Exclusionary Rule..............................................................................................................

1
Good Faith Exception: If officer relies in good faith on the warrant (this is
objective), then the ER doesnt apply..............................................................................1
Art. 38.23. [727A] EVIDENCE NOT TO BE USED.....................................................2
Threshold Issues (Requirements for Applicability of 4Am)..........................................3
What is a Search/Seizure?.................................................................................................3
Mere Evidence Rule idea that things officers/gvt officials could validly seize had to
fir into one of three categories:........................................................................................4
TX Re Search of Warrants & Newspapers..................................................................5
4Am Standing.....................................................................................................................5
Probable Cause..................................................................................................................6
TX Four Corners Doctrine............................................................................................6
Purposes & Procedures Search & Arrest Warrants....................................................7
Particular Description of Place to be Searched Particularity Requirement.........7
TX Particularity Requirement - 18.04.......................................................................8
Timing of Warrants.......................................................................................................8
EXCEPTIONS to Warrant Requirement....................................................................9

PLAIN VIEW EXCEPTION observation by officer that doesnt constitute a

search if it is reasonable to make the observation and it must be immediately
apparent.......................................................................................................................9

EXIGENT CIRCUMSTANCES: if there is some sort of emergency that

requires police to act w/o delay; reasonable for officers to act immediately..............9
Justification for Arrest..................................................................................................9
What can the officer do after the arrest?.......................................................................10
FIRST ZONE CHIMEL AREA...............................................................................10
SECOND ZONE BUIE ............................................................................................11
THIRD ZONE BEYOND THAT.............................................................................11
Searches of homes incident to arrest..............................................................................11
Searches of cars incident to arrest..................................................................................11
Seizing items incident to arrest.......................................................................................12
Inventory Searches..........................................................................................................13
Cars (Impoundment)...................................................................................................13
Jail Inventory...............................................................................................................13
Administrative Inspections.............................................................................................14
Page 1 of 36

Border Search Cases....................................................................................................14

Stop & Frisk.....................................................................................................................15
Terry v. Ohio..................................................................................................................15
Consent Searches.............................................................................................................18
Questions to ask:............................................................................................................18
Who can consent to a search of your home?.................................................................19
Wiretapping & Bugging..................................................................................................19
Electronic Surveillance....................................................................................................19
Title III Ominous Crime Bill (1968)...........................................................................19
Confessions by - Admissibility.....................................................................................20
Due Process of Law......................................................................................................20
5Am Right Miranda..................................................................................................21
Miranda v. AZ............................................................................................................21
Reverse Line-Up police put in lineup and have someone falsely ID as
perpetrator of crime; suspect so concerned re false accusation that he makes
admission of crime officers actually suspected committed we dont know if this
is outlawed by Miranda.............................................................................................22
Threshold Requirements of Miranda: Custody & Interrogation........................22
Routine Booking Exception: officer can ask questions and if blurts out
incriminating response, that is volunteered statement...............................................23
Waiver.......................................................................................................................24
Makes a difference which right you invoke...........................................................25
(1) Silence vs. (2) Right to counsel...........................................................................25
6Am Right Massiah...................................................................................................25
Massiah......................................................................................................................25
Escobedo....................................................................................................................26
Brewer v. Williams Christian Burial Speech...........................................................26
Some key differences b/w 5Am & 6Am....................................................................27
TX-Only Ground 38.22.............................................................................................28
Fruit of the Poisonous Tree Doctrine.............................................................................28
Miranda Violations......................................................................................................28
There are three ways the state can un-poison the fruit:...........................................28
TX/38.22........................................................................................................................29
Impeachment....................................................................................................................29
Page 2 of 36

Identification Procedures................................................................................................30
Two rules created:........................................................................................................30
1.

Stovall Rule.......................................................................................................30

2. Wade Rule: cannot have an adjudicatory phase ID procedure (that is cant have
a live person ID procedure after the beginning of adjudicatory process) unless there
is an atty present absent a valid waiver of the right to have counsel present............30
Attys Role.....................................................................................................................31

Page 3 of 36

Constitutional Criminal Procedure

Exclusionary Rule
Federal: Enforced when files a motion to suppress saying that evidence was obtained
on unconstitutional grounds
TX ER: TX Code of Criminal Procedure 38.23
(More below)
4Am is silent re: remedy ER is judge-made
Wolf v. Colorado No implicit remedies in 4Am; states are free to experiment w/
remedies
Mapp v. Ohio A warrantless search is presumptively unreasonable (lots of exceptions);
Court says all states must have ER
Rationale behind ER:
1. Deterrence: We are trying to deter illegal conduct by police
2. Judicial Integrity: dont want courts to be involved in something shady
Something either violates the 4Am or it doesnt and if it does, then we require ER
US v. Leon Now we have categories of 4Am violations
RULE: Right and remedy are divorced; some 4Am violations require ER and some dont
Good Faith Exception:

If officer relies in good faith on the warrant (this is

objective), then the ER doesnt apply
Officers must have reasonable knowledge of what the law
prohibits
Before we worry about whether there is good faith exception, must have a 4Am violation
Exceptions to Good Faith:
If officer misleads the magistrate, then it is not good faith b/c the magistrate
has to rely on what officer tells him
If the warrant is so facially deficient that no reasonable officer would think it
was valid, then good faith does not apply
When officer exceeds scope of warrant
***The police dont have to be right, they must just act reasonably and within
the scope of the warrant
Where the magistrate wholly abandons his neutral role, good faith doesnt
apply
GF Exception applies in two circumstances:

Page 1

1. When police are acting in objective good faith reliance on warrant issued by
magistrate
2. If police are acting in objective of good faith reliance on a statute that authorizes a
search or seizure
If there is error by the police ER will generally apply
If there is error by someone other than the police ER will generally not apply
TX 38.23 more favorable to b/c it provides more protection

TX Good
Faith
Exception

Art. 38.23. [727A] EVIDENCE NOT TO BE USED.

(a) No evidence obtained by an officer or other person in violation of any provisions of
the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of
America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be
instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in
violation of the provisions of this Article, then and in such event, the jury shall disregard any such
evidence so obtained.
(b) It is an exception to the provisions of Subsection (a) of this Article that the evidence
was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant
issued by a neutral magistrate based on probable cause.

Must always argue both Federal rule and TX Rule

TX Good faith applies only where there is a warrant issued by a magistrate based
upon probable cause (so says the TX CCA)
Cases addressing when ER can/cant be used

Calandra:

ER does not apply to grand jury

Calandra Test: Would adding exclusion in this setting be worth the cost?
Janus:
ER does not apply to a collateral civil suit
Lopez v. Mendoza: ER does not apply in deportation hearings
These cases:
1. Limit use of ER to prosecutions CIC
2. Lay foundation for theoretical basis of decisions like Leon
Plymouth Sedan v. Penn. civil forefeiture; action taken against a piece of property; so
closely related to the criminal proceeding that ER remedy applies
What is it that is subject to suppression? Evidence is the only thing that can be
excluded
Threshold Issues (Requirements for Applicability of 4Am)
1. There must be state/gvt action
2. The person who is claiming a 4Am violation must have sufficient connection to
claim the benefit of US law (citizenship, people lawfully in the country)
3. must have standing to raise 4Am claim
Page 2

4. It must be search/seizure in order for claimant to vindicate right against

unreasonable search/seizure
Private Party Searches: private investigator; babysitter; etc. no 4Am argument
against private party actions
US v. Verdugo 4Am isnt limited to US territories US citizens abroad are entitled to
4Am protection
Alvarez Even if there is an illegal arrest, cannot suppress a person, only evidence

What is a Search/Seizure?
***Katz v. US***
1. FBI puts listening device on outside of phone booth
2. MAJ: 4Am protects persons, not places look to see if person is exerting an
expectation of privacy society would consider reasonable
3. It doesnt matter if there is/isnt physical penetration the point is he expects
privacy
4. Reasonable Expectation of Privacy not very bright line rule
2 parts to search:
1. Individual must show subjective expectation of privacy
2. It must be an expectation that society is willing to regard as reasonable
Standing: has theoretically been abolished and replaced with REoP
KEY to SEARCH/SEIZURE: good chance of having search/seizure if you use some
device not commonly available that reveals info from location where someone would
have a REoP
Important to consider all of the circumstances
Cases:
Oliver argues Open Fields Doctrine should be eliminated b/c of Katz; court said it
wasnt a search/seizure b/c there was it was not reasonable to expect fences, etc., to keep
people out; so no reasonable expectation of privacy in open field
In TX: would argue under 38.23 that the officers violated a law of the State of TX
by trespassing [see 38.23(a)]; therefore the evidence could not be used
(see also State v. Hobbs)
Dow Chemical helicopter & sophisticated camera; not search/seizure b/c any person w/
means could do that
Kyllo search/seizure using thermal reading

Page 3

US v. Karo installation of device is not search/seizure, but continued monitoring of a

beeper is
CA v. Greenwood There is not REoP in ones garbage
Smith v. Maryland No REoP when you call someone b/c you have conveyed the
numbers to the phone company
Horton v. Goose Creek students dont have REoP in lockers and outside of cars (when
there are drug dogs); they do have a REoP re: the dogs sniffing the students
Mere Evidence Rule idea that things officers/gvt officials could validly seize had to fir
into one of three categories:
1. Fruits of criminal activity
2. Instrumentalities of crimes
3. Contraband
Warden v. Hayden MER is no longer good rule under this case; it is expanded to
anything probative of criminal activity
Boyd police cant seize s own statements
NOT good law anymore! 5Am protects
Zurcher v. Stanford Daily party was not involved in criminal activity but has evidence
of the criminal activity
Search Warrant vs. Subpoena
SW: if evidence is there, likely to get it
Subpoena: dont need probable cause
Court says police could use search warrants; 1Am doesnt make you immune from gvt
searches; not many places are immune from gvt searches (maybe atty office)

Page 4

TX Re Search of Warrants & Newspapers

Some level of protection for media outlets against search warrants would have
to get subpoena duces tecum
18.01(e) A search warrant may not be issued under Subdivision (10) of Article 18.02
of this code to search for and seize property or items that are not described in
Subdivisions (1) through (9) of that article and that are located in an office of a
newspaper, news magazine, television station, or radio station, and in no event may
property or items not described in Subdivisions (1) through (9) of that article be legally
seized in any search pursuant to a search warrant of an office of a newspaper, news
magazine, television station, or radio station.
Art. 18.02. GROUNDS FOR ISSUANCE. A search warrant may be issued to search for
and seize:
(1) property acquired by theft or in any other manner which makes its acquisition a
penal offense;
(2) property specially designed, made, or adapted for or commonly used in the
commission of an offense;
(3) arms and munitions kept or prepared for the purposes of insurrection or riot;
(4) weapons prohibited by the Penal Code;
(5) gambling devices or equipment, altered gambling equipment, or gambling
paraphernalia;
(6) obscene materials kept or prepared for commercial distribution or exhibition,
subject to the additional rules set forth by law;
(7) a drug, controlled substance, immediate precursor, chemical precursor, or other
controlled substance property, including an apparatus or paraphernalia kept, prepared,
or manufactured in violation of the laws of this state;
(8) any property the possession of which is prohibited by law;
(9) implements or instruments used in the commission of a crime;

4Am Standing
US v. Payner must have someone who has 4Am personal interest to assert claim
We still use standing but court has struck down that vocabulary
Now we say REoP did this particular person have a REoP
(without some sort of standing requirement, ER would be must broader)
There is no automatic standing must establish
Rakas v. Illinois
Jones if you are legally on the premises, you have REoP applied to an
apartment where Jones had key and a degree of control
This is a car Rakas didnt have REoP b/c he didnt have a key; no showing he had been
in car before; etc.
Fewer s can assert 4Am b/c you have to have some sort of privacy interest mere
passenger in a car doesnt have sufficient interest
TX: You do have standing as to stop of a car

Page 5

MN v. Olson nonresident, overnight visitor has some sort of REoP, but not as extensive
as the owner

Probable Cause
Cant meaningfully define PC
For PC need to establish:
1. Information from credible informant
2. Reliable basis of knowledge
PC is collective officer conducting search/making arrest doesnt personally have to
have PC
Illinois v. Gates letter from confidential informant; SC rejects two prong Spinelli test
and looks to totality of the circumstances (b/c PC is a fluid concept)
Aguilar/Spinelli if relying on informant must have reason to think this person is
credible and has basis of knowledge
Gates going to be easier to demonstrate PC b/c it is deliberately more ambiguous
How recent is the information?
Staleness not really as much of a concern w/ warrants as it is w/ searches
***Cannot rehabilitate inadequate showing of PC if you didnt tell the magistrate***
AFFIDAVIT: typically the officer will fill out affidavit saying this is what I know and I
think it adds up to PC
TX Four Corners Doctrine
Woods TX requires PC to be in written affidavit by applicant for the search
warrant
If there are further things discussed b/w the officer and magistrate, it is up to the
officer to make sure it gets into the warrant
Good Faith Exception
Leon Ct said there was no PC but officers acted in good faith
Does not apply if officers lie to magistrate
o Franks v. Delaware - must show officer lied or acted w/ disregard for
the truth
PC requires officer to be reasonable, but not correct
Ybarra v. Illinois
FACTS: Y was at bar when officers went to execute warrant

Page 6

Ct says that just b/c Y is close to person to be searched doesnt mean he can also be
searched; for officer to protect himself, he can give the person the option to leave
When they frisked Y, they found drugs purpose of frisk is to find weapons that might
harm officer/others and cigarette pack is not something that seems like a weapon Plain
Feel Doctrine
Maryland v. Pringle P in car where drugs are found and confesses that drugs are his; it
is reasonable for officer to infer common enterprise w/ the three men
Lippert v. State (TX) presence is not probative enough in this situation where there is a
larger structure than a car
Particularity Requirement: warrant must particularly describe the things to be searched
& seized want to avoid general warrant
Individuals present in the area retain their 4Am rights and arent covered by warrant in
many circumstances

Purposes & Procedures Search & Arrest Warrants

Neutrality: PC must be determined by a neutral & detached magistrate
WARRANTS:
Allows officer to find out whether or not there is PC and existence of warrant
will give great deal of immunity against search and suppression
Provides proof of officers authorization and notice to person subject to search
& scope of search
Return on the Warrant: copy of warrant and inventory of what officer took, how long it
took; allows review of search/seizure
Particular Description of Place to be Searched Particularity Requirement
Depends on circumstances and nature of item involved
If item protected by 1Am, greater particularity required
Place to be searched must be described so that officer w/ search warrant can
with reasonable effort ascertain and identify the place intended.
TX Particularity Requirement - 18.04
WARRANT. A search warrant issued under this chapter shall be sufficient if it contains
the following requisites:
(1) that it run in the name of "The State of Texas";
(2) that it identify, as near as may be, that which is to be seized and name or
describe, as near as may be, the person, place, or thing to be searched;
(3) that it command any peace officer of the proper county to search
forthwith the person, place, or thing named; and
(4) that it be dated and signed by the magistrate.

Page 7

Maryland v. Garrison 4Am doesnt require officers to be right; just requires them to be
reasonable
Knock & Announce Requirement (CL Rule)
Wilson v. AR USSC said knock and announce rule was requirement under 4Am
Timing of Warrants
TX - 18.06
EXECUTION OF WARRANTS.
(a) A peace officer to whom a search warrant is delivered shall execute it
without delay and forthwith return it to the proper magistrate. It must be
executed within three days from the time of its issuance, and shall be executed
within a shorter period if so directed in the warrant by the magistrate.
(b) On searching the place ordered to be searched, the officer executing
the warrant shall present a copy of the warrant to the owner of the place, if he is
present. If the owner of the place is not present but a person who is present is in
possession of the place, the officer shall present a copy of the warrant to the
person. Before the officer takes property from the place, he shall prepare a
written inventory of the property to be taken. He shall legibly endorse his name
on the inventory and present a copy of the inventory to the owner or other person
in possession of the property. If neither the owner nor a person in possession of
the property is present when the officer executes the warrant, the officer shall
leave a copy of the warrant and the inventory at the place.

Page 8

Warrant must be executed w/o delay and w/in 3 days of time of

issuance expanded in 18.07 so that day of issuance and day of
execution dont count
Days you have:
Issuance
Day 1
Day 2
Day 3
Execution
If there is a warrant burden on and presumptively reasonable
If there is not a warrant burden on gvt and presumptively unreasonable
EXCEPTIONS to Warrant Requirement
(Sometimes search/seizure is reasonable b/c of lack of PC BUT reasonableness trumps!
Overriding requirement of 4Am is reasonableness)

PLAIN VIEW EXCEPTION observation by officer that doesnt constitute a

search if it is reasonable to make the observation and it must be immediately
apparent
What about if they find unanticipated contraband may not have to get another
warrant to seize it b/c if the item is in plain view, it is reasonable for officers to take it
w/o another warrant
If the search is w/in the scope of what justified the officers being there in the first
place, the search is reasonable

Horton v. CA Court says inadvertent shouldnt be part of the plain view requirement
b/c it doesnt do anything to protect privacy interests of the parties involved
Arizona v. Hicks
EXIGENT CIRCUMSTANCES: if there is some sort of emergency that
requires police to act w/o delay; reasonable for officers to act immediately
Immediately Apparent officers look around and see two very expensive
stereo systems; it is not immediately apparent that they were items of a crime
The officers would have to move the systems to see the serial numbers on the
equipment
Plain Field outer garment pat downs; justified on reasonable suspicion
Justification for Arrest
Watson many times there is not warrant requirement; under CL it is clear that at least
for felony offenses you could make an arrest in a public place w/o obtaining a warrant

Page 9

Payton
Riddick to cross the threshold of the home, must have an arrest warrant; the
warrant is enough to allow the police to enter
If you are arresting the person named in the arrest warrant you may to go that persons
home and enter to make arrest but you must the arrest warrant to enter the home
Lankford police have warrant for two fugitives and enter 300 homes looking for
them
Warden v. Hayden if the police are in hot pursuit (have info or chased someone from
scene of the crime), then they can enter the home belonging to the person you are chasing
or any other home
So the suspect can run back inside his house but the police can chase him b/c they are in
hot pursuit
Santana hot pursuit doesnt require much
Atwater v. City of Lago Vista Police officer could have given a ticket, but he chose to
arrest and it is up to officers discretion
TX: There are two offenses for which officer is required to give a ticket:
1. Speeding
2. Open container of alcoholic beverage
But the requirement only applies if the offender has a valid TX drivers license
Tennessee v. Gardner If the suspect has committed a crime of violence or shown
immediate threat to an officer may shoot; sometimes they can shoot and sometimes they
cant; has to do w/ reasonableness under the 4Am
Gerstein v. Pugh Judge must review whether the arrest was based on PC and do
promptly b/c of intrusiveness of arrest
Gerstein Hearing: kind of determination that would be made by a magistrate if
officer had asked for a warrant; like ex parte hearings; based on hearsay, affidavit,
etc.; not subject to cross-X by the other side
What can the officer do after the arrest?
FIRST ZONE CHIMEL AREA
***Chimel v. California***
C comes home and officers arrest; they proceed to search the entire house,
finding evidence of the crime for which he was arrested
They did not have a search warrant
The court said that you cannot do this the search area must be w/in the
suspects immediate control
The purpose is to allow a search within the reaching distance to prevent harm
to officers or others and prevent destruction of the evidence

Page 10

Chimel Area: defines the appropriate scope of search incident to arrest

o It is like a protractor w/ the as the center; the area that is reaching +
lunging
o The right to search the Chimel area is automatic

If suspect moves the Chimel area moves w/ him

But if there is no valid reason for movement by the suspect (i.e. officers force suspect to
walk to certain area), then it is not w/in the Chimel area b/c it is being manipulated by the
officers
SECOND ZONE
Maryland v. Buie
Allows officer to do protective sweep to find anyone/anything in the
immediate adjacent area
Purpose is to find people
Buie right is as automatic as the Chimel right
THIRD ZONE
Beyond that beyond immediate adjacent requirement of Buie, but must have reason
to think someone is there
Chimel Area
Beyond that

Buie Area immediately

adjacent

We allow a search incident to arrest for two reasons:

1. Suspect might have a weapon
2. Suspect could get to evidence that he could possibly destroy
Searches of homes incident to arrest
Vale v. Louisiana PC is not enough to get you into a house to search you need a
warrant
Buie allows you to go inside a house if you are looking for a person
Segura v. US the courts do not require officers to use the lease invasive means to
accomplish their purpose it is either reasonable or unreasonable under the 4Am
Searches of cars incident to arrest
Officers have great authority to search a car; even when just making stop for traffic
violation
Page 11

NY v. Belton if the police make an arrest outside an automobile, then the Chimel area
includes the passenger compartment, including closed containers, but not the trunk
Thornton v. US extend the area b/c the was recently in the vehicle and the officer
searched it
Knowles officer gives ticket and then searches the car and turns up contraband; that is
not ok
If there is a reasonable basis for police action, we are not going to inquire as to the
true motive of the officer
Automobile Exception if officers think based on PC that the car contains evidence of
criminal activity, then officers can search and the trunk is w/in the scope officers can
look anywhere the item might reasonably be
Carney House on wheel is a vehicle (not a house)
Seizing items incident to arrest
If there is PC, then may seize suspects briefcase (so that it doesnt disappear) but in
order to open it, they must get a warrant
Summary:
House need warrant to search
Briefcase can seize, but need warrant to open
Vehicle (auto exclusion) even if no exigency (even if
car is no longer mobile) you do not need a warrant

Other areas
Just because you are away from home you do not lose your expectation of privacy; you
have a reasonable expectation of privacy in some other places/things
Sanders container doesnt lose protection just b/c it gets put into a car
Ross police knew that somewhere in the car he had drugs, so it is a vehicle issue and
not a container case overruled in Acevedo
Acevedo as long as it is a closed, opaque container it is subject to the warrant
requirement away from the vehicle; there is no difference between a brown paper sack
and an attach case
RULE: Officers can search a closed container w/in a car if it is reasonable that the
item they are looking for is there

Page 12

EXAMPLE: If officer makes a stop for a traffic violation and there is no other evidence
(all we have is the violation) officer can make an arrest. At that point he can search
anywhere in the Chimel area and under Belton (w/o regard for particular circumstances)
the officer can search in passenger compartment, meaning closed containers in the
passenger compartment and even containers of the passengers
Inventory Searches
Cars (Impoundment)
Impoundment must be necessary
Officers motivation is a relevant factor
There must be a departmental policy (must have that kind of consistency) neutral
procedure that has been developed by the administration
Bertine Justification for inventory searches:
1. Protect the officers from claims that they stole property left in the car
2. Protect the property
3. Public safety/community caretaking
TX:

the police can impound: removal from accident scene; parking violation;
owner/driver requests/consents to impoundment; auto stolen or reasonable belief
it is stolen; abandoned; hazard; driver removed and placed under custodial arrest
and no other alternatives are available

Scope: has the search been contained w/in reasonable bounds that justify an auto IS in
the first place?
TX:

Autran v. State during an IS officers are not authorized to open closed containers
Gill v. State police impounded a car and wanted to open the trunk; they went
through the back seat to get to the trunk; that is not ok
Steven v. State this kind of search was upheld when the officers had the key
These cases are very fact sensitive!

Jail Inventory
Illinois v. Lafayette it is a search justified w/ PC b/c of concerns re protecting the
persons property and security of the jail
US v. Edwards after E had been put into the jail population and he had already been
given his prison uniform, etc. officers came back and got his clothes to search for paint
chips; you cannot do this b/c you must have neutral reasons for the IS
The REAL JUSTIFICATION in this instance: exigent circumstances; shirt may be tossed
somewhere or no longer available and they dont want to risk losing evidence

Page 13

Cupp v. Murphy blood under the fingernails case

Rochin v. CA forcible extraction through the administration of a solution that induced
illnedd was not ok; whenever there is a situation where police use tactics that are
arguably shocking, look to Rochin analysis
Rochin requires:
1. Deliberate conduct
2. Deliberate infliction of pain or excessive violence
Schmerber v. CA blood-alcohol level
4Am argument no warrant to get the BAL

Administrative Inspections
Keys to AI
1. Neutrality of treatment
a. We are not arbitrarily singling someone out
2. Balancing Test the gvts need for the searches against the intrusiveness of
action taken by officer (Need vs. Intrusiveness)
a. If the intrusion is low and need is high likely to be reasonable w/o PC
warrant
b. As the intrusion goes up or need goes down likely that more traditional
requirements of 4Am will go up

Need

Higher 4Am standards

Intrusiveness
Camara
Building code requirements; to make the system meaningful, must have
inspections
Requirement: sometimes a warrant is required even though PC is not required
If the premises to be inspected are the kind that were meant to be covered by
the procedure, then this person is being treated the same as everyone else
PC may be: It has been 10 years since we inspected this building; there is a
requirement that we inspect every building every 10 years and the PC is that
the buildings on this block are up for inspection this year
Border Search Cases
Authority for gvt officials to engage in unindividualized suspicion b/c need is great
Can ask people to open suitcases, trunks, etc.
Real Suspicion strip searches
Page 14

Clear Indication body cavity search

Two ways of going about these searches:
1. Roving patrol
2. Fixed checkpoint
Fixed checkpoint more likely to get court approval b/c it is more neutral than the roving
patrol (which is subjective)
Once the car is stopped:
1. Vehicle search
2. Brief inquiry
Brief inquiry is much less intrusive

Stop & Frisk

Terry v. Ohio
Now dealing with pre-arrest encounters
FACTS: officer sees the men on the street who were looking in the store
window and just acting shady; he did not have PC b/c he didnt see any
criminal activity; officer approaches the men and asks them some questions
o ***Then the officer pats down Terry; he detects something that might be a
gun; it is a gun and he now has PC to arrest; the detection justifies the
reaching in and taking
TC denies suppression motion; SC affirms
What do we allow police to do when they dont have PC?
o argument: police can do nothing until the police have PC they can
only engage in action(s) that do not constitute search/seizure
o Gvt. argument: we can do whatever we want until the arrest occurs and the
4Am comes into play
The Court rejected both arguments this case represents a policy
compromise
The court attempts to say that police can act w/ less the PC; but what the
officer can do is less as well
Theory of compromise: great need for more flexible approach and response by
police officers not sufficient to say when you have PC you can arrest; but
before that you cant do anything that constitutes search/seizure
Terry stop & frisk must be less intrusive than an arrest
o It must be brief cannot engage in Chimel area exhaustive search; limited
to pat down type of search and no automatic right to engage in the pat
down
Court says there is search/seizure whenever a police officer accosts an
individual and restrains his freedom to walk away, he has seized that
person.
Officer does not necessarily need PC but there must be reasonable
suspicion
Page 15

RS is not as high of a standard as PC (doesnt take as much to get RS)

o Must have specific and articulable facts
If the officer has RS, a brief detention is okay and the outer pat down is also
ok; either suspicions will be resolved and officer will let him go OR nothing
dispels the suspicions and RS ripens to PC, leading to arrest

In analyzing these encounters, must decide what level of intrusion has occurred:
1. Encounter: simply a consensual b/w the officer and a
private citizen and there is no search no 4Am
requirement
2. Detention: goes far enough that it is on 4Am radar but only
to the level of an investigatory stop RS and no warrant
3. Arrest: PC
Florida v. Bostick
B on bus and officers get on
Free to Leave Test all B has to do is get up and leave
There is no gvt action that confines B to the bus
INS v. Delgado officers go to a factory where they think illegal aliens are
working; there is no gvtl action that confines them
Bostick changes Free to Leave to Free to Refuse
There must be state action that accounts for the confinement
CA v. Hodari we need to things for a stop/detention:
1. Actual application of force that detains
2. Submission to that authority
Wardlow individual is free to leave unless the officer has a justification to detain you;
however, flight is different than the decision to walk away calmly b/c it raises a different
kind of suspicion
Florida v. JL
Informants they are used in Terry situations and less is required than other
issues w/ informants
Generally an anonymous tip is going to be acceptable
Alabama v. White
o An informant who gives info that could be innocent activity is enough b/c
it is more specific and it is a prediction of things that have not yet
happened

***Hensley
Page 16

Terry stops are not limited to RS of crimes that about to occur/are

occurring/just occurred RS here was that he appeared to match the
description of one who committed a crime months before
As long as there is RS that crime is about to occur or has occurred, there is
justification for detention

What can an officer do during a detention?

Ask person to ID themselves
o If he refuse, officer may take reasonable steps to ID the individual can
reach into his pocket and get his wallet (Hibel)
May ask person about things that cause officer to be suspicious
Does not have to give Miranda warnings
Officer may ask to engage in a search (Ohio v. Ramirez)
o Non-custodial traffic detentions are analogous to Terry-type stops
Pat down (outer garment) limited; have to have RS to pat down
o Dickerson if officer makes a plain feel observation (even as to
contraband) then taking that item is reasonable
o Long where the officer has RS to stop a car and RS to believe there is a
weapon, officer may search anywhere in the passenger compartment
where the weapon might be limited
Bring in eye witnesses to place that you have detained the individual
Can do something to verify a crime has taken place
The person does not have to respond to officers questions
***US v. Place***
Is dog sniff of a container a search/seizure? NO
Difficulty: unduly long detention of the suitcase; since officers knew in
advance where Place would be, they could have had a dog there ahead of time
and limited the intrusion
Two important things:
1. If there is a less intrusive way of accomplishing what they are doing, might make
Terry encounter unreasonable
2. The court has authorized temporary detention of personal effects under Terry
Caballes Question of duration is often raised to discuss reasonableness
While the court is reluctant to put a specific time limit on what is reasonable, somewhere
around 15 minutes is probably reasonable; but past that the court will scrutinize whether
the detention needs to be backed by PC b/c it is at that point an arrest rather than Terry
encounter
Very fact specific are police diligently pursuing reasonable means of determining if
there is a problem, etc.?

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Consent Searches
Exception to 4th amendment requirements (PC/Warrant) if the consent was voluntary
Cops dont need RS or PC to ask for consent
Cops can walk up to everyone on the bus w/o a warrant and ask for consent.
Consent is an issue of fact
Questions to ask:
1. Was the consent voluntary?
2. Was the consent given by an individual that has the authority to consent? (Did the
police reasonably believe the individual had authority to consent?)
3. Did the police stay reasonably within the bounds for which consent was given?
(Did they stay w/in the scope of the consent?)
Schneckloth v. Bustamonte
Gives a warning ticket but no arrest. Therefore no authority to search
automobile.
Custodial arrest triggers automatic Chimel search (under Belton)
officers search the compartment.
Non-Custodial does not trigger this.
says he didnt know he could refuse a cop and if he didnt know then the
consent is not voluntary.
Strict standard of waiver must have voluntary relinquishment of a known
right.
Because consent searches are more on neutral ground, and individual
hasnt been taken into custody yet, no Miranda warnings necessary
Custody = police dominated environment.
If the says yes to the search, his rights are waived
The mere refusal of consent cannot provide PC or RS to the police
Again, however, there is a difference b/w refusal of consent and flight
Bumper v NC
Officers arrive and say they have a warrant; s grandmother allows them to
search
Turns out no warrant. The state argues consent.
Court says it is not consent, it is aquiessence to a claim of authority.
Who has the authority to give consent?
IL v. Rodriguez Girlfriend has no authority to give consent to search ex-boyfriends
apartment; consent must be given by someone with authority.

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Who can consent to a search of your home?

People you live with.
If you have given a key to your visiting brother but not search your
bedroom.
Live-in boyfriend/girlfriend.
Dont have to have an ownership interest to be able to consent
Children may have authority to let police in house but not search the bedroom;
this will be apparent to an officer that the kid doesnt have authority to say
they can search the bedroom.
Hotel room the management can go in the room while you are gone; but they
cannot give consent to the police to search your room (after checkout, the
management can let them in)
Landlord cannot consent to search on your behalf
YOU have a reasonable expectation of privacy during the period of your
rental.
Can only enter for limited purposes does not equal right to enter for ANY
purpose.
It is the officers reasonable belief of the situation.
Jimeno Reasonable to assume the cop will open containers in the car; however, if it
would not be reasonable if it is in a locked container
It is a question of reasonableness.

Wiretapping & Bugging

Secret Agents: 4Am issues raised when using these techniques based on consent
Deception: if deception destroys voluntariness, it may destroy consent; deception by
officer does not destroy validity of consent
Lewis undercover officer goes into buy drugs; if you invite someone in you have
consented and dont have a reasonable expectation of privacy
On Lee someone wired w/ officers listening; same as unwired agent there is consent
Hoffa case government can use secret agents and offer inducements in the investigatory
phase but not the adjudicatory phase
Electronic Surveillance
Title III Ominous Crime Bill (1968)
2511(c) if undercover agent agrees to wear a wire, the statute doesnt apply and
4Am doesnt kick in b/c of consent

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2511(d) statute applies to private individuals; you can record your own
conversations and it doesnt violate this statute
2511(f) statute doesnt affect foreign intelligence FISA sets up independent
and secret court and issues its own warrants
2515 ER is much broader by statute than it is under 4Am
States can have their own wire tapping laws, but they must comply w/ the federal
rules
2516 people who can seek electronic surveillance are limited; it is much more
restricted than normal warrants
There is a list of things for which you can get an electronic surveillance
warrant

Confessions by - Admissibility
4 Grounds of Attack on Admissibility of Confession:
1. Due process of law
2. 5Am right against self-incrimination
Miranda
3. 6Am Massiah
4. TX-only ground 38.22
Due Process of Law

Voluntariness line of attack due process argument may be made to any

statement at any time
Due process has the best ER coerced confession cant be used in any
proceeding nor can any evidence derived from it be used
Major Drawback: establishing a violation

Connelly any coercion was not b/c of actions of law enforcement officials; there must
be some sort of state action
Torture if there is violence or threat of violence there is an involuntary confession
Courts have recognized subtle forms of coercion:
Prolonged interrogation w/o providing basic amenities
Promises from officers
Miller v. Fenton Must look at exactly what was said/done in a particular case, and must
look at the particular individual involved cases are very individualized and looked at
on case-by-case basis
Officer providing false information to does not go too far

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There is a case that says when police invented a scientific test it did not go too
far
5Am Right Miranda

Miranda v. AZ
FACTS

the prosecution may not use statements, whether exculpatory or inculpatory, stemming
from custodial interrogation of the unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination. By custodial interrogation, we
mean 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. As for the
procedural safeguards to be employed, unless other fully effective means are devised to
inform accused persons of their right of silence and to assure a continuous opportunity to
exercise it, the following measures are required. Prior to any questioning, the person must be
warned that he has a right to remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of any attorney, either retained
of appointed. The may waive effectuation of these rights, provided the waiver is made
voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any
stage of the process that he wishes to consult with an attorney before speaking there can be
no questioning.

Under 5Am argument, we do not look at each case individually to determine

whether the in those circumstances knew of his rights
Unless you give the warnings, there is an irrebuttable presumption of coercion
must also give all the warnings

In order fully to apprise a person interrogated of the extent of his rights under this system
then, it is necessary to warn him not only that he has the right to consult with an attorney, but
also that if he is indigent a lawyer will be appointed to represent him. Without this additional
warning, the admonition of the right to consult with counsel would often be understood as
meaning only that he can consult with a lawyer if he has one or has the funds to obtain one.

Applies to all statements

No distinction can be drawn b/w statements which are direct confessions and statements
which amount to admissions of part or all of an offense.

General on-scene questioning is ok

Spontaneous statements continue to be admissible
Volunteered statements of any kind are not barred by the 5Am and their admissibility is not
affected by our holding today.

Must have custody and interrogation

To comply w/ Miranda, the must understand and have the capacity (cant
have language barrier, intoxicated, incompetent, etc.)
o State has the burden to show that warnings were understood and
voluntarily waived
Waiver
o Must have express waiver silence alone does not constitute waiver
there is no room for the contention that the privilege is waived if the individual
answers some questions or gives some information on his own prior to invoking his right
to remain silent when interrogated.

Henceforth any time there is custodial interrogation by law enforcement officials,

familiar warnings from the opinion must be given to all suspects and court wont pause to

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determine whether warnings were necessary in a particular case; failure to give warnings
prior to custodial interrogation creates a conclusive presumption of coercion
Reverse Line-Up police put in lineup and have someone falsely ID as perpetrator
of crime; suspect so concerned re false accusation that he makes admission of crime
officers actually suspected committed we dont know if this is outlawed by Miranda
Threshold Requirements of Miranda: Custody & Interrogation
1. Custody
Would a reasonable person feel he was deprived of his freedom in a significant way?
Beckwith v. US
Although B was the focus of the conversation, he was in his own home
and Miranda applies when the suspect is in a police-controlled area
You may be in your home
Orozco in the middle of the night police were in his bedroom
Must look at all circumstances and determine whether a RPPerson under
the circumstances would think he had been deprived of his liberties in a
significant way
CA v. Beheler officers took B to station and court said that B was just getting a ride
from the officer so no custody
MN v. Murphy Probation officer
Yarborough v. Alvarado
Minor; his parents took him to the police station
Do not rely on this case re custody
Berkemer v. McCarty - is stopped for traffic violation and asked a question that calls for
an incriminating response (i.e. Have you been drinking?); dont have to give Miranda
warnings b/c Terry encounter is temporary
2. Interrogation
RI v. Innis after I was Mirandized, he invoked his right to an atty; under Miranda all
interrogation must cease
TEST: Interrogation refers to direct words/actions by police (other than those
normally attendant to arrest/custody) that police should know are
reasonably likely to elicit an incriminating response
normally attendant to arrest and custody What is your name
words or actions might not be verbal; objective test

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Illinois v. Perkins Perkins is in jail on other charges than the subject of interrogation;
interrogation is by inmates working for the state
P doesnt have a 5Am right b/c it is not compelled he cant be in a police dominated
environment if he doesnt know that he is involved w/ police he is not in a coercive
environment
Penn. v. Muniz
Routine Booking Exception: officer can ask questions and if blurts out
incriminating response, that is volunteered statement
Dont have to give Miranda warnings before a field sobriety test it is voluntary
and is not of testimonial nature
Post-Miranda cases generally have undercut Miranda
Important areas in which Miranda has changed
1. Effect of violation of Miranda what kind of ER if Miranda violated?
2. Miranda treated as less important than others
3. PUBLIC SAFETY EXCEPTION
4. Waiver cases
Harris and Hass if officers get a statement in violation of Miranda, it may still be used
for impeachment
Duckworth it is ok if the officer does not give the exact wording of the Miranda opinion
so long as the warning he gives covers all the bases
Fare v. Michael C. if the warnings are given to suspect and suspect invokes the right,
you must stop interrogating immediately suspect must use a degree of clarity to invoke
his rights
Colorado v. Spring one Miranda warning is ok in a single interrogation no matter how
many subjects are covered
***Michigan v. Tucker
Police didnt give Miranda warnings b/c Miranda had yet to be decided
Prosecution didnt use the statement itself; rather used a name from the
statement and they introduced that persons testimony
Fruit of the poisonous tree does not apply to Miranda violations b/c the rule is
designed to protect 5Am values and not the 5Am itself
***NY v. Quarles
Ct says no Miranda violations when the questioning is prompted by concerns
for public safety public safety exception to Miranda
If questioning is prompted by reasonable concerns for public safety, might be
able to say the concern is not just to develop evidence about crime but wanted

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to know that some else is/isnt in danger, and we cant do that w/o more
information
Waiver
Miranda required express waiver
Post-Miranda cases waiver can be implied as long as there is no impediment to
comprehension and it appears the statement is in no way coerced by officers
North Carolina v. Butler someone who will tell you orally but wont put it in writing;
Miranda doesnt require statements to be written
If you encounter this type of situation follow up with warnings to make sure that
suspect fully understands Miranda warnings and that what he says even if not
written may be used against him
Michigan v. Mosley
If the suspect invokes his right to an atty, interrogation must cease
immediately, but for how long?
M said I dont want to talk to you but did not ask for an atty
Two hours later officers went back, gave new set of warnings and asked about
a different crime
Court said that:
o Significant time had passed
o Different subject
At a minimum, need to have a new set of Miranda warnings w/ new
interrogation and have to have some appreciable passage of time
Edwards v. AZ
E asserted his right to counsel
Officers ceased interrogation until next morning when they approach him
again and ask if he wants to make a statement
They had the minimum passage of time, new Miranda warnings, officers
ceased interrogation
However the important difference was invocation of different right
AZ v. Roberson
R says he wants to speak to atty; passage of time; then officers try to question
about a different offense
Miranda said you have right to counsel prior to interrogation if you have
invoked that right and no counsel has been provided and there is another
attempt to interrogate, that undermines Miranda

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Makes a difference which right you invoke

(1) Silence vs. (2) Right to counsel
If you invoke right to remain silent:
Officials can start interrogation again if there is passage of time and a new set of
Miranda warnings
If you invoke right to counsel:
Officials may not initiate any interrogation after the invocation of the right unless
knocks down that barrier by initiating the discussion
Minick v. Mississippi
M taken into custody and interviewed by FBI afterwards M is appointed atty
and talks to him
MS law officer comes by to talk to M re unrelated charges; gives M Miranda
warnings and M makes incriminating statement
If you invoke the right to counsel, police may not initiate any further
interrogation
o BUT rule can be set aside if shows willingness to talk about criminal
investigation
US v. Green decision from lower ct that is good law; even if you have officers that
might not know anything about the other interrogation, it is a violation to even approach
suspect and ask questions
What is initiating further communication w/ the police?
Oregon v. Bradshaw
B says What is going to happen to me now?
Officer says you dont have to talk, let me remind you of your rights, you may
want to take lie detector test
Court said it amounted to initiation on Bs part
Davis v. US
D says maybe I should talk to a lawyer and officers clarify what he means
First part comes in as voluntary statement; after he says maybe I should talk
to a lawyer the stuff doesnt come in
Edwards rule only invoked if there is a clear statement of desire to have atty
prior to any interrogation but what D said does not constitute invocation
6Am Right Massiah
(Massiah & Escobedo actually occurred before Miranda)
Massiah
FACTS: M doesnt know he is talking to police b/c he is talking to a friend
who is wired

Page 25

If police can hear through wire, it does not change the 4Am calculus b/c of
assumption of the risk during the investigatory phase
However, balance shifts when you hit the adjudicatory phase
o Do we have a formal charging instrument? Indictment? Information?
When we hit the adjudicatory phase, officers are running behind the back
of counsel; tactics that are permissible in the investigatory phase are not
permissible in the adjudicatory phase

Escobedo
FACTS: E asked for atty; and Es atty was trying to get to his client and
officers prevented him from getting in
If asks for counsel or if s atty is trying to see and the police deny the
request, violation of 6Am right to counsel
Criminal justice system that relies on this kind of admission from accused is
not fair and state should have the burden of developing the case against w/o
his admission
If asks for a lawyer, officers cant continue interrogation w/o providing
counsel
Brewer v. Williams Christian Burial Speech
W had abducted a girl; turned himself in per his atty and he was arraigned
now in adjudicatory phase
Christian Burial Speech; Is Christian Burial Speech interrogation?
o If yes dont have to go further
o If no it is a voluntary statement
This statement was clearly aimed at Williams (not at another officer as in
Ennis)
Police cannot deliberately elicit evidence from suspect once the suspect is
in the adjudicatory phase absent a valid waiver. There can be no valid
waiver if police have initiated interrogation after invocation of right to counsel
Majority says the deliberate violation of prior invocation of right made by
suspect and made w/ counsel that there would be no interrogation
Patterson v. Illinois
You waive 6Am rights the same way you waive 5Am rights
Miranda does not apply unless knows he is talking to authorities; that is not
the case w/ Massiah -- is protected even w/o that knowledge
Michigan v. Jackson
J appears before judge and one of the first thing judge does is ask J if he has
an attorney or would like one
Edwards Rule applies by analogy to 6Am context he has invoked his right to
counsel and later questioning by officers violated 6Am right to counsel b/c no
valid waiver after right was invoked

Page 26

McNeil

Once you appear in court w/ an atty, officers cant interrogate re an offense in

the adjudicatory phase
6Am violation is generally somewhat limited b/c the Roberson rule doesnt
apply police can ask about a different offense
If McNeil had been given Miranda warnings and he had invoked his right to
counsel, then Edwards/Roberson rule would continue to apply but that
comes from 5Am

US v. Henry
H is in jail and the state puts a jail plant in the cell; state gives plant specific
instructions not to ask questions but just to keep his ears open
Have to determine if the statements were deliberately elicited to decide if the
statements violate the 6Am
o Kuhlman v. Wilson
Had very similar facts
Court said that if you dont do anything to pull the information
from the , it is simply a spontaneous statement, so no 6Am
violation
This court reaches different conclusion
The plant was being paid on a contingent fee basis
Hs interrogator is not a passive listening post but rather deliberately elicited
the evidence
Deliberately elicited is more easily reached than interrogation
Maine v. Moulton
M is in conversation w/ co-; state has made a deal w/ the co-, who is wired
for sound when meeting w/ M
There is a series of comments re the offense for which M has been indicted
(and therefore in the adjudicatory phase)
During the meeting, M suggests that some state witnesses should be knocked
off those statements are investigatory b/c not related to the adjudicatoryphase offense
Miranda protection doesnt apply b/c no custody; but Massiah does apply
Tex. v. Cobb
We determine whether something is the same or different offense in the
same way we determine double jeaopardy we look to the elements of the
offense and not the conduct of the to determine whether the same offense is
involved
Some key differences b/w 5Am & 6Am
5Am/Miranda
6Am/Massiah

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Must be in custody?
Must know he is dealing
w/ officers/authorities to
have the protection?
Can the s atty invoke the
right to counsel?
Is there a public safety
exception?
Does the fruit of the
poisonous tree rule apply?

Custody requirement
YES

NO

No custody requirement
NO
(it applies when using
undercover agents, moles,
etc.)
MAYBE

YES

NO

NO can use derivative

evidence

YES derivative evidence

is not admissible unless
prosecution proves it is not
FPT

TX-Only Ground 38.22

Essentially a Miranda rule, with two important differences:
1. There is a 5th warning required that officer must advise the suspect that he has a
right to terminate the interview at any time
2. Requirement that to be admissible the statement must be in writing or if oral must
be recorded

Fruit of the Poisonous Tree Doctrine

GEN RULE: FPT Doctrine is the idea that derivative evidence derived in an
unconstitutional way is not admissible.
Miranda Violations
Miranda is the exception to the usual FPT doctrine state may introduce derivative
evidence gained from interrogation that violates Miranda
There are three ways the state can un-poison the fruit:
1. State can show an independent source the state shows that it got the
information from another source (rather than )
2. Inevitable discovery the state shows that the information would have been
discovered anyway
3. Attenuated connection
What if the derivative evidence is another confession?
Oregon v. Elstad
FACTS: officers have PC to believe E is involved in a burglary; went to Es
home and speak to E (w/ Es permission); E makes admission of guilt at
officers prompting; a few hours later E gets Miranda warnings for the first
time and makes another and fuller confession
Lwr Ct: says FPT controls
Page 28

US SC disagrees

That first statement may be admissible

GENERALLY:

FPT doesnt apply to Miranda; however, if the derivative evidence

is a second confession following a confession that failed to comply
w/ Miranda, then the court may consider it a continuous
interrogation w/ midstream Miranda warnings that are insufficient

TX/38.22
38.22(3) Derivative Evidence
Subsection (a) of this section shall not apply to any statement which contains assertions
of facts or circumstances that are found to be true and which conduce to establish the
guilt of the accused, such as the finding of secreted or stolen property or the instrument
with which he states the offense was committed.
To use the derivative evidence, state must prove:
1. Assertions of fact by statement of
2. Assertions must be found to be true
3. Statements must conduce to establish guilt of the
If you dont have all three then the provision doesnt apply

Impeachment
Evidence obtained in violation of 5Am or 6Am may be used to impeach even though it is
excluded from the prosecutions CIC
NJ v. Portash
Involuntary confession under due process cannot be used for any purpose,
including impeachment
Violation of immunity agreement cannot be used for any purpose, including
CIC and impeachment
Can you impeach with SILENCE???
Griffin v. CA prosecutor in criminal trial may not point out to jury that did not testify
at trial b/c it puts a price on the s 5Am right not to testify
Jenkins v. Anderson
Fletcher v. Weir
In both cases: victim killed and for a couple weeks did not turn himself in, then at the
trial claim it was self-; prosecution tries to use that against the
USSC There is nothing unconstitutional about this; states may make their own
evidence rules, but under constitutional law prosecution may ask about this
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Doyle v. Ohio he is given Miranda warnings; he invokes right to silence, and

prosecution cannot use that against him b/c as a matter of due process it is fundamentally
unfair
TX:
Sanchez v. State CCA ruled that when is silent after arrest it is implied that there is an
invocation of right against self incrimination under the TX constitution limited to postarrest silence
Carter v. KY you are entitled to no adverse interrogation from silence jury instruction
Lakeside v. Oregon you are not entitled not to have no inference from silence
instruction if you would prefer not to have that instruction, too bad

Identification Procedures
Wade, Gilbert & Stovall all three cases were decided on the same day in 1967
Two rules created:
1. Stovall Rule
2. Wade Rule: cannot have an adjudicatory phase ID procedure (that is cant
have a live person ID procedure after the beginning of adjudicatory process)
unless there is an atty present absent a valid waiver of the right to have
counsel present
The court protects against the evil of unnecessary procedures that prompt
misidentification
US v. Wade
FACTS: bank robber, W put into lineup with several other people who more
or less look like him; some of the witnesses saw W in the hall w/ police before
the lineup
5Am argument
o They have W say the words witnesses say robber said
o No violation of 5Am rights b/c non-testimonial in nature
o Had they only made him do it it might be different; but all the others in
the lineup had to do the same
Wade Rule requires that there be an atty at some ID procedures; designed to
help prevent evil of mistaken ID caused y overly suggestive procedures
It is applied like Miranda in the sense that we dont look at the particular
circumstances/not case-by-case basis (like we do use in due process cases) if
there is no atty present, it is a per se violation and the out of court ID cannot
be admitted at trial
Factors to consider when determining whether in-court ID should be allowed:
o Prior opportunity to observe the alleged criminal act

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o Existence of any discrepancy b/w any pre-lineup description and the s

actual description
o Any ID prior to lineup of another person
o ID by picture of the prior to lineup
o Failure to ID on a prior occasion
o Lapse of time b/w alleged act and lineup ID
The purpose of these factors is to determine the source of the witness
memory

Attys Role
Atty does not have the power to prevent his client from participating in a
lineup
What do you do at a Wade lineup? Two perspectives:
o Active presence make objections, etc.
o Passive presence (generally adhered to)
You can make suggestions to police if you see something that
needs to be fixed, tell officers to fix it
You do not waive if you dont object
Wade Rule undercut by:
1. Kirby and Ash cases
Kirby v. Illinois
This is a show-up rather than a lineup meaning it is a one-on-one
lineup procedure
It is rarely favored; but excused when it is prompt if someone is
apprehended near to the scene of the crime, the theory of the immediate ID
is that the witness memory is fresh and the freshness outweighs the
suggestiveness of the show-up
K was sitting with an officer at the station and the witness immediately
says it was him there was no atty present
The right to counsel arises in the adjudicatory phase so pre-adjudicatory
phase IDs are not subject to Wade
US v. Ash
ID is years after the crime occurred and long after the was indicted
BUT it was not a corporeal lineup it is done by photograph
The photographic lineup was done very close to trial
There was no Wade violation if doesnt have a right to be present, then
there is no constitutional right to have atty present
2. Fruit of the Poisonous Tree
Due Process argument can apply ti any ID procedure taking place at any time

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Stovall v. Denno
The victim was shown the suspect in handcuffs at the hospital
This wasnt too suggestive b/c if there was going to be an ID, it must be
immediate b/c the witness was going to die
So to violate due process, must have:
1. Suggestiveness
2. Suggestiveness that is unnecessary
Manson v. Brathwaite
Undercover officers make photographic ID two days after buying from
suspect; ID was done with one photo
Ct says there are three requirements to constitute due process violation:
1. Suggestiveness
2. Suggestiveness that is unnecessary
3. Must give rise to a substantial probability of mistaken identification
There are factors to consider in making that decision:
1. The opportunity to view
2. The degree of attention of witness
3. The accuracy of the description
4. The witness level of certainty
5. The time between the crime and the confrontation
If there is not substantial probability of mistaken identification, then the
officer may testify in court and the out of court ID will be admissible

Due Process Violation

3 Requirements:
1. Suggestiveness
2. Unnecessary
3. Must give rise to a substantial probability of mistaken
identification
Factors to consider in deciding whether there is due process
violation:
1. The witness opportunity to view
2. The degree of attention of the witness
3. The accuracy of the description
4. The witness level of certainty
5. The time b/w the crime and the confrontation

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