Criminal procedure are the rules that shape how police, lawyers, and judges within the criminal system are to act. Primarily, our discussion will fall onto the behavior of police.

There are three overarching themes:

  1. Questions about state power and authority. Where does the state get its authority and what are the tools given to the police?
  2. Balancing concerns between criminal accountability and systematic fairness. This principle can be seen well in the Meares article cited below.
  3. Finally, where do the criminal procedure rules come from? Clearly we have the Constitution (4th, 5th, and 6th Amendments), Supreme Court Opinions, other courts, statutes and city codes, formal manual, and informal policies.

Police as Providers of Service – Community Caretakers

The police are meant to “protect and serve.” This goal has the natural consequence of police efforts to provide service outside of enforcing the law. For instance, Oregon’s statute authorizes police to perform “community caretaking functions.”

Caniglia v. Strom

The key distinction in Cady was that the seizure of a weapon for a caretaking responsibility occurred at a traffic stop, not within a home. There is no broad category of caretaking that can justify this fourth amendment violation.

The difficulty here is deciding what is potentially a caretaking responsibility and what is a criminal enforcement. For instance, a police officer may initially provide service (rushing into a home to provide medical aid) and discover the makings of a crime.

There are a variety of tests to determine when the officer is being a community caretaker. An example of one is 1) facts that show a citizen must be in peril, 2) the officer can render assistance to the citizen is in need of aid, 3) after the citizen no longer needs aid, must obtain a warrant for any additional searches.

See the problems from State v. Dube (improper living conditions), Commonwealth v. Livingstone (stopped car by train tracks).

Policing Theories – Community Policing

Community policing refers to the community setting police programs for the police to become involved with the community (through city council meetings) such as neighborhood watch, youth athletic programs, etc.

Seth W. Stoughton, Principled Policing: Warrior Cops And Guardian Officers

51 Wake Forest L. Rev. 611 (2016).

There are two types of officers: warrior and guardian.

Officers strive to meet a warrior ideal, to perform the job with honor, duty, resolve, and righteous violence. However, this resolve can cause issues when an officer demands respect (for their safety), a citizen sees the demand as arrogant and resists, and the disagreement begins to escalate.

The author then proposes a new ideal, to create a guardian culture. A guardian culture takes the same traits as a warrior and adds “respect for human dignity, empathy, patience, inclusivity, and introspection. The goal is to work with the community seeking consent rather than compulsion in policing efforts.

Tracey L. Meares, Norms, Legitimacy, and Law Enforcement

79 Or. L. Rev. 391 (2000).

A main way of fighting crime is to remove the crime from the scene. However, sometimes those people play key roles to society and without them society will falter, thus leading to more crime.

Community policing provides social organization (dettering crime) and provides legitimacy in police efforts because the community and the police are working together. In other words, problem solving and community policing (working together with the community) will lead to increased legitimacy and trust in the system.

Criminal Models

Herbert L. Packer, Two Models of the Criminal Process

113 U. Pa. L. Rev. 1 (1964).

The two models employed within police agencies are the crime control and the due process models.

The crime control model focuses on controlling the crime in as efficient a manner as possible. The ultimate goal: finality of a case, typically in the form of a guilty plea. In other words, this approach seeks to focus on informal processes and minimizing the role of the judiciary. The number of convictions is the tool of measuring success.

The due process control is more willing to sacrifice efficiency for getting the right answer. Take your time, make sure that the investigation work is totally done so that the innocent are definitely innocent and the guilty are definitely guilty. The ultimate goal: fairness. Success is measured by increased public perception.

Brief Searches and Seizures

Searches and Seizures

Put simply, a seize is when an officer restricts the movements of an individual and a search is to intrude on the privacy of the individual to obtain information. The Fourth Amendment protects against unreasonable searches and seizures without a warrant.


Katz v. United States

Previously, the Fourth Amendment was interpreted to only protect an individual within a certain location and penetration of that location. Olmstead, 277 U.S. 438 (1928). That is why the government and Katz arguments mostly focused on whether the phone booth was public or private.

Here, however, the Court emphasizes that at the Amendment protects people, not places. As such, if the person expects privacy when the enter into an area, then they should be afforded that privacy. The fact that the officers limited their actions has no bearing on this case because those were exercises of self-restraint, not judicial-restraint.

The concurrence establishes the reasonable expectation of privacy. This test is what is utilized today.

Alternatively, the dissent focuses on how the language of the Constitution protects places, and this case is an example of the Court reading text into the Constitution. Nothing in the Constitution protects against eavesdropping (a practice that existed at the founding), and wiretapping is a modern version of eavesdropping.

The reasonable expectation of privacy test has both a subjective and objective component. The targeted individual of the search must expect privacy (subjective), and that expectation must be deemed reasonable by society (objective).

United States v. Jones

The Fourth Amendment protects people and places. If this action was committed in the 1800s, this would have been considered a trespass. For these reasons, secretly attaching a GPS would be unreasonable.

The concurrence however thinks that the Katz concurrence test should be applied. That is, what is the respondant’s reasonable expectation of privacy? The conclusion is the same, but it still allows for short-term searches or potentially long-term searches for intense crimes.

This case sets forth the trespass test. Did the search physically intrude on the target’s protected interests (person, house, etc.) with the intent to obtain information.

State v. Bobic

Bobic had several stolen car parts in a storage unit. The officers saw these parts in a hole in the wall. From these observations, they obtain a warrant, recover the goods, and charge Bobic with a crime.

Using Katz, the expectation of privacy test, this is not a search because the hole in the wall. Although he may expect privacy, this exception is unreasonable because observations could be made through the hole.

Under Jones, the trespass test, this is not a search. Nothing goes through the peep-hole, viewing occurred from an open area, etc.

This principle is called the plain view doctrine (also applies to smell and hearing). This can be used as a defense against an accusation that a search occurred. If the object is in plain view (use of senses without extraordinary means), observed from a place where the officer’s have a right to be, then the observations does not constitute a search. The plain view doctrine also applies to flyovers and garbage that is left to be collected (must be on the curb).

Bond v. United States

Bond was a passenger on a bus. The bus was stopped, border control boarded and checked passenger identification and luggage. The officer touched Bond’s bag, felt a brick like substance, obtained permission to look in the bag, and discovered illegal drugs. Was the initial touch a search?

Under Katz, this is a search because this was extraordinary manipulation of the bag. Touching a bag on a bus is normal, but too much equaled

Under Jones, this is a search because touching a bag is an extraordinary manner is trespass.


A seizure is when the officer interferes with an individual’s possessory interest in some property. Typically, this occurs in restricting the movement of an individual. A seizure typically takes one of three levels:

  1. A consensual conversation – no need to justify stopping to chat with the individual.
  2. Stop – must have “reasonable suspicion” also defined as “individualized or articulable suspicion.”
  3. An arrest – must have “probable cause.”

Most interactions involve consensual conversations or stops. The tricky part is knowing when one method of seizure turns into another.

United States v. Mendenhall

A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.

A seizure occurs when a reasonable person would believe that the person is not free to leave. Note that this is an objective standard. A stop means that you have been restrained in some way. You have been restrained when you are no longer free to leave. Here there is no evidence to show compelled compliance (no threats, showing weapons, uniforms, etc.). This remains true even if the officer had the intention to detain anyways (as long as the other party didn’t know), and there was no need to tell the defendant that she can decline to participate.

This is an example of a consensual encounter.

Wilson v. State

Approaching Wilson, asking if he was ok, asking for his ID, and telling him to stay in the area (Wilson was leaving), and helping him cross the street (community caretaker) was not a stop because there was no indicator that Wilson was not free to leave. However, when the officer tells Wilson to “go to the corner and wait” this is a stop because this was an order that was complied and enforced by checking on him. In other words, he was not free to leave.

At this point, it was a stop. Because the stop occurred before a warrant or before there was a reasonable suspicion, the stop was unconstitutional.

Florida v. Bostick

Even you are not physically free to leave (the aisle is blocked), you are still verbally able to deny compliance. As such, it is not a stop.

Stops: Reasonable Suspicion

A stop may be constitutionally justified if there is a warrant. However, without a warrant, there must be either consent or exigent circumstances. These circumstances can be to refrain a suspect from fleeing or destroying evidence. However, more exceptions have arisen because of the frequency officers stop individuals. Thus, the need for a reason to stop.

Grounds for Stops: Reasonable Suspicion

Reasonable suspicion is an articulable set of facts that leads the officer to believe a suspect has or is about to commit a crime.

Reasonable suspicion is less than probable cause but more than a hunch. The best definition we have from Terry is that “Specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.”

State v. Nelson

The officer only observed Nelson drink one beer over the course of an hour, which would have put him under the legal limit. With no prior evidence showing that Nelson had more to drink, there was no reason for the stop (appearance was normal out of the car and driving was normal). This was just a hunch.

However, the dissent argues that on Christmas Eve and the tradition to have more than one drink on the holiday, it would be reasonable to assume that Nelson had more to drink. Thus, the trial court would have been right to allow the evidence. This outcome would be present with one additional reasonable inference.

State v. Dean

Because of all the circumstances, this was a reasonable stop. Specifically, the time of day and the fact that the area was typically uninhabited lead to a reasonable suspicion. The fact that the area was a “high crime area” can serve as a factor (alone it is not enough to find reasonable suspicion). Combined with the other information is sufficient.

However, the dissent argues that simply wanting to see what the person in the parked vehicle was up to is not reasonable suspicion, but instead working on a hunch, or mere speculation contrary to the finding in Nelson.

Sizer v. State

According to the majority, because the robberies are disconnected from this group, they cannot be used in a totality of the circumstances analysis. However, there was a suspicion of a crime ongoing (open container laws and littering) and Sizer’s flight increased the suspicion necessary to produce the stop.

However, the dissent argues that the lack of connected crimes is significant. The fact that the defendant fled is not enough and the connection of crimes and suspicion needs to be present to support a stop.

According to Wardlow (a case relied on here), if there is a high crime area and flight, there is reasonable suspicion. However, that was not the case here because the crime approached for was not the reason for the high crime area.

Although there was no reasonable suspicion under Wardlow, there is reasonable suspicion because there was evidence of another crime and a flight.

Typically, the courts would take the phrase “high crime area” in addition to flight and automatically find reasonable suspicion (despite the court’s hesitancy in the present case). Our takeaway, Wardlow is the lowest standard the courts are willing to find reasonable suspicion.

Pretextual Stops

A pretextual stop is where the officers engage in a stop for one crime (where they have reasonable suspicion) to investigate a different crime (for which they have no reasonable suspicion).

People v. Robinson

This case adopts the same holding as the U.S. Supreme Court in Whren v. United States. As long as the officers had reasonable cause for one stop, they are free to conduct the investigation of another crime. Simply asking whether an officer “would have” made the stop is too uncertain of a test to adopt.

As long as there is an objectively valid basis for the stop, a pretextual stop can be reasonable. However, First, there are limits, you cannot violate equal protection (cannot stop individuals for discriminatory purposes). Second, the scope of the search must be limited to the actual reason for the stop until additional evidence presents itself.

The alternative test is “would the reasonable officer make the stop?” However, the issue with this approach is that the subjective intent of the officer is difficult to ascertain.

Criminal Profiles and Race

A lot of departments will compile a list of individual characteristics that, when combined, will describe a person who is likely to commit a certain kind of crime. Using this profile may be a method utilized by officers to say they had reasonable suspicion.

Harris v. State

The stop is reasonable if:

it is based on the detaining officer’s ability to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.

A profile may be used to show that suspicion, but the profile must describe characteristics unique to the crime committer that does not match with the characteristics and activities of innocent individuals.

Here, the profile was too generic. In other words, innocent individuals may be subject to a search based on this profile. According to the court, “even in the eyes of a reasonable, prudent, and experienced police officer” there was no basis for reasonable suspicion.

According to Reid v. Georgia, if the factors describe too much innocent conduct, we are worried about random stops.

However, according to Quarles, innocent conduct could be considered as well, if there are additional facts that limit the number of innocent individuals who may be targeted by the profile.

Here, the court says that the facts here are more similar to Reid, so there is no reasonable suspicion.

The issue with using profiles is making sure that the profile is accurate can be difficult (no statistical evidence to back it up). Additionally, it can be difficult to ensure proper application (factors may be wrong or catch too many people).

Attorney General of Maryland Ending Discriminatory Profiling in Maryland, August 2015

Race should take no part in criminal profiling. If the officer is making a stop, then the officer should consider if they are making the stop because of the race of the individual. In other words, criminal enforcement should be colorblind. Crime is crime, no matter who commits it. Thus stops of a particular ethnicity because of a belief that the ethnicity is more likely to commit a crime is improper. Instead, officers can develop profiles based on “amount of luggage, method of ticket payment, or time of travel.”

If the officer is provided reliable information about a suspect’s particular trait, they are free to use that trait in limiting the field of possible suspects in an investigation. For instance, if an informant who has been reliable gives information about the race of a potential suspect, the officer’s can be confident that they are looking for a suspect of that race. Otherwise, race should not be considered in narrowing the investigative scope.

Coleman v. State

You can use race as an identifying factor as long as it is not the only identifying factor. Additionally, the factor needs to be provided by a reliable source.

Brief Searches


Terry v. Ohio

The defendant argued that this case should have been resolved based on probable cause. However, the state is saying that this is a dangerous job and if there is reasonable suspicion of a weapon, then they should be able to conduct a search to remove a weapon.

Holdings: This was a search and the reasonableness (rather than probable cause) standard will be applied (authorized by the Fourth Amendment). A frisk can only occur if there is a reasonable suspicion for the stop plus a reasonable suspicion of a weapon. The scope of this search is limited to those places where a weapon may be located.

In the present case, there was reasonable suspicion for the stop (based on the officer’s experience and the actions of the defendant). Additionally, there was reasonable suspicion of a weapon (based on how the suspected crime often involves a weapon). Finally, the scope here was limited to the suspect’s outer clothing and any intrusive search was only to remove the weapon.

The dissent argues that the standard should be probable cause because officers should not have more discretion than the judges or a Constitutional amendment should be made.

This decision makes sense because (1) it is tied to the practical reality of police (that’s how the police work anyways, (2) other rule making bodies could influence police actions, (3) police need to fight crime safely.

Scope of Frisks

Commonwealth v. Wilson

Using the rule, there is reasonable suspicion for a stop (the call regarding a crime) was made and the scene fit the description. There is also reasonable suspicion for a weapon (the call described the use of a weapon and the defendant put his hand on his hip).

In this jurisdiction a Terry frisk “scope of this search is not exceeded if, during a lawful pat frisk, it is immediately apparent to the police officer, in light of the officer’s training and experience, that a concealed item is contraband.” This is called the “plain feel” doctrine. So, because he was in a lawful frisk, and found the contraband based on his experience and identified it before seeing it, this was within plain feel. The frisk was within scope. This search can expand to backpacks and purses.

States differ as to whether the scope is only for a weapon (see Arkansas), or if it can be expanded to a certain amount (see Mass. and Montana).

If an officer is conducting a search for an item (other than a weapon) it will still require either a warrant or probable cause.

Rules for vehicles: Under Mimms, an officer can ask the driver to exit without any additional suspicion, but a frisk still requires reasonable suspicion about the weapon. Under Long, if there is reasonable suspicion of a weapon in the car, the officer can search the places where a weapon is expected to be located and within the reach of the driver. The same applied to passengers (see Johnson and Wilson). This analysis assumes there is reasonable suspicion for the stop.

Administrative Stopes and Searches

An administrative stop is where an officer makes a random stop to ensure a general administrative purpose (e.g., highway safety by ensuring drivers are licensed or not impaired). There is no need reasonable suspicion to make these stops.

City of Indianapolis v. Edmond

Rule: Administrative stops need no reasonable basis as long as they are not discretionary and they have a general administrative purpose, and limited in duration (e.g., license and registration checks, highway safety by managing drunk driving).

Sitz – sobriety stop was ok

Prouse – license checks are fine, but cannot have discretionary stops.

This is different from Whren because in Whren they were looking for crimes, which requires a reasonable basis for the stop. Here there was no reasonable basis.

Dog sniffs are fine, if they do not expand the duration of the stop.

The exception is that nonconforming roadblocks are allowed with exigent circumstances (e.g., escaped felon or terrorist attacks).

Full Searches and Seizures


A valid warrant needs (1) probable cause; (2) under oath; (3) with particularity; (4) signed by a neutral magistrate.

General Search Warrants: Historical Context

A general search warrant was a common practice of the British before the revolutionary war and rising of the United States. These were warrants authorized by the king to conduct a search. There was no limiting language (anywhere and anything could be searched) and there was no expiration date. The same is true of Writs of Assistance, where custom officers were allowed to conduct searches on Colonial ships.

Entick v. Carrington

This type of search cannot be authorized by the Lord. People ought to be protected in their homes. Otherwise there would be disorder and the government would fall away.

This case has determined that general warrants were no longer valid in England.

The Writs of Assistance

This writ of assistance authorized a representative to search ships for concealed goods that may be owed to Great Britain. Additionally, it required deputies and servants to assist in the search. This search can be conducted at any place, day or night. It expires on the death of the King (the only limit).

As general warrants were becoming less popular in England, they were utilized more often in the United States.

General warrants and writs of assistance led to distaste amongst the founders for several reasons:

  1. There is severe potential for abuse: No probable cause or limits
  2. Remedies are non existent if the warrant is valid.
  3. There was no distinction between General Warrants and Writs of Assistance (both are bad).

Even before the Constitution was developed, several colonies stated that general warrants “ought not to be granted.” During the Constitutional Convention, many delegates refused to sign the document unless there was a promise of the development of the Bill of Rights. Shortly after ratification, the Bill of Rights was drafted, which included the Fourth Amendment protections that individuals are secure against unreasonable searches and seizures. Warrants were only allowed if there was probable cause and they stated the searched areas with particularity.

Particularity in Warrants

The particularity requirement is what distinguishes a valid warrant from an invalid general warrant.

Wheeler v. State

The original test, as described in Marron, is that the warrant cannot leave the officer with any discretion about what the warrant covers.

Warrants, in order to satisfy the particularity requirement, must describe what investigating officers believe will be found on electronic devices with as much specificity as possible under the circumstances.

In other words, the court asks “whether it was reasonable to provide a more specific description of the items at that juncture of the investigation.” This test can be compared with the Steele test where the warrant must be specific enough that the officer with reasonable effort can identify the described location.

So, some common principles to abide by include: establish a time frame for when the crime was committed (if the device hasn’t been used since before the crime, the device cannot store that criminal activity), state the crime associated with the search (so investigators can narrow the search to files related to that material), limit the warrant to include only those types of media files associated with the crime (written files rather than video files).

For computers, the description of the items should be more specific. The officers were searching for evidence about witness tampering and the description allowed the officers to search material outside of that scope.

Buckner v. United States

An informant made illegal purchases and described the location of the apartment. The officer applied for a warrant using the description used by the informant. After obtaining the warrant, the officer went to the apartment building interior and discovered that the informant had provided reverse information (the number of apartments on the described side was incorrect).

This was a valid warrant. Using the Steele test, a reasonable officer was able to identify the described location (have the majority of the description line up. However, if probable cause is invalidated, the police need to get a new warrant. See Maddox.

Probable Cause


The standard for probable cause can best be articulated with four elements, with parts of each element varying from jurisdiction to jurisdiction.

  1. The assessment must be made in mind of a reasonable [prudent or cautious person, or police officer]
  2. Inferences need to be strongly associated that a crime is or has occurred (no particular number defined)
  3. Comparison to standards: more than reasonable suspicion, but less than certainty.
  4. The information obtained is provided by a quality source.
Brinegar v. United States

Probable cause is not beyond a reasonable doubt but beyond mere suspicion. It is: “Where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.”

The facts presented in this case is very similar to the facts presented in Carroll. There the court found that the officer’s knowledge of the criminal activity of the defendant and the nature of the location being a place where the type of crime was actively ongoing, gave rise to probable cause. Similar facts, no distinction besides statute at issue and minor discrepancies, all these things lead to a lack of error regarding the denial to suppress.

A couple of additional rules: (1) Police can use their training and experience to establish probable cause. (2) Fellow officer rule: Officers can use collective knowledge to create probable cause (i.e., there is no need for each officer to have probable cause).

State v. Stevenson

Stevenson was stopped for failure to turn the blinker on in time (but was suspected of drug activity). There was a strong smell of alcohol. The defendant was asked to step out of the car and the car was searched based on the odor (suspecting that there was an open container in the vehicle). He passed the field sobriety test, but an open container was found in the car.

Under the Brinegar test, the odor of alcohol was not enough to establish probable cause. After he passed the sobriety test, the search should have concluded.

State v. Parent

The officers received an anonymous tip that Parent would be arriving in the airport with illegal drugs. This tip is corroborated by the defendant’s criminal record and description. A warrant was provided on the condition that the flight arrives and Parent was on the flight.

An anticipatory warrant (depending on the jurisdiction) is where the officer knows a crime is going to occur (but has no probable cause yet) and seeks a warrant to conduct a search once the probable cause actually arrives.

For an anticipatory warrant to be issued, the officer must show (1) there is probable cause of evidence if there is a triggering condition and (2) there needs to be probable cause of the triggering condition.

Constitutionally allowed under Grubbs.

Minority of states disagree. See Dodson.

However, the issue with this is that now the police are determining whether there is probable cause, not the judge.

Sources that Support Probable Cause

Information may come from a variety of sources. These include the police, witnesses, victims, confidential informant tips (name is known by police), and anonymous tips (name is unknown by police). However, the court has mistrusted information that comes from confidential informants and anonymous sources, requiring specialized rules as outlined below.

State v. Barton

The two part test is the Aguilar-Spinelli test. Do they know what they know (basis of knowledge) and is there evidence to support the reliability (reliability)? The issues with this test is that the prongs were independent (no way of balancing the others), and the standard for review was de novo (when the usual test is abuse of discretion of the judge issuing the warrant).

Gates is the name of the test that applies the totality of the circumstances. Applied in this case.

Here, the Aguilar-Spinelli test is not utilized but remains highly relevant. There was a basis of knowledge because the informant knew where the drugs were in the home and knew the defendant’s schedule. This evidence was also reliable because the informant’s identity was known to the police (being a confidential informant) where he yielded self-incriminating information.

The concurrence and dissent in part argues that this is essentially the same test but gives the police a lot of additional discretion.

State v. Utterback

A search warrant requires probable cause based on facts set forth in an affidavit. If coming from an informant, probable cause can be established by testing the informant’s basis of knowledge and reliability. The totality of the circumstances may be used to meet these criteria. (Gates test)

Four methods may be used to establish the informant’s reliability:

  1. The informant has given reliable information to the police in the past
  2. Whether the informant is a citizen informant (a person who is motivated to assist law enforcement)
  3. Whether the informant has made self-incriminating statements in providing the information
  4. The officer corroborates the information provided.

The largest issue here is whether the informant was reliable. There is no evidence that the informant had provided reliable information in the past, nor that the informant was a citizen informant. Additionally, the informant did not provide self-incriminating statements because the crime is for possession, not for purchasing (dumb argument in my opinion). Finally, the officer only corroborated the innocent aspects of the defendant (where he lived and what he looked like), but not the criminal activities. Thus, the reliability was lacking and the warrant should not have been issued.

Additional Notes

The Gates test is the adopted standard in the majority of states because it gives judges must more flexibility while applying the same factors.

There is also “Informer’s Privilege” where the name of a confidential informant is not disclosed to the defendant unless there are exception circumstances. However, the officers know the name and

State v. Raveydts

When there is an anonymous tip, the police need to corroborate the information to test the reliability of the tipster.

This case is factually distinguishable from another case (Titus) where there was no probable cause because the names of the plates searched had no suspicious records. Here, there was a suspicious record from the visitors thus allowing probable cause.

However, the dissent argues that the officer did not do enough to corroborate the testimony. There was no additional investigation of the apartment or the visitors. The officer wouldn’t even know for sure if the two tips were coming from the same person or if their story was true. With the majority’s analysis, the dissent argues that anyone could make up a story, tell it to the police, and with little effort the police could obtain a warrant to search anyone.

The big difference between a confidential informant and an anonymous tip is that the it is much harder to confirm the reliability of an anonymous tip. The only way to confirm reliability is through corroboration. Hence this case really relied on whether corroboration existed.

Illinois v. Gates

The police receiving an anonymous tip saying that Gates and his wife were drug dealers. The wife would drive from Illinois to Florida where the vehicle would be loaded with drugs. The husband would then fly to Florida and drive the vehicle back to Illinois as the wife flies back. The officers followed the wife to Florida, saw that the husband had a flight scheduled and arrived in Florida and noticed him pick up the car. At that point a search warrant is issued, executed, and an arrest occurred. In other words, the tip illustrated future events, which were followed well.

Here, the court says that with the totality of the circumstances, the corroboration was enough to find probable cause.

Alabama v. White

Takeaway: When the police are responding to anonymous tips, they have to corroborate significant details to show that the tipster is well informed.

Florida v. J.L.

Takeaway: When the police are responding to the anonymous tips, they need to corroborate significant details of the criminal activity, not merely the innocent facts about the defendant.

Neutral Magistrates

State ex rel. Brown v. Dietrick

Although the language of the Fourth Amendment does not include “neutral” it is a source of requiring a neutral magistrate. Other sources include the code of ethics.

Constitutionally, the magistrate cannot be involved in the law enforcement (investigatory process).

Clear violations include:

  • Attorney general’s issuing warrants – Coolidge
  • Judges leading a search party – Lo-Ji Sales
  • Compensation for warrant approvals – Connally

Marriage between potentially conflicting parties alone is not a violation.

However, if a magistrate is disqualified by lack of neutrality, the judge may still issue the warrant in times of necessity (truly no other judge is available).

Exigency and Special Needs

Exceptions within the warrant requirements.

Warrantless Searches Based on Exigent Circumstances

Exigent circumstances exist when there is need to protect an officer or the public, or to keep a potential suspect from destroying evidence. In these circumstances, a search may be conducted without a warrant.

State v. Walker

A warrantless search requires (1) probable cause and (2) exigent circumstances. Exigent circumstances exist when “the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable.” This is a preponderance of the evidence standard. Examples of Exigent circumstances could include, fear of safety, flight, destruction of evidence, or the seriousness of the crime being involved.

However, the police cannot create the exigent circumstance. To determine whether the police created the exigent circumstance, see if the police actions would make it reasonably foreseeable that police conduct would lead to the circumstance or bad faith police conduct. Another test under Kentuck v. King, did the police create the exigency by threatening to engage in conduct that violates the 4th Amendment.

McArther, if the police have probable cause to detain while waiting for a search warrant, they are free to keep the status quo.

No-Knock Warrants

The traditional rule is that police have to knock and announce their identity as officers when they are executing a warrant.

State v. Anyan

No-knock warrants are only allowed to be premeditated if made by a neutral and detached magistrate included in the application. Otherwise, no-knocks are not allowed unless there is an unexpected exigent circumstance that arises on the scene.

No-knock warrants are highly disfavored because there is a huge potential for violence and needless destruction of property. The rule to knock and announce is the standard under Wilson, but the exception of exigent circumstances could overcome the standard. If there is a reasonable suspicion of harm to the police or destruction of evidence, this would show the presence of exigent circumstances where a no-knock warrant may be justified. However, if this information is known beforehand, the no-knock must be approved by a magistrate. On the other hand, if the information is obtained in the moment, the police can make the call.

One final note: When the police are trying to obtain a warrant, they have the burden of proof to obtain it. However, if they have a warrant, the defendant needs to show the absence of probable cause.

Special Needs Searches

Camara v. Mun. Ct. of San Franciso

The court originally said in Frank v. Maryland is that there was no need to obtain a warrant for administrative searches. However, this Court overturns part of Frank to say that a warrant is required and that probable cause will be the standard. However, the amount of probable cause is less where the court will balance personal rights and state interests.

There is an interest for the state to prevent health and safety standards. Additionally, there is a personal rights interest in privacy. As such, the rule is articulated as not necessarily being “dependent on the specific knowledge of the condition of the particular dwelling.”

The dissent argues that Frank should remain the main approach. Particularly, the dissent argues that warrants are not needed here because they are readily granted and will thus destroy the integrity of the warrant system as a whole. The issue is that the court wants to have probable cause but completely undermines the meaning of a warrant.

The exceptions to the warrant requirement here include:

  1. Emergencies – there is no need to wait for a warrant to put out a fire.
  2. Highly regulated industries – Donovan. If there industry is highly regulated and inherently dangerous. This rule applies only to liquor stores, mining, auto junkyards, and gun stores. This rule does not apply to hotels (not dangerous). See Patel.


If the party consents, the police can conduct a full search even if they do not have a warrant or probable cause.

Voluntary Choice

Schneckloth v. Bustamonte

The police may search without a warrant if they obtain the voluntary (not coerced or duress as established by the totality of the circumstances) consent of the subject. There is no need to inform the subject they have the right to deny a search. The prosecution has the burden of proof to show that there was valid consent.

Some of the factors to determine whether coercion was there based on the totality of the circumstances

  • Age, intellectual capacity, or sophistication.
  • Whether the subject has the knowledge that they can deny consent (although not determinative).

The right to deny consent cannot be waived because this is different from a trial; this is an informal interaction.

Ohio v. Robinette

Here, the subject gave consent to search their vehicle after they were given a warning during a traffic stop. Was free will overborne at the time the request for consent was made? There is no need to inform the subject that the original stop was over before asking for consent. About 15 states (including Iowa) say that the test is more restrictive (need to let them know). See Pals.

People v. Gomez

The police obtained consent from the subjects during a traffic stop. During the search, they found a suspicious hidden compartment, and opened it up. Now, the question is whether the police went beyond the scope of consent. Test: What would a reasonable person have understood by the exchange with the officer? See Florida v. Jimeno, 500 U.S. 248 (1991). In this case, the police exceeded the scope because their impaired the structural integrity of the vehicle and left it in a “materially different” condition. Additionally, the search should be conducted as soon as reasonably possible.

Third-Party Consent

Consent may also be provided by a third-party if the third party (1) gives the consent voluntarily and (2) has the actual or apparent authority (shown by shared control of the property subject to the search) to consent.

Commonwealth v. Porter P.

Actual authority: A third party with common authority over an area may consent to a search. See Matlock. This only applies if (1) co-inhabitant, or (2) a contractual provision giving the landlord the authority to consent.

Apparent Authority: Valid search if the police mistakenly but reasonably believe the third party can consent. See Rodriguez. The mistake must be about the facts, not the law.

First, there was no actual authority because the shelter director is not a co-inhabitant and the contractual provisions only allow the director to call the police but not expressly allow the police to search.

Second, there is no apparent authority because the officers misunderstood the law, rather than her position.

However, the dissent argues that this is poor policy, asking the staff to engage in self-help, which can be dangerous. Additionally, the parties were already in a position where the officers might as well conduct the search themselves.

In re Welfare of D.A.G.

Dale and Thomas are roommates. When they had friends over, the friends brought illegal drugs and Thomas objected. When there was no change, Thomas went to the police and gave the consent to a search. The police did come, did not knock and announce, conducted a search and found the drugs.

Here, there was actual authority because Thomas was a co-tenant.

However, when co-tenants are both present and providing competing consent (one consents while the other does not), the police are not allowed to search. See Randolph, 547 U.S. 103 (2006).

Here, Dale was not given the opportunity to avoid consent because the police came without knocking and announcing. As such, the search was not valid.

State v. Schwarz

The officers came to the door looking for the defendant, but the defendant was not there. Only the child was present (either 13 or 14) and allowed the officers to enter and search the home. Here, the search is invalid because the child did not have actual authority (did not have dominion over the home because of her age). Thus, the search was invalid.

Additional Note: In most states, a parent can consent to  the entry of a child’s room, even if the child is an adult.

State v. Maristany

The officers conducted a stop and removed and separated the occupants. When the occupants provided inconsistant stories, the officers asked the driver if he could search the trunk then again to search the bags in the trunk (consent was provided to both). After drugs were found, the driver said that the bags were not his.

Thus, the driver did not have actual authority. However, there was actual authority because the police only need to establish only a reasonable effort to establish the necessary facts.


Principles of Arrest

Is the Encounter a Stop or Arrest

Bailey v. State

As a review:

  • A stop is where the subject does not feel like they are free to leave. See Mendenhall. Here, the stop occurred when the officer grabbed the officers hands.
  • Terry stop requires reasonable suspicion of a weapon. Even if there was reasonable suspicion, the scope was exceeded because the officer did not know that the vial contained drugs until later tested.

Example of an arrest test (which requires probable cause to execute):

  1. Whether the officer has the intent to arrest
  2. If the officer had real or pretend authority
  3. The subject is seized and detained
  4. The subject understands the seizure as an arrest.

However, this is really a fact based rule. Other considerations made by courts to determine whether an arrest occurs is:

  1. The amount of time the detention lasts (20 minutes? 60 minutes? etc.) Florida v. Royer
  2. How the subject is restrained (handcuffs are not required, see Bailey and Grier)
  3. The location of the subject
  4. Phrases made by the police to the subject

Arrest Warrants

State v. Thomas
  1. An arrest can happen in a public place regardless of a warrant or not (as long as there is probable cause).
  2. Arrest warrants are sufficient to enter the home of the owner if the owner is the subject of the warrant and the officers have reason to believe that the subject is present.
  3. However, if the subject of the warrant is different than the homeowner, then there needs to be a search warrant showing probable cause that the subject of the arrest warrant is present.
  4. If there is no search warrant, there needs to be evidence of consent or exigent circumstances to enter the home. Exigent circumstances can be shown by a fleeing subject, or potential for the destruction of evidence.

Key Facts:

  • Subject of the warrant was outside
  • An arrest warrant was issued
Commonwealth v. Molina

Officer had probable cause for a search warrant but did not obtain one. He went to the home of the subject who answered then immediately attempted to make the arrest. When there was some resistance, the officer entered the home where they found the evidence of the crime.

Key distinctions from Thomas: Subject was in the doorway (cf. State v. Kiper, 532 N.W2d 698 (Wis. 1995) (being fully inside)) and there was no arrest warrant.

Police Discretion in Making Arrests

The traditional common law arrest power rules where the officer could make an arrest for any crime made within their presence but needed a warrant based on probable cause for a felony for crimes outside of the officers presence.

Lawrence Sherman & Richard Berk, The Minneapolis Domestic Violence Experiment (1984)

This is a social study of the Minneapolis police department to see what is the best way to mitigate domestic violence. There were three potential ways to mitigate: (1) cause an arrest, (2) send the primary aggressor away, (3) try and give advice and provide mediation. This third approach was the method primarily used before this study. However, this study concluded that (1) arrests resulted into reduced repeat offenses and (2) listening to the victim reduced repeat offenses.

This study altered the traditional common law arrest power. Now, instead officers could make arrests for misdemeanors (not felonies) made outside of their presence.


A citation or appearance ticket is an alternative to an arrest. The idea is that when a subject commits a minor offense the officer can give the subject a citation. There are several purposes for giving a citation instead of an arrest (1) the offense is minor and the subject is likely to appear in court as requested, (2) it saves the officer significant time because they do not need to book and post bail for every minor arrest (or get an arrest warrant), and (3) it keeps the jail system under control because less people will be waiting for minor offenses.

State v. Bayard

To have a valid discretional arrest, based on state constitutional grounds, the officer’s discretion must be reasonable as shown through (1) probable cause and (2) a need for the arrest.

This type of arrest is fine under the federal constitution by reason of the Atwater v. City of Lago Vista, 532 U.S. 318 (2001). The federal rule is that an arrest for even a minor offense is constitutionally permissible if there is probable cause that the crime was permitted. However, states are still free to limit the discretionary power through state legislation. Here, Nevada had legislation and the court interpreted it to mean that an arrest cannot occur (instead a citation should be given) if there is no reason to conduct the arrest for a minor violation.

Here, all the defendant did was a minor violation, there was no evidence that he would not go to court, and he did not appear to be a threat of committing other crimes. Therefore, an officer cannot subject him to a full arrest and strip search without other reasons (more than a hunch).

Typically, when a full arrest occurs, officers can conduct a search. However, even if the officer could have made an arrest (but gave a citation anyways), a search is not allowed. See Knowles.

Use of Force

Tennessee v. Garner

Deadly force may not be used unless there is probable cause that the subject is going to b a significant threat of death or serious injury to the officer or others. The significant threat arises (1) in the commission of a violent crime, (2) suspect threatens the officer with a weapon. A warning must also be provided to the subject if feasible.

The courts must balance the interest of the subject and the interest of the state. First, the subject has an interest in preserving their life. Second, the state has an interest in preventing crime. This interest increases with the severity of the crime being committed. Thus, more violent crimes could potentially mean the use of deadly force. Here, however, the use of deadly force was uncalled for because it appeared the subject was unarmed.

The Court also considers the historic common law rule that any force necessary to prevent a felony crime was permitted. Ultimately, they reason that the justifications do not fit into society today (guns were used differently at the founding of the Fourth Amendment, and crimes are generally not punishable by death anymore).

On the other hand, the dissent argues this new rule creates a protection (freedom of flight from committing a crime) that is not afforded by the Fourth Amendment. Additionally, the rule limits officers ability to act in the moment. In the present case, the decision made by the majority is benefited by hindsight, and is an attempt to remedy a regrettable situation.

The above outlines the rule for when deadly force may be applied. However, there are also rules for when excessive force is to be limited. These are often provided by state legislatures and police departments seeking to reform police efforts and reduce unnecessary force.

Scott v. Harris

The officer’s use of force is fine if they are objectively reasonable. The court will consider:

  • Safety of others on the road
  • How dangerous the use of force is (less so here because death is not automatic)
  • Whether the subject is culpable for the danger

This case is not an example of deadly force. Using the factors above, the use of force was reasonable. Otherwise, this would incentivize more dangerous driving.

However, the dissent argues the car drive was not threatening to other parties (minimal traffic at the time), thus this should be a question for the jury, not summary judgment.

Buckley v. Haddock – high deference for the police to determine what is reasonable. Ultimately, the interest of ensuring the effectiveness of an arrest has high weight.

Searches in Reoccuring Contexts


Searches Incident to Arrest

When the officers make an arrest, they are free to conduct a search incident to that arrest. This means that the officers can conduct a search within the scope of the arrest to remove any evidence that might be connected with the crime.

Birchfield v. North Dakota

Officers may search a person and the area within their immediate control without a warrant when they arrest a suspect (because it prevents the destruction of evidence and protect the officers). This rule applies even if there is no reasonable suspicion, probable cause, or presence of a weapon.

Breath tests may occur incident to an arrest but not blood tests.

State v. Hufnagel

The officers obtained an arrest warrant for Hufnagel for possession of cocaine. As the officers arrested him, he glanced to the nightstand so the officers searched the nightstand (about 10 feet away from the defendant). The question is whether the search extended beyond the scope of the search incident to arrest.

The zone of immediate control extends to the zone the defendant could reach immediately before the arrest occurs. The purpose for this policy is because we do not want to incentivize a delay of arrest.

Addresses the zone of immediate control by space.

People v. Boff

The officers observed Boff leave a weed farm. After arresting him and taking him to the station, they searched his backpack several hours later (without a warrant). The rule is that the search needs to occur at the time of the arrest unless (1) the item could be searched at the time of arrest (meaning the item is within the zone of immediate control) and (2) is “immediately associated” with the person (such as a purse or backpack). If so, the search could occur later. Boff’s backpack falls within this scope.

Addresses the zone of immediate control by time.

State v. McGrane

After lawfully entering a home due to an arrest warrant, officers observed McGrane being fishy upstairs. Once McGrane came downstairs and was arrested, the officers went upstairs and discovered drugs upstairs on the coffee table being prepped for sale.

Under the original rule, this is outside the zone of immediate control. Is a protective sweep? A protective sweep can extend to areas adjacent to the defendant and the rest of the house where there is reasonable suspicion a person could be present and potentially endanger the police. See Maryland v. Buie, 494 U.S. 325 (1990). Here, the search was beyond the scope because there is no suspicion that there was another person upstairs.

Body Searches at the Jail

Maryland v. King, Jr.

When the search is made without a warrant, the court must weigh the interests of the government against the subjects expectation of privacy. The more intrusive the search, the heavier the interest must be.

The state has a significant legitimate interest in knowing the identity of the person arrested, whether he is wanted elsewhere, and ensuring recapture should he flee. This interest along with (1) the minimal intrusion of a DNA swab test and (2) minimized expectation of privacy subject to arrest is sufficient to justify the search without a warrant.

However, the dissent argues that this is an unlawful search, no matter the circumstances—especially because the statute’s stated purpose is for investigatory reasons (which normally require a warrant), rather than identification reasons. That reason, in addition to the fact that identification doesn’t happen until months later, the state’s interest is significantly diminished.

Officers are also authorized to conduct more invasive searches such as strip searches and inventory (personal items) belongings.

People v. More

After conducting an arrest at the home, the officers conducted a strip search upstairs in the same home where they discovered additional drugs. An intrusive body search outside of the jail may be conducted if (1) there is a warrant unless excused by exigent circumstances, (2) clear indication (more than probable cause) that the contraband is present, and (3) the test must be conducted in a reasonable manner. See Schmerber v. California, 384 U.S. 757 (1966). Presently, the search was lacking on all three elements. Again note, this rule does not apply when the strip search is conducted in a jail.

Houses and Workplaces

Outer Boundaries of Homes

Searches of homes are afforded the most constitutional protections. The tricky part is knowing what is exactly included in the definition of “home,” the “curtilage” (area immediately surrounding the home), and the “open fields” (anything beyond the curtilage).

State v. Fisher

Can’t search a home or curtilage without a warrant based on probable cause. For curtilage, the warrant may be excepted by a (1) lack of reasonable expectation of privacy, or (2) the plain view doctrine.

“The area that harbors the intimate activity associated with the sanctity of the home and the privacies of life” is the definition of curtilage. To determine whether an item is within the curtilage the court considers the Dunn factors:

  1. Proximity to the home
  2. Whether the area is enclosed (e.g., by a fence) along with the home
  3. How the area is used
  4. Whether the owner took steps to protect the area from public observation
State v. Dixson

Open Field Doctrine

The officers obtained a tip that drugs were being grown in a rural area. When the officers searched the area, they passed several signs that said “no hunting.” They discovered the drugs on the defendant’s property.

An open field is an area beyond the scope of the home and curtilage (i.e., everything else). The Fourth Amendment provides no protections to open fields. Using the facts here, this was an open field so there are no Fourth Amendment protections and the search is valid. State law could restrict this further (e.g., Oregon adds a requirement of whether the owner has made barriers to entry).

However, in a suburban area, the courts are divided. Compare People v. Thompson (Cal. App. 1990) (the property is all curtilage), with Hart v. Myers (D. Conn. 2002) (the property is not all curtilage).

Espinoza v. State

Officers has a search warrant for Apt. B. However, the officers found drugs closer to Apt. A along Apt. A’s side of the driveway. So, the question is whether the warrant covers the seizure because the drugs were found on the curtilage of Apt. A. This was within the curtilage of A by district court, but open fields by State Supreme Court. Takeaway: Curtilage zones can vary.


People v. Galvadon

To determine whether the subject has an expectation of privacy against government intrusion when there are no surveillance camera, the court considers:

  1. Whether the work area is exclusively used by the employee.
  2. Whether the employee had the power to exclude access to the work area.

When there are surveillance cameras, the court considers:

  1. Whether the surveillance is available to the public

The expectation of privacy may be reduced regarding the store owner, but not the government.

However, this expectation of privacy is not presumed, they must be proved by the defendant.

The dissent, however, argues the reasonable expectation of privacy does not exist because the back room is readily subject to searches (being a highly regulated industry).

Also note the store owner could provide the officers the camera and there would be no issues. Additionally, the owner could voluntarily hand over the evidence if asked. However, if the owner is an agent—(1) police started it and (2) individual acts with intent to assist the police—then the evidence can be barred.

Note that the above case argues the expectation of privacy against the government is not reduced even if the expectation of privacy against an employer would be. This is not the case for government jobs. The government does not need a warrant to conduct a non investigative work-related search, or an investigation on work-related misconduct.

Schools and Prisons

Searches of schools and prisons are often considered “administrative” and therefore do not require a warrant or probable cause to conduct a search.


State v. Jones

The court considers:

  1. Nature of the privacy interest of the subject.
  2. Character of the intrusion
  3. The relationship between the school concerns and the nature of the search.

For a full search of personal property in a school setting, the standard is reasonable suspicion (as compared to probable cause and warrant in a regular setting). See T.L.O.

For a more invasive search of a student in a school setting, the standard is reasonable suspicion for a regular search and reasonable suspicion of either (1) dangerous situation or (2) hiding the material within clothing. See Safford School District #1 v. Redding. Probable cause and warrant under the Scherber standard is still required for a regular setting.

In re Gregory M.

Student came to school but had lost his ID. As part of the school policy, students were required to leave their bag with the security officer while they obtained a new ID. When the student left his bag, he tossed it over and the officer hear a “metallic thud,” which he deemed as unusual. Then the officer felt the exterior of the bag, determined it was a gun, and conducted a full search of the contents within the Dean’s office, which revealed the gun.

We are now in delinquency court and the student wishes the evidence of the gun to be suppressed.

The above case is an example of a frisk. Essentially, the standard in the school setting is “an evident suggestion” (basically no standard). Contract this to a regular search where reasonable suspicion of a weapon is required to conduct a frisk.

Isiah B. v. State

After gunshots were heard the night before, tensions were high at the school causing a search to go out. The officer searched Isiah B.’s locker (although he wasn’t a suspected problem) and discovered a gun. Importantly, the locker was owned by the school, so there is a limited expectation of privacy. Using the factors above, the search was constitutional.

Hageman v. Goshen County School District No. 1

Compare the above with Ferguson v. City of Charleston, 532 U.S. 67 (2001). In Ferguson, the program was disallowed because (1) the purpose was to monitor criminal activity, and (2) punishment was pretty intense.


McCoy v. State

If the subject is convicted, there is no expectation of privacy, searches can happen wherever for whatever reason. If the subject has not been convicted but is in pretrial, there is an expectation of privacy which can be overcome with a security search.

Also consider Florence v. Board of Chosen Freeholders, 566 U.S. 318 (2012), officers can conduct a strip search no matter how minor the offense and the suspicion level involved when they are booking inmates.


As officer’s detain people, often they take personal property into custody and store it for safekeeping. This process can also produce criminal evidence.

People v. Gipson

Officers are free to conduct a warrantless search to take inventory in accordance with inventory search policies. These policies can be pretty broad and still constitutional.

An inventory search is an exception to the warrant requirement where an officer conducts an inventory of contents for the purposes listed above.

To conduct an inventory search, the state needs to show: (1) a policy exists for the inventory (which can be broad), (2) valid impoundment and procedure, (3) the purpose was done for inventory and not as a pretext to look for crimes.

Essentially, the search can be challenged if there are no procedures (using Wells) or if the purpose is inappropriate (using Bertine).


Search of Car Incident to Arrest

Robinson. v. State
[P]olice may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if (1) the arrestee is “unsecured and within reaching distance of the passenger compartment at the time of the search,” or (2) it is “reasonable to believe” the vehicle contains evidence of the crime of arrest.

Absent the above, a warrant or exception is required.

The above is one method of searching cars: SITA.

Another method of searching cars is outlined in Carroll v. United States, 267 U.S. 132 (1925) called the Carroll-Chambers exception. Essentially, the rule says there is no need for a warrant to search a car if there is probable cause the vehicle contains evidence of contraband. The reasoning? Vehicles are moveable which could create an exigent circumstance that the evidence will be moved or destroyed.

We have already discussed another method of searching cars: conducting a Terry frisk. If the officers have a proper basis for stopping a car, they can ask the occupants to step out of the car, and search passenger compartments for a weapon (upon reasonable suspicion).

California v. Carney and State v. Otto

Officer received information about a man in a motor home exchanging sex for drugs. Once the officers arrived to investigate, the man stepped out of his motor home, the officers entered, and found the drugs.

A mobile home is considered a car, so the automobile exception applies if there is probable cause. Here, there was probable cause because they had an informant then corroborated the evidence.

Closed Containers in Cars

Closed containers typically require a warrant to search. Vehicles, under the Carroll-Chambers rule do not. So, can officers search a closed container within a vehicle under the Carroll-Chambers rule?

California v. Acevedo

Probable cause of contraband in a container within a vehicle is sufficient to search the locations where the container is suspected to be.

The defense relies on Sanders which argues that luggage is private and cannot be searched.

However, the response is that this case is more like a car, so the automobile exception permits the search. See Ross. So the question is whether the situation is more like Sanders or Ross.

Here, the court says this situation is more like Ross because the reason for having a Carroll-Chambers exception applies, fear of losing the evidence.

The dissent argues this case is more like Sanders, luggage receives more protection. Additionally, the dissent dislikes the distinction between the stop on the street (requiring a warrant) verses the car (not requiring a warrant)—the difference being only a few seconds.

Summation of Automobile Rules

  • General rule, automobiles are likely to be searched and deemed valid.

Four ways to search a car:

  1. Inventory (See Gipson)
    1. Elements
      1. Valid impoundment
      2. Valid noncriminal purpose
      3. Standard procedures
    2. Scope: All areas if the procedure says it is fine.
  2. Terry (See Long)
    1. Elements
      1. Valid stop of the car
      2. Reasonable suspicion of a weapon
    2. Scope: Passenger compartment for a weapon
    3. Limits: purpose of officer safety and can only search places where a weapon may be located within reach of a passenger.
  3. Automobile Exception (See Acevedo below)
    1. Elements
      1. Must have probable cause the automobile contains evidence of a crime
    2. Scope: extends only to areas where there is probable cause the item is located there
    3. Limits: See the rule above.
  4. Search Incident to Arrest (See Gant)
    1. Elements:
      1. Once there is a lawful arrest:
        1. The arrestee is “unsecured and within reaching distance of the passenger compartment at the time of the search,”
        2. “reasonable to believe” the vehicle contains evidence of the crime of arrest.
    2. Scope: Passenger compartment and any containers there.
    3. Limits: focus only on the rules above.

Search Technology


United States v. Jones

The Fourth Amendment protects people and places. If this action was committed in the 1800s, this would have been considered a trespass. For these reasons, secretly attaching a GPS would be unreasonable.

The concurrence however thinks that the Katz concurrence test should be applied. That is, what is the respondant’s reasonable expectation of privacy? The conclusion is the same, but it still allows for short-term searches or potentially long-term searches for intense crimes.

This case sets forth the trespass test. Did the search physically intrude on the target’s protected interests (person, house, etc.) with the intent to obtain information.

Part of the problem here is that GPS technology was new and the court needed to come up with a solution. The trespass test appeared to be more helpful.


Florida v. Jardines – Dog Sniffing Porch

Although people may have a standard license to enter the doorstep to talk to the owner, there is no standard license to bring a dog with you. Nor is there a standard license for the dog to search for drugs while on the doorstep. Thus, the police here were trespassing because they had no lawful right to be on the doorstep other than to knock and talk to the owner. In other words, this is a trespass.

The concurrence says that this is the use of a highly specialized tool, much like a metal detector, and therefore is outside the scope of being allowed on the doorstep to conduct a search.

However, the dissent says that dogs are an integral part of society and never have been discussed in case law regarding trespass. In other words, the court’s ruling was a novelty in saying dogs can’t be on the porch of a stranger.

This case applies the property trespass test to determine whether a search has occurred.

Although dog searches are fine in the context of luggage at the airport (Place) and routine traffic stops (Cabales), they are not fine when they are within the property of the home. There are other questions of whether this extends to shared spaces in apartments (See Burns).

Phone and Other Electronic Data

Riley v. California – Phone Data Search

Under Chimel a SITA can occur because of the officer’s safety and to avoid evidence destruction. The standard used is reasonableness. To determine whether the search was reasonable, the court will balance the government interest and the nature of the privacy interest of the subject.

Governmental Interest: Although the state argues that the phone presents safety and destruction of evidence concerns, the Court rejects this argument. First, there is no safety concern because a phone is not used as a weapon and the digital data is not an immediate threat to life. Additionally, destruction of evidence concerns are not viable because there are other methods of excluding remote access to the phone (airplane mode or Faraday bags). Exigent circumstances, such as an emergency, may merit the search. Absent these circumstances, a warrant is required.

Privacy Concerns: The prosecutor argues that the privacy interest here is lower, being under arrest. However, the Court disagrees because the phone contains so much more information that is likely to be found around the home.

The concurrence agrees that this is the right result, because there are no better options. Instead, the concurrence argues the better place to resolve these issues are through legislation.

The result: you need a warrant to search the cell phone (unless there is a classic warrant exemption).

Carpenter v. United States – Bank Robbing Pings

Phone and location records based on phone use constitutes a reasonable expectation of privacy where a warrant is required to obtain that information.

Ever since Katz there has been a reasonable expectation of privacy standard. This standard, however, was mitigated slightly by a rule found in Smith and Miller which says there is no reasonable expectation of privacy of records you provide to third parties. Here, it is argued that the cell phone carriers are third parties within the standard. However, the court refuses to extend this standard to the carriers. This is because the phones have an expectation of privacy similar to that in Jones. People expect to be secure in knowing where they are traveling, when they text, what the text, who they call, when they call, etc. Further, the only way to avoid giving this information to the company is by not using a cell phone—so it can hardly be said that the information is voluntarily given.

On the other hand, the Kennedy dissent argues this is a third party record which clearly falls under the standard of Smith and Miller.

Further, the Gorsuch dissent doesn’t like the third party argument at all and instead says the defendant waived his better argument, that of property. Essentially, the argument is that phone records are part of your papers and effects, thus requiring constitutional protection beyond the expectation of privacy.

State v. Russo

Suspecting Russo of abusing prescription drugs, the officer went to several pharmacies and asked to see the records Russo provided when obtaining the prescriptions. Using the documents produced by the pharmacies, Russo was convicted of possession of a controlled substance by forging a prescription.

In 2002, the court held that this was not a search (after doing a balancing). Essentially, this is a third-party waiver doctrine example.

Remedies for Unreasonable Searches and Seizures

The Exclusionary Rule

The exclusionary rule applies when evidence has been obtained illegally. That is, if the evidence is illegally obtained, then the evidence may not be considered at trial. This is one of the few remedies available to defendants who are subject criminal liability due to officer error.

Weeks v. United States

The defendant had been sending lottery tickets through the mail in violation of a federal criminal statute. Unknown to the defendant, the officers and marshal searched the defendant’s home without a warrant. From there, they took several papers proving the defendant had engaged in the activity (clearly an illegal search).

At the time of founding, the remedy for the error was a tort claim against the officer who engaged in the improper search. The natural result of this rule was that the evidence would be admitted. Here, however, the court says the failure to return the papers was in error so the evidence should be excluded. Why? The Fourth Amendment is meaningless without a remedy. In other words, the Court was focused on judicial integrity.

This rule was extended in Silverthorne Lumber Co. v. United States. There, the evidence was illegally obtained, returned, then legally obtained through a subpoena duces tecum. The Court determined the evidence was still excluded. This doctrine is called the “fruit of the poisonous tree.”

Even after the Fourth Amendment was incorporated and applied to states, they were still left to decide for themselves whether they would adopt the exclusionary rule (Wolf v. Colorado, 338 U.S. 25 (1949). Early after Weeks was passed, many of the states decided not to adopt the rule. The next case is an example of California changing their position.

People v. Cahan

Cahan and others were suspected of conspiracy to create books for horse-races against the state law. To gather evidence, officer’s snuck into Cahan’s house and set a recording wire under a nightstand. The recorded conversations led to the evidence that convinced the defendants (clearly an illegal search).

Those who want the exclusionary rule argue the rule is necessary because:

  • Judicial integrity – the court should not be involved in encouraging illegal searches.
  • Deterrence – Officers should be afraid of losing the evidence due to illegal searches.
  • Other remedies have not proved successful.

Those who want non exclusionary argue:

  • The evidence still has the same value of proving the crime regardless of how it is obtained.
  • It is costly to let law breakers go free because the evidence is excluded.
  • There is no evidence showing that deterrence has any effect.
  • There are other available remedies.
Mapp v. Ohio

The exclusionary rule applies to all states.

Officers were informed that the defendant had material related to a recent bombing. When the officers came to her home, she demanded a warrant. They came back a few hours latter, broke into the home, and showed her a piece of paper they claimed was a warrant. When she snatched the paper, they arrested her and searched her home. Once again, clearly an illegal search. The search produced illegal obscene material which was used to convict her of that crime (not the bombing). At trial and on state appeal, the evidence was not excluded because the state had not adopted the exclusionary rule unless there is a showing of brutal or excessive force.

First, the Court wants federal oversight to exist over the rule (just like in free speech or free press cases). Second, the Court wants uniformity between the states.

However, the dissent argues that the rule is not uniform because each state still has the freedom to apply the rule in different ways. Additionally, the textual intent of the Constitution provided tort claims as the remedy.

Additional Notes
  1. Judicial integrity is no longer a consideration justifying the rule. See U.S. v. Janis
  2. The exclusionary rule is not essential but is prudential to the Constitution. Therefore, the rule could be overturned with no concern and can be altered by Congress.

Limitations on the Exclusionary Rule

The Good Faith Exception

Commonwealth v. Johnson

Federal: If the officer is relying on objective good faith on a warrant issued by a judge, the evidence may not be excluded. See U.S. v. Leon, 468 U.S. 897 (1984).

Pennsylvania: A good faith exception is not available regardless of whether the purpose of exclusion is privacy concerns or deterrence.

About 15 states have chosen not to adopt the good faith exception.

Further exceptions to the Good faith Exception:

  1. Officer gave false information to the judge when obtaining the warrant
  2. Magistrate is not wholly independent
  3. The affidavit or warrant is facially deficient.
Farmer v. State

Undercover police officers went to a hotel to conduct surveillance. However, they were checked into the wrong room by the mistake of the hotel staff. Located in the room was luggage. The officers checked the luggage and cabinets and discovered drugs.

Under federal law: the exception does not work because it needs to be based on a warrant issued by a judge.

Independent Source and Inevitable Discovery

Although seen as an exception to the exclusionary rules, the independent source rule essentially infers the prosecution would have obtained the evidence even without the improper search of the officers. In other words, because the evidence would have been obtained lawfully in a subsequent discovery request, the material is not excluded.

Wehrenberg v. State – Meth Double Search

The independent source exception allows evidence “initially observed during an unlawful search but later obtained lawfully through independent means.”

  • Independent source: Evidence derived from a lawful source, if apart from the illegal conduct, is admissible. The second search has an actual connection to the evidence.
  • Inevitable discovery: If the evidence would have been discovered if the conduct was legal, then it is admissible. The connection to the evidence is hypothetical, based on the first search. Only Texas and Washington have rejected this doctrine.
Nix v. Williams

Williams was suspected of abducting a little girl and then disposing of her body along the side of a road some distance away from the abduction location. A search party was sent out to find the body. An illegally caused confession of Williams disclosed the location of the body. At the time the body was discovered, the search party was about two and a half miles away from the body with an impending snow storm.

This is an example of applying the inevitable discovery doctrine. The case shows how broad the inevitable doctrine is, despite the potential difficulty of discovering the body, the doctrine was applied and the evidence was not excluded.

Also see U.S. v. Thomas, and Utah v. Strieff, 579 U.S. 232 (2016). The rule can apply as long as there is no flagrant officer misconduct.


State v. Bruns – Toy Gun in Friend’s Car

Standing is defined as an interest that is substantial enough to say the person was aggrieved by the unlawful search or seizure.

In New Jersey, to establish standing, the defendant must show:

  • First, there was a “proprietary, possessory, or participatory interest in the place searched or the items seized.”
  • Second, the defendant had a reasonable expectation of privacy in those locations.

The federal standard only asks whether the defendant has a reasonable expectation of privacy. See Rakas v. Illinois.

After working through the federal and state standards for standing, the court applied the test to Bruns. Presently, Bruns has no standing because (1) the alleged robbery happened over a week previously, thus destroying his interest in those items, and (2) the defendant has no interest in the location where the items were discovered (Edwards car).

This case did not explore the legitimate expectation of privacy test. So, applying the federal standard, we need to ask whether there was a reasonable expectation of privacy. Under this test, the defendant still does not have standing because he has no expectation of privacy in the car of another individual.

Minnesota v. Carter and Olson

Carter and Johns were at a party for three hours where officers were tipped off illegal drug activity was ongoing. While the officers were preparing a warrant, Carter and Johns left the party. They were pulled over and arrested. A search of the vehicle revealed illegal drugs. Later the house was searched and found more drugs that matched the ones found in the car.

The challenge here is whether the evidence derived from the search of the house could be applied to the defendants. Here, the court said there was no standing because there was no reasonable expectation of privacy (in the house for a short period of time and only for business). Even if there was standing here, the search appears to be valid.

Compare State v. Hess, 680 N.W.3 14 (S.D.2004) (a repeat overnight guest may have standing).

Other Exceptions

Grand Jury Proceedings

No evidence needs to be excluded to grand jury proceedings because the material is not being presented to the actual jury at trial. The reason for this is because there is no deterrent effect when presenting to the grand jury because the evidence will still not be admissible later.

Calandra, 414 U.S. 338 *1974).

Administrative Hearings (e.g., Immigration Hearings)

These are not criminal.

Lopez-Mendoza, 468 U.S. 1032 (1984).


Judges should be given all the material available when deciding a sentence, so the exclusionary rule does not apply.

U.S. v. McCrory, 930 F.2d 63 (D.C. Cir. 1991).


The exclusionary rule does not apply if the purpose is to impeach the defendant.

United States v. Havens, 446 U.S. 620 (1980).

Liability for Officer Misconduct

Civil Tort Liability

Before the exclusionary rule, the primary method of holding officers accountable for illegal searches were civil tort lawsuits. These focused primarily on false imprisonment or trespass; but also includes civil rights cause of actions for state or federal (under 42 U.S. § 1983) violations. The challenges presented in these lawsuits, however, are that police departments have sovereign immunity and officers have qualified immunity (if they acted in good faith).

Consider Bivens v. Six Unkown Federal Narcotics Agents, U.S. 1971. Petitioners are entitled to recover monetary damages for violations of the Fourth Amendment.

Harlow v. Fitzgerald
[Q]ualified immunity would be defeated if an official “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury….”

However, this rule is adjusted where the subjective malicious intention does not apply if the officer is performing discretionary functions.

So, the new test is:

Officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Thus, at summary judgment the judge is to examine whether the law was clearly established. For such times when the law is clearly established, there is no immunity, because the officer is expected to know the law. Therefore, the question must be answered before discovery begins.

To summarize, the purposes of qualified immunity include: (1) Ensure officials are not harassed by endless lawsuits, and (2) there is no need to defend against improper lawsuits, and (3) encourage only the valid claims to proceed past summary judgment. To meet the needs, the court will determine whether officers conducting discretionary functions.

For certain officials, there is absolute immunity. These include judges, legislators, prosecutors, and the President of the United States.

Anderson v. Creighton

The contours of the [clearly established] right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.

In other words, the objective analysis must be done on a case by case basis. For instance, the court must ask “would a reasonable officer have believed there was probable cause and an exigent circumstance to enter the house without a warrant?”

Understanding the need to encourage continued officer participation without the fear of the law, a reading of the law in broad terms is not the way to do things. If that was the case, any pleading that argued a violation of the law would satisfy the showing that the objective standard had been violated. Instead, the court needs to look into the reasonable belief of the officers based with the information they had at the time of their actions. This is not a “reasonable unreasonable” standard because the court is considering two different things (and have applied the standard in the past).

However, the dissent argues that this is a double standard; applying the “reasonable unreasonable” standard gives the officer two opportunities at qualified immunity. Thus, the officer’s interest is protected once while the subject’s interest is measured only once. The standard of the probable-cause requirement is well settled and clearly established. Thus, any violation of that standard may overcome the qualified immunity.

Hope v. Pelzer

In 1995, Alabama was the only state that still utilized chaining prisoners together in work gangs. As the prisoners were on the bus to go to work, Hope took a nap and was very slow to respond when told to get off the bus to get to work. Words were exchanged, a wrestle ensued, and Hope was subdued and taken back to the prison where he was chained to a pole all day and prohibited water and bathroom breaks. In 1974, this practice was prohibited as a violation of the Eighth Amendment. In 1987, prohibiting water to subdue prisons was allowed.

According to the court of appeals, a reasonable officer would have seen this as clearly unlawful due to the 1974 case. However, this case seems to be the exception, where most cases with intense officer actions result in qualified immunity.

Criminal Liability

State v. Chauvin

Barry Brodd: Expert for the defendant. Mr. Brodd stated a three prong analysis for the use of force: (1) whether there was a justification for the detention, (2) the level of resistance utilized by the subject, and (3) whether the officer’s reaction proportional to the resistance exhibited by the subject. Applying this analysis to the detention of George Floyd, Mr. Brodd determined the use of force was justified which resulted in an accidental death.

Seth Stoughton: Expert for the prosecution. Mr. Stoughton also addressed the proportionality analysis. The level of force must be proportional to the level of resistance made by the subject. Applying this analysis to the detention of George Floyd, Mr. Stoughton stated that no reasonable officer would have used that force. Additionally, Mr. Stoughton stated the failure to provide medical aid when it became apparent that it was needed was unreasonable.

Jody Stiger: Expert for the prosecution. Mr. Stiger was familiar with the proportionality analysis and stated that no force should have been used once the subject had been restrained.

Minneapolis Police Chief Medaria Arradondo testified that Chauvin had violated the department’s policy regarding the level of force used to detain Floyd.

Takeaway: The point of illustrating this case and the testimony here is that the beyond a reasonable doubt standard is difficult to overcome. Once you have the defendant testimony saying that the officer’s actions were reasonable, the prosecution has a ton of work ahead of them to counter that testimony by (1) outside experts, (2) inside experts, and (3) other officers (including the chief) denouncing the violating officer.


. . .nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . .

– U.S. Const. Amend. V.

Due Process Limitations on Voluntary Confessions

Confessions are largely important to the prosecution. As such, officers often engage in interrogations, attempting to obtain incriminating information. However, all confessions must be voluntary. This article discusses factors that may cause a confession to be involuntary. The burden of proof is on the prosecution to show the confession was voluntary as a preponderance of the evidence.

Physical Abuse and Deprivations

In 1931, the Wickersham Report outlined the use of the Third Degree, which was physical abusive tactics used to coerce confessions.

In 1897, the Court decided Bram v. United States, 168 U.S. 532 and held that the Fifth Amendment prohibited police coercion in obtaining confessions for federal law. The following case describes when the Court extending this requirement to apply to state laws too.

Brown v. Mississippi – Torture

Physical abuse of prisoners to obtain a confession is void of due process and a violation of the Constitution. This applies to federal and state courts alike.

The right against self-incrimination is so important and fundamental to the Constitution that its protection needs to be afforded to all criminal defendants. Clearly, the defendant’s privilege here was violated by the coercive behavior of the deputy because (1) torture is different than self-incrimination and (2) the states cannot just violate due process principles.

After Brown, the use of Third Degree interrogation tactics pretty much vanished. However, there are other deprivation cases (other than physical abuse). These cases are much less common now. (1) Payne, 356 U.S. 560 (1958) (deprivation of food). (2) Fikes, 352 U.S> 191 (1957) (isolation). (3) Ashcaft, 322 U.S. 143 (1944) (time of the interrogation). (4) McNabb and Mallory, (delay in court appearance). (5) Haley, 332 U.S. 596 (1948) (age). (6) Beecher, 408 U.S. 234 (1972) (“Particular vulnerability”).

Promises and Threats

State v. Swanigan – Robbery

Based on the totality of the circumstances, if the officers comments threaten charges or promise retribution to an individual with diminished capacity—and those threats or promises cause the confession—any statement taken by the defendant is not admissible.

Using the totality of the circumstances, the confession was involuntary. Although each piece standing alone was not enough to say the confession is voluntary (e.g., officers are free to say that they will pass on information relating to the cooperation of the defendant), taken together, everything points to the information being involuntary. It is also clear that the officers’ statements had an effect on Swanigan because his story would vary after a new threat or promise was offered.

Essentially, the threat that failure to confess will be conveyed to the prosecutor may be a violation of the Fifth Amendment because it is a threat against the right to remain silent. This threat against silence alone does not automatically determine the confession was involuntary. The court will consider the age, intellect, and familiarity with the criminal justice system (totality of the circumstances). In other words, if the subject knows they have the right to remain silent, then the threat against silence does not violate the Fifth Amendment.


  • Police can promise to convey notice of cooperation.
  • Cannot promise to convey notice of lack of cooperation.
  • Cannot promise lesser charges for confessing.


  • Cannot threaten more charges for lack of cooperation.
State v. Carroll

The defendant (19-years-old) went with his mother to the police station after being suspected of murder. Additionally, the mother was a police officer. During the integration, the mother told his son to confess, saying it would be worse for him the longer he waited. When the defendant said he was afraid of others involved, the police informed him that they could discuss protection if he confessed.

The court said the confession was voluntary. Importantly, the mother was a cop, but not acting as a cop. Second, the request for protection may have been seen as coercion, but here the police only explained potential options. In all, the mom’s influence caused the confession, not police coercion.

Police Lies

People v. Thomas – Baby

Under the totality of the circumstances, if false statements made by the police have an impact on the defendant in coercing a confession, then those confessions must be suppressed as a violation against the to not self-incriminate.

The statements were not products of coercion, either physical or psychological, or, in other words, that they were given as a result of a “free and unconstrained choice by their maker.”

This court is not saying that all lies are out, only multiple (but one could be enough) powerful lies designed to overcome the free will of the subject. So, what do we consider?

  • Circumstances surrounding the question
  • Age, experience with police, or education
  • Mental condition
  • Police coercion or trickery

Here are some examples of lies that lead to the exclusion of the evidence. (1) Lynamn, (lose benefits and kids); (2) Spano, (friends). Further, here are examples of lies that are admitted. (1) Contee, (fake lie detector test); (2)Davis, (said the co-defendant admitted which weapon was used).

Miranda Warnings


Massiah v. United States

Officers placed a radio transmitter in the car of a friend (who was acting with the police) of Massiah. The purpose was to gain additional evidence on Massiah (which the obtained), who previously had an indictment and an attorney appointed.

Although the testimony obtained was not coerced, this was a violation of the Sixth Amendment violation of the right to counsel because the questioning occurred post-indictment.

Escobedo v. Illinois

Escobedo was prevented from consulting with his attorney as he was being interrogated. Another defendant was sent into the interrogation to confront him about the crime.

Again, the Sixth Amendment applied here. This is a pre-indictment questioning that is a violation because the defendant was in a “critical stage.”


Miranda v. Arizona
[T]he persecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination . . . . Prior to any questions, 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 an attorney, ether retained or appointed.

The basis of this holding is the Fifth Amendment


The Court begins by describing techniques utilized by the police during interrogations, which encourage the police to talk to the subject as guilty, and work to discourage the subject from invoking their rights.

Right to remain silent: It is important to inform the individual who may not know their rights. This is an absolute prerequisite to overcome the inherent pressures from the interrogation atmosphere.

Anything you say can be used against you: Because you have the right to remain silent, it informs the subject that further speech may harm you. In other words, it is telling them the consequences of failure to remain silent.

Right to consult and have an attorney present: This is a right where the subject has an advocate, some additional support system, along their side. Additionally, an attorney present may stop coercion, provide counsel during the questioning, and testify to coercion if present.

Right to have an attorney provided if unable to afford one: This right is necessary because the vast majority of those subject to police coercive interrogative techniques are those who are unable to afford an attorney.

If the subject invokes their rights, then the questioning stops. However, if the subject waives their rights, then the question can continue. Again, silence about the waiver is not to be presumed; the burden is on the state to show that silence was a waiver.

Harlan states that this right is not supported constitutionally by the Fifth Amendment. Instead, the only test should be coercion, was the testimony given voluntarily?

White argues that waiver here is not a good solution because the waiver may be coerced as well (being obtained in a coercive environment).

Additional Notes

Considering Massiah and EscobedoMiranda could have been a Sixth Amendment right, but the Court still saw the need for police activity and framed it as a Fifth Amendment issue.

Was Miranda a liberal or conservative position? This opinion appears liberal because there is a desire for attorney involvement early, focuses on individual rights, and focuses on pragmatic—rather than textual—constitutional interpretation. On the other hand, this opinion appears conservative because it still allows confessions by focusing on the Fifth rather than Sixth Amendment analysis and provided an easy formula for admission.

Dickerson v. United States

There was a statute in 1968 that came out and stated that voluntariness is the only test to admit confessions (no need for a Miranda warning). In the case, the confessions were not coerced but there was no Miranda warning.

The majority said that the Miranda warning is constitutionally mandated, so must be given even if Congress disagrees. The end result: Miranda is not going anywhere.

“Custody” Requirement

State v. Elmarr

If in custody, then the Miranda rights need to be read.

A suspect in custody when their “freedom of action is curtailed to the degree associated with formal arrest.” This is an objective test that considers:

  • Time
  • Place
  • Purpose of interregation
  • Who is present
  • Tone of voice of the interrogation
  • Response to the suspect’s answers
  • Whether the subject is free to leave
  • etc. (age is not a factor)

Finding that there was custody at one point will extend to the entire police interaction.

Consensual police interviews are not custodial. See Beheler, 463 U.S. 1121 (1983).

Custody is somewhere between a “stop” and an “arrest.”

State v. Turmel

Turmel was pulled over after he was observed with illegal drugs. He was asked about the drugs when he responded “yes” before he was put in the back of a cop car while the officers searched the car.

This was a stop, but not within custody, so there was no need to read the Miranda rights. See Berkeley v. McCarty, 468 U.S. 420 (1984).

State v. Dyer

Officers responded to an emergency call to the Dyer’s residence. After Mrs. Dyer was removed to receive medical aid, Mr. Dyer admitted to hitting Mrs. Dyer. When Mr. Dyer attempted to go to the back room and indicated that there would be gunfire if anyone tried to see him. The officer stopped him from going to the back room.

The defendant was in custody because the “effect on the suspect” because his desire to go away demonstrates he felt that he was in custody. Although this is a close case, it demonstrates that more warnings is better.

“Interrogation” Requirement

Rhode Island v. Innis

Interregation is defined as:

  1. Express questioning to the subject
  2. “Words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Functional equivalent of express questioning.

This second prong focuses, not on the intent of the police, but on the potential susceptibility of a defendant (is the defendant anxious, disorientated, upset, etc.).

There are three main exceptions to the Innis rule:

  1. Routine booking questions. If the officer is asking standard booking questions, then there is no need to read Miranda rights. Pennsylvania v. Muniz, 496 U.S. 582 (1990).
  2. Interrogations by undercover cops. Miranda was all about coercion at the station so undercover questioning does not cover those discussions. Illinois v. Perkins, 496 U.S. 292 (1990).
  3. Public safety. New York v. Quarles, 467 U.S. 649 (1984). Could Innis have been decided with this principle in mind? Possibly, but Quarles was decided four years later.
Commonwealth v. Diaz

A suspect was being fingerprinted when he exclaimed the process would incriminate him. When asked, “why?” the suspect admitted to holding the gun. All this was done before Miranda rights were provided.

This case is an example of an express question but it was done during routine booking practices. So, who wins? Massachusetts here said this was not a custodial interrogation requiring a Miranda warning, because the initial statement was spontaneous and unprovoked and the question was a natural response.

Commonwealth v. Sepulveda

The officers received a 911 call stating that a woman was dragged into the neighbor’s house. When the officers knocked on the door, they noticed blood and arrested the subject. Before giving a Miranda warning, the officers asked, “Where is she.” In response, the subject said, “I shot them.”

Again, this is an express question but it was done for public safety. Statements are not suppressed.

Form of the Warning

Miranda does not provide the precise language for informing a subject of their rights.

Invocation and Waiver of Miranda Rights

Subjects are free to waive their Miranda rights (and the majority of individuals do), although the history of how this waiver may be portrayed has altered significantly. Originally, it was on the burden of the prosecution to show that the waiver had been made. Later, it was the responsibility of the subject to affirmatively assert their rights by “clear” and “unambiguous” language or actions. Failure to do so is a presumption that waiver had occurred. The following case illustrates the difference between the federal standard and some narrower limitations state constitutions may create.

Commonwealth v. Clarke

Federal Rule: A suspect must unambiguously invoke the right to counsel or the right to silence. If the suspect invokes their rights, officers could resume questioning if (1) honored the original request, (2) resumes after a long break, and (3) the scope of the questioning is about a different crime. See Mosley

Massachusetts Rule: Has broader protections for subjects. If the waiver is ambiguous, the police must ask a clarifying question to determine the subject’s intent to waive their rights.

If the subject invokes their rights, the request must be “scrupulously honored.”

Originally, Miranda said “If the defendant indicates in any manner, at any time prior or during questioning, that he wishes to remain silent, questioning must cease.” This test changed with Thompkins (silence) and Davis (counsel). In Thompkins, the defendant had remained silent for nearly three hours before saying one incriminating word. However, this was not an unambiguous assertion of rights.

In this case and application of the federal rule, there was an unambiguous assertion of rights. “Do you want to speak?” *Shakes head.* The next question is, did they honor that request? No, they continued questioning right after about the same crime.

As the state rule is more protective of defendants, it is clearly a violation of the state constitution too.

State v. Ortega

As the subject is charged with murder, he asks, “[A]m I supposed to have a lawyer here?” He then received clarification before signing a form waiving his rights before questioning.

The question here is whether this is an invocation of rights or a request for clarifying information. Under the federal rule, this is not an assertion (ambiguous, could have been interpreted either way). The Minnesota court requires the clarifying question approach (see Clarke) and the clarification occurs here.

Examples of ambiguous assertions:

  • Do I need an attorney?
  • Maybe I should talk to a lawyer.
State v. Reed

Reed had discovered a coworker’s body. Varga, Reed’s girlfriend, called the police about the discovery. Varga called an attorney to represent Reed. However, Reed was never informed that Varga had retained a lawyer. After waiving his rights and subsequent interviews, Reed confessed to murdering the coworker.

Under the federal rule, there is no need to inform Reed that an attorney had been retained by a third party because the information does not affect the subject’s personal waiver of rights. See Moran v. Burbine, 475 U.S. 412 (1986). The story is different if the subject has a lawyer previously retained because the subject would not knowingly waive their rights. Most states (not Iowa though) have rejected the Moran approach.

In New Jersey, the court rejected Moran and said the police must inform the subject about an attorney arrival.

Effect of Invoking Miranda Rights

After a subject has properly invoked their Miranda rights, all questioning by the police must cease immediately. Depending on the right invoked, however, the police may resume questioning again. If the right invoked is the right to remain silent, then the police may resume questioning after (1) the officer’s honored the initial request, (2) a significant time has passed, and (3) the resumed questioning is about a different crime. See Mosley. If the right invoked is the right to counsel, the police must cease questioning entirely (and cannot resume) until counsel has arrived or the subject initiates additional questioning. See Edwards v. Arizona, 451 U.S. 477 (1981).

Globe v. State

After a subject invokes their Miranda rights, they must be scrupulously honored. To be scrupulously honored, the court considers whether:

  1. The officer ceased questioning immediately
  2. There was a significant time gap before returning to questioning
  3. Miranda warning were provided at the initial and reinstated questioning
  4. The questioning took place in another location
  5. And whether the reinstated questioning concerns another crime.

No factor is dispositive and the court considers all the factors based on the totality of the circumstances. See Michigan v. Mosley, 423 U.S. 96 (1975); Henry v. State, 574 So. 2d 66 (Fla. 1991).

All but one of the factors here was in effect. Globe had his rights read to him twice, questioning ceased when he invoked the right to remain silent, there was a significant time gap, and the questioning took place in another location. The only difference was that the questioning was regarding the same crime. Four out of Five is sufficient to say the officers scrupulously honored Globe’s invocation.

Benjamin v. State

When a subject invokes the right to counsel, questioning must cease until counsel appears unless the subject knowingly, intelligently, and voluntarily waives their rights and initiates conversation with the officers. See Edwards v. Arizona, 451 U.S. 477 (1981).

Following the Innis rule, it is clear that an interrogation took place. After Benjamin invoked his rights, the officers turned to the mother (who they knew wanted Benjamin to speak), and gave her instructions on what needed to be done for him to speak. She followed these instructions, thus inducing Benjamin’s speech. Additionally, Benjamin was young and immature; his main concern for a capital offense was whether he needed to stay in jail overnight. With this concern in mind, the officers were easily able to lie and allow Benjamin to speak, who believed speaking could send him home.

The dissent argues that the result was no different than if the officers had abruptly stopped asking right away. Additionally, the defendant knew his rights and could knowingly waive them (because he was familiar with the court system).

If officer’s wish to reinstate conversations after the subject has invoked the right to counsel, they can do so after the subject has left custody and wait for at least 14 days. See Maryland v. Shatzer, 559 U.S. 98 (2010).

Comparing Miranda to the Sixth Amendment Right to Counsel

Although the Fifth Amendment does not expressly protect the right to counsel, Miranda required an express warning of the right to counsel to be provided to the accused. This warning is distinct from the right to counsel protected in the Sixth Amendment. The timing is also slightly different. For a Miranda warning, the right must be disclosed to the accused before any custodial interrogation takes place. Conversely, for a Sixth Amendment warning, the right to counsel must be disclosed at the time of charging. The main question then is whether the Miranda warning is also sufficient to inform the accused of their right to counsel under the Sixth Amendment.

Massiah v. United States

Officers placed a radio transmitter in the car of a friend (who was acting with the police) of Massiah. The purpose was to gain additional evidence on Massiah (which the obtained), who previously had an indictment and an attorney appointed.

Although the testimony obtained was not coerced, this was a violation of the Sixth Amendment violation of the right to counsel because the questioning occurred post-indictment.

Escobedo v. Illinois

Escobedo was prevented from consulting with his attorney as he was being interrogated. Another defendant was sent into the interrogation to confront him about the crime.

Again, the Sixth Amendment applied here. This is a pre-indictment questioning that is a violation because the defendant was in a “critical stage.”

Brewer v. Williams

Williams had abducted a young girl in Des Moines, Iowa then disposed of the body on his way to Davenport Iowa. He was arrested and arraigned in Davenport where he had talked to multiple attorneys. Both attorneys told Williams not to talk to the police. As the police were escorting Williams back to Des Moines, the officer discussed a Christian burial for the young girl before the weather hid the body (knowing Williams was religious and had mental issues). After the speech, Williams directs the officer where the body could be found.

The question is whether the police deliberately elicited the statement from Williams. Here, this was deliberate eliciting in violation of the Sixth Amendment. So, his statements are out of evidence. Also consider the example in Nix v. Williams, 467 U.S. 431 (1984) (discussing inevitable discovery allowing the discovered body into evidence).

Rubalcado v. State

After the Sixth Amendment right to counsel has attached, if the police knowingly circumvented that right by using an undisclosed government agent to gather incriminating information, the statements may not be used as evidence.

Attachment occurs automatically once the individual is subject to prosecution (formal charge, arraignment, or indictment). Attachment is crime specific, using double jeopardy standards to determine whether the Sixth Amendment attaches to each individual crime.

Knowing circumvention occurs when at least one state actor knows of the attached right. All state actors have then been imputed knowledge of that right.

An agent of the police occurs when the police provide instructions to an informant, with the intent to gather incriminating information.

Eliciting information occurs when the agent makes an initial express attempt to gather information. Simply being a listening ear is not eliciting information.

A defendant may waive their Sixth Amendment rights by initiating the conversation with the informant.

Remedies, Social Impacts, and Alternatives to Miranda

Case Level Remedies

Missouri v. Seibert

“Whether the Miranda warnings delivered mid-stream could have been effective enough to accomplish their object.” According to the concurrence, if the conduct is calculated to undermine Miranda, then the statement is out.

The purpose of Miranda warning is to inform a defendant of their rights and allow them the capacity to use those rights if they so wish. Here, this method of interrogation was deliberately designed to work around those Miranda rights by coaxing a statement pre-warning, then—as the subject is exhasuted from the first round—give a warning which is likely to be waived.

This case is distinguishable from Oregon v. Elstad, 470 U.S. 298 (1985), where an officer obtained a statement in the home of the subject, almost accidentally, as he attempted to explain to the subject’s mother why he was going to be taken into custody. Later, the subject fully waived the Miranda warning before giving a confession. In that case, the first statement was excluded, but the second statement was admitted.

Here, the questioning occurred in the police department after only a short break, and the questioning was closely related. Everything here was designed to work around the standard, instead of an unintentional good faith mistake about when to give the warning.

The O’conner dissent then argues that Elstad is good law and the majority didn’t follow it.

State v. Smith

After pulling over Jones and failing to produce registration, she was put in the back of the police vehicle while registration was being looked up. Smith was Jones’s passenger and the officers continued to question both Jones and Smith about the ownership of the vehicle and whether there are any illegal materials in the drugs. After Smith confirms drugs are in the car, a search discovers the material. After the discovery, Jones and Smith are read their Miranda rights, transported to the station, and read their rights again before they make a full confession. The question is, is the second confession out? Under Tennessee, this was admissible because they were deemed separate statements. Applying the federal rule, the first statement (1) may not even be in custody, so there is no Miranda violation; (2) this case appears to be more like Elstad instead of Seibert.

DeShields v. State

After DeShields invoked his Miranda rights, he was pressured to talk and confessed to a killing during a robbery gone wrong. He admitted that items from the robbery had been discarded in a ditch. The officers found the items in the ditch that linked DeShields to the murder. His testimony was not admissible (violation of Miranda), but the items discovered were admissible (due to inevitable discovery). Under U.S. v. Patane, 542 U.S. 630 (2004), physical evidence is admitted regardless.

The default remedy for a Miranda violation is that the statement and the “fruit of the poisonous tree” is inadmissible as evidence. However, there are exceptions including (1) Elstad with Seibert limits; (2) impeachment of the defendant using the defendant’s voluntary statements under a coercion test; (3) physical evidence disclosed in a statement as long as the statement was voluntary (see Patane).

Societal Impacts

Saul M. Kassin et. al., Police Interviewing and Interrogation: A Self-Report Survey of Police Practices and Beliefs, 31 Law and Human Behavior 381 (2007). This article discusses past empirical research on the effects of Miranda and compares that information to studies from self-reported officers. Specifically, the research pre-Miranda discovered:

  1. More than 80% of individuals waive their Miranda rights.
  2. Police believe they are better at detecting lies than they actually can.
  3. Normal interrogations are shorter while interrogations producing false confessions are longer.
  4. Individuals generally confess around 55–65%

Based on the research conducted in this article (post-Miranda):

  1. Similar rates for waiver (80%) and whether the police believe they are better at detecting lies than they actually are.
  2. Innocent suspects provide incriminating statements about 25% of the time.
  3. Individuals provide general incriminating statements about 68% of the time.

Essentially, it appears Miranda had a minimal impact on the effectiveness of obtaining confessions through interrogation.


Memorandum from James M. Cole, Deputy Attorney General of the United States: Policy Concerning Electronic Recording of Statements (May 12, 2014). Essentially, if the subject is in a place of detention, where there is recording devices, and the subject hasn’t gone to court yet, then there is a presumption the interview is going to be recorded. If the subject doesn’t want to make a recorded statement, then the recording is not required.

Risks and Exclusion of Mistaken Identification

Risks of Mistaken Identification

Experiencing, Remembering, and Reporting Events

Let’s just say that eyewitness accounts are not as reliable as they might seem. The more complex the event the eyewitness is asked to recall, the more unreliable that testimony becomes (despite the certainty expressed by the witness). The cited article explores what influences how witnesses encode and recall the encoded information in reports. Several of the factors that influence the testimony of eyewitnesses include: whether the perpetrators had a weapon, how many perpetrators there are, whether there are other bystanders, the angle of view towards the perpetrators, how often the witness was asked to recall the information before visiting with police, how many officers the witness talks to, etc.

All of this to say, in simple situations eyewitnesses can be accurate about 90% of the time, average situations drops that percentage to around 75% accuracy, and more complex situations drop accuracy of descriptions below 50%. Thus, it makes sense that eyewitness accounts results in the highest number of wrongful convictions (as compared to other identification methods). Additionally, even if the witness feels like the suspect is not present in the lineup, 60% of people will still make an identification of the criminal.

Exclusion of Identification Evidence (Based on Right to Counsel)

United States v. Wade

After initiation of the criminal proceeding (defined in another article), the defendant has the right to counsel before any corporeal identification is made. If the identification is made in violation of this rule, a suppression of an in-court ID is also excluded unless the state can show that the in-court identification is independent from the lineup procedure.

Since the founding, the purpose of the Sixth Amendment was to allow defendants to be confronted with their accusers. In other words, defendants were to have the opportunity to cross-examine the accuser. The government argues the line-up is simply procedural, much like the process of fingerprinting or record searches (there is no right to counsel in those situations). However, the Court disagrees, saying that the line-up is a critical stage of the investigatory process where the defendant is presented to the accuser without the ability to cross-examine the declaration. The right to counsel is there to protect the defendant from an uncontested accusation. Further, presenting this evidence at trial does nothing to relieve the burden on the defendant, where all he can do is deny the accusation.

On the other hand, the concurring and dissenting opinion argues this analysis reaches too far and prohibits officers from creating line-ups (due to the difficulty in having counsel present for each individual involved in the line-up).

People v. Hickman

All pre-prosecutorial identifications are not a violation of the Sixth Amendment (the right to counsel has not attached yet).

After Wade was decided, this court handed down People v. Anderson which extended the right to counsel to any situation where the suspect is being identified (regardless of whether prosecution has begun). This rule was confusing to the court, resulting in other cases trying to define how sufficient the evidence was before the right was applied. See People v. Dixon (requiring more than a mere suspicion, if that exists, then the right applies) and People v. Turner (requiring very strong evidence for the right to apply).

The dissent argues overruling Anderson leaves the suspect with no protection during the identification stage of the investigatory process. Essentially, as long as the suspect has not been charged or brought to a tribunal, the suspect is subject to the whims of the investigatory officer who may be influencing a witness to identify the suspect as the perpetrator.

Due to this timing, most identification procedures are not a violation of the right to counsel. Additionally, there is no right to counsel for a photo array United States v. Ash, U.S. (1973), or showsups.

Exclusion of Identification Evidence (Based on Due Process)

State v. Henderson
Federal rule

Consider Mason v. Brathwaite, 432, U.S. 98 (1977), which provides a two step analysis.

  1. Whether the procedure of identification is impermissibly suggestive.
  2. Whether the objections procedure resulted in a “very substantial likelihood of irreparable misidentification.” In other words, is the identification reliable?

To test reliability, the Court relies on five factors outlined in Neil v. Biggers, 409 U.S. 188 (1972):

  1. What opportunity did the witness have to view the criminal at the time of the crime
  2. How attentive was the witness
  3. Is the description of the criminal accurate as provided by the witness
  4. How certain the witness is of the identification
  5. The gap between the crime and the identification procedure
State test

Taken together, the court should consider the following non exhaustive systematic and estimator variables.

Systematic variables (identification procedure):

  • Blind administration
  • Pre-identification instructions
  • Lineup construction
  • Feedback
  • Recording confidence
  • Multiple viewings
  • Showups
  • Private Actors
  • Other identifications made

Estimator variables (witness reliability):

  • Stress
  • Weapon focus
  • Duration
  • Distance and lighting
  • Witness characteristics
  • Characteristics of perpetrator
  • Memory decay
  • Race-bias

Recognizing the issues with eyewitness testimony, the state is averse to making it easier to admit any testimony that may have reliability issues. For this reason, the state wishes to utilize a test designed to correct the errors and gaps left by the federal test. To do so, they will test (1) whether the identification was made in error of any systematic (procedural) influences made by the officers and (2) whether the witness’s identification is reliable based on estimator variables. (Both these factors are outlined above).

Applying those factors in this case, the court is sure that the systematic variables resulted in suggestive behavior (officers telling the witness to make a decision). However, the district court still needs to review the estimator variables, so the case is remanded for an expansive hearing addressing those factors.


Here are all the options for eyewitness identification:

  • Classic Lineup: All the suspects are gathered in the same room that meet the same description. This isn’t used very often anymore because of the cost of gathering everyone.
  • Photo Array: Using a group of photos who match the description. This is the most common method of identification.
  • Single Photo “Showup”: The officers show only one suspect to the witness asking whether there is an identification (this is not used often because it is suggestive).
  • Non-Photo “Showup”: Right after the crime, the suspect is taken directly to the suspect for identification.
  • In-Court Identification: Taking the suspect to court and identification occurs for the first time there. This does not happen often because it is highly suggestive.
State v. Ramirez

Three victims were robbed outside of a Pizza Hut by individuals wielding a pipe (“pipeman”) and a gun (“gunman”). After the robbery, the victims described the assailants as young male Mexicans dressed with blue jeans and blue sweatshirt. Ramirez is an Apache Indian who is identified during a showup 45 minutes later where Ramirez was handcuffed to a fence surrounded by officers. No other individuals were shown to the victims at the time of identification and only one victim made a solid identification.

Under the federal standard, this is very suggestive. Considering the Neil factors, the Utah Supreme Court determined that the evidence was sufficiently reliable to be admitted (even though the evidence are pretty close).

State v. Masaniai

Three victims were robbed by two assailants, a Samoan and a Filipino. The Samoan was identified as about 5’8″ and around 180 pounds with a short afro hairstyle. Masaniai is about 5’9″ and 160 pounds with a short afro hairstyle. During the lineup, there were seven participants where those without the afro were provided with a wig and those who didn’t have mustaches were given fake mustaches. The lineup occurred a few weeks after.

Here, this is not suggestive, but even if it was, the Neil factors show that the identification is sufficiently reliable. Both this case and Ramirez indicate that the rule if quite police friendly.

People v. Kurylczyk

After a bank robbery and a tip off, the victims were given a photo array nearly two weeks later. In the pictures, the defendant was the only one dressed in the clothes that fit the description.

Once again, the court here determined that this case was not suggestive, and even if it was, the factors were sufficiently reliable. Again admission friendly.

Other Remedies

Jury Instructions
State v. Allen

Kovacs is a white male who was harassed by two young African Americans. Running to a nearby gas station, Kovacs called the police and gave a description of the men’s height, weight, race, and clothing. No facial features were mentioned. After the officers approached two African American men near the scene of the event, one fled and the other (Allen) was taken into custody. Kovacs was asked if Allen was involved in the event and Kovacs said yes.

At trial, the defendant asked for a jury instruction regarding cross-racial identification (individuals have difficulty identifying specific individuals from another race). This instructions was denied and Allen was convicted.

Some states require the instruction; some give the court discretion, while others deny the instruction because there are other protections during trial. This court adopts the third approach. Those other protections include cross examination of the witness to test credibility, questioning of expert witnesses to provide information, and closing arguments again discussing reliability.

The concurrence agrees the instruction was not required in this case, but believes it should be required when the witness is making an identification based on facial features.

Finally, the dissent believes the instruction should be required. The three protections listed by the majority are minimal, especially when you consider the authority and inability of the witnesses to provide the information. A judge is much more authoritative and the instruction is quite useful (when considering how the other protections are quite unhelpful).

Most jurisdictions (about 30) follow this approach and allow the trial judge the discretion to determine whether the jury instruction (called a Telfaire instruction) should be given.

Expert Testimony
Commonwealth v. Walker

This is another late night robbery where the victims identify the defendant from a photo array. At trial, the defense filed a motion for liming to present the testimony of an expert discussing the imperfections of human memory.

The majority of states (30) allow this to be admitted up to the discretion of the court. A minority of the states (10) do not allow this type of evidence at all.

Consider People v. LeGrand, 867 N.E.2d 374 (N.Y. 2007) (an expert may be necessary if the identification is central and the only piece of evidence involved).

Sixth Amendment Right to Counsel

Types of Charges that Require Counsel

Consider the two significant cases of Powell v. Alabama and Betts v. Brady. These cases begin to outline when defense counsel is required to be provided to the defendant.

In Powell, 287 U.S. 45 (1932), nine black youth were convicted of raping two white women and sentenced to death. Their trial was anything but fair. Counsel was technically appointed, but there was no official lead counsel until the day before the trial (which lasted only a day). On visiting the Supreme Court, having a lead counsel was required considering the nature of the crime and sentence the defendants were facing.

In Betts, 316 U.S. 455 (1942), the Court determined that special circumstances did not consider the financial state of the defendant, but instead considered the nature of the crime. Counsel was only required to be appointed if the defendant was charged for rape or murder. This holding was altered in Gideon v. Wainwright discussed below.

Additionally, in Johnson v. Zerbst, U.S. (1938), the right to counsel was constitutionally mandated in federal court.

Gideon v. Wainwright – Pool Room Burglary

A right to counsel is a fundamental right protected by the Sixth Amendment and incorporated against the states by the Fourteenth Amendment. As such, counsel is to be provided to those who cannot afford one, regardless of the charged crime.

In Betts, the Court determined that the right to counsel was not a fundamental right. However, here, the Court disagrees and overturns Betts. Because the right to counsel is a fundamental right, the failure to deny Gideon that right after he showed the need was unconstitutional. A lawyer is so critical because it is necessary for a fair trial (that way a poor person has the same advantage as the state).

Although the Harlan concurrence agrees the lawyer is necessary, there was no need to overturn Betts. Instead, the definition of “special circumstances” should be redefined based on how substantial the prison sentence is. Here, the prison sentence was five years qualifying as a special circumstance.

In Re Advisory Opinion to the Governor

The governor of Rhode Island asked the court whether a right to counsel was required when the defendant was charged with a crime that does may not result in incarceration. In response, no. Essentially, the right to counsel extends to all criminal cases, felony or misdemeanor, but is not extended to crimes that does not result in incarceration. This is because incarceration is a removal of fundamental rights. For instance, there is no right to counsel for taking a breathalyzer test, which may result in losing a driver’s license; although a driver’s license is important, there is no fundamental right to drive.

However, the dissent argues the federal rule adopted here is impractical. For instance, the rule requires the right to counsel at the beginning of the litigation, so the court is required to guess whether jail time is going to occur at the end of trial.

Alabama v. Shelton
  1. Counsel must be provided in the event the defendant is to face “actual incarceration.”
    • Counsel must be appointed (in the absence of a waiver) to defendants if they have been given a suspended sentence.

Shelton was charged and convicted of third-degree assault after unsuccessfully representing himself. After appealing and losing again (even after being warned of the issues with self-representation), Shelton was provided a sentence of 30 days of jail. Immediately after, this sentence was suspended and conditioned on serving two years unsupervised probation and paying certain fees.

In the event of a breach of the probationary conditions, the defendant will be subject to incarceration based on the actual crime, not based on the breach of probation. So, if he is imprisoned for the crime without having provided a waiver of counsel, this is a blatant violation of court decisions in Argersinger v. Hamlin and Scott v. Illinois.

The dissent however argues that everything is hypothetical until the defendant has actually breached the probationary conditions, something that may never happen. So, this is an expensive and impractical burden on the state for quite minor crimes. See Scott.

Proceedings Requiring Counsel

Rothgery v. Gillespie County, Texas

Prosecution commences when the machinery of prosecution begins. This includes a formal charge, preliminary hearing, indictment, information, or arraignment.

After proceedings have begun, the attorney is only required at the critical stage of the proceedings. These include: (1) post-indictment lineup, (2) post-indictment questioning, (3) preliminary hearings, (4) sentencing. However, critical stage does not include: (1) taking of DNA samples, (2) a photo array, (3) post-arrest probable cause hearings, (3) first appeal after the trial, (3) probation revocation hearings.

Rothgery was arrested of having a firearm. Erroneously believing he had been a felon (a document was improperly recorded), Rothgery was taken to a magistrate for proper charging and probable cause because the officer did not have a warrant. This was called a 15.17 hearing. At the hearing, Rothgery requested counsel, but he waived it when he learned about the delay in posting bail. Later, he requested an attorney several times, but the attorney was not officially provided to the defendant until he had spent several weeks in jail and had been indicted.

The state argued that the prosecution required the prosecutor to make a showing of commitment to begin prosecution. Here, however, the Court disagrees. According to the rule, prosecution begins (attachment) at the 15.17 hearing because he had been accused and bond has been set. In other words, the machinery of prosecution began, so the right to counsel also began there.

People v. Larsen

Larsen was charged with murder and claimed not guilty by reason of insanity. So, the court ordered a psychiatrist to develop an opinion about whether Larsen was insane at the time of the crime. Larsen’s attorney was not informed of the appointment (so, he was not present during the meeting) and the report was used against Larsen at trial.

The question is whether the evaluation is a critical stage of the litigation requiring counsel to be present. Typically, courts determine that this is not a critical stage unless this is a capital case.

Right to Counsel Sources

Here is the different sources of a right to counsel

  1. Fifth Amendment right to Silence also includes the right to counsel with the purpose to preserve the right to remain silent
  2. Due Process and Equal Protections for appeal preservers the right to counsel.
  3. A statute can provide a protection of the right to counsel that is greater than the Sixth Amendment right
  4. Finally, a Sixth Amendment right to counsel, but there are three requirements
    1. The charges must be serious enough to qualify for the right;
    2. The prosecution must have commenced
    3. And the litigation must be in a critical stage.

The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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