Untitled Flashcards Set

Criminal Procedure Outline
January - April 2025 

Fourth Amendment

Fourth amendment - Searches 

• The fourth amendment of the US constitution protects individuals from unreasonable searches and seizures.  (Can be violated by physical trespass or violating a person’s expectation of privacy).

• Searches under the fourth amendment occur when the government intrudes upon a person’s reasonable expectation of privacy.  This expectation is not absolute, it is based on societal norms and legal precedent. 

• Searches must be authorized by a warrant.  This requires a neutral and detached magistrate to determine probable cause. However, there are exceptions to the warrant requirement such as consent, probable cause, and exigent circumstances. 

• Evidence that is obtained in violation of the fourth amendment may be suppressed if the government cannot demonstrate an exception. 

• Exception of privacy test: 

  • Part one: the individual has exhibited actual (subjective) expectation of privacy. 

  • Part two: the expectation is one that society is prepared to recognize as reasonable (objective). 

• The reasonable expectation of privacy doctrine holds that an individual has a right to privacy in places where they have a reasonable expectation of privacy (such as home, cars, phone booths). Katz v. United States. 

• United States v. Jones - Involved the use of GPS tracking devices on a suspect's car without a warrant and determined that it would violate the suspects reasonable expectation of privacy (trespass). 

• Curtilage is the area to which extends  the intimate sanctity of a man’s home and the privacies of life.  (Porches, areas connected to the home, etc.). 

• Law enforcement cannot use technology (such as thermal images) to obtain information from the home without a warrant, even if the information is obtained from the exterior of the home (Kyllo v. United States). 

• To obtain cell phone location records, which reveal a person’s historical movements and are considered deeply private and personal, require a warrant or it’s a violation of the fourth amendment. 

• Generally, a warrant is required before drawing blood for a DUI test, even in cases where the driver refuses a breathalyzer. 

NOT searches under the fourth amendment: 

• Open fields doctrine is a long-standing exception to the fourth amendment’s warrant requirement.  The fourth amendment does NOT apply to open fields (woods and marshes) as long as it's not curtilage (Oliver v. United States).

• The Supreme Court held that warrantless aerial observations of a fenced-in backyard were not a search under the fourth amendment. (Observation was not unreasonable because the backyard was not a place that had a reasonable expectation of privacy).  No reasonable expectation of privacy from aerial view and no physical intrusion on curtilage. 

• Warrantless aerial surveillance (plane or helicopter) did not constitute a search because observation was readily available to the public because anyone could have flown over the property in a helicopter (Florida v. Riley). 

• Searches of trash that is left outside for collection is considered abandoned property, having no reasonable expectation of privacy because they have relinquished control over it and NO warrant is needed to search it. 

• The Fourth amendment does not protect individuals from observation in public places.  The government may observe and monitor individuals in public places without a warrant. (street, air, and other public vantage points). 

• The government CAN track a vehicle's movements in a public place without a warrant (US v. Knotts).

• Phone numbers dialed are not private because they are already being transmitted to the phone company (not a fourth amendment search) (Smith v. Maryland). 

Dog Sniffing and the fourth amendment

• The use of drug sniffing dogs (the sniff test) does not constitute a search under the fourth amendment because a sniff test does not reveal any private information that a suspect would have a reasonable expectation of privacy.   

• The use of drug sniffing dogs in public spaces are generally considered to be reasonable (bus stations, Airport, etc.).  However, the use of drug sniffing dogs in private areas (homes or cars) MAY be considered unreasonable without a warrant or probable cause. 

• The use of sniff tests during a lawful traffic stop do not constitute a search under the fourth amendment (Illinois v. Caballes) 

  • Traffic stops that are extended for the purpose of the dog sniff DOES constitute a search and require a reasonable suspicion to extend the traffic stop (Rodriguez v. United States) 

• Drug-sniffing dogs used on curtilage of a private residence without a warrant is a search under the fourth amendment (Fl v. Jardines) 

• Drug-sniffing dogs that are reliably trained and certified is probable cause for a search. The dog's alert must be specific to the location that is being searched. (FL v. Harris)

Warrant Requirements

• A warrant is a written order issued by a properly authorized judge or magistrate, in the name of the state in which that judge/magistrate sits, that directs law enforcement officers to search and seize any tangible property that is evidence of a crime, an instrumentality of a crime, contraband or the fruit of a crime. 

• Warrants require probable cause, specificity, oath or affirmation, and neutral and detached magistrate. 

  • Probable cause = An application for a warrant must establish probable cause to believe that the items to be searched are located at the place to be searched.  This means that the application must present evidence that the items are likely to be found there.  This evidence must be based on eyewitness accounts, physical evidence, or other information that would lead a reasonable person to believe that the items are at the location. 

  • Specificity = the application must be specific. There must be a description of the place to be searched with particularity, and it must identify the items to be seized.  If the items are not described with specificity, the warrant may be deemed overbroad and the evidence obtained pursuant to it may be suppressed. 

  • Oath or Affirmation = THe application must be supported by an oath or affirmation from the affiant, who is the person who is requesting the warrant.  The oath or affirmation assures the issuing judge/magistrate that the information in the application is truthful.  The oath or affirmation is crucial for establishing probable cause and ensuring that the warrant is based on reliable information. 

  • Neutral and detached magistrate = The application must be presented to a neutral and detached magistrate, who is a judicial officer authorized to issue warrants.  The magistrate must review the application and make an independent determination of whether probable cause exists.  If the magistrate finds probable cause, they will issue the warrant authorizing the search. 

• Warrants MUST be in WRITING, must particularly describe the place to be searched and things to be seized, issued by a neutral and detached magistrate after the magistrate determines probable cause, and must be signed by the issuing magistrate.  The issuing magistrate’s signature’s purpose is to prevent warrants from being forged or altered. 

• Reasonableness and warrants 

  • Presumptively reasonable is when the defendant has the burden of challenging the legality of the search.  And Presumptively unreasonable is when the government must demonstrate legality. 

Warrant requirement exceptions

• Search incident to arrest 

  • Law enforcement may conduct a warrantless search of a person and the area within their immediate control during a lawful arrest. Probable cause is needed.  

    • A lawful arrest must occur before the search can be conducted.  The arrest believes the legal basis for the search. 

    • The search is limited to the arrestee’s person and the area within their immediate control, often called the “grabbing area”. 

    • The search must be contemporaneous (occurs the same period of time) with the arrest, though some delay is allowed if justified by the circumstances. 

    • There are limitations to certain items like cell phones, that will require a warrant due to their vast storage of personal information.  Vehicle searches are restricted to specific circumstances. 

    • Law enforcement can search a vehicle incident to arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it's reasonable to believe that the vehicle contains evidence of the offense of arrest.  If justification is absent, a search of an arrestee’s vehicle will be unreasonable unless law enforcement obtains a warrant or shows that another exception to the warrant requirement applies. 

• Probation and Parole Searches 

  • Individuals that are on probation or parole have a reduced expectation of privacy, allowing for searches based on reasonable suspicion or as a condition of their release. 

• Consent 

  • Consent is when an individual voluntarily consents (gives permission) waives the right to the fourth amendment protection, which allows law enforcement to search without a warrant. The individual must have authority over the area to be searched in order to give consent.  (property owners, tenants, individuals with shared access to the space).  

  • The search must stay within the bounds of the consent given. 

  • Consent to a search may be withdrawn at any time during the search and the searcher must stop, unless there is another legal basis to continue (probable cause or warrant). 

  • Totality of the circumstances will be examined to determine the voluntariness of the consent that was given. 

    • Consent can be implied and expressed.

    • A person’s right to privacy in their home cannot be overridden by another individual's consent. 

• Special needs searches 

  • These exceptions apply in situations where the government's interests outweigh an individual’s privacy concerns, such as border searches, school searches and drug testing. 

• Plain view

  • Plain view is when an officer lawfully observes contraband or evidence in plain view, which allows the officer to seize it without a warrant. 

    • The law enforcement officer must be in a location where they have a legal right to be (public place or private area with consent or a warrant). 

    • The law enforcement officer must have a lawful right to access the object. This means that the officer cannot violate the fourth amendment to reach the item. 

    • The incriminating nature of the item must be obvious without further manipulation or investigation by the officer.  

    • The plain view doctrine has been extended to other senses, such as “plain feel” during lawful pat-downs, and potentially “plain smell” for certain contraband. 

• Exigent circumstances

  • Exigent circumstances are emergency situations where delaying a search could lead to danger, which allows law enforcement to search without a warrant. 

• Automobile exception

  • The automobile exception allows law enforcement to conduct a warrantless search of an automobile during a lawful stop, where there is probable cause. Established because of the mobility of automobiles. 

    • Officers must have probable cause that the vehicle contains evidence of a crime or contraband.  Higher standard than reasonable suspicion but less than what is required for a warrant. 

    • The search of a vehicle can extend to any part of the vehicle where the suspected evidence or contraband might be found, including containers.  However, the search must be limited to areas that could reasonably contain the items that are sought. 

    • The exception does not apply to vehicles that are parked within curtilage of a home without additional circumstances.  The mobility of a vehicle and its location at the time of the search are important factors. 

• Administrative exceptions

  • Allows government officials to conduct searches without a warrant when it’s necessary to regulate a particular industry.  This exception ensures public safety, consumer protection, and regulatory compliance. 

    • Commercial trucking inspections = common inspections to verify weight limits, safety standards, and transportation regulations, including examining cargo vehicles, and driver credentials. 

    • Food processing plants= inspections ensure adherence to hygiene standards, food safety protocols, and proper labeling, reviewing records, examining equipment, and sampling food products. 

    • Utilities in private homes = this exception allows access for inspecting or repairing utility infrastructures, such as gas and electric meters, pipes, or wiring to ensure safety and reliability. 

Special needs search types

• Inventory Searches

  • Inventory searches are administrative procedures conducted by law enforcement when impounding vehicles or taking possession of an individual’s property.  These searches serve legitimate purposes such as protecting the owner’s property, safeguarding police from claims of theft, and identifying potential dangers.  

    • For inventory searches to be valid it must be conducted according to the standardized procedure that limits officer discretion.  The search cannot be a pretext for an investigative search, and its scope must be reasonably related to its administrative purpose. 

    • Law enforcement are authorized to conduct an inventory search when individuals are booked into a jail of the individuals belongings. 

• Protective sweeps

  • Law enforcement is authorized to secure an arrest scene by conducting a quick and timely sweep of the area where the arrest took place to ensure officer safety from potential hidden individuals.  

  • Two types of protective sweeps.

    • Cursory visual inspection of spaces immediately adjoining the place of arrest, which requires no probable cause or reasonable suspicion. This is done for Officer safety, which is the primary justification for protective sweeps to ensure the safety of law enforcement officers during arrests in potentially dangerous situations, but are quick and focused.

    • Extensive sweeps are more extensive sweeps based on articulable facts supporting a reasonable belief that the area harbors an individual posing a danger.  

• Searches at schools

  • School officials must have reasonable suspicion that a student possesses something illegal or dangerous. The suspicion must be based on individualized facts about a particular student, not just general concerns about the school.  The search MUST be initiated by school officials and NOT by law enforcement officers. 

    • Trust testing is allowed for students at school, including random testing for extracurricular activities, including sports.  

    • Strip searches are NOT generally allowed without a heightened showing of “reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts.

• Searches at the border

  • At the border, customs officials have more than merely an investigative law enforcement role.  They are charged, along with immigration officials, with protecting this nation from entrants who may bring anything harmful into this country, whether that be communicable diseases, narcotics, or explosives. 

    • Includes vehicles, individuals, mail that can be stopped at the border to: 

      • Make warrantless searches of its occupants and content (including taking a part the vehicle)

      • Search mail by opening it to inspect.

      • Ensure individuals at the border are lawfully entering the country. 

      • Body cavity searches or detentions require at least reasonable suspicion. 

• Searches at checkpoints

  • Can stop vehicles to ensure that drivers are not driving while intoxicated, but cannot stop vehicles solely for the purpose of officers looking into the cars to see whether there are visible illegal items in the car. 

Executing warrants

• Knock and announce requirement requires law enforcement officers to knock, and then announce their presence and purpose before entering a home.  If an officer fails to comply with this requirement, the evidence obtained may be suppressed. 

• The scope of search warrants is limited to the specific items or areas described in the warrant. Law enforcement cannot exceed the scope of a warrant.  

  • Being present while another individual is searched, does not mean that you get searched but they can detain you until the search ends. 

• A warrant must be executed in the daytime and within a reasonable amount of time. This time limit is not defined precisely, but is generally understood to be a relatively short time frame.  Warrants should be executed promptly to ensure that the items or individuals being searched are still present. 

• Law enforcement may execute a warrant without knocking and announcing their presence if they have a reasonable belief that in doing so they would endanger themselves or others (also possibility of destruction of evidence).  This is known as the exigent circumstances exception. 

• No knock warrants allow police officers to enter a home without announcing their presence. 

Fourth Amendment - Seizure 

• A fourth amendment seizure is a government act that significantly interferes with an individual's possessory interest in a tangible object or a person. This interference must be meaningful and substantial, indicating that the government has taken control or dominion over the object or person.  

• The fourth amendment protects individuals from unreasonable seizures requiring law enforcement to have a legitimate basis for seizing property or individuals. (Limiting basis). 

Types of seizures 

•  Stops are a brief detention of an individual for a specific purpose (often a traffic violation).

• Custodial interrogation is when an individual that is in police custody is interrogated  by law enforcement about their involvement in a crime.  (triggers 5th amendment)

• Arrest is the taking of a person into custody based on probable cause of committing a crime. (public places do not require a warrant, just probable cause and homes require a warrant). 

Warrants for arrest

• Officers do not need a warrant to make an arrest in a public place as long as they have probable cause to believe that the suspect has committed a crime. 

  • The probable cause standard requires law enforcement to have a higher standard than reasonable suspicion but lower than the evidence needed for a conviction. 

• Limitations, the WATSON rule applies to public places.  Arrests made inside a home generally still require a warrant, absent exigent circumstances or consent. 

• The fourth amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine.  

Test to determine a seizure

• The test to determine a seizure under the fourth amendment is the “free to leave” test, which states that a person is seized when a reasonable person would NOT feel free to leave or decline the officer’s request. (U.S. v. Mendenhall). This is objective and not subjective. 

Stop and Frisk (Known as the Terry Stop) (Terry v. Ohio)

• Stop and Frisks are TWO separate things (stops are stops and frisks are frisks, they are often together but not always). Look out for this in essays. 

• Stop and frisks are known as terry stops (KNOW this name)

• Police can stop an individual based on reasonable suspicion of criminal activity, which is a lower standard than probable cause. 

• The stop must be brief and limited in scope to the purpose of confirming or dispelling the officer’s suspicions. 

• Officers may conduct a limited pat-down for weapons if they reasonably believe  the person is armed and dangerous (cannot go in pockets, it would be beyond the scope of a frisk). 

• Courts balance the need for law enforcement against individuals' right to personal security and privacy. 

Police actions during a stop

• Identification requests are allowed during Terry stops, where law enforcement asks for the individual's name, not ask questions or provide documents. . 

  • Must have reasonable suspicion, stay within the scope (only requires individuals to state their name, not provide documentation or answer other questions). 

• Reasonable suspicion

  • Officers can stop a vehicle presuming that the owner of the vehicle is the one driving the vehicle. (Kansas v. Glover)

  • Seemingly innocent facts can collectively amount to reasonable suspicion. (U.S. v. Sokolow)

  • Anonymous tips alone are insufficient for reasonable suspicion, law enforcement officers would need corroboration or predictive information to establish reliability. (FLorida v. J.L.)

  • Anonymous 911 calls that report dangerous driving could provide reasonable suspicion for a traffic stop, considering the calls contemporaneous nature and apparent eyewitness basis. 

Exceptions to Fourth Amendment

• Exigent circumstances

  • Exigent circumstances refer to emergency situations that justify a warrantless search or seizure. This exception recognizes that in a certain urgent situation, the need for immediate action outweighs the warrant requirement. 

• Hot pursuit

  • Allows law enforcement in “hot pursuit” of a fleeing suspect (felony) to enter premises without a warrant to prevent the destruction of evidence or escape of the suspect. (Hayden case)

• Emergency Aid 

  • Law enforcement may enter without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. 

• Preserving of evidence 

  • Warrantless entry may be justified if law enforcement have probable cause to believe evidence is being or will be destroyed. 

• Ongoing crime

  • Law enforcement may enter without a warrant if they have probable cause to believe that a crime is in progress and immediate action is necessary. 

• Law enforcement cannot go inside a home unless they have a warrant to enter the home. 

• If evidence was discovered in a house, and any non-owners were arrested as a result, they cannot move to suppress any evidence found because they do not own the house.  (Only the owner, co-owner are allowed to move to suppress evidence)

Spectrum of evidence of guilt: 

• Beyond a reasonable doubt is needed for a conviction. 

• Probable cause is somewhere in between. 

Probable cause Standard

• Probable cause standard is incapable of precise definition or quantification in the percentage because it deals with probabilities and depends on the totality of the circumstances. 

• The probable cause standard is a legal standard for justifying a search or seizure.  Requirements are that there is a fair probability that evidence of a crime will be found in a particular location.  Probable cause is an objective standard, based on the totality of the circumstances, that requires more than a mere suspicion. 

• Probable cause is an objective standard. Law enforcement’s own beliefs are irrelevant don’t matter when determining probable cause. “Reasonable officers would believe. . .”  Law enforcement’s experience and training CAN be considered when determining probable cause, however it CANNOT be the sole basis for probable cause.  

• Reasonable suspicion is needed for a stop, which is particularized and an objective basis for suspecting the particular person stopped of breaking the law. 

• Law enforcement have probable cause to search a vehicle when they have a reasonable belief that a passenger in the vehicle has committed a crime, even if the passenger is not the owner of the vehicle. 

• Law enforcement officers are not required to be legal experts, and may misinterpret the law or make an error in judgment.  If this error leads to an illegal search or seizure, the evidence may be excluded.  However, the good faith exception allows evidence obtained in reliance on a warrant later found to be invalid.  This exception applies if the officer acted in GOOD FAITH and reasonably believed the warrant was valid. 

Government Violations and Remedies

The exclusionary rule

• Violations occur when the government violates your fourth amendment right against unreasonable searches and seizures, it can have serious consequences. 

• A potential remedy is the exclusionary rule, which prevents illegally obtained evidence from being used against you in court. 

• The goal of the exclusionary rule is to deter police misconduct by removing the incentive to violate constitutional rights. 

• Cases that impacted the exclusionary rule

  • Weeks v. US (1914) = established the exclusionary rule that required federal courts to exclude evidence obtained in violation of the fourth amendment.  

  • Mapp v. Ohio (1961) = applied the exclusionary rule to state courts, mandating that evidence obtained through unconstitutional searches and seizures cannot be used in state criminal prosecutions.  (expanded the reach of the exclusionary rule nationwide)

  • Hudson v. Michigan = established that it is not an absolute rule, and certain exceptions where other considerations may take precedence. 

• Exceptions to the exclusionary rule:

  • “Good Faith” exception

    • “Good Faith exception to the exclusionary rule”  is when the exclusionary rule DOES NOT APPLY if the police conduct was the result of isolated negligence, rather than deliberate reckless or grossly negligent misconduct. 

    • Another exception to the exclusionary rule is when police officers conduct a search in a reasonable reliance on binding appellate court precedent, even if that precedent is later overturned.   

  • Independent source doctrine

    • Evidence obtained through an independent source that is not tainted by the illegal search is admissible.  However, if the prosecution (burden of proof falls on the prosecutor) can show that the illegally obtained evidence was also discovered through an independent, legal source, the exclusionary rule does not apply. 

  • Inevitable discovery doctrine 

    • If the evidence would have inevitably been found through lawful means, it is admissible, even if it was initially discovered illegally. 

    • Under this exception, evidence may be admissible if the prosecution can demonstrate that the information would have been discovered through lawful means, independent of the constitutional violation. 

  • Inadequate causal-connection attenuation of the taint doctrine

    • If the connection between the illegal search and the evidence is too attenuated (reduced in effect or value), the evidence may be admissible. 

    • Test for attenuation doctrine

      • Temporal proximity = the courts will look at the amount of time that has elapsed between the illegal conduct and the obtaining of the evidence.  The shorter the time, the more likely the taint of the illegal conduct will be considered to remain. 

      • Presence of intervening circumstances is considered whether there were any events or actions that occurred between the illegal conduct and the discovery of evidence that could have broken the causal link. 

      • The courts examine the purpose and flagrancy of the official misconduct, which is examination of the nature and severity of the illegal conduct.  The more egregious the misconduct, the more likely the taint of the illegal conduct will be considered to remain. 

• Suppression hearings 

  • Suppression hearings are crucial to the legal process when challenging the admissibility of evidence.  They allow defendants to argue that evidence was obtained in violation of their constitutional rights and should be excluded from trial. 

  • The defense has the burden of proving the grounds for suppression, such as illegal search or seizure.  The prosecution then has the opportunity to respond and justify the lawfulness of the evidence gathering. 

  • Suppression hearings can have a significant impact on the outcome of a case.  If the court agrees that evidence was obtained improperly, it must be excluded, potentially weakening the prosecution's case. 

Who can object and raise the exclusionary rule

• The ability to object to the introduction of evidence and raise the exclusionary rule is not unlimited.  According to the Supreme court rulings, only individuals with a legitimate expectation of privacy in the place searched or item seized have standing to challenge a fourth amendment violation. 

  • Overnight guests have a legitimate expectation of privacy, but shorter-term business visitors do not and therefore cannot object to a search of the premises (Minnesota v. carter)

  • Passengers in a vehicle do not have a legitimate expectation of privacy in the areas of the car that are accessible to other occupants and therefore lack standing to object to a search of those areas. 

Fourth Amendment and Automobiles

• Searches incident to arrest

  • Law enforcement may conduct a search of a vehicle incident to a LAWFUL arrest.  If the officer has probable cause to arrest a person, they may search the area within the person's immediate control, including the passenger compartment of the vehicle. 

• Automobile exception

  • Allows police officers to search a vehicle (the entire vehicle) without a warrant if they have probable cause to believe that the vehicle contains evidence of a crime including searches of containers in the car AND locked trunks, glove compartments that may contain evidence. 

• Protective sweeps

  • Police officers may also conduct a “protective sweep” of a vehicle if they have reasonable belief that the vehicle contains a person who poses a threat to their safety.  But only those within grasp of occupants or that can contain a weapon. 

• Border searches

  • Can take an entire vehicle apart to search it.

• Seizure of driver and passenger

  • Both the driver and passenger are seized when a vehicle is stopped by law enforcement, even if for a traffic violation. 

• exclusionary rule

  • Both driver and passenger have standing to move to suppress evidence derived from an encounter that started from a vehicle stop. 

• Plain view

  • If evidence of crimes is in plain view, after a lawful stop or observing while on the street, then evidence is admissible. 

Raising an objection

• The defendant, as the person who’s fourth amendment rights were violated, has the automatic standing to challenge the search or seizure. 

• Third-parties who were not the targets of the unlawful police action generally cannot object to the use of this evidence. 

  • There are limited exceptions where a third party may have “automatic standing” or be able to establish legitimate expectation of privacy, but the burden is on the party seeking to suppress the evidence to demonstrate their right to do so. 

What is excluded? 

• Fruit of the poisonous tree 

  • The exclusionary rule prevents evidence from being used in court if it was obtained illegally.  This includes physical items seized during an illegal search. 

  • The exclusionary rule also applies to witness statements based on knowledge gained during an illegal search. 

  • Exclusionary rule also applies to evidence indirectly linked to the illegal search, such as evidence derived from the initial illegal evidence. 

  • This rule only applies until the connection between illegal search and the evidence becomes too weak to be considered a direct result of the illegal action. 

Fifth Amendment

Police interrogation and the privilege against self-incrimination: 

Due process and the requirement for voluntariness

• The fifth amendment protects citizens from self-incrimination, double jeopardy and ensures due process. 

• Voluntariness Doctrine emerged from common law traditions and was later incorporated into constitutional jurisprudence through the due process clause. 

  •  Courts consider the totality of circumstances, including the length of detention, deprivation of food or sleep, threats or promises made, and the suspects physical and mental condition when determining voluntariness.  

  • Length of interrogation, deprivation of needs, and threats of force will be examined to determine voluntariness. 

• Brown v. Mississippi (1936) was a turning point in the Supreme court’s approach to coerced confessions. 

  • Established that the use of coerced confessions in state courts violated the 14th amendment, which marked the beginning of federal oversight of state criminal procedures. 

  • Started to develop approaches to determining voluntariness, considering psychological coercion as well as physical abuse. 

• The process of determining whether a confession is voluntary involves complex analysis of various factors and circumstances surrounding the interrogation. Three cases have shaped this area of law:

  • Arizona v. Fulminate (1991) = held that some confessions could be subject to harmless error analysis.  Allowed some coerced confessions to be deemed harmless if other evidence was sufficient. 

  • Spano v. New York (1959) = Emphasized the importance of considering the totality of the circumstances, including the suspect’s personal characteristics and the methods employed by the police. (broadened factors considered in voluntariness analysis)

Fifth amendment limits on custodial interrogation (Miranda Warnings)

• Miranda v. Arizona (1966), established the now-famous “Miranda warnings” that require law enforcement to inform suspects of their rights BEFORE custodial interrogation.  

• Requirements for Miranda to apply

  • Custody determination is when courts consider whether a reasonable person would feel free to leave, taking into account factors such as location, duration,  degree of restraint, and age. 

  • Interrogation includes direct questioning and practices that are reasonably likely to elicit an incriminating response. 

  • Miranda DOES NOT apply to spontaneous statements, booking statements, jailhouse informants, undercover officers. 

  • The Miranda warning must reasonably convey Mirand rights, but exact wording is not required as long as the essence is communicated. 

    • “Right to remain silent, anything said can be used against them, right to an attorney and if you can’t afford an attorney, one will be appointed to you”

• Miranda warnings can be waived or invoked

  • Waivers can be explicit or implied through conduct

  • Invocation must be clear and unambiguous

• After Miranda warnings have been invoked 

  • Attorney = no more questioning without an attorney present. 

  • Silence = No more questioning, police must “scrupulously (with great care)  honor silence”. 

• Waiver AFTER invocation must be clear and unambiguous. 

• Re-interrogation 

  • Attorney - cannot start again unless suspect initiates

  • Silence - can start questioning again after passage of time (14 days), new officer, new crime, etc. 

• The general rule for Miranda warning is there must be (1) interrogation and (2) custody. 

• Miranda Protections and requirements: 

  • RIght to remain silent (suspects are not obligated to answer questions from law enforcement)

  • Right to an attorney (suspects have the right to have an attorney present during questioning)

  • Awareness of consequences (suspect must be informed that anything they say can be used against them in court)

• Objective test

  • Reasonable officer

  • Similar Circumstances

  • Totality of the circumstances

• Confessions can be used as excluded evidence for impeachment. 

Consequences of Miranda Violations

• Unwarned admissions must be suppressed, subsequent statements, if made knowingly and voluntarily, need not be.  

• A second confession after a Miranda warning is admissible only if there was a long enough break between the initial confession without a Miranda waiver to give a reasonable suspect the belief that they had a right not to speak to law enforcement. 

• Physical evidence obtained as a result of a Miranda violation will result in only the tangible evidence being admitted at trial and not the statements. 

Fruit of the poisonous tree

• The court in Wong Sun stated that not only is the poisoned evidence (root) excluded, but any evidence derived from it (fruit) is also inadmissible. 

Waiver of Miranda rights

• Suspects can waive their Miranda rights, allowing their statements to be used against them in court.  A valid waiver must be knowing, intelligent, and voluntary. 

  • This means that the suspect must understand their rights, the consequences of waiving them, and make the decision to waive freely without coercion or undue influence.  The waiver can be explicitly stated or implied through conduct.  And mere silence is not enough. 

    • Suspects silence in the face of questioning, without invoking the right to remain silent, does NOT necessarily constitute an invocation of the right to remain silent. 

    • Law enforcement officers are not barred from subsequently questioning a suspect who previously invoked his right to remain silent, as long as the suspect's right to end questioning has been scrupulously honored. 

    • Edward rule is a standard that prevents law enforcement from continuing interrogation after a suspect has invoked their right to an attorney, until the attorney is present, even if there is a brief break in custody. 

      • Police can re-interrogate suspects that have invoked their right to counsel after a break in custody of 14-days. 

    • General rule = Suspects' statement of wanting to speak to an attorney must be clear and unambiguous in order to be considered a valid invocation of the right to counsel. 

Exceptions to Miranda 

• Public safety

  • Miranda warnings can be DELAYED if there is an immediate threat to public safety. (New York v. Quarles)

• Impeachment

  • Statements obtained in violation of Miranda can be used to challenge a defendant’s credibility. (Harris v. New York)

• Routine booking questions

  • Questions related to booking procedures do not typically require miranda warnings. 

Sixth Amendment

Sixth amendment right to counsel and privilege against self-incrimination

• The sixth amendment ensures that individuals have access to legal representation at critical stages of criminal proceedings, including interrogations that occur after formal charges have been filed.  

• Once adversarial proceedings have been filed against a defendant, the sixth amendment right to counsel attaches. (Massiah v. U.S.) Any deliberate elicitation of incriminating statements by government agents in the absence of counsel becomes a violation of this right. 

• The right to sixth amendment counsel is offense specific, and only attaches to specific offenses for which a defendant has been formally charged.  Does NOT extend to uncharged offenses, even if they are closely related to the charged crime.  

• Blockburger Test was originally used to determine whether a single act that violated two laws constituted one or two separate offenses for purposes of double jeopardy; under the test, such an act will be considered two separate offenses if each law requires the prosecution to prove some fact that the other does not.

• Best practice for officers to clarify –but they can continue questioning. 

Waivers of the sixth amendment right to counsel

• Defendant’s may waive their right to legal counsel under certain circumstances.

• Waivers of the sixth amendment’s right to counsel must be knowing, intelligent and voluntary in order to be valid. 

•  Law enforcement may approach the defendant and seek a waiver of the right to counsel. 

• Courts will determine if the waiver was knowing, intelligent and voluntary based on the totality of circumstances. 

• US v. Henry = intentional creation of situations that are likely to induce incriminating statements are a VIOLATION of the sixth amendment.  

• Kuhlmann v. Wilson = PASSIVE listening without deliberate elicitation are not a violation of the sixth amendment. (statements are spontaneous and unsolicited). 

• Compared to fifth amendment = Informants are NOT conducting a “custodial interrogation” so there is not a fifth amendment violation. 

Fifth amendment: 

Requirements for the privilege against self-incrimination to apply

• Application of the privilege against self-incrimination is subject to specific requirements, as clarified in the landmark case of Schmerber v. California (1966). This case delineated the boundaries of what constitutes “testimony” or “ communication” protected by the fifth amendment. 

  • Held that the privilege against self-incrimination protects an accused only from being compelled to testify against himself or to provide the state with evidence that is testimonial or communicative in nature.  The withdrawal of blood and the chemical analysis of its alcohol did not involve compulsion to these ends. 

  • Testimonial nature = the privilege applies ONLY to communications that are TESTIMONIAL IN NATURE, involving the contents of ONE'S MIND. 

  • Physical evidence = compelled production of physical evidence, such as blood samples, fingerprints, or DNA is NOT PROTECTED by the privilege. 

  • Compulsion = the privilege only protects against compelled self-incrimination, not VOLUNTARY statements or actions. 

  • Incriminating nature = the information must have the potential to incriminate the individual in criminal proceedings. 

Government requirement for production of documents and other things

• Act of production doctrine is compelled production of documents does not violate the fifth amendment unless the act of producing the document is itself testimonial and incriminating. 

• Document creation = documents are created voluntarily, without government compulsion. 

• Government request = the government demands production of specific documents. 

• Act of production analysis = court assesses whether the act of producing the document is testimonial and incriminating. 

• Potential immunity = if production is testimonial, the government may offer act-of-production immunity to compel disclosure. 

Government- Provided immunity for compelled testimony

• The government may compel testimony from a witness who has invoked the Fifth amendment right to silence by giving that witness immunity from use of both the compelled testimony and any evidence derived from that testimony in a subsequent criminal proceeding. (Kastigar v. United States) 

• Fifth amendment protects a witness from being compelled to disclose the existence of incriminating documents that the government is unable to describe with reasonable particularity because the act of producing those documents is testimonial. 

  • If the government grants a witness immunity to overcome his fifth amendment privilege self-incrimination and compel production of documents, evidence derived from those documents cannot be used in a later criminal prosecution against that witness. 

• Use and derivative use immunity = prohibits direct use of compelled testimony and its fruits in future prosecution. 

• Transactional immunity = broader protection that prohibits prosecution for offenses related to the compelled testimony.  Not constitutionality required but sometimes offered.  

• Acts of production immunity = protects against the use of the testimonial aspects of producing documents.  

• If the defendant challenges prosecution based on immunity-prosecutor has the burden to show that evidence is from legitimate sources “wholly independent” from any testimonial aspect of immunized conduct. 

• Civil litigation = parties may invoke the privilege in depositions or trial testimony if criminal liability is possible. 

• Administrative hearings= the privilege applies in proceedings before government agencies. 

• Legislative inquiries = witnesses before congressional committees can assert the privilege. 

• Regulatory investigations = the privilege extends to investigations by regulatory bodies that could lead to criminal charges. 

Identification, Right to counsel pre-trial and due process

• The sixth amendment guarantees the right to counsel in ALL criminal prosecution.  This right extends to certain pre-trial procedures, including some identification procedures.  

  • The right to counsel attaches at “Critical stages” of the criminal process.  Court’s have grappled with defining which identification procedures constitute critical stages. 

  • The presence of counsel during identification procedure HELPS ensure fairness and prevents suggestive practices that could lead to misidentification and wrongful convictions. 

• The right to counsel in lineups and U.S. v. Wade 

  • Pre-wade era = defendants had no guaranteed right to counsel during pre-trial lineups. 

  • Wade Decision (1967) = The supreme court held that post-indictment lineups are a critical stage requiring the presence of counsel. 

  • Rationale = the court recognized the potential for suggestiveness in lineups and the difficulty of reconstructing them at trial. 

  • Post-Wade impact= the decision led to increased scrutiny of identification procedures and expanded protections for defendants. 

• Gilbert

  • Claried Wade. A handwriting exemplar simply identifies a physical characteristic and is therefore outside of its protection. Admission of the in-court identifications without determining them to be impartial violates the constitution. 

Wade-Gilbert Per Se Exclusionary Rule

• Fifth Amendment

  • The lineup itself nor repeating a specific phrase DOES NOT violate the fifth amendment privilege against self-incrimination. 

• Sixth Amendment

  • Guarantees an accused the right to counsel “at any critical confrontation by the prosecution” at pretrial proceedings where the result might well “determine his fate” and where the absence of counsel might “derogate from his right to a fair trial.”

• In-court identification by a witness whom the accused was exhibited before trial in the absence of counsel must be excluded unless: 

  • It can be established that such evidence had an independent origin or

  • That error in its admission was harmless. 

Limits on the right to counsel in identification procedures: 

• Kirby v. Illinois (1972) 

  • The supreme court limited the right to counsel to post-indictment lineups, holding that the sixth amendment right does not attach to identification procedures BEFORE FORMAL Charges are filed. (Photographic display lineups)

• U.S. v. Ash (1973) 

  • The court further restricted the right to counsel by ruling that it does not apply to photographic identifications, even after indictment.  The court reasoned that counsel’s presence is not necessary when the accused is not present. 

• Impacts on defendants

  • These decisions significantly narrowed the protections established in Wade, leaving defendants vulnerable in pre-indictment lineups and photo identifications. 

Due Process protection for identification procedures: 

• Constitutional Safeguards 

  • Due process protections ensure fundamental fairness in criminal proceedings, including identification procedures. 

• Balancing Test

  • Courts weigh the suggestiveness of procedures against the reliability of identifications. 

• Judicial Scrutiny 

  • Judges evaluate identification evidence to prevent unreliable identifications from reaching juries. 

• Witness reliability 

  • Due process analysis considers factors affecting the accuracy of eyewitness identifications. 

Bottom Line with Identification Procedure: 

• Per Se Rule 

  • This rule automatically excludes eyewitness identification evidence obtained through a suggestive procedure, such as when the suspect is the only one in a lineup who matches the witness’s description.  It is used when there is a high likelihood of misidentification. 

• Totality of the circumstances rule

  • This rule allows courts to admit eyewitness identification evidence even if the procedure was suggestive, but only if the identification is reliable based on the circumstances of the case. 

• Due process reliability review-facts (Biggers) 

  • The Biggers factors are used to evaluate the reliability of an identification.  These factors include the witness’s opportunity to view the criminal, their degree of attention, the accuracy of their prior description, the level of certainty they demonstrate, and the time between the crime and the confrontation.  When weighing these factors, courts must also consider the “corrupting effect” of the suggestive identification itself.