1.

Passing the threshold of the 4th Amendment

a. What gov't conduct constitutes a search or seizure of a person, house, paper, or
effect?
b. What is a "search"?
i. In order to be a "search", must have two qualifications:
1. Is the place searched a "constitutionally protected place"?
a. KATZ - 2 PRONG TEST to see if an person is in a constitutionally
protected place:
i. Subjective Prong - person exhibited an actual
(subjective) expectation of privacy
ii. Objective Prong - the expectation of privacy is one that
society is prepared to recognize as "reasonable"
-Assumption of the risk will make an expectation
unreasonable
-"Legitimate Expectation" vs. "Reasonable Expectation"
b. Is there penetration or intrusion of the threshold of that place?
ii. Better Analysis:
1. Analyze the Katz analysis and the language of the 4th Amendment itself
iii. Katz v. United States: electronic surveillance is now considered a "search" under
the 4th Amendment.
1. The phone booth was considered a constitutionally protected place b/c the
privacy wanted in a phone booth is not visual privacy (the walls are glass),
but rather a privacy from "unwanted listeners"
iv. "FALSE FRIEND DOCTRINE" - X converses with Defendant and then testifies against
him. . .assumption of risk makes this no search. . .White extends this to recordings
of these conversations
1. White v. United States: White took the risk of who he spoke to, and therefore
he knowingly exposed the information in the conversation, and therefore, he
cannot claim that he had an expectation of privacy
v. Smith v. Maryland: warrantless installation of a "pen register" to record numbers
dialed from a person's home phone does not violate the 4th amendment b/c it does
not violate legitimate expectations of privacy
1. Congress regulated use of pen registers in 1986, but that has changed once
again post-9/11. . .
vi. Other Technological forms of evidence-gathering
1. US v. Knotts: a electronic transmitter was placed on a drum in a drug
trafficking case and led police to the defendant's home. . .this was not under
the 4th because the transmitter never entered the house. . .they could have
simply followed the suspect to the house
2. US v. Karo: police monitored a transmitter, including inside the suspect's
house. . .therefore, the court held that monitoring inside the house was a
violation of the 4th
vii. "Dog Sniffs" - the sniffing of luggage by a narcotics dog does not require opening
the luggage, therefore the information obtained is limited. . .not a violation of 4th.
viii. "Open Fields" and "Curtilages"
1. Analysis to determine a curtilage (Dunn v. US)
 i. Proximity of the area to the home
ii. Whether the area is included within an enclosure surrounding
the home
iii. Nature of the uses to which the area is put
2. Examples:
i. Separate yet frequently used garage or shed
ii. Decks, porches, some yards (usually if privacy-fenced in)
iii. Trash bags and bins on curtilage are NOT protected. . .so don’t
throw away incriminating evidence!
1. OPEN FIELDS: any unoccupied or undeveloped property outside of the
curtilage of a home (Oliver v. US)
i. Need not be "open" or a "field"
ii. "Open Fields Doctrine" - open fields not covered by the 4th
Amendment
2. Property Hierarchy:
i. Home - Fully protected by 4th
ii. Curtilages - protected, but not quite as much as home
iii. Open Fields - not protected
ix. Technologies continued
1. Kyllo v. US: when the gov't uses a device not in general public use to see
details of a home that would previously been unknowable w/out physical
intrusion, the surveillance is a "search"
2. THIS CASE IS IMPORTANT B/C ITS ONE OF THE FIRST TO REVERSE THE "PRO-
POLICE" DECISIONS OF THE PAST
iii. What is a "Seizure"
1. Karo v. US: items subject to seizure:
i. Fruits of crime
ii. Instrumentalities of crime (can include a car. . .may be used in get
away)
iii. Evidence
2. Seizure of Property: when there is some meaningful interference with an
individuals possessory interests
2. Probable Cause
i. Generally:
1. A search and seizure that is conducted in the absence of probable cause
ordinarily is unreasonable
2. Probable Cause to arrest exists "where the facts and circumstances within [the
officers'] knowledge and of which they [have] 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" - Brinegar v. US
3. "RC RT" - reasonably cautious person using reasonably trustworthy
information
ii. Spinelli v. United States: if an affidavit to obtain a search warrant is based upon an
informer's tip, then the affidavit must state why the informer is "reliable" and the
"underlying circumstances" from which the informer drew his conclusions, so as to enable
an independent magistrate to conclude that the informer's information provides probable
cause for the search.
 iii. Two Pronged Test for Information: Aguilar & Spinelli
1. What are the "underlying circumstances" from which the informant drew his
conclusions
i. Take into account:
a. What they saw or heard
b. Their knowledge of the type of contraband or evidence
c. Corroboration of the information
d. Self-verifying detail
2. Evidence to support the "veracity" and "reliability" of the informant
i. Take into account:
a. Record of information given
b. Propensity to lie
c. Ulterior motives
iv. Illinois v. Gates: the task of a magistrate asked to issue a search warrant is to make a
determination of whether, given all the circumstances set forth in the affidavit before
him, there is a fair probability that contraband or evidence of a crime will be found in a
particular place, and the task of the reviewing court is to ensure that said magistrate had
a substantial basis for concluding that there was such a probability.
v. Totality of Circumstances Analysis: Gates - MODIFIED 2 Prong Test
1. Task of the magistrate is to make a simple, common-sense decision whether
2. Given ALL THE CIRCUMSTANCES set forth in affidavit, including "veracity" and
"basis of knowledge" of the informant's information,
3. There is a FAIR PROBABILITY that contraband or evidence of a crime will be
found in a particular place
vi. "Oath and Affirmation" Requirement:
1. A defendant may challenge the truthfulness of statements made under oath in
an affidavit supporting a warrant under the limited circumstances.
2. The defendant would ask for a "Franks Hearing" (Franks v. Delaware)
i. When defendant makes a substantial preliminary showing that a false
statement knowing and intentionally, or with reckless disregard for the
truth, was included in the warrant affidavit. . .he can get a "Franks Hearing"
ii. If defendant can show by a preponderance of the evidence, the false
information may be set aside... if the affidavit's remaining content is
insufficient to establish probable cause, the warrant must be voided. . .
iii. DOESN’T AUTOMATICALLY VOID THE WARRANT. . .only if it could not
stand on the other information after the false information is removed
vii. How probable is "Probable Cause"???
1. You cannot have any precise degree of certainty in regard to probable cause
2. The standard does NOT "demand any showing that such a belief be . . . more
likely true than false." - Texas v. Brown
3. INTERESTS TO BALANCE:
i. The societal interest to get criminal off street
ii. How much privacy is being invaded?
iii. Costs associated
iv. Strength of the evidence supporting the
v. Intrusiveness of the search
3. Arrest Warrants
 i. Payton v. New York: 4th Amendment prohibits the police, absent exigent
circumstances, from making a warrantless and nonconsensual entry into a suspect's home
to make a routine felony arrest.
1. Exigent Circumstances: circumstances requiring an extraordinary or immediate
response; an exception to the prohibition on a warrantless arrest or search when
police officers believe probable cause to exist and there is no time for obtaining a
warrant.
i. Example: hot pursuit
2. Dissent: a rule comporting with the common law, traditional practice in the
states, and the history and policies of the 4th should be adopted. After knocking
and announcing, police could make a daytime entry to arrest without a warrant
whenever there is probable cause to believe the one to be arrested committed a
felony and is present in the house. (brings in the 4 restrictions under common
law)
ii. Four Restrictions on Home Arrest in Common Law:
1. Felony: invasions of the home occur only in the most serious crimes
2. Knock and Announce: protect from fear, humiliation, and embarrassment of
being roused in states of partial or complete undress.
3. Daytime: protect from fear, humiliation, and embarrassment of being roused in
states of partial or complete undress.
4. Stringent Probable Cause: ensures against the possibility that the police would
enter when the suspect was not home, and, in searching for him, frighten members
of the family or ransack parts of the house, seizing items in plain view.
4. Search Warrants
i. Lo-Ji Sales v. New York: a search warrant must particularly describe the things to be
seized, and may not be used to justify a general and open-ended search of the premises.
ii. ELEMENTS OF VALID SEARCH WARRANT:
1. Based on probable cause (see above)
2. Supported by oath or affirmation (see above)
3. Neutral and detached magistrate
4. Warrant particularity
iii. EXECUTION OF SEARCH WARRANT
1. "Knock and Announce" Requirement: requirement that a police officer must
first knock and announce his intention before he enters an individual's home in the
execution of a valid warrant
i. Has roots in the 4th Amendment
ii. Do not have to knock and announce if they let the police inside the
door
2. Richards v. Wisconsin: to justify a "no-knock" entry when executing a search
warrant, the police must have a reasonable suspicion that knocking and announcing
their presence, under the circumstances, would be dangerous or futile, or that it
would inhibit the effective investigation of the crime.
i. "Reasonable Suspicion" Standard: Much lower bar than probable
cause. . .any reasonable belief or suspicion.
5. When are warrants required??
i. Valid Reasonable (Warrantless) Searches
 1. Exceptions:
i. Hot Pursuit
a. Warden v. Hayden
ii. Exigent Circumstances
iii. "Community Caretaking Function" - the police are taking care of the
community and keeping the peace, they are not entering to find criminal
activity
a. EX> the police see a flame in your apartment late at night and
bust into your house to save you and stop the fire from growing
ii. Searches Incident to an Arrest
1. Chimel v. California: under the 4th & 14th amendments, a warrantless search
conducted incident (immediate) to a lawful arrest may only extend to a search of
the arrestee's person and area "within his immediate control". . .must have
potential danger to officer or potential destruction of evidence
2. "Principle of Particular Justification"
i. The police must, whenever practicable, obtain advance judicial
approval of searches and seizures through the warrant procedure
ii. The scope of a search must be strictly tied to and justified by the
circumstances which rendered its initiation permissible.
3. Maryland v. Buie: police can reasonably extend the search to closets and
rooms immediately adjoining the place of arrest in order to look for another person
- "Protective Sweep". . .still the reasoning is b/c of police safety
4. US v. Robinson: in the case of a lawful custodial arrest, a warrantless full
search of the person is permissible and reasonable under the 4th amendment.
iii. Automobile Arrests - Special Issues
1. New York v. Belton: when police have made a lawful custodial arrest of the
occupant of an automobile, they may, as a contemporaneous incident of that
arrest, search the passenger compartment of the automobile.
i. The bright line rule that anything in the passenger compartment was
made so that courts wouldn’t second guess officer's quick decisions when
making arrests.
2. Thornton v. United States: the right of police to make an incident search of a
vehicle's passenger compartment extends to when the police approach and arrest a
person who has just gotten out of the automobile
i. "Recent Occupant" is fairly broadly defined. . .could be recent even
after being in a store for a period of time.
3. Knowles v. Iowa: no full search of vehicle for a traffic violation. . .must be a
custodial arrest
iv. Pretextual Stops and Arrests
1. "Pretextual" Stops:
i. A police strategy where the police "find lawful grounds" to stop the
vehicle. . .the "pretext" was the traffic violation. . .
ii. This gives officers the opportunity to see into the vehicle to find
incriminating evidence of drugs, weapons, or the possibility to "negotiate" a
search of the vehicle.
iii. These are OK with the courts. . .although racial profiling could be
brought up in different contexts
 2. Whren v. US: the temporary detention of a motorist who the police have
probable cause to believe has committed a civil traffic violation is consistent with
the 4th Amendment
v. Cars and Containers
1. Chambers v. Maroney: where there is probable cause to believe that vehicles
are carrying contraband or fruits of the crime, warrantless searches of automobiles
are permissible, even where the car itself is seized and held without a warrant for
whatever period is necessary to obtain a warrant for the search.
i. The constitutionality becomes less and less defensible the longer time
that the vehicle is held
ii. The scope of the search is defined by the probable cause
2. Carroll v. US: the mobility of automobiles justifies a lesser degree of
protection for privacy interests
3. California v. Carney: the "automobile exception" to the warrant requirement
applies to motor homes. . .if its readily moveable. . .its fair game!
i. DISSENT: where agents have the element of surprise and the motor
home is parked, the exigencies justifying auto exception do not apply. . .
Court doesn’t apply this b/c it would have made this analysis too difficult
4. US v. Chadwick: The "automobile exception" does not apply to searches of
luggage
i. Searches of luggage and property seized at an arrest can be conducted
without a warrant incident to the arrest with probable cause to believe D
has a weapon or can destroy evidence. . .UNTIL the "search is remote in
time or place from the arrest" or no exigency exists
ii. Reasoning:
a. Containers are "effects"
b. Containers have greater privacy Interests than vehicles
c. Containers less inherently mobile than vehicles
iii. STILL GOOD LAW FOR EFFECTS OUTSIDE OF VEHICLES
5. Arkansas v. Sanders: "as suitcase taken from an automobile stopped on the
highway is not necessarily attended by any lesser expectation of privacy than is
associated with luggage taken from other locations". . .
i. Reasoning: follows the Chadwick reasoning
6. US v. Ross:
i. If police have probable cause to search a car, they can search fixed
parts thereof (glove box, trunk) as well as moveable containers carried
within it, as long as it was large enough to conceal the object of the search
ii. If police have probable cause to search a specific container, which is
coincidentally found in a car, they could search the car without warrant in
order to find and seize the container. . .but they need a warrant to open the
container
iii. Reasoning:
a. A warrant to search a vehicle would support a search of every
part of the vehicle, including containers therein that might contain the
object of the search
b. This right should also apply to warrantless car searches
 7. California v. Acevedo: police may search closed containers within an
automobile without a warrant, pursuant to a valid probable cause search of the
vehicle
i. Reasoning:
a. The conflict between Chadwick & Ross could result in officers
conducting more intrusive searches
b. The rule in Chadwick has not protected privacy and has
confused courts and police officers
c. Its better to adopt a clear-cut rule to govern auto searches &
Chadwick rule is overruled.
6. Plain View (and Touch) Doctrines
i. Plain View Doctrine: officers may seize, without a warrant, evidence or contraband
found in plain view during a lawful search (either with a warrant or legally warrantless)
ii. ELEMENTS:
1. Officer was in a lawful position or place
2. Within the parameters of the probable cause or the warrant
3. The object's incriminating character must be immediately apparent
i. To satisfy, must arise above reasonable suspicion to probable cause
iii. Horton v. California: inadvertence is not a necessary condition of "plain view" seizures
iv. Arizona v. Hicks: physically moving a suspicious object in an individual's home to
determine if it is incriminating evidence, without probable cause, during an unrelated
warrantless search, is violative of the 4th Amendment
1. "Seizure" - meaningfully interference with a person's possessory interest
i. Moving the stereo equipment was seizure here
v. Plain Touch:
1. Minnesota v. Dickerson: "plain view doctrine has an obvious application by
analogy to cases in which an officer discovers contraband through the sense of
touch during an otherwise lawful search" (first time applied)
7. Consent
i. Schneckloth v. Bustamonte: whether a consent to a search was "voluntary" or was
the product of duress or coercion, express or implied, is a question of fact to be
determined from the totality of all the circumstances
1. TWO CONCERNS in determining voluntariness
i. The legitimate need for such searches
ii. The equally important requirement assuring the absence of coercion
ii. US v. Matlock: the voluntary consent of a joint occupant of a residence to search the
premises jointly occupied is valid against the co-occupant
1. A co-occupant who in fact exercised joint authority over shared premises
could give consent to search in the suspect's absence. . .did not address if party
did not in fact have authority
iii. Georgia v. Randolph: a warrantless search of a shared dwelling for evidence over the
express refusal of consent by a physically present resident cannot be justified as
reasonable as to him on the basis of consent given by another resident
iv. Illinois v. Rodriguez: a warrantless entry is valid when based upon the consent of a
third party who the police at the time of the entry reasonably believe has common
authority over the premises
 1. OBJECTIVE TEST: "would the facts available to the officer at the moment. .
.warrant a man of reasonable caution in the belief that the consenting party had
authority over the premises?"
8. "Terry" Seizures & De Facto Arrests
i. Terry v. Ohio: regardless of the existence of probable cause, where a police officer
"reasonably" concludes, in the light of his experience, that criminal activity may be
afoot and that the persons with whom he is dealing may be armed and dangerous, he
may "stop" such persons; and if after identifying himself and making reasonable
inquiries, his fears are not dispelled, he may conduct a carefully limited search of the
outer clothing of such persons for weapons.
ii. Administrative Searches: searches made in order to enforce a civil code (like a house
inspector)
iii. Dunaway v. New York: under the 4th Amendment, a seizure and transport of a
suspect against his will is sufficiently intrusive to require probable cause that the
suspect has committed a crime.
1. A seizure (like a Terry seizure) must be brief and not unreasonably
inconvenient under the circumstances. . .once a person is moved against his will,
an arrest has usually taken place
2. When reasonable suspicion seizures go too far and become a de facto arrest,
you need probable cause that the person committed a crime
iv. Drawing the Line Between Terry & de facto arrests
1. Duration
i. Officer must exercise due diligence during search
ii. The reasonable amount of time that is necessary to effectuate the
search
iii. The intrusiveness must be reasonable to effectuate the search
2. Moving The Subject
i. Moving the subject against his will is de facto arrest
ii. Florida v. Royer: cannot move the person against his will
iii. Can only move someone for safety & security reasons
iv. Pennsylvania v. Mimms: police safety overrules the need for PC in
moving the subject
v. Maryland v. Wilson: can order innocent passengers out of the car for
safety reasons
v. California v. Hodari: 4th amendment seizure begins with the "submission" to lawful
authority, NOT only the officer's "presentation" of lawful authority
1. "Mendenhall Test" - (used by defendant) - person is "seized" if they believed
that he was not free to leave.
2. DISSENT: this has essentially concluded that an unlawful attempt at an arrest
does not implicate the 4th amendment
9. Reasonable Suspicion
i. Alabama v. White: reasonable suspicion can established with information different in
quantity or content than that required to establish probable cause, and can arise from
information that is less reliable than that required to show probable cause.
1. Follows the Gates analysis, but this anonymous tip had less information and
less corroboration, but that is OK, b/c "reasonable suspicion" is a lesser standard
and requires less info/corroboration.
 ii. TAKE INTO ACCOUNT:
1. Level of danger of the crime
2. Veracity of the Informant
i. Past interaction?
3. Basis of the information
i. Corroborated?
iii. Racial Profiling?
1. Now that there is a lower level of evidence justifying when officers can stop
and frisk/search, there opens a door to racial profiling
iv. Illinois v. Wardlow: flight from police is sufficient to support a finding of reasonable
suspicion and to justify a police officer's further investigation
1. Interesting, this "flight" theory is used in State v. Mack, where a Missouri
police dept. set up a "checkpoint ahead" sign, but set up the checkpoint on a
suspected "escape exit" off the highway with no food/gas. . .dude suddenly
veered onto the exit, was stopped, and large quantities of drugs found (pg. 433)
v. Maryland v. Buie: after an arrest is made in a residence, a search of the house for
accomplices requires articulable facts warranting a belief that the presence of an
accomplice is likely
vi. BORDER SEARCHES:
1. Special rules apply in the international border context
2. At a border or functional equivalent (an international airport), a person may
be stopped (seized) and his belongings searched without a warrant and in the
absence of individualized suspicion of wrongdoing - US v. Ramsey
i. Depending on the circumstances, a border search may still be deemed
"unreasonable" b/c of particularly offensive manner it is carried out.
vii. Michigan Dept. of State Police v. Sitz: a state's use of highway sobriety checkpoints
does not violate the 4th and 14th amendments.
1. The balance of the state's interest in preventing drunk driving and the degree
of intrusion upon individual motorists who are briefly stopped weighs in favor of
the state's interest.
2. Brown v. Texas 3 prong balancing test:
i. State's interest in preventing accidents caused by drunk drivers,
ii. Effectiveness of sobriety checkpoints in achieving that goal, and
iii. Level of intrusion on an individual's privacy caused by the checkpoints.
viii. City of Indianapolis v. Edmond:
1. Police operated vehicle checkpoints for "drug interdiction" purposes
2. The searches were around 2-3 minutes, and involved narcotics dogs
3. Court held that this did not follow Sitz and rules that this checkpoint of was a
violation of the 4th amendment.
10. Standing
i. Alderman v. US: A 4th Amendment claim can be successfully brought ONLY by those
whose rights were violated by the search or seizure itself, not by those who are
aggrieved solely by the introduction of damaging evidence.
ii. Rakas v. Illinois: since a car passenger has no legitimate expectation of privacy as to
the car, he cannot object to a search of the car or to the introduction of evidence thereby
obtained.
iii. 4th Amendment Standing:
 1. A defendant making a motion to suppress must have actually suffered the
violation of 4th amendment rights. . .he has no basis to object to evidence
brought against him but gathered in a search of another defendant
2. RULE: in order to claim standing for a 4th Amendment violation, you must
have a possessory/ownership interest or a close connection to the place searched
in order to constitute a legitimate expectation of privacy and there must be an
actual violation of that interest.
iv. Minnesota v. Carter: an overnight guest in a home may claim the protection of the
4th Amendment, but one who is merely present with the consent of the householder may
not.
1. There is a different expectation of privacy when in a home for a commercial or
business purpose rather than a social purpose.
2. NEED TO LOOK AT:
i. How long they had known the owner
ii. How long they had been in the home
iii. The reason that they are in the home
iv. How long they look to stay in the home
v. Rawlings v. Kentucky:
1. Could the Rakas rule be applied to a purse of a woman that the Def had just
met?
2. Court held that he had no expectation of privacy for her purse.
11. Exclusionary Rule
i. Mapp v. Ohio: in a prosecution in a federal or state court, the 4th Amendment (by
application of the 14th Amendment) forbids the admission of evidence obtained by an
unreasonable search and seizure.
ii. Criticisms
1. Is there a historical foundation for the exclusionary rule?
2. Does the exclusionary rule deter governmental misconduct?
3. Even if it does deter it, do the costs of the rule outweigh its benefits?
4. The rule protects the wrong people (criminals)
5. The rule results in disproportionate punishment
iii. "Good Faith" Exception
1. US v. Leon: the 4th Amendment exclusionary rule does not bar the use of
evidence obtained by officers acting in good faith in reasonable reliance on a
facially valid search warrant ultimately found to be unsupported by probable
cause. . .where a "reasonably well trained officer" would have believed it to be valid
i. Court basically says that the exclusionary rule is NOT mandated by the
4th Amendment, but rather a judicially created remedy to deter illegal law
enforcement conduct
ii. There is a "totality of the circumstances" analysis to determine the
reasonable of the officer's belief of the validity of the warrant
2. EXCEPTIONS:
i. When the officers mislead the magistrate or show a reckless disregard
for the truth
ii. The magistrate fails to be "neutral and detached"
iii. Where the warrant is so obviously deficient that no officer could
reasonably rely on it
 a. Affidavit clearly lacks PC
b. Affidavit fails to particularize the place or thing to be searched
or seized
12. "Fruit of the Poisonous Tree" Doctrine
i. Generally:
1. If the source of the evidence is "tainted" or obtained illegally, any subsequent
evidence that may come from it is excluded
2. The "tree" is the violation of the 4th, 5th, or 6th Amendment rights
3. The "fruit" is any evidence that may come from that "tree"
4. The question is how attenuated to the tree the evidence is (i.e., how close to
the poison is it?)
5. ***failure to give Miranda rights does NOT begin a FOPT doctrine analysis
ii. THREE MAIN EXCEPTIONS (would be admissible if)
1. Evidence was discovered in part as a result of an independent, untainted
source
2. Evidence would have inevitably been discovered despite the tainted source
3. The chain of causation between the illegal action and the tainted evidence is
too attenuated
iii. Silverthorne Lumber Co v. US: knowledge gained by the Federal govt in violation of
the 4th amendment cannot be used directly or indirectly as evidence in its case
iv. Attenuation Doctrine:
1. Wong Sun v. US: statements made by a defendant directly as a result of
lawless police conduct are inadmissible against the defendant
2. Factors to determine if Taint is dissipated
i. The length of time that has elapsed between the initial illegality and
the seizure of the fruit in question
ii. The flagrancy of the initial misconduct (dissipation of bad-faith
violations take longer than with good-faith violations)
iii. The existence or absence of intervening causes of the seizure of the
fruit
iv. The presence or absence of an act of free will by the defendant
resulting in the seizure of the fruit
v. Independent Source Doctrine
1. Murray v. US: evidence found for the first time during the execution of a valid
and untainted search warrant is admissible if it is discovered pursuant to an
independent source.
13. Torture & Confessions
i. General Confessions Rule: must be voluntary
1. Voluntariness is determined by a totality of the circumstances analysis:
i. Police coercion (must show)
ii. Which overbore the will of the suspect (must show)
a. Factors determine ^^^^
ii. Hector v. State:
1. The 14th amendment was not around yet
 2. However, the court holds that the confession made to McKinney when the
slave(Hector) was being beaten was not admissible b/c it was involuntary b/c of
the beatings
iii. Brown v. Mississippi: Supreme Court held that a defendant does not have to preserve
an objection for the confession b/c a forced confession is such a "fundamental wrong
that it made the whole proceeding a mere pretense of a trial and rendered the conviction
and sentence wholly void"
14. Police Interrogation without Torture
i. Lisbena v. California: illegal acts committed in the course of procuring a confession
do not automatically render the confession inadmissible as a violation of due process; all
the surrounding circumstances must be evaluated to determine whether the confession
was freely and voluntarily made
1. Must look to see if the person's will is overbore???
ii. Spano v. New York: if a confession is obtained by overbearing the will of the accused,
it is involuntary and inadmissible
1. Can be obtained thru official pressure, fatigue, false sympathy, etc. . .doesn't
have to be violence
2. If a person has more of a narrative statement, then it is more likely to be non-
coerced
15. Miranda and Following Cases
i. Illinois v. Perkins: Miranda warnings are not required when the suspect is unaware
that he is speaking to a law enforcement officer and gives a voluntary statement.
ii. Reaction to Miranda:
1. Harris v. New York: a confession taken in violation of Miranda could be used
to impeach the defendant's testimony if he testified in his defense at trial.
2. New Jersey v. Portash: a defendant's compelled statements, as opposed to
statements taken in violation of Miranda, may not be put to any testimonial use
against him in a criminal trial
3. Michigan v. Tucker:
4. Doyle v. Ohio: cannot use the defendant's silence after Miranda warnings to
impeach an explanation at trial
iii. New York v. Quarles: there is a "public safety" exception to the requirement that
Miranda warnings be given before a suspect's answers may be admitted into evidence,
and that the availability of that exception does not depend upon the motivation of the
individual officers involved.
1. TEST:
i. An exigency to protect the police officers or public,
ii. requiring immediate action by the officers,
iii. beyond the normal need expeditiously to solve a serious crime
iv. Oregon v. Elstad: A statement taken in violation of Miranda, and then a statement
under full Miranda awareness, the first violative statement does NOT "taint" the latter
statement UNLESS. . .the previous statement was coerced
v. Dickerson v. US: when a decision of the Court involves interpretation & application of
the Constitution, Congress may not legislatively supersede such decision
1. Congress had enacted Section 3501 after the Court handed down Miranda as a
way to side-step it.
 2. Section 3501 provided the admissibility of statements made during custodial
interrogation depends on voluntariness
vi. Missouri v. Seibert:
1. Police interrogated Seibert without Miranda warnings deliberately
2. After gaining a confession, they read Seibert her Miranda rights and began to
re-interrogate her with the same questions until she stated the confession again
3. Court held that this was a deliberate side-stepping of Miranda and therefore,
a violation of it.
vii. Seibert Analysis:
1. Court should determine whether law enforcement personnel deliberately
employed the 2-round interrogation strategy for the purpose of side-stepping
Miranda
i. If not. . .analysis stops & there is no Miranda violation
2. If so. . .in order to determine if this case is more like Seibert or Elstad, the
court should apply 5 factors:
i. The completeness & detail of the questions and answers in the first
round of interrogation
ii. The overlapping content of the 2 statements
iii. The timing and setting of the first and second interrogations
iv. The continuity of police personnel
v. The degree to which the interrogator's questions treated the second
round as a continuation of the first
3. If the court concludes that the case is more like Seibert, follow one more
step. . .Did the interrogator took any curative measures?
i. NO - there is a violation of Miranda
ii. YES- there is not a violation of Miranda
viii. How to Analyze Miranda:
1. The Four Areas:
i. Custody
a. Is the suspect in custody?
b. If formal arrest. . .definately
c. If not formal arrest. . ."Would a reasonable person felt at
liberty to terminate the interrogation. . .in a totality of the
circumstances analysis"
ii. Interrogation
a. Is this an interrogation?
b. Not long, but longer than a normal stop
c. Conduct or words by law enforcement that the law "should
know is resonably likely to illicit a response"
iii. Sustance of Miranda Warnings
a. Were the warnings read correctly?
b. All must be stated some way
c. Do not have to be stated verbatim. . .must have the same
meaning though
i. EX> "atty may be appointed to you" vs. "atty will be
appointed" (may is inadequate)
 ii. EX> "honesty never hurts". . .BAD! . . .it undermines
the right against incrimination & silence
iv. Waiver of Rights
a. Did suspect waive the rights?
b. RULE: statement may be admitted if the prosecutor shows
that the suspect "knowingly and voluntarily" waived his/her rights
c. SILENCE IS NOT ENOUGH TO WAIVE
d. "I understand my rights" and then talks. . .an implied waiver if
the person seems to be a knowledgeable person