1984) (142) (companion case to Leon)

                i.   Detective could only find the drug search form on a Sunday and went to judge to get warrant for different type of search.  Judge authorized search and tried to make necessary changes, but didn’t do it right. 

               ii.   Ct:  This falls within Leon; evidence should not be excluded.

      b.   Michigan v. DeFillippo (1979) (144) held that ER req’d suppression of evidence obtained in a search carried out pursuant to a statute subsequently held unconstitutional when the statute, by its own terms, authorized searches under circumstances that didn’t satisfy the traditional warrant and PC req’ts of 4th Am. 

      c.   Illinois v. Krull (1987) (144):  Contrary to the holding in DeFillippo, Ct held that Leon applies where officer acts in objectively reasonable reliance on a statute.  “Unless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law.”  In dissent, O’Connor emphasized that it can take years for a statute to be deemed unconstitutional, and in the meantime many people could be illegally searched and set to jail.  

      d.   U.S. v. Caceres (1979) (146):  Failure of an IRS agent to follow IRS electronic surveillance regulations did not require suppression. 

8.   The Dimensions of the Exclusionary Rule

a.       Evidence used as basis for questions to grand jury witness.  See Calandra, supra p. 3. 

b.      Evidence used in criminal case after conviction. 

          i.   Verdugo v. U.S. (9th Cir. 1968) (147) held that illegally obtained evidence is not admissible after conviction for consideration by the judge in determining the sentence to be imposed.  But U.S. v. Schipani (E.D.N.Y. 1970) distinguished Verdugo and admitted evidence after concluding that “no appreciable increment in deterrence would result from applying a second exclusion at sentencing.” 

         ii.   Penn. Bd of Probation & Parole v. Scott (1998) (147):  ER doesn’t apply to state parole proceedings.  Citing Janis, Calandra, and Lopez-Mendoza, Ct declined to extend ER “beyond the criminal trial context.”  Minimal deterrence benefits.  Souter, writing for dissenters, said police often know a guy’s parole status when they go after him, and they could be deterred. 

c.       Evidence used in “quasi-criminal” or civil case.

          i.   One 1958 Plymouth Sedan v. Penn. (1965) (148):  ER applies to forfeiture proceeding. 

         ii.   U.S. v. Janis (1976) (148) (see p. 3 supra):  Rev’d Plymouth Sedan; held that the deterrent effect in civil cases is highly attenuated b/c it “falls outside the offending officer’s zone of primary interest.”  It was enough that evidence was thrown out in criminal gambling proceeding; we don’t need to throw it out in tax proceeding.  But K says police and feds work together.  Diminishes deterrence. 

        iii.   See also INS v. Lopez-Mendoza (supra p. 3) (holding that ER is inapplicable in a civil deportation hearing). 

d.      Evidence obtained by private persons and used in criminal proceedings.

          i.   Burdeau v. McDowell (1921) (149)

a.       ER is a restraint on public authority, not private persons. 

b.      But 4th Am does apply to private individuals who are acting as instruments or agents of the gov’t.  Whether a person is a gov’t agent is determined by a totality-of-the-circumstances test, which considers the actor’s motive; compensation; advice, direction, and level of participation by gov’t. 

               ii.   U.S. v. Jacobsen (1984) (150, 169):  If private citizen opens packages and calls federal agent, then the agent’s actions are okay as long as they are not a “significant expansion” of the private search.  On the spot chemical test of trace of powder is not a search because it only reveals whether or not it was cocaine. 

e.       Evidence obtained by virtue of conduct of nonpolice gov’t employee, used in criminal proceedings. 

          i.   Arizona v. Evans (1995) (150) 

a.       Some gov’t searches covered by 4th Am are nonetheless inappropriate occasions for use of ER in light of kind of gov’t official who was at fault. 

b.      Facts:  Clerical failure to void a warrant for traffic violations resulted in erroneous arrest.  Subsequent to that arrest, marijuana was found. 

c.       Ct:  No deterrent effect for clerical errors.  Ct employees have no stake in outcome of particular criminal prosecutions.  Evidence is admissible. 

               ii.   New Jersey v. T.L.O. (1985) (152, 341):  4th Am is applicable to the activities of civil as well as criminal state authorities (here, school administrator).  But Ct didn’t say whether ER is applicable to searches by school authorities. 

f.       Evidence obtained by foreign authorities, used in domestic criminal proceedings.

          i.   U.S. v. Verdugo-Uriquidez (1990) (152):  Foreign citizens and residents are not included in “the people” covered by the 4th Am.  Thus, even when U.S. authorities are involved in foreign search, ER doesn’t apply.  Court left open the question whether illegal aliens are such persons. 

9.   Other Remedies

a.       The “constitutional tort” by state officers.

          i.   Monroe v. Pape (1961) (153)—can bring § 1983 action.

         ii.   Harlowe v. Fitzgerald (1982) (153):  Notwithstanding the magistrate’s issueance of the warrant, the question is whether a reasonably well-trained officer in petitioner’s position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.  Objective standard.  See also Malley v. Briggs (1986) (153). 

        iii.   Monell (154):  Municipality can also be liable.

b.      The “constitutional tort by federal officers.

          i.   Bivens v. Six Unknown Named Agents (1971) (154):  p can sue federal agents for violating 4th Am.  Note that this isn’t a § 1983 action, b/c that statute covers actions “under cover of state law.” 

         ii.   Congress acted in accordance with Court’s holding by passing the Federal Tort Claims Act in 1974. 

c.       Dismissal of criminal charges.

          i.   Frisbie-Ker Rule (155):  It is no defense to a state or federal criminal prosecution that D was illegally arrested or forcibly brought within the jurisdiction of the court. 

         ii.   Crews (155, 790):  D “is not himself a suppressible ‘fruit.’” 

d.      Self-help:  Most jurisdictions provide no justification for forceful resistance to an unlawful arrest by a known officer.


               1.   Katz v. United States (1967) (155)

a.       Facts:  D convicted of transmitting wagering information based on evidence obtained by wiretapping public telephone booth. 

b.      Q:  Can the police wiretap a public phone booth without a warrant?  Ct:  No.

c.       Prior to Katz, did the 4th Am apply to the seizure of words?

          i.   Yes and no.  Compare Olmstead (words admissible where no physical trespass and no seizure of material object) with Silverman (conversation thrown out; whether words can be seized doesn’t matter, because you illegally got to the conversation by trespassing). 

d.      Court’s reasoning (Stewart):

          i.   “[T]he Fourth Amendment protects people, not places.  What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection…  But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” 

         ii.   D sought to exclude the uninvited ear.  He didn’t shed the right to do so simply b/c he made his calls from a place where he might be seen. 

        iii.   Gov’t:  No physical penetration of booth.  Ct:  Olmstead no longer controlling.  Police action violated the privacy on which D “justifiably relied,” constituting a “search and seizure.”  Penetration irrelevant.

        iv.   Magistrate could’ve found probable cause.  Should’ve gotten a warrant. 

         v.   “Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.” 

e.       K:  Katz was hailed as a great triumph for civil libertarians, but it’s actually very disappointing.  Harlan’s concurrence becomes the dominant opinion. 

          i.   Two-fold requirement:

a.       Person mush have exhibited an actual (subjective) expectation of privacy.

b.      The expectation must be one that society is prepared to recognize as reasonable.

      f.    Black’s dissent:  Wiretapping is like eavesdropping.  Framers knew of eavesdropping; if they wanted to outlaw it, they could’ve done so. 

2.   Privacy is not the only interest protected by the 4th Amendment.  It also protects property and liberty interests.

a.       U.S. v. Place (1983) (159, 331):  Detention of traveler’s luggage 90 minutes was an unreasonable seizure because it constituted a deprivation of (i) D’s possessory interest in his luggage and (ii) his liberty interest in proceeding with his itinerary.  But canine sniff is not a search (168). 

b.      Soldad v. Cook County (1992) (159):  Seizure of trailer home is subject to Fourth Amendment even though no search within the meaning of the 4th Am had taken place.

3.   California v. Greenwood (1988) (159)

a.       Cops got warrants based on evidence obtained from Ds’ trash.  State court threw dismissed charges on basis of Krivda, a CA case that held warrantless trash searches violate 4th Am and CA Const.  App. ct. aff’d on 4th Am grounds.  US SC rev’d.

b.      Ct’s reasoning (White):

          i.   Ds must manifest a subjective expectation of privacy in their garbage that society accepts as objectively reasonable. 

         ii.   Fact that Ds exposed their garbage to the public sufficiently defeats their claim to 4th Am protection.  They made it readily accessible to snoops, etc., and they had the express purpose of conveying it to a third party. 

        iii.   “[P]olice cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public.” 

        iv.   Smith v. Maryland (1979):  Pen register case.  Individual has no legitimate expectation of privacy in the numbers dialed on telephone, because he voluntarily conveys those numbers to the telephone company.

         v.   Calif. v. Ciraolo (1986):  Police don’t need warrant to conduct surveillance of fenced backyard from a private plane flying at an altitude of 1,000 feet. 

c.       Brennan’s Dissent:  Ds didn’t expose everything to the public—just exterior of opaque, sealed containers.  Cops can go to dump and search through garbage. 

4.   Additional Cases and Contexts

a.       U.S. v. Scott (1st Cir. 1992) (163)

          i.   Don’t need warrant to seize evidence even where D has resorted to rather extraordinary means to ensure that incriminating character is not perceived by others.

         ii.   Facts:  IRS agents painstakingly reassembled documents that D shredded into 5/32-inch strips before putting in garbage later placed outside his curtilage.

b.      Oliver v. U.S. (1984) (164)

          i.   Open fields doctrine from Hester (1924) remains intact after Katz.  Police entry and examination of a field is free of any 4th Am. restraints.

         ii.   Ct: 

a.       It is not generally true that fences or no trespassing signs effectively bar the public from viewing open fields in rural areas.  No an expectation that society recognizes as reasonable. 

b.      Distinguished open fields from curtilage, the land immediately surrounding and associated with the home.  Curtilage is the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life; considered part of home itself for 4th Am purposes. 

      c.   Florida v. Riley (1989) (165) 

                i.   Helicopter hovering at 400 ft and spying on greenhouse does not constitute a search requiring a warrant under the 4th Amendment. 

               ii.   Ct (White):  We would have a different case if flying at that altitude were contrary to law or regulation.  But anyone could’ve done this; nothing in record suggests that helicopters flying at 400 ft are sufficiently rare to justify R’s claimed privacy expectation.

              iii.   O’Connor’s concurrence:  R’s expectation that his curtilage was protected from naked eye aerial observation from that altitude was not reasonable. 

              iv.   Dissent (Brennan):  Ct ignores the very essence of Katz.

      d.   Other Premises

                i.   Business and commercial premises are covered by 4th Am.  See See v. City of Seattle (1967) (167)

               ii.   Private areas in public places.  State v. Bryant (Minn. 1970) (167):  Police officer’s conduct constituted a search when he looked down into an individual closed stall from an overhead vent above a restroom. 

              iii.   Detention facilities.  Hudson v. Palmer (1984) (167):  prison cell not protected. 

      e.   Vehicles

                i.   Cardwell v. Lewis (1974) (168):  No search where police took paint sample off car in public parking lot and matched the tire tread with tracks at a crime scene. 

               ii.   New York v. Class (1986) (168):  Officer reached into car and moved papers that were obscuring the Vehicle Identification Number; federal law requires that VIN be placed in plain view of someone outside the vehicle.  Ct said there was no reasonable expectation of privacy in the VIN, and mere viewing of the VIN was not a search.  But because a car’s interior is subject to 4th Am. protection, the officer’s reaching into the car was a search (albeit a reasonable one). 

      f.    Effects.  Bond v. U.S. (2000) (Supp 15):  During lawful stop of Greyhound bus, feds squeezed soft luggage, found brick of methamphetamine.  Court (per Rehnquist) said that traveler’s personal luggage is clearly an “effect” protect by 4th Am; passenger may expect that carry-on luggage in overhead bin may be handled by other passengers or bus employees, but he doesn’t expect it to be felt in an exploratory manner.  Agent’s physical manipulation of bag violated 4th Am. 

      g.   Enhancing the Senses

                i.   It’s generally not a search for an officer, lawfully present at a certain place, to detect something by one of his or her natural senses.  See U.S. v. Mankani (2d Cir. 1984) (168) (no search where conversations in adjoining motel room were overheard by naked human ear).  Compare Raettig v. State (Fla.App.1981) (168 n.f) (use of flashlight to look into camper through half-inch wide crack is a search); State v. Ward (Hawaii 1980) (use of binoculars to look into 7th story apt from 1/8th mile away is a search). 

               ii.   Canine nose.  See U.S. v. Place (supra p. 7):  Not a search, b/c it doesn’t require opening the luggage.  Less intrusive than ordinary search, and info obtained is limited.  Canine sniff is sui generis because of these limitations.  K says the better explanation is that it only detects the presence of contraband.

              iii.   Weapons detector?

              iv.   Electronic tracking. 

a.       U.S. v. Knotts (1983) (170):  Electronic tracking device (beeper) does not constitute a search if the tracking could have been achieved by conventional means.  Rehnquist says the 4th Am allows cops to augment their senses.  K says this is wrong; 4th Am isn’t frozen in time.

b.      U.S. v. Karo (1984) (171):  Monitoring of a beeper falls within the ambit of the 4th Am when it reveals information that could not have been obtained through visual surveillance. 

               v.   Photographic magnification.  Dow Chemical Co. v. U.S. (1983) (172):  Aerial photography is not a search.  Industrial plant complex is not analogous to the curtilage of a dwelling.

              vi.   Thermal imaging.  U.S. v. Cusumano (10th Cir. 1995):  Followed Katz, rather than Greenwood and Place, in looking at the object of the gov’t’s efforts, not the phenomona measured by the tools.  “The pertinent inquiry is not, therefore, whether the Ds retain an expectation of privacy in the ‘waste heat’ radiated from their home but, rather, whether they possess an expectation of privacy in the heat signatures of the activities, intimate or otherwise, that they pursue within their home.”  Heat imaging is a search.

             vii.   Gas chromatography?

5.   “Mere Evidence Rule” Repudiated.  Gouled v. U.S. (1921) (174) held that search warrants may not be used as a means of gaining access to a man’s house solely for purpose of making search to secure evidence; must have a primary right to the property to be seized.  But Warden v. Hayden repudiated this rule, saying that search simply requires probable cause.

6.   Andresen v. Maryland (1976) (174)

a.       Does the warranted seizure of D’s documents from within his law office and corporate office violate the 5th Am’s guarantee against self-incrimination?  Ct:  No. 

b.      Ct:  D wasn’t asked to do or to say anything.  There is no special sanctity in papers as distinguished from other forms of evidence. 

7.   Zurcher v. Stanford Daily (1978) (177)

a.       Facts:  Police were injured by demonstrators in a protest.  Daily ran photos from a vantage point where assailants might also have been photographed.  Police obtained warrant and searched the Daily’s photo labs and filing cabinets for pictures of assailants.  Dist ct held that (1) 4th Am bars issuance of warrant to search for materials in possession of one not suspected of a crime except upon a showing of probable cause that a subpoena duces tecum would be impracticable; (2) 1st Amend bars search of newspaper officers without strong need.  SC rev’d.

b.      The premises of one not suspected of a crime can be searched.  Warrants can be issued for any property. 

c.       Const. guarantees no special protection for press from searches beyond stringencies of warrant process.  A higher probable cause does not apply where 1st Am interests are involved.  See New York v. P.J. Video (1986) (182).  

d.      Note that a number of states recognize a journalist’s privilege. 

e.       Compare O’Connor v. Johnson (Minn. 1979) (181):  Need subpoena duces tecum to search law office for client’s business records.  Warrant cannot adequately safeguard the atty-client privilege. 


               1.   Spinelli v. U.S. (1969) (183)

a.       D convicted of crossing state lines with intention of conducting gambling activities.  D challenged constitutionality of warrant, claiming that FBI affidavit did not establish sufficient probable cause (PC).  Ct:  Informant’s tip was not sufficient to provide basis for a finding of PC.

b.      Reasoning

          i.   Aguilar v. Texas (1964):  Search warrant insufficient where officers swore only that they had received reliable information from a credible person.  Application didn’t set forth any underlying circumstances on which magistrate could independently judge validity of informant’s conclusion, and officers didn’t attempt to support the credibility or reliability of informant.

         ii.   Here, affidavit contained more info:  officers tracked D’s movement; D was a known bookie; “confidential, reliable informant.”  Other info seemed largely innocent, so it came down to informant. 

        iii.   Magistrate should ask:  “Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar’s tests without independent corroboration?”

        iv.   Not sufficient underlying circumstances; need more detail.  Draper v. U.S. (1959) provides good benchmark, because there the informant provided more detailed info, and because independent police work corroborated much more than one small detail that had been provided by the informant.   

2.   Illinois v. Gates (1983) (186)

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.      Q:  Do these facts constitute PC?  Ct:  Yes. 

c.       Illinois Supreme Court, in holding that warrant lacked PC, derived a two-prong test from Spinelli:

          i.   Tip must adequately reveal the informant’s basis of knowledge.

         ii.   Tip must provide facts sufficient to establish its veracity.

a.       Credibility of informant.

b.      Reliability of information.

d.      Reasoning (per Rehnquist)

          i.   Letter alone wasn’t enough.  No indication of how info was obtained, and no testament to author’s credibility. 

         ii.   Spinelli provides common sense guidelines, not rigid rules, for determining when there is PC. 

        iii.   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.

        iv.   We don’t want to encourage police to conduct warrantless searches. 

         v.   Magistrate should make a practical, common-sense decision whether, given all the circumstances set for in the affidavit, including the veracity and basis of knowledge of persons supplying the hearsay info, there is a fair probability that contraband will be found.  Reviewing court should simply determine whether there was a substantial basis for magistrate’s finding of PC.

        vi.   Corroboration of details helps.

       vii.   n.13, 193:  Probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.”  

e.       K: 

    i.   Cops acted too quickly; got warrant when Ds left Palm Beach w/o waiting to see if they were going to drive all the way, non-stop, to Chicago.  As Stevens points out in dissent, there were discrepancies in tip. 

   ii.   Do we need a good faith exception on top of this?  Ct hasn’t really addressed how Gates and Leon interrelate. 

  iii.   We don’t know whether this case is limited to search warrants or not. 

               3.   Additional Cases

a.       Massachusetts v. Upton (1984) (200)

          i.   Warrant issued for search of motor home on basis of tip.  Informant called anonymously, but cop knew who she was and knew that she had personal knowledge of D.  Cop verified that motor home was parked where informant said. 

         ii.   Ct:  In light of Gates, there is a substantial basis for believing that magistrate found fair probability that contraband would be found in motor home. 

b.      Note that the probable cause standard can be somewhat different for searches than for arrests, b/c evidence for searches can quickly become too stale to constitute PC.  See, e.g., U.S. v. Steeves (8th Cir. 1975) (holding that warrant was good for some items but not for others where robbery occurred three months earlier; “a highly incriminating or consumable item of personal property is less likely to remain in one place as long as an item of property which is not consumable or which is innocuous”). 

c.       State v. Thomas (W.Va. 1992) upheld two search warrants issued for two separate people who were suspected of the same rape. 

d.      Split of authority on whether everything supporting warrant must be in affidavit and/or whether the sufficiency of PC can later be established by statements from the officer(s) or judge as to other information known at the time but not stated in the affidavit.  Compare U.S. v. Clyburn (4th Cir. 1994) (holding that magistrates can consider sworn, unrecorded oral testimony) with Whiteley v. Warden (1971) (202-03) (holding that insufficient affidavit cannot be rehabilitated by testimony possessed by the affiant but not included in affidavit). 

e.       D may challenge an affidavit that is sufficient on its face but where, for example, it’s based on false statements.  See Franks v. Delaware (1978) (203) (holding that a hearing should be held once D makes a “substantial preliminary showing”  that a false statement was knowingly, intentionally, or recklessly included in affidavit).  But K says Court doesn’t go far enough in allowing an attack on a search warrant.  Once you find a flat lie, it should contaminate the whole affidavit. 

4.   The Informer’s Privilege

a.       McCray v. Illinois (1967) (204) 

    i.   Ct:  Police will not be compelled to reveal the identity of an informer, even one who is the source of a probable cause tip. 

               ii.   K:  How do we know whether there was an informant or not if we can’t push?  Ct worries about threats to informant, but 80% of Ds are too poor even to afford an attorney.  They’re not mobsters who are going to have witness snuffed out.

      b.   An increasing number of courts are following People v. Darden (NY 1974) (206) in conducting an in camera inquiry where PC fails w/o informant.  Contrast State v. Richardson (Conn. 1987). 

5.   Other Sources of Probable Cause

a.       Information from an alleged victim of, or witness to, a crime.  Prior reliability need not be shown here, unlike informant cases.  See State v. Paszek (Wis. 1971).  Instead, the critical question is usually whether the general descriptio ngiven by the victim or witness is sufficient to justify the arrest of any one person.  See Brown v. U.S. (D.C. Cir. 1966) (207) (where substantial discrepancies between description and accused nonetheless justified PC). 

b.      Direct observation by police.  See Brooks v. U.S. (D.C.Mun.App. 1960) (holding that “the probabilities must be measured by the standards of the reasonable, cautious and prudent police officer as he sees them, and not those of the casual passerby). 

c.       Information and orders from official channels.  See Whitely v. Warden (supra. p. 11) (holding that when a radio bulletin of a warrant leads to an arrest, insufficiencies in the warrant will invalidate the arrest, even though it was made by officers not involved in the original, wrongfully obtained warrant issuance).  Is Whitely still good law after Evans, supra p. 5? 


               1.   Issuance of the Warrant

a.       The “neutral and detached magistrate” requirement. 

          i.   Coolidge v. New Hampshire (1971) (208):  NH statute authorizing AG to issue search warrants as justice of peace even where s/he was overseeing the investigation violated both the 4th and 14th Amendments.  Const. requires a neutral and detached magistrate.

         ii.   Shadwick v. City of Tampa (1972) (209):  An issuing magistrate must (1) be neutral and detached, and (2) he must be capable of determining whether PC exists for the requested arrest or search.  Unanimous court upheld city charter that authorized muni court clerk to issue arrest warrants; met  both req’ts.

        iii.   Connally v. Georgia (1977) (209):  Unanimous Ct held magistrate not detached where he was paid $5 fee if he issued a warrant but nothing if he denied app. 

        iv.   Rooker v. Commonwealth (Ky.App. 1974) invalidated a warrant on a showing that the judge approved it w/o reading the application. 

         v.   U.S. v. Davis (S.D.Ill. 1972):  No magistrate shopping.  Once one denies it, it’s final. 

b.      Particular description of the place to be searched.  It’s enough if the description is such that the officer with a search warrant can, with reasonable effort, ascertain and identify the place intended.  Steele v. U.S. (1925) (210).  Errors in warrant will generally be forgiven if police are reasonably able to deduce where to search once they are on the scene.  Errors are more likely to be overlooked if they are reasonable.

c.       Particular description of the things to be seized.  More general descriptions are allowed when none better is available or when item is inherently contraband.  More specific details required where products may be lawfully possessed or where other similar objects are likely to be in the same place.  Errors are forgivable if officer can still determine what she is looking for. 

d.      Neutrality, particularity, and “good faith.”  Recall Leon, supra p. 3 and Sheppard, supra p. 4. 

2.   Execution of the Warrant

a.       Time of execution.  Statutes and court rules commonly provide that a search warrant must be executed within a certain time, such as 10 days.  Many jurisdictions also require a special search warrant for nighttime searches, but Gooding v. U.S. (1974) (212) holds that the federal statute relating to searches for controlled substances does not so require.  Subject need not be home to execute search. 

b.      Gaining entry:  The Knock and Announce Rule.

          i.   Wilson v. Arkansas (1995) (213) (Thomas):  Knock and announce rule is part of the 4th Am reasonableness inquiry.  Not a rigid rule. 

         ii.   Richards v. Wisconsin (1997) (213) (Stevens, unanimous) rejected state court’s holding that police are never required to knock and announce when executing a warrant in a federal drug investigation.  Ct:  Case-by-case inquiry.  No-knock entry is justified if police have a reasonable suspicion that knocking and announcing will, under the particular circumstances, be dangerous or futile, or that it will inhibit the effective investigation by, for example, allowing destruction of evidence.  K approves.

        iii.   U.S. v. Ramirez (1998) (214) (unanimous, per Rehnquist):  Whether the Richards reasonable suspicion test has been met depends in no way on whether police must destroy property in order to enter. 

c.       Detention and search of persons on the premises. 

          i.   Ybarra v. Illinois (1979) (215)

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

b.      Ct:  Warrant to search bartender only.  No PC to search all of the customers.  Terry (supra p. 24) doesn’t extend to evidence-gathering.  “A person’s mere propinquity to others to others independently suspected of criminal activity does not, without more, give rise to PC to search that person.”

               ii.   Michigan v. Summers (1981) (216)

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. 

              iii.   How can Ybarra and Summers be reconciled?  Maybe distinction between occupants in private home and customers in business.  Police often “freeze the situation.” 

      d.   Intensity and duration of the search.  Cops may only look where the items described in the warrant might be concealed.  E.g., if warrant for T.V.s, can’t look in desk drawers.  Once items have been found, search must cease. 

      e.   Seizure of items not named in the search warrant.

                i.   Plain view doctrine:  Items found in plain view may be seized where it is immediately apparent to the police that they have evidence before them. 

a.       Horton v. California (1990) (217):  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. 

b.      How carefully may police examine article to determine whether it’s incriminating?  See Stanley v. Georgia (1969) (219) (obscene films suppressed where police found reels while searching for gambling paraphernalia and then viewed the film on a projector); Arizona v. Hicks (1987) (260) (unreasonable search where police entered premises from which weapon was fired and moved expensive stereo equipment to see serial numbers); but see State v. Ruscoe (Conn. 1989) (219) (where, in executing warrant for other articles, police moved TV equipment and saw that it was w/o serial numbers; this is lawful under Hicks b/c police were in the course of searching for items listed in the warrant). 

      f.    Presence of third parties.  Wilson v. Layne (1999) (Supp 16):  Third parties can enter with police executing search warrant to identify the stolen property.  But here a reporter and photographer entered with the police.  Citing Summers and Horton, Court unanimously held that presence of members of media is unconstitutional b/c it’s “not in the aid of the execution of the warrant.”  Court declined to decide whether ER should apply to evidence discovered or developed by media representatives.

3.   The “Preference” for Warrants

a.       “[T]he police must, whenever practicable, obtain advance judicial approval of searches and seizures.”  Terry.  But many warrantless searches are upheld.

b.      Situations where warrant is excused:

          i.   Genuine exigent circumstances make it unfeasible for police to use the often time-consuming warrant process.

         ii.   California v. Carney, infra—auto exception. 

        iii.   Bertine, infra—routine police practice. 

        iii.   Watson, below—public places. 


               1.   U.S. v. Watson (1976) (221)

a.       Facts:  Based on informant info, postal officer arrested a man selling stolen credit cards.  He concededly had time to obtain one, but he chose to make a warrantless arrest, as he was authorized by federal statute. 

b.      Q:  Is a warrantless arrest illegal if the officer could have obtained one?  Ct:  No.

c.       Reasoning (White): 

          i.   Ancient common law rule that an officer was permitted to arrest w/o a warrant for crime committed in his presence or a felony not committed in his presence if there was reasonable grounds for the arrest.

         ii.   By this statute, Congress expressly rejected the need for exigent circumstances to be proved (e.g., subject about to flee, impracticability, etc.) in favor of a simple PC standard.  We defer to Congress.

        iii.   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.

d.      K is interested in Powell’s concurrence:  Warrant req’ts for arrests should be equal to, or perhaps even greater than, the req’ts for searches.  But history has not followed this logic. 

e.       See Skolnick’s finding (226) that police may fabricate PC by constructing an ex post facto description of the preceding events so that they conform to legal req’ts. 

2.   Reasonableness of Seizure and Promptness of Judicial Review

a.       Tennessee v. Garner (1985) (227)  Rejecting the contention that if the Watson PC req’t is satisfied, the 4th Am has nothing to say about how that seizure is made, Garner held that the use of deadly force to arrest a fleeing felon is sometimes unreasonable under 4th Am.  Where the suspect poses no immediate threat to officer or to others, harm resulting from failing to apprehend him does not justify the use of deadly for to do so.  Must have PC to believe threat of serious physical harm. 

b.      Graham v. Connor (1989) (228)

          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?

c.       Gerstein v. Pugh (1975) (228):  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. 

d.      County of Riverside v. McLaughlin (1991) (230)  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. 

3.   U.S. v. Robinson (1973) (232)

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.      Court (Rehnquist):  Search was permissible.  Reasoning:

          i.   Search incident to “lawful custodial arrest” is a traditional exception to 4th Am warrant exception.  Search may be made of the person of the arrestee and of the area within the arrestee’s control. 

         ii.   Court of Appeals held that a full search could only be performed when evidence or fruits of the crime were sought, limiting protective searches to Terry req’ts.  But SC said that standards for a search incident to lawful arrest aren’t limited to Terry when no possibility of fruits of further evidence. 

        iii.   Greater danger to officer where extended exposure to suspect in cases such as this, even when the alleged crime is benign, than in fleeting Terry stops.

        iv.   Rule:  Lawful arrest establishes authority to search—presumptively reasonable. 

c.       Dissent:  Search should stop when pat-down reveals no weapons. 

4.   Unlawful, Pretext, and Arbitrary Arrests

a.       Gustafson v. Florida (1973) (239) (companion to Robinson):  D arrested for driving w/o a license when his car was observed weaving across the center line could be searched. 

b.      U.S. v. Mota (9th Cir. 1993) (240)

          i.   9th Cir. excluded evidence obtained after an arrest for operating a food cart w/o a license—an offense for which the statute mandated only a citation.  Ct said arrest itself was unreasonable, and thus unlawful under 4th Am. 

         ii.   Note that the SC has never taken the position that an arrest made on PC violates the 4th Am merely b/c a taking of custody is deemed unnecessary. 

c.   Whren v. U.S. (1996) (240)

          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.   Reasoning (Scalia):

a.       Traffic stop is seizure that must be reasonable.  But Ds argued that standard should be higher than ordinary PC; in order to guard against pretextual racial profiling, test should be whether a police officer, acting reasonably, would have made the stop for the reason given. 

b.      Distinguishes Wells, Bertine, and Burger (infra) as cases in which there was no PC for the arrest.  Here there was PC. 

c.       Officer’s subjective motivation does not invalidate objectively justifiable behavior.  See Robinson.

d.      EPC can be used to prevent racial profiling.  But K:  In U.S. v. Armstrong, petitioners tried to prove racial discrimination in arrests, and Court said it’s not sufficient to show that all arrestees were black.  And what if you do show racial discrimination?  There’s no ER under EPC, so evidence still gets in. 

e.       K:  Ct is essentially saying there’s no such thing as a pretext stop.  Now police can stop anyone in a car, because the multitude of traffic laws is so expansive that you can’t possibly be in full compliance at all times. 

5.   Other Searches of the Person

      a.   Full searches of an arrested person are usually made when suspect has been delivered to stationhouse.  Typically upheld on two bases:
    i.   As a delayed Robinson search incident to arrest

               ii.   As an inventory incident to booking to safeguard the property of the accused and to ensure that weapons and contraband aren’t introduced into the jail. 

      b.   But some jurisdictions reject the Robinson rule and/or limited the scope of an inventory search.  See, e.g., State v. Kaluna (Hawaii 1974) (247) (strip search unlawfully uncovered drugs in bra); Zehrung v. State (Alaska 1977) (requiring that D be afforded opportunity to post bail first, where practicable). 

c.       Illinois v. LaFayette (1983) (247)—see also Bertine, infra p. 23-24. 

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

         ii.   Reasoning (Burger):

a.       Protects against police theft of suspect’s belongings and false claims thereof. 

b.      Even if less intrusive means of serving this end are available, such as sealing bag in locker w/o opening it, the 4th Am doesn’t compel police to employ them. 

c.       Cites S.D. v. Opperman (296) (upholding search of contents of glove compartment of an abandoned automobile lawfully impounded by police). 

                     d.   U.S. v. Edwards (1974) (249):  Suspect’s clothes could be seized to corroborate physical evidence (paint chips) ten hours after the suspect was taken into custody.  Dissent:  Could’ve gotten warrant.

                     e.   Can police search someone in custody for evidence of another crime?  People v. Trudeau (Mich. 1971) (250) said no, but that was before Robinson, Edwards, and LaFayette. 

                     f.    Schmerber v. Calif. (42, 250):  Blood can be seized from drunk driving suspect.  Balance intrusiveness w/ emergency/risk of delay.

                     g.   Winston v. Lee (1985) (250):  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. 

                     h.   U.S. ex rel. Guy v. McCauley (E.D.Wisc. 1974) (251):  Stationhouse search of vagina of incarcerated female violated due process b/c not conducted by skilled medical technician.  

                     i.    Knowles v. Iowa (1998) (251)

                               i.   Unanimous Court (Rehnquist) rev’d conviction where officer stopped D for speeding, issued citation, and made full search of car (uncovering drugs). 

                              ii.   Reasoning:  (1)  No threat to officer once suspect ordered out of car and patted down; (2) No need to preserve evidence of speeding. 

j.        Cupp v. Murphy (1973) (252):  Where a murder suspect came voluntarily to the police station, it was permissible to take scrapings of what appeared to be blood under his fingernails given the evanescent nature of the evidence. 


1.   Chimel v. California (1969) (253)

a.   Police showed up at home of D, who was suspected of robbing a coin store, with an arrest warrant.  When he arrived, they showed him the arrest warrant and asked for permission to look around.  He objected, but they nonetheless conducted search of entire house and found contraband. 

b.   Q:  Was the warrantless search of D’s entire house constitutionally justified as incident to a warranted arrest?  Ct:  No.

c.   Reasoning (Stewart):

                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. 

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

      d.   So what do police do where they’ve arrested a guy at home but don’t have a search warrant?  K:  They impound the house and wait for somebody to go get a search warrant.

2.   Search of Premises Incident to or After Arrest Therein

a.       What constitutes grabbing distance or “immediate control”?  People v. Hufnagel (Colo. 1987):  It’s irrelevant whether the arrestee was physically able to reach the exact place searched at the exact moment searched.  See, e.g., People v. Perry (Ill. 1971) (search lawful where police handcuffed D, took him out of hotel room, then searched dresser drawer into which they had seen him shove something). 

b.      When, if ever, can officers look into other areas of D’s home after D has been placed under arrest there? 

          i.   Giacalone v. Lucas (6th Cir. 1971) (258):  D initially told police he was ready to go; they insisted he change clothes, then searched drawers before he did so.

         ii.   Maryland v. Buie (1990) (258):  When is a “protective sweep” permissible? 

a.       Court rejected state court’s requirement of full PC; citing Terry (supra p. 24) and Long, it opted for a less demanding reasonable suspicion test. 

b.      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.

              iii.   When the officers are seeking other offenders.  See People v. Block (Cal 1971). 

      c.   Washington v. Chrisman (1982) (259):  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.”

      d.   Plain view doctrine.  See supra p. 14.

3.   Warrantless Searches of Premises Under Exigent Circumstances

a.       Vale v. Louisiana (1970) (261)

          i.   Disallowed a search where suspected drug dealer was searched in front of his home and the officer proceeded inside to see if anyone else was present. 

         ii.   K actually sides with dissent; officers couldn’t have gotten a warrant.  B/c D’s mother and brother arrived home during arrest, the police couldn’t leave and let them destroy the evidence.

b.      Securing the Premises While Getting Warrant

          i.   U.S. v. Grummel (9th Cir. 1976):  Search permissible when suspect’s mother was at home at time of arrest; agent gave her option of leaving premises or remaining inside w/ him while another agent left to get a search warrant. 

         ii.   Segura v. U.S. (1984) (263)

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”). 

b.      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. 

      c.   U.S. v. Rubin (3d Cir. 1973) (264)  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.

      d.   Homicide Scene Exception

                i.   Many courts have held that when police are summoned to scene of homicide, they may remain on premises without warrant to conduct general investigation. 

               ii.   But Mincey v. Arizona (1978) (265) declined to hold that the seriousness of the offense under investigation itself creates exigent circumstances of the kind that justify warrantless search under 4th Am. 

              iii.   Thompson v. Louisiana (1984) applied Mincey in invalidating two-hour general search of premises to which police were summoned b/c of D’s attempt to get medical assistance after shooting her husband.

              iv.   Flippo v. West Virginia (1999) (Supp. 17):  After D’s 911 call that he and his wife had been attacked at a cabin in a state park, police arrived at scene and found D outside wounded and his wife dead inside.  SC, citing Mincey, excluded contents of briefcase near body, found upon a warrantless police reentry and search several hours later.

      e.   When evidence of crime is fortuitously discovered by police w/o while they are performing other functions, courts find it necessary to assess the reasonableness of the police conduct under the 4th Am. 

4.   Payton v. New York (1980) (266)

a.       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. 

b.      Does a warrantless entry of a home for the purpose of arresting with probable cause violate the 4th Amendment?  Ct:  Yes.

c.       Reasoning (Stevens):

          i.   An entry to arrest and an entry to search for and to seize property implicate the same interest in preserving the privacy and sanctity of the home, and they deserve the same level of constitutional protection. 

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

        iii.   Ct noted that an arrest warrant founded on PC implicitly carries w/ it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.

d.      Dissent:  Majority ignores common law exceptions.  Rule will hamper law enforcement.

5.   Additional Cases Regarding the Warrantless Entry of the Home to Effect Arrest

a.       “Hot pursuit” Rule:  Warden v. Hayden (1967) (270) upheld warrantless entry and search where reliable witnesses reported a recent armed robber went into the house five minutes earlier.  Ct admitted clothing found in washing machine, where an officer looked for weapons prior to or immediately contemporaneous with D’s arrest.  “The 4th Am does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.” 

b.      Threshold:  U.S. v. Santana (1976) (270) held that Watson, see supra p. 15, permitted police to attempt a warrantless arrest of D when she was “standing directly in the doorway—one step forward would have put her outside, one step backward would have put her in the vestibule of her residence.”  She was in a public place—exposed to public view, speech, hearing, and touch; as exposed as she would’ve been had she been completely outside.  Thus, under the Hayden hot pursuit rule, the police could’ve pursued her w/o a warrant when she sought refuge within upon their approach. 

c.       Exceptional Circumstances:  Dorman v. U.S. (D.C. Cir. 1970) (relied on in Payton) laid out these considerations:  grave offense; suspect reasonably believed to be armed; better than minimum PC that suspect is guilty; strong reason to think suspect is home; likelihood that suspect will escape if not swiftly arrested; entry, if not consented, is peaceable; time of day. 

d.      Gravity of offense:  Cited by Welsh v. Wisconsin (1984) (271) in holding hot pursuit doctrine didn’t justify a warrantless home entry and arrest for drunk driving.  But dissent noted likelihood that evidence would be destroyed. 

e.       Minnesota v. Olson (272) invalidated a warrantless entry and arrest when driver of getaway car from armed robbery was thought to be in apt surrounded by police.  On the theory that escape was virtually impossible—and that there was no evidence that the suspect was a danger to anyone in the apt—Ct held that police should have waited for warrant; no exigent circumstances.

f.       Steagald v. U.S. (1981) (273)

          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. 

b.      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. 

6.   California v. Carney (1985) (275)

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.      Reasoning (Burger):

          i.   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.

         ii.   Two-Fold Rationale emerges from prior cases:

a.       Ready mobility.

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

              iii.   Cites numerous previous cases (276), most of which are listed infra. 

              iv.   Pervasive regulation of vehicles à reduced expectation of privacy.

               v.   Motor home is a vehicle, not a home, b/c readily mobile; licensed to operate on streets; situated in such a way that objective observer would think it was being used as a vehicle, not a residence.  Ct declined to decide what the outcome should be where a motor home is situated in a way that objectively indicates that it’s being used as a residence. 

      c.   Dissent: 

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

               ii.   Compares U.S. v. Chadwick (1977) (278) (holding that warrantless search of footlocker violated 4th Am even though there was ample PC to believe it contained contraband), stating that there are greater privacy interests in mobile homes than in luggage. 

7.   The Scope of the Automobile Exception

a.       The “ready mobility” language does not mean there has to be an actual likelihood that the vehicle will be moved if search isn’t conducted immediately.  See, e.g., Chambers v. Maroney (1970) (279):  An impounded car could be searched w/o a warrant, even though it was secure in the police lot and a warrant could easily have been obtained.  Numerous other cases hold that the impossibility of flight or tampering does not alter the automobile exception. 

b.      Florida v. White (1999) (Supp 17) upheld the warrantless seizure of a car on PC that it was contraband under the state forfeiture law. 

c.       Probable cause required

    i.   Chambers held that police just need a “probable cause to search a particular auto for particular articles.” 

   ii.   PC limits the scope and intensity of the search.  Some cases indicate that, for example, pulling up flooring of truck goes too far. 

d.      U.S. v. Di Re (222; 280, supra p. 15):  PC for a warrantless search of the car does not necessarily authorize searching the persons of the occupants. 

8.   Wyoming v. Houghton (1999) (Supp 18)

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.      Reasoning (Scalia):

          i.   U.S. v. Ross (1982) (281):  Warrantless search of auto under Carroll could include search of container or package found inside the car.  Ross involved the search of a brown paper bag found in trunk of car pursuant to informant’s tip.  If PC justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the car and its contents that may conceal the object of the search.  Thus, Carroll includes a “probing search” of compartments and containers within the auto so long as the search is supported by PC.  Later cases have characterized Ross as applying to all containers within a car, without qualification as to ownership.

         ii.   Permissible scope of a warrantless car search is defined by the object of the search and the places in which there is PC to believe that it may be found. 

        iii.   Passengers, like drivers, possess reduced expectation of privacy.  And passenger may be in common enterprise w/ driver, w/ same interest in concealing fruits.

        iv.   Distinguished Ybarra and Di Re as limited to body searches. 

         v.   Rule:  Police officers w/ PC to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search. 

c.       Breyer, concurring, had some problems with fact that it was a purse, noting that it would be different if it had been on her person. 

9.   California v. Acevedo (1991) (281)

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.      Q:  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.       Reasoning (Blackmun):

          i.   Ross rejected Chadwick’s distinction between containers and cars—i.e., a person’s privacy expectations in cars and luggage are equal. 

         ii.   In Ross, police had probable cause to search whole car.  But distinction between PC to search car and PC to search package isn’t always clear. 

         ii.   If police know they can only search bag if they have PC to search entire car, they may search more extensively than they otherwise would in order to establish the general PC required by Ross. 

        iii.   The search here is far less intrusive than Carroll, where seats were slashed.  Chadwick-Sanders rule affords minimal protection of privacy.

        iv.   Held:  4th Am does not compel separate treatment for an auto search that extends only to a container within the vehicle.  The interpretation of the Carroll doctrine set forth in Ross now applies to all searches of containers in vehicles.  In other words, police may search w/o warrant if search is supported by PC.

d.      Scalia’s concurrence:  Should return to the first principle that the “reasonableness” req’t of the 4th Am affords the protection that the common law afforded. 

e.       Stevens’ dissent:  Why should privacy expectation disappear when one climbs into a taxi or puts luggage in privately owned car? 

f.       K:  Anomaly: You can’t search closed container outside car, but you can search closed container in car if you have PC.  Early doctrine said that if police are focusing on particular suitcase, etc., they can’t search it outside car, and they can’t stop him once he gets in car.  It had to be a car search, not just a search specifically of the container.  This line dissolved. 

g.      Illinois v. Andreas (1983) (289) 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. 

10. New York v. Belton (1981) (290)

      a.   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. 

      b.   Q:  What is the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants?   Ct:  Passenger compartment.

      c.   Reasoning (Stewart):

                i.   Need for single, familiar standard to guide police. 

               ii.   Robinson rule (supra p. 15-16):  Full search of person is reasonable when incident to a lawful custodial arrest. 

              iii.   Chimel:  Search incident to arrest may not extend between the area within the immediate control of the arrestee.  In automobile cases, that area is the entire passenger compartment. 

              iv.   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.  

d.      K:  Brennan’s dissent exaggerates the impact of this case.  Search must be contemporaneous with arrest.

11. Colorado v. Bertine (1987) (296)

a.       Facts:  D arrested for DUI.  While in custody, and before van impounded, backup officer conducted inventory search, during which he discovered drugs in closed backpack. 

b.      Does the 4th Am require suppression of evidence discovered during inventory search?  Ct:  No.

c.       Reasoning (Rehnquist): 

          i.   Inventory searches are well-defined exception to requirements of warrant and PC.  Cites LaFayette and Opperman, supra p. 17. 

         ii.   No bad faith or subterfuge. 

        iii.   4th Am doesn’t require police to adopt least intrusive means.  No need to weigh owner’s privacy interest against likelihood that it may conceal contraband. 

        iv.   Rule:  Reasonable police regulations relating to inventory procedures administered in good faith satisfy 4th Am. 

12. More on Inventory Searches

a.       Evidence found in an otherwise lawful inventory must be suppressed if the prior impoundment of the vehicle was not justified.  See, e.g., Dyke v. Taylor Implement Mfg. Co. (1968) (302) (search of car outside courthouse while driver was inside posting bond was improper); State v. Simpson (Wash. 1980) (where D arrested at home, impoundment of his truck lawfully parked in front of house was illegal). 

b.      Florida v. Wells (1990) (302):  Inventory of locked suitcase found in an impounded vehicle was unlawful under Bertine b/c “the Fla. Highway Patrol had no policy whatever w/ respect to the opening of closed containers encountered during an inventory search.”  Can give police some latitude, but can’t grant them “uncanalized discretion.” 

c.       Ex Parte Boyd (Ala. 1989) struck down search conducted 4 days after impoundment.  “[T]here must be sufficient temporal proximity between the impoundment and the inventory.” 

         G.  STOP AND FRISK

               1.   Terry v. Ohio (1968) (304)

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

b.      Q:  Is it always unreasonable for a policeman on the beat to seize a person and subject him to a limited search for weapons unless there is PC for an arrest?  Ct:  No.

c.       Reasoning (Warren):

          i.   Exclusionary rule has limitations.  Sometimes it doesn’t deter—e.g., where police either have no interest in prosecuting or are willing to forego successful prosecution in the interest of serving some other goal. 

         ii.   This is clearly a search & seizure—serious intrusion that calls 4th Am into play.  

        iii.   Dual inquiry:

a.       Was the officer’s action justified at its inception?

b.      Was it related in scope to the circumstances that justified it in first place?

              iv.   This rubric of police conduct—necessarily swift action based on on-the-spot observations of policeman on the beat—not subject to warrant procedure.

               v.   Officer must be able to point to specific and articulable facts that justify the intrusion. 

              vi.   Objective standard:  Would the facts available to the officer at the moment of the search or seizure warrant a man of reasonable caution in the belief that the action taken was appropriate? 

             vii.   Immediate interest of officer in taking steps to assure himself that suspect is not armed—protect himself and other potential victims. 

            viii.   Rule:  There must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe he is dealing w/ armed and dangerous individual, regardless of whether he has PC to arrest the individual for a crime. 

              ix.   Scope:  Sole justification is protection of officer and others nearby, and must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of officer. 

               x.   Holding:  Where officer observes unusual conduct that leads him reasonably to conclude in light of his experience that criminal activity may be afoot… he can search the outer clothing of such persons in an attempt to discover weapons that may be used to assault him. 

2.   Police Action Short of a Seizure

a.       Florida v. Bostick (1991) (312)

          i.   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.  

         ii.   Ct upheld the search.  Reasoning (O’Connor): 

a.       “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. 

b.      Cramped confines of bus didn’t make it coercive.  Okay as long as police don’t covey message that compliance is req’d. 

c.       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. 

d.      Remanded to determine whether seizure occurred.  

              iii.   Dissent (Marshall):  Intimidating show of authority.  Passenger unadvised of his rights has no reason to know that police can’t hold his refusal to cooperate against him.

b.      California v. Hodari D. (1991) (316)

          i.   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.

         ii.   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. 

              iii.   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.   County of Sacramento v. Lewis (1998) (43, 317):  “[N]o 4th Am seizure would take place where a ‘pursuing police car sought to stop the suspect only by the show of authority represented by flashing lights and continuing pursuit,’ but accidentally stopped the suspect by crashing into him.”  This is b/c 4th Am seizure requires “a gov’tal termination of freedom of movement through means intentionally applied.” 

3.   Grounds for Temporary Seizure for Investigation

a.       U.S. v. Cortez (1981) (319):  “[T]he totality of the circumstancesthe whole picture—must be taken into account.  Based on that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.”  Process deals with probabilities.

b.      Sibron v. U.S. (1968) (320):  Officer who observes a shady character repeatedly conversing w/ drug addicts but doesn’t hear what they discuss or see anything passed between them may not stop and frisk the suspect.  “For all he knew, they might ‘indeed have been talking about the World Series.’  The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is not the sort of reasonable inference req’d to support an intrusion by the police…”

c.       Florida v. J.L. (2000) (26)

          i.   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.  SC held search unreasonable.

                              ii.   Reasoning (Ginsburg):

a.       Alabama v. White (1990) (320) upheld search where informant suggested that D would emerge from her home w/ brown attaché case carrying cocaine, get into a brown station wagon w/ precise characteristics, and go to motel.  When police saw that the descriptions were verified and that D was headed in direction of motel, they stopped her and asked if they could look for cocaine.  She consented; they found cocaine in attaché.  Ct:  “Close case.”  An anonymous tip alone seldom demonstrates the informant’s basis of knowledge of veracity.  But there were moderate indicia of reliability. 

b.      Here there are not same indicia of reliability that were essential in White.  Tip accurately describing a subject’s location and appearance is not enough, b/c it doesn’t show that tipster has knowledge of concealed criminal activity.  Reasonable suspicion requires that tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. 

c.       We don’t speculate about circumstances under which danger alleged in tip might be so great as to justify search even w/o showing of reliability—e.g., bomb—nor do we hold that officers in quarters where 4th Am privacy is diminished—e.g., airports and schools—can’t conduct protective searches that aren’t justified in other contexts.

      d.   U.S. v. Sokolow (1989) (323):  “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.   U.S. v. Hensley (1985) (323)

                i.   By analogy to Whitely (supra p. 11-12), Ct held that if a flyer or bulletin has been issued on basis of articulable facts supporting reasonable suspicion that wanted person has committed offense, reliance on bulletin justifies a stop to check I.D., question, or briefly detain person. 

               ii.   Rejected lower court’s holding that Terry is limited to ongoing criminal activity, stating that the limits of Terry stops are defined by a reasonableness test that balances nature and quality of intrusion on personal security against importance of gov’tal interests.

      f.    Illinois v. Wardlow (2000) (Supp 29)

                i.   Facts:  4 Chicago PD cars were converging on high-drug area; cop saw D look at cops and run away.  D stopped and frisked; cops found handgun.

               ii.   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. 

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

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

4.   Permissible Extent of Temporary Seizure

a.       Courts differ as to how long seizure may continue before it becomes illegal.  See p. 325:  One court held 25 minutes too long where no additional suspicion; another said 1 hour not too long when suspect was giving implausible answers.

b.      Florida v. Royer (1983) (326):  Police went to far when they took a suspect stopped for questioning in airport into a small room where they asked to search his bags.  He consented after 15 minutes.  Ct:  “an investigation must be temporary and last no longer than is necessary to effectuate the purpose of the stop.  Similarly, the methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.”  Here situation escalated to interrogation; as a practical matter, D was under arrest. 

c.       Model Penal Code recommends maximum of 20 minutes for Terry stop.

d.      U.S. v. Sharpe (1983) (327):  Ct upheld 20-minute delay of suspicious truck driver.  Our cases impose no rigid time limit on Terry stops.” (emphasis added).

e.       Kolender v. Lawson (1983) (328):  Statutory req’t that made it a criminal offense for a person lawfully stopped under Terry to fail to provide “credible and reliable” identification was void for vagueness.  K:  Majority would probably say you have to show I.D. when cops ask for it.  See State v. Flynn (Wis. 1979) (335) (“unless the officer is entitled to at least ascertain the identity of the suspect, the right to stop him can serve no useful purpose at all”). 

f.       Most courts take the view that if the officer who made a traffic stop has checked out the driver’s license and registration and has written up citation or warning, then any extension of the stop thereafter for the purpose of questioning about drugs or seeking consent to search for drugs is illegal.  See, e.g., U.S. v. Fernandez (10th Cir. 1994) (329).  Many courts, however, have upheld the Lt. Colombo gambit (“Oh, one more thing…”) or casual questioning as long as during permissible time span. 

g.      Ohio v. Robinette (1996) (330)

          i.   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. 

         ii.   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. 

        iii.   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.

               5.   Temporary Seizure of Effects

a.       U.S. v. Van Leeuwen (1970) (331):  Although at some point detention at mail may become a seizure, here it was permissible for police to delay delivery of package for one day while a warrant for their search could be issued. 

b.      U.S. v. Place (1983) (331) (supra pp. 7, 9):  Taking D’s luggage for 90 minutes, then holding it over weekend while waiting for warrant, violated 4th Am.  Length of the detention makes seizure here unreasonable in absence of PC. 

6.   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.” 

e.       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. 

7.   Other Brief Detention for Investigation

a.       Davis v. Mississippi (1969) (336):  Fingerprints of D thrown out where they were obtained when police simply rounded up 25 black youths.   Fingerprints fall under 4th Am protection, but they are less intrusive than other types of searches and seizures.  Thus, they may, under narrowly circumscribed procedures, be found to comply with 4th Am even though there is no PC in traditional sense.  Here, however, no attempt was made to try to comply with req’ts of 4th Am. 

b.      U.S. v. Dionisio (1973) (337):  4th Am not violated by subpoenaing witnesses to appear before 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.  Mara, companion case, applied same principle to handwriting exemplars. 

c.       In re Fingerprinting of M.B. (N.J.Super. 1973) (337): ct aff’d order requiring all 22 male members of 8th grade class at specific school to submit to fingerprinting in order to identify class ring located near body of homicide victim.  K is troubled by “group probable cause.” 

d.      Dunaway v. New York (1979) (337):  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.  


               1.   Safety Inspections

a.       Camara v. Municipal Court (1967) (339):  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. 

b.      Ct has often upheld warrantless business inspections by emphasizing the “closely regulated” nature of the business, and that the inspection permitted by statute or reg. is “carefully limited in time, place, and scope.”  New York v. Burger (1987) (340). 

2.   Border Searches

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.  

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

3.   Vehicle checkpoints

a.       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 (340-41). 

b.      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. 

c.       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.” 

d.      City of Indianapolis v. Edmond (2000) (handout)

          i.   Facts:  Indianapolis operated vehicle checkpoints in an effort to interdict drugs.  Police stopped a predetermined number of vehicles, and they were instructed only to conduct a search by consent of based on the appropriate quantum of particularized suspicion.  Total duration was less than five minutes.  Ct held that checkpoint program violated the 4th Am. 

         ii.   Reasoning (O’Connor):  Chandler (below) requires individualized suspicion of wrongdoing.  Vernonia, Prouse, Martinez-Fuerte, and other cases were restricted to the special needs in policing the borders and public highways.  This is different, because it targets a general interest in ordinary crime control.  Drugs may be a major problem, but the ends don’t justify the means.  Requirement of individualized suspicion in programs of general crime control can only be suspended where there’s an emergency.  It’s appropriate to look at purpose when considering a program like this.  Whren and Bond are inapposite b/c there was PC; they didn’t deal with programmatic purposes. 

               4.   Search of students.  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. 

               5.   Supervision of parolees and probationers.  Griffin v. Wisconsin (1987) (342):  No warrant—and not even full PC—are req’d for probation officer to search home of probationer. 

6.   Drug testing

a.       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. 

b.      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. 

c.       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. 

d.      Chandler v. Miller (1997) (343) 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. 


               1.   Schneckloth v. Bustamonte (1973) (343)

a.       Facts:  Guys riding around in car of one passenger’s brother (owner not present); one headlight burned out.  Cop stopped car; no one had identification.  Cop asked to search, brother said, “Sure, go ahead.”  Driver opened trunk and glove compartment.  Cop found stolen checks under seat, leading to charges against passenger B. 

b.      Q:  What must the state prove to demonstrate that consent was “voluntarily” given? 

c.       Ct’s reasoning (Stewart):

          i.   Prior voluntariness cases, most of which involved confessions, conducted careful scrutiny of all surrounding circumstances.  [K:  Why return to voluntariness test that was repudiated in Miranda?]

         ii.   Look at totality of circumstances.  Knowledge of right to refuse consent is on factor to consider, but not the sine qua non of effective consent. 

        iii.   Consent searches may be the only means available to cops who lack PC. 

        iv.   Consent must never be coerced, by explicit or implicit means, by implied threat or covert force.  Consider subtly coercive police questions and the possibly vulnerable subjective state of the person who consents. 

         v.   Holding:  When subject of search is not in custody and State attempts to justify search on basis of consent, the 4th & 14th Am require that it demonstrate that consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. 

d.      K:  Stewart wants the police to be able to exploit people’s ignorance.  See also Marshall’s dissent (arguing suspect should be informed of right to refuse consent). 

2.   Relevant Factors in Determining the Validity of a Consent

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. 

b.      Consent may be held ineffective b/c obtained in exploitation of a prior illegal arrest under Wong Sun’s fruit of the poisonous tree doctrine. 

c.       Recall Florida v. Bostick, supra p. 25. 

d.      Prevailing view is that Miranda warnings need not precede a valid consent to search. 

e.       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 (1991) (352).

3.   Third Party Consent

a.       Illinois v. Rodriguez (1990) (352)

                i.   Police were called to J’s house, where they met J’s daughter, F, who said she had been assaulted by D.  F said D was then sleeping in “our” apt and said she’d go there w/ cops to unlock door w/ her key.  Officers had no search or arrest warrants.  She let them in; they observed drugs in plain view; arrested D and seized drugs.  D claimed F had vacated apt several weeks earlier and had no authority to consent to entry. 

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

              iii.   Reasoning (Scalia):

a.       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.

b.      F did not have common authority here. 

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

d.      What is at issue when a claim of apparent consent is raised is not whether the right to be free of searches has been waived, but whether the right to be free of unreasonable searches has been violated. 

e.       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? 

              iv.   Dissent:  Majority erroneously assumes that third-party consent cases are generally reasonable.  This is not so. 

b.      Who may consent

          i.   Spouse.  U.S. v. Duran (7th Cir. 1992) (357):  Rebuttable presumption of validity for spousal consent.  D must show that consenting spouse was denied access to the particular area searched. 

         ii.   Parent-child.  Head of household may consent to search of child’s living quarters (where child lives at home and is not clearly an adult); child may not consent to full search of parent’s house. 

        iii.   Landlords cannot consent to search of tenant’s premises, but joint tenants can consent even if they occupy separate bedrooms. 

        iv.   Employer-employee.  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.       Limits of Third-Party Consent

          i.   Antagonism.  Cases on both sides. 

         ii.   Defendant’s instructions.  May depend on whether police knew of instructions.

        iii.   An absent third-party’s consent should not be used to waive another individual’s constitutional rights when that individual is present at the search to give or withhold consent in her or his own right.

        iv.   Exclusive control by D of effects or areas within shared premises or objects. 

d.   Seizure v. Search.  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). 




               1.   Silverman v. U.S. (1961) (364):  Before Katz (supra p. 6), there was some constitutional protection from electronic seizure of communications; held that words could be “seized,” but suggested that 4th Am “search” took place only if police trespassed.  Katz abrogated the trespass requirement, holding that gov’t penetration has no const’l significance. 

               2.   Olmstead v. United States (1928) (360) originally declared that wiretapping was not a search.  Brandeis’s famous dissent predicted technological advances that would tread on 4th Am.  Constitution confers “the right to be let alone—the most comprehensive of rights and the right most valued by civilized men…  If gov’t becomes a lawbreaker, it breeds contempt for law; it invites every man to become a man unto himself…”  Holmes, also in a famous dissent, wrote, “We have to choose, and for my part I think it is a less evil that some criminals should escape than that the government should play an ignoble part.”  Here are the roots of the fruit of the poisonous tree. 

               3.   § 605 of the Federal Communications Act (in effect 1934-1938) made production of evidence from wiretap illegal, whether by federal or state authorities or private parties. 

               4.   Lee v. Florida (1968) (363) extended exclusionary rule for wiretapped conversations to the States. 

         B.  TITLE III

               1.   Background

a.       Berger v. New York (1967) (365) 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. 

                     b.   Then came Katz (1967).  Within seven months of Katz, Congress passed Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, granting law enforcement officials extensive powers to conduct wiretapping and electronic surveillance. 

               2.   Overview of Title III (see 367 & Supp. 147)

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

b.      Defines “intercept” to mean “the aural acquisition of the contents of any wire or oral communication…”  Thus, it didn’t cover pen registers until recently. 

c.       General exclusionary rule, §2515, applies to all judicial, quasi-judicial, and administrative proceedings.  But suppression doesn’t follow every failure to follow Title III—only when statutory provision that was violated was intended to play a central role in the statutory scheme. 

          i.   Compare U.S. v. Giordano (1974) (holding that AG Mitchell could not authorize wiretaps through his secretary; 600 convicted Ds consequently went free), with U.S. v. Chavez (1974) (I don’t get this). 

d.      Provides exceptions for emergencies—nat’l security or immediate danger or threat of death or serious physical injury to any person.  

e.       Requirements for applications:  PC to believe that particular person involved in specific crime will have discussion regarding that crime at specified time.

f.       May allow lengthy period of surveillance. 

g.      Requires to parties 90 days after application denied or surveillance terminated.

3.   Silent Video Surveillance

a.       U.S. v. Torres (7th Cir. 1984) (Posner) (372):  FBI obtained judicial authorization to install cameras, w/ no soundtracks, at “safehouses” of a terrorist group.  7th Cir. declined to hold TV surveillance unconst’l per se.  Although no statutory authorization for videotapes, dist. ct. nonetheless had authority under FRCP 41(b) and inherent judicial power to issue warrants.  Ct upheld videos b/c they were authorized by judge and satisfied provisions of Title III. 

b.      U.S. v. Koymejian (9th Cir. 1992) (en banc) similarly held that Title III neither authorizes nor prohibits authorized domestic silent video surveillance.  Ct developed four req’ts.  See 373-374.

c.       People v. Teicher (NY 1981): sexually abusive dentist. 

4.   The Facial Validity of Title III

      a.   SC has never explicitly considered the facial validity of Title III.  Court has only interpreted particular provisions. 

      b.   U.S. v. Cafero (3d Cir. 1973) (374):  Rejected constitutional challenge to Title III, distinguishing surveillance under it from the New York statute at issue in Berger.

d.      U.S. v. Falcone (3d Cir. 1974) (375):  No higher PC req’t under Title III.

5.   The Need for, and Utility of, Title III

a.       Studies regarding organized crime, but more importantly the violence of 1968, led to bill’s passage.  Legislation was viewed as necessary for modern law enforcement. 

b.      See generally 375-78. 

c.       K upset about National Wiretap Comm’n, which was set up to review the operation of wiretap statute.  Majority report, written by conservatives, called for more extensive use of electronic surveillance.  Compare Minority Report (378, fn. g).

d.      Schwartz discusses “strategic intelligence.” 


               1.   Scott v. U.S. (1978) (378)

a.   § 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.” 

b.   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.

c.   Reasoning (Rehnquist):

                i.   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. 

                              ii.   Can’t just look at percentage of nonpertinent calls.  Some of the nonpertinent calls may be very short, or ambiguous, or one-time, etc.  Where a widespread conspiracy, agents need more extensive surveillance. 

               2.   Dalia v. U.S. (1979) (382)

a.       FBI covertly entered office and spent three hours installing a listening even though warrant didn’t specifically authorize that.  Agents entered six weeks later to remove bug.  D convicted partially on basis of conversations seized through bug.  SC upheld.

b.      Reasoning (Powell):

          i.   4th Am doesn’t prohibit per se a covert entry performed for purpose of installing an otherwise legal listening device.

         ii.   Legislators understood that they were necessarily authorizing surreptitious entries as a concomitant of authorizing electronic surveillance.  

        iii.   Search warrants don’t have to specify how they’re to be executed.

c.       Goldsmith (383):  Ct’s statutory perspective on Title III has changed.  Although Title III had been designed to constitute a blanket prohibition against electronic surveillance, subject to narrowly tailored statutory exceptions, Dalia suggests that the law conferred a general grant of authority subject to narrowly tailored prohibitions. 

d.      Roving surveillance may raise a different problem, as the warrant will be unable to specify the place to be bugged.  Some have argued that roving surveillance should be limited to a shorter period of time and held tightly in rein. 


               1.   Lopez v. U.S. (1963) (384)

a.       Facts:  IRS agent recorded D’s bribe offers by means of a concealed wire recorder.  Ct:  This was not an illegal seizure.

b.      Reasoning (Harlan)

          i.   On Lee v. U.S. (1952):  Chin Poy, an old acquaintance and former employee of D, was “wired for sound” (meaning mike transmitted all sounds to agent stationed outside) when he entered D’s laundry and got D to make incriminating statements.  SC held that agent could testify as to what he heard. 

         ii.   Rathbun v. U.S. (1957) (holding that overhearing a conversation on a regularly used telephone extension with the consent of one party to the conversation was not a violation of § 605 of Fed. Communications Act). 

        iii.   No eavesdropping here; gov’t didn’t use electronic device to listen to conversations it could not otherwise have heard.  IRS agent could’ve testified.  This just removed flaws from agent’s credibility or memory. 

c.   Brennan, for dissenters:  On Lee is indistinguishable, and it was wrongly decided.  “There is a qualitative difference between electronic surveillance [and] conventional police stratagems such as eavesdropping and disguise.  The latter do not so seriously intrude upon the right of privacy.”  Brennan calls the use of recorders and transmitters “third parties.” 

               2.   Lewis v. U.S. (1966) (386) (decided same day as Hoffa)

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.      Reasoning (Warren):

          i.   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).   Ct distinguished Gouled by saying that agent here was invited into home for purpose of dealing drugs. 

         ii.   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.

c.   K:  The best distinction in these cases is probably based on whether the D invited the undercover agent to engage in crime.

3.   Hoffa v. U.S. (1966) (388)

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.      Stewart, for Court, reasoned that no interest legitimately protected by 4th Am was implicated.  4th Am doesn’t protect a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. 

c.       Warran, dissented, objected that Partin’s testimony was insufficiently credible to support conviction w/o corroboration.  K thinks this is best way to dispose of case.

4.   Weatherford v. Bursey (1977) (390):  D’s rights were not violated when an undercover agent was present, as a “codefendant,” a D’s meetings with his attorney.  The Court noted that no information disclosed at those meetings was used against D or relayed to prosecution.  K:  If ever a prophylactic rule was called for, it’s here.

5.   U.S. v. White (1971) (391)

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.  7th Cir. read Katz as overruling On Lee and rev’d.  SC rev’d.

b.      Reasoning (White)

          i.   Katz didn’t overturn On Lee. 

         ii.   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.

        iii.   D assumes risk in trusting confederates. 

c.       Dissenters.  Harlan:  Should get warrant for these activities.  Brennan:  In light of Katz, Lopez and On Lee should be viewed as overruled.

6.   Should the law distinguish between (1) a “trusted accomplice” who, absent prior arrangements with the police, subsequently them with evidence, and (2) a “trusted accomplice” who was a police agent all along—i.e., who was planted by gov’t to secure incriminating evidence?


               1.   U.S. v. Russell (1973) (401)

a.       Facts:  Undercover agent S went to D’s home where he met with D and others (J & P).  S agreed to find meth lab and offered to supply D w/ an essential ingredient for making meth.  P revealed that they were already making meth.  At subsequent meeting, P said they had recently obtained the ingredient and wouldn’t need more for a couple of days.  Ingredient was said to be difficult to obtain.  D convicted; Ct of App rev’d, holding that D was entrapped.  SC rev’d.

b.      Reasoning (Rehnquist):

          i.   Lower courts are confused.  Two alternative theories of entrapment:  (1) whenever gov’t supplies contraband to Ds; or (2) whenever gov’t is so enmeshed in criminal activity that prosecution of Ds is repugnant to American criminal justice system. 

         ii.   Sorrells v. U.S. (1932):  Entrapment prohibits law enforcement officers from instigating a criminal act by persons otherwise innocent in order to lure them to its commission and to punish them.  Focuses on intent or predisposition of D to commit the crime.  Matter of statutory construction.

        iii.   Sherman v. U.S. (1958) reaff’d Sorrells.  C.J. Warren drew line between “the trap for the unwary innocent and the trap for the unwary criminal.” 

        iv.   D wants use to find entrapment wherever crime couldn’t have been carried out w/o officer.  But ingredient here could’ve—indeed, was—obtained by Ds w/o gov’t.  S’s contribution was scarcely objectionable. 

         v.   Reaff’d Sorrells and Sherman. 

        vi.   We should immunize someone who planned to commit the crime just b/c some hypothetical, innocently disposed person might have been seduced by gov’t. 

c.       Dissent:  Majority adopts subjective approach.  We prefer objective approach, which focuses not on D’s propensities, but rather on whether the police acted in such a way as is likely to instigate or create a criminal offense. 

d.      Kamisar, speaking of the Biblical tale of the beguiling serpent:  “I’m perfectly happy to give up the exclusionary rule if I can get cops to crawl on their bellies.” 

2.   Subjective v. Objective Test

a.       California uses the objective, “hypothetical person” test:  Was the police conduct likely to induce a normally law-abiding person to commit the offense?  People v. Barraza (Cal. 1979) (409).

b.      Roger Park (409) doubts that the objective person test could control the conduct of police and informers. 

c.       Objective test ignores the criminal’s predisposition and focuses on the propriety of the inducement.  Subjective test focuses on criminal’s predisposition to commit the crime. 

d.      Subjective test permits the use of otherwise inadmissible hearsay and suspicions—including prior arrests, prior misconduct, and reputation—to prove disposition.  Park suggests that these shouldn’t be admissible simply because accused has raised entrapment defense.  If stripped of this propensity evidence, subjective test would become very reliable. 

e.       Seidman (410):  Two tests really aren’t that different.  A D who responds favorably to “proper” inducements has thereby conclusively demonstrated that he is disposed to crime when such an inducement is offered. 

f.       K:  Problem with objective test is that criminals will figure out what gov’t can’t do and work around it.

3.   More on the Entrapment Defense

a.       Williamson v. U.S. (5th Cir. 1962) (411):  Absent special justification, an informer could not be paid a contingent fee for obtaining admissible evidence.  This case has been largely ignored; other cts have disagreed.  See U.S. v. Grimes (6th Cir. 1976); see also Miller below. 

b.      Matthews v. U.S. (1988) (412):  Even if D denies one or more elements of crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment.

c.       Burden is on D.

         F.   Due Process Defense to Gov’t “Overinvolvement” in Crime

               1.   Hampton v. U.S. (1976) (413):  Gov’t was not overly involved even though gov’t agent sold the drugs to D, who later sold them to another gov’t agent.  Plurality relied on subjective test and refused to find an exception to Russell.  5th Am DPC comes into play only when gov’t violates some protected right of D, and none was implicated here.  Powell, concurring, character plurality as concluding that “no matter what the circumstances, neither due process principles nor our supervisory power could support a bar to conviction in any case where the Gov’t is able to prove disposition.”  Dissenters called again for objective approach.

               2.   U.S. v. Twigg (3d Cir. 1978) (415 fn. a):  Apparently the only post-Hampton federal appellate decision to invalidate a conviction on basis of due process defense, Twigg featured extensive gov’t involvement (and resources) in “speed” lab. 

               3.   K:  One form of the objective test finds entrapment where what the gov’t did is “repugnant” to the American justice system.  Cites Twigg and Posner’s hypo (435).

               4.   U.S. v. Simpson (9th Cir. 1987) upheld use of informant, a drug user and prostitute, to seduce D and lure him into selling drugs to gov’t agents.  Falls short of requisite brutality and coercion that constitutes outrageousness. 

               5.   U.S. v. Miller (7th Cir. 1989) upheld use of undercover agent who had a contingent fee arrangement w/ gov’t, who had been a cocaine addict before and during employment, and who had earlier been sexually intimate w/ D.  Not outrageous.  Easterbrook, concurring, would have gone further, arguing that there should be no due process defense in entrapment cases. 

               6.   Marcus (417), however, argues that due process defense in entrapment cases is important b/c “it creates outer limits on appropriate law enforcement techniques and b/c it clearly demonstrates to the legal and law enforcement communities, and to society at large, that courts are indeed willing to draw some lines that cannot be crossed even in pursuit of criminals.” 

               7.   U.S. v. Kelly (D.C. Cir. 1983) (417)

a.       Facts:  Abscam scandal.  Congressman Kelly involved in complicated scheme in which FBI attempted to catch politicians accepting bribes from Arabs.  W told C that wealthy Arabs wanted to ensure private immigration legislation would get passed.  C told D, who said he would help for a fee and for investment in his district.  Eventually D met w/ an undercover agent and, after some persuading by agent, accepted direct payment. 

b.      Did FBI’s involvement violate due process?  Ct:  No.  Not demonstrable level of outrageousness; not significantly different from undercover drug operations.  D only objected to manner in which he was paid, not payment itself.  Entrapment requires “intolerable gov’t conduct.” 

c.       Ruth Bader Ginsburg, concurring:  This is extraordinary, but doesn’t meet SC’s requisite level of outrageousness, b/c no coercion, violence, or brutality to person.

8.   Prof Gershman proposes federal entrapment statute that requires gov’t agents to offer inducements only to individuals engaged in, or reasonably suspected of engaging in, criminal activity.

         G.  Recent Developments in the Entrapment Area

               1.   Jacobson v. U.S. (1992) (424)

a.       Feds added D to suspect list b/c he bought magazines containing nude preteen and teenage boys.  Gov’t sent him fake materials to enroll in fictitious organizations.  D returned questionnaire, indicating he was opposed to pedophilia.  After further solicitation and direct correspondence, D ordered a magazine from a fake company and was arrested.  8th Cir. aff’d conviction; SC rev’d.

b.      Reasoning (White):

          i.   “[I]n their zeal to enforce the law [the Gov’t] may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Gov’t may prosecute.” 

         ii.   Prosecution has burden to prove beyond reasonable doubt that D was disposed to commit the criminal act prior to first being approached by gov’t agents. 

        iii.   “[E]vidence that merely indicates a generic inclination to act within a broad range, not all of which is criminal, is of little probative value…” 

        iv.   D was acting w/in the law when he ordered the first magazines. 

         v.   Gov’t can’t implant in D’s mind the disposition to commit the crime.  If left to his own devices, he would never have run afoul of the law.  K says lower courts are latching onto italicized language.

2.   Posner in Miller says these kinds of police practices are not efficient.

3.   Some commentators suggest that Jacobson blended subjective and objective tests. 

4.   Reverse-sting cases—i.e., where gov’t is seller, rather than buyer of contraband, as in Jacobson. 

5.   U.S. v. Gendron (1st Cir. 1994) (434) (Breyer) noted two underlying principles:  (1) protection of ordinary, law-abiding citizen against (2) gov’t overreaching.  Thus, the question should be:  How would the D likely have reacted to an ordinary opportunity to commit the crime?  That is, was D “’predisposed’ to respond affirmatively to a proper, not an improper, lure?” 

6.   U.S. v. Hollingsworth (7th Cir. 1994) (Posner) (435) required positional predisposition.  That is, entrapment exists where D is incapable of carrying out crime w/o gov’t’s aid and would not have done so were it not for the gov’t’s appearance.  See Posner’s hypo on 435-36. 

7.   U.S. v. Knox (5th Cir. 1997) (437):  5th Cir., while acknowledging that 9th and 1st Circuits adopted different tests, followed Hollingsworth’s positional predisposition test in holding that D was entrapped as a matter of law where “the gov’t failed to prove that the preacher was likely to engage in money laundering absent the gov’t’s conduct.” 



         A.  Introduction

               1.   Report of AG’s Committee on Poverty and Criminal Justice (1963) (60):  “The essential point is that the problems of poverty with which this Report is concerned arise in a process initiated by the gov’t for the achievement of basic governmental purposes…  While gov’t may not be required to relieve the accused of his poverty, it may properly be required to minimize the influence of poverty on its administration of justice.” 

               2.   Indigent D’s “obligation” to repay gov’t for defense costs.

a.       Rinaldi v. Yeager (1966) (62) invalidated as invidiously discriminatory a NJ statute requiring only those Ds who were sentenced to prison to reimburse gov’t for legal costs.

b.      Fuller v. Oregon (1974) upheld an Oregon recoupment statute that, under certain circumstances, authorized repayment to state of costs of free legal defense as condition to probation. 


               1.   Betts v. Brady (1942) (63) (K “one of the ten worst”)

a.       Betts, an indigent, was accused of robbery; local practice permitted appointed counsel only in rape and murder cases.  Convicted and sentenced to 8 yrs.

b.      Does Constitution require appointment of counsel in these circumstances?  Ct:  No. 

c.       Reasoning (Roberts):

          i.   14th Am DPC does not incorporate the 6th Am.  Due process is a “less rigid and more fluid” concept than other specific provisions of Bill of Rights.  Must appraise totality of facts in a given case. 

         ii.   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. 

        iii.   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.

        iv.   In the states, it’s a matter of legislative policy.  May not be fair, but 14th Am doesn’t demand it.  We shouldn’t straight-jacket the states. 

d.      Black’s bitter dissent: 

          i.   I think 14th Am made 6th Am applicable to the states.  But since Ct has never said that, Betts still deserved counsel under due process analysis. 

         ii.   Right to counsel in a criminal proceeding is a fundamental right.  “Whether a man is innocent cannot be determined from a trial in which, as here, denial of counsel has made it impossible to conclude, with any satisfactory degree of certainty, that the D’s case was adequately presented.”

2.   Gideon v. Wainwright (1963) (67)

a.       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. 

b.      Q:  Are the States required to provide counsel to the indigent?  Ct: Yes.

c.       Reasoning (Black):

          i.   Guarantee of counsel is a fundamental right; 6th Am is made obligatory upon the States by the 14th Am. 

         ii.   Betts departed from Powell.  We now overturn Betts.  Twenty-two states support our ruling. 

        iii.   “Gov’ts, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime.  Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society…  [L]awyers in criminal courts are necessities, not luxuries.”

3.   Argersinger v. Hamlin (1972) (71)

a.       Ct struck down Florida rule requiring that counsel be appointed only for “nonpetty offenses punishable by more than six months imprisonment.”  Court held that, “absent a knowing and intelligent waiver, no person may be imprisoned for any offense” unless represented by counsel.  Flat guarantee of counsel for any offense for which the accused may be imprisoned.  Provides bright-line rule for judges. 

b.      Powell’s concurrence, joined by Rehnquist, says that right to counsel in petty offense cases should be a case-specific determination in trial judge’s discretion.  Considerations:  complexity of offense; probable sentence; other individual factors. 

4.   Scott v. Illinois (1979):  Ct, per Rehnquist, declined to extend Argersinger to a case where one is charged with an offense for which imprisonment upon conviction is authorized but not imposed.  Actual imprisonment is the line defining the constitutional right to appointment of counsel.  No indigent criminal D can be imprisoned unless he had counsel.  K:  Literally, Scott applies to felonies as well as misdemeanors. 

5.   Can a prior uncounseled misdemeanor conviction be used to enhance a D’s prison sentence when, given counsel, he is convicted of a second crime?

a.       Baldasar v. Illinois (1980) (75) (held no; D may not be given an increased prison term only b/c he was convicted in a previous case in which he didn’t have counsel). 

b.      But Baldasar was overruled in Nichols v. U.S. (1994) (Rehnquist) (holding that an uncounseled nolo contendere plea to a state misdemeanor could be used to enhance prison sentence for federal drug charge). 

               6.   When does the right to counsel begin or attach?  See p. 76.

a.       See infra Miranda (“custodial interrogation”); Wade (pretrial lineups); Coleman (preliminary hearing). 

b.      Compelled self-incrimination cases aside, one only has the right to counsel (1) at a “critical stage” of (2) the “prosecution.”  See infra Ash, Kirby, Williams I:  right to counsel doesn’t come into play simply b/c suspect has become prime suspect or focal point (contrary to Escobedo); person is entitled to counsel, assuming the prosecution has reached a critical stage, at or after the time that judicial proceedings have been initiated against him, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment, presumably as early as the first appearance before a judicial officer. 

c.       When judicial proceedings have not been initiated, Miranda strikes the appropriate balance.   

d.      U.S. v. Gouveia (1984) (76):  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. 

         C.  The Griffin-Douglas “Equality” Principle

               1.   Griffin v. Illinois (1956) (78)

a.       14th Am Due Process and Equal Protection Clauses require that all indigent defendants be furnished a transcript for appeal, at least where allegations that manifest errors occurred at trial are not denied. 

b.      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.” 

c.       Through the ‘60s, Griffin was broadly applied to cover filing fees, transcripts of hearings, longer incarceration for inability to pay fines, etc. 

d.      Mayer v. Chicago (1971) (79) 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. 

2.   Douglas v. California (1963) (80)

a.       Facts:  Indigent petitioners requested, and were denied, assistance of counsel on appeal.  SC rev’d.

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

          i.   “[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.”

         ii.   “When an indigent is forced to run this gauntlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure…  There is lacking that equality demanded by the 14th Am where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record… while the indigent… is forced to shift for himself.” 

c.       K thinks that, constitutionally, a State could make appeals for all Ds discretionary.  K:  In forma pauperis appeals are only frivolous b/c Ds don’t know what they’re doing.

d.      Harlan’s dissent: 

          i.   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. 

         ii.   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. 

3.   Ross v. Moffitt (1974) (84)

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 (Rehnquist):

          i.   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.”

         ii.   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.       K:  “Indigence is not a convenient valve for reducing the impact of a decision the gov’t imposes on the merits.”  [Where’s this quote from?]

4.   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.” 

5.   Ake v. Oklahoma (1985) (90)

a.       Holding (Marshall):

    i.   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.” 

   ii.   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.       Burger, concurring, said this is limited to capital cases.  Rehnquist, dissenting, thought the constitutional rule announced by the Court was “far too broad.” 

d.      K:  Ake doesn’t go far enough. 

6.   Court, in determining whether something is a “basic tool,” whether it is a “virtual necessity.” 


               1.   Gagnon v. Scarpelli (1973) (94)

a.       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. 

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

c.       Reasoning (Powell):

          i.   Mempa v. Rhay (1967) held that propationer is entitled to be represented by appointed counsel at a combined revocation and sentencing hearing.  We said that counsel is required “at every stage of a criminal proceeding where substantial rights of an accused may be affected.” 

         ii.   The rule D wants would impose substantial costs without regard to need.  There’s not great need here.  This would alter the nature of the proceedings, making them more litigious. 

        iii.   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.

        iv.   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. 

2.   The Right to Counsel and the Loss of Liberty

a.       Middendorf v. Henry (1976) (98):  No right to appointed counsel at summary courts-martial, even though could get 30 days hard labor.  Ct (per Rehnquist):  “[T]he fact that the outcome of a proceeding may result in loss of liberty does not by itself, even in civilian life, mean that the 6th Am’s guarantee of counsel is applicable.”   

b.      In re Gault (1967) (98):  Established a right to appointed counsel in juvenile delinquency proceedings that may result in the loss of the child’s freedom. 

c.       Lassiter v. Dept. of Social Services (1981) (99):  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.  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.

               3.   Collateral Attack Proceedings

a.       Bounds v. Smith (1977) (99):  States must affirmatively provide “meaningful access” to the courts for inmates by allowing inmate “writ writers” to function.  This means allowing, as Johnson v. Avery (1969) held, inmates to furnish assistance to other inmates seeking post-conviction relief, unless and until the State provides some reasonable alternative.  It does not require the States to expend State funds to implement the right affirmatively.  But States do have to furnish law libraries or adequate assistance from persons trained in the law.  Rehnquist and Burger, of course, dissented, saying that Court was enunciating a fundamental right of “access to the courts” found nowhere in the Constitution. 

b.      Pennsylvania v. Finley (1987) (100):  Even if a State decides a D is entitled to counsel in a post-conviction hearing, that counsel may decide that the claims are w/o merit and withdraw w/o following the federal constitutional procedures prescribed in Anders.  Ct, per Rehnquist:  “We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks to their convictions and we decline to so hold today.” 

c.       Murray v. Giarratono (1989) (101):  Ct refused to read Bounds broadly to require a state to appoint counsel for death penalty appeals.  The state does have to allow access to law libraries or other aids in post-conviction appeals, but not to counsel.  Finley applies to capital and noncapital cases alike, imposing limits on Bounds.  Safeguards imposed by 8th Am at trial stage are sufficient to assure due process.

                i.   Mello (105):  “No greater risk is available in our legal world.  Nowhere is a mistake more profound.  At the same time, the state, scenting blood…, deploys its finest to secure a death.”

d.      Lewis v. Casey (1996) (106):  Ct, per Scalia, read Bounds quite narrowly, holding that inmates seeking class relief for inadequate right of access to courts must show widespread “actual injury.”  Ct emphasized that Bounds did not establish the right to a law library or to legal assistance, but merely required states to provide those tools that inmates need to attack their sentences or prison conditions.  Inmates must show that lack of law library actually hindered their efforts to pursue a legal claim.  A group of Justices, led by Souter, concurred in part and dissented in part.




               1.   Fred Inbau, “Police Interrogation—A Practical Necessity (1962) (439)

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

b.      Opportunity for interrogation.”

c.       “Unhurried interview.”

d.      Questioning suspects “not otherwise unwilling to talk.” 

e.       Notion of benevolent interrogation that can clear the innocent.

2.   Kamisar, “Equal Justice in the Gatehouses and Mansions” (1965) (443)

3.   Joe Grano, “Confessions, Truth, and the Law” (1993) (447)

a.       The availability of police to interrogate suspects made it possible to take that role away from judges.

b.      Historically, there has never been much approval of protections for those to admit to crimes.  Common law voluntariness rules didn’t apply to police at all.


               1.   The Due Process “Voluntariness” Test

a.       For centuries the rule that a confession was admissible so long as it was “voluntary” was more or less an alternative statement of the rule that a confession was admissible so long as it was free of influence that made it untrustworthy or “probably untrue.”

b.      In its advanced state (the early 1960s), the “due process” or “voluntariness” test had three underlying values or goals.  Barred the use of confessions that (a) were of doubtful reliability b/c of the police methods used to obtain them; (b) were produced by offensive methods even though reliability was not in question; and (c) were involuntary in fact (e.g., obtained from drugged person) even though entirely trustworthy and not the product of police wrongdoing. 

c.       At the outset, however, the primary bases for excluding evidence under the “voluntariness” was the “untrustworthiness” rationale.  Confession rule was designed merely to protect integrity of fact-finding process.

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.” 

d.      Ashcraft v. Tennessee (1944):  Conviction reversed where confession obtained after some 36 hours of continuous “relay” interrogation.  Prof. Hancock says Ashcraft was a milestone b/c it prefigured Miranda’s recognition of the coercion inherent in all custodial interrogation.

e.       Watts v. Indiana (1949) (452):  Excluded confessions even though extrinsic evidence verified their accuracy and reliability.  Court stressed the need for  “appropriate procedure before liberty is curtailed or life is taken.” 

f.       Rochin v. California (1952) (supra p. 2):  stomach-pumping case.  DP requires States to “respect certain decencies of civilized conduct.”  “Coerced confessions offend the community’s sense of fair play and decency.”  (Emphasis added.)

g.      Spano v. New York (1959) (453):  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.” 

h.      Rogers (per Frankfurter):  “Our decisions under [the 14th Am] have made clear that convictions following the admission into evidence of [involuntary confessions] cannot stand… because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system.” 

i.        As the Court stated in Schneckloth (supra p. 30), there was no single controlling criterion in due process confession cases; rather, “each reflected a careful scrutiny of all the surrounding circumstances,” including “the characteristics of the accused… and the details of the interrogation.”    Examples:  stripped naked for several hours; threatening to cut off aid to suspect’s children; isolated locale; refusing to allow phone call; pretending to bring D’s invalid wife; saying that “childhood friend” had gotten in “a lot of trouble”; using psychiatrist w/ considerable knowledge of hypnosis.

2.   Shortcomings of the “Voluntariness” Test

a.       Seems at once too wide and too narrow.

b.      Shulhofer:  It virtually invited trial judges “to give weight to their subjective preferences” and “discouraged review even by the most conscientious appellate judges.”

c.       “Swearing contest” was almost always resolved in favor of police. 

d.      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.

3.   The McNabb-Mallory Rule

a.       McNabb v. U.S. (1943) (457)  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.      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.   Right to Counsel

a.       Crooker v. California (1958) (459):  Admitted the confession of a suspect who indicated that he knew of his right to remain silent and was denied a request contact his lawyer.

b.      Cicenia v. La Gay (1958):  Aff’d conviction of D who unsuccessfully asked to see his lawyer while being questioned even though his lawyer was at the station asking to be let in.  Citing Crooker, the Court said D had no const’l right to confer with counsel. 

c.       Spano held that once a person is formally charged by indictment, his right to counsel—or at least to counsel he himself had retained—attaches. 

5.   Massiah v. U.S. (1965) (460)

a.       Facts:  D released on bail after being indicted and retaining a lawyer.  C, D’s co-D, cooperated w/ feds and had  radio transmitter in care while eliciting incriminating statements from D. 

b.      Court (Stewart): 

          i.   Decisive feature was that D had been indicted and was therefore “clearly entitled to a lawyer’s help” at a time when he was awaiting trial. 

         ii.   D subjected to a “completely extrajudicial” proceeding designed to obtain incriminating statements.  He may not have been in a coercive atmosphere, but he didn’t know that he needed to be on his guard. 

        iii.   D was denied the basic protections of the right to counsel; statements couldn’t be used against him at trial. 

c.       Dissenters emphasized that wasn’t in custody and wasn’t under police interrogation; no official pressure.  Nor was D prevented from conferring w/ counsel as often as he wished. 

d.      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. 

               6.   Escobedo v. Illinois (1964) (462)

a.       Facts:  D was arrested for murder, repeatedly asked to speak to his lawyer, whom he had already retained.  Lawyer arrived at station and tried unsuccessfully for several hours to speak to D.  Police ignored, arranged confrontation between D and man who had pointed finger at him.  D made incriminating statements.  SC rev’d conviction.

b.      Reasoning (Goldberg):

          i.   Note that ACLU brief made extensive use of police manuals.

         ii.   Decision has “accordion-like quality,” says K. 

        iii.   D hadn’t been indicted, but when he requested and was denied the opportunity to speak to lawyer, the investigation ceased to be a general investigation.  D became the accused.  Needed counsel.  “This was the ‘stage when legal aid and advice’ were most critical.” 

        iv.   “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.” 

      c.   Stewart, dissenting, distinguished Massiah—here no judicial proceedings had been initiated against D. 

7.   Moving toward a self-incrimination privilege:  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). 


               1.   MIRANDA v. ARIZONA (1966) (475)

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.      Reasoning (Warren):

          i.   Privacy results in secrecy.  Looks at police manuals, discussing various tactics like good cop/bad cop (“Mutt and Jeff”), trickery. 

         ii.   Emphasizes that “interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner.  This atmosphere carries its own badge of intimidation.”  Compulsion inherent in custodial surroundings.  K:  Ct has limited “custody” to the stationhouse interrogation room.  Doesn’t extend to questioning on the street, in squad car, etc. 

        iii.   Intimate connection between 5th Am privilege against self-incrimination and police custodial questioning.  Privilege is a substantive right—part of privacy; gov’t must respect “the dignity and integrity of its citizens.”  Privilege is fulfilled only when person is guaranteed the right to remain silent. 

        iv.   Presence of counsel is a protective device necessary to make sure cops conform to the dictates of the privilege.  K:  At one place, Ct comes very close to saying that the interrogation must be recorded, but it backs off. 

         v.   Key ¶ on p. 489.  In order to permit full opportunity to exercise privilege against self-incrimination, “accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.”

        vi.   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.

        vi.   Warnings: 

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.

d.      If you can’t afford a lawyer, one will be appointed for you.

             vii.   Once warnings have been given, if suspect indicates “in any manner, at any time prior to or during question, that he wishes to remain silent, the interrogation must cease.” 

            viii.   “Our decision today in no way creates a constitutional straitjacket.”  Encourages legislatures to experiment.  K:  Brennan made Warren put this in. 

c.       White’s bitter dissent is famous.  This decision has the effect of virtually eliminating confessions and preventing the conviction of numerous guilty Ds.  D can blurt out confession and it’s okay, but if the confession is preceded by a single question from the cops, it’s inadmissible.  Absurd. 

d.      K:  Miranda is a series of holdings:

          i.   5th Am applies to informal as well as formal proceedings.

         ii.   Privilege applies to stationhouse coerced confessions.

        iii.   Must dispel coercion. 

        iv.   This is one way to neutralize the compulsion.  Do this and you’re okay.

2.   Title II of the Omnibus Crime Control and Safe Streets Act of 1968:  § 3501

      a.   Purported to overrule Miranda. 

b.   Codifies the voluntariness test.  Trial judge in determining voluntariness should consider all circumstances surrounding the giving of the confession.  Lists various factors from Miranda and Escobedo, but those factors “need not be conclusive.”  And the fact that warnings had or had not been given was considered by judges before Miranda anyway.

c.       K:  By the time § 3501 reached the Court in Dickerson, a plausible case for upholding it was established by decisions like Tucker, Quarles, and Elstad, which called it a “prophylactic rule,” not a constitutional decision. 

3.   U.S. v. Dickerson (2000) (32)

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):

          i.   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.”

         ii.   Congress intended, in passing § 3501, to overturn Miranda.  It can’t do that.  See Boerne.

        iii.   There is language in some of our opinions that suggests, as the 4th Cir. concluded, that Miranda isn’t a constitutional decision.  But that’s wrong. 

        iv.   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.

b.      Language of Miranda itself indicates that majority thought it was announcing a const’l rule. 

c.       Exceptions from Miranda (e.g., Quarles, Roberson) simply illustrate the principle “that no constitutional rule is immutable.  No court laying down a general rule can possibly foresee the various circumstances in which counsel will seek to apply it, and the sort of modifications represented by these cases are as much a normal part of constitutional law as the original decision.” 

d.      We indicated in Miranda that legislatures could try other solutions, but § 3501’s protections don’t meet the constitutional minimum.

e.       Stare decisis.  Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture”  Sometimes we overrule precedent “when subsequent cases have undermined their doctrinal underpinnings, [but] we do not believe that this has happened to the Miranda decision.  If anything, our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision’s core ruling that unwarned statements may not be used as evidence in the prosecution’s case in chief.” 

d.      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. 

e.       Scalia (joined by Thomas), dissenting.

          i.   This is frighteningly antidemocratic.  Majority thinks it has the power not merely to apply the Constitution, but to expand it. 

         ii.   K:  Scalia makes some good points.  Orozco seemed directly to flow from Miranda, but it’s no longer good law.  (Orozco (1969) excluded statements made outside of stationhouse.  4 cops questioned D in bedroom at 4:00 a.m.  Ct said “potentiality for compulsion” was equivalent to police station interrogation.) 

        iii.   Miranda just protects against foolish, not compelled, confessions.   Palpable hostility to confessions per se. 

        iv.   Ct has squarely concluded that a violation of Miranda is not a violation of the Constitution itself. 

         v.   Stare decisis cuts both ways.  What about Tucker and Elstad? 

        vi.   Cites North Carolina v. Pearce (1969) as a true prophylactic rule.  There the Court concluded that due process is offended when judge vindictively makes sentence more severe because D has successfully appealed original conviction.  In order to guard against this, judges must affirmatively state the reasons for an increased sentence based on objective information.  The Court, says Scalia, doesn’t have this kind of power to prescribe particular devices.  Therefore, Miranda represents an illegitimate exercise of our authority to review state court judgments. 

4.   A Word on Prophylactic Rules

a.       A prophylactic rule is a rule designed to make a constitutional provision meaningful and more practical; it provides “breathing space.” 

b.      The new LaFave treatise defines a prophylactic rule as a preventive measure designed to prevent a constitutional violation rather than to identify what constitutes a violation.  A per se rule, by contrast, identifies what constitutes a constitutional violation.  K thinks this distinction breaks down.  See, e.g. McNabb-Mallory. 

c.       Strauss calls prophylactic rules “a central and necessary feature of constitutional law.” 

d.      A lot of rules, such as Ashcraft, have been termed prophylactic in retrospect.  But the Court has been sloppy in its use of the term.  For example, White’s majority opinion in Edwards called its rule at various times prophylactic and per se. 

e.       Dickerson seems to be calling Miranda a per se rule that identifies a violation.  But it’s not clear. 

5.   Applying and Explaining Miranda

a.       Duckworth v. Eagan (1989) (511):  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.

c.       Colorado v. Spring (1987) (514):  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.  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.”  Dissent:  Trickery + surprise à coercion. 

d.      Miranda’s “custody” test has replaced Escobedo’s “focus” test. 

          i.   Footnote 4 in Miranda said that Escobedo, in saying that right to counsel kicks in when an investigation focuses on the accused, meant custodial interrogation.  So “focus” is gone.

         ii.   Beckwith v. U.S. (1976) (516):  IRS agents “interviewed” D in his private home.  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 defined “focus” 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.”  

        iii.   Stansbury v. California (1994) (per curiam) (516):  Officer’s subjective and undisclosed view about whether person is a suspect is irrelevant in determining whether person is actually in custody. 

        iv.   Rule:  Absent special circumstances (such as arresting a suspect at gunpoint or forcibly subduing him), police questioning “on the street,” in a public place, or in a person’s home or office is not “custodial.”  Cf. Schneckloth v. Bustamonte (supra p. 30, regarding consent searches). 

         v.   U.S. v. Mesa (3d Cir. 1980) (fn a 516-17):  Admitted statements of D who barricaded himself in motel room after shooting his wife and daughter and made incriminating statements over mobile phone to a “hostage negotiator.”  One judge emphasized that D was not in custody, that he prevented police from exercising control over him, and that they didn’t have the opportunity to give him his warnings.  Dissent argued that he was in fact under the immediate control of law enforcement officials who restrained his movement.

e.       So what constitutes “custodial interrogation?”

          i.   Oregon v. Mathiason (1977) (per curiam) (518):  D agreed to meet with police on own accord, voluntarily went to stationhouse.  Office told him he wasn’t under arrest, and he confessed a few moments later.  Ct held that he was not subject to “custodial interrogation.”  This case is also noted because the interrogator falsely stated to D that D’s fingerprints were at the scene.  This is, said the Court, had nothing to do with the “custody” question. 

         ii.   California v. Beheler (1983) (per curiam):  “Custodial interrogation” did not occur where D voluntarily accompanied police to stationhouse for questioning. 

        iii.   Berkemer v. McCarty (1984) (518) (Marshall):  “Roadside questioning” of a motorist detained pursuant to a routine traffic stop does not amount to “custodial interrogation.”  Traffic stop is presumptively temporary and brief, and it’s public.  Atmosphere is substantially less “police dominated”—more like a Terry stop.

6.   Rhode Island v. Innis (1980) (519)

a.       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. 

b.      Q:  Was D “interrogated” in violation of Miranda?  Ct:  No.

c.       Reasoning (Stewart):

          i.   Miranda was concerned that the interrogation environment subjugates the individual’s will.  But that doesn’t mean that all statements obtained by police after person is in custody are the product of interrogation.  “Interrogation” must reflect a measure of compulsion above and beyond that inherent in custody itself. 

         ii.   Fn 4 distinguishes Williams I, characterizing that decision as holding that Massiah prohibits officers from “deliberately elicit[ing]” incriminating information from D in absence of counsel after formal charge is filed.  Definitions of “interrogation” under 5th and 6th Am aren’t necessarily interchangeable, since policies are different. 

        iii.   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.” 

        iv.   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. 

d.      Marshall and Brennan, dissenting:  We like your definition, but not its application.

e.       Stevens, dissenting:  Test shouldn’t be likelihood; it should be whether what the police do has “the same purpose or effect as a direct question.” 

f.       K likes Stevens’s approach more.  K thinks it’s implausible that cops would’ve had this conversation in the absence of suspect.  But K acknowledges that Court could have done worse in Innis by limiting “interrogation” to direct questioning.  The gov’t conceded that if police admitted that they inteded to elicit a response, it would violate Miranda.  But Rehnquist says the opposite in Quarles n.6 (534) (characterizing Innis as holding that “officer’s subjective intent to incriminate not determinative of whether “interrogation” occurred.)

g.      K thinks that Innis would have been decided different had it come after Quarles (in which case Ct would have invoked public safety exception) and/or Edwards (given that D asked for lawyer). 

               7.   Arizona v. Mauro (1987) (526)

a.       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.

b.      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.

c.       Dissenters:  Detectives clearly intended to elicit statement, and D clearly wished to remain silent.

8.   Illinois v. Perkins (1990) (528)

a.       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. 

b.      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.

c.       Ct (Kennedy):  Miranda warnings aren’t required when suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement.  Coercion is determined from the perspective of the suspect.  No coercive atmosphere. 

d.      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. 

9.   Pennsylvania v. Muniz (1990) (530)

a.       Facts:  D arrested for drunk driving.  Without reading Miranda warnings, cop asked him to perform 3 standard field sobriety tests.  Cop then asked seven booking questions and the birthday question.  Then D repeated same sobriety tests.  Throughout, he made incriminating statements and actions.  Finally, D refused breathalyzer test. 

b.   Ct, per Brennan, excluded only the birthday question. 

          i.   South Dakota v. Neville (1983) (not mentioned here; see fn a, 521) (holding that “in the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda.”  Similar to fingerprinting or photography.)

         ii.   Under Schmerber, slurred speech and lack of muscular coordination are not testimonial.  And officer’s questions were mostly carefully scripted instructions, not words or actions constituting interrogation.

        iii.   But the birthday question required a testimonial response, and D wasn’t really given the option of remaining silent.

10. New York v. Quarles (1984) (532)

a.       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.

b.      Reasoning (Rehnquist):

          i.   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.” 

         ii.   Exception doesn’t depend on officers’ motivations.  “Kaleidoscopic situation” where “spontaneity” controls. 

        iii.   Here, the gun might have been grabbed and used by an accomplice or found by customer. 

        iv.   Exception circumscribed by exigency that justifies it; police can “instinctively” distinguish between interrogation and questions necessary for public safety.

c.       K:  There was no public safety threat here.  Dissent:  If there’s really a threat, then just do what you need to do.  Evidence may be excluded and you may lose conviction, but at least you’ll abate the threat.

d.      O’Connor’s concurrence/dissent is more important, because it’s about fruit.  She would have excluded the statement about the gun but not the gun itself, because “nothing in Miranda or the privilege itself requires exclusion of nontestimonial evidence derived from informal custodial interrogation.” 

e.       Weisselberg (538) says Quarles hasn’t opened the door to other large exceptions as widely as some initially feared.  He notes that since Quarles, SC has not approved any other instances of custodial interrogations in which warnings need not be given.

11. More on the Public Safety Exception

a.       State v. Finch (Wash. 1999):  D engaged in phone conversation with negotiator after shooting and killing two people, including a police officer, stating that he would shoot other officers.  Ct invoked “public safety” exception to dispose of this “hostage situation.”  Compare Mesa, supra p. 50. 

b.      People v. Oquendo (App.Div.NY 1999):  D kept misleading police, telling them he’d show them where the “BB gun” was but taking them to the wrong places.  After 5 hours of this, the cops told him that his co-D told them it was a 9 mm, not a BB gun, and they said if someone found it and got hurt, D was responsible.  He finally told them where it was.  Ct said public safety exception applied, holding that Quarles said “police should have flexibility to respond to true emergency circumstances, whether the danger is momentary or ongoing.”  Declined to set artificial time limits. 

12. Meeting the “heavy burden” of demonstrating waiver.

a.       Should tape recordings of the warnings and police questioning be required?  See the Cassell-Shulhofer debate from the symposium and in the book, 540-42. 

b.      North Carolina v. Butler (1979) (543):  “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. 

c.       Ct has read the waiver req’t rather loosely.  It doesn’t  have to be in writing.  See Connecticut v. Barrett (1987) (545).

13. What constitutes an invocation of Miranda rights?  Fare v. Michael C. (1979) (546):  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. 

               14. The Distinction Between 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.      Michigan v. Moseley (1975):  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.” 

c.       Moseley suggests three minimal requirements for resuming questioning after a suspect asserts his right to remain silent:

          i.   immediately ceasing the interrogation;

         ii.   suspending questioning entirely for a significant period; and

        iii.   giving a fresh set of Miranda warnings at outset of second interrogation.

d.      Edwards v. Arizona (1981) (548)

          i.   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.

         ii.   Ct (White):  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. 

e.       Arizona v. Roberson (1988) (548):  Extended Edwards to prohibit the police from initiating interrogation about crimes other than the one for which the suspect has invoked his right to counsel.

f.       Minnick v. Mississippi (1990) (549)

          i.   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.

         ii.   Does the Edwards protection cease once the suspect has consulted with an attorney?  Ct:  No. 

        iii.   Reasoning (Kennedy):  Edwards draws a bright line barring police-initiated interrogation unless the accused has counsel with him at the time of questioning.  “[W]e now hold that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused as consulted with an attorney.”  Allowing Edwards’ protection to pass in and out of existence would be too confusing. 

        iv.   Scalia, joined by Rehnquist, dissenting:  This makes waiver impossible.  “[P]rophylaxis built on prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement.”  Ct is trying to protect stupid people from their own folly.  Either Moseley is wrong or Edwards is wrong; they can’t both be right. 

         v.   K doesn’t understand Minnick.  Why isn’t it enough that they honored his request for a lawyer? 

15. When does the “question-proof” status end?  What constitutes “initiating” further communication with the police? 

      a.   Magid (557):Miranda and its progeny do not require that an inmate who has invoked his right to counsel remain forever question-proof.  She thinks an inmate who has been sentenced and has settled into routine prison life is not in Miranda custody, and should only be considered in Miranda custody when some additional restraint beyond prison life is imposed.

b.   Oregon v. Bradshaw (1983) (557)

          i.   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.  Court, in splintered opinion, held that D could not avail himself of Edwards.

         ii.   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? 

        iii.   Dissenters said D was responding to his custodial surroundings.

        iv.   K says the question should be whether the suspect’s statement or question is related to the merits of the case against him—e.g., if suspect asked, “What kind of evidence do you have against me?”  K also says that administrative questioning is okay.

16. How direct, assertive, & unambiguous does suspect have to be to invoke right to counsel? 

a.       Davis v. U.S. (1994) (561)

          i.   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.

         ii.   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.” 

        iii.   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.” 

        iv.   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. 

b.      Meuller v. Commonwealth (Va. 1992):  D waived rights, but 2 hours into interrogation, he asked the detective, “Do you think I need an attorney here?”  Detective, shrugging, responded, “You’re just talking to us.”  VA SC upheld, but DOJ in its Davis brief specifically disapproved of the VA SC’s holding that the detective’s response didn’t violate Miranda.  U.S. argued that the officer’s questions should be objectively neutral.  Collazo v. Estelle (9th Cir. 1991) (en banc) agreed with the U.S., holding that the officer’s response to D must be neutral.

17. Applying Edwards to the Sixth Amendment Right to Counsel

a.       Michigan v. Jackson (1986) (565):  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.” 

b.      McNeil v. Wisconsin (1991) (566)

          i.   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. 

         ii.   Reasoning (Scalia):

a.       Suspect’s assertion of his 6th Am right to counsel did not serve as an invocation of his 5th Am-based Miranda-Edwards-Roberson right to have counsel present during custodial interrogation.  Thus, 6th Am right protects suspect from police-initiated questioning w/o counsel about the crime w/ which he is charged, but not about unrelated, uncharged crimes. 

b.      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. 

c.       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.  

d.      “Our system of justice is, and has always been, an inquisitorial one at the investigatory stage.”

e.       Fn 3:  “We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation.’”  K says this indicates that you can’t assert your rights before the warnings.  K thinks it depends on the temporal proximity to the warnings; should be very close to time when warning should be delivered. 

              iii.   Dissent:  This demeans the importance of the right to counsel. 

c.       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 invike the Miranda-Edwards right to counsel if custodial interrogation is about to begin or is “imminent.”  See 570.

18. Moran v. Burbine (1986) (571)

a.       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.  SC held his confession to be admissible.

b.      Reasoning (O’Connor):

          i.   Police followed Miranda; they just failed to inform him of the atty’s phone call. 

         ii.   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. 

              iii.   “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.”

              iv.   Police state of mind is irrelevant. 

               v.   Info would have been useful to D; it may even have affected his decision.  But Const. doesn’t require that police to supply suspect w/ constant flow of info. 

              vi.   And we can’t define right in terms of police conduct toward attorney, b/c that conduct has no bearing on the degree of compulsion experienced by the D during interrogation.

             vii.   Fn 4:  Miranda “embodies a carefully crafted balance designed to fully protect both the D’s and society’s interest.”  K:  This is the way Miranda’s defenders have been talking about Miranda for years. 

      c.   Dissent (Stevens):  Court is now embracing incommunicado questioning.  Rule should be that police have to inform suspect of atty’s efforts to contact him. 

      d.   K says “incommunicado” is a dirty word.  He’s not really incommunicado; his family knows where he is, and he could call if he wanted.  K also distinguishes Escobedo, because there the D knew his lawyer was outside.  If this came out the other way, public defender could just say he represents all Ds. 

19. Use of Psychiatric Examinations in Proceedings

a.       Estelle v. Smith (1981) (582):  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.  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. 

b.      Allen v. Illinois (1986) (583):  Upheld the commitment of D as a “sexually dangerous person” even though the mental exams were taken w/o warnings.  The Court stressed the civil, not criminal, nature of the proceedings. 

20. Confessions by juveniles

a.       State v. Presha (2000) (46):  D, 16, was brought to prosecutor’s office at 4:20 a.m., where he and his mother both signed Miranda card.  Although D’s mother was told she could stay, she left the room while he was interrogated for 3 hours.  As he was making a taped confession, his mother asked to see him and said she thought he should have a lawyer.  Officer said they were “just trying to get the truth.”  NJ SC held that D effectively waived his rights and that his confession was voluntary.  Totality of circumstances: nearly 17; 15 priors; numerous breaks in interrogation.  But from now on, where parents are deliberately excluded, the confession is suppressed. 

b.      In re G.O. v. G.O. (Ill. 2000) aff’d the voluntariness of a confession by a 13-year-old who had been denied the right to confer with a parent before or during his interrogation and had no previous contact with the criminal justice system.  Dissent said majority unreasonably concluded that a 13-year-old is capable of making an intelligent waiver of his constitutional rights. 

c.       Compare Fare, supra p. 54.

21. Withrow v. Williams (1993) (583)

a.       Facts:  D not Mirandized; incriminating statements admitted in state court.  D turned to federal courts; district court held that his Miranda rights were violated. 

b.      Q:  Does Stone bar federal habeas review of Miranda claims?  Ct:  No. 

c.       Reasoning (Souter):

          i.   Stone v. Powell (1976) held that when a State has given a full and fiar chance to litigate a 4th Am claim, federal habeas review is not available to a State prisoner alleging that his conviction rests on evidence obtained through an unconstitutional search and seizure. 

         ii.   We have repeatedly declined to extend Stone in other contexts.  Stone is limited to 4th Am, which confers no trial right, whereas 6th Am confers a fundamental right that assures the legitimacy of adversarial process.

        iii.   Stone was based on the Mapp rule, which is not a personal constitutional right, but is prophylactic.  Miranda is different, because it safeguards a trial right.

d.      O’Connor, dissenting (w/ Rehnquist):  Substantial costs.  Suppression of voluntary statements is not a fundamental trial right. 

e.       Scalia (w/ Thomas):  “Prior opportunity to litigate an issue should be an important equitable consideration in any habeas case, and should ordinarily preclude the court from reaching the merits of a claim, unless it goes to the fairness of the trial process or to the accuracy of the ultimate result.”  Emphasizes federalism.

f.       Note that several cases have held that 5th Am violations occur not only in the trial context, but also when witnesses testify, for example, before grand juries. 


               1.   The Survival of the Old Tests

a.       Although some may believe that Miranda displaced the due process-totality of the circumstances-voluntariness test, it’s still around in a number of contexts. 

b.      In the first place, most suspects waive Miranda, so their confessions are judged by the voluntariness test. 

c.       Voluntariness test is also used when suspects not in custody are questioned by the police; when suspects in a custody-like situation are questioned (or threatened) by private citizens; or when prosecution seeks to impeach or use fruits.  (Note that involuntary statements cannot be used for impeachment purposes, and fruit of an involuntary statement may not be admissible either.)

d.      Many lower courts have held that a confession is admissible even when obtained by trickery and deceit, provided that the trickery does not “shock the conscience” or is not apt to induce a false confession. 

e.       Welsh White (602) thinks several widely used interrogation tactics should be absolutely prohibited. 

2.   Miller v. Fenton (3d Cir. 1986) (602)

a.       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.

b.      3d Cir., per Becker, admitted the confession.  Since D had been properly Mirandized, the question, as Becker framed it, was whether Boyce’s tactics were sufficiently manipulative to overbear the will of a person w/ D’s characteristics.  Becker concluded that the confession was “voluntarily given” after considering the “totality of the circumstances”:  mature, 32-year-old adult; prior jail sentence; less than 1 hours; “good guy” approach is permissible; lying about timing of death wasn’t sufficient trickery to overcome will; leniency wasn’t promised.  Free choice. 

c.       Dissent included portions of transcript.  Majority doesn’t even include the fact that D collapsed in a catatonic state in its totality-of-the-circumstances approach. 

3.   Police Trickery

a.       Frazier v. Cupp (1969) (fn a, 601):  Admitted a confession in a pre-Miranda case although the police had falsely told D than someone else had confessed and also “sympathetically” suggested that victim’s homosexual advances may have started the fight.  Otherwise, however, the interrogators’ behavior, claims a Stanford Note, was “exemplary.”  Police trickery is just one factor in totality test.

b.      State v. Cayward (Fla.App. 1989) (612):  Upheld the suppression of confession obtained after police showed D a fabricated laboratory report indicating they found his semen stains on the victim’s underwear. 

c.       Arizona v. Fulminante (1991) (612)

          i.   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.

         ii.   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.” 

        iii.   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.

        iv.   Dissent disagreed with this factual finding. 

4.   Colorado v. Connelly (1986) (614)

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): 

          i.   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. 

         ii.   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.”)

        iii.   Purpose of suppression is deterrence, which wouldn’t be served here. 

c.       Dissent:  “Surely in the present stage of our civilization a most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane.”  Focus on reliability.  No corroboration. 

d.      White (618) says that Connelly can be read narrowly: police exerted no pressure and had no reason to believe D was suffering from mental disability.  So police conduct wasn’t not implicated, and they did not exploit a known weakness. 


               1.   Brewer v. Williams (Williams I) (1977) (619)

a.       Facts:  “Christian burial speech case.”  D accused of kidnapping and murdering girl at YMCA.  He was arraigned in Davenport, where he turned himself in, and judge Mirandized him.  His attorney agreed to allow him to be transported by police from Davenport to Des Moines, where the crime took place, upon the condition that he not be questioned.  Nonetheless, during the snowy drive, Detective Leaming gave his famous speech.  D led them to body.

b.      Q:  Was D deprived of his constitutional right to the assistance of counsel?  Ct:  Yes.

c.       Reasoning (Stewart):

          i.   Right to counsel means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him, “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” 

         ii.   “Leaming deliberately and designedly set out to elicit information from Williams just as surely as—and perhaps more effectively than—if he had formally interrogated him.” 

        iii.   These circumstances are constitutionally indistinguishable from Massiah.  Note Stewart’s statement of the Massiah rule in Innis, supra p. 51:  Once adversary proceedings have commenced against an individual, he has a right to counsel when the gov’t deliberately elicits information from him, whether or not the gov’t’s conduct constitutes “interrogation” under Miranda.

        iv.   Waiver requires “an intentional relinquishment or abandonment of a known right or privilege.”  Johnson v. Zerbst.  No waiver here. 

         v.   In fn 12, Court suggests that inevitable discovery doctrine might let body in.

d.      Dissenters said D waived his rights.  White says Court is assuming that Massiah, as opposed to Miranda, includes a right not to be asked questions rather than a right not to answer. 

e.       K:  Three scenarios (“Mother Power,” “Weather Forecaster,” and “Waitress” Ploys)

    i.   Distinguishable from Miranda because D in K’s hypos didn’t know that people were police agents.  Miranda is about the impact on the suspect’s mind that matters.  Innis assumes guy knows cops are there.  (K has a tougher time with the fake priest, but he says there are some things that the cops just can’t do.) 

   ii.   More importantly, these hypos are distinguishable from Williams I b/c they remove Massiah from the equation.  Once D is indicted and arraigned, all three are inadmissible.  As far as Massiah is concerned, there doesn’t have to be interrogation to produce a violation; it’s enough if cops attempt to elicit info.  K thinks Williams I would’ve been an easier case if it had come after Edwards, which focuses not on whether it was interrogation, but simply whether his right to counsel was violated. 

f.       K notes that there were two versions of the Christian burial speech in the record.  See footnotes.  K also says there’s an assumption in Williams I that Massiah rights can, like Miranda rights, be waived.  Patterson confirms that, but K doesn’t think the Massiah Court intended that. 

2.   Patterson v. Illinois (1988) (629) 

      a.   Facts:  D and 2 fellow gang members were indicted for murder.  As D was being transferred to jail, he asked officer who else was indicted; when officer answered, D asked why someone else wasn’t indicted, saying, “he did everything.”  D then signed waiver form and made a lengthy incriminating statement.  SC aff’d conviction. 

      b.   Reasoning (White):  Same standards apply for waiving the 5th and 6th Am rights.  Waiver of 5th Am-Miranda rights is sufficient to constitute waiver of 6th Am-Massiah rights.  6th Am right is not superior to 5th Am right.  Miranda warnings sufficiently apprised D of his right to have counsel present. 

      c.   Stevens, dissenting, pointed to ABA anti-contact ethical rule.  Also said that Miranda warnings don’t tell D what a lawyer can do for him, like examining sufficiency of indictment or skillfully negotiating plea. 

                i.   Note that the “no contact rule” has not been strongly applied in the criminal context.  See 632-33.

3.   Maine v. Moulton (1985) (634):  K:  “True prophylactic rule.”  Held inadmissible statements made elicited after charges were filed and the right to counsel had attached, even though the statements were procured for legitimate reasons unrelated to the gathering of evidence concerning the filed charges (i.e., to investigate the possibility that D would harm a potential witness).  This information may be gathered and used against D in new charges (e.g., for witness tampering), but it can’t be introduced against D on original charges.  To hold otherwise would invite abuse by police in form of fabricated investigations. 

4.   “Passive” v. “Active” Secret Agents

a.       U.S. v. Henry (1980) (635):  Ct, per Burger, suppressed statements made when an FBI informant, posing as D’s cellmate, was instructed by FBI not to question D about the crime, and there was no showing that he had.  Court said that informant was “not a passive listener”; statements were product of agent’s “conversations” w/ D.  Such propinquity was likely to result in agent taking affirmative steps to obtain incriminating info.  K calls Henry Massiah’s “high-water mark.”

b.      Kuhlmann v. Wilson (1986) (636)

          i.   Facts:  D’s cellmate, Lee, was a plant who was supposed to “keep his ears open” w/o asking any questions.  D talked to Lee w/o changing the story he had given police, but when D’s brother visited, D changed his story and confessed to Lee.  SC aff’d conviction. 

         ii.   Reasoning (Powell):  Distinguished Henry by saying the agent there had “stimulated” conversations w/ D in order to “elicit” info, amounting to “indirect and surreptitious” interrogation.  Informant must take some action, beyond merely listening, that is designed deliberately to elicit incriminating remarks.  That didn’t happen here.

        iii.   Burger, concurring, noted “a vast difference between placing an ‘ear’ in the suspect’s cell and placing a voice in the cell to encourage conversation for the ‘ear’ to record.”  K:  You can’t separate ear from voice.

        iv.   K:  It’s not easy to reconcile Henry and Kuhlmann.  Could say that Ct just defers to trial court.  Or could look at causation—visit from D’s brother makes difference. 




               1.   U.S. v. Wade (1967) (641)

a.       D was indicted and arrested for armed robbery; counsel was appointed.  FBI, w/o notice to D’s lawyer, arranged a lineup.  Two witnesses identified D.  The witnesses then pointed to D during the trial.  Convicted.

b.      Q:  Should courtroom identifications of an accused at trial be excluded from evidence because the accused was exhibited to the witnesses before trial at a post-indictment lineup conducted for identifications purposes without notice to and in the absence of the accused’s appointed counsel?  Ct:  Yes.

c.       Reasoning (Brennan):

          i.   Ct first concluded, relying on Schmerber, that neither requiring a person to appear in a lineup and to speak for identification (Wade) nor requiring a person to provide handwriting exemplars (Gilbert) violated the privilege against self-incrimination.  Self-incrimination clause only protects person from testifying against himself or otherwise providing the State with evidence of a testimonial or communicative nature.

         ii.   Powell v. Alabama, supra p. 39, requires that we scrutinize any pretrial confrontation of the accused to determine whether counsel is needed to preserve D’s basic right to a fair trial. 

        iii.   Lineups are riddled w/ innumerable dangers and variable factors that might seriously derogate from a fair trial.  Problems of eyewitness identification can be magnified by the way the prosecution presents the suspect to witnesses.  Can be highly suggestive.

        iv.   Witness who identifies the accused in a lineup isn’t likely to change her mind.

         v.   Lineup is a “critical stage” of pretrial process.  Gilbert, however, held that taking handwriting exemplars is not a “critical” stage entitling D to assistance of counsel.  More easily corrected than misidentifications. 

        vi.   First line of defense against unfair identifications at trial is the lessening of the hazards of eyewitness i.d. at lineup itself.  Counsel should be “a requisite to conduct of the lineup, absent an ‘intelligent waiver.’” 

       vii.   These cases show the room for abuse and suggestion:  Gilbert was conducted in auditorium where 100 witnesses identified him while talking to each other.  In Stovall, suspect was presented, in handcuffs, to witness in her hospital room.  D was the only black person in the room, and he was surrounded by 4 cops.

      viii.   Gov’t must show by clear and convincing evidence that the in-court identifications were based upon observations of the suspect rather than the lineup identification.  Proper test is the Wong Sun test:  “whether, granting establishment of the primary illegality[,] the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently indistinguishable to be purged of the primary taint.”

b.   White, dissenting, predicted that attorneys would be obstreperous at lineups.

               2.   The Meaning of the Lineup Decisions

a.       Attorneys at lineups generally play the role of a passive observer to ensure against abuse, contrary to White’s prediction. 

b.      Since the lineup and taking of exemplars aren’t protected by privilege against self-incrimination clause, the prosecution can comment on suspect’s refusal to cooperate. 

c.       When confronted w/ invalid pretrial identifications, lower courts have easily found an “independent source” for an in-court identification. 

d.      Moore v. Illinois (1977):  Held that petitioner was entitled to have counsel present when identification took place “in the course of a judicial proceeding” (preliminary hearing), reasoning that counsel may have guarded against the “highly suggestive” circumstances.  Court noted that the petitioner, with the help of counsel, could have requested different settings for the lineup, but in fact trial judges often deny such requests.  Ct stated that prosecution of D in rape case commenced when victim’s complaint was filed in court—not upon indictment.  Compare Kirby, below.

e.       Some commentators have suggested using “blank” lineup—i.e., conduct two separate lineups, one of which does not contain the suspect.

f.       Cautionary instructions on eyewitness testimony are ineffective. 

g.      All the psychiatric literature indicates that accuracy of eyewitness identification is not related to confidence.

3.   Stovall v. Denno (1967):  Held that Wade-Gilbert rule did not apply retroactively; instead, the backup test for pre-Wade-Gilbert cases should be a totality-of-the-circumstances due process test that consider whether “the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification” that D was denied due process.  Simmons restated this test as whether the i.d. was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”

 4.  Title II of the Omnibus Crime Control and Safe Streets Act of 1968, § 3502, purported to repeal the Wade-Gilbert rule in federal cases, but the lower federal courts have largely ignored it. 


               1.   Kirby v. Illinois (1972) (655)

a.       Q:  Does the Wade-Gilbert rule extend to identification testimony based on a police station showup that took place before D had been indicted or otherwise formally charged?  Ct: No.

b.      Reasoning (Stewart, for four justices; Powell concurred):

          i.   Right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated, “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” 

         ii.   Escobedo is different, but it dealt with privilege against self-incrimination, not the right to counsel, and we have limited it to its own facts. 

        iii.   We decline to impose a per se exclusionary rule upon testimony concerning an identification that took place long before prosecution commenced.  Stovall strikes the appropriate balance. 

c.       Brennan’s dissent:  Wade was about protecting D’s constitutional rights to confrontation and effective assistance of counsel at trial.  Same hazards to a fair trial inhere whether lineup occurs before or after indictment.  This showup was particularly fraught w/ peril of mistaken identification.

d.      White (in what K considers the most devastating dissent ever):  Wade and Gilbert govern this case and compel reversal of the judgment below.”

               2.   U.S. v. Ash (1973) (660)

a.       Facts:  Before trial, but after D had been incarcerated and appointed counsel, gov’t, w/o notifying counsel, showed 5 color photos to 4 witnesses who had previously identified a black-and-white photo of D. 

b.      Q:  Must D’s lawyer be present at a photographic lineup?  Ct:  No.

c.       Reasoning (Blackmun):  Right to counsel means the right of the accused to have counsel act as his spokesman, advisor, or assistant.  Since accused himself wasn’t present at photographic display, and asserts no right to be present, his right to counsel isn’t implicated, because it’s not possible for his lack of familiarity with the law to be overpowered by his professional adversary.  Defense counsel can seek and interview the witnesses himself.  “The primary safeguard against abuses of this kind is the ethical responsibility of the prosecutor, who, as so often has been said, may “strike hard blows” but not “foul ones.”  If that safeguards fails, due process standards provide a backup. 

d.      Brennan, dissenting:  Wade envisioned counsel’s function at the lineup to be primarily that of a trained observer.”

e.       K says the lineup cases were wiped out in Kirby and Ash.


               1.   See Stovall, suprra p. 63. 

               2.   Neil v. Biggers (1972):  Rape victim identified D in a one-person stationhouse showup seven months after the crime.  Nonetheless, the Ct applied the totality test and found that identification was reliable confrontation was suggestive.  As Manson (below) stated the Biggers standard:  The admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability.”  (Note that Biggers involved a pre-Stovall identification.)

               3.   Manson v. Brathwaite (1977) (665)

a.       Facts:  G, a black undercover police officer, purchased drugs from seller through open doorway of apt.  Based on encounter, which lasted 2-3 minutes, G described seller to fellow officer, and later D identified a single black-and-white photo of D as the seller. 

b.      Q:  Does Biggers apply to post-Stovall confrontations as well as those pre-Stovall?  Ct:  Yes. 

c.       Reasoning (Blackmun): 

          i.   Since Biggers, the lower courts have developed two different approaches.  One excludes all out-of-court identifications, w/o regard to reliability, that involved unnecessarily suggestive procedures.  The second approach relies on the totality of the circumstances, is more lenient and ad hoc, allowing admission of confrontation evidence if, despite the suggestive aspect, it possess certain features of reliability.  We like the second approach. 

         ii.   Concerns:  problems of eyewitness identification; deterrence; effect on administration of justice. 

        iii.   Reliability is the linchpin in determining admissibility.  Factors to consider:  opportunity of witness to observe criminal at time of crime; witness’s degree of attention; accuracy of prior description; level of certainty; time between crime and confrontation. 

        iv.   Upon considering these factors, Court let this identification in. 

4.   Detention for Identification Procedures in the Absence of Probable Cause

a.       Davis v. Mississippi (1969) (336, 673; supra p. 29):  Fingerprints of D thrown out where they were obtained when police simply rounded up 25 black youths.  Court held that prints should be excluded as fruits of illegal search under 4th Am, but it intimated that a detention for such a purpose might sometimes be permissible on evidence falling short of the traditional PC needed for arrest.  

b.      Hayes v. Florida (1985) (673; supra p. 28):  Ct held that transporting a suspect to the police station w/o PC violated 4th Am, but reserved possibility, as in Davis, that brief detention in the field for fingerprinting w/ reasonable suspicion, not PC, might pass constitutional muster.  This might also be judicially authorized. 

c.       Court have generally found no 4th Am violation when a person lawfully in custody for one crime is ordered into a lineup for other crimes for which there is no PC to arrest him/her.  But some courts require reasonable suspicion in these circumstances. 



         A.  Historical Background and Overview

               1.   Genesis of the rule:  Silverthorne Lumber (1920) (Holmes, J.):  Ct said that the “essence” of forbidding gov’t from obtaining evidence in certain ways is that the evidence should “not be used at all.”  This doesn’t make the evidence “sacred and inaccessible”:  knowledge gained from an “independent source” can be proved like any other info.  

               2.   The doctrine of attenuation:  Nardone (1939):  Frankfurter first used “fruit” phrase.  Also established the “attenuation doctrine”—where challenged evidence did not have an “independent source,” it may still be admissible if the causal connection between the information obtained and the gov’t’s conduct is “so attenuated as to dissipate the taint.” 

               3.   Wong Sun v. U.S. (1963) (786):  Excluded statements made by T when agents unlawfully entered and arrested T in his bedroom.  Those statements implicated Y, and Y in turn incriminated T.  Ct held that Y’s statements were also inadmissible as the fruits of the unlawful bedroom entry and arrest.  Exclusionary rule (ER) traditionally barred only “physical, tangible materials,” but Ct reasoned that “verbal evidence” that derives immediately from unlawful arrest is “no less the ‘fruit’ of an official illegality.”  Ct said the test is not a but-for inquiry, but rather “whether, granting establishment of the primary illegality[, the evidence] has been come at by exploitation of that illegality or instead by means sufficiently indistinguishable to be purged of the primary taint.” 

4.   Confession as the “fruit” of an illegal arrest.

      a.   Brown v. Illinois (1975) (787):  Held that Miranda warnings would not cure the taint of a prior illegal arrest and excluded a confession obtained after waiver.  Ct noted that ER serves different interests and policies in the 4th and 5th Am contexts.  Miranda warnings don’t sufficiently deter a 4th Am violation; to make Miranda a “cure-all” would eviscerate the 4th Am.  Declining to adopt a per se rule, the Ct said Miranda warnings are one factor to consider in determining taint, along with proximity of arrest and confession, presence of intervening circumstances, and the purpose and flagrancy of misconduct. 

      b.   Dunaway v. New York (supra p. 29):  Reaffirmed the view that Miranda warnings, by themselves, are insufficient to attenuate the taint of an unconstitutional arrest.

      c.   Taylor v. Alabama (1982) (789):  Held that D’s confession was the impermissible fruit of his illegal arrest even though six hours elapsed between arrest and confession, D was Mirandized three times, and he was allowed to visit briefly w/ girlfriend and neighbor before confession. 

d.      Rawlings v. Kentucky (1980):  D’s admission of ownership of drugs found in someone else’s purse was not impermissible fruit even though D was illegally detained in house while police obtained search warrant for premises.  Ct noted that detention was in a “congenial atmosphere” and that police misconduct wasn’t that conscious or flagrant.

5.   Identification of a person as a “fruit” of an illegal arrest.  U.S. v. Crews (1980) (790):  Upheld an in-court identification of D even though he was wrongfully detained and photographed and the photo was shown, with 7 others, to the victim.  In-court identification featured elements that were not “come at by exploitation” of D’s 4th Am rights.  D was not himself a suppressible fruit, and illegal arrest didn’t affect victim’s ability to identify him. 

6.   New York v. Harris (1990) (one of K’s top ten worst)

a.       Facts:  Police arrested D in his home w/ PC but w/o warrant.  D waived Miranda rights and D confessed.  He was then taken to stationhouse, where he signed waiver form and confession.  SC excluded the first confession, but not the second.

b.      Reasoning (White):

    i.   Holding:  Where the police have PC to arrest a suspect, the exclusionary rule does not bar the use of a statement made by the suspect outside his home even though the statement is obtained after an in-house arrest in violation of Payton.

                              ii.   Payton is designed to protect physical integrity of home.  A Payton violation doesn’t necessarily render unlawful the continued custody of the suspect once he is removed from the house.  D wasn’t unlawfully in custody when he was in stationhouse. 

                             iii.   This case is like Crews.  Attenuated.

                             iv.   Payton only excludes evidence taken or statements made inside the home during a warrantless arrest.  That’s a sufficient deterrent.

               7.   Warrant search as fruit of illegal entry and occupation of premises.

a.       Segura v. U.S. (1984) (793):  Admitted evidence obtained pursuant to warrant where officers entered suspect’s apt illegally and stayed in apt for 19 hours while warrant was obtained.  Ct:  There was an independent source for the warrant.

b.      Murray v. U.S. (1988) (794):  Held that evidence observed by police during an illegal entry need not be excluded if such evidence is subsequently discovered during the execution of an otherwise valid search warrant sought and issued on the basis of information wholly unconnected to the prior entry.  Ct emphasized that second entry was independent of the first; if warrant had issued on basis of what agents had seen during illegal entry, evidence would be excluded.  K:  How do you know whether it was prompted by what the police saw?

8.   The “tainted” witness.  U.S. v. Ceccolini (1978) (796):  Held that testimony of witness should not be excluded b/c cops learned of witness and questioned her on basis of illegally seized evidence.  Ct declined to adopt a per se rule that the testimony of a live witness should always be admissible, but it said that witnesses don’t remain hidden from view, like guns, etc.  They can come forward on their own, so we shouldn’t permanently disable their testimony.  But note that here the witness hadn’t come forward after 4 months. 

9.   Standing.  Does A have standing to challenge the fruits of an illegal search of B’s belongings when those fruits are used against A?  Ct:  No.  K thinks this doctrine should be eliminated.  It’s not really explained by the deterrence theory, which has become the dominant theory of the ER.  An overnight guest has sufficient involvement to have standing, but Minnesota v. Carter says that a guy who had just dropped in to sell some drugs didn’t have standing. 

         B.  The “Inevitable Discovery” Doctrine

1.   Even if a but-for test can’t be satisfied, the challenged evidence is admissible if the gov’t learned of the evidence from an independent source.  A variation on the independent source doctrine is the “inevitable discovery” or “hypothetical independent source” doctrine, which asks not whether the police actually acquired certain evidence by reliance on an independent source, but whether evidence in fact obtained illegally would inevitably or eventually or probably have been discovered lawfully.   

2.   Nix v. Williams (Williams II) (1984) (797)

a.       Facts:  Sequel to Williams I (supra p. 60). 

b.      Q:  Is the evidence of the body and its condition admissible, despite the Massiah violation, under the inevitable discovery doctrine?  Ct:  Yes.

c.       Ct (Burger):  Same justification as independent source doctrine—deterrence.  The burden of proof is on the prosecution by a preponderance of the evidence.  No good faith req’t.  This would inevitably have been discovered. 

3.   Must the independent line of investigation already be underway?  Brennan and Stevens appear to think so in their Williams II dissents, but that’s not clear. 

4.   Williams II applied the exception to secondary or derivative evidence, but most courts have also applied the exception to primary evidence—i.e., evidence discovered during the course of the search itself. 

         C.  Is a Confession Obtained in Violation of Miranda a “Poisonous Tree”?

               1.   O’Connor, in her Quarles concurrence, would have suppressed the statement but not the gun.  “Only the introduction of the defendant’s own testimony is proscribed by the 5th Am’s mandate…  That mandate does not protect an accused from being compelled to surrender nontestimonial evidence against himself.”  Cites Schmerber.  Derivative evidence should be admitted.

               2.   Oregon v. Elstad (1985) (803)

a.       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.

b.      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.

c.       Reasoning (O’Connor):

          i.   A procedural Miranda violation differs significantly from a 4th Am violation.  4th Am mandates a broad application of the “fruits” doctrine, but Miranda does not require that statements and their fruits be discarded as inherently tainted. 

         ii.   Michigan v. Tucker (1974) (502):  Ct, per Rehnquist, admitted the testimony of a witness whose identity had been learned during an interrogation in violation of Miranda.  Ct emphasized that neither deterrence nor truthworthiness would be increased by suppression.

        iii.   Following Tucker’s rationales, Ct said that the absence of coercion or improper does not call for suppression.  “Once warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to the authorities.

        iv.   Although Miranda requires suppression of unwarned admissions, the admissibility of any subsequent statement turns on whether it was knowingly and voluntarily made.  It was here. 

         v.   D doesn’t have to be told that his earlier admissions are inadmissible. “Police officers are ill-equipped to pinch-hit for counsel.” 

d.      K:  O’Connor’s language intimates that physical evidence, not just statements, may be admitted under Elstad, but Court has never said that.  Dissent says the same thing, fearing the Court has let the cat out of the bag.

         D.  Use of Illegally Obtained Evidence for Impeachment Purposes

               1.   The Expansion of a Once-Narrow Exception

a.       Walder v. U.S. (1954) (811):  D asserted on direct examination that he had never possessed narcotics in his life.  Court held that this “opened the door” for the prosecution to introduce evidence, for purposes of attacking D’s credibility, of drugs seized from his home in an earlier, unrelated case.  Ct distinguished Agnello, where gov’t had sought to get in tainted evidence on cross-examination by eliciting a denial from the D. 

b.      Harris v. New York (1971) (812):  Permitted the use of earlier conflicting statements to impeach credibility of D when he took the stand in his own defense despite the fact that the earlier statements were obtained in violation of Miranda.  Ct said the that the statements were not coerced or involuntary, so they could be used to impeach.  Deterrent effect is sufficiently served by making evidence unavailable to prosecution in its case in chief.  Privilege against self-incrimination does not include perjury.  Dissent distinguished Walder as dealing with collateral matter raised on direct.

c.       Oregon v. Hass (1975) (813) (another of K’s top ten worst):  Held that incriminating statements can be used for impeachment even when the police ignore the D’s request for a lawyer following his Miranda warnings.  Dissent:  This removes any incentive to obey Miranda.

d.      People v. Peevy (CA 1998):  Harris-Haas exception applies even when a police officer deliberately fails to honor a suspect’s request for counsel for the very purpose of obtaining evidence for impeachment purposes.  Because it was raised untimely below, CA SC didn’t reach the fact that it was police department policy to violate Miranda—to “go outside of Miranda”—in order to obtain impeachment evidence.  Mosk, dissenting, said that deterrent rationale has no value where the dept has established a bad faith policy.  (See transcript of California police training videotape on questioning “outside Miranda” obtained by Weisselberg (826-27).)

e.       U.S. v. Havens (1980) (814):  On direct, D denied involvement w/ codefendant in transporting cocaine.  On cross, he denied that he had helped sew a pocket that was used to conceal drugs into his codefendant’s suitcase, and he denied that a swatch of cloth from which the pocket was sewn was in his suitcase.  Prosecution introduced the illegally seized swatch to impeach him.  SC held cloth to be admissible.  “We hold that a D’s statements made in response to proper cross-examination reasonably suggested by the D’s directed examination are subject to otherwise proper impeachment by the gov’t, albeit by evidence that has been illegally obtained.” 

f.       James v. Illinois (1990) (815) (Brennan “stopped the bleeding”).  Ct refused to expand the impeachment exception to permit the prosecution to impeach the testimony of all defense witnesses with illegally obtained evidence.  Police illegally arrested D w/o PC at salon, where he had just had his hair dyed.  Statement re: his hair color were suppressed, and Ct held that they couldn’t be used to impeach D’s witness.  (A Note calls such a witness a “Pinocchio defense witness” who lies on D’s behalf.) 

2.   What kinds of constitutional or other violations does the impeachment exception encompass?

a.       New Jersey v. Portash (1979) (820):  Testimony given in response to a grant of legislative immunity could not be used to impeach the witness at his subsequent trial for extortion and misconduct in office.

b.      Mincey v. Arizona (1978) (p. 19, supra):  Distinguishing Harris and Haas, Ct made clear that the use of an “involuntary” or “coerced” statement, even for impeachment purposes, constitutes a denial of due process. 

c.       Michigan v. Harvey (1990):  Statements obtained in violation of Jackson (supra p. 56) may be used to impeach a D’s false or inconsistent testimony.  Ct said Jackson superimposed Edwards’ 5th Am analysis onto the 6th Am.  Impeachment exceptions that attach to 5th Am get attached to 6th Am along with Jackson.  Court left open the question of whether statements obtained in violation of Massiah—sometimes called the “core” 6th Am protection, or the “pure” right to counsel—may be used to impeach a D.  Note that Patterson said that Massiah rights are not superior to Miranda rights.

3.   Use of Defendant’s Prior Silence for Impeachment Purposes

a.       Doyle v. Ohio (1967):  D’s post-arrest silence, after receiving Miranda warnings, is not permissible.  Silence is “insolubly ambiguous.”  Allowing this would be “fundamentally unfair.” 

b.      Grier v. Miller (1987) (823):  D remained silent after Miranda warnings.  On direct, he testified that he had taken no part in crimes; prosecutor asked on cross, “Why didn’t you tell that story to anyone when you got arrested?”  Trial judge sustained D’s objection and instructed jury to ignore it.  D convicted.  Federal appellate ct granted habeas relief on ground that error was not harmless.  SC rev’d.  Ct:  No violation of Doyle occurred b/c trial ct didn’t allow the inquiry.  Dissent protested that decision sapped Doyle of its vitality. 

c.       Jenkins v. Anderson (1980) (823):  Allowed prosecution to use D’s 2-week delay in notifying police of his involvement in crime to undermine his self-defense claim.  Ct:   No gov’tal action induced D to remain silent before arrest.  Bradley article:  This isn’t probative. 

d.      Fletcher v. Weir (1982) (per curiam) (824):  Silence may be used against a D who was not Mirandized.  In the absence of affirmative Miranda warnings, a state may permit cross-examination about post-arrest silence when a D chooses to take the stand.

e.       Combs v. Coyle (6th Cir. 2000) (66):  Addressing a deep circuit split, the 6th Cir. held that the use of prearrest silence as substantive evidence of guilt violates the privilege against self-incrimination.  (D claimed that, as a result of intoxication, he lacked the requisite intent.  Prosecution introduced statement, “Talk to my lawyer,” which judge limited with the instruction that the jury should only consider it “as it relates to the purpose and prior calculations and design.”)

4.   Use of Post-Miranda Warnings Silence or Assertion of Rights to Rebut Insanity Defense.  Wainright v. Greenfield (1986) (825):  D’s assertion of Miranda rights, after warnings, cannot be used to show he was sane at the time.