REVIEW

• 4th amendment protects against intrusion of our privacy and possessory

interest in our stuff
o only triggered when there is a search or seizure
• 5th protects the fairness of a criminal trial
o Coerce confession is unreliable evidence
• Miranda protects against forced self incrimination’
o Gives right to attorney during custodial interrogation
o Protect is to make sure that waiver of right to remain silent is not coerce
• 6th amendment is constitutional goes to protect rights in criminal trial
o Miasiah states that rights goes to pre trial procedures after charged

4 TH
AMENDMENT
Exclusionary rule: applies to both state and federal cases.
Threshold question of when is there a search.
• Katz test: subjective and objective expectation of privacy
o Test revolves around the objective expectation of privacy
o No bright line rule
o Katz court said that when in an enclosed phone both where there is
reasonable believe privacy then it is a search
o False friends theory eliminates the search requirement.
• Smith pin register case
o Court said not a search because people generally believe that other
people would have access to the numbers you called
• Oliver (open fields beyond curtilage)
o Court said if you fence
• Ceralo
o No privacy form jets flying above backyard
• Trash is not a search (Greenwood)
• Bond case
o Court held that patting outside of suitcase is a search

STANDING;
• Standing is only available if you have a reasonable expectation of privacy of
the area that was search.
• Overnight guest have standing (Olsen)

P/C = Gates test

• Would reasonable officer in same situation believe they have reason for
search.
 • Delaware v. Franks : items on warrant are partically false then take away bad
facts and look at remainding facts for P/C for warrant.

WARRANT REQUIREMENT
4th Am does not require warrants
Warrants for seizure:
• Arrest
o Don’t need one in a public place for a felony or when a crime is
committed in front of the officer
o Do need one in a private place or a past misdemeanor
o Overnight guest has standing in a home
• Standing: use Rakas test
o To arrest in a home, PO has to have an arrest warrant and belief
that person is home
• Warrant to search
o Need one to search a private place
o Steagald- PO had an arrest warrant for Lyons at Steagald’s home
and found drugs they wanted to use against Steagald, Court said
the have to have a warrant for Steagald (home owner’s privacy
interest)
Have a warrant, is it valid?
• Has to be based on PC
• Has to be reasonably particular as to the place to be searched and the
items to be seized (including time). Marilyn v. Garrison- two
apartments, Court said warrant was particular, POs made effort to find
right apartment
o Anticipatory warrants are okay in drug cases
• Reasonably executed- see handout
o Knock-and-announce- PO doesn’t have to if has RS that it would
be dangerous
Good faith exception to the exclusionary rule
• NOT an exception to the warrant requirement
• Police have warrant, but turns out to be invalid (because no probable
cause or particularity)
o PO had to act in good faith
o Magistrate acted in a neutral way
o Police officer should have known that it was invalid

Search Warrant Exceptions

• SILA:
o Have to have a valid arrest, PO can look on arrestee’s person and
in grabbing area and after Buie, in the same area as the arrest
where a person could be hiding. If person has recently been in a
car- SILA, can search anywhere a weapon or evidence could be.
 Don’t know about hatchbacks, locked glove compartment. Can
frisk house (not SILA), if PO believe there is another person that
could harm them in the home

• Exigent Circumstances:
o Requires PC of the particular exigency (destruction of evidence,
escape of the arrestee) and don’t have time to get a warrant

• Consent :
o Exception to search warrant requirement and PC requirement
 Is it valid (Voluntary)
 TOC
 PO doesn’t have to tell suspect they can refuse
 Scope of consent to search
• Not sure about opening locked containers
• rd
3 party consent :
o Gov’t has to show apparent authority not actual authority. Whether
a reasonable officer, knowing the information, would reasonably
think the 3rd party has actual authority

Plain view and Plain feel

o Relates to seizure
 If an officer is lawfully present in a place and looks around,
then anything he sees in plain view he can seize without
getting a warrant to seize- we allow POs to do this for
convenience
 Hicks- Police go in lawfully because of exigency and seize a
stereo (wasn’t immediately apparent without a further
search)
o Plain feel- if a PO feels something that is immediately apparent to
be contraband and can take it out and seize it (no additional
manipulation)

Vehicles and Containers

o You can search a vehicle if you have PC to search it- Acevedo
 If looking for a rifle, can’t look in glove compartment
 If you find something, it can give you more PC to keep
looking
o Lower expectation of privacy in cars
 Wyoming v. Holton- car case, PO had PC to believe there
were drugs, searched passenger’s purse and found drugs,
Court said ok
 If you have a container and it is outside the car, then you can
seize it (but have to get search warrant to search it)- but not
once it is put in the car (cars are highly regulated)
Inventories
o Like consent in that there is no PC requirement
o Allowed to protect person’s property
 Have to have established procedures
 Police have to follow those procedures
o Can’t be investigatory
o Inventories of a person
 Have to have a valid arrest and PO reasonably believe that
person will be incarcerated and established procedures
 To protect property and other people in the prison
o Strip search- if person is to be incarcerated overnight then okay,
but not misdemeanor
 Ask the three questions: Rationale, showing and scope

TERRY REVIEW
• A stop is a kind of seizure
o Dunaway- if transport suspect any distance or hold for too long,
then it is an arrest
o Sharpe- PO trailing an individual, but lost him, another car picks up
the trail, they have RS but no PC, they held the guy for 45 minutes
until first officer got back, SC said if not for the guy alluding the PO
there wouldn’t be a need to wait so 45 minutes was okay and not
an arrest.
o US v. Place- not reasonable in Place, had prior notice to get dogs
• Terry stop and frisk takes us to…
o Long- If PO have reason to believe there is a weapon in the car
then they can frisk car
o Buie- if have reasonable belief that there is someone in the house
they can frisk it for people – protective sweep needs R/S
 Can frisk the immediate and adjoining area of arrest for
people who can launch an attack.
• RS is less than PC but more than a hunch
o White was barely enough for RS
o Wardlow- running at the sight of the police is relevant to RS
o JL- simply a tip saying there would be a person somewhere
carrying a gun is not RS, that’s just a hunt, no corroboration of
future events.
 Balancing cases
Ybarra- PO executing a search warrant at a bar and seized all the patrons of the bar-
SC said not reasonable to assume everyone in the bar poses a risk to the
officers
Summers- Police can stop and detain a resident of a home with no RS when executing
a search warrant
Open question, can police detain non-residents? And would Summers apply to
searches that are not with a search warrant or for contraband?
• Checkpoint cases
o Martinez-Fuerte- fixed immigration checkpoints okay
o Sitz- not a fixed checkpoint, DUI, SC said suspicionless seizure ok
o Compelling public interest, minimally intrusive
 Edmond- Police have a fixed checkpoint for drug interdiction,
not lawful because using it as investigatory, no compelling
public safety reason
 Vernonia - okay to do Suspicionless drug tests of high
school athletes - said not okay to do Suspicionless searches
of politicians
 TLO- students have lower expectation in schools
• Probable cause plus (PC+) cases
o PC plus balancing
o If want to conduct surgery on a suspect, have to do balancing-
particular need for the evidence vs. suspect’s safety
o If police want to use deadly force it has to necessary and there had
to be showing that suspect is dangerous and officer has to warn if
possible

MORE ON TERRY 100% certain for

conviction
When are we in the terry category?

Stop
• Free to leave
• Free to terminate encounter
• Flight is not seizure 50% P/C

No seizure v. Mere terry stop v. Arrest R/S is less then

P/C
R/S v. P/C
• P/C is about 50% certain that person is guilty
• R/S is less then P/C Magic line
• Below a magic line is insufficient showing
Special Needs cases:
• Skinner : testing public employees for drugs

The government uses the terry-balancing test to justify many of its action that are out
side the stop and frisks issues.

In balancing the interest we look for the R/S to determine whose interest is more
important.

The next two cases goes into the are where the government has to show more than
P/C.

MIRANDA
Threshold questions: Both are needed for Miranda to apply
1. Was suspect in custody?
2. Was there an interrogation?

The assumption is that all custodial interrogation is coercive. The psychological

coercion is hard to prove thus court requires a warning to protect against coercion.
The role of an attorney during interrogation is to be an ally to the defendant.
Things not incriminating:
• Act of producing documents (Doe v. US)
• Routine booking questions
• Testimony under immunity (Kastigar)
o Derivate
o Transactional
 Can never be charged for the action
o Use
 Can be charged but cannot use the immunized testimony in trial
against person testifying
• Custodial interrogations are inherently coercive.
• Due process does not protect against the gov’s ability to force someone to
speak.
• Miranda protects the right to remain silent.
• All four warnings are required but not in the exact words
• If ∆ speaks after warning, statements are admissible if gov can prove valid
waiver.
• Exceptions to Miranda
o Public safety allows for the not giving of Miranda warning
 We don’t know if we can interrogate for purposes of public safety
after ∆ asserts right to counsel.
 Does exception applies to danger to the officers / suspects
 • Issue : when reasonable person believe that liberty is restrained and is in
custody
• Traffic stops are not custodial because it is short duration and in public area
• Not every 4th amendment seizure amounts to 5th amendment custody issues
• If ∆ is called by police and voluntary appears at station for questioning does
not make it a custodial environment according to the court.

CUSTODY
How to figure out if a person is in custody for Miranda purposes: if a reasonable
person feels that they are in custody. This is not the same as a terry stop. You can be
stopped for terry stops but not be in custody where you would need to be mirandized.

Don’t use 4th amendment seizure analysis for 5th amendment custody analysis for
Miranda rights.

Due Process review

• Do not want confession obtained through coercion
• Brown v. Mississippi states that due process clause protection against
coerced confession applies to states for the first time
• Question on voluntariness. Ashcraft states that 36 hours of interrogation is
too long.
• Spano : use of friend to use psychological and emotional coercion is not
allowed.
• Colorado v. Conoley : even unreliable; confession is still admissible if there is
no police coercion.
• Fulminante : implicit threat of physical force is illegal
o Rule: even if confession is coerced it can still be admissible under
harmless error
• Current issue: in Supreme Court can police interrogate on issues of
uncharged crime.

INTERROGATION
• Test: was there enough activity to function as an equivalent to interrogation.
• Express waiver is neither necessary nor necessarily sufficient.
• Waiver needs to be
o Knowing
 Means that you know your rights
o Intelligent
o Voluntary
• Spcuprarily honored the right to silent
• Edwards rule means that police cannot re - interrogate after
• Miranda only applies to testimonial evidence
 • 5th amend can be waived under the immunity offer where your right will be
stripped.

6TH
AMENDMENT
• Massiah states that the critical part for right to counsel starts at the post-
charge stage.
o No interrogation unless defendant re-initiates and waives rights
o Undercover agents are in violation of 6th because person doesn’t even
know that he has that right because he doesn’t know that he is dealing
with government agent.
o Applies to interrogation of issues already charged
• Test : deliberately elicit incriminating statements / confession
• When can police interrogate about related crimes, ones in which ∆ has
already been charged.