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Criminal Investigations

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Criminal Investigations

Professor: Unknown Semester: Fall 2017

Overview

This course examines constitutional doctrine governing police investigations, focusing on Fourth Amendment search and seizure (probable cause, warrant requirement, and categorical exceptions), Fifth Amendment self-incrimination and Miranda doctrine, and Sixth Amendment right to counsel. It traces the Warren Court’s expansion of constitutional protections through landmark cases and the subsequent refinements by the Burger and Roberts Courts. Recurring themes: judicial regulation vs. deterrence of police misconduct; fragmented authority and police discretion; rules vs. standards; unanticipated consequences; terrorism and national security; privacy in the information age.

Fourth Amendment

Text and Structure

“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 or affirmation, and particularly describing the place to be searched or things to be seized.” (Boyd, 1886)

Applies to all governmental actors; enforced primarily against police. Two readings: (1) probable cause + warrants reading (best approach is to obtain warrant, with careful exceptions); (2) pure reasonableness reading (probable cause and warrants are examples of reasonableness).

The Exclusionary Rule

  • Weeks v. United States (1914) — federal courts must exclude evidence seized in violation of 4th Amendment
  • Wolf v. Colorado (1949) — 4th Amendment applies to states via 14th Amendment, but exclusionary remedy not extended
  • Mapp v. Ohio (1961) — mandatory exclusionary remedy incorporated against states; extends protection of 4th Amendment

Rationale for exclusion:

  • Deterrence of police misconduct
  • No right without a remedy
  • Restitution; remedy as part of the right; avoiding taint of “partnership in official lawlessness”

Limits on non-exclusionary remedies:

  • Bivens actions / § 1983 limited by sovereign immunity (Quern v. Jordan); local municipalities liable only for constitutional violations caused by official policy (Monell)
  • Officers have qualified immunity (gross negligence required — Anderson v. Creighton)
  • Injunctions difficult to obtain (Los Angeles v. Lyons)
  • § 14141 — DOJ may sue for pattern or practice violations
  • Criminal prosecutions: 18 U.S.C. §§ 242, 2234, 2235, 2236 (rare)

Impeachment exception:

  • Walder v. U.S. (1954) — suppressed evidence cannot impeach defendant’s direct examination testimony
  • United States v. Havens (1980) — suppressed evidence can impeach on cross-examination
  • Illinois v. James (1990) — Havens applies only to defendants, not to defense witnesses

Probable Cause

Standard: “Facts and circumstances within the officer’s knowledge sufficient to warrant a man of reasonable caution in the belief that an offense has been committed” (Brinegar, 1949)

Informant tips:

  • Nathanson (1933) — police officer’s bare belief/suspicion insufficient
  • Draper (1958) — detailed tip from consistently reliable informant → probable cause when facts match exactly
  • Spinelli (1969) — two-prong test: (i) reliability/veracity of informant + (ii) basis of informant’s knowledge (own observation or other reliable sources; corroboration compensates for deficiencies)
  • Illinois v. Gates (1983) — totality of the circumstances; fluid concept; commonsense practical assessment; veracity/reliability/basis all relevant but not individually dispositive; many states revive Aguilar-Spinelli as state constitutional matter
  • Ornelas (1996) — probable cause reviewed de novo on appeal; trial court’s findings of fact reviewed for clear error

Four post-Gates anonymous tip scenarios:

  1. Facially suggestive + corroborated → probable cause attaches
  2. Not facially suggestive but corroborated → likely probable cause under Draper-Gates
  3. No predictions + trustworthy tipster → Gates majority: probable cause; Gates concurrence: no
  4. Conclusory + bare allegations → no probable cause (Nathanson)

Scope of probable cause: Ybarra v. Illinois (1979) — probable cause for bar/bartender does not extend to search of all patrons

Standard of review: Probable cause to search reviewed de novo; magistrate determination given “substantial basis” review (Jones, 1960)

Pretext: Whren v. United States (1996) — subjective motivations of officer irrelevant when there is objective probable cause; officer’s intent does not affect 4th Amendment analysis

Arrests:

  • Outside homes: Watson (1976) — warrantless felony arrest with probable cause constitutional
  • Inside homes: Payton v. New York (1980) — warrantless entry to make felony arrest is unconstitutional; arrest warrant carries limited authority to enter suspect’s own dwelling
  • Misdemeanor arrests: Atwater v. Lago Vista (2001) — 4th Amendment does not forbid warrantless arrest for minor traffic offense; regulating police discretion left to political process
  • Post-arrest hearing: McLaughlin (1991) — within 48 hours, judicial determination of probable cause
  • Maryland v. Pringle (2003) — probable cause to arrest all occupants of car when contraband found and occupants refuse to answer
  • Devenpeck v. Alford (2004) — arrest lawful even if stated crime not closely related to crime for which there is actual probable cause

Warrant Requirement

Three requirements:

  1. Neutral and detached magistrate (Johnson v. U.S.; Coolidge v. New Hampshire; Connally v. Georgia — no financial incentive; Shadwick — clerks may issue arrest warrants for ordinance violations)
  2. Oath or affirmation supported by probable cause (Whitely v. Warden; Franks v. Delaware — reckless disregard for truth or intentional misrepresentation invalidates warrant)
  3. Particularity — place to be searched; persons or things to be seized (Steele v. U.S.; Anderson v. Maryland; Maryland v. Garrison — officer’s failure to realize over-breadth must be objectively reasonable)

Execution of warrants:

  • Knock and announce: Wilson v. Arkansas (1995) — 4th Amendment requires knock and announce absent law enforcement interests; Richards v. Wisconsin (1997) — no-knock entry requires reasonable suspicion that knocking would be dangerous, futile, or lead to destruction of evidence; United States v. Banks (2003) — 15 seconds enough for drugs; Hudson v. Michigan (2006) — knock-and-announce violation does NOT require exclusionary remedy; civil remedies and other checks sufficient
  • Detention during search: Michigan v. Summers (1981) — officers executing warrant may detain occupants; Muehler v. Mena (2005) — 2-3 hour handcuffed detention reasonable; Los Angeles County v. Rettele (2007) — brief mistaken naked detention reasonable
  • Media involvement: Wilson v. Layne (1999) — 4th Amendment bars bringing media into search not reasonably in aid of execution
  • Night execution: requires special judicial authorization; must leave copy of warrant and inventory
  • Patriot Act sneak-and-peek: 18 U.S.C. § 3103 — adverse result, no seizure, notice within reasonable time

Exceptions to the Warrant Requirement

Exigent Circumstances

  • Officers should not be required to get a warrant when not feasible; viewed from totality of facts known at time of intrusion
  • Mincey v. Arizona (1978) — warrantless search must end when exigency ends
  • Hot pursuit: Warden v. Hayden (1967) — may pursue bank robber into house without warrant
  • Destruction of evidence: United States v. Elkins — facts gave reason to believe evidence could be destroyed
  • Created exigency: Kentucky v. King (2011) — if police did not create exigency by threatening to engage in 4th Amendment violation, warrantless entry to prevent destruction of evidence is reasonable
  • Community caretaking: Brigham City v. Stuart (2006) — may enter without warrant when objectively reasonable basis to believe occupant seriously injured or immediately threatened; no mention of probable cause or reasonable suspicion; Ryburn v. Huff (2012) — split-second decision by reasonable officer; Illinois v. McArthur (2001) — temporary warrantless seizure while waiting for warrant is permissible if police have probable cause, feared evidence destruction, restrained D for reasonable time
  • Embedded requirement: Welsh v. Wisconsin (1984) — seriousness of underlying offense matters; DUI (minor non-arrestable offense) does not justify warrantless entry even when BAC dissipating

Plain View

  • Requirements: (1) police lawfully in position to view and gain custody; (2) immediately apparent that items subject to seizure (probable cause)
  • New York v. Class (1986) — police can seize gun brought into plain view while looking for VIN; papers moved to access VIN
  • Arizona v. Hicks (1987) — warrant required to search serial number of stereos lacking probable cause; recording serial number was separate search (seizure inside home)
  • Horton v. California (1990) — inadvertence not required; warrantless seizure in plain view allowed even if discovery not inadvertent

Automobile Exception

  • Carroll (1925) — not practicable to secure warrant because vehicle can be moved quickly
  • Chambers (1970) — reasonable to search after moving car to police custody
  • Containers within automobile:
    • United States v. Chadwick (1977) — luggage should be maintained while warrant obtained (analogized to cell phones in Riley)
    • U.S. v. Ross (1982) — warrantless search of car can include containers when probable cause justifies search; scope defined by object of search not container
    • California v. Acevedo (1991) — may search container inside car with probable cause to search only it, even without probable cause for whole car (overruling Sanders)
    • Wyoming v. Houghton (1999) — may inspect passengers’ belongings capable of concealing object of search
    • United States v. Di Re (1948) — probable cause for car does not justify body search of passenger

Search Incident to Arrest

  • Chimel v. California (1969) — twin aims: protect officers by disarming; prevent destruction of evidence; immediate control determined at time of arrest or search (courts split)
  • Persons: U.S. v. Robinson (1973) — full search of person in lawful custodial arrest; may search containers on person
    • Virginia v. Moore (2008) — search incident to arrest even when arrest not authorized by state law, as long as there is probable cause
  • Place: Steagald (1981) — arrest warrant does not justify search of someone else’s home
    • Maryland v. Buie (1990) — protective sweep of immediately adjoining spaces without suspicion; additional areas with articulable suspicion of danger
  • Vehicles:
    • New York v. Belton (1981) — search of passenger compartment of vehicle in lawful arrest (implicitly overruled by Gant)
    • Thornton v. U.S. (2004) — recent occupant who just exited car: same search authority
    • Arizona v. Gant (2009) — search vehicle incident to arrest only if (1) arrestee unsecured and within reaching distance, OR (2) reasonable to believe vehicle contains evidence of crime of arrest; “reasonable to believe” standard unclear (probable cause? reasonable suspicion?)
  • Mobile phones: Riley v. California (2014) — warrant required; cell phone is not like other objects incident to arrest; sum of private life reconstructable; remote wiping unlikely; Alito concurrence: anomalous to favor digital over analog

Terry Stops and Frisks

  • Terry v. Ohio (1968) — reasonable suspicion (criminal activity afoot + armed and dangerous) justifies brief stop and limited outer-clothing frisk; Harlan concurrence: two-step: justified at inception + reasonably related in scope
  • New York: four-tier DeBour framework (objective credible reason → founded suspicion → reasonable suspicion → probable cause)
  • Extensions of Terry:
    • Mimms (1977) — may command driver to exit vehicle (de minimis intrusion)
    • Wilson (1997) — may require passengers to exit
    • Arizona v. Johnson (2009) — may pat down passenger with reasonable suspicion of armed and dangerous
    • Michigan v. Long (1983) — frisk of passenger compartment areas where weapon may be hidden
    • Minnesota v. Dickerson (1993) — squeezing/manipulating object after determining it is not a weapon goes beyond Terry
  • Duration: Royer (1983) — removal to interrogation room beyond Terry; Place (1983) — 90-minute retention of luggage beyond Terry; Sharpe (1985) — no rigid time limit; swiftly developing situation
  • Reasonable suspicion standard:
    • Alabama v. White (1990) — lower quantity and quality of evidence than probable cause; anonymous tip suitably corroborated
    • Florida v. J.L. (2000) — tip must be reliable in its assertion of illegality, not just identification; no firearm exception to reliability
    • Arvizu (2002) — border patrol; eight factors; defer to officer’s experience and training
    • Wardlow (2000) — unprovoked flight in high-crime area is suggestive of wrongdoing; refusal to cooperate alone insufficient (Bostick)
    • Heien v. North Carolina (2014) — traffic stop on objectively reasonable legal mistake permissible
  • Voluntariness: Schneckloth v. Bustamonte (1973) — totality of circumstances; not required to warn of right to refuse; custodial arrest, violence, number of officers, lies about warrant all weigh against
  • Third-party consent:
    • Illinois v. Rodriguez (1990) — consent of person police reasonably believed had common authority is valid even if factually incorrect
    • Georgia v. Randolph (2006) — present co-tenant’s objection defeats other co-tenant’s consent
    • Fernandez v. California (2014) — objecting co-tenant who has left does not retain effective veto
    • Matlock — absent nonconsenting co-tenant: other co-tenant’s consent sufficient
  • Scope: Florida v. Jimeno (1991) — general consent to search car includes paper bag on floor; Acevedo controls if there is probable cause

Special Needs and Administrative Searches

  • Camara v. Municipal Court (1967) — interest balancing: need to search vs. invasion; probable cause = reasonable administrative process
  • New Jersey v. T.L.O. (1985) — school searches: “reasonable grounds for suspecting” + limited scope; no warrant or probable cause
  • Drug testing: Earls (2002) — suspicionless testing of students in extracurricular activities upheld; Chandler v. Miller (1997) — testing of public office candidates struck down (no real drug problem)
  • Probation: Griffin v. Wisconsin (1987) — warrantless search of probationer’s home on “reasonable grounds”
  • Employer: O’Connor v. Ortega (1987) — work-related search of employee’s office reasonable
  • DNA: Maryland v. King (2013) (5-4) — DNA swab as part of routine booking for violent crime or burglary: reasonable under interest balancing; ascertaining identity includes criminal history; Scalia dissent: suspicionless search primarily to detect criminal wrongdoing, invalidated by Edmond

Checkpoints

Border Searches

  • Martinez-Fuerte (1976) — immigration checkpoints; great need + limited intrusion
  • Montoya de Hernandez (1985) — 4th Amendment balance heavily favors government at international border
  • Flores Montano (2004) — routine border searches require no suspicion

The Meaning of “Searches”

Property vs. Privacy

  • Katz v. United States (1967) — “4th Amendment protects people not places”; government phone tapping without warrant is search; Harlan concurrence: two-prong (1) subjective expectation of privacy + (2) society prepared to recognize as reasonable; Black dissent: text only protects tangible things
  • United States v. Jones (2012) — GPS tracker installation on vehicle is search (trespass/property theory); Katz test added to, not substituted for, common law trespass; Sotomayor concurrence: may be time to reconsider third-party doctrine for internet data; Alito dissent: Katz analysis more appropriate

Open Fields and Curtilage

  • Hester v. U.S. (1924); Oliver v. U.S. (1984) — open fields not within 4th Amendment protection
  • United States v. Dunn (1987) — curtilage factors: (1) proximity to home, (2) within enclosure surrounding home, (3) nature of uses, (4) steps taken to protect from passersby; barn 50 yards from house was outside curtilage
  • Aerial surveillance: California v. Ciraolo (1986) — backyard visible from 1,000 feet not a search; Florida v. Riley (1989) (plurality) — helicopter at 400 feet not a search if consistent with air regulations; O’Connor concurrence: whether public travels at that altitude with sufficient regularity

Sense-Enhancing Technology

  • Kyllo v. U.S. (2001) — thermal imaging of home is search: (1) technology not in general public use + (2) information of interior not otherwise obtainable without physical intrusion; bright-line at entrance of home; Stevens dissent: only heat emanating from exterior
  • United States v. Bond (2000) — manipulation of exterior of bag on bus is search (exploratory manner)

Dog Sniffs

  • United States v. Place (1983) — canine sniff not a search; limited in manner; does not expose non-contraband
  • Illinois v. Caballes (2005) — canine sniff during legitimate traffic stop: not a search; does not prolong stop
  • Rodriguez v. U.S. (2015) — detention beyond necessary time for traffic stop to facilitate dog sniff violates 4th Amendment
  • Florida v. Jardines (2013) (5-4) — dog sniff on curtilage is search (trespass/property theory); unlicensed physical intrusion into constitutionally protected area; implied license to approach front door does not include canine forensic investigation

Third-Party Doctrine

  • California v. Greenwood (1988) — warrantless search of garbage permissible; knowingly exposed to public; Brennan dissent: opaque bags; intimate details; city ordinance doesn’t equal forfeiture
  • Miller (1976) — bank deposit slips, checks exposed to bank
  • Smith v. Maryland (1979) — pen register recording phone numbers not a search
  • Electronic Surveillance: Kyllo limits third-party doctrine where technology reveals interior of home; Jones signals possible reconsideration for long-term tracking; Carpenter (CSLI — 127 days of location records is a search)

Electronic Surveillance

  • Conversations with informants: Hoffa-Lewis — statements to informants not protected; United States v. White (1971) (plurality) — informant transmitting conversation not within 4th Amendment; risk that companions will report
  • Title III (1968): regulates non-consensual government interceptions; high-level DOJ authorization; enumerated offenses; detailed procedural requirements (periodic reports, 30-day limits, minimization, notice within 90 days); enforced by statutory exclusionary rule; post-9/11 expanded disclosure
  • FISA: regulates foreign intelligence; FISA Court; 90-day / 1-year authorization; no notice requirement; weighted retention
  • Stored Communications Act (1986): regulates stored emails at ISP; noncontent: subpoena; content (180+ days): warrant or § 2703(d) order; Warshak (6th Cir. 2010) — compelled ISP email turnover without warrant unreasonable; ISP = functional equivalent of phone company; good faith exclusion exception applied
  • U.S. v. Ganias (2d Cir. 2014) — indefinite retention of all files on computer seized under particular-items warrant violates 4th Amendment; en banc: good faith; defendant has remedy under Fed. R. Crim. P. 41(g)
  • U.S. v. Graham (4th Cir. 2015) — CSLI via § 2703(d) order unreasonable; reasonable expectation of privacy in long-term CSLI; good faith exclusion applied
  • U.S. v. Carpenter (2017) — warrantless seizure of 127 days of historical CSLI: 4th Amendment violation (addressed in course materials)

The Meaning of “Seizures”

  • Florida v. Bostick (1991) — whether a reasonable person would feel free to decline officers’ requests or terminate encounter; “free to disregard the police and go about his business” = consensual
  • U.S. v. Drayton (2002) — no per se rule that seizure occurs unless police advise of right not to cooperate; “Do you mind if I check your person?” not a command
  • Brower v. County of Inyo (1989) — 4th Amendment seizure only when governmental termination of freedom of movement through means intentionally applied
  • California v. Hodari D. (1991) — seizure when: (1) laying on of hands or physical force to restrain, OR (2) show of force that causes objectively reasonable person to submit; submission determines moment of seizure
  • California v. Brendlin (2007) — passenger submitted by sitting inside car during traffic stop

Exclusionary Rule — Good Faith, Standing, Attenuation

Good Faith Exception

  • U.S. v. Leon (1984) — officer’s objectively reasonable reliance on magistrate’s probable cause determination: no exclusion; exclusionary rule is judicially created remedy, not personal constitutional right; judges and magistrates not part of law enforcement team; suppression remains appropriate if: magistrate misled by deliberately false affidavit, magistrate abandoned neutral role, affidavit so lacking as to make belief entirely unreasonable, warrant facially deficient
  • Illinois v. Krull (1987) — good faith reliance on unconstitutional state statute
  • Arizona v. Evans (1995) — good faith reliance on county clerk’s error
  • Herring v. U.S. (2009) — police conduct must be sufficiently deliberate that exclusion can deter AND sufficiently culpable that deterrence worth the price; negligent bookkeeping error not enough
  • Davis v. U.S. (2011) — searches in objectively reasonable reliance on binding appellate precedent later overruled: no exclusion; Breyer dissent: good faith exception will swallow exclusionary rule

Fruit of the Poisonous Tree

  • Wong Sun v. U.S. (1963) — whether evidence obtained by exploiting illegal act or by means sufficiently distinguishable to be purged of the taint
  • Exceptions to Fruit:
    • Attenuation: Ceccolini (substantial time elapsed, illegal search not used to question witness); Murray (evidence discovered during unlawful search but later obtained independently)
    • Independent source: Silverthorne Lumber Co.; Segura (1984) (unlawfully entered, waited for warrant); independent source doctrine applies when warrant genuinely independent of unlawful entry; inevitable discovery cannot apply to warrants
    • Inevitable discovery: Nix v. Williams (1984) — if government can prove evidence would have been discovered by lawful means, no exclusion; search teams converging on body
    • Hudson v. Michigan (2006) — knock-and-announce violation does not require suppression of evidence; causal connection too remote; interest protected by knock-and-announce not served by suppression

Standing

  • Rakas v. Illinois (1978) — D must show own privacy interest was violated; no standing for items in car D did not own
  • Rawlings v. Kentucky (1980) — mere ownership of evidence insufficient; need privacy interest in place or effect searched
  • Minnesota v. Carter (1998) (4-1-4 plurality) — business associates bagging cocaine in another’s apartment: no standing; not overnight guests; only there for business transaction
  • U.S. v. Payner (1980) — designed to game the standing requirement; courts must still apply it

Fifth Amendment

Grand Jury

Purposes: assist investigation beyond 4th Amendment search; screen cases for trial; especially useful for white-collar crime (securities, tax, bribery, corruption)

Powers: issue subpoenas; grant immunity

Participants: target (soon-to-be indicted); witness (not implicated); subject (possibly implicated)

Secrecy: Fed. R. Crim. Proc. 6(e) — matters occurring before grand jury; no witness secrecy requirement; Butterworth v. Smith (1990) — 1st Amendment narrowly displaces perpetual secrecy; In re Sealed Case (1999) — internal prosecutorial deliberations not within 6(e) if do not directly reveal grand jury matters

Exceptions to secrecy: other grand juries; assisting other prosecutors; federal law enforcement, intelligence, immigration, national security with court notice

Constitutional limits on grand jury subpoenas:

  • 4th Amendment: Dionisio (1973) — subpoena to appear is not seizure; no Katzian expectation in voice exemplar; Hale v. Henkel — subpoena cannot be so sweeping as to be unreasonable; corporate entity cannot assert 4th Amendment; R. Enterprises — presumption of regularity; quash only if no reasonable possibility material is relevant or if compliance “unreasonable or oppressive”
  • 5th Amendment: witness can refuse answers forming “link in the chain” of evidence needed to prosecute (Hoffman v. U.S.); cannot refuse merely because embarrassing or implicates others

5th Amendment Privilege Against Self-Incrimination

Elements: (1) compulsion; (2) incrimination; (3) testimony/testimonial communication

Compulsion:

Incrimination:

Testimony:

  • Physical evidence not covered: Schmerber (blood sample); Dionisio (voice exemplar); Wade (lineup); Doe v. U.S. (signing form to turn over records not testimonial)
  • Pennsylvania v. Muniz (1990) — “cruel trilemma” test: confess/lie/be silent → content is testimonial; slurred speech as physical characteristic is not
  • Fisher v. U.S. (1976) — act of production of documents is testimonial: (1) admits existence, (2) authenticity, (3) possession; if foregone conclusion, then not testimonial
  • U.S. v. Hubbell (2000) — extensive use of mind to identify responsive documents is testimonial; government may not derivatively use the act of production
  • Braswell v. U.S. (1988) — custodian of corporate records cannot assert 5th Amendment; corporate entity doctrine
  • U.S. v. Doe (11th Cir. 2012) — decryption constitutes testimonial act; immunity must extend to derived information
  • Commonwealth of Virginia v. Baust (2014) — touching fingerprint to unlock phone: not testimonial; no immunity needed

Invoking the privilege:

  • Must be asserted (Minnesota v. Murphy, 1984); general obligation to testify does not make voluntary statements compelled
  • Must explicitly invoke: Salinas v. Texas (2013) (5-4) — no unqualified right to remain silent; must explicitly invoke; not within Griffin (not at trial) or coercion line
  • Once waived for a question, cannot refuse details — Rogers v. U.S. (disclosure of fact waives as to details)
  • Brogan — privilege is not license to swear falsely; no “exculpatory no” doctrine

Exceptions to privilege:

  • Immunity: transactional vs. use/derivative use; Kastigar v. U.S. (1972) — use and derivative use immunity coextensive with 5th Amendment privilege; government bears burden of showing independent source at Kastigar hearing
    • Murphy v. Waterfront Comm’n (1964) — protects against federal and state prosecutions; Balsys — not against foreign prosecutions
    • Fruits of immunized testimony: U.S. v. North (1990) — case-by-case; must analyze government’s case line-by-line; U.S. v. Helmsley — attenuation too attenuated
  • Corporate entity doctrine: Hale v. Henkel — only natural persons can assert; Braswell — custodians cannot assert on behalf of corporation
  • Required records doctrine: Shapiro v. U.S. (1948) — records required by regulatory regime not protected; Marchetti v. U.S. (1960) — Shapiro inapplicable if (1) not exact records required, (2) no public concern, (3) not essentially regulatory matter
  • Regulatory balancing: California v. Byers (1971) — hit-and-run stop-and-identify statute: neither testimonial nor incriminating; Bouknight — child as object of regulatory scheme must be produced

5th Amendment — Miranda

Pre-Miranda Due Process voluntariness:

  • Bram v. U.S. (1897) — confession must be free and voluntary
  • Brown v. Mississippi (1936) — coerced confessions violate Due Process
  • Ashcraft v. Tennessee (1944) — 36-hour interrogation: involuntary
  • Miranda v. Arizona (1966) — extended 5th Amendment privilege to custodial interrogation; procedural safeguards; Miranda may have reduced scrutiny applied to voluntariness post-warnings

Miranda elements: (1) custodial interrogation; (2) four warnings (right to silence; anything said may be used; right to attorney; appointed attorney if indigent); (3) waiver must be voluntary, knowing, and intelligent; (4) exclusionary remedy

Custody:

  • Reasonable person must believe deprived of liberty in significant way (Orozco v. Texas, 1969)
  • Custody exists: Orozco (bedroom, 4am, four officers); Estelle v. Smith (psychiatric examination at capital penalty phase)
  • Custody does not exist: Mathiason/Beheler (voluntary station house); Berkemer v. McCarty (traffic stop); Minnesota v. Murphy (probation interview at appointment)
  • Does not depend on officer’s intent: Stansbury v. California (even if brought in as witness)
  • Age: J.D.B. v. North Carolina (2011) — if child’s age objectively apparent, must factor into custody analysis; Alito dissent: undermines clarity of objective test
  • Prisoners: Howes v. Fields (2012) — no per se custody rule; focus on features of interrogation and whether reasonable prisoner felt free to leave

Interrogation:

  • Express questioning or functional equivalent — Rhode Island v. Innis (1980) — “reasonably likely to elicit incriminating response”; focused on reasonable perceptions of suspect, not intent of police
  • Arizona v. Mauro (1987) — permitting suspect’s wife to speak: not “psychological ploy” equivalent to interrogation
  • Spectrum: desired incriminating statements → intended → urged → police knew likely → police should have known → police had some idea

Warnings:

  • Four components required; 5th component (can invoke at any time) not strictly required (Florida v. Powell)
  • Close enough is good enough: Prysock (1981); Duckworth v. Eagan (1989); Powell (2010)

Exceptions to custodial interrogation:

  • Undercover: Illinois v. Perkins (1990) — no coercive atmosphere when suspect unaware speaking to officer
  • Administrative/booking questions: Pennsylvania v. Muniz (1990) — routine booking exception for name, address, height, weight
  • Public safety: New York v. Quarles (1984) — threat to public safety outweighs prophylactic Miranda rule; O’Connor concurrence: gun is nontestimonial, statement must be suppressed; Marshall dissent: gun is direct product of interrogation under Wong Sun

Invocations:

Right to Remain Silent (Mosley)Right to Counsel (Edwards)
Clear statement to invoke (Berghuis)Clear statement — reasonable officer would understand (Davis)
Space between refusal to waive and invocationSpace between refusal to waive and invocation
Cut off questioning; police can reinitiate after: 2-3 hrs, fresh warnings, different crimeCut off questioning; police cannot reinitiate without counsel (Minnick)
Dissipates in a few hours (Mosley)Dissipates 3-14 days after release to home (Roberson-Shatzer)
Accused can reinitiate (Bradshaw)Accused can reinitiate (Bradshaw)
  • Maryland v. Shatzer (2010) — 14-day rule: Edwards protection dissipates when accused released from custody for 14 days; Scalia: logical endpoint of Edwards is termination of Miranda custody
  • Minnick v. Mississippi (1990) — once counsel invoked, cannot reinitiate interrogation without counsel present, even after consulting attorney

Waivers:

  • Voluntary, knowing, intelligent (Johnson v. Zerbst); burden on government to prove by preponderance (Connelly)
  • Actual waivers: Moran v. Burbine (1986) — police failure to inform suspect of counsel’s calls does not vitiate waiver; events outside accused unknown to him cannot affect capacity to understand and waive; Spring (1987) — valid waiver even if not told about all crimes to be interrogated about
  • Inferred waivers: North Carolina v. Butler (1979) — waiver may be implied through silence + understanding + course of conduct
  • Berghuis v. Thompkins (2010) — suspect who received warnings and did not invoke, waives by making uncoerced statements even after 3 hours of silence; extends Davis clear statement rule to right to silence

Constitutional status:

  • Michigan v. Tucker (1974) — procedural safeguards are measures to insure rights, not rights themselves
  • Dickerson v. U.S. (2000) — Miranda is a constitutional decision; cannot be overruled by Congress; § 3501 limited; stare decisis

Consequences of Miranda violation:

  • Exclusionary rule applies to testimonial evidence
  • No fruit of the poisonous tree for physical/non-testimonial evidence (Patane)
  • Oregon v. Elstad (1985) — testimonial fruits admissible if later Miranda warnings cure the condition; two-step inadvertent violation
  • Missouri v. Seibert (2004) — deliberate two-stage interrogation protocol: subsequent warned confession suppressed; distinguishable from Elstad
  • Impeachment exception: Harris v. New York (1971) — voluntary Miranda-violating statements usable to impeach; Doyle v. Ohio (1976) — post-arrest silence following Miranda warnings cannot be used to impeach (implicit assurance of no penalty); Jenkins v. Anderson (1980) — Doyle inapplicable to pre-Miranda silence

Sixth Amendment Right to Counsel (Investigative)

Triggering: initiation of adversarial proceedings — Massiah v. United States (1964); formal charge, preliminary hearing, indictment, arraignment (Brewer v. Williams)

  • Not applied to pre-formal-charge activity (Moran)

Right: no questioning without counsel; Brewer v. Williams — “Christian burial speech” by detective violated 6th Amendment

Deliberate elicitation:

  • Active elicitation required: United States v. Henry — informant must take action deliberately designed to elicit incriminating remarks
  • Mere listening OK: Kuhlman v. Wilson — jailhouse informant passively receiving voluntary statements does not violate 6th Amendment
  • Massiah — post-indictment questioning by government agent without counsel violated 6th Amendment

Offense-specific limitation: United States v. Moulton — right attaches only to offense charged in adversarial proceeding; police may investigate other offenses

Waiver: same voluntariness standard as Miranda — Montejo v. Louisiana (2009): (1) no coercive police conduct + free choice; (2) awareness of right and consequences of abandoning it

Remedy: exclusionary rule; inevitable discovery exception (Nix v. Williams); impeachment: Kansas v. Ventris — jailhouse informant statements usable at trial for impeachment purposes

Police Use of Force

  • Tennessee v. Garner (1985) — police must have reasonable belief suspect poses immediate danger; forward-looking inquiry; past conduct can inform future dangerousness in limited circumstances
  • Graham v. Connor (1989) — “objectively unreasonable” force judged from perspective of reasonable officer on scene; prohibits use of force depriving 4th Amendment rights
  • Scott v. Harris (2007) — § 1983 suit; ramming car to stop dangerous pursuit: Garner analysis; immediate danger to public; necessity of deadly force; warning given; no asymmetric retreat requirement for state

Entrapment

Subjective test (federal):

  1. Government inducement of the crime
  2. No predisposition in defendant to commit the crime (focus on defendant’s state of mind)

Objective test (some states): would government’s inducement cause a normally law-abiding person to commit the crime?

Key case: Jacobson v. United States — government may not originate criminal design; 26-month campaign to induce child pornography purchase → entrapment; no predicate problem being addressed

Federal recognition: Sorrells — entrapment recognized in federal law

Key Doctrines

Key Cases

Exam Approach / Checklist

Fourth Amendment Analysis

  1. Government actor? 4th Amendment applies only to state action.
  2. Was there a “search”?
    • Katz: subjective expectation of privacy + objectively reasonable (Harlan concurrence)
    • Trespass/property theory (Jones, Jardines) — independent basis; Katz added to, not replaced by
    • Third-party doctrine: knowingly exposed to public = no protection (Greenwood, Miller, Smith); but cf. Carpenter (CSLI requires warrant); Warshak (emails); Graham (CSLI)
    • Open fields (Oliver); curtilage factors (Dunn)
    • Sense-enhancing technology: Kyllo (not in general public use + reveals interior of home)
    • Dog sniff: no search in public or during traffic stop (Place, Caballes, Rodriguez time-limit); search at curtilage (Jardines)
  3. Was there a “seizure”? Reasonable person would not feel free to leave (Bostick); show of force + submission (Hodari D.); Brendlin (passenger in car)
  4. Warrant? Check: neutral magistrate; oath/affirmation probable cause; particularity of place and items; knock-and-announce (Banks); valid execution
  5. Exception to warrant requirement?
    • Search incident to arrest (Chimel): grab area; vehicles only if unsecured occupant within reach OR evidence of crime of arrest (Gant); cell phones require warrant (Riley)
    • Automobile exception: probable cause to believe evidence in car (Carroll, Acevedo) — entire car or specific container (Ross); passengers’ belongings (Houghton)
    • Exigent circumstances: hot pursuit (Hayden); destruction of evidence (Elkins/King); community caretaking (Stuart); must end when exigency ends (Mincey); serious underlying offense (Welsh)
    • Plain view: lawful vantage point + immediately apparent (probable cause); probable cause required to move items (Hicks); inadvertence not required (Horton)
    • Consent: voluntary under totality (Schneckloth); third-party consent (Rodriguez, Randolph, Fernandez, Matlock); scope (Jimeno)
    • Terry stop: reasonable suspicion of crime (White, J.L., Wardlow); frisk only if reasonable suspicion of weapon; extensions (Mimms, Wilson, Long, Johnson)
    • Special needs/administrative: T.L.O.; checkpoints (Sitz but not Edmond/drug interdiction; Lidster information); border (no suspicion required)
    • DNA/booking: Maryland v. King (interest balancing; reasonableness)
  6. Exclusionary remedy?
    • Good faith (Leon, Krull, Evans, Herring, Davis): deliberateness + culpability analysis
    • Fruit of the poisonous tree: independent source, inevitable discovery (Nix), attenuation (Wong Sun, Ceccolini, Murray)
    • Standing: defendant must show own privacy interest was violated (Rakas); no standing for items in car D did not own; business associates in another’s apartment (Carter)
    • Impeachment exception: suppressed evidence can impeach defendant on cross (Havens); but not defendant’s direct testimony (Walder); not defense witnesses (James)
    • Knock-and-announce violation: no exclusion (Hudson)

Fifth Amendment Analysis

Grand jury subpoena:

  1. Testimonial? Non-testimonial physical evidence not covered (Schmerber line; Dionisio)
  2. Compelled? Assertion required over privilege (Murphy); voluntary statements not compelled
  3. Incriminating? Real and appreciable risk (Hoffman — link in chain)
  4. Act of production? Fisher (existence/authenticity/possession); Hubbell (extensive use of mind); foregone conclusion exception
  5. Immunity? Use/derivative use (Kastigar): Kastigar hearing; government bears burden

Miranda:

  1. Custody: objective test — reasonable person in defendant’s position would not feel deprived of liberty in significant way (Berkemer); consider age (J.D.B.); not: traffic stop (Berkemer), probation (Murphy), voluntary station house (Mathiason)
  2. Interrogation: express questioning or functional equivalent reasonably likely to elicit incriminating response (Innis); actions including showing evidence can qualify; undercover = no (Perkins); booking = no (Muniz)
  3. Warnings given and adequate? Four components; close enough (Prysock, Eagan, Powell)
  4. Invocation:
    • Right to silence: must be clear; police must scrupulously honor (Moseley); can resume after reasonable time + fresh warnings + different crime; Berghuis — space between refusal to waive and invocation
    • Right to counsel: unambiguous (Davis); all questioning ceases (Edwards/Minnick); 14-day rule after release to home (Shatzer); accused can re-initiate (Bradshaw)
  5. Waiver: voluntary, knowing, intelligent; may be implied by course of conduct (Butler, Berghuis); Moran — events outside accused irrelevant; Spring — not all crimes need be disclosed
  6. Exceptions: public safety (Quarles), undercover agents (Perkins), routine booking (Muniz)
  7. Fruits of Miranda violation: physical evidence admissible (Patane); testimonial fruits: Elstad (inadvertent midstream warning sufficient); Seibert (deliberate two-step: suppressed); Harris (can impeach); Doyle (cannot use post-Miranda silence to impeach)

Sixth Amendment Right to Counsel (Investigative)

  1. Formal charge or adversarial proceeding initiated? (Massiah — indictment, arraignment, etc.)
  2. Deliberate elicitation by police or informant? (Henry — active; Kuhlman — mere listening OK)
  3. Offense-specific: right attaches only to charged offense (Moulton)
  4. Waiver: same voluntariness standard as Miranda (Montejo)
  5. Remedy: exclusion; inevitable discovery (Nix); impeachment (Ventris)

Entrapment

  1. Subjective test (federal): (1) government inducement + (2) no predisposition in defendant — focus on defendant’s state of mind
  2. Objective test (some states): would the government’s inducement cause a normally law-abiding person to commit the crime?
  3. Government may not originate the criminal design (Jacobson — extensive 26-month pressure → entrapment)

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