Understanding Criminal Procedure: Volume 1: Investigation
Understanding Criminal Procedure: Volume 1: Investigation
Understanding Criminal Procedure: Volume 1: Investigation
Criminal Procedure
Volume 1: Investigation
Understanding
Criminal Procedure
Volume 1: Investigation
eighth edition
Joshua Dressler
Alan C. Michaels
Ric Simmons
Image
Copyright © 2021
Carolina Academic Press, LLC
All Rights Reserved
[A] In General
[2] Interrogation
[4] Arrest
[5] Arraignment
[7] Trial
[a] Sentencing
[b] Appeal
[A] Overview
[C] Full-Incorporation-Plus
[D] Selective Incorporation
§ 5.02 “Persons”
§ 5.03 “Houses”
[A] An Overview
[1] Overview
§ 6.09 Use of Dogs and Other “Binary” Investigative Techniques to Discover Contraband
[A] In General
[B] Dog-Sniffs
[A] In General
[A] Overview
[1] In General
[A] In General
[1] In General
[D] Corroboration
Chapter 9 · Arrests
[A] Definition
[A] Overview
[1] In General
[A] Arrests in the Home: When and How Entry of the Residence Is Permitted
[C] “Particularity”
[1] In General
[A] Rule
[b] Automobiles
[1] In General
[2] What Is a “Container”?
[a] In General
[a] Containers
§ 16.01 Preliminary Observations: Pragmatism, the Police, and the Supreme Court
[1] Waiver?
[3] Reasonableness?
[A] In General
[1] Overview
[5] Reflections on the Role of Race and Other Suspect Classifications in Determining “Reasonable
Suspicion”
[1] In General
[C] Fingerprinting
[A] Permissibility
[B] Method
§ 18.01 Overview
[1] In General
[A] In General
[A] In General
[A] In General
[1] In General
§ 20.06 When the Exclusionary Rule Does Not Apply: The Police Culpability Factor
[1] Overview
[i] In General
[B] Has the Law Gone Far Enough—or Too Far—in Controlling Confessions?
[1] Rule
[d] Deception
[a] Impeachment
[A] In General
[2] Modern Totality-of-Circumstances Test: Two Constitutional Provisions (and Standards) Become One
[i] Impeachment
[a] Self-Incrimination
[a] In General
[3] Fifth Amendment Values and the Importance of the Adversarial System
[A] In General
[1] Rule
[A] In General
[1] Overview
[a] Generally
[1] Overview
[2] Right to Remain Silent
[1] In General
[1] “Voluntary”
[B] When the Police Investigate “Sixth Amendment” and “Non-Sixth Amendment” Offenses
[A] Rule
[B] How the Rule Developed
Chapter 27 · Entrapment
[A] Rule
[1] In General
[A] Rule
[A] Overview
[1] Overview
[1] In General
[1] Competence
[A] In General
[1] Overview
Table of Cases
Index
Preface
This text is intended for use in law schools, although we can report with pleasure that legal scholars,
practicing attorneys, and judges have found it of value in their work.
This volume is intended for use in criminal procedure courses focusing primarily or exclusively on police
investigatory process. Such courses are variously titled: Criminal Procedure I; Criminal Procedure:
Investigation; Criminal Procedure: Police Practices; Constitutional Criminal Procedure; etc. Because some
such courses also cover the defendant's right to counsel at trial and on appeal, this text includes a chapter on
this non-police-practice issue. This eighth edition incorporates the many significant changes in the law that
have occurred since publication of the last edition.
Because Understanding Criminal Procedure is primarily designed for law students, it is written so that
students can use it with confidence that it will assist them in course preparation. Indeed, frequently
professors recommend or assign this text to their students to improve classroom dialogue. Based on the
experience of prior editions, as well, we are confident that this eighth edition will continue to prove useful to
scholars, practicing lawyers, and courts.
The text covers the most important United States Supreme Court cases in the field. Where pertinent, the
Federal Rules of Criminal Procedure, federal statutes, and lower federal and state court cases are considered.
The broad overarching policy issues of criminal procedure are laid out; and some of the hottest debates in the
field are considered in depth and, we think, objectively.
Readers should find the text user-friendly. Students who want a thorough grasp of a topic can and should
read the relevant chapter in its entirety. However, each chapter is divided into subsections, so that readers
with more refined research needs can find answers to their questions efficiently. We also include citations to
important scholarship, both classic and recent, into which readers may delve more deeply regarding specific
topics. And because so many of the topics interrelate, cross-referencing footnotes are included so that readers
can easily move from one part of the book to another, if necessary.
Gender policy of the Text. Obviously, women as well as men fill all the roles in the criminal justice
system: lawyer, judge, police officer, legislator, criminal suspect, and victim. Accordingly, in even-numbered
chapters, we use the male pronoun to describe hypothetical and generic parties in the criminal justice system;
in odd-numbered chapters, women get equal time. Based on comments we have received about this policy,
most readers like the approach or, at worst, find it only temporarily distracting.
Acknowledgments. Many persons helped make these volumes possible. We can name only a few here.
Professors Lee Lamborn and the late Joseph Grano read and commented on every page of every chapter of
the manuscript for the first edition. Professor George Thomas did the same with the second edition. Various
people have commented on drafts of chapters of later editions. The text is much better because of their
generous assistance. Mistakes and omissions are the result of our stubborn refusal to listen to advice.
We thank our families for their love and support.
Joshua Dressler
Alan C. Michaels
Ric Simmons
February 2021
Chapter 1
[2] Interrogation
The police also interrogate suspects and witnesses during criminal investigations. Some interrogations
occur in a police-dominated atmosphere, such as in a police station. In other circumstances, questioning
occurs in a less coercive environment, such as in a person's home, automobile, or on the street, sometimes in
the presence of family or friends. An interrogation may trigger various constitutional questions, including:
(1) Is the suspect entitled to be represented by counsel during the questioning? and (2) Was any ensuing
confession obtained voluntarily? In particular, the Fifth Amendment privilege against compulsory self-
incrimination, the Due Process Clauses of the Fifth and Fourteenth Amendments, and the Sixth Amendment
guarantee of assistance of counsel during criminal prosecutions, are potentially implicated during police
interrogations.16
[4] Arrest
Assuming that a criminal investigation results in a police determination that there is probable cause to
believe that the suspect committed a crime, she may be arrested. When a routine arrest occurs in a private
home, the police must ordinarily be armed with a warrant to take the suspect into custody. Arrests in public
places usually can be made without an arrest warrant.18
Upon arrest, the suspect is usually searched and taken to the police station or to a jail, where she is
“booked” (i.e., her name is logged in an arrest book or on a computer), photographed, fingerprinted, and
more fully searched. Typically, any personal belongings found in her possession at the station or jail are
inventoried and placed in custody for safekeeping.
[5] Arraignment
If an indictment or information is filed, the defendant is arraigned in open court. At the arraignment, at
which the Sixth Amendment right to counsel attaches,34 the accused is provided with a copy of the
indictment or information, after which she enters a plea to the offenses charged in it. She may plead “not
guilty,” “guilty,” “nolo contendere,”35 or (in some states) “not guilty by reason of insanity.”
[7] Trial
If a defendant does not plead guilty and the charges are not dismissed, the case goes to trial. The Sixth
Amendment entitles a defendant to trial by jury in the prosecution [12/13] of any serious, i.e., non-petty,
offense.42 In other cases, and sometimes even in serious cases when the defendant waives her jury right, the
trial may be to a judge, rather than a jury—a “bench trial.”
Whether the trial is to judge or jury, the defendant has a number of significant rights at trial. First, the
defendant is constitutionally entitled to employ counsel at trial, and an indigent individual is entitled to the
appointment of counsel in all felony prosecutions, as well as at any misdemeanor trial in which she will be
incarcerated if convicted.43 The defendant may also call witnesses on her own behalf, and confront and
cross-examine the witnesses who testify against her.44 The defendant is not required to testify and she “must
pay no court-imposed price for the exercise of [her Fifth Amendment] constitutional privilege not to
testify.”45
[b] Appeal48
If the defendant is acquitted by the jury or by the judge in a bench trial, the government is barred by the
Double Jeopardy Clause from appealing the acquittal.49 If the defendant is convicted, she has no
constitutional right to appeal her conviction.50 However, all jurisdictions by statute permit a convicted
defendant (now the “appellant”) to appeal a conviction after trial. In state court systems, she may appeal to
an appellate court below the state supreme court or, if there is none, directly to the state supreme court. In the
federal courts, a defendant may appeal her conviction to the United States Court of Appeals for the circuit
with jurisdiction over the case.
[13/14] If the appellant is unsuccessful in her statutory appeal of right, she may be entitled to appeal to the
highest court of the jurisdiction, usually called the supreme court. In most circumstances, this appeal is
discretionary, meaning the supreme court is not required to hear the appeal. Even if the appellant's appeal is
ultimately successful, she ordinarily may be re-prosecuted under the new conditions set out by the appellate
court.
[22/23] The law does not develop in a philosophical or policy vacuum. Lawyers, students, and scholars
must be sensitive to various overarching controversies affecting the field if they are to appreciate—and
sensibly critique—the law of criminal procedure. At times, lawmakers expressly consider the issues
discussed in this chapter in formulating criminal procedure doctrine; more often, however, these subjects
silently animate lawmaking.
1. People v. Defore, 150 N.E. 585, 587 (N.Y. 1926) (opinion of Cardozo, J.)
2. See generally Herbert L. Packer, The Limits of the Criminal Sanction 149–246 (1968); Peter Arenella, Rethinking the
Functions of Criminal Procedure: The Warren and Burger Courts' Competing Ideologies, 72 Geo. L.J. 185 (1983); Douglas
Evan Beloof, The Third Model of Criminal Process: The Victim Participation Model, 1999 Utah L. Rev. 289; John Griffiths,
Ideology in Criminal Procedure or A Third “Model” of the Criminal Process, 79 Yale L. J. 359 (1970); Kent Roach, Four
Models of the Criminal Process, 89 J. Crim. L. & Criminology 671 (1999).
3. Susan R. Klein, Enduring Principles and Current Crises in Constitutional Criminal Procedure, 24 Law & Social Inquiry
533, 536 (1999).
4. Packer, Note 2, supra, at 153.
5. E.g., Arenella, Note 2, supra, at 209–28; John Griffiths, The Limits of Criminal Law Scholarship, 79 Yale L.J. 1388
(1970).
6. E.g., Arenella, Note 2, supra, at 213–28 (re-conceptualizing Packer's models); Beloof, Note 2, supra (advocating a
“victim participation model”); Griffiths, Note 2, supra (advocating a “family” model of criminal justice premised on the view
that rehabilitation and reintegration of an offender into society is desirable); Roach, Note 2, supra “describing punitive and
non-punitive victims” rights models). For consideration of procedural systems in other countries, and discussion of what the
United States might learn from these systems, see Mirjan Damaska, Evidentiary Barriers to Conviction and Two Models of
Criminal Procedure: A Comparative Study, 121 U. Pa. L. Rev. 506 (1973); Daniel H. Foote, The Benevolent Paternalism of
Japanese Criminal Justice, 80 Cal. L. Rev. 317 (1992); Richard S. Frase, Comparative Criminal Justice as a Guide to
American Law Reform: How Do the French Do It, How Can We Find Out, and Why Should We Care?, 78 Cal. L. Rev. 542
(1990).
7. See generally Donald A. Dripps, Beyond the Warren Court and Its Conservative Critics: Toward a Unified Theory of
Constitutional Criminal Procedure, 23 U. Mich. J.L. Ref. 591 (1990).
8. Packer, Note 2, supra, at 158.
9. Roach, Note 2, supra, at 678.
10. Packer, Note 2, supra, at 159.
11. Id. at 160.
12. The “center of gravity [in the CC Model] . . . lies in the early, administrative fact-finding stages.” Id. at 162.
13. Id. at 160.
14. Alan M. Dershowitz, The Best Defense xxi (1982) (stating that two rules of “the justice game” are: (1) “[a]lmost all
criminal defendants are in fact guilty”; and (2) “[a]ll defense lawyers, prosecutors and judges understand and believe” the first
rule).
15. Packer, Note 2, supra, at 165.
16. E.g., Saul M. Kassin, On the Psychology of Confessions, 60 Am. Psychologist 215 (2005) (summarizing recent research
that demonstrates that police investigators not infrequently commit false-positive errors, therefore presuming innocent suspects
guilty; and also showing that police officers in the interrogation room are not good at distinguishing between uncorroborated
true and false confessions).
17. Packer's factual/legal guilt distinction is too simplistic. Packer assumes that factual guilt is merely an empirical
question: did the suspect (and not some unidentified person) commit the acts that constitute the offense, e.g., did the accused
kill/rob/rape the victim? This is a matter that may, indeed, often be provable through informal investigatory processes. The trial
process, then, appears accordingly to consist, simply, of rules for proving factual guilt to a high degree of certainty. But factual
guilt is more than an empirical judgment: to be guilty of a crime—and not simply to have done a harmful act—a person must
commit the actus reus of an offense with the statutorily requisite degree of moral culpability and accountability. In short, a
normative judgment must often (some would say, always) be made before it may properly be said that a person is factually
guilty of a crime. Quite simply, even factual guilt cannot be determined informally. See Arenella, Note 2, supra, at 214.
18. Griffin v. Illinois, 351 U.S. 12, 19 (1956) (plurality opinion).
19. Florida v. Meyers, 466 U.S. 380, 385 (1984) (Stevens, J., dissenting) (emphasis added).
20. See generally William T. Pizzi, Trials Without Truth (1999); Albert W. Alschuler, The Search for Truth Continued, The
Privilege Retained: A Response to Judge Frankel, 54 U. Colo. L. Rev. 67 (1982); William J. Brennan, Jr., The Criminal
Prosecution: Sporting Event or Quest for Truth?, 1963 Wash. U. L.Q. 279; Marvin E. Frankel, The Search for Truth: An
Umpireal View, 123 U. Pa. L. Rev. 1031 (1975); Monroe H. Freedman, Judge Frankel's Search for Truth, 123 U. Pa. L. Rev.
1060 (1975); Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142
(1970); Gary Goodpaster, On the Theory of American Adversary Criminal Trial, 78 J. Crim. L. & Criminology 118 (1987);
Klein, Note 3, supra; A. Kenneth Pye, The Role of Counsel in the Suppression of Truth, 1978 Duke L.J. 921; Tom Stacy, The
Search for the Truth in Constitutional Criminal Procedure, 91 Colum. L. Rev. 1369 (1991); Thomas Weigend, Criminal
Procedure: Comparative Aspects in 1 Encyclopedia of Crime and Justice 444 (Joshua Dressler, ed., 2d. ed. 2002).
21. Stacy, Note 20, supra, at 1407.
22. In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring).
23. 4 William Blackstone, Commentaries on the Laws of England 358 (1765).
24. In re Winship, 397 U.S. at 364.
25. Barbara D. Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases, 86 Yale L.J.
1299 (1977).
26. See especially Stacy, Note 20, supra (contending that the Supreme Court's emerging view is that wrongful acquittals are
as bad as wrongful convictions).
27. For debate on this subject, see Jeffrey Reiman & Ernest van den Haag, On the Common Saying that it is Better that Ten
Guilty Persons Escape than that One Innocent Suffer: Pro and Con, 7 Soc. Phil. & Policy, Spring, 1990, at 226.
28. Richard A. Posner, The Problems of Jurisprudence 216 (1990).
29. Joseph D. Grano, Selling the Idea to Tell the Truth: The Professional Interrogator and Modern Confessions Law, 84
Mich. L. Rev. 662, 677 (1986).
30. Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles 154 “1997).
31. Pearse v. Pearse, 63 Eng. Rep. 957, 970 (1846).
32. Law Reform Commission of Canada, Our Criminal Procedure (Report 32) 10 (1988).
33. See Sawyer v. Whitley, 505 U.S. 333, 356 (1992) (Blackmun, J., concurring in the judgment) (criticizing the Court's
“single-minded focus” on truth-finding, and stating that “[t]he accusatorial system of justice adopted by the Founders affords a
defendant certain process-based protections that do not have accuracy of truth-finding as their primary goal”); see also
Rumsfeld v. Padilla, 542 U.S. 426, 465 (2004) (dissenting opinion) (whether information obtained through normal techniques
“is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to
remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of
tyranny”).
34. Klein, Note 3, supra, at 534.
35. See generally Miriam Damaska, Adversary System, in 1 Encyclopedia of Crime and Justice (Joshua Dressler ed., 2d ed.
2002); Abraham S. Goldstein, Reflections on Two Models: Inquisitorial Themes in American Criminal Procedure, 26 Stan. L.
Rev. 1009 (1974); Abraham S. Goldstein & Martin Marcus, The Myth of Judicial Supervision in Three “Inquisitorial”
Systems: France, Italy, and Germany, 87 Yale L.J. 240 (1977); Goodpaster, Note 20, supra; John H. Langbein & Lloyd L.
Weinreb, Continental Criminal Procedure: “Myth” and Reality, 87 Yale L.J. 1549 (1978); Myron Moskovitz, The O.J.
Inquisition: A United States Encounter With Continental Criminal Justice, 28 Vand. J. Transnat'l L. 1121 (1995); Gregory W.
O'Reilly, England Limits the Right to Silence and Moves Towards an Inquisitorial System of Justice, 85 J. Crim. L. &
Criminology 402 (1994); Weigend, Note 20, supra.
36. Rogers v. Richmond, 365 U.S. 534, 541 (1961).
37. Miranda v. Arizona, 384 U.S. 436, 460 (1966).
38. Id. (quoting 8 Wigmore, Evidence 317 (McNaughton rev. 1961)).
39. Goldstein, Note 35, supra, at 1017.
40. Goodpaster, Note 20, supra, at 120.
41. Miranda v. Arizona, 384 U.S. at 460.
42. McNeil v. Wisconsin, 501 U.S. 171, 181 n.2 (1991).
43. See § 23.04[D][1], infra.
44. See §§ 24.04 (custodial interrogations) and 26.02 (post-indictment lineups), infra.
45. See 2 Joshua Dressler & Alan C. Michaels, Understanding Criminal Procedure § 7.08 (4th ed. 2006).
46. United States v. Cronic, 466 U.S. 648, 655 (1984) (quoting Lord Eldon in Kaufman, Does the Judge Have a Right to
Qualified Counsel?, 61 A.B.A. J. 569, 569 (1975) (internal quotation marks omitted)).
47. See Goodpaster, Note 20, supra, at 121–22.
48. Frankel, Note 20, supra, at 1037.
49. Escobedo v. Illinois, 378 U.S. 478, 488–89 (1964) (footnotes omitted).
50. See generally David Cole, No Equal Justice (1999); Randall Kennedy, Race, Crime and the Law (1997); Feminist Legal
Theory: Readings in Law & Gender (Katherine T. Bartlett & Rosanne Kennedy, eds. 1991); Richard Delgado & Jean Stefancic,
Critical Race Theory: An Annotated Bibliography, 79 Va. L. Rev. 461 (1993); Symposium, Racial Blindsight and Criminal
Justice, 5 Ohio St. J. Crim. L. 1–159 (2007).
51. E.g., David Alan Sklansky, “One Train May Hide Another”: Katz, Stonewall, and the Secret Subtext of Criminal
Procedure, 41 U.C. Davis L. Rev. 875 (2008) (arguing that a largely forgotten achievement of one of the most important Fourth
Amendment cases, Katz v. United States, discussed fully in Chapter 6, infra, is that it helped restrict the common practice of
governmental spying on men in toilet stalls to catch homosexuals).
52. See generally Chapter 28, infra, and 2 Dressler & Michaels, Note 45, supra, at chapter 9 (discussing the risk that
innocent indigents, represented by harried lawyers, may be compelled to plead guilty).
53. Taylor v. Louisiana, 419 U.S. 522 (1975) (holding that a statute permitting women, but not men, to file a written
declaration of their desire not to be subject to jury service violated the Sixth Amendment right of a defendant to a jury pool that
is a representative cross-section of the community).
54. J.E.B. v. Alabama ex rel. T.B. 511 U.S. 127 (1994) (holding that exercise of peremptory challenges based solely on
gender violates the Equal Protection Clause of the Fourteenth Amendment; therefore, a party's efforts to remove male jurors in
a child custody and paternity action cannot properly be based on the assumption that men (or women) will decide such cases
solely on the basis of their sex); see 2 Dressler & Michaels, Note 45, supra, at chapter 10.
55. Fox Butterfield, Racial Disparities Seen as Pervasive in Juvenile Justice, New York Times, April 26, 2000, at A1
(reporting on findings compiled by the Department of Justice and six national foundations).
56. Samuel R. Sommers & Phoebe C. Ellsworth, Race in the Courtroom: Perceptions of Guilt and Dispositional
Attributions, 26 Personality & Soc. Psych. Bulletin 1367 (2000) (among the findings is that in cases in which race was not a
salient factor, white jurors rated Black defendants more guilty, aggressive, and violent than they did white defendants).
57. E.g., State v. Soto, 734 A.2d 350 (N.J. Super. 1996) (citing statistical evidence that New Jersey State Police engaged in
racial discrimination in enforcement of traffic laws); Iver Peterson, Whitman Concedes Troopers Used Race in Stopping
Drivers, N.Y. Times, April 21, 1999, at A1 (the Governor of New Jersey conceded that state troopers singled out Black and
Hispanic motorists on the highway for stops, and then searched their vehicles three times more often than in the case of white
motorists); Albert J. Meehan & Michael C. Ponder, Race and Place: The Ecology of Racial Profiling African American
Motorists, 19 Justice Q. 399 (2002) (finding that Blacks are subject to disproportionate surveillance and detentions by police
when driving through white areas, a finding not explained by any higher criminality rates among Blacks); see also Bureau of
Justice Statistics, Special Report: Contacts between Police and the Public, 2005 (April 2007, NCJ 215243) (reporting that, in
year 2005, “white, black, and Hispanic drivers were stopped by police at similar rates,” but that “blacks and Hispanics were
more likely than whites to be searched by police”; the report indicates that (the apparent disparities documented in this report . .
. might be explained by countless other factors [than treating people “differently along demographic lines”]. See generally
David A. Harris, Problems in Injustice: Why Racial Profiling Cannot Work (2002); David A. Harris, “Driving While Black”
and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544 (1997);
Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333 (1998); David A. Sklansky, Traffic Stops, Minority
Motorists, and the Future of the Fourth Amendment, 1997 Sup. Ct. Rev. 271. See also §§ 2.07[B], 8.02[F], and 17.03[B][5],
infra.
58. Tracey Maclin, “Black and Blue Encounters” (Some Preliminary Thoughts About Fourth Amendment Seizures: Should
Race Matter?, 26 Val. U. L. Rev. 243, 250 (1991); see also Tracey Maclin, Terry v. Ohio's Fourth Amendment Legacy: Black
Men and Police Discretion, 72 St. John's L. Rev. 1271 (1998).
59. See § 17.03[B][5], infra.
60. See generally Craig M. Bradley, The Failure of the Criminal Procedure Revolution 38–94 (1993); Anthony G.
Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases, 45 N.Y.U. L. Rev. 785 (1970); Dripps, Note 7,
supra; Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Cal. L. Rev. 929 (1965).
61. See § 2.02[C], supra.
62. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (dissenting opinion).
63. Friendly, Note 60, supra, at 954–55.
64. Amsterdam, Note 60, supra, at 793.
65. Id. at 810.
66. See generally Albert W. Alschuler, Bright Line Fever and the Fourth Amendment, 45 U. Pitt. L. Rev. 227 (1984); Craig
M. Bradley, Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468 (1985); Edwin J. Butterfoss, Bright Line Breaking
Point: Embracing Justice Scalia's Call for the Supreme Court to Abandon an Unreasonable Approach to Fourth Amendment
Search and Seizure Law, 82 Tulane L. Rev. 77 (2007); Joseph D. Grano, Miranda v. Arizona and the Legal Mind: Formalism's
Triumph Over Substance and Reason, 24 Am. Crim. L. Rev. 243 (1986); Wayne R. LaFave, Being Frank About the Fourth: On
Allen's “Process of ‘Factualization’ in the Search and Seizure Cases”, 85 Mich. L. Rev. 427 (1986); Wayne R. LaFave, The
Fourth Amendment in an Imperfect World: On Drawing “Bright Lines” and “Good Faith”, 43 U. Pitt. L. Rev. 307 (1982);
Wayne R. LaFave, “Case-by-Case Adjudication” Versus “Standardized Procedures”: The Robinson Dilemma, 1974 Sup. Ct.
Rev. 127.
67. See generally Chapter 22, infra.
68. Schneckloth v. Bustamonte, 412 U.S. 218, 224 (1973).
69. Grano, Note 66, supra, at 243.
70. Miranda v. Arizona, 384 U.S. 436 (1966). See generally Chapter 24, infra.
71. Chimel v. California, 395 U.S. 752 (1969). See § 12.03, infra.
72. See also Missouri v. McNeely, 569 U.S. 141, 149–150, 150 n.3 (2013) (stating that “[t]o determine whether a law
enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of
circumstances”; and “the general exigency exception [to the warrant requirement], which asks whether an emergency existed
that justified a warrantless search, naturally calls for case-specific inquiry”).
73. See § 12.04, infra.
74. See § 10.01, infra.
75. Thornton v. United States, 541 U.S. 615, 628 (2004) (Scalia, J., dissenting) (stating that “[r]eported cases involving . . .
a motorist handcuffed and secured in the backseat of a squad car”—and, thus, not realistically in position to grab a weapon or
evidence inside the arrestee's vehicle—“when the search takes place[,] are legion.”).
76. Dunaway v. New York, 442 U.S. 200, 213–14 (1979); see also Atwater v. Lago Vista, 532 U.S. 318, 347 (2001) (“Often
enough, the Fourth Amendment has to be applied on the spur (and in the heat) of the moment, and the object in implementing
its command of reasonableness is to draw standards sufficiently clear and simple to be applied with a fair prospect of surviving
judicial second-guessing months and years after an arrest or search is made.”).
77. LaFave, “Case-by-Case Adjudication” . . . , Note 66 supra, at 141.
78. Anthony G. Amsterdam, Perspectives on the Fourth, 58 Minn. L. Rev. 349, 415 (1974).
79. LaFave, The Fourth Amendment in an Imperfect World. . . , Note 66, supra, at 321.
80. William C. Heffernan & Richard W. Lovely, Evaluating the Fourth Amendment Exclusionary Rule: The Problem of
Police Compliance with the Law, 24 U. Mich. J.L. Ref. 311, 356 (1991) (in a study of four mid-sized police departments, the
authors found that officers were no more likely to understand bright-line search-and-seizure rules than non-bright-line rules).
81. Robbins v. California, 453 U.S. 420, 443 (1981).
82. Amsterdam, Note 78, supra, at 375; see Georgia v. Randolph, 547 U.S. 103, 125 (2006) (“[T]he Fourth Amendment
does not insist upon bright-line rules. Rather, it recognizes that no single set of legal rules can capture the ever changing
complexity of human life.”) (Breyer, J., concurring).
83. See Bradley, Note 60, supra, at 77–81.
84. E.g., LaFave, The Fourth Amendment in an Imperfect World. . . , Note 66, supra, at 325–33.
85. See generally Symposium, Programmatic Purpose, Subjective Intent, and Objective Intent: What is the Proper Role of
“Purpose” Analysis to Measure the Reasonableness of a Search or Seizure?, 76 Miss. L.J. 339–622 (2006); John M. Burkoff,
The Pretext Search Doctrine Returns After Never Leaving, 66 U. Det. L. Rev. 363 (1989); Butterfoss, Note 68, supra; Edwin J.
Butterfoss, Solving the Pretext Puzzle: The Importance of Ulterior Motives and Fabrications in the Supreme Court's Fourth
Amendment Pretext Doctrine, 79 Ky. L.J. 1 (1990); Andrew D. Leipold, Objective Tests and Subjective Bias: Some Problems of
Discriminatory Intent in the Criminal Law, 73 Chi-Kent L. Rev. 559 (1998).
86. Brewer v. Williams, 430 U.S. 387, 389 (1977). See § 25.05, infra.
87. Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (emphasis added) (footnotes omitted). See § 24.08, infra.
88. Horton v. California, 496 U.S. 128, 138 (1990); see also Ashcroft v. Al-Kidd, 563 U.S. 731, 739 (2011). (“Efficient and
evenhanded application of the law demands that we look to whether the arrest is objectively justified, rather than to the motive
of the arresting officer.”).
89. Whren v. United States, 517 U.S. 806 (1996). Commentators have criticized the Court's focus on the objective
justification for police activity. See, e.g., Gabriel J. Chin and Charles Vernon, Reasonable but Unconstitutional: Racial
Profiling and the Radical Objectivity of Whren v, United States, 83 Geo. Wash. L. Rev. 882 (2015) (arguing that any search or
arrest that is subjectively motivated by race is “unreasonable” under the Fourth Amendment).
90. See Colorado v. Bertine, 479 U.S. 367, 375–76 (1987); South Dakota v. Opperman, 428 U.S. 364, 376 (1976). See §
15.01[B], infra.
91. Scott v. United States, 436 U.S. 128, 138 (1978).
92. Amsterdam, Note 78, supra, at 436 (footnote omitted).
93. Steagald v. United States, 451 U.S. 204 (1981). See § 9.05[D], infra.
94. Id. at 215; see also Maine v. Moulton, 474 U.S. 159, 180 (1985) (the police inadvertently obtained incriminating
statements from M about Crime X, in violation of M's right to counsel, while they were legitimately asking M questions about
Crime Y; held: the statements about Crime X were inadmissible, despite the officers' possible good faith; “[t]o allow the
admission of evidence obtained from the accused in violation of his Sixth Amendment rights whenever the police assert an
alternative, legitimate reason for their surveillance invites abuse . . . in the form of fabricated investigations . . .”).
95. Whren v. United States, 517 U.S. 806, 813 (1996).
Chapter 3
[C] Full-Incorporation-Plus
Justices Frank Murphy, Wiley Rutledge, and William Douglas posited the broadest interpretation of the
Fourteenth Amendment. According to these justices, the Due Process Clause incorporates the Bill of Rights
in its entirety (full incorporation), as well as any fundamental rights that fall outside the express language of
the Constitution (a component of fundamental rights doctrine).13
[D] Selective Incorporation
Selective incorporation includes features of both fundamental rights theory and total incorporation,
without following the logic of either doctrine. According to one judicial critic, it represents “an uneasy and
illogical compromise”14 between the two doctrines.
Selective incorporationists agree with fundamental rights theorists that not all rights included in the Bill of
Rights are inevitably absorbed by the Fourteenth Amendment. On the other hand, contrary to fundamental
rights theory, and more in keeping with full incorporation, selective incorporationists believe that once a
right is deemed to be fundamental, it is “applicable to the States with all the subtleties and refinements born
of history and embodied in case experience developed in the context of federal adjudication.”15
The latter quotation is critical to understanding how selective incorporation differs from full incorporation
and the fundamental rights theory. The point of “fundamental rights” is that a right is protected by the Due
Process Clause because it is crucial to the maintenance of justice; its inclusion in the Bill of Rights is not a
logical requisite. [46/47] It follows, therefore, that the constitutional case law that has developed regarding
the federal right is not determinative (under “fundamental rights” doctrine) of the scope of the state version
of the analogous right emanating from the Fourteenth Amendment. For example, freedom from unreasonable
searches and seizures is expressly guaranteed by the Fourth Amendment and considered a fundamental right
under the Fourteenth Amendment.16 To advocates of fundamental rights doctrine, however, it is logically
possible that what constitutes an unreasonable search or seizure according to the Fourth Amendment might
be reasonable under the Fourteenth Amendment, or vice versa. In contrast, selective incorporation absorbs
“all of the bag and baggage”17 of the Bill of Rights. Once a Bill of Rights provision is determined to be
fundamental, every feature of the federal right applies to the states.
1. See generally Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992); William
Winslow Crosskey, Charles Fairman, “Legislative History,” and the Constitutional Limitations on State Authority, 22 U. Chi.
L. Rev. 1 (1954); Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original
Understanding, 2 Stan. L. Rev. 5 (1949); Barry Latzer, Toward the Decentralization of Criminal Procedure: State
Constitutional Law and Selective Disincorporation, 87 J. Crim. L. & Criminology 63 (1996); Gary L. McDowell & Judith A.
Baer, The Fourteenth Amendment: Should the Bill of Rights Apply to the States? The Disincorporation Debate, 1987 Utah L.
Rev. 951; George C. Thomas III, When Constitutional Worlds Collide: Resurrecting the Framers' Bill of Rights and Criminal
Procedure, 100 Mich. L. Rev. 145 (2001); George C. Thomas III, The Riddle of the Fourteenth Amendment: A Response to
Professor Wildenthal, 68 Ohio St. L.J. 1627 (2007); Bryan H. Wildenthal, The Lost Compromise: Reassessing the Early
Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment, 61 Ohio St. L.J.
1051 (2000); Bryan H. Wildenthal, The Road to Twining: Reassessing the Disincorporation of the Bill of Rights, 61 Ohio St.
L.J. 1457 (2000); Bryan H. Wildenthal, Nationalizing the Bill of Rights: Revisiting the Original Understanding of the
Fourteenth Amendment in 1866–67, 68 Ohio St. L.J. 1509 (2007); Symposium, The Fourteenth Amendment and the Bill of
Rights, 18 J. Contemp. Legal Issues 1–533 (2009).
2. Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).
3. U.S. Const. amend. XIV, § 1 (numbers in brackets added).
4. Early on, the Supreme Court rejected the plausible claim that the Fourteenth Amendment Privileges and Immunities
Clause prohibits states from abridging the rights set out in the Bill of Rights. The Court ruled that this clause only bars states
from abridging privileges and immunities inherent in national citizenship, which the Court determined did not include the
provisions of the Bill of Rights. See Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873). In McDonald v. Chicago, 561 U.S.
742 (2010), the Supreme Court was asked to overrule its earlier decisions and hold that the Privileges and Immunities Clause
incorporates the Bill of Rights. Both the four-justice plurality and three of the justices in dissent expressly declined the
invitation, thereby reaffirming that questions of rights-protection “by the Fourteenth Amendment against state infringement . . .
[are] analyzed under the Due Process Clause of that Amendment and not under the Privileges and Immunities Clause.” Id. at
758; see also id. at 859–60 (Stevens, J., dissenting); id. at 933–34 (Breyer, J., dissenting). Only Justice Thomas advocated
using the Privileges and Immunities Clause for this purpose. See id. at 806 (Thomas, J., concurring).
5. Usually unstated in the incorporation debate is the belief of many advocates of incorporation that states are “chronically
... backward” in their protection of individual rights. Without incorporation, the argument goes, states would trample on
citizens' rights. There is historical support for this view (particular in Southern states in regard to the rights of African-
Americans). According to some modern commentators, however, “the state courts are no longer rights-antediluvians, and that
therefore an entire set of assumptions underlying incorporation has eroded.” Latzer, Note 1, supra, at 66.
6. A state constitution or statute, however, may prohibit such conduct.
7. Adamson v. California, 332 U.S. 46, 71–72 (1947) (Black, J., dissenting); see also Rochin v. California. 342 U.S. 165,
174–77 (1952) (Black, J., concurring).
8. See Palko v. Connecticut, 302 U.S. 319 (1937), overruled in Benton v. Maryland, 395 U.S. 784 (1969).
9. E.g., Adamson, 332 U.S. at 59–68 (concurring opinion); Rochin, 342 U.S. at 166–74 (majority opinion).
10. Adamson, 332 U.S. at 66 (Frankfurter, J., concurring).
11. Palko, 302 U.S. at 325 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).
12. Amar, Note 1, supra, at 1196.
13. See Adamson, 332 U.S. at 123–25 (Murphy and Rutledge, JJ., dissenting); Poe v. Ullman 367 U.S. 497, 516 (1961)
(Douglas, J., dissenting).
14. Duncan, 391 U.S. at 172 (Harlan, J., dissenting).
15. Williams v. Florida, 399 U.S. 78, 130–31 (1970) (Harlan, J., concurring) (explaining the theory).
16. Wolf v. Colorado, 338 U.S. 25 (1949), overruled on other grounds in Mapp v. Ohio, 367 U.S. 643 (1961).
17. Duncan v. Louisiana, 391 U.S. at 213 (Fortas, J., concurring).
18. Justice Black provided a 31-page appendix to his dissent in Adamson, supra, in support of his claim; see also Crosskey,
Note 1, supra; Wildenthal, Note 1, supra (all cited articles).
19. E.g., Fairman, Note 1, supra. While not accepting “Black's brand of mechanical incorporation,” Professor Amar is
critical of Professor Charles Fairman's “130 pages of Black-bashing.” Amar observes that “Fairman spent so much energy
attacking Justice Black that he failed to offer any sustained narrative in support of an alternative reading of the Fourteenth
Amendment.” Amar, Note 1, supra, at 1238.
20. Adamson, 332 U.S. at 62.
21. McDowell & Baer, Note 1, supra, at 956–57 (statement of McDowell in debate with Baer).
22. Timothy S. Bishop, Comment, The Privileges or Immunities Clause of the Fourteenth Amendment: The Original Intent,
79 Nw. U. L. Rev. 142, 145–84 (1984) (detailing the variety of viewpoints).
23. Adamson, 332 U.S. at 63 (Frankfurter, J., concurring).
24. In other words, under full incorporation, “due process of law” is a shorthand for freedom of speech, freedom of
religion, the right to bear arms, and so on; yet, in the Fifth Amendment, the words “due process of law” could not logically
have this meaning because these other rights are enumerated elsewhere in the Bill of Rights.
25. See Griswold v. Connecticut, 381 U.S. 479 (1965).
26. John Hart Ely, Constitutional Interpretivism: Its Allure and Impossibility, 53 Ind. L.J. 399, 419–20 (1978) (“[T]here is
simply no blinking the fact that the word that follows ‘due’ is ‘process.’”).
27. Adamson, 332 U.S. at 69 (Black, J., dissenting).
28. Id. at 90 (Black, J., dissenting).
29. Ely, Note 26, supra, at 445.
30. Malloy v. Hogan, 378 U.S. 1, 10 (1964).
31. The Court recently had a return foray into the incorporation issue in McDonald v. City of Chicago, 561 U.S. 742 (2010),
in which the Court had to decide whether the individual right to bear arms for the purpose of self-defense, a right it had first
recognized two years earlier, applied to the states. While the case did not produce a majority opinion regarding incorporation
through the Due Process Clause, the conclusion that selective incorporation “won” the methodological debate was reaffirmed.
The four-justice plurality concluded that the right was “fundamental to our scheme of ordered liberty” and applies to the states
in the same manner it applies to the federal government. (A fifth justice, Justice Thomas, also found the Second Amendment
fully incorporated, but under the Privileges and Immunities Clause, rather than the Due Process Clause). The three dissenting
justices who addressed the incorporation question, while reaching a different conclusion on the ultimate question, also seemed
to follow a selective incorporation analysis. While the Court was fractured on the proper methodology, as usual the right at
issue was incorporated and incorporated “bag and baggage.”
32. The exception is the Fifth Amendment provision that no person shall be held to answer for a serious crime except by
indictment or presentment of a grand jury, which does not apply to the states. Hurtado v. California, 110 U.S. 516 (1884). In
addition, two Eighth Amendment provisions—the Excessive Fines Clause and the Excessive Bail Clause—have been the
subject of dicta, rather than holdings. As to excessive fines, the Court has contradicted its own dicta. Compare Cooper
Industries v. Leatherman Tool Group, 532 U.S. 424, 433–34 (2001) (citing a 1972 case involving the “cruel and unusual
punishment” provision of the Eighth Amendment for the proposition that the “Due Process Clause . . . makes the Eighth
Amendment's prohibition on excessive fines . . . applicable to the States”), and Browning-Ferris Industries of Vermont, Inc. v.
Kelco Disposal, Inc., 492 U.S. 257, 276 n.22 (1989) (expressly leaving open the question whether the “Eighth Amendment's
prohibition on excessive fines applies to the several States through the Fourteenth Amendment”). As to bail, the Court's
repeated statement that “the Eighth Amendment's proscription of excessive bail has been assumed [by the Court] to have
application to the States through the Fourteenth Amendment,” Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979) (citation and
internal quotation omitted), has never been essential to a holding. See also Baze v. Rees, 553 U.S. 35, 47 (2008) (in which
Chief Justice Roberts, joined by Justices Kennedy and Alito, stated in their plurality opinion that “[t]he Eighth Amendment . . .
[is] applicable to the States through the Due Process Clause of the Fourteenth Amendment,” citing Robinson v. California, 370
U.S. 660, 666 (1962) for this proposition).
33. Dowling v. United States, 493 U.S. 342, 352 (1990).
34. Brady v. Maryland, 373 U.S. 83 (1963).
Chapter 4
1. Citations to Fourth Amendment sources will be provided throughout the Text. By far the most cited Fourth Amendment
source is Professor Wayne LaFave's six-volume lawyer's treatise, Search and Seizure (4th ed. 2004). For discussion of the
Amendment's history and its modern significance, see generally Andrew E. Taslitz, Reconstructing the Fourth Amendment: A
History of Search and Seizure, 1789–1868 (2006); Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev.
757 (1994); Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547 (1999); Carol S. Steiker,
Second Thoughts About First Principles, 107 Harv. L. Rev. 820 (1994).
For general discussion of Fourth Amendment jurisprudence, see generally Anthony G. Amsterdam, Perspectives On The
Fourth Amendment, 58 Minn. L. Rev. 349 (1974); Susan Bandes, “We the People” and our Enduring Values, 96 Mich. L. Rev.
1376 (1998); Gerard V. Bradley, The Constitutional Theory of the Fourth Amendment, 38 DePaul L. Rev. 817 (1989); Thomas
K. Clancy, The Framers' Intent: John Adams, His Era, and the Fourth Amendment, 86 Indiana L.J. 979 (2011); Thomas K.
Clancy, What Does the Fourth Amendment Protect: Property, Privacy, or Security?, 33 Wake Forest L. Rev. 307 (1998);
Thomas K. Clancy, The Purpose of the Fourth Amendment and Crafting Rules to Implement that Purpose, 48 U. Rich. L. Rev.
479 (2014); Morgan Cloud, Pragmatism, Positivism, and Principles in Fourth Amendment Theory, 41 UCLA L. Rev. 199
(1993); Sherry F. Colb, Innocence, Privacy, and Targeting in Fourth Amendment Jurisprudence, 96 Colum. L. Rev. 1456
(1996); Tracey Maclin, When the Cure for the Fourth Amendment Is Worse than the Disease, 68 S. Cal. L. Rev. 1 (1994);
David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum. L. Rev. 1739 (2000); William J. Stuntz, Privacy's
Problem and the Law of Criminal Procedure, 93 Mich. L. Rev. 1016 (1995); Scott E. Sundby, “Everyman's” Fourth
Amendment: Privacy or Mutual Trust Between Government and Citizen?, 94 Colum. L. Rev. 1751 (1994); and Silas J.
Wasserstrom & Louis Michael Seidman, The Fourth Amendment as Constitutional Theory, 77 Geo. L.J. 19 (1988).
2. Jacob W. Landynski, Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation 42 (1966).
3. Amsterdam, Note 1, supra, at 353–54.
4. Landynski, Note 2, supra, at 49.
5. Wayne R. LaFave, The Fourth Amendment Today: A Bicentennial Appraisal, 32 Vill. L. Rev. 1061, 1064 (1987).
6. Mapp v. Ohio, 367 U.S. 643 (1961). For discussion of the exclusionary rule, see § 4.04[B] and Chapter 20, infra.
7. For shorthand purposes, this Text speaks of the provisions of the Fourth Amendment as if they applied directly to the
states, although it is the Fourteenth Amendment Due Process Clause that recognizes the fundamental right to be secure from
unreasonable searches and seizures by state agents. Wolf v. Colorado, 338 U.S. 25 (1949), overruled on other grounds, Mapp v.
Ohio, 367 U.S. 643 (1961).
8. There is relatively little law on this subject, but see § 4.04[E], infra.
9. See Chapter 5, infra.
10. These terms have very specialized—and, at times, surprising—definitions. See Chapter 6 (“search”) and 7 (“seizure”),
infra.
11. This question—the ultimate issue in Fourth Amendment analysis—is covered, directly or indirectly, by Chapters 10–18,
infra.
12. See Chapter 8, infra.
13. See § 10.03[C], infra.
14. See § 10.01, infra.
15. United States v. Chadwick, 433 U.S. 1, 7–8 (1977).
16. Osmond K. Fraenkel, Concerning Searches and Seizures, 34 Harv. L. Rev. 361, 362–63 (1920).
17. Amsterdam, Note 1, supra, at 363.
18. Payton v. New York, 445 U.S. 573, 585 (1980).
19. Amsterdam, Note 1, supra, at 371.
20. Davies, Note 1, supra, at 552.
21. Id. at 556.
22. Id.; see also Susan R. Klein, Enduring Principles and Current Crises in Constitutional Criminal Procedure, 24 Law &
Social Inquiry 533, 542–43 (1999); see also George C. Thomas III, Stumbling Towards History: The Framers' Search and
Seizure World, 43 Tex. Tech. L. Rev. 199 (2010).
23. Boyd v. United States, 116 U.S. 616, 627 (1886) (quoting Lord Camden).
24. Kyllo v. United States, 533 U.S. 27, 34 (2001). As is developed in Chapter 6, it appeared to most legal observers that
the Supreme Court shifted in the 1960s from a property-rights to a privacy-oriented view of the Fourth Amendment. (However,
even then, the Court warned that the Fourth Amendment “cannot be translated into a general constitutional ‘right to privacy.’”
Katz v. United States, 389 U.S. 347, 350 (1967).) However, in 2012, the Supreme Court stated that the privacy-oriented
approach to the Fourth Amendment did not displace—it merely augmented—the previous property-oriented interpretation.
United States v. Jones, 565 U.S. 400 (2012).
25. United States v. United States District Court, 407 U.S. 297, 313 (1972).
26. Payton v. New York, 445 U.S. 573, 589 (1980).
27. Kyllo v. United States, 533 U.S. 27 (2001) (holding that the Fourth Amendment protects persons from indiscriminate
use of “thermal imaging devices,” which can be used on public land to detect relative amounts of heat escaping private homes).
28. California v. Acevedo, 500 U.S. 565, 585 (1991) (Scalia, J., concurring).
29. Stuntz, Note 1, supra, at 1020.
30. Sundby, Note 1, supra, at 1754.
31. Id. at 1777.
32. Id. at 1809.
33. Colb, Note 1, supra. See also Clancy, Purpose of the Fourth Amendment, Note 1, supra.
34. See §§ 2.05 and 2.07[B], supra; and 8.02[F] and 17.03[B][5], infra.
35. Rakas v. Illinois, 439 U.S. 128 (1978).
36. Weeks v. United States, 232 U.S. 383 (1914).
37. Mapp v. Ohio, 367 U.S. 643 (1961).
38. Hudson v. Michigan, 547 U.S. 586, 597 (2006) (“That would be forcing the public today to pay for the sins and
inadequacies of a legal regime that existed almost a half century ago.”).
39. Herring v. United States, 555 U.S. 135 (2009).
40. Akhil R. Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1179 (1991).
41. See § 4.03, supra.
42. Amar, Note 40, supra, at 1179.
43. George C. Thomas III & Barry S. Pollack, Saving Rights from a Remedy: A Societal View of the Fourth Amendment, 73
B.U. L. Rev. 147, 149 (1993).
44. E.g., id.; Amar, Note 1, supra, at 817–19.
45. See generally 1 LaFave, Note 1, supra, at § 1.8.
46. Although most Fourth Amendment litigation involves searches and seizures by police officers, the amendment applies
to other public employees, such as firefighters, e.g., Michigan v. Tyler, 436 U.S. 499 (1978), public school teachers, e.g., New
Jersey v. T. L. O., 469 U.S. 325 (1985), and housing inspectors, e.g., Camara v. Municipal Court, 387 U.S. 523 (1967).
47. See Burdeau v. McDowell, 256 U.S. 465 (1921).
48. United States v. Jarrett, 338 F.3d 339 (4th Cir. 2003).
49. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 614 (1989); see United States v. Jacobsen, 466 U.S. 109,
113–14 (1984).
50. Skinner, 489 U.S. at 614.
51. See Wayne A. Logan, Dirty Silver Platters: The Enduring Challenge of Intergovernmental Investigative Illegality, 99
Iowa L. Rev. 293 (2013).
52. Id. at 307–16. Before the 1960s, the exclusionary rule did not apply to many of the states; thus, law enforcement
officers often used the silver platter doctrine to allow state officers to conduct searches and then hand the evidence over to
federal agents. Today, state rules are apt to be stricter than federal rules, and so the silver platter doctrine usually works in the
opposite direction.
53. See generally 1 LaFave, Note 1, supra, at § 1.8(h).
54. 494 U.S. 259 (1990).
55. Id. at 276.
56. Id. at 278.
57. 1 LaFave, Note 1, supra, at 325–326.
Chapter 5
§ 5.02 “Persons”
The word “person” in the Fourth Amendment phrase implicates searches and seizures that involve: (1) D's
body, as a whole, such as when she is arrested;2 (2) the exterior of D's body, including her clothing, such as
when she is patted down for weapons or when the contents of her clothing are searched;3 and (3) the interior
of D's body, such as when blood is extracted to test for alcohol content.4
Early in the twentieth century, the Supreme Court held that the Fourth Amendment applied only to
searches and seizures of material things.5 Based on that in [65/66] terpretation, oral communication was not
considered a “person, house, paper, or effect”; therefore, warrantless electronic surveillance of conversations
did not violate the Fourth Amendment.6 The Court subsequently reversed itself,7 and has construed the
amendment's protection of “persons” to encompass electronic eavesdropping on their conversations.8
§ 5.03 “Houses”
“House” is broadly construed. It includes virtually all structures that people commonly use as a residence,
whether on a temporary basis, such as a hotel room,9 or on a long-term basis, such as an apartment.10 It also
encompasses buildings attached to the residence, such as a garage.11
For constitutional purposes, the word “house” also includes the curtilage of the home, that is, “the area to
which extends the intimate activity associated with the ‘sanctity of a man's home and the privacies of
life.’”12 In contrast, so-called “open fields”—“any unoccupied or undeveloped area outside of the
curtilage”13 of a home—are excluded.14
Offices, stores, and other commercial buildings are included within the term “houses,”15 a conclusion that
the Supreme Court stated has “deep roots in the history of the Amendment.”16 However, this does not mean
that the scope of Fourth Amendment coverage of such “houses” is the same: commercial structures are
treated differently from residential property, primarily because one's expectations of privacy in the former are
less than in homes.17
1. Emphasis supplied.
2. See, e.g., Chimel v. California, 395 U.S. 752 (1969).
3. See, e.g., Terry v. Ohio, 392 U.S. 1 (1968).
4. See, e.g., Schmerber v. California. 384 U.S. 757 (1966).
5. Olmstead v. United States, 277 U.S. 438 (1928).
6. Id.
7. Katz v. United States, 389 U.S. 347 (1967).
8. Oliver v. United States, 466 U.S. 170, 176 n.6 (interpreting Katz).
9. See, e.g., Stoner v. California, 376 U.S. 483 (1964).
10. See, e.g., Clinton v. Virginia, 377 U.S. 158 (1964) (per curiam).
11. See, e.g., Taylor v. United States, 286 U.S. 1 (1932).
12. Oliver v. United States, 466 U.S. at 180 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).
13. Id. at 180 n.11.
14. Hester v. United States, 265 U.S. 57 (1924); Oliver v. United States, 466 U.S. 170 (1984); see generally 1 Wayne R.
LaFave, Search and Seizure § 2.4(a) (4th ed. 2004). The factors that distinguish a curtilage from an open field are considered at
§ 6.06[B], infra.
15. See, e.g., See v. City of Seattle, 387 U.S. 541 (1967); see generally 1 LaFave, Note 14, supra, at § 2.4(b).
16. Oliver v. United States, 466 U.S. at 178 n.8.
17. Minnesota v. Carter, 525 U.S. 83, 90 (1998); New York v. Burger, 482 U.S. 691, 700 (1987).
18. See, e.g., Andresen v. Maryland, 427 U.S. 463 (1976) (business records).
19. See, e.g., United States v. Chadwick, 433 U.S. 1 (1977) (automobile); Bond v. United States, 529 U.S. 334 (2000)
(luggage); United States v. Edwards, 415 U.S. 800 (1974) (clothing); Warden v. Hayden, 387 U.S. 294 (1967) (weapons,
money from a robbery).
20. Oliver v. United States, 466 U.S. at 177.
Chapter 6
[B] Dog-Sniffs
[96/97] In United States v. Place,124 Drug Enforcement Administration (DEA) agents seized luggage
belonging to P, a deplaning airline passenger whom they suspected of drug possession, and subjected it to a
“sniff test” by a dog trained to discover narcotics. The dog “reacted positively” to one piece of luggage.
The Supreme Court was anxious to resolve the validity of this type of investigatory procedure. Although
resolution of the issue was unnecessary to the decision, and the matter had not been briefed or argued in the
Court, the justices declared that the dog sniff in this case—critically limited to “exposure of [P's] luggage,
which was located in a public place, to a trained canine”—did not constitute a search.
The Court focused on two facts. First, the information was obtained in a comparatively nonintrusive
manner: the luggage, observed in a public area, was not opened and, thus, its contents were never exposed to
the public eye. Second, the information revealed by the test was extremely limited, as “the sniff discloses
only the presence or absence of narcotics, a contraband item.”
This latter factor is of particular significance to the Court. In Illinois v. Caballes,125 the Supreme Court
again upheld as a “non-search” the use of a narcotics-trained dog—this time to walk around an automobile
lawfully stopped on the highway for speeding—to sniff for drugs. Justice Stevens, for the Court, stated that
“any interest in possessing contraband cannot be deemed ‘legitimate,’ and thus, governmental conduct that
only reveals the possession of contraband ‘compromises no legitimate privacy interest.’” As he further put it,
a “dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the
location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”
Place and Caballes involved the use of a dog to smell for contraband in a container (luggage, or an
automobile) lawfully encountered in a public area. These decisions left open the question of whether use of a
dog to sniff the exterior of private enclaves, such as a home, for contraband also falls within the no-search
principle. Various state courts, applying their own constitutions, have rejected Place in such
circumstances.126
[97/98] In the past, the Supreme Court has sent mixed signals on this question. In Kyllo v. United
States,127 the Court ruled that police use, outside a home, of sense-enhancing technology, to secure
information regarding activities inside a home—information that could not otherwise be obtained without
physical intrusion into the dwelling—constitutes a search (at least where the technology in question is not in
general public use). “Dog sniffing,” of course, is not “technology,” but it is sense-enhancing, in that specially
trained dogs can smell contraband in circumstances in which humans cannot. The Kyllo Court's strong
language about the sanctity of the home—most especially its assertion that, in the home, “all details are
intimate details”—suggests that use of a dog outside a home, to sniff for contraband inside a residence, could
constitute a Fourth Amendment search.
On the other hand, the reasoning of Caballes, which placed great emphasis on the nature of the
information secured—the presence of contraband—could well suggest that the Court will not protect home-
dwellers from dog sniffs outside their front doors. Indeed, in Caballes, the Court distinguished Kyllo, stating
that “[c]ritical to that decision was the fact that the [technological] device [used] was capable of detecting
lawful activity—in that case, intimate details in a home. . . . The legitimate expectation that information
about perfectly lawful activity will remain private is categorically distinguishable from [a person's] hopes or
expectations concerning the nondetection of contraband in the trunk of his car.”
You will notice that the Court applied reasonable-expectation-of-privacy analysis in Place and Caballes.
However, as noted in Section 6.03[E], the Supreme Court now applies both the Katz reasonable-expectation-
of-privacy doctrine and the Jones trespass analysis in determining whether police activity constitutes a
Fourth Amendment search. If the activity is a “search” under either approach, it triggers Fourth Amendment
scrutiny. This dual approach is seen in the Supreme Court's recent treatment, in Florida v. Jardines,128 of a
“dog sniff” outside a person's home.
In Jardines, the police responded to an unverified tip that marijuana was being grown in J's home by
approaching the front porch with a dog trained to detect the scent of marijuana, cocaine, heroin, and several
other drugs. The dog's behavioral changes alerted his handler to the presence of illegal narcotics inside the
home.
Did this use of the dog constitute a “search,” although the use of trained dogs in Place and Caballes did
not? Justice Scalia, writing for a five-justice majority, held that this police activity did constitute a search, but
he reached this conclusion on “trespass” rather than expectation-of-privacy grounds. Applying pre-Katz
language and reasoning, Justice Scalia held that the police conduct constituted a physical intrusion of [98/99]
a constitutionally protected area. The front porch was within the curtilage”129 of the house. According to the
Court, “when it comes to the Fourth Amendment, the home is first among equals. At the ‘very core’ stands
‘the right of a man to retreat into his home and there be free from unreasonable governmental intrusion.’”
And, the Court reasoned, that right “would be of little practical value if the State's agents could stand in a
home's porch or side garden and trawl for evidence with impunity.”
But how was this an “intrusion”? People—neighbors, mail carriers, Girl Scout cookie-sellers, trick-or-
treaters, peddlers, and even police—come to the front doors of homes all the time.130 Are they trespassing?
Justice Scalia stated that such people ordinarily have an implicit license to come to the door, “knock
promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” Here, however,
“introducing a trained police dog to explore the areas around the home in hopes of discovering incriminating
evidence is something else. There is no customary invitation to do that.”
Justice Kagan, joined by Justices Ginsburg and Sotomayor, while joining the Scalia opinion, wrote a
concurring opinion. They stated that the same result would apply using reasonable-expectation-of-privacy
analysis. Justice Kagan asked us to hypothesize a stranger coming to our front door carrying “super-high-
powered binoculars,” and not knocking, but instead using the binoculars to peer through the window “into
your home's furthest corners. . . . In just a couple of minutes, his uncommon behavior allows him to learn
details of your life you disclose to no one.” To the concurring justices, this conduct is not only a trespass but
an invasion of our reasonable expectations of privacy. For the concurring justices, therefore, Place and
Caballes do not apply here because this was Jardines' home and not luggage in a public airport or a car on a
public road.131
Justice Alito, writing for the Chief Justice, and Justices Kennedy and Breyer, dissented. He reasoned that
dogs have been domesticated for “about 12,000 years,” were “ubiquitous” in this country and Britain at the
time of the adoption of the Fourth Amendment, and “their acute sense of smell has been used in law
enforcement for centuries. Yet the Court has been unable to find a single case . . . that supports the rule on
which its decision is based.” Alito observed that the police activity took only “a minute or two” and occurred
on the front porch, not in the backyard or in another presumably forbidden area. According to the dissenters,
trespass analysis is not based on whether the person knocks at the door (mail carriers frequently don't) or
whether [99/100] the person on the front porch is, for example, a tolerable or intolerable peddler (“Girl
Scouts selling cookies versus adults selling aluminum siding”).
As for the concurring opinion's privacy analysis, Justice Alito stated: “I see no basis for concluding that
the occupants of a dwelling have a reasonable expectation of privacy in odors that emanate from the dwelling
and reach spots where members of the public may lawfully stand.”
1. See John M. Burkoff, When Is a Search Not a “Search?”: Fourth Amendment Doublethink, 15 U. Toledo L. Rev. 515
(1984).
2. See, e.g., Oliver v. United States, 466 U.S. 170, 173 (1984) (in which the Court framed the issue to be whether the “open
fields” doctrine “permits police officers to . . . search a field,” although the Court went on to hold, in part, that inspection of an
open field is not a Fourth Amendment “search”).
3. Charles E. Moylan, The Fourth Amendment Inapplicable vs. The Fourth Amendment Satisfied: The Neglected Threshold
of “So What?”, 2 So. Ill. U.L.J. 75, 76 (1977).
4. Id. at 75.
5. Justice Antonin Scalia recently pointed out that “[w]hen the Fourth Amendment was adopted, as now, to ‘search’ meant
‘[t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house
for a book; to search the wood for a thief.’ N. Webster, An American Dictionary of the English Language 66 (1828) (reprint
6th ed. 1989).” Kyllo v. United States, 533 U.S. 27, 32 n.1 (2001).
6. See generally Daniel J. Solove, Fourth Amendment Pragmatism, 51 B.C. L. Rev. 1511 (2010) (arguing for a pragmatic
approach to the Fourth Amendment in which the “Coverage Question”—whether the Fourth Amendment is implicated—is
broadly interpreted, so as to focus instead on the question of whether the Fourth Amendment bars the particular activity in
question).
7. Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 849 (1935).
8. George C. Thomas III, Law's Social Consequences, 51 Rutgers L. Rev. 845, 847 (1999).
9. A myriad of sub-issues arise in any “reasonableness” analysis, such as: (1) Should the reasonableness of particular police
activity be resolved on a case-by-case basis, or should the Court try to provide generalizable answers?; (2) To what extent is
the presence or absence of a search warrant relevant?; (3) To what extent should the reasonableness inquiry be governed by the
framers' intent and seventeenth-century common law history?; and (4) To what extent is the appropriate inquiry what “citizens
in a civilized society are entitled to expect [from] their government”? Jeffrey Rosen, Here's Looking At You, The New
Republic, Oct. 16, 2000, at 24, 26. This latter issue, of course, is unabashedly normative in nature, which insures vigorous
debate. But these questions and others are an inevitable feature of constitutional adjudication of a text that prohibits
“unreasonable searches and seizures.”
10. 389 U.S. 347 (1967).
11. 565 U.S. 400 (2012).
12. 116 U.S. 616 (1886).
13. Ironically, Boyd also provided support for the privacy-oriented view of the Fourth Amendment that ultimately
developed. See Tom Bush, A Privacy-Based Analysis for Warrantless Aerial Surveillance Cases, 75 Cal. L. Rev. 1767,
1789–91 (1987).
14. See § 4.03, supra.
15. 19 Howell St. Tr. 1029, 1066 (1765) (Eng.).
16. Lanza v. New York, 370 U.S. 139, 142 (1962).
17. United States v. Jones, 565 U.S. 400, 408 n.5 (2012).
18. 277 U.S. 438 (1928), overruled by Katz v. United States, 389 U.S. 347 (1967).
19. See especially § 5.02, supra.
20. See generally Symposium, Katz v. U.S.: 40 Years Later, 41 U.C. Davis L. Rev. 775–1325 (2008); Anthony G.
Amsterdam, Perspectives On The Fourth Amendment, 58 Minn. L. Rev. 349 (1974); Burkoff, Note 1, supra; William C.
Heffernan, Fourth Amendment Privacy Interests, 92 J. Crim. L. & Criminology 1 (2001); Lewis R. Katz, In Search of a Fourth
Amendment for the Twenty-First Century, 65 Ind. L.J. 549 (1990); Harvey A. Schneider, Katz v. United States: The Untold
Story, 40 McGeorge L. Rev. 13 (2009) (describing the author's involvement in legal representation of Katz before the Supreme
Court); David Alan Sklansky, “One Train May Hide Another”: Katz, Stonewall, and the Secret Subtext of Criminal Procedure,
41 U.C. Davis L. Rev. 875 (2008); Solove, Note 6, supra; James J. Tomkovicz, Beyond Secrecy for Secrecy's Sake: Toward an
Expanded Vision of the Fourth Amendment Privacy Province, 36 Hastings L.J. 645 (1985); Peter Winn, Katz and the Origins of
the “Reasonable Expectation of Privacy” Test, 40 McGeorge L. Rev. 1 (2009); Note, A Reconsideration of the Katz
Expectation of Privacy Test, 76 Mich. L. Rev. 154 (1977).
21. 389 U.S. 347 (1967).
22. Id. at 362 (Harlan, J., concurring).
23. Tomkovicz, Note 20, supra, at 650–51.
24. Id. at 651.
25. Katz did not consider the question of who has the burden of proof in search cases. However, in Florida v. Riley, 488
U.S. 445 (1989), four justices inferentially, id. at 451, and a fifth justice (Justice O'Connor) expressly, id. at 455, suggested that
the defendant must provide facts that would support the claim that his expectation of privacy was reasonable. Four justices
dissented on this issue. Id. at 465. In issues of standing, which the Court has equated to the “search” question, see § 19.04[A],
infra, the Court has expressly held that the defendant “bears the burden of proving ... that he had a legitimate expectation of
privacy” in the area searched. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).
26. E.g., Illinois v. Andreas, 463 U.S. 765, 771 (1983).
27. Smith v. Maryland, 442 U.S. 735, 740 (1979); see also Katz, 389 U.S. 347, 353 (1967) (“The Government's activities . .
. violated the privacy upon which [D] justifiably relied . . .”).
28. Suppose, in Katz, that X, a lip reader, had stood outside the booth and “listened” to K's conversation? If K had observed
X watching his lips, would he have had a reasonable expectation of privacy regarding this mode of interception of his
conversation? Perhaps not, at least if K had understood that X was reading his lips. Under such circumstances, it may be said
that K “knowingly exposed” (to use Justice Stewart's language) his words to X; his conversations were “in the open” (to use
Justice Harlan's words) insofar as X was concerned. As well, Stewart explicitly distinguished between “intruding eyes” and
“uninvited ears.” One could reason, therefore, that Katz stands for the proposition that a person may have a reasonable
expectation of privacy regarding one mode of intrusion, and yet have none if the same information is intercepted in a different
manner. See §6.04[B], infra.
29. Amsterdam, Note 20, supra, at 385.
30. United States v. White, 401 U.S. 745, 786 (1971) (dissenting opinion).
31. Solove, Note 6, supra, at 1511.
32. E.g., Amsterdam, Note 20, supra, at 384; Burkoff, Note 1, supra, at 537–39; Wayne R. LaFave, The Fourth Amendment
Today: A Bicentennial Appraisal, 32 Vill. L. Rev. 1061, 1080–81 (1987); Note, Note 20, supra, at 157–58.
33. Raymond Shih Ray Ku, The Founders' Privacy: The Fourth Amendment and the Power of Technological Surveillance,
86 Minn. L. Rev. 1325, 1327 (2002) (“[T]he Supreme Court's current Fourth Amendment doctrine allows government to
determine for itself the scope of its own powers.”); in this regard see Joel Brinkley, Israel in Uproar Over TV Report
Confirming Existence of Secret Army Unit, New York Times, June 24, 1991, at A3 (a military security film showing two Israeli
soldiers disguised as Arabs catching a “Palestinian suspect” was shown on Israeli television; the stated purpose was “simply to
scare the Arabs”; according to an Army spokesman, “Now they will be aware of the fact that nothing is secured. . . . [T]hat's
exactly [the atmosphere] we are trying to create.”).
34. Consider Rosen, Note 9, supra, at 26 (“[T]he FBI's unfortunately named Carnivore system . . . invisibly searches
everyone's e-mail but alerts law enforcement only when it finds the particular messages it has been programmed to look for.”).
35. Kyllo v. United States, 533 U.S. 27, 36 n. 3 (2001) (“The ability to ‘see’ through walls and other opaque barriers is a
clear, and scientifically feasible, goal of law enforcement research and development.”).
36. Christopher Slobogin, Peeping Techno-Toms and the Fourth Amendment: Seeing Through Kyllo's Rules Governing
Technological Surveillance, 86 Minn. L. Rev. 1393, 1402–04 (2002) (applying what he calls the “Wal-Mart test,” the author
describes some of the devices readily accessible to large segments of the public for intruding on the privacy of others).
37. The same criticism applies to Justice Stewart's “knowing exposure to the public” test. In view of modern technology
and other incursions into citizens' private lives, virtually everyone knowingly exposes intimate and private details of their lives
to others. Had Stewart simply substituted the word “purposely” for “knowingly,” his standard would have resulted in much
broader constitutional protection: “Purposeful” exposure only occurs when it is the conscious objective of the individual to
expose the information to others. Today we knowingly expose a great deal of private information that we do not desire to
expose. Contra, Sherry F. Colb, What Is a Search? Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a
Remedy, 55 Stan. L. Rev. 119, 124 (2002) (characterizing the “knowing exposure” concept as “basically sound,” but arguing
that the Supreme Court has given improper content to the concept).
38. United States v. White, 401 U.S. 745, 786 (1971) (dissenting opinion).
39. Smith v. Maryland, 442 U.S. 735, 740 n.5 (1979). Although the Court, in a majority opinion, has not elaborated on this
remark, five justices recently have. In United States v. Jones, 565 U.S. 400 (2012), the Court considered the question of
whether the attachment of a Global-Positioning-System (GPS) tracking device to a suspect's automobile, and subsequent
monitoring of his movements for 28 days, constituted a Fourth Amendment search. Justice Alito, writing as well for Justices
Ginsburg, Breyer, and Kagan, observed that “the Katz test rests on the assumption that [there is] a well-developed and stable
set of privacy expectations. But technology can change those expectations. Dramatic technological change may . . . produce
significant changes in popular attitudes.” Thus, it would seem Alito is stating in part that the subjective expectations of
members of the public are apt to be affected—reduced—as a result of technological “advances.” Justice Sotomayor, as well,
expressed her concern that “the same technological advances that have made possible nontrespassory surveillance techniques
will also affect the Katz test by shaping the evolution of societal privacy expectations.” She indicated that she is open to
reconsidering some post-Katz case law because of her concern that modern surveillance techniques are tools “so amenable to
misuse, especially in light of the Fourth Amendment's goal to curb arbitrary exercises of police power. . . .”
40. Orin Kerr, Katz Has Only One Step: The Irrelevance of Subjective Expectations, 82 U. Chi. L. Rev. 113 (2015).
41. See generally Christopher Slobogin & Joseph E. Schumacher, Reasonable Expectations of Privacy and Autonomy in
Fourth Amendment Cases: An Empirical Look at “Understandings Recognized and Permitted by Society”, 42 Duke L.J. 727
(1993).
42. LaFave, Note 32, supra, at 1081.
43. Note, Note 20, supra, at 155–56.
44. State v. Campbell, 759 P.2d 1040, 1044 (Or. 1988).
45. Amsterdam, Note 20, supra, at 403; see also Rosen, Note 9, supra, at 26 (“The question is whether citizens in a
civilized society are entitled to expect that their government isn't lurking in front of their homes and peering through their walls
without proper cause.”).
46. For the Court's judgment in this regard, see § 6.07, infra.
47. United States v. White, 401 U.S. 745, 786 (1971) (dissenting opinion).
48. Smith v. Maryland, 442 U.S. 735, 740 n.5 (1979).
49. See § 6.06[A], infra.
50. See § 6.07, infra.
51. See § 6.08, infra.
52. See also United States v. Jones, 565 U.S. 400, 427 (2012) (Alito, J., concurring in judgment) (stating that societal
expectations of privacy are not stable and that “popular expectations [of privacy] are in flux,” thus implying that the
reasonable-expectation-of-privacy test is determined empirically and not normatively).
53. See, e.g., Orin Kerr, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503 (2007) (arguing that the term
“reasonable” in the objective test is generally normative, though in some cases the normative test ends up being empirical in
nature).
54. At least one scholar has suggested allowing juries to decide these questions, since they are better equipped than judges
in determining what constitutes society's “reasonable expectation of privacy.” See Meghan J. Ryan, Juries and the Criminal
Constitution, 65 Ala. L. Rev. 849 (2014).
55. See Minnesota v. Carter, 525 U.S. 83, 97 (1998) (Scalia and Thomas, JJ, concurring) (“In my view, the only thing the
past three decades have established about the Katz test ... is that, unsurprisingly, those ‘actual (subjective) expectation[s] of
privacy’ ‘that society is prepared to recognize as “reasonable” ‘ bear an uncanny resemblance to those expectations of privacy
that this Court considers reasonable.”).
56. The Supreme Court has never sought to use reliable social science literature to determine public expectations of
privacy. One study in this regard suggests that “the Supreme Court's conclusions about the scope of the Fourth Amendment are
often not in tune with commonly held attitudes about police investigative techniques.” Slobogin & Schumacher, Note 41,
supra, at 774.
57. 565 U.S. 400 (2012); see generally Thomas K. Clancy, United States v. Jones: Fourth Amendment Applicability in the
21st Century, 10 Ohio St. J. Crim. L. 303 (2012); Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L.
Rev. 311 (2012); Erin Murphy, United States v. Jones, 10 Ohio St. J. Crim. L. 325 (2012).
58. The officers obtained a District of Columbia warrant authorizing them to attach the GPS within 10 days and to conduct
surveillance. However, agents installed the device in Maryland (rendering the warrant invalid) and too late (on the eleventh
day).
59. 565 U.S. at 402.
60. See Section 6.10[C] below.
61. Id. at 950 (emphasis added).
62. Id. at 951, n.3.; see also id. at 955 (Sotomayor, J., concurring) (“[T]he trespassory test . . . reflects an irreducible
constitutional minimum: When the Government physically invades personal property to gather information, a search occurs.”).
63. Id. at 951 n.5.
64. See Section 6.06.
65. Id. at 958.
66. Florida v. Jardines, 569 U.S. 1 (2013).
67. Grady v. North Carolina, 535 U.S. 306 (2015).
68. See generally Burkoff, Note 1, supra; Thomas K. Clancy, What Is a “Search” Within the Meaning of the Fourth
Amendment?, 70 Albany L. Rev. 1 (2006); Colb, Note 37, supra; Melvin Gutterman, A Formulation of the Value and Means
Models of the Fourth Amendment in the Age of Technologically Enhanced Surveillance, 39 Syracuse L. Rev. 647 (1988);
Heffernan, Note 20, supra; Stephen E. Henderson, Beyond the (Current) Fourth Amendment: Protecting Third-Party
Information, Third Parties, and the Rest of Us Too, 34 Pepperdine L. Rev. 975 (2007); Katz, Note 21, supra; Christopher
Slobogin, Technologically-Assisted Physical Surveillance: The American Bar Association's Tentative Draft Standards, 10 Harv.
J. L. & Techn. 383 (1997); Slobogin & Schumacher, Note 41, supra; Scott E. Sundby, “Everyman's Fourth Amendment:
Privacy or Mutual Trust Between Government and Citizen?, 94 Colum. L. Rev. 1751 (1994); Tomkovicz, Note 20, supra.
69. See § 6.10, infra.
70. E.g., California v. Greenwood, 486 U.S. 35, 39 (1988) (“It may well be that respondents did not expect that the contents
of their garbage bags would become known to the police or other members of the public.”); Oliver v. United States, 466 U.S.
170, 177 (1984) (not discussing the subjective prong, and simply stating that “[t]he Amendment does not protect the merely
subjective expectation of privacy. . . .”); United States v. White, 401 U.S. 745, 751 (1971) (“Very probably, individual
defendants neither know nor suspect that their colleagues have gone or will go to the police or are carrying recorders or
transmitters. Otherwise, conversation would cease. . . .”).
71. Smith v. Maryland, 442 U.S. 735 (1979). See § 6.10[B], infra.
72. California v. Ciraolo, 476 U.S. 207 (1986). See § 6.07[B], infra.
73. See Payton v. New York, 445 U.S. 573, 590 (1980) (the Fourth Amendment draws “a firm line at the entrance to the
house”); Kirk v. Louisiana, 536 U.S. 635 (2002) (per curiam) (reaffirming Payton's “firm line”); Kyllo v. United States, 533
U.S. 27, 34 (2001) (noting that the interior of a home “is a ready criterion, with roots deep in the common law, of the minimal
expectation of privacy that exists and that is acknowledged to be reasonable.”).
74. See § 6.09, infra.
75. Katz, Note 21, supra, at 568.
76. See § 6.07[C], infra.
77. See § 6.03[D][3], supra.
78. E.g., People v. Triggs, 506 P.2d 232 (Cal. 1973) (police observation from a hidden “plumbing access area” of activities
in a doorless public toilet stall constitutes a “search”), overruled on other grounds, People v. Lilienthal, 587 P.2d 706 (Cal.
1978); see State v. Bonnell, 856 P.2d 1265 (Haw. 1993) (in which the court applying the state constitution, but defining
“search” in Katz-ian terms, stated that the mode of governmental intrusion is a relevant factor in determining whether a person
maintains a reasonable expectation of privacy; therefore, the police conducted a “search” when they secretly videotaped
activities in a room used by public employees during their work breaks, although the room was not private and could be
entered freely by anyone). See generally Sklansky, Note 20, supra (arguing that one of the great but ignored achievements of
Katz is that it restricted the then-common practice of police spying on men in toilet stalls to catch homosexual conduct).
79. Oliver v. United States, 466 U.S. 170 (1984); see § 6.06, infra.
80. Bond v. United States, 529 U.S. at 337.
81. Kyllo v. United States, 533 U.S. at 35 n.2 (emphasis added); see also §6.07[C], infra (potentially distinguishing
between airplane and helicopter surveillance).
82. For the Court's answer to this question, see § 6.08, infra.
83. See generally Tracey Maclin, Informants and the Fourth Amendment: A Reconsideration, 74 Wash. U.L.Q. 573 (1996);
Geoffrey R. Stone, The Scope of the Fourth Amendment: Privacy and the Police Use of Spies, Secret Agents, and Informers,
1976 Am. B. Found. Res. J. 1193; H. Richard Uviller, Evidence from the Mind of the Criminal Suspect: A Reconsideration of
the Current Rules of Access and Restraint, 87 Colum. L. Rev. 1137 (1987).
84. 389 U.S. 347 (1967).
85. 385 U.S. 293 (1967).
86. 401 U.S. 745 (1971).
87. Uviller, Note 83, supra, at 1198.
88. Stone, Note 83, supra, at 1233.
89. Fabrication occurs because, as one prosecutor observed about police informants, “[t]hey are scum, the underbelly of the
system. Informants will not testify because they are nice guys. . . . [W]e are trading something for something.” Robert
Reinhold, California Shaken Over an Informer, New York Times, Feb. 17, 1989, at 1; e.g., A Snitch's Story: In L.A., an
Informer Blows the Whistle—On Himself, Time Magazine, Dec. 12, 1988, at 32 (informant admitted to concocting false
confessions in as many as 120 criminal cases resulting in convictions).
90. In a companion case to Hoffa, the Supreme Court ruled that the Fourth Amendment was not violated when X, a federal
agent, misrepresented his identity and purpose and thereby obtained an invitation to L's home, where an illegal narcotics sale
occurred in X's presence. Lewis v. United States, 385 U.S. 206 (1966). The Court held that X's testimony regarding the sale was
admissible because his activities inside L's premises remained within the scope of L's invitation. Chief Justice Warren observed
that “[w]ere we to hold the deceptions of the agent in this case constitutionally prohibited, we would come near to a rule that
the use of undercover agents in any manner is virtually unconstitutional per se.” Id. at 210.
91. United States v. White, 401 U.S. 745 (1971) (plurality opinion); contra under the state constitution, State v. Goetz, 191
P.3d 489 (Mont. 2008) (warrantless electronic monitoring and recording of defendant's conversations with a police informant in
the defendant's home or automobile is prohibited); State v. Allen, 241 P.3d 1045 (Mont. 2010) (warrantless recording of cell
phone conversations is also unconstitutional even if one of the participants to the conversation consents); State v. Mullens, 650
S.E.2d 169 (W. Va. 2007) (the police may not surreptitiously use an electronic device to record conversations between the
defendant and a police agent in the defendant's home without a warrant); State v. Blow, 602 A.2d 552 (Vt. 1991) (electronic
participant-monitoring of conversations conducted in a person's home ordinarily requires a search warrant); State v. Geraw, 795
A.2d 1219 (Vt. 2002) (police must obtain a warrant before surreptitiously tape recording a face-to-face conversation in a
suspect's home).
92. 1 Wayne R. LaFave, Search and Seizure § 2.4(a) (4th ed. 2004).
93. See subsection [B] for clarification of what constitutes an “open field.”
94. Hester v. United States, 265 U.S. 57 (1924).
95. 466 U.S. 170 (1984); contra under the state constitution, Barnard v. State, 124 So. 479 (Miss. 1929) (an open field is
subject to state constitutional protection); People v. Scott, 593 N.E.2d 1328 (N.Y. 1992) (same); Welch v. State, 289 S.W. 510
(Tenn. 1926) (same); State v. Kirchoff, 587 A.2d 988 (Vt. 1991) (same); State v. Myrick, 688 P.2d 151 (Wash. 1984) (same);
see also State v. Bullock, 901 P.2d 61 (Mont. 1995) (holding that a person may have an expectation of privacy in an open field,
and that where that expectation is evidenced by fencing, a “no trespassing” sign, or by some other means that unmistakably
indicates that entry is not permitted, entry by law enforcement requires consent or a warrant); State v. Dixson, 766 P.2d 1015
(Or. 1988) (same).
96. This portion of Oliver may be considered dictum because the Court, 6–3, first disposed of the case on an alternative
ground, albeit in just two paragraphs. (Justice White refused to concur in the “search” portion of the opinion because it was
dictum.) It quoted Justice Holmes, in Hester v. United States, Note 94 supra, that “the special protection accorded by the
Fourth Amendment to the people in their ‘persons, houses, papers, and effects’ is not extended to the open fields. The
distinction between the latter and the house is as old as the common law.” The Court also held that an open field is not an
“effect” within the meaning of the Fourth Amendment, as the latter does not encompass real property. See §§ 5.03, 5.04, supra.
97. The dissenters strenuously disagreed. They suggested that “[m]any landowners like to take solitary walks on their
property,” and they speculated that landowners may use their open fields “to meet lovers, others to gather together with fellow
worshippers, still others to engage in sustained creative endeavors.” Perhaps most tellingly, the dissenters reminded the
majority that the cultivation of crops, which the majority did not believe merits constitutional privacy protection, constitutes
landowners' agricultural business. The Court accords constitutional protection to urban businesses by treating office buildings
as “houses” within the meaning of the Fourth Amendment. See § 5.03, supra. The dissent questioned why an open field, a
potential rural “office,” is “less deserving of the benefits of the Fourth Amendment.”
98. Oliver, 466 U.S. at 180 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).
99. 480 U.S. 294 (1987).
100. An issue not decided by the Court in Oliver or since is whether a person may retain a reasonable expectation of privacy
regarding the interior of a structure, such as the barn in Dunn, found in an open field. The Court in Dunn only assumed
arguendo that a search would have occurred if the federal officer had entered the structure and there observed matters or
activities not visible from the open field.
101. Jones v. United States, 565 U.S. at 402 (2012).
102. See Florida v. Jardines, 569 U.S. 1 (2013).
103. Once an officer leaves the front door after talking to the resident, he may not linger in the curtilage but must move back
out into public spaces. See, e.g., Commonwealth v. Dixon, 482 S.W.3d 386 (Ky. 2016).
104. See § 6.09[B] below.
105. After all, the arguments raised by the dissent, see Note 97, supra, might be true in some cases, but not all.
106. See § 2.07[A], supra.
107. This is not the only time the Court has used other people's intrusive conduct as a reason for limiting Fourth Amendment
protections. See § 6.09, infra.
108. See 6.07, infra.
109. See § 6.04[B], supra, and § 6.07[C] and 6.010[D], infra.
110. See generally 1 LaFave, Note 92, supra, at § 2.3(g); Bush, Note 13, supra; Clifford S. Fishman, Technologically
Enhanced Visual Surveillance and the Fourth Amendment: Sophistication, Availability, and the Expectation of Privacy, 26 Am.
Crim. L. Rev. 315 (1988); David E. Steinberg, Making Sense of Sense-Enhanced Searches, 74 Minn. L. Rev. 563 (1990).
111. 476 U.S. 207 (1986).
112. There were no such buses in the community in which the surveillance occurred. Wayne R. LaFave, The Forgotten
Motto of Obsta Principiis in Fourth Amendment Jurisprudence, 28 Ariz. L. Rev. 291, 298 (1986).
113. Notice here the use of Justice Stewart's “knowing exposure to the public” standard from Katz.
114. See § 6.03[D][3], supra.
115. 488 U.S. 445 (1989); contra under the state constitution, State v. Bryant, 950 A.2d 467 (Vt. 2008) (stating in the
context of a helicopter surveillance that the Vermont constitution provides broader protection than the Fourth Amendment).
116. Kyllo v. United States, 533 U.S. 27 (2001), discussed at § 6.09[C], infra, teaches that in the home “all details are
intimate details.” In the curtilage, however, the Court apparently may draw such distinctions.
117. See generally 1 LaFave, Note 92, supra, at § 2.6(c).
118. 486 U.S. 35 (1988); contra under the state constitution, State v. Tanaka, 701 P.2d 1274 (Haw. 1985) (a person maintains
a reasonable expectation of privacy in opaque, closed trash bags left at curbside for garbage collection); State v. Goss, 834
A.2d 316 (N.H. 2003) (id.); State v. Hempele, 576 A.2d 793 (N.J. 1990) (police may seize a garbage bag left for collection
without a warrant or probable cause, but a warrant is required to search its contents); State v. Granville, 142 P.3d 933 (N.M.
App. 2006) (inspection of garbage bags placed in trash cans left outside for collection constitutes a “search” requiring a
warrant); State v. Galloway, 109 P.3d 383 (Or. App. 2005) (a person maintains privacy and possessory interests in the contents
of garbage cans left at curb for collection); State v. Boland, 800 P.2d 1112 (Wash. 1990) (a citizen's private affairs are
unreasonably intruded upon by police officers who remove trash from a garbage can, at curbside, and transport it the police
station for inspection, without a search warrant).
119. See § 6.07, supra.
120. 442 U.S. 735 (1979), discussed at § 6.10[B], infra.
121. See generally 1 LaFave, Note 92, supra, at § 2.2(g); Lewis R. Katz & Aaron P. Golembiewski, Curbing the Dog:
Extending the Protection of the Fourth Amendment to Police Drug Dogs, 85 Neb. L. Rev. 735 (2007); Ric Simmons, The Two
Unanswered Questions of Illinois v. Caballes: How to Make the World Safe for Binary Searches, 80 Tulane L. Rev. 411 (2005);
Steinberg, Note 110, supra.
122. Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978).
123. See, e.g., Lawrence Rosenthal. Binary Searches and the Central Meaning of the Fourth Amendment, 22 Wm. & Mary
Bill Rts. J. 881, 882 (2014).
124. 462 U.S. 696 (1983); contra under the state constitution, Pooley v. State, 705 P.2d 1293 (Alaska Ct. App. 1985) (dog
sniff of luggage constitutes a search, requiring reasonable suspicion); People v. Haley, 41 P.3d 666 (Colo. 2001) (dog sniff of
the exterior of an automobile stopped on the highway is a search requiring reasonable suspicion); People v. Boylan, 854 P.2d
807 (Colo. 1993) (same; dog sniff of a private express courier package); People v. Cox, 782 N.E.2d 275 (Ill. 2002) (dog sniff of
a vehicle is a search, requiring reasonable suspicion); State v. Davis, 732 N.W.2d 173 (Minn. 2007) (reasonable suspicion
strikes the “appropriate balance” under state constitution for dog sniff of a common hallway outside defendant's apartment);
State v. Tackitt, 67 P.3d 295 (Mont. 2003) (dog sniff of automobile is a search, requiring reasonable suspicion); State v.
Pellicci, 580 A.2d 710 (N.H. 1990) (same); People v. Devone, 931 N.E.2d 70 (N.Y. 2010) (same); Commonwealth v. Martin,
626 A.2d 556 (Pa. 1993) (dog sniff of a person is a search, requiring probable cause).
125. 543 U.S. 405 (2005); see generally Simmons, Note 121, supra.
126. See McGahan v. State, 807 P.2d 506 (Alaska Ct. App. 1991) (dog sniff of the exterior of a commercial building is a
search, requiring reasonable suspicion); State v. Rabb, 881 So.2d 587 (Fla. App. 2004) (dog sniff of odors coming from the
closed door of a home is a search); State v. Ortiz, 600 N.W.2d 805 (Neb. 1999) (id., dog sniff of an apartment residence from
the hallway); People v. Dunn, 564 N.E.2d 1054 (N.Y. 1990) (id.); Commonwealth v. Johnston, 530 A.2d 74 (Pa. 1987) (id., dog
sniff of a storage place); State v. Dearman, 962 P.2d 850 (Wash. 1998) (use of a trained narcotics dog to detect marijuana
growing in the defendant's garage constitutes a search).
127. 533 U.S. 27 (2001). Kyllo is discussed in detail in § 6.10[D], infra.
128. 569 U.S. 1 (2013).
129. See § 6.06[B], supra, for the definition of “curtilage.”
130. See § 6.06(b) above.
131. A few years after Jardines was decided, the Seventh Circuit adopted Justice Kagan's reasoning and held that using
drug-sniffing dogs at the door of an apartment building is a “search” under Jardines. This was true even though under Seventh
Circuit law the defendant had no reasonable expectation of privacy in the hallway of his apartment building (the circuits are
split on how Katz applies to the common areas of an apartment building, but the Seventh Circuit's is the majority view).
Nonetheless, the defendant had the right to preclude “persons in the hallway snooping into his apartment using sensitive
devices not available to the general public.” United States v. Whitaker, 820 F.3d 849 (7th Cir. 2016).
132. 466 U.S. 109 (1984).
133. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) (tests of blood and urine for evidence of drug usage is
a “search”).
134. This “gun detector” would only count as a binary search if it is used in a jurisdiction or in a context where concealed
carry of a firearm is illegal—otherwise it could inform the officer that the person is carrying a legal firearm, which would
violate the person's legitimate and reasonable expectation of privacy.
135. See generally Fishman, Note 110, supra; Gutterman, Note 68, supra; Slobogin, Note 68, supra; Steinberg, Note 110,
supra; Symposium, The Effect of Technology on Fourth Amendment Analysis and Individual Rights, 72 Miss. L. Rev. 1–564
(2002).
136. 389 U.S. 347, 362 (1967) (Harlan, J., concurring).
137. The speed at which technology is advancing has made the Court cautious in setting out new rules for evaluating new
surveillance technology. The Court observed in City of Ontario v. Quon, 560 U.S. 746 (2010), that it “must proceed with care
when considering the whole concept of privacy expectations in communications. The judiciary risks error by elaborating too
fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” The Court
contrasted the days of Katz, when justices could rely on their own knowledge and experience “to conclude that there is a
reasonable expectation of privacy in a telephone booth,” with the current “[r]apid changes in the dynamics of communication
and information transmission” that cause difficulty in “predicting how . . . privacy expectations will be shaped . . . or the
degree to which society will be prepared to recognize those expectations as reasonable.”
138. 533 U.S. 27 (2001). See generally Symposium, Searching for the Meaning of Fourth Amendment Privacy After Kyllo v.
United States, 86 Minn. L. Rev. 1325–1438 (2002).
139. Justice Scalia conceded that the technology used in the present case was “relatively crude.” But, citing a Department of
Justice website, he noted that the “ability to ‘see’ through walls and other opaque barriers is a clear, and scientifically feasible,
goal of law enforcement research and development.”
140. Silverman v. United States, 365 U.S. 505 (1961).
141. Although the text of the Fourth Amendment seems to require that search warrants be granted only upon a finding by the
issuing magistrate of probable cause (the text of the Fourth Amendment provides that “. . . no Warrants shall issue, but upon
probable cause . . .”), there is a difference of opinion among federal courts as to whether the warrant required for a thermal
scan may be based on a lesser standard than probable cause. Compare United States v. Huggins, 299 F.3d 1039 (9th Cir. 2002)
(requiring ordinary probable cause) with United States v. Kattaria, 503 F.3d 703 (8th Cir. 2007) (requiring reasonable
suspicion, a lesser standard than probable cause). The concepts of “probable cause” and “reasonable suspicion” are discussed
in the text at §§8.02 (probable cause) and 17.03 (reasonable suspicion).
142. “One might think that . . . examining the portion of a house that is in plain public view, while it is a ‘search’ despite the
absence of trespass, is not an ‘unreasonable’ one under the Fourth Amendment. . . . But in fact we have held that visual
observation is no ‘search’ at all. . . .”
143. It is difficult to see how Kyllo and Smith v. Maryland, 442 U.S. 735 (1979), the pen register case discussed in
subsection [B], can coexist. There, it will be remembered, the Court distinguished between the contents of private
conversations—which Katz protects—and the supposedly more limited information (the phone numbers called from within a
home) provided by a pen register. If the police may use a pen register, a device situated outside the house, to obtain phone
numbers being called inside the house by a resident, it would seem that is permissible to use a thermal-imaging device to
determine relative house heat emanations (which, it should be pointed out, are outside the home when the device records it).
Or, put the opposite way, if the Court intends to stand by Kyllo, the Court might need to reconsider Smith.
144. The Court again cited Silverman for this proposition.
145. Justice Scalia responded in Kyllo that “[t]he fact that equivalent information could sometimes be obtained by other
means does not make lawful the use of means that violate the Fourth Amendment. The police might, for example, learn how
many people are in a particular house by setting up year-round surveillance; but that does not make breaking and entering to
find out the same information lawful.” Thus, Scalia is drawing a mode-of-intrusion distinction. See § 6.04[B], supra. In
contrast, the Supreme Court in Oliver v. United States, see § 6.06, supra, justified trespassing in open fields, in part on the
ground that the police could have obtained the same information lawfully by aerial surveillance.
146. See, e.g., On Lee v. United States, 343 U.S. 747, 754 (1952) (“[t]he use of bifocals, field glasses or the telescope to
magnify the object of a witness' vision is not a forbidden search or seizure, even if they focus without his knowledge or consent
upon what one supposes to be private indiscretions.”) Although On Lee predated the Katz test, its principle is consistent with
Katz.
147. 476 U.S. 227 (1986).
148. 1 LaFave, Note 92, supra, at § 2.7(b).
149. 442 U.S. 735 (1979); contra under the state constitution, People v. Sporleder, 666 P.2d 135 (Colo. 1983); State v.
Rothman, 779 P.2d 1 (Haw. 1989); State v. Thompson, 760 P.2d 1162 (Idaho 1988); State v. Hunt, 450 A.2d 952 (N.J. 1982);
Commonwealth v. Melilli, 555 A.2d 1254 (Pa. 1989); Richardson v. State, 865 S.W.2d 944 (Tex. Crim. App. 1993); State v.
Gunwall, 720 P.2d 808 (Wash. 1986).
150. As noted above in the text, Smith's continued vitality is in some doubt. Further evidence of this assertion is Justice
Sotomayor's statement in a concurring opinion in United States v. Jones, 565 U.S. 400, 417 (2012), that “it may be necessary to
reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third
parties,” citing Smith and Miller. The Court's 2018 Carpenter decision (see below) further weakened the third party doctrine.
151. See § 6.05, supra.
152. 425 U.S. 435 (1976). In Miller, the Court held that a bank customer has no legitimate expectation of privacy in
financial information that he “voluntarily conveys” to bank employees in the ordinary course of business. No search occurs,
therefore, if the bank hands over the customer's financial records to the government. Contra under the state constitution,
People v. Jackson, 452 N.E.2d 85 (Ill. 1983); State v. McAllister, 875 A.2d 866 (N.J. 2005); Commonwealth v. De John, 403
A.2d 1283 (Pa. 1979); State v. Thompson, 810 P.2d 415 (Utah 1991).
153. See, e.g., 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §2.7(c) at 747 (4th ed. 2004)
(describing the doctrine as “dead wrong;” Christopher Slobogin, Privacy at Risk: The New Government Surveillance and the
Fourth Amendment 151–64 (2007). But see Orin Kerr, The Case for the Third Party Doctrine, 107 Mich. L. Rev. 561 (2007)
(arguing in favor of the doctrine).
154. 138 S. Ct. 2206 (2018). For a detailed analysis of the Carpenter decision and the relationship between the Fourth
Amendment and technology more generally, see Susan Freiwald & Stephen W. Smith, The Carpenter Chronicle: A Near
Perfect Surveillance, 132 Harv. L. Rev. 205 (2018).
155. 1 LaFave, Note 92, supra, at § 2.7(e).
156. See § 7.02[B], infra.
157. 460 U.S. 276 (1983); contra under the state constitution, State v. Campbell, 759 P.2d 1040 (Or. 1988).
158. 468 U.S. 705 (1984).
159. LaFave, Note 32, supra, at 1082.
160. United States v. Jones, 565 U.S. 400, 430 (Alito, J., concurring). See also Commonwealth v. Rousseau, 465 Mass. 372,
990 N.E.2d 543 (Mass. 2013) (under the state constitution, even where the police have not trespassed on the defendant's
property, holding that “a person may reasonably expect not to be subjected to extended GPS electronic surveillance by the
government, targeted at his movements, without judicial oversight and a showing of probable cause”).
161. Jones v. United States, 565 at 429 (Alito, J., concurring).
162. Id. (Alito, J., concurring).
163. See United States v. Vargas (No. No. CR-13-6025-EFS; W.D. Wash. Dec 15, 2014) (six weeks of continuous video
surveillance of the defendant's front lawn from a camera on a nearby utility pole is a Fourth Amendment search); Contra
United States v. Houston, 813 F.3d 282 (6th Cir. 2016).
164. See Monu Bedi, Social Networks, Government Surveillance, and the Fourth Amendment Mosaic Theory, 94 B. U. L.
Rev. 1809 (2014).
165. See, e.g., Orin Kerr, The Mosaic Theory and the Fourth Amendment, 111 Mich. L. Rev. 311 (2012).
166. Lower courts have also struggled to define the scope of Jones' plurality decision in cases where the government
engaged in long-term monitoring of public places. In one case, the government installed a camera on a public utility pole near
the suspect's house and monitored the suspect's home continuously for 10 weeks; the Sixth Circuit held that this was not a
search. United States v. Houston, 813 F.3d 282 (2016). In a nearly identical case, however, a district court held that it was a
search when the government used a similar camera to monitor the suspect's front lawn for six weeks. United States v. Vargas,
CR-13-6025-EFS (E.D. Wash. 2014).
167. Kerr, supra note 165, at 334–336.
168. See 18 U.S.C. §§ 3122, 3123.
169. See 18 U.S.C. §§ 2702–2703. The Stored Communication Act also sets different standards for unopened e-mails and
customer records.
170. See 18 U.S.C. § 2518.
171. See Wayne R. LaFave, Search and Seizure, § 2.6(f) (4th ed. 2004); State v. Rodgers, 240 Ariz. 245 (Ariz. 2016) (police
officers conducted a Fourth Amendment search when they looked through defendant's cell phone even though he was not in
possession of the phone and did not have it password protected.
172. See United States v. Forrester, 495 F.3d 1041 (2007).
173. 631 F.3d 266 (6th Cir. 2010).
174. This philosophy was echoed later by Justice Sotomayor of the Supreme Court in her concurrence in United States v.
Jones, in which she stated that given the amount of information routinely given to third parties, courts should no longer
“assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone,
disentitled to Fourth Amendment protection.” United State v. Jones, 565 U.S. 400, 418 (2012) (Sotomayor, J., concurring).
175. See, e.g., Rehburg v. Paulk, 598 F.3d 1268 (11th Cir. 2010) (third party doctrine applies to e-mails because they are
shared with the Internet service provider; United States v. Ciara, 833 F.3d 803 (7th Cir. 2016) (third party doctrine applies to
suspect's login history and the Internet protocol address he logs in from).
Chapter 7
[D] Corroboration
A tipster's information that would not otherwise satisfy the two-pronged Aguilar test may be considered
by a magistrate if the police verify aspects of the informant's facts, as long as it can “fairly be said that the
[corroborated] tip . . . is as trustworthy as a tip which would pass Aguilar's tests without independent
corroboration.”60
Draper v. United States61 again provides a benchmark. In that case, after I provided detailed information
regarding D's activities, the police corroborated some of I's assertions, including D's presence at the train
station on one of the dates predicted, his clothing, and his fast gait. Verification was “the present-tense
equivalent of a good past track record.”62
In contrast, in Spinelli the police “corroborated” an informant's claim that D was a gambler using a
particular residence for bookmaking by learning independently [143/144] that the residence had two
telephone numbers. Corroboration of this “one small detail” was deemed insufficient.
1. See generally Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 782–85 (1994); Fabio
Arcila, Jr., In the Trenches: Searches and the Misunderstood Common-Law History of Suspicion and Probable Cause, 10 U.
Pa. J. Constit. L. 1 (2007); Tracey Maclin, When the Cure for the Fourth Amendment Is Worse Than the Disease, 68 S. Cal. L.
Rev. 1, 25–32 (1994).
2. See §§ 4.02–.03, supra, and § 10.01, infra.
3. Albert W. Alschuler, Bright Line Fever and the Fourth Amendment, 45 U. Pitt. L. Rev. 227, 243 (1984). Not everyone
agrees with this appraisal. Professor Akhil Amar, see Note 1, supra, at 785, points out that the “probable cause” standard is
found only in the Warrant Clause of the Fourth Amendment; therefore, he argues, “probable cause” is central only to cases in
which the police apply for a warrant. As for warrantless searches and seizures, Amar reasons from the text and history of the
Fourth Amendment that police conduct need only be “reasonable,” a much more flexible standard than “probable cause.” For a
vigorous response to Professor Amar's views, see Maclin, Note 1, supra.
4. Brinegar v. United States, 338 U.S. 160, 176 (1949).
5. See Henry v. United States, 361 U.S. 98, 100–101 (1959).
6. Whren v. United States, 517 U.S. 806, 817 (1996). On rare occasions a finding of probable cause seemingly is
insufficient to render a search or seizure reasonable. This is the case when the Fourth Amendment activity is “conducted in an
extraordinary manner, unusually harmful to an individual's privacy or even physical interests—such as, for example, seizure by
means of deadly force, unannounced entry into a home, entry into a home without a warrant, or physical penetration of the
body.” Id. at 818 (internal citations omitted). One scholar has also proposed that probable cause should not be sufficient to
justify an arrest, and that a court should ensure that an arrest is both supported by probable and general reasonableness. One
measure of the reasonableness of the arrest would be the cost to the dignity of the arrestee. See Josh Bowers, Probable Cause,
Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity,” 88 Stan. L. Rev. 987 (2014).
7. See generally 2 Wayne R. LaFave, Search and Seizure § 3.2 (4th ed. 2004); Akhil Reed Amar, Terry and Fourth
Amendment First Principles, 72 St. John's L. Rev. 1097 (1998); Craig S. Lerner, The Reasonableness of Probable Cause, 81
Tex. L. Rev. 951 (2003); Ronald M. Gould & Simon Stern, Catastrophic Threats and the Fourth Amendment, 77 S. Cal. L.
Rev. 777 (2004).
8. Brinegar v. United States, 338 U.S. 160, 175–76 (1949).
9. Gould & Stern, Note 7, supra, at 786.
10. Beck v. Ohio, 379 U.S. 89, 97 (1964).
11. Florida v. Royer, 460 U.S. 491, 507 (1983).
12. Whren v. United States, 517 U.S. 806 (1996). See subsection [F], infra.
13. E.g., Johnson v. United States, 333 U.S. 10 (1948).
14. E.g., Terry v. Ohio, 392 U.S. 1 (1968).
15. Johnson v. United States, 333 U.S. at 13–14. See generally §§ 10.01 and 10.03, infra.
16. Illinois v. Gates, 462 U.S. 213, 236 (1983).
17. United States v. Ventresca, 380 U.S. 102, 109 (1965).
18. See Gouled v. United States, 255 U.S. 298 (1921).
19. 387 U.S. 294 (1967).
20. Some jurisdictions also provide for warrants to be issued to search for and seize any “person . . . who is unlawfully
restrained.” E.g., Fed. R. Crim. P. 41(c)(4). This provision is justified on the ground that the person seized, e.g., a kidnap
victim, is evidence of a crime.
21. E.g., Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (police obtained a warrant to search the files of a student
newspaper for photographs revealing the identity of persons who attacked police officers during a demonstration).
22. Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976).
23. Id.
24. Arguably, a heightened level of probable cause for searches and seizures of personal papers should be demanded. The
concept of a sliding scale of probable cause is considered at §8.07[C], infra.
25. See generally David A. Harris, Problems in Injustice: Why Racial Profiling Cannot Work (2002); Kami Chavis
Simmons, Beginning to End Racial Profiling: Definitive Solutions to an Elusive Problem, 18 Wash. & Lee J. Civil Rts. and
Soc. Just. 25 (2011); Sherry F. Colb, Profiling with Apologies, 1 Ohio St. J. Crim. L. 611 (2004); Sharon L. Davies, Profiling
Terror, 1 Ohio St. J. Crim. L. 45 (2003); Samuel R. Gross & Debra Livingston, Racial Profiling Under Attack, 102 Colum. L.
Rev. 1413 (2002); David A. Harris, “Driving While Black” and All Other Traffic Offenses: The Supreme Court and Pretextual
Traffic Stops, 87 J. Crim. L. & Criminology 544 (1997); Andrew D. Leipold, Objective Tests and Subjective Bias: Some
Problems of Discriminatory Intent in the Criminal Law, 73 Chi.-Kent. L. Rev. 559 (1998); Tracey Maclin, Race and the Fourth
Amendment, 51 Vand. L. Rev. 333 (1998); David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth
Amendment, 1997 Sup. Ct. Rev. 271; William Stuntz, Local Policing After the Terror, 111 Yale L.J. 2137 (2002); Anthony C.
Thompson, Stopping the Usual Suspects: Race and the Fourth Amendment, 74 N.Y.U. L. Rev. 956 (1999); Daniel B. Yeager,
The Stubbornness of Pretexts, 40 San Diego L. Rev. 611 (2003); Ric Simmons, Race and Reasonable Suspicion, 73 Fla. L.
Rev. ___ (2021). See also §§ 2.05, 2.07[B], supra and §17.03[B][5], infra, for further consideration of racial profiling, an
important sub-issue of the pretext controversy.
26. 517 U.S. 806 (1996); contra, under state constitution, State v. Sullivan, 74 S.W.3d 215 (Ark. 2002) (an arrest that
would not have been made but for the officer's wish to investigate a different offense is unreasonable); State v. Ladson, 979
P.2d 833 (Wash. 1999) (pretextual traffic stops are made without “authority of law” and, therefore, prohibited).
27. Whren, 517 U.S. at 813.
28. See Virginia v. Moore, 553 U.S. 164, 171 (2008) (“[W]hen an officer has probable cause to believe a person committed
even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally
reasonable.”).
29. If he can prove intentional discrimination, a victim of racial bias may assert a claim on the basis of the Fourteenth
Amendment Equal Protection Clause, but the Fourth Amendment is not violated thereby.
30. United States v. Roberson, 6 F.3d 1088 (5th Cir. 1993).
31. The Whren Court conceded that it has occasionally suggested that an officer's pretextual motivations may be relevant in
Fourth Amendment analysis, for example, in inventory search cases. See § 15.01[B][1], infra. But Whren said, “only an
undiscerning reader would regard these cases as endorsing the principle that ulterior motives can invalidate police conduct that
is justifiable on the basis of probable cause to believe that a violation of law has occurred. . . . [W]e were addressing [in those
other cases] the validity of a search conducted in the absence of probable cause.” See also City of Indianapolis v. Edmond, 531
U.S. 32 (2000) (in which the Court treated as relevant the motivation behind a drug interdiction checkpoint program in
determining the constitutionality of suspicionless vehicle stops; the Court distinguished Whren on the ground that Whren
“expressly distinguished cases where we had addressed the validity of searches conducted in the absence of probable cause”).
32. The Fourth Amendment does not prohibit a state from authorizing the police to take a person into custody for minor
offenses, even for violation of a highway safety rule. Atwater v. Lago Vista, 532 U.S. 318 (2001). States differ over whether to
provide their police with this authority. See § 9.03, infra.
33. See § 2.06[B], supra, for general discussion of whether subjective or objective rules of criminal procedure are
preferable.
34. It should be noted that the defendants in Whren were only asking for a special probable cause rule in the context of
enforcement of traffic regulations, where the risk of pretextual conduct is especially high.
35. See § 10.03[A], infra.
36. If the officer acts without a warrant, the defendant may later seek a magistrate's post hoc determination that the police
lacked probable cause at the time of the search.
37. Brinegar v. United States, 338 U.S. 160, 173–74 (1949).
38. See McCray v. Illinois, 386 U.S. 300 (1967).
39. Spinelli v. United States, 393 U.S. 410, 414 (1969); Nathanson v. United States, 290 U.S. 41, 47 (1933); see Illinois v.
Gates, 462 U.S. 213, 239 (1983).
40. Nathanson, 290 U.S. 41 (1933).
41. Charles E. Moylan, Jr., Illinois v. Gates: What It Did and What It Did Not Do, 20 Crim. L. Bull. 93, 101 (1984).
42. In such circumstances, see § 10.03[B], infra.
43. However, Ninth Circuit federal judge Alex Kozinski has been quoted as saying that: “[i]t is an open secret long shared
by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers.” Stuart Taylor, Jr., For
the Record, Am. Law., Oct. 1995, at 72. This problem prevails throughout the criminal justice process, and not simply at
probable-cause hearings. Generally speaking, however, despite the “open secret,” judges apparently often accept police
testimony they suspect is perjurious. The reasons for this vary, including the wish to help law enforcement officers convict
persons whom the judge believes is guilty. Other reasons include a desire not to be portrayed in the media as “soft on crime,”
thus jeopardizing re-election. Andrew J. McClurg, Good Cop, Bad Cop: Using Cognitive Dissonance Theory to Reduce Police
Lying, 32 U.C. Davis L. Rev. 389, 405 (1999). For general discussion of the problem of policy perjury (or what has come to be
called “testilying”), as well as consideration of the ethical issues relating to police deceit, see generally Gabriel J. Chin & Scott
C. Wells, The “Blue Wall of Silence” as Evidence of Bias and Motive to Lie: A New Approach to Police Perjury, 59 U. Pitt. L.
Rev. 233 (1998); McClurg, supra; Robert P. Mosteller, Moderating Investigative Lies by Disclosure and Documentation, 76 Or.
L. Rev. 833 (1997); Margaret L. Paris, Lying to Ourselves, 76 Or. L. Rev. 817 (1997); Christopher Slobogin, Testilying: Police
Perjury and What to Do About It, 67 U. Colo. L. Rev. 1037 (1996).
44. Spinelli, 393 U.S. at 423 (White, J., concurring).
45. If the direct evidence alone constitutes probable cause, hearsay information is “redundant and can simply be factored
out.” Moylan, Note 41, supra, at 101.
46. Charles E. Moylan, Jr., Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L. Rev. 741, 758
(1974). Stephen Trott, a former prosecutor, now federal judge, has warned that informants' “willingness to do anything [to help
themselves] includes not only truthfully spilling the beans on friends and relatives, but also lying, committing perjury,
manufacturing evidence, soliciting others to corroborate their lies with more lies, and double-crossing anyone with whom they
come into contact, including . . . the prosecutor.” Mark Curriden, Secret Threat to Justice, National Law Journal, Feb. 20, 1995,
at 1A.
47. See generally Moylan, Note 46, supra.
48. 378 U.S. 108 (1964).
49. 393 U.S. 410 (1969).
50. Moylan, Note 46, supra, at 755.
51. Spinelli, 393 U.S. at 417.
52. Of course, the informant could be lying, but this goes to the veracity prong.
53. Moylan, Note 46, supra, at 749.
54. 358 U.S. 307 (1959).
55. Spinelli, 393 U.S. at 416.
56. Courts do not carefully attend to the veracity prong if the informant was the victim of the offense or an ordinary citizen
who personally witnessed the crime. Although such persons are “informants” (they are sometimes called “citizen-informers” in
an effort to distinguish them from the unsavory characters who ordinarily provide tips), courts typically assume their reliability
absent special circumstances. See generally 2 LaFave, Note 7, supra, at § 3.4.
57. See McCray v. Illinois, 386 U.S. 300 (1967).
58. 403 U.S. 573 (1971).
59. But is an incriminating statement of this sort realistically a declaration against penal interest in light of the fact police
officers often reward informants by not prosecuting them for their admitted offenses?
60. Spinelli, 393 U.S. 410, 415 (1969).
61. 358 U.S. 307 (1959). See the text following Note 55, supra.
62. Moylan, Note 41, supra, at 101.
63. See generally Joseph D. Grano, Probable Cause and Common Sense: A Reply to the Critics of Illinois v. Gates, 17 U.
Mich. J.L. Ref. 465 (1984); Roger S. Hanson, The Aftermath of Illinois v. Gates and United States v. Leon: A Comprehensive
Evaluation of Their Impact Upon the Litigation of Search Warrant Validity, 15 West. St. U.L. Rev. 393 (1988); Yale Kamisar,
Gates, “Probable Cause,” “Good Faith,” and Beyond, 69 Iowa L. Rev. 551 (1984); Moylan, Note 41, supra.
64. 462 U.S. 213 (1983); but see, continuing to apply the Aguilar test under the state constitution: State v. Jones, 706 P.2d
317 (Alaska 1985); Commonwealth v. Upton, 476 N.E.2d 548 (Mass. 1985); State v. Cordova, 784 P.2d 30 (N.M. 1989);
People v. Griminger, 524 N.E.2d 409 (N.Y. 1988); and State v. Jackson, 688 P.2d 136 (Wash. 1984).
65. 378 U.S. 108 (1964); see § 9.04, supra.
66. The letter writer was unknown to the police, so there was no way to judge his or her veracity. The Court also stated that
“we are inclined to agree” that the letter gave “absolutely no indication of the basis for the writer's predictions regarding the
criminal activities.”
67. This was the position taken by Justice White, who concurred in the judgment. He would not have overruled the
Aguilar-Spinelli standard.
68. Justices Stevens, Brennan, and Marshall dissented in two separate opinions, but they were in agreement that, at the time
the police sought the warrant, probable cause was lacking (even applying the new, totality-of-the-circumstances test) for a
search of the house. Justice Stevens was troubled by the informant's incorrect prediction that the wife would fly home
immediately after dropping the car off in Florida, which she did not do. According to Stevens, this discrepancy was
“significant.” First, the informant's description of events always placed one person at the Gates home at all times, the inference
from this being that “the Gates did not want to leave their home unguarded because something valuable [illegal drugs] were
hidden within.” Second, “the discrepancy made the Gates' conduct seem substantially less unusual than the informant had
predicted it would be.” Finally, “the fact that the anonymous letter contained a material mistake undermined the reasonableness
of relying on it as a basis for making a forcible entry into a private home.” Justice Stevens also pointed out that, prior to
seeking the warrant, the police did not confirm that the Gateses were returning home after a suspiciously short stay in Florida.
The highway on which they were spotted, he noted, was one commonly used by travelers to Disney World, Sea World, the
circus, Cocoa Beach, Cape Canaveral, and other tourist spots.
69. See also Florida v. Harris, 568 U.S. 237, 244 (2013) (“We have rejected rigid rules, bright-line tests, and mechanistic
inquiries in favor of a more flexible, all-things-considered approach.”).
70. E.g., Wayne R. LaFave, The Fourth Amendment Today: A Bicentennial Appraisal, 32 Vill. L. Rev. 1061, 1065–70
(1987); Kamisar, Note 63, supra.
71. E.g., Grano, Note 63, supra.
72. See Note 64 supra.
73. Grano, Note 63, supra, at 469.
74. See § 8.03[B], supra.
75. Grano, Note 63, supra, at 513.
76. 2 LaFave, Note 7, supra, at 109.
77. See generally Ronald J. Bacigal, The Fourth Amendment in Flux: The Rise and Fall of Probable Cause, 1979 U. Ill.
L.F. 763; Wayne R. LaFave, Administrative Searches and the Fourth Amendment: The Camara and See Cases, 1967 Sup. Ct.
Rev. 1; Scott E. Sundby, A Return to Fourth Amendment Basics: Undoing the Mischief of Camara and Terry, 72 Minn. L. Rev.
383 (1988).
78. Anthony G. Amsterdam, Perspectives On the Fourth Amendment, 58 Minn. L. Rev. 349, 388 (1974).
79. See especially Chapters 17–18, infra.
80. LaFave, Note 70, supra, at 1070.
81. 387 U.S. 523 (1967).
82. Warrants are not required for all administrative searches. See § 18.02, infra.
83. See Chapters 17–18, infra.
84. See generally Alschuler, Note 3, supra, at 243–56; Amar, Note 1, supra, at 782–85; Ronald J. Bacigal, Making the
Right Gamble: The Odds on Probable Cause, 74 Miss. L.J. 279 (2004); Grano, Note 63, supra; Maclin, Note 1, supra, at
25–32; Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. Rev. 1, 38–78 (1991).
85. People v. Sutherland, 683 P.2d 1192 (Colo. 1984).
86. The assumption here is that the two suspects are not acting jointly. If O has reason to believe that A and B are acting
jointly, the problem raised in the text disappears. See also Note 92, infra.
87. Illinois v. Gates, 462 U.S. 213 (1983).
88. Maryland v. Pringle, 540 U.S. 366, 371 (2003).
89. Brinegar v. United States, 338 U.S. 160, 175 (1949) (“bare suspicion”); Mallory v. United States 354 U.S. 449, 454
(1957) (“mere suspicion”). “Reasonable suspicion” is a term of art that justifies less-than-ordinarily-intrusive searches and
seizures. See Chapter 17, infra.
90. Texas v. Brown, 460 U.S. 730, 742 (1983).
91. See, e.g., State v. Horton, 625 N.W.2d 362, 365–66 (Iowa 2001).
92. Mallory v. United States, 354 U.S. at 456 (condemning “arrests at large,” in which one of three suspects was arrested in
order to interrogate him). Do not confuse the issue raised in the text—in which the police have reason to believe that one, but
only one, of two (or more) suspects is guilty (or subject to search)—with the case in which the police have reason to believe
that both or all the suspects are guilty of the offense. For example, in Maryland v. Pringle, 540 U.S. 366 (2003), O lawfully
discovered cocaine and cash in a vehicle containing three occupants. O questioned the three men about ownership of the
contraband, and he warned them that he would arrest all three if they did not provide ownership information. When the men
offered no assistance, O arrested all three car occupants. The Court held that the arrest of P, one of the occupants, was founded
on probable cause, but its basis was stated, at 373, as follows:
Here we think it was reasonable for the officer to infer a common enterprise among the three men. The quantity of drugs
and cash in the car indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an
innocent person with the potential to furnish evidence against him.
Thus, “a reasonable officer could conclude that there was probable cause to believe [P] committed the crime of possession of
cocaine, either solely or jointly.” Id., at 372.
93. Brinegar v. United States, 338 U.S. 160, 176 (1949).
94. State v. Horton, 625 N.W.2d 362, 366 (Iowa 2001).
95. Illinois v. Rodriguez, 497 U.S. 177, 185 (1990).
96. Ric Simmons, Smart Surveillance, 76–77 (2019).
97. Grano, Note 63, supra, at 496–97. Apparently, Professor Grano would allow the police to hold the suspects until their
first appearance before a magistrate, which usually occurs within a day or two of arrest, see §1.03[C][3], supra, or until a
preliminary hearing is conducted, usually within two weeks after the first appearance, see § 1.03[C][4], supra, at which point
the prosecutor would be required to meet a somewhat higher standard of proof.
98. Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule
in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365, 1393 (1983).
99. See generally Amar, Note 7, supra; Ronald M. Gould & Simon Stern, Catastrophic Threats and the Fourth
Amendment, 77 So. Cal. L. Rev. 777 (2004); Christopher Slobogin, Let's Not Bury Terry: A Call for Rejuvenation of the
Proportionality Principle, 72 St. John's L. Rev. 1053 (1998); Scott E. Sundby, An Ode to Probable Cause: A Brief Response to
Professors Amar and Slobogin, 72 St. John's L. Rev. 1133 (1998).
100. 387 U.S. 523 (1967). See § 8.06, supra.
101. 392 U.S. 1 (1968). See generally Chapter 17, infra.
102. E.g., Mich. Dept. of State Police v. Sitz, 496 U.S. 444 (1990) (permitting brief random seizures of drivers at sobriety
checkpoints).
103. 384 U.S. 757 (1966).
104. Winston v. Lee, 470 U.S. 753, 760 (1985).
105. Id.
106. On the other hand, in Zurcher v. Stanford Daily, 436 U.S. 547 (1978), the Court justified the search of a newspaper
office for photographic evidence of a crime on the basis of ordinary probable cause, although a heightened cause requirement
might have been justified on either of two grounds: that the police searched the premises of individuals not personally
suspected of crime; or that the police conduct threatened First Amendment values. See also New York v. P.J. Video, Inc., 475
U.S. 868 (1986) (providing that a warrant application authorizing the seizure of materials presumptively protected by the First
Amendment is evaluated by traditional standards of “probable cause”).
107. Brinegar v. United States, 338 U.S. 160, 182–83 (1949) (Jackson, J., dissenting).
108. Gould & Stern, Note 99, supra, at 779.
109. Notice that the searches here will be exceptionally intrusive: not only is a person's “castle”—the home—invaded, but
the police will have to conduct extensive searches inside the residence, because the weapon may be hidden in a small container.
110. Amsterdam, Note 78, supra, at 393.
111. Id. at 415.
112. Id. at 394. See generally § 2.07[A], supra.
Chapter 9
Arrests
1. See generally David A. Moran, Traffic Stops, Littering Tickets, and Police Warnings: The Case for a Fourth Amendment
Non-Custodial Arrest Doctrine, 37 Am. Crim. L. Rev. 1143 (2000).
2. E.g., Berkemer v. McCarty, 468 U.S. 420, 425 (1984).
3. E.g., United States v. Robinson, 414 U.S. 218, 235 (1973).
4. E.g., Dunaway v. New York, 442 U.S. 200, 212 (1979).
5. E.g., People v. Bland, 884 P.2d 312, 315–16 (Colo. 1994); Thomas v. State, 614 So. 2d 468, 470–71 (Fla. 1993).
6. See Dunaway v. New York, 442 U.S. 200 (1979); Henry v. United States, 361 U.S. 98 (1959).
7. See § 7.03, supra.
8. See generally Joshua Dressler, Understanding Criminal Law § 21.02[A][1] (6th ed. 2012).
9. Draper v. United States, 358 U.S. 307, 310 n.3 (1959).
10. See, e.g., Cal. Penal Code § 836 (2012).
11. For the common law meaning of the phrase “in the presence,” see 3 Wayne R. LaFave, Search and Seizure § 5.1(c) (4th
ed. 2004).
12. See generally § 9.05, infra.
13. See generally Thomas Y. Davies, The Fictional Character of Law-and-Order Originalism: A Case Study of the
Distortions and Evasions of Framing-Era Arrest Doctrine in Atwater v. Lago Vista, 37 Wake Forest L. Rev. 239 (2002); see
also Richard S. Frase, What Were They Thinking? Fourth Amendment Unreasonableness in Atwater v. City of Lago Vista, 71
Fordham L. Rev. 329 (2002); Arnold H. Loewy, Cops, Cars, and Citizens: Fixing the Broken Balance, 76 St. John's L. Rev.
535, 559–563 (2002).
14. 532 U.S. 318 (2001); contra under state constitution, State v. Bauer, 36 P.3d 892 (Mont. 2001) (in the absence of
special circumstances, custodial arrest for a nonjailable offense violates the state constitution); State v. Brown, 792 N.E.2d 175
(Ohio 2003) (a custodial arrest for a minor misdemeanor offense violates the state constitution).
15. See especially Atwater v. City of Lago Vista, 195 F.3d 242 (5th Cir. 1999) (Garza, J., dissenting; and Wiener, J.,
dissenting).
16. Luckily for Atwater's children, a friend learned of the situation, arrived, and took custody of them before Atwater was
taken to the police station.
17. See generally § 2.07[A], supra.
18. Loewy, Note 13, supra, at 560.
19. For more details, see Frase, Note 13, supra.
20. Whren v. United States, 517 U.S. 806 (1996); see § 8.02[F], supra.
21. United States v. Robinson, 414 U.S. 218 (1973); see § 12.04, infra.
22. See § 15.01, infra.
23. As an antidote to what many consider to be police overreach in cases like Atwater, one scholar has proposed that
probable cause be considered a necessary but not sufficient ground for an arrest. Under this proposal, a court would have to
find that there was probable cause and then also determine that the arrest was reasonable (that is, that an objectively reasonable
police officer “in the same circumstances would have made the arrest for the reason given.” See Josh Bowers, Probable Cause,
Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity,” 88 Stan. L. Rev. 987, 1018–19 (2014).
24. 443 U.S. 47 (1979).
25. 542 U.S. 177 (2004).
26. The Court also held that the statute did not violate the Fifth Amendment bar on compelled self-incrimination. See §
23.04[D][2], infra.
27. Terry v. Ohio, 392 U.S. 1, 34 (1968) (White, J., concurring); see also Berkemer v. McCarty, 468 U.S. 420, 439 (1984)
(in which the Court, explaining Terry, observed that a person detained “is not obliged to respond” to questions).
28. See United States v. Crews, 445 U.S. 463 (1980); Gerstein v. Pugh, 420 U.S. 103 (1975); Frisbie v. Collins, 342 U.S.
519 (1952).
29. See generally 3 LaFave, Note 11, supra, at § 5.1(b); Thomas Y. Davies, Correcting Search-and-Seizure History: Now-
Forgotten Common-Law Warrantless Arrest Standards and the Original Understanding of “Due Process of Law,” 77 Miss.
L.J. 1 (2007).
30. 423 U.S. 411 (1976); contra, under the state constitution, Campos v. State, 870 P.2d 117 (N.M. 1994) (the validity of a
warrantless arrest in a public place depends on exigent circumstances).
31. See generally 3 LaFave, Note 11, supra, at § 6.1.
32. 445 U.S. 573 (1980).
33. Although Payton concerned felony arrests and, consequently, the rule was stated in those terms, the doctrine applies to
misdemeanor arrests in the home as well. See Welsh v. Wisconsin, 466 U.S. 740 (1984).
34. See also Kirk v. Louisiana, 536 U.S. 635 (2002) (per curiam) (stating that “police officers need either a warrant or
probable cause plus exigent circumstances in order to make a lawful entry into a home”).
35. Lower courts are split on whether this quoted language means that the police must have probable cause to believe that a
suspect is inside the residence, or whether a lesser standard will do. See State v. Smith, 90 P.3d 221 (Ariz. App. 2004) (and
collecting cases).
36. Maryland v. Buie, 494 U.S. 325, 330 (1990). Under limited circumstances, arresting officers may also conduct a
“protective sweep” of the home for other persons who might pose a danger to the officers or others. See § 17.08, infra.
37. Minnesota v. Olson, 495 U.S. 91, 95 (1990) (explaining Payton).
38. See § 4.03, supra.
39. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1179 (1991). See generally § 10.01, infra.
40. Compare United States v. Ponce, 488 F. Supp. 226 (S.D.N.Y. 1980) (permitting entry of a warehouse through an ajar
door) with United States v. Driver, 776 F.2d 807 (9th Cir. 1985) (requiring a warrant to enter a closed office inside a
warehouse).
41. 427 U.S. 38 (1976).
42. See 3 LaFave, Note 11, supra, at 301–309 (and cases cited therein).
43. State v. Holeman, 693 P.2d 89, 91 (Wash. 1985).
44. E.g., State v. Santiago, 619 A.2d 1132 (Conn. 1993); see United States v. Berkowitz, 927 F.2d 1376, 1386 (7th Cir.
1991) (“Payton prohibits only a warrantless entry into the home, not a policeman's use of his voice to convey a message of
arrest from outside the home.”).
45. E.g., People v. Gillam, 734 N.W.2d 585 (Mich. 2007) (the police, lacking an arrest warrant, did not “constructively
enter” a home in violation of Payton by positioning themselves outside G’s apartment and repeatedly asking, but not coercing,
him to step outside, at which point they arrested him; held: the arrest was constitutional); but see United States v. Reeves, 524
F.3d 1161 (10th Cir. 2008) (at 3:00 a.m., four officers, without an arrest warrant, went to a motel room where R was living;
they knocked loudly on the door and windows for 20 minutes until R opened the door and stepped outside, at which time he
was formally arrested; held: opening the door to one's home when ordered to do so constitutes a seizure of the homeowner
inside the home and, therefore, a de facto warrantless arrest in violation of Payton).
46. E.g., State v. Johnson, 501 N.W.2d 876 (Wis. Ct. App. 1993) (the Fourth Amendment is violated if an officer, without a
warrant, positions herself in the suspect's doorway, with her “toenails” to the “balls of [the] feet” inside the home).
47. See also § 11.04, infra.
48. 427 U.S. 38 (1976).
49. Sometimes the hot pursuit doctrine is invoked in questionable circumstances. For example, in Warden v. Hayden, 387
U.S. 294 (1967), the police had probable cause to believe that H had committed an armed robbery moments earlier and had
entered a particular house. The Court upheld the officers’ warrantless entry of the house to search for and arrest H on the basis
of the “exigencies of the situation.” Because the officers did not chase H from the scene of the crime to the house, Hayden did
not “involve a “hot pursuit” in the sense that that term would normally be understood.” Santana, 427 U.S. at 43 n.3.
Nonetheless, the Court often treats Hayden as if it were a “hot pursuit” case. E.g., Welsh v. Wisconsin, 466 U.S. 740, 750
(1984) (citing Hayden as a hot pursuit case). It would seem, therefore, that “hot pursuit,” as a justification for entering a home,
has come to mean either that the police started the pursuit or attempted the arrest while the person was in a public place or, in
some circumstances, where the crime was committed moments earlier in a public place.
50. 495 U.S. 91 (1990).
51. 466 U.S. 740 (1984).
52. In Welsh, although the police claimed exigent circumstances, the police did not enter the home after “hot pursuit” (i.e.,
immediate or continuous pursuit from the scene of the crime) of Welsh. That fact may be significant. Recently, in a case
involving hot pursuit of a misdemeanant to his home, the Supreme Court observed that Welsh “did not lay down a categorical
rule for all cases involving minor offenses, saying only that a warrant is ‘usually’ required [in such cases].” Stanton v. Sims,
571 U.S. 3, 8 (2013) (per curiam). Stanton further observed (without announcing any new rule) that “despite our emphasis in
Welsh on the fact that the crime at issue [in that case] was minor . . . nothing in the opinion establishes that the seriousness of
the crime is equally important in cases of hot pursuit.”
53. See Chapter 14, infra, regarding the plain view doctrine.
54. 451 U.S. 204 (1981).
55. As noted in the text, in Steagald, the intended arrestee, L, was not present. Had he been present and arrested pursuant to
the valid arrest warrant, however, L would not have been able to have any evidence seized at S’s home suppressed in L’s
prosecution, because L’s Fourth Amendment rights (as opposed to those of the homeowner) were not infringed. See generally
Chapter 19, infra, regarding the “standing” doctrine.
56. See also § 10.04, infra.
57. Wilson v. Layne, 526 U.S. 603, 611 (1999).
58. Payton v. New York, 445 U.S. 573, 603 (1980) (emphasis added).
59. See § 10.04[C], infra.
60. 514 U.S. 927 (1995).
61. See Dressler, Note 8, supra, at § 21.03[B].
62. 471 U.S. 1 (1985); see generally Abraham N. Tennenbaum, The Influence of the Garner Decision on Police Use of
Deadly Force, 85 J. Crim. L. & Criminology 241 (1994); H. Richard Uviller, Seizure by Gunshot: The Riddle of the Fleeing
Felon, 14 N.Y.U. Rev. L. & Soc. Change, 705 (1986).
63. In most cases, as in Garner, the issue of alleged use of unnecessary force arises in the context of a civil suit against the
officer for the wrongful death of the suspect or violation of the citizen's constitutional rights under 42 U.S.C. § 1983. The rule
announced in Garner only raises potential Fourth Amendment exclusionary rule issues if the suspect survives the excessive
force, and the prosecutor seeks to introduce evidence obtained from the arrestee as the result of the purportedly unreasonable
police conduct.
64. 490 U.S. 386 (1989).
65. 550 U.S. 372 (2007).
66. Id. at 382. But see Karen M. Blum, Scott v. Harris: Death Knell for Deadly Force Policies and Garner Jury
Instructions, 58 Syracuse L. Rev. 45, 59 (2007) (describing this statement of the Court's as “simply wrong, or, at best
misguided, and reflects an exercise in reconstruction of a case that has clearly stood for more than its particular facts for over
twenty years”).
67. 572 U.S. 765 (2014).
68. Scott, 550 U.S. at 385.
69. 576 U.S. 389 (2015).
Chapter 10
[C] “Particularity”
[1] In General
The Fourth Amendment provides that warrants must “particularly describ[e] the place to be searched, and
the persons or things to be seized.” Particularity is required in order to avoid the abuses exemplified by the
general warrants and writs of assistance used in the English and colonial common law.77 A warrant that lacks
particularity permits police officers too much discretion in its execution and, thereby, also undercuts the
probable cause requirement.
1. See generally Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757 (1994); Craig M. Bradley,
Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468 (1985); Sherry F. Colb, The Qualitative Dimension of Fourth
Amendment “Reasonableness,” 98 Colum. L. Rev. 1642 (1998); Thomas Y. Davies, Recovering the Original Fourth
Amendment, 98 Mich. L. Rev. 547 (1999); Thomas Y. Davies, Correcting Search-and-Seizure History: Now-Forgotten
Common-Law Warrantless Arrest Standards and the Original Understanding of “Due Process of Law,” 77 Miss. L.J. 1 (2007);
Joseph D. Grano, Rethinking the Fourth Amendment Warrant Requirement, 19 Am. Crim. L. Rev. 603 (1982); William W.
Greenhalgh & Mark J. Yost, In Defense of the “Per Se” Rule: Justice Stewart's Struggle to Preserve the Fourth Amendment's
Warrant Clause, 31 Am. Crim. L. Rev. 1013 (1994); Tracey Maclin, When the Cure For the Fourth Amendment Is Worse Than
the Disease, 68 S. Cal. L. Rev. 1 (1994); Carol S. Steiker, Second Thoughts About First Principles, 107 Harv. L. Rev. 820
(1994); James J. Tomkovicz, California v. Acevedo: The Walls Close In on the Warrant Requirement, 29 Am. Crim. L. Rev.
1103 (1992); H. Richard Uviller, Reasonability and the Fourth Amendment: A (Belated) Farewell to Justice Potter Stewart, 25
Crim. L. Bull. 29 (1989); Oren Bar-Gill & Barry Friedman, Taking Warrants Seriously, 106 Nw. U. L. Rev. 1609 (2012).
2. Uviller, Note 1, supra, at 33.
3. Maclin, Note 1, supra, at 20.
4. Dyson v. State, 712 A.2d 573, 577 (Md. App. 1997), rev'd, Maryland v. Dyson, 527 U.S. 465 (1999).
5. Bradley, Note 1, supra, at 1471. See also Bar-Gill & Friedman, Note 1, supra, at 1614 (contending that search warrants
“should be required any time obtaining a warrant is feasible or, in other words, any time exigent circumstances are not
present;” applying social science literature to defend the proposition that such a bright-light rule would have positive results in
deterring constitutional violations).
6. 389 U.S. 347 (1967).
7. Jones v. United States, 357 U.S. 493, 499 (1958).
8. McDonald v. United States, 335 U.S. 451, 456 (1948).
9. Robbins v. California, 453 U.S. 420, 438 (1981) (Rehnquist, J., dissenting).
10. Amar, Note 1, supra, at 762.
11. See Terry v. Ohio, 392 U.S. 1, 21 (1968) (quoting Camara v. Municipal Court, 387 U.S. 523, 536–37 (1967)) (“there is
‘no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which
the search [or seizure] entails’”); Bradley, Note 1, supra, at 1471 (“[a] search or seizure must be reasonable, considering all
relevant factors on a case-by-case basis”).
12. 339 U.S. 56 (1950), overruled on other grounds, Chimel v. California, 395 U.S. 752 (1969).
13. Amar, Note 1, supra, at 774 (emphasis added).
14. Id. at 762 (emphasis added).
15. Telford Taylor, Two Studies in Constitutional Interpretation 46–47 (1969).
16. See § 4.03, supra.
17. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1179 (1991).
18. Professor Thomas Davies contends that ship search legislation does not reveal the framers’ view of the Fourth
Amendment, because ships were not viewed as “effects” that enjoyed common law security in 1789. Thomas Y. Davies, The
Fictional Character of Law-and-Order Originalism: A Case Study of the Distortions and Evasions of Framing-Era Arrest
Doctrine in Atwater v. Lago Vista, 37 Wake Forest L. Rev. 237, 262, 265 (2002).
19. Amar, Note 1, supra, at 766–67.
20. Grano, Note 1, supra, at 617.
21. Id.
22. Taylor, Note 15, supra, at 49.
23. Maclin, Note 1, supra, at 5 (emphasis added).
24. Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 371 (1974).
25. Davies, Recovering, Note 1, supra, at 553.
26. Id. at 556 (emphasis added).
27. Id. at 554.
28. Id. at 556.
29. Steiker, Note 1, supra, at 825–26; see Maclin, Note 1, supra, at 11 (the Fourth Amendment “states an ideal; it is not a
constitutional wrench that ‘locks-in’ search and seizure practices of a vanished era”); see also Davies, Recovering, Note 1,
supra, at 556 (“I . . . doubt[] that the original meaning [of the Amendment] can be directly applied to address modern issues. . .
. [I]t would be inappropriate to employ framing-era doctrines selectively to answer specific modern issues because historic
doctrines often do not accomplish the same ends in the modern context as they did during the framing era.”).
30. 333 U.S. 10 (1948).
31. Chimel v. California, 395 U.S. 752, 766 n.12 (1969).
32. See Steiker, Note 1, supra, at 830–44.
33. Amar, Note 1, supra, at 767–68.
34. Id. at 769.
35. However, some advocates argue that these exceptions should be shrinking in number, since new technology has
increased the speed and convenience of warrant applications. For example, Professors Oren Bar-Gill and Barry Friedman
propose that warrants should be required any time exigent circumstances are not present: “[f]easibility and exigency are both
functions of technology, which operates in today's world to favor warrants.” Bar-Gill & Friedman, Note 1, supra.
36. Id. at 771.
37. See § 6.01[A], supra.
38. See § 8.07[A], supra.
39. But perhaps it should not be. See Note 51, infra.
40. Amar, Note 1, supra, at 801.
41. See § 8.07[C][2], supra.
42. Amsterdam, Note 24, supra, at 393.
43. Id. at 415.
44. Id. at 394.
45. California v. Acevedo, 500 U.S. 565, 582 (1991) (Scalia, J., concurring in the judgment).
46. Greenhalgh & Yost, Note 1, supra, at 1041.
47. Katz v. United States, 389 U.S. 347 (1967).
48. Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998).
49. Sometimes, however, a majority opinion—perhaps when the author wants to muster additional votes—will express a
softened version of the “warrant requirement.” For example, in Kentucky v. King, 563 U.S. 452, 459 (2011), Justice Alito,
writing for all of the Court except Justice Ginsburg (who is herself a “warrant requirement” advocate), stated that “[a]lthough
the text of the Fourth Amendment does not specify when a search warrant must be obtained, this Court has inferred that a
warrant must generally be secured.” Later, Justice Alito stated that “the warrant requirement is subject to certain reasonable
exceptions.” E.g., Fernandez v. California, 571 U.S. 292, 310 (2014) (Ginsburg, J., dissenting) (stating that the “Court has . . .
declared warrantless searches, in the main, ‘per se unreasonable’”; and stating that “[i]f this main rule is to remain hardy, . . .
exceptions to the warrant requirement must be ‘few in number and carefully delineated.’”).
50. E.g., Florida v. Jimeno, 500 U.S. 248, 250 (1991). See also Riley v. California, 573 U.S. 373, 2482 (2014); Fernandez v.
California, 571 U.S. 292, 298 (2014) (opinion by Justice Alito). Indeed, in Fernandez, the fact that the police very likely had
probable cause to conduct the search and a warrant was readily available, were deemed “beside the point.”
51. 526 U.S. 295, 299–300 (1999); see generally David A. Sklansky, The Fourth Amendment and Common Law, 100
Colum. L. Rev. 1739 (2000).
52. In Houghton, supra, as well as in various other Fourth Amendment cases (e.g., Atwater v. Lago Vista, 532 U.S. 318
(2001), discussed in § 9.03, supra), the Supreme Count has eschewed fact-intensive case-by-case “reasonableness” analysis in
favor of a “reasonableness” rule that applies to an entire category of cases.
53. California v. Acevedo, 500 U.S. at 575 (quoting the dissenting opinion in Arkansas v. Sanders, 442 U.S. 753, 770
(1979)).
54. Tomkovicz, Note 1, supra, at 1176–77.
55. Where would such a rule leave the homeless? Indeed, do the homeless have a reasonable expectation of privacy in their
belongings, or are they shut out of Fourth Amendment protection entirely? This issue has rarely been considered by the courts.
But see State v. Mooney, 588 A.2d 145 (Conn. 1991) (involving a search of a homeless person's belongings left unattended
under a bridge); see generally, e.g., Mark A. Godsey, Privacy and the Growing Plight of the Homeless: Reconsidering the
Values Underlying the Fourth Amendment, 53 Ohio St. L.J. 869 (1992); Peter Mancini, Mooney and Privacy: Some Tough
Questions, 72 B.U. L. Rev. 425 (1992); Kevin Royer, The Mooney Blues: Homelessness and Constitutional Security from
Unreasonable Searches, 72 B.U. L. Rev. 443 (1992). As for people who live in their vehicle, see § 13.04, infra.
56. California v. Acevedo, 500 U.S. at 583 (concurring in the judgment).
57. See generally Laurence A. Benner & Charles T. Samarkos, Searching for Narcotics in San Diego: Preliminary Findings
from the San Diego Search Warrant Project, 36 Cal. West. L. Rev. 222 (2000); Richard Van Duizend et al., The Search Warrant
Process: Preconceptions, Perceptions, and Practices (National Center for State Courts ed. 1984); Abraham S. Goldstein, The
Search Warrant, the Magistrate, and Judicial Review, 62 N.Y.U. L. Rev. 1173 (1987).
58. Increasingly, police departments use a computer program to construct search warrants and supporting affidavits. E.g.,
Benner & Samarkos, Note 57, supra, at 242.
59. In many jurisdictions, a warrant may now be issued on sworn oral testimony via telephone or by electronic means. E.g.,
Fed. R. Crim. P. 41(d)(3). Indeed, “[w]ell over a majority of States allow police officers or prosecutors to apply for search
warrants remotely through various means, including telephonic or radio communication, electronic communication such as
e-mail, and video conferencing.” Missouri v. McNeely, 569 U.S. 141, 154 (2013). Thus, as the Court has stated, “technological
advances . . . have . . . made the process of obtaining a warrant . . . more efficient.” Riley v. California, 573 U.S. 373, 401
(2014). Courts have so far rejected challenges that claim that an electronic warrant application lacks the formality and
solemnity required by the Fourth Amendment. See, e.g., State v. Gutierrez-Perez, 323 P.3d 1017 (Utah 2014).
60. Benner & Samarkos, Note 57, supra, at 227–28.
61. McCray v. Illinois, 386 U.S. 300 (1967).
62. Van Duizend et al., Note 57, supra, at 25–32. The cited study, although dated, remains the most thorough study of its
kind.
63. Johnson v. United States, 333 U.S. 10, 14 (1948).
64. Coolidge v. New Hampshire, 403 U.S. 443, 453 (1971).
65. United States v. Leon, 468 U.S. 897, 914 (1984).
66. Connally v. Georgia, 429 U.S. 245 (1977).
67. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327 (1979).
68. 407 U.S. 345 (1972).
69. 462 U.S. 213, 235 (1983).
70. Whiteley v. Warden, 401 U.S. 560 (1971).
71. For general discussion of the problem of policy perjury (or what has come to be called “testilying”), see Gabriel J. Chin
& Scott C. Wells, The “Blue Wall of Silence” as Evidence of Bias and Motive to Lie: A New Approach to Police Perjury, 59 U.
Pitt. L. Rev. 233 (1998); Andrew J. McClurg, Good Cop, Bad Cop: Using Cognitive Dissonance Theory to Reduce Police
Lying, 32 U.C. Davis L. Rev. 389 (1999); Christopher Slobogin, Testilying: Police Perjury and What to Do About It, 67 U.
Colo. L. Rev. 1037 (1996).
72. 438 U.S. 154 (1978).
73. Such a showing is made in the form of specific allegations and an offer of proof, including the use of affidavits or other
reliable statements of witnesses.
74. E.g., Allan R. Gold, Dead Officer, Dropped Charges: A Scandal in Boston, N.Y. Times, March 20, 1989, at A12
(charges were dropped in a homicide case due to “egregious misconduct” by the prosecutor and the police, including the fact
that a police officer applied for several warrants based on hearsay information from “John,” who did not exist). Professor
Donald Dripps has suggested that when the outcome of a suppression hearing depends on the credibility of witnesses, “the
court should inquire whether either party is willing to supplement the record with a polygraph examination of the party's
witness or witnesses.” Although the trial court would not be bound by the results of the polygraph examinations, it could
consider them along with the other evidence, and the results would become part of the record to be considered, as appropriate,
by an appellate court. Donald A. Dripps, Police, Plus Perjury, Equals Polygraphy, 86 J. Crim. L. & Criminology 693, 694
(1996).
75. In other contexts the Court has defined “reckless disregard for the truth” to mean that the person “in fact entertained
serious doubts as to the truth” of the statement made. St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
76. See § 8.04, supra.
77. See § 4.03, supra.
78. Steele v. United States, 267 U.S. 498, 503 (1925).
79. Maryland v. Garrison, 480 U.S. 79, 85 (1987).
80. However, a search of the wrong premises may still be reasonable. In Garrison, id., the officers executed a warrant on a
“third floor apartment” at a particular address. The officers did not learn (and had no reason to know) until after they had
entered the “third floor apartment” and seized evidence that the “third floor apartment,” in fact, was a two-apartment unit and
that they were in the wrong apartment. The Court admitted the evidence seized, however, observing that it must “allow some
latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing
search warrants.” Once they became aware of their error, however, the officers were required to desist from further searching
the wrong apartment.
81. Some jurisdictions permit the seizure of a person “who is unlawfully restrained,” such as a kidnap victim, as “evidence”
of the crime. E.g., Fed. R. Crim. P. 41(c)(4).
82. Marron v. United States, 275 U.S. 192, 196 (1927).
83. E.g., Groh v. Ramirez, 540 U.S. 551 (2004) (a federal agent prepared an application for a warrant to search R’s ranch
for specified weapons, explosives, and records; the agent also prepared a detailed affidavit setting forth the agent's belief that
the specified items were on the ranch; the agent prepared a warrant to be signed by the judge, but in the portion calling for a
description of the “person or property” to be seized, he failed entirely to list the items to be seized; the magistrate signed the
warrant without correcting it; held: the warrant was “plainly invalid” in that it “failed altogether” to comply with the
particularity requirement of the Fourth Amendment; the Court left for another day the question of whether the particularity
requirement is satisfied if the warrant incorporates by reference another document that particularizes the items to be seized).
84. 2 Wayne R. LaFave, Search and Seizure § 4.6 (4th ed. 2004).
85. E.g., Andresen v. Maryland, 427 U.S. 463, 479 (1976) (a warrant authorizing the seizure of items pertaining to a real
estate fraud, but which included a residual clause authorizing the seizure of “fruits, instrumentalities, and evidence of crime at
this [time] unknown,” was upheld by the Court, in part because of the complexity of the real estate scheme, and the inability of
the police to be more specific).
86. E.g., it is satisfactory for the warrant to direct the officers to seize “gambling paraphernalia,” “controlled substances,”
or “drugs unlawfully possessed.”
87. E.g., it is insufficient to describe the item to be seized as “the stolen automobile” or “the jewelry,” if a more specific
description is possible.
88. Stanford v. Texas, 379 U.S. 476, 485 (1965) (“[T]he constitutional requirement [of particularity] . . . is to be accorded
the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain.”).
89. See generally 2 LaFave, Note 84, supra, at §§ 4.7–4.12.
90. See generally § 11.04, infra (when a warrantless entry of a home is justified on exigent grounds).
91. 531 U.S. 326 (2001).
92. The police action constituted a seizure of the house because it resulted in a meaningful interference with M’s possessory
interest in his trailer. See § 7.02[A], supra.
93. E.g., Fed. R. Crim. P. 41(e)(2)(A)(i).
94. E.g., Fed. R. Crim. P. 41(e)(2)(A)(ii).
95. Gooding v. United States, 416 U.S. 430 (1974).
96. 514 U.S. 927 (1995).
97. 547 U.S. 586 (2006).
98. Id. at 620.
99. See especially § 20.05[B][2][c], infra.
100. 514 U.S. 927 (1995).
101. See United States v. Banks, 540 U.S. 31, 36 (2003).
102. 520 U.S. 385, 394 (1997).
103. Contra under the state constitution, Commonwealth v. Macias, 711 N.E.2d 130 (Mass. 1999) (unannounced entry into a
residence, founded on police officers’ belief that evidence will be destroyed if they comply with the knock-and-announce rule,
is not justified unless the belief satisfies the probable cause standard).
104. See § 17.03, infra.
105. 540 U.S. 31 (2003).
106. 444 U.S. 85 (1979).
107. 392 U.S. 1 (1968). See § 17.02, infra.
108. 2 LaFave, Note 84, supra, at 715–717.
109. Maryland v. Buie, 494 U.S. 325, 333 (1990). In Buie, the Court ruled that the police may conduct a protective visual
sweep of a home while they are completing an in-home arrest, but only if they possess reasonable suspicion that the area to be
swept harbors a dangerous person. See § 17.08, infra. The Court did not indicate in Buie what the police may do if they find a
person during such a sweep.
110. People v. Thurman, 257 Cal. Rptr. 517, 520 (Cal. App. 1989).
111. 452 U.S. 692 (1981).
112. Bailey v. United States, 568 U.S. 186, 193 (2013).
113. Id. at 202. In Bailey, B left the residence that the police had a warrant to search, but he was not detained until he was
about a mile away from the residence. Because this detention was beyond “any reasonable understanding” of the term
“immediate vicinity” of the premises, his seizure fell outside the scope of Summers.
114. Muehler v. Mena, 544 U.S. 93 (2005) (Summers applied to a warranted search of a residence for weapons and evidence
of gang membership); Los Angeles County, California v. Rettele, 550 U.S. 609 (2007) (Summers applies to a warranted search
of a residence for computer files and other documents in a fraud and identity-theft crime-ring investigation).
115. 2 LaFave, Note 84, supra, at 726–727.
116. 544 U.S. 93 (2005).
117. United States v. Ross, 456 U.S. 798, 820–21 (1982).
118. See generally Chapter 14, infra (explaining the “plain-view doctrine”).
119. Horton v. California, 496 U.S. 128, 141 (1990).
Chapter 11
1. See Kit Kinports, The Quantum of Suspicion Needed for an Exigent Circumstances Search, 52 U. Mich. J. L. Reform 615
(2019) (arguing that not only should courts reaffirm that probable cause is necessary to support an exigent circumstances
search, but also that they should clarify that there should be probable cause to believe that an exigency exists).
2. Kentucky v. King, 563 U.S. 452, 462 (2011); see also id. at 1858 n.4 (“There is a strong argument to be made that, at
least in most circumstances, the exigent circumstances rule should not apply where the police, without a warrant or any legally
sound basis for a warrantless entry, threaten that they will enter without permission unless admitted.”).
3. See § 10.04[C], supra.
4. King, 563 U.S. at 466 (2011). King is considered in greater detail in § 11.04, infra.
5. Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006).
6. Cady v. Dombrowski, 413 U.S. 433, 441 (1973). Examples of such “caretaking functions” include: restraining an
occupant of a house who is observed hurting another individual, Brigham City, Utah v. Stuart, 547 U.S. 398 (2006); opening
the door of an automobile, parked on the side of the highway with the lights off but motor running at 3:00 a.m., after the
apparently asleep driver did not respond to a knock on the window, State v. Lovegren, 51 P.3d 471 (Mont. 2002); detaining a
person near an apartment complex because he was swaying and walking unsteadily, which suggested he might need medical
care, Commonwealth v. Waters, 456 S.E.2d 527 (Va. Ct. App. 1995); and entering a private residence when a trail of blood led
to the door of the residence and there was blood on the outside of the door, State v. Matalonis, 875 N.W.2d 567 (Wis. 2016). In
regard to non-criminal investigations generally, see Chapters 15 (inventory searches) and 18 (various “special needs”
circumstances), infra.
7. See generally Chapter 14, infra.
8. In this regard, see generally John F. Decker, Emergency Circumstances, Police Responses, and Fourth Amendment
Restrictions, 89 J. Crim. L. & Criminology 433 (1999).
9. See generally Michael G. Rogers, Note, Bodily Intrusion in Search of Evidence: A Study in Fourth Amendment
Decisionmaking, 62 Ind. L.J. 1181 (1987).
10. Rochin v. California, 342 U.S. 165, 173 (1952), discussed at § 20.01[C][2], infra.
11. 384 U.S. 757 (1966).
12. So far, the Supreme Court has stopped short of holding that the police have an automatic right to conduct a warrantless
blood test in a drunk-driving investigation. Prosecutors argue that the fact that there is a natural dissipation of alcohol in the
bloodstream—and, thus, that there is an inevitable gradual destruction of evidence in the bloodstream—should always give the
police the right to dispense with the warrant requirement. In Missouri v. McNeely, 569 U.S. 141 (2013), the trial court ruled
that, based on the facts of that case, “there were no circumstances suggesting the officer faced an emergency in which he could
not practicably obtain a warrant.” The Court, per Justice Sotomayor, concluded that because a blood test involves “a compelled
physical intrusion beneath [a person's] skin and into his veins,” courts should conduct a “finely tuned approach” to the warrant
issue by looking to the totality of the circumstances. The Court noted that a “significant delay in testing will negatively affect
the probative value of . . . [blood test] results” and, therefore, there are circumstances when securing a warrant will be
impractical, but it determined that each case should be decided on its own facts.
However, a more recent case, Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), moved the Court ever closer to holding that
under some circumstances, a per se exigency can exist. In Mitchell, driver M was arrested for drunk driving, but then lapsed
into unconsciousness by the time he reached the police station. Police then took him to the hospital for treatment and obtained
a blood sample from him without his consent and without a warrant. The Court upheld the blood test under the exigency
exception, and came close to holding that such circumstances would always result in an exigency: “[w]hen police have
probable cause to believe a person has committed a drunk-driving offense and the driver's unconsciousness or stupor requires
him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard
evidentiary breath test, they may almost always order a warrantless blood test to measure the driver's BAC without offending
the Fourth Amendment.” Id. at 2539 (emphasis added). The only exception would be if the defendant can show that his blood
would not otherwise be drawn at the hospital, and that police were unreasonable in the judgment that a warrant was not
feasible. Id.
On a related issue, a state cannot pass a law that makes it a crime for a suspected drunk driver to refuse a blood test.
Birchfield v. North Dakota, 136 S. Ct. 1241 (2016). Because breath tests are far less intrusive and provide police with
essentially the same information as a blood test, police cannot conduct a blood test on a suspected drunk driver unless they
obtain a warrant or prove that securing a warrant would be impractical in the specific case at hand.
Of course, police can always turn to the exigent circumstances exception if they have sufficient facts specific to the case that
indicates that the evidence will likely disappear in the time that it takes to obtain a warrant. See, e.g., State v. Parisi, 875
N.W.2d 619 (Wis. 2016) (holding that exigent circumstances existed given the rapid rate of dissipation of heroin in the
bloodstream, combined with the unstable health condition of the defendant and the “multiple unknown facts” regarding how
much heroin the defendant had consumed and when he had consumed it).
13. 470 U.S. 753 (1985).
14. 569 U.S. 435 (2013) (discussed more fully § 12.02, infra).
15. 412 U.S. 291 (1973).
16. United States v. United States District Court, 407 U.S. 297, 313 (1972); see also Brigham City v. Stuart, 547 U.S. 398,
403 (2006) (“It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are
presumptively unreasonable.”) (quoting Groh v. Ramirez, 540 U.S. 551, 559 (2004)). In turn, this language was quoted in
Kentucky v. King, 563 U.S. 452, 459 (2011).
17. 495 U.S. 91 (1990).
18. 387 U.S. 294 (1967).
19. The Court did not decide in Hayden whether the police would have been justified in searching for evidence of the
crime, other than weapons, that might be destroyed before they discovered H. Although Olson, supra note 17, concerns the
exigencies that justify a warrantless entry of a home, the reasoning of that case would justify the search and seizure of criminal
evidence, while the police are in hot pursuit of a felon.
20. See also Mincey v. Arizona, 437 U.S. 385 (1978) (officers, inside a home when a homicide occurred, secured the
premises and searched for other victims; 10 minutes later, homicide investigators arrived and searched the entire premises
without a warrant; held: the initial warrantless search for possible victims by the police was justifiable; the subsequent
warrantless search by the homicide investigators—now that the emergency was over—was unconstitutional). It should be kept
in mind that, just as an exception to the warrant requirement no longer applies once the circumstances justifying the warrant
exception no longer exist, the new circumstances may trigger a different warrant exception. For example, in Warden v. Hayden,
once H was arrested, a different warrant exception (search incident to a lawful arrest, see Chapter 12, infra) came into play.
21. 563 U.S. 452 (2011).
22. Id. at 474.
Chapter 12
1. See generally 3 Wayne R. LaFave, Search and Seizure §§ 5.2, 6.3, 6.4, 7.1 (4th ed. 2004); Myron Moskowitz, A Rule in
Search of a Reason: An Empirical Reexamination of Chimel and Belton, 2002 Wisc. L. Rev. 657.
2. Regarding the meaning and significance of the italicized words, see § 12.02[A][1], infra.
3. The arrest must precede the search. Sibron v. New York, 392 U.S. 40, 63 (1968) (“It is axiomatic that an incident search
may not precede an arrest and serve as part of its justification.”).
4. Chimel v. California, 395 U.S. 752 (1969).
5. Maryland v. Buie, 494 U.S. 325 (1990).
6. Arizona v. Gant, 556 U.S. 332 (2009).
7. For a review of the Court's treatment of the Warrant Clause of the Fourth Amendment, see § 10.01, supra.
8. 395 U.S. 752 (1969).
9. See Moskowitz, Note 1, supra, at 697:
An arrest is often a traumatic event for a suspect. One moment he is free, and the next moment he is in the custody of the
police. And he might realize that this custody can turn into a lengthy prison term if the police obtain more evidence to
convict or add further charges. In this emotional state, the arrestee might seek to harm the arresting officers in order to
escape, and he might try to dispose of any evidence that might enhance this likelihood of conviction or lead to further
charges.
10. Maryland v. Buie, 494 U.S. at 333.
11. United States v. Robinson, 414 U.S. 218 (1973) (search of the arrestee); Arizona v. Gant, 556 U.S. 332 (2009) (search
of the passenger compartment of a vehicle); Maryland v. Buie, 494 U.S. 325 (1990) (search of the adjoining area of a home for
dangerous persons). Police authority to conduct a SILA does not, however, extend to searches of data on cell phones
discovered as part of a search. Riley v. California, 573 U.S. 373 (2014) (discussed more fully in 12.06, infra). Instead, “officers
must generally secure a warrant before conducting such a search.” Id. at 2485.
12. Arizona v. Gant, 556 U.S. 332, 346, 351 (2009).
13. See § 8.02[A], supra.
14. E.g., United States v. Robinson, 414 U.S. 218 (1973) (holding that the arresting officer properly seized heroin
discovered during the search of a traffic violator).
15. See § 8.02[E], supra.
16. See Warden v. Hayden, 387 U.S. 294, 307 (1967) (stating that there must be “a nexus . . . between the item to be seized
and criminal behavior”); Arizona v. Hicks, 480 U.S. 321, 326 (1987) (the police must have probable cause to seize items found
in plain view).
17. E.g., United States v. Robinson, 414 U.S. 218 (1973) (dealing expressly with a “full custody arrest”).
18. 525 U.S. 113 (1998).
19. The Court noted that an officer may be justified in non-custodial circumstances to take some precautions against the
potential use of a weapon by a traffic violator, but a full car search is not required. As to those other precautions, see §§
17.04[C][2], and 17.07, infra.
20. 532 U.S. 318 (2001).
21. See § 9.03, supra, for further details on Atwater.
22. In the case of a warrantless search of the driver himself, the incentive of a police officer to make a full custodial arrest
is substantial, because the right to search the person is automatic in full-custody SILA circumstances. In the case of a search of
the vehicle, however, an officer will have less ability to manipulate the situation: If he handcuffs the traffic violator and moves
him away from the car, the officer will lose the right to search the interior of the car on SILA grounds except in the very
unlikely event that there is reason to believe evidence of the traffic violation can be discovered in the car. See § 12.01[C][1],
supra.
23. 553 U.S. 164 (2008).
24. Preston v. United States, 376 U.S. 364 (1964). But such a search could, under proper circumstances, be justified under
the “inventory search” warrant exception. See Chapter 15, infra.
25. 415 U.S. 800 (1974).
26. Some language in Edwards supports the proposition that the search could be justified on principles analogous to the
“arrest inventory” exception to the warrant requirement. See § 15.02, infra. The Court also said that another “closely related
consideration” that justified the examination of the clothing was the “plain view” principle, see Chapter 14, infra, that “the
police . . . are normally permitted to seize evidence of crime when it is lawfully encountered.”
27. See § 15.02, infra.
28. E.g., United States v. Robinson, 414 U.S. 218 (1973) (cigarette package in pocket of arrestee). The right to open
containers does not, however, include the right to review data on cell phones. See Riley v. California, 573 U.S. 373 (2014)
(discussed more fully in § 12.06, infra).
29. United States v. Chadwick, 433 U.S. 1, 15 (1977).
30. Winston v. Lee, 470 U.S. 753, 760 (1985).
31. In Schmerber v. California, 384 U.S. 757 (1966), the Supreme Court upheld a blood test of a person arrested for driving
under the influence of alcohol, but it required that there be a “clear indication” that the test would discover alcohol, and the
Court required that the search be performed in a reasonable manner. Although this warrantless search occurred shortly after
arrest, Schmerber is more obviously justified as an “exigency exception” case. See generally § 11.02, supra. Given the high
level of intrusion involved in a blood test, states are prohibited from passing laws that criminalize a suspect's refusal to take a
blood test. Birchfield v. North Dakota, 136 S. Ct. 1241 (2016).
32. Birchfield v. North Dakota, 136 S. Ct. 1241 (2016).
33. United States v. Edwards, 415 U.S. 800, 808 n.9 (1974) (quoting Charles v. United States, 278 F.2d 386, 389 (9th Cir.
1960)).
34. Chimel v. California 395 U.S. 752 (1969).
35. 3 LaFave, Note 1, supra, at 352.
36. Id. at 304; see also Thornton United States, 541 U.S. 615, 626 (Scalia & Ginsburg, JJ., concurring in judgment)
(quoting United States v. Frick, 490 F.2d 666, 673 (5th Cir. 1973), which describes a hypothetical arrestee as “possessed of the
skill of Houdini and the strength of Hercules”).
37. Washington v. Chrisman, 455 U.S. 1, 7 (1982).
38. Id. at 6.
39. 494 U.S. 325, 334 (1990).
40. Under more limited circumstances, they may also conduct a protective sweep of other parts of the home, but this action
is not based on the SILA exception to the warrant requirement. See § 17.08, infra.
41. See Terry v. Ohio, 392 U.S. 1 (1968).
42. 569 U.S. 435 (2013).
43. Id. at 448 (quoting Samson v. California, 547 U.S. 843 (2006)).
44. These searches and their constitutional history are discussed in Chapter 18, infra.
45. See § 15.02, infra.
46. Crime in the United States, 2017 1 (U.S. Dep't of Justice 2017), available at https://ucr.fbi.gov/crime-in-the-u.s/2017
/crime-in-the-u.s.-2017/tables/table-29.
47. It is worth noting that some state courts have struck down similar DNA collection schemes by relying on their state
constitutions. See, e.g., State v. Medina, 102 A.3d 661 (Vt. 2014); People v. Buza, 231 Cal. App.4th 1446 (Cal. 2014).
48. Moskowitz, Note 1, supra.
49. 395 U.S. 752 (1969).
50. Harris, 331 U.S. 145 (1947); Rabinowitz, 339 U.S. 56 (1950). Both cases were overruled by Chimel.
51. See § 10.01[B]–[C], supra.
52. Chimel v. California, 395 U.S. at 761 (quoting McDonald v. United States, 335 U.S. 451, 455–56 (1948)).
53. Id. (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)).
54. Regarding the general issue of pretextual police conduct, see § 2.07[B], supra.
55. See generally Albert W. Alschuler, Bright Line Fever and the Fourth Amendment, 45 U. Pitt. L. Rev. 227, 256–60
(1984); Craig M. Bradley, The Court's “Two Model” Approach to the Fourth Amendment: Carpe Diem!, 84 J. Crim. L. &
Criminology 429 (1993); Wayne R. LaFave, “Case-by-Case Adjudication” Versus “Standardized Procedures”: The Robinson
Dilemma, 1974 Sup. Ct. Rev. 127; Moskowitz, Note 1, supra; James B. White, The Fourth Amendment as a Way of Talking
About People: A Study of Robinson and Matlock, 1974 Sup. Ct. Rev. 165.
56. 395 U.S. 752 (1969).
57. 414 U.S. 218 (1973).
58. 414 U.S. at 235 (emphasis added).
59. See the text immediately preceding Note 54, supra.
60. 414 U.S. 260 (1973).
61. See also Whren v. United States, 517 U.S. 806, 812 (1996) (observing that the Court's cases, including Robinson and
Gustafson, foreclose the argument “that an officer's [improper] motive invalidates objectively justifiable behavior under the
Fourth Amendment”).
62. See generally Alschuler, Note 55, supra; Bradley, Note 55, supra; Moskowitz, Note 1, supra; David M. Silk, When
Bright Lines Break Down: Limiting New York v. Belton, 136 U. Pa. L. Rev. 281 (1987).
63. 453 U.S. 454 (1981); contra, under the state constitution, State v. Hernandez, 410 So. 2d 1381 (La. 1982) (in dictum,
rejecting the bright-line Belton rule and requiring case-by-case adjudication of the proper scope of a car SILA); State v. Pierce,
642 A.2d 947 (N.J. 1994) (Belton rule does not apply to a warrantless custodial arrest for a motor vehicle offense); Camacho v.
State, 75 P.3d 370 (Nev. 2003) (probable cause and exigent circumstances are required to conduct a warrantless SILA); State v.
Pittman, 127 P.3d 1116 (N.M. App. 2005) (warrantless SILA of an automobile must be justified by likelihood of physical harm
or loss of evidence, and finding neither justification present when defendant was handcuffed and secured in patrol car); People
v. Belton, 432 N.E.2d 745 (N.Y. 1982) (warrantless car SILA only allowed when the police have reason to believe that the car
contains a weapon or evidence of a crime); State v. Kirsch, 686 P.2d 446 (Or. Ct. App. 1984) (requiring case-by-case
adjudication of the grabbing area); Commonwealth v. White, 669 A.2d 896 (Pa. 1995) (absent exigent circumstances, the
police may not conduct a warrantless car SILA once occupants are arrested, removed from the car, and in police custody); State
v. Bauder, 924 A.2d 38 (Vt. 2007) (Belton rule does not apply when car occupant has been arrested, handcuffed, and placed in
a police cruiser, eliminating concerns regarding officer safety and protecting evidence); State v. Stroud, 720 P.2d 436 (Wash.
1986) (a warrant is needed to search a locked glove compartment or locked container of car incident to lawful arrest); Vasquez
v. State, 990 P.2d 476 (Wyo. 1999) (accepting the scope of a Belton search, but only if it is reasonable under the circumstances
of the individual case).
64. Arnold H. Loewy, Cops, Cars, and Citizens, 76 St. John's L. Rev. 535, 550 (2002) (Belton “failed on its own terms to
create a true bright line decision”). Some of the interpretive problems are noted in the next footnote.
65. The rule was not as bright-line as it first appeared. Did the rule, which permitted the police to open closed containers,
apply as well to locked containers? If the police were allowed to search the passenger compartment of a car incident to an
arrest, what was the rule if the “car” was a motor home? Also unsettled was the law relating to the “trunk” in a hatchback
vehicle.
66. As dissenting Justice Brennan put it, “[i]n its attempt to formulate a single familiar standard . . . to guide police officers
. . . the Court disregard[ed] [earlier Fourth Amendment principles], and instead adopt[ed] a fiction—that the interior of a car is
always within the immediate control of an arrestee who has recently been in the car.” Belton, 453 U.S. at 466 (omitting internal
quotation marks).
67. See § 2.07[A], supra.
68. Wayne R. LaFave, The Fourth Amendment in an Imperfect World: On Drawing “Bright Lines” and “Good Faith,” 43
U. Pitt. L. Rev. 307, 325–26 (1982).
69. See Moskowitz, Note 1, supra, at 692 (stating that cases of arrestees gaining access to their car at the time of the search
are “very unusual” in practice).
70. See Note 63, supra.
71. 556 U.S. 332 (2009).
72. 395 U.S. 752 (1969).
73. See the text to Note 66, supra.
74. 541 U.S. 615 (2004).
75. Gant, 556 U.S. at 343. Does this mean that the police need probable cause for such a search? See the text to Notes
12–13, supra.
76. Id. at 356.
77. Id. at 361. Justice Breyer did not join the dissent as to this fifth point. In a separate dissent, he expressed his agreement
with the majority that the Belton rule “can produce results divorced from its underlying Fourth Amendment rationale.” Id. at
354.
78. 573 U.S. 373 (2014).
79. Discussed in § 12.03, supra.
80. Discussed in § 12.04, supra.
81. Discussed in § 12.05[C], supra.
82. 573 U.S. at 386 (quoting Gant, 556 U.S. 332, 343 (2009).
83. Id. at 396 (emphasis in original).
84. See § 6.10, supra.
85. See Chapter 14, infra.
86. See, e.g., United States v. Kirschner, 823 F. Supp. 2d 665, 668–69 (E.D. Mich. 2010) (holding in the context of a
computer search that compelling the suspect to provide passwords associated with the suspect's computer was testimonial
because the act revealed the contents of the suspect's mind)
87. In Re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335 (11th Cir. 2012).
88. See Orin S. Kerr, Compelled Decryption and the Privilege Against Self-Incrimination, 97 Tex. L. Rev. 767 (2019)
(arguing that the government should be allowed to compel the defendant to provide the password as long as the government
has independent proof that the defendant knows the password).
Chapter 13
1. See generally 3 Wayne R. LaFave, Search and Seizure § 7.2(a)–(b) (4th ed. 2004); Lewis R. Katz, The Automobile
Exception Transformed: The Rise of a Public Place Exemption to the Warrant Requirement, 36 Case W. Res. L. Rev. 375
(1986); Note, Warrantless Searches and Seizures of Automobiles, 87 Harv. L. Rev. 835 (1974).
2. See § 12.05, supra (search incident to a lawful arrest); § 15.01, infra (inventory search); § 17.07, infra (during traffic
stop); and § 18.03 (border search).
3. As used in this chapter, the word “automobile” applies to all motorized vehicles, including trucks, airplanes, motor
homes, and motor boats. See California v. Carney, 471 U.S. 386, 393 n.2 (1985).
4. Coolidge v. New Hampshire, 403 U.S. 443, 461–62 (1971) (plurality opinion).
5. The warrantless search of an occupant of a vehicle, as distinguished from the automobile itself, does not fall within the
scope of the automobile search warrant exception. The justification for that search must be found elsewhere, e.g., as incident to
an arrest.
6. Carroll v. United States, 267 U.S. 132, 153–54 (1925); contra under the state constitution, State v. Tibbles, 236 P.3d 885
(Wash. 2010) (the fact that a car is stopped on the highway and is inherently mobile, does not, by itself, justify a warrantless
car search, even if there is probable cause for the search).
7. California v. Carney, 471 U.S. at 392, 394.
8. Maryland v. Dyson, 527 U.S. 465, 467 (1999); contra under the state constitution, State v. Miller, 630 A.2d 1315 (Conn.
1993); State v. Elison, 14 P.3d 456 (Mont. 2000); State v. Sterndale, 656 A.2d 409 (N.H. 1995); State v. Cooke, 751 A.2d 92
(N.J. 2000); State v. Kock, 725 P.2d 1285 (Or. 1986); State v. Larocco, 794 P.2d 460 (Utah 1990) (plurality opinion); State v.
Patterson, 774 P.2d 10 (Wash. 1989) (all holding that, absent an exigency beyond the inherent mobility of a car or some other
independent warrant exception, a warrant supported by probable cause is required to conduct a search of an unoccupied
vehicle).
9. Pennsylvania v. Labron, 518 U.S. 938, 940 (1996).
10. E.g., Carroll v. United States, 267 U.S. 132 (1925).
11. See Colorado v. Bannister, 449 U.S. 1 (1980) (per curiam) (the police observed the car on the road, but did not reach it
until it had left the highway and entered a service station).
12. E.g., California v. Carney, 471 U.S. 386 (1985) (vehicle was occupied). Many courts have justified warrantless searches
of unoccupied cars parked on the street, often on the ground that the suspect linked to the car is at large, that accomplices might
arrive and drive away the car, or even that a stranger might tamper with it. 3 LaFave, Note 1, supra, at 545–46, 559–60 (and
cases cited therein).
13. E.g., Coolidge v. New Hampshire, 403 U.S. 443 (1971) (plurality opinion). Coolidge is considered in Section 13.02[C],
infra. Its questionable current vitality is considered in Section 13.04, infra.
14. Florida v. White, 526 U.S. 559 (1999).
15. After the seizure, the police may also be authorized to conduct a warrantless inventory search of the automobile. If so,
evidence found during such a lawful inventory would be admissible at the car owner's trial. See § 15.01, infra.
16. Chambers v. Maroney, 399 U.S. 42 (1970).
17. Texas v. White, 423 U.S. 67 (1975) (per curiam).
18. E.g., Chambers v. Maroney, 399 U.S. 42 (1970).
19. Cardwell v. Lewis, 417 U.S. 583 (1974) (plurality opinion).
20. E.g., United States v. Johns, 469 U.S. 478, 487 (1985) (three-day delay was reasonable; however, the Court did not
“foreclose the possibility” that a delay of that length could be deemed unreasonable if the owner proved that the delay
“adversely affected [her] privacy or possessory interest” in the car or its contents).
21. E.g., Coolidge v. New Hampshire, 403 U.S. 443 (1971) (the car was unconstitutionally searched without a warrant three
times, two of which occurred more than a year after the car was seized); United States v. Johns, 469 U.S. at 487 (citing
Coolidge, the Court observed that “police officers may [not] indefinitely retain possession of a vehicle and its contents before
they complete a vehicle search”).
22. United States v. Ross, 456 U.S. 798, 824 (1982).
23. 500 U.S. 565 (1991).
24. See § 10.04[F], supra.
25. 267 U.S. 132 (1925).
26. Possession of the liquor was a misdemeanor, and the police could only arrest for a misdemeanor if the offense was
committed in their presence, which required that they observe the liquor in the car.
27. Carroll only authorized a warrantless search of the automobile for contraband and property “subject to seizure and
destruction.” However, as Professor LaFave has observed, “the specific reference to contraband appears to be no more than
recognition of the then extant ‘mere evidence’ rule, ultimately abolished. . . .” 3 LaFave, Note 1, supra, at 539. For discussion
of the “mere evidence” rule, see § 8.02[E], supra.
28. 399 U.S. 42 (1970).
29. Texas v. White, 423 U.S. 67, 68 (1975).
30. Arnold H. Loewy, Cops, Cars, and Citizens: Fixing the Broken Balance, 76 St. John's L. Rev. 535, 539 (2002).
31. Note, Note 1, supra, at 840–45.
32. 403 U.S. 443 (1971).
33. However, Justice White did not approve the second and third searches of the Coolidge car. He believed that Chambers
only justified a relatively short detention of a vehicle in order to conduct a warrantless search.
34. 403 U.S. 443 (1971). See § 13.02[C], supra.
35. 399 U.S. 42 (1970). See § 13.02[B], supra.
36. 458 U.S. 259 (1982) (per curiam).
37. 413 U.S. 433 (1973).
38. 417 U.S. 583 (1974).
39. 428 U.S. 364 (1976).
40. See § 15.01, infra.
41. 471 U.S. 386 (1985).
42. United States v. Ross, 456 U.S. 798, 823 (1982).
43. See § 18.02, infra.
44. 471 U.S. 386 (1985).
45. 399 U.S. 42 (1970). See § 13.02[B], supra.
46. 403 U.S. 443 (1971). See § 13.02[C], supra.
47. 3 LaFave, Note 1, supra, at 553 n.64.
48. See § 6.06, supra, for a discussion of curtilage.
49. 138 S. Ct. 1663 (2018).
50. Id. at 1667.
51. See generally 3 LaFave, Note 1, supra, at § 7.2(d); Craig M. Bradley, The Court's “Two Model” Approach to the
Fourth Amendment: Carpe Diem!, 84 J. Crim. L. & Criminology 429 (1993); Katz, Note 1, supra; James J. Tomkovicz,
California v. Acevedo: The Walls Close in on the Warrant Requirement, 29 Am. Crim. L. Rev. 1103 (1992).
52. New York v. Belton, 453 U.S. 454, 460 n.4 (1981).
53. Robbins v. California, 453 U.S. 420, 426 (1981), overruled on other grounds, United States v. Ross, 456 U.S. 798
(1982).
54. Arkansas v. Sanders, 442 U.S. 753, 764–65 n.13 (1979), overruled on other grounds, California v. Acevedo, 500 U.S.
565 (1991).
55. Robbins v. California, 453 U.S. at 427.
56. United States v. Johns, 469 U.S. 478 (1985).
57. Wyoming v. Houghton, 526 U.S. 295 (1999). See Note 66, infra.
58. California v. Acevedo, 500 U.S. 565 (1991).
59. United States v. Johns, 469 U.S. 478 (1985).
60. See § 13.01[D], supra.
61. 433 U.S. 1 (1977).
62. The government also argued at the trial court level that the search was an incident to the lawful arrest. However, the
Supreme Court stated that once police reduce “property not immediately associated with the person of the arrestee to their
exclusive control”—as here, by taking the container to headquarters—and, therefore, there is no danger of the arrestee
grabbing it, “a search of that property is no longer an incident of that arrest.” A more difficult question is whether the search
would have been justified under the search-incident-to-lawful-arrest warrant exception if the officers had opened the double-
locked footlocker at the scene. Justices Blackmun and Rehnquist, who dissented in Chadwick, believed that the police could
have lawfully opened the footlocker at the scene because it was in the grabbing area of the arrestees. Justice Brennan, who
wrote a concurrence, believed it was “not at all obvious” that this was so, because he doubted that the contents of the “securely
locked” container were in the grabbing area.
63. See § 4.03, supra.
64. 389 U.S. 347 (1967).
65. Chambers v. Maroney, 399 U.S. 42 (1970). See § 13.02[B], supra.
66. Despite the Court's use of the term “luggage,” the principles enunciated in Chadwick apply to other types of containers.
See § 13.05[A][2], supra.
67. 500 U.S. 565 (1991); contra under the state constitution, State v. Savva, 616 A.2d 774 (Vt. 1991).
68. Tomkovicz, Note 51, supra, at 1115.
69. See Florida v. White, 526 U.S. 559, 565 (1999) (in part justifying the warrantless seizure of a car, parked in a public
place, although its owner was already in custody, on the ground that “our Fourth Amendment jurisprudence has consistently
accorded law enforcement officials greater latitude in exercising their duties in public places”).
Chapter 14
1. See generally 1 Wayne R. LaFave, Search and Seizure § 2.2(a) (4th ed. 2004).
2. Horton v. California, 496 U.S. 128 (1990); see Coolidge v. New Hampshire, 403 U.S. 443 (1971); Arizona v. Hicks, 480
U.S. 321 (1987); Texas v. Brown, 460 U.S. 730 (1983).
3. Horton v. California, 496 U.S. at 133–34.
4. 403 U.S. 443 (1971).
5. Id. at 465.
6. Horton v. California, 496 U.S. at 136.
7. E.g., Warden v. Hayden, 387 U.S. 294 (1967).
8. Horton v. California, 496 U.S. at 137.
9. Coolidge v. New Hampshire, 403 U.S. at 468 (“even where the object [in plain view] is contraband, this Court has
repeatedly stated and enforced the basic rule that the police may not enter [private premises] and make a warrantless seizure”).
10. 455 U.S. 1 (1982).
11. See § 12.02[C][2][a], supra.
12. 403 U.S. 443 (1971).
13. 480 U.S. 321 (1987).
14. Arizona v. Hicks, 480 U.S. 321, 327 (1987).
15. See generally 2 LaFave, Note 1, supra, at § 4.11(d); Denise Marie Cloutier, Arizona v. Hicks: The Failure to Recognize
Limited Inspections as Reasonable in Fourth Amendment Jurisprudence, 24 Colum. J.L. & Soc. Probs. 351 (1991).
16. 480 U.S. 321 (1987).
17. E.g., Cloutier, Note 15, supra (contending that Hicks should be overruled).
18. See § 7.02[A], supra.
19. See Chapter 17, infra.
20. 2 LaFave, Note 1, supra, at 795.
21. See generally 3 LaFave, Note 1, supra, at § 6.7(c).
22. 496 U.S. 128 (1990); contra under the state constitution, State v. Meyer, 893 P.2d 159 (Haw. 1995) (inadvertency is a
requirement of the plain view doctrine); Commonwealth v. Balicki, 762 N.E.2d 290 (Mass. 2002) (same).
23. See generally 1 LaFave, Note 1, supra, at 452–60.
24. See generally David L. Haselkorn, The Case Against a Plain Feel Exception to the Warrant Requirement, 54 U. Chi. L.
Rev. 683 (1987); Anne Bowen Poulin, The Plain Feel Doctrine and the Evolution of the Fourth Amendment, 42 Vill. L. Rev.
741 (1997).
25. 508 U.S. 366 (1993).
26. Terry v. Ohio, 392 U.S. 1 (1968). See Chapter 17, infra.
27. Unfortunately, some magistrates “knowingly accept police perjury as truthful.” Myron W. Orfield, Jr., Deterrence,
Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. Colo. L. Rev. 75, 83 (1992)
(study of Cook County criminal justice system).
Chapter 15
Inventory Searches
1. See generally 3 Wayne R. LaFave, Search and Seizure §§ 7.4(a), 7.5(e) (4th ed. 2004).
2. Automobile inventories could reasonably fit under either the “administrative search” or “special needs” exceptions to the
warrant and probable cause requirements of the Fourth Amendment. These exceptions are discussed in Chapter 18. Largely for
historical reasons—the early “administrative search” cases focused on activities of non-police officials, and the “special needs”
exception had not yet been devised—an independent “inventory exception” developed.
3. 428 U.S. 364 (1976); contra under the state constitution, State v. Sawyer, 571 P.2d 1131 (Mont. 1977), overruled in part
on other grounds by State v. Long, 700 P.2d 153 (Mont. 1985) (only permitting warrantless inventories to secure objects in
plain view from outside the vehicle); State v. Opperman, 247 N.W.2d 673 (S.D. 1976) (same).
4. Opperman dealt primarily with the “search” aspect of the inventory. The Court perfunctorily approved of the
impoundment—seizure—of O’s car. It described as “beyond challenge” the right “of police to seize and remove vehicles
impeding traffic or threatening public safety and convenience.”
5. The Court's conclusion was not inevitable. It might have formulated a different type of “probable cause” standard,
relevant to administrative inventory searches. The Court has done this with other administrative inspections. See § 8.06, supra.
6. The lesser-expectation-of-privacy principle regarding cars is discussed at § 13.03, supra.
7. 3 LaFave, Note 1, supra, at 639.
8. Illinois v. Lafayette, 462 U.S. 640, 647–48 (1983) (arrest inventory); see also Colorado v. Bertine, 479 U.S. 367, 374
(1987) (“[R]easonable police regulations . . . administered in good faith satisfy the Fourth Amendment, even though courts
might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure.”).
9. 479 U.S. at 372.
10. See, e.g., §§ 2.07[B], 8.02[B], 8.02[F], and 14.04, supra.
11. 517 U.S. 806 (1996).
12. 532 U.S. 769 (2001) (per curiam).
13. In further support of the view that the pretext limitation remains viable after Sullivan is that the Court in Whren
acknowledged but distinguished the pretext language in the inventory cases by observing that the latter cases involved searches
in the absence of probable cause; the pretext-is-irrelevant doctrine of Whren involved “police conduct that is justifiable on the
basis of probable cause to believe that a violation of law has occurred.” Whren, 517 U.S. at 811.
14. Colorado v. Bertine, 479 U.S. 367, 372 (1987).
15. United States v. Frank, 864 F.2d 992, 1001 (3d Cir. 1988).
16. Colorado v. Bertine, 479 U.S. at 374 n.6 (“Our decisions have always adhered to the requirement that inventories be
conducted according to standardized criteria.”) (emphasis added). Of course, the fact that an inventory is conducted pursuant to
standard departmental regulations is not by itself sufficient basis for upholding the police action. As one court has observed,
“[u]nconstitutional searches cannot be constitutionalized by standardizing them as a part of normal police practice.” State v.
Jewell, 338 So. 2d 633, 640 (La. 1976).
17. Florida v. Wells, 495 U.S. 1, 4 (1990).
18. Opperman, 428 U.S. at 375, 376 & n.10 (in which the Court noted that the “inventory itself was prompted by the
presence in plain view of a number of valuables inside the car,” and that “once the policeman was lawfully inside the car to
secure the personal property in plain view, it was not unreasonable to open the unlocked glove compartment . . .”).
19. Commonwealth v. Sullo, 532 N.E.2d 1219, 1222 (Mass. App. Ct. 1989).
20. State v. Shamblin, 763 P.2d 425, 428 (Utah Ct. App. 1988).
21. 479 U.S. 367 (1987).
22. 462 U.S. 640 (1983). See § 15.03, infra.
23. Colorado v. Bertine, 479 U.S. at 377 (Blackmun, Powell, and O'Connor JJ., concurring) (emphasis added). Dissenting
Justices Marshall and Brennan would have limited inventories of containers even further, so they would have accepted the
limiting language in the concurring opinion.
24. 495 U.S. 1 (1990).
25. 3 LaFave, Note 1, supra, at 650.
26. E.g., Commonwealth v. Sullo, 532 N.E.2d 1219 (Mass. App. Ct. 1989).
27. See generally 3 LaFave, Note 1, supra, at § 5.3(a).
28. 462 U.S. 640 (1983); contra under the state constitution, Reeves v. State, 599 P.2d 727 (Alaska 1979) (a warrantless
arrest inventory may not be more intrusive than is absolutely necessary to prevent entry of weapons, drugs, or contraband
inside the jail; therefore, any object taken from the arrestee's possession may not be further searched or opened, except
pursuant to a warrant or valid warrant exception); State v. Perham, 814 P.2d 914 (Haw. 1991) (the police may not search the
contents of an arrestee's wallet as part of an arrest inventory, in the absence of evidence that such an exploratory search was the
least intrusive means of accomplishing the purposes of safeguarding the property and of protecting the police against
fraudulent claims).
29. Regarding the requirement that inventories be routine, see § 15.01[B][2], supra.
30. Relying on a different justification from the inventory decisions, the Court has also approved obtaining a DNA sample
by swabbing the inside of an arrestee's cheek as part of the routine booking procedure for those charged with “serious
offenses.” See Maryland v. King, 569 U.S. 435 (2013) (discussed more fully at § 12.02, supra).
31. United States v. Edwards, 415 U.S. 800 (1974).
Chapter 16
Consent Searches
[1] Waiver?
In comparatively early opinions, the Court justified consent searches on waiver principles, that is, on the
ground that, by consenting, a person waives his right to be free from unreasonable searches and seizures.16
[265/266] The Supreme Court no longer justifies consent searches on waiver principles. Indeed, if waiver
were the basis for consent searches, a number of important rulings of the Court would need to be
reconsidered. First, the Supreme Court has frequently stated that a waiver of a constitutional right is “an
intentional relinquishment or abandonment of a known right or privilege.”17 The Supreme Court has held,
however, that a warrantless search may be upheld even if the consenting party does not know that he may
refuse.18
Second, waiver principles conflict with the Court's so-called “third party” consent jurisprudence. For
example, suppose that A and B jointly own and use certain premises, and A consents to a police search while
B is absent. The Court has ruled that such consent is valid against “third party” B.19 Yet, absent some agency
relationship, A cannot waive B’s Fourth Amendment rights. For the same reason, waiver principles fail to
explain the “apparent authority” doctrine, which provides that the police may conduct a search on the basis
of consent granted by X, a stranger to the property, if the police reasonably believe that X has authority to
give consent.20 Quite obviously, Stranger X cannot waive the constitutional rights of a true owner, so the
waiver principle also fails to explain this aspect of current consent law.
[3] Reasonableness?
The Court's current explanation is that a consent search is a reasonable search. That is, “consent” is not
really an exception to a warrant requirement. Instead, “[t]here are various elements . . . that can make a
search . . . ‘reasonable’—one of which is the consent of the person” whose premises or effects will be
searched.24
But what makes a consent search reasonable? Perhaps the answer is that no cognizable harm of a privacy
or dignitary nature occurs from a search that a person freely authorizes the government to conduct; if so, it is
not unreasonable to search in such circumstances.25 Or perhaps the explanation lies in Justice Stewart's
pragmatic observations in Schneckloth v. Bustamonte,26 considered in Section 16.01, including his admission
that, in some circumstances, “a search authorized by a valid consent may be the only means of obtaining
important and reliable evidence.” This argument is apt to be unpersuasive to those who favor a warrant
requirement, but it can be justified as part of a reasonableness inquiry if one agrees that the consent was
voluntarily granted.
There is another explanation for justifying consent searches that might be placed under the
“reasonableness” umbrella. According to the Supreme Court in Georgia v. Randolph,27 “[t]he constant
element in assessing Fourth Amendment reasonableness in the consent cases . . . is the great significance
given to widely shared social expectations, which are naturally . . . influenced by the law of property, but not
controlled by its rules.” Thus, it may be reasoned, when consent is validly secured, the ensuing search by the
government is consistent with “widely shared social expectations” in that situation and therefore is
reasonable.
Randolph is only a 5–4 opinion and, despite the majority's assertion that it was applying an approach
(determining “widely shared social expectations”) that has been a “constant element” in consent-to-search
case law, it was in fact a new way to explain consent cases.
1. Tracey Maclin, The Good and Bad News About Consent Searches in the Supreme Court, 39 McGeorge L. Rev. 27
(2008); Janice Nadler, No Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 Sup. Ct. Rev. 153; Marcy Strauss,
Reconstructing Consent, 92 J. Crim. L. & Criminology 211 (2002).
2. Richard Van Duizend et al., The Search Warrant Process: Preconceptions, Perceptions, and Practices 21 (National Center
for State Courts 1984).
3. Id. at 95 (emphasis added).
4. One police detective has estimated that 98% of warrantless searches are “consensual.” Id. at 21.
5. 412 U.S. 218, 227–28 (1973).
6. United States v. Drayton, 536 U.S. 194, 207 (2002).
7. See Strauss, Note 1, supra, at 211 (“Every year, I witness the same mass incredulity. Why, 100 criminal procedure
students jointly wonder, would someone ‘voluntarily’ consent to allow a police officer to search the trunk of his car, knowing
that massive amounts of cocaine are easily visible there?”).
8. Nadler, Note 1, supra, at 155.
9. Arizona v. Hicks, 480 U.S. 321, 329 (1987).
10. See generally 4 Wayne R. LaFave, Search and Seizure § 8.1(a)–(b) (4th ed. 2004); Maclin, Note 1, supra; Ric
Simmons, Not “Voluntary” but Still Reasonable: A New Paradigm for Understanding the Consent Search Doctrine, 80 Ind.
L.J. 773 (2005); Daniel R. Williams, Misplaced Angst: Another Look at Consent-Search Jurisprudence, 82 Ind. L.J. 69 (2007).
11. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). See § 16.03, infra.
12. United States v. Matlock, 415 U.S. 164 (1974). See § 16.05, infra.
13. Illinois v. Rodriguez, 497 U.S. 177 (1990). See § 16.06, infra.
14. See Florida v. Jimeno, 500 U.S. 248 (1991). See § 16.04, infra.
15. Georgia v. Randolph, 547 U.S. 103 (2006). See § 16.05, infra.
16. E.g., Amos v. United States, 255 U.S. 313, 317 (1921); Johnson v. United States, 333 U.S. 10, 13 (1948); Stoner v.
California, 376 U.S. 483, 489 (1964).
17. Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (emphasis added).
18. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Not all states agree with this rule, at least not in every circumstance.
For example, the Washington Supreme Court held that when police arrive at a suspect's home and ask for entry to the house to
search, they must inform the suspect of his right to deny the request or limit the scope of the search. The Court held that it is
“inherently coercive” when police appear on a person's doorstep to talk about a criminal case. State v. Ferrier, 960 P.2d 927
(Wash. 1998).
19. United States v. Matlock, 415 U.S. 164 (1974).
20. Illinois v. Rodriguez, 497 U.S. 177 (1990).
21. See § 6.05, supra.
22. Matlock, 415 U.S. at 171 n.7.
23. 497 U.S. at 190 (Marshall, J., with whom Brennan and Stevens, JJ., joined, dissenting).
24. Rodriguez, 497 U.S. at 183–84. See also Fernandez v. California, 571 U.S. 292 (2014) (in which the Court states that
the “ultimate touchstone of the Fourth Amendment is ‘reasonableness,’” and consent searches “occupy one of [the] categories”
of permissible warrantless searches; “[i]t would be unreasonable—indeed, absurd—to require police officers to obtain a
warrant when the sole owner or occupant of a house or apartment voluntarily consents to a search”; and, even if the police
could obtain a warrant, this would be a “needless inconvenience [to] everyone involved”).
25. Indeed, if one accepts the reasoning of the court in United States v, Drayton, 536 U.S. 194, 207(2002), the agreement of
a citizen to consent to a search by government agents “should be given a weight and dignity of its own.”
26. 412 U.S. 218 (1973).
27. 547 U.S. 103, 111 (2006).
28. 4 LaFave, Note 10, supra, at § 8.2; Simmons, Note 10, supra; see also the sources in Note 1.
29. Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973).
30. Bumper v. North Carolina, 391 U.S. 543, 548–49 (1968).
31. Schneckloth v. Bustamonte, 412 U.S. at 224.
32. There is some intriguing language in United States v. Drayton, 546 U.S. 194, 207 (2002) that arguably conflicts with
the statement in the text:
In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. Police
officers act in full accord with the law when they ask citizens for consent. It reinforces the rule of law for the citizen to
advise the police of his or her wishes, and for the police to act in reliance on that understanding. When this exchange takes
place, it dispels inference of coercion.
Taken literally, this statement—in particular, the last sentence—could suggest that Drayton stands for the proposition that “as a
matter of law, . . . when a police officer asks a citizen for consent to search, and the citizen responds positively, such consent is
voluntary.” Nadler, supra note 1, at 179. This would conflict with the totality-of-circumstances standard that the Court has
regularly applied in consent cases.
33. See §§ 22.02[B][3] and 23.05[A][2], infra.
34. 4 LaFave, Note 10, supra, at 62.
35. On the matter of race, and the claim that a racial minority will feel more pressure to consent than a non-minority
person, see § 7.03[C][3], supra. For the view that almost all people, regardless of race, treat “requests” for consent as
commands, see the next Note.
36. If this were the standard, many “consents” would be deemed involuntary. See H. Richard Uviller, Tempered Zeal 81
(1988) (“However gently phrased, [the police request for consent] is likely to be taken by even the toughest citizen as a
command.”).
37. Culombe v. Connecticut, 367 U.S. 568, 605 (1961).
38. Schneckloth v. Bustamonte, 412 U.S. 218, 224 (1973).
39. Id. at 227.
40. 391 U.S. 543 (1968).
41. 4 LaFave, Note 10, supra, at 57–58.
42. E.g., Earls v. State, 496 S.W.2d 464 (Tenn. 1973) (upholding the consent as voluntary).
43. See §§ 6.02 and 6.05[B], and most particularly Note 96 therein, supra.
44. Katz v. United States, 389 U.S. 347 (1967).
45. 445 F.2d 126 (7th Cir. 1971).
46. 4 LaFave, Note 10, supra, at 134.
47. Regarding scope-of-consent issues, see § 16.04, infra.
48. 4 LaFave, Note 10, supra, at 138.
49. See § 16.03[A], supra.
50. See generally Gerard E. Lynch, Why Not a Miranda for Searches?, 5 Ohio St. J. Crim. L. 233 (2007); Alan C.
Michaels, Rights Knowledge: Values and Tradeoffs, 39 Texas Tech L. Rev. 1355 (2007).
51. 412 U.S. 218 (1973); contra under the state constitution, State v. Brown, 156 S.W.2d 722 (Ark. 2004) (an officer
seeking consent to search a suspect's home without a warrant must warn the resident of the right to refuse consent); State v.
Ferrier, 960 P.2d 927 (Wash. 1998) (same).
52. See generally Chapter 22, infra.
53. See also Ohio v. Robinette, 519 U.S. 33 (1996) (the Fourth Amendment does not require that a lawfully seized person,
now free to go, be advised that he is free to leave before his consent to a car search will be recognized as voluntary; eschewing
this bright-line rule, the Court followed the Schneckloth approach of treating voluntariness as a matter to be determined from
all of the circumstances). Contra under the state constitution, State v. Pals, 805 N.W. 2d 767 (Iowa 2011) (adopting a
seemingly stronger standard than Robinette, stating that the failure of police to inform a driver that he is free to leave “is, at a
minimum, a strong factor cutting against the voluntariness of the [consent to] search” of the car).
54. 304 U.S. 458 (1938).
55. See § 16.02[B][1], supra.
56. Arnold H. Loewy, Cops, Cars, and Citizens: Fixing the Broken Balance, 76 St. John's L. Rev. 535, 553 (2002).
57. “Can anyone not thoroughly steeped in legal fiction really believe that they thought ‘no’ was one of their options?” Id.
at 554.
58. Lynch, Note 50, supra, at 240–245.
59. See generally 4 LaFave, Note 10, supra, at § 8.1(c).
60. However, if the officer observes criminal evidence in view on the way to the bedroom, he may seize it pursuant to the
plain view doctrine.
61. However, if criminal evidence is found during the 10 minutes, the police may be justified in arresting A, and conducting
a separate search as incident to the arrest.
62. 500 U.S. 248 (1991).
63. See § 13.05[A][2], supra.
64. See generally 4 LaFave, Note 10, supra, at §§ 8.3–8.4; Mary I. Coombs, Shared Privacy and the Fourth Amendment, or
the Rights of Relationships, 75 Cal. L. Rev. 1593 (1987); Maclin, Note 1, supra.
65. 415 U.S. 164 (1974).
66. The Court explained that “common authority” rests on “mutual use of the property by persons generally having joint
access or control for most purposes.” One who shares premises with another person may, however, retain exclusive control
over a portion of the premises or over particular effects within them. For example, a particular room in an apartment shared by
college roommates might be used exclusively by one person. In such circumstances, consent is ineffective unless it is granted
by the person with exclusive control.
67. Justice Alito did not participate in the opinion.
68. 547 U.S. 103 (2006).
69. Is there a third way to analyze these cases? In light of the Supreme Court's recent resuscitation of the pre-Katz trespass
doctrine (see § 6.03[E]), Justice Scalia observed in dictum that the argument “that the search of [a person's] shared apartment
violated the Fourth Amendment because he had a right under property law to exclude the police,” is an argument that cannot
“be . . . easily dismissed.” Fernandez v. California, 571 U.S. 292, 308 (2014) (concurring opinion).
70. In accord, Lloyd L. Weinreb, Generalities of the Fourth Amendment, 42 U. Chi. L. Rev. 47, 63 (1974) (“[O]rdinarily,
persons with equal ‘rights’ in a place would accommodate each other by not admitting persons over another's objection while
he was present.”).
71. Indeed, in Fernandez v. California, 571 U.S. 292 (2014), the Supreme Court, 6–3, repeatedly described Randolph as a
“narrow exception” to “our cases [that] firmly establish that police officers may search jointly occupied premises if one of the
occupants consents.” In Fernandez, F was arrested in an apartment he shared with R. At that time, he stated that “[y]ou don't
have any right to come in here. I know my rights.” After removing F and taking him to the police station for booking, an
officer returned to the premises and requested and received consent from R to search the premises. The Court described this as
a “very different situation,” and noted that Justice Souter's opinion “went to great lengths to make clear that its holding was
limited to situations in which the objecting occupant is present. Again and again, the opinion of the [Randolph] Court stressed
this controlling factor.” Id. at 301.
Justice Alito, speaking for the Court, stated that R’s prior objection “cannot be squared with the ‘widely shared social
expectations’ or ‘customary social usage’ [approach] upon which the Randolph holding was based.” He considered it “obvious
that the calculus . . . would likely be quite different if the objecting tenant was not standing at the door . . . (and especially
when it is known that the objector will not return during course of the visit).” Id. at 303–4. This was a proposition that Justice
Ginsburg, joined by Justices Kagan and Sotomayor, questioned. Quoting a Seventh Circuit dissent, she stated: “‘Only in a
Hobbesian world,’ . . . ‘would one person's social obligations to another be limited to what the other[, because of his presence,]
is . . . able to enforce.’” Id. at 313, (Ginsburg, J., dissenting). Moreover, she observed, even if sharing premises “entail[s] the
prospect of visits by unwanted social callers while the objecting resident [is] gone, that unwelcome visitor's license would
hardly include free rein to rummage through the dwelling in search of evidence and contraband.” Id., (Ginsburg, J., dissenting).
72. It is noteworthy that two members of Randolph five-person majority, Justices Souter and Stevens, have since retired
from the Court.
73. See generally 4 LaFave, Note 10, supra, at § 8.3(g).
74. 376 U.S. 483 (1964).
75. 415 U.S. 164 (1974).
76. 497 U.S. 177 (1990); contra, under state constitution, State v. Lopez, 896 P.2d 889 (Haw. 1995) (consent may not be
based on apparent authority); State v. McLees, 994 P.2d 683 (Mont. 2000) (same); State v. Wright, 893 P.2d 455 (N.M. Ct.
App. 1995) (same); see also Commonwealth v. Porter P., 923 N.E.2d 36 (Mass. 2010) (holding that, although Massachusetts
recognizes an “apparent authority” doctrine, it applies it more narrowly than the federal constitutional doctrine; specifically, at
least when the police seek to rely on consent of a landlord or other non-resident third party to search a home, they must see a
written document purporting to give the consenting party authority to permit the search; in the absence of such a document, a
claim of apparent authority in such circumstances fails as a matter of law).
77. Notice the Court's inclusion of “exceptions to the warrant requirement” within the general rubric that the police need
not be correct in their actions, only that they be reasonable. This language may have future impact on “warrant exception” case
law. For example, suppose that a police officer conducts a search, ostensibly incident to a lawful arrest, but seizes evidence that
a court later determines was slightly outside the arrestee's grabbing area. Under current law, that renders the warrantless search
impermissible. In light of Rodriguez, however, the government would argue, perhaps successfully, that the officer's factual
mistake was a reasonable one, thereby rendering the search reasonable.
78. What if a police officer acts on the basis of a reasonable mistake of law? According to the Supreme Court, this also
satisfies the Fourth Amendment—though it is very rare for a police officer's mistake of law to be deemed reasonable. See §
17.03 infra.
Chapter 17
Terry v. Ohio:
The “Reasonableness” Balancing
Standard in Criminal Investigations
[C] Fingerprinting
The Supreme Court considers fingerprinting a less serious intrusion on a person's security than most other
police practices. First, fingerprinting (unlike interrogations and some searches) does not probe a person's
private life and thoughts. Second, the process is more reliable than lineups and confessions, and “is not
subject to such abuses as the improper [suggestive] line-up and the ‘third degree’ [interrogation].”106 Third,
fingerprinting can often be conducted at a time convenient to the suspect and need not be repeated.
In light of these differences, the transportation of a suspect to the police station for fingerprinting, if she is
detained there only briefly, is permissible on the basis of probable cause or, the Court has hinted in dictum,
“on less than probable cause” if it is “under judicial supervision.”107 The implication is that legislatures or
courts could develop procedures for special “fingerprint search warrants,” grounded on reasonable suspicion.
Also, the Court has indicated that there is support in its prior cases for the view that a brief detention of a
suspect “in the field” for fingerprinting at the scene is permissible if: (1) the belief that the suspect has
committed a crime meets the reasonable suspicion standard; (2) there is a reasonable basis for believing that
fingerprinting will establish or negate the suspect's connection with that crime; and (3) the fingerprinting is
conducted “with dispatch.”108
[B] Method
[1] Pat-Down (Frisk)
Terry did not mandate a particular weapons-search procedure, although it approved the one conducted in
that case. In Terry, O patted down the exterior of T’s clothing. Upon feeling a weapon, O searched T’s pocket
and pulled out the weapon. In contrast, in Sibron v. New York,113 a companion case to Terry, the Court
disapproved a search in which the officer thrust his hand into the suspect's pocket without first frisking him.
Notwithstanding Sibron, a pat-down is not always a prerequisite to a valid weapons search. Rather
obviously, if a suspect whom the officer has reason to believe is armed [309/310] and dangerous suddenly
moves her hand into a pocket or under a piece of clothing that might contain a weapon, the officer need not
jeopardize herself by conducting a pat-down.114
The facts in Adams v. Williams115 provide another example of a valid weapons search that was not
preceded by a pat-down. In Williams, the officer who had been informed that W was in his parked car with a
weapon concealed at his waist, asked W to open his car door; when W opened his window instead, the officer
reached into the car and, without frisking W, seized the gun from the suspect's waistband. The Court, without
discussion of the procedure, approved the officer's actions. The officer's no-frisk approach can be justified on
the ground that a pat-down in these circumstances—reaching into the car through the window—would have
been difficult, even dangerous. Because the officer reached only to the spot where he had been told the gun
was concealed, his actions were reasonable.
1. See generally 4 Wayne R. LaFave, Search and Seizure § 9.1 (4th ed. 2004); David A. Harris, Frisking Every Suspect:
The Withering of Terry, 28 U.C. Davis L. Rev. 1 (1994); Wayne R. LaFave, “Street Encounters” and the Constitution: Terry,
Sibron, Peters, and Beyond, 67 Mich. L. Rev. 39 (1968); Tracey Maclin, The Decline of the Right of Locomotion: The Fourth
Amendment on the Streets, 75 Cornell L. Rev. 1258 (1990); Scott E. Sundby, A Return to Fourth Amendment Basics: Undoing
the Mischief of Camara and Terry, 72 Minn. L. Rev. 383 (1988). See also the citations found in Note 15, infra.
2. Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 388 (1974).
3. 387 U.S. 523 (1967).
4. See § 8.06, supra.
5. See generally § 18.02, infra.
6. 392 U.S. 1 (1968).
7. United States v. Rabinowitz, 339 U.S. 56, 66 (1950). Terry “established such a spongy test, one that allowed the police
so much room to maneuver and furnished the courts so little bases for meaningful review, that the opinion must have been the
cause for celebration in a goodly number of police stations.” Yale Kamisar, The Warren Court and Criminal Justice: A
Quarter-Century Retrospective, 31 Tulsa L.J. 1, 5 (1995).
8. See, e.g., §§ 17.07 (weapons searches of automobiles), 17.08 (protective sweeps of residences), 18.05[B][1] (searches
of public school students), and 18.05[B][2] (searches of public employees), infra.
9. See § 15.01, supra (car inventories), and §§ 18.03 (border searches), 18.04[B][1] (sobriety checkpoints), and 18.05[C]
(drug and alcohol testing of public employees and public school children), infra.
10. Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 808 (1994).
11. His is not a universally held view. E.g., Anthony C. Thompson, Stopping the Usual Suspects: Race and the Fourth
Amendment, 74 N.Y.U. L. Rev. 956 (1999) (contending that the Supreme Court intentionally disguised the race-based aspects
of the facts in Terry).
12. According to a New York County District Attorney amicus brief filed in the Terry case, 1,600 police reports of stop-
and-frisks by the New York City Police Department “showed [a] disproportionate racial impact of those actions.” Michael R.
Juviler, A Prosecutor's Perspective, 72 St. John's L. Rev. 741, 743 (1998). This disparity apparently remains. Al Baker, New
York Minorities More Likely to be Frisked, N.Y. Times, May 12, 2010 (reporting that New York City African-Americans and
Latinos were nine times more likely than whites to be forcibly stopped by the police in 2009 and frisked, although they were
not more likely to be arrested).
13. Regarding the racial issues raised by Terry, see generally David A. Harris, Factors for Reasonable Suspicion: When
Black and Poor Means Stopped and Frisked, 69 Ind. L.J. 659 (1994); Sheri Lynn Johnson, Race and the Decision to Detain a
Suspect, 93 Yale L.J. 214 (1983); Tracey Maclin, “Black and Blue Encounters”—Some Preliminary Thoughts About Fourth
Amendment Seizures: Should Race Matter?, 26 Val. U. L. Rev. 243 (1991); Adina Schwartz, “Just Take Away Their Guns”:
The Hidden Racism of Terry v. Ohio, 23 Fordham Urb. L.J. 317 (1996); Developments in the Law, Race and Criminal Process:
III. Racial Discrimination on the Beat: Extending the Racial Critique to Police Conduct, 101 Harv. L. Rev. 1472, 1494 (1988);
Randall S. Susskind, Note, Race, Reasonable Articulable Suspicion, and Seizure, 31 Am. Crim. L. Rev. 327 (1994).
14. Amar, Note 10, supra, at 808.
15. See generally Terry v. Ohio 30 Years Later: A Symposium on the Fourth Amendment, Law Enforcement and Police-
Citizen Encounters, 72 St. John's L. Rev. 721–1524 (1998); Lewis R. Katz, Terry v. Ohio at Thirty-Five: A Revisionist View, 74
Miss. L.J. 423 (2004). For a fascinating study of how the Court reached its outcome in Terry, see especially John Q. Barrett,
Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court's Conference, 72 St. John's L. Rev. 749 (1998).
16. O was Cleveland Police Detective Martin McFadden. Attorney Louis Stokes (later an Ohio Congressman), who
represented Terry (T), has described McFadden as follows:
He was a real character—a tall, stately guy, and basically a good policeman. “Mac,” as we called him, was really a guy
that we really liked. He was straight. One thing about him—as a police officer, he came straight down the line. You did not
have to worry about him misrepresenting what the facts were.
Louis Stokes, Representing John W. Terry, 72 St. John's L. Rev. 727, 729 (1998).
17. Although the Terry opinion is silent on the matter, T and the second suspect were African-American; the third
individual was white. T’s defense counsel questioned O about his suspicions. According to the counsel's recollections three
decades later:
[Officer McFadden] said to us that he had seen these two fellows standing across the street from him, and he described
them as being two Negroes, and then he talked of the white fellow who came up to them and talked with them. Then he
[the third man] went on down the street. Mac then admitted to us they weren't doing anything, except one of the black
fellows would leave the other one, walk down the street a little bit, turn around, peer into the window. . . , then walk back
up to where the other fellow was. Then the other fellow would take a walk in a similar manner.
[O] was asked specifically what attracted him to them. On one occasion he said, (Well, to tell the truth, I just didn't like
“em.” He was asked how long he'd been a police officer. “39 years.” How long had he been a detective? “35 years.” What
did he think they were doing? “Well,” he said, “I suspected that they were casing a joint for the purpose of robbing it.”
“Well,” he was asked, “have you ever in your 39 years as a police officer, 35 as a detective, had the opportunity to observe
anybody casing a place for a stickup?” He said, “No, I haven't.” . . . “Then what attracted you to them?” He indicated he
just didn't like them.
Id. at 729–30.
18. Subsequently, Terry was confined to an asylum for the criminally insane. By the time the case reached the high court,
the second African-American suspect, who was also arrested, was killed in a robbery in Columbus, Ohio. Reuben M. Payne,
The Prosecutor's Perspective on Terry: Detective McFadden Had a Right to Protect Himself, 72 St. John's L. Rev. 733, 733
(1998). The third suspect, although taken into custody, was not ultimately charged with any offense.
19. Since Terry, the Court has refined this definition of “seizure.” See generally § 7.03, supra.
20. As the Court observed, a pat-down requires the officer to do a “thorough search” of the suspect's body, including “the
groin and area about the testicles, and entire surface of the legs down to the feet.” Indeed, although the Court did not say so, a
pat-down could be considered more intrusive than, for example, a “full” search of the pocket of a person's shirt.
21. This conclusion need not follow. When an exigency justifies an exception to the warrant requirement, the Court may
retain the probable cause standard, as it has done, for example, in the case of searches of cars stopped on the highway. See
generally Chapter 13, supra.
22. The implication of this language is that a search or seizure, although justified at its inception, becomes constitutionally
unreasonable if subsequent police action is not reasonably related to the original justification for the interference or is
excessive in its implementation. Recently, the Supreme Court diverged from the Terry requirement that the police action be
reasonably related to the original reason for the seizure. In Illinois v. Caballes, 543 U.S. 405 (2005), the police conducted a
lawful traffic stop to issue a warning citation, but took advantage of the time required to issue the citation to permit a dog to
sniff the vehicle for possible drugs. Justice Stevens, for the Court, upheld the dog sniff, although the police had no reason to
suspect the driver of drug possession. The six-justice majority defended the police action because the dog-sniff involved a
relatively non-intrusive procedure (see § 6.09, supra) and, more significantly, because the procedure “reveal[ed] no
information other than the location of a substance that no individual has the right to possess.”
Justice Ginsburg and Souter dissented. They contended that “[e]ven if the drug sniff is not characterized as a Fourth
Amendment “search,” the sniff surely broadened the scope of the traffic-violation-related seizure.” That is, as the dissent saw
it, the original stop was justified at its inception, but the police action became constitutionally unreasonable once the officers
converted the routine traffic stop into a drug investigation. Contra, under the state constitution, State v. Estabillio, 218 P.3d 749
(Haw. 2009) (state constitution forbids police from questioning motorists about offenses unrelated to the traffic violation, in the
absence of reasonable suspicion, even if the questioning does not prolong the detention).
Although Caballes holds that the police may conduct investigations that go beyond the initial purpose of a seizure, the
Court in that case did warn that a traffic stop may become unlawful if it is prolonged beyond the time reasonably required to
complete the [traffic stop] mission. In Caballes, the dog sniff did not extend the length of the traffic stop, but in Rodriguez v.
United States, 575 U.S. 348 (2015), the facts were different. A routine traffic stop of a car containing two persons lasted 22 or
23 minutes, which was the time required for the officer to question the driver about the reason he had veered onto the highway
shoulder, to gather the driver's license, registration, and proof of insurance and conduct a records check, and to receive the
passenger's license for a similar records check. Only after the officer returned the documents and issued a warning ticket to the
driver—and thus the purpose for the stop was completed—did he call for an officer to come with a trained dog to sniff the
vehicle for drugs. (The officer lacked reasonable suspicion that the car contained narcotics.) This extended the time of the
seizure by about eight minutes.
The Court, 6–3 per Justice Ginsburg, held that the dog sniff violated the Fourth Amendment because, per Caballes, it
prolonged the stop beyond the time reasonably required to complete the traffic stop's initial mission. Justice Ginsburg
explained that “[t]he critical question . . . is not whether the dog sniff occurs before or after the officer issues a ticket, . . . but
whether conducting the sniff ‘prolongs’—i.e., adds time to—‘the stop.’”
If the police need to extend the stop beyond the time necessary to conduct a routine traffic stop, they must demonstrate
reasonable suspicion that criminal activity is afoot. One state supreme court has ruled, for example, that claiming a package at
the post office that smells of dryer sheets (a common masking agent for drugs) and using a false name when claiming the
package did not give rise to reasonable suspicion to justify an additional 34-minute wait for a drug dog. MacKintrush v. State,
479 S.W.3d 14 (Ark. 2016).
Not all state constitutions agree with the Rodriguez decision. See, e.g., State v. Alvarez, 138 Haw. 173 (2016) (even if
bringing in a drug dog does not result in increased detention for the suspect, the drug dog represents an “escalation of the
investigation” that requires “strong independent evidence of criminal activity,”).
23. 387 U.S. 523 (1967).
24. Terry, 392 U.S. at 30–31.
25. Regarding the citizen's right to “ignore his interrogator,” see § 9.04, supra (discussing Hiibel v. Sixth Jud. Dist. Ct., 542
U.S.177 (2004), which holds that state law may properly require a person subject to a lawful detention to provide her name to
the police upon request, as long as the request is reasonably related to the purpose of the detention).
26. See generally 4 LaFave, Note 1, supra, at § 9.5; David A. Harris, Particularized Suspicion, Categorical Judgments:
Supreme Court Rhetoric versus Lower Court Reality Under Terry v. Ohio, 72 St. John's L. Rev. 975 (1998); Margaret
Raymond, Down on the Corner, Out in the Street: Considering the Character of the Neighborhood in Evaluating Reasonable
Suspicion, 60 Ohio St. L.J. 99 (1999).
27. See § 8.07[A], supra.
28. 462 U.S. 213 (1983).
29. A piece of trivia: The Court did not use the term “reasonable suspicion” in Terry, although it was used by a lower court,
as quoted by the Supreme Court, in Sibron v. New York, 392 U.S. 40 (1968), a companion case to Terry. The Supreme Court
apparently used the term itself, although in quotation marks, for the first time in a Terry context in Almeida-Sanchez v. United
States, 413 U.S. 266, 268 (1973). The quotation marks were dropped in Gustafson v. Florida, 414 U.S. 260, 265 n.4 (1973), a
non-Terry case, and later in United States v. Brignoni-Ponce, 422 U.S. 873, 882 (1975), a case involving a Terry-level seizure.
30. United States v. Sokolow, 490 U.S. 1, 7 (1989).
31. Id.
32. Illinois v. Wardlow, 528 U.S. 119, 126 (2000).
33. INS v. Delgado, 466 U.S. 210, 217 (1984).
34. Illinois v. Rodriguez, 497 U.S. 177 (1990) (“It is apparent that in order to satisfy the reasonableness requirement of the
Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by [the
police] . . . is not that they always be correct, but that they always be reasonable.” See also § 16.06, supra. More recently, the
Court has noted that “[t]o be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the
part of government officials. . . . We have recognized that searches and seizures based on mistakes of fact can be reasonable.”
Heien v. North Carolina, 574 U.S. 54, 61 (2014).
35. Heien v. North Carolina, 574 U.S. 54 (2014). In Heien, a police officer observed that only one of a vehicle's brake lights
was working, so he pulled the driver over. While issuing a warning ticket, he became suspicious of the conduct of the driver
and passenger and their answer to questions. Therefore, the officer sought and obtained consent to search the vehicle, where
cocaine was discovered. Heien sought to suppress evidence of the cocaine on the ground that his seizure—the stop of the
vehicle—was unconstitutional. As it turned out, the applicable state code provision only required drivers to be equipped with
one brake light. Thus, the officer did not have legal grounds to pull the vehicle over. Nonetheless, the Supreme Court, 8–1, held
that, just as a search or seizure by a police officer can be reasonable based on an erroneous, but reasonable, mistake of fact,
“reasonable men make mistakes of law, too, and such mistakes are no less compatible with the concept of reasonable suspicion
[or probable cause].” Id. at 61.
36. Critics of post-Terry case law have assumed that lower courts now routinely uphold police stop-and-frisks. However,
according to one concededly incomplete (and now somewhat dated) sampling of federal district court and state appellate court
opinions, defendants won suppression motions in 26% to 28% of the Terry cases. George C. Thomas III, Terry v. Ohio in the
Trenches: A Glimpse at How Courts Apply “Reasonable Suspicion,” 72 St. John's L. Rev. 1025, 1029–1034 (1998).
37. United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Cortez, 449 U.S. 411 (1981)).
38. United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)).
39. United States v. Cortez, 449 U.S. 411, 417 (1981); see also United States v. Arvizu, 534 U.S. 266, 273 (2002); contra
under the state constitution, Commonwealth v. Lyons, 564 N.E.2d 390 (Mass. 1990) (rejecting the totality-of-the-
circumstances test in the context of probable cause/reasonable suspicion in favor of the pre-Gates two-pronged approach).
40. Harris, Note 26, supra, at 976.
41. See also Raymond, Note 26, supra (arguing that, in particular, the characterization of a neighborhood as crime- or drug-
prone tends to dominate judicial analysis and push aside particularized facts that might result in a contrary outcome).
42. United States v. Cortez, 449 U.S. at 418.
43. See Andrew Guthrie Ferguson, Big Data and Predictive Reasonable Suspicion, 163 U. Penn. L. Rev. 327 (2015); Ric
Simmons, Quantifying Criminal Procedure: How to Unlock the Potential of Big Data in Our Criminal Justice System, 2016
Mich. St. L. Rev. 947 (2016).
44. Kansas v. Glover, 140 S. Ct. 1183 (2020).
45. Id. at 1189–90.
46. 407 U.S. 143 (1972).
47. 496 U.S. 325 (1990); see generally David S. Rudstein, White on White: Anonymous Tips, Reasonable Suspicion, and
the Constitution, 79 Ky. L.J. 661 (1990–91).
48. 529 U.S. 266 (2000).
49. Alabama v. White, 496 U.S. at 330.
50. Id. at 328–29.
51. 496 U.S. 325 (1990).
52. 529 U.S. 266 (2000).
53. J.L. is also distinguishable from Adams v. Williams. Although the informant there, as here, only described a particular
person at a particular location—he did not predict future conduct—the informant's reliability in Adams was stronger: he came
to the police non-anonymously and had come to them before; therefore, his reputation could be better assessed and he could
theoretically be held criminally responsible if his allegations proved to be fabricated. See J. L., 529 U.S. at 270.
54. The Court recently decided another case involving hearsay. In Navarette v. California, 572 U.S. 393 (2014), the police
stopped a vehicle exclusively on the basis of an anonymous 911 call from a driver who claimed that she had been driven off the
road by a truck minutes earlier. She described the vehicle and provided a license plate number. Police officers spotted the
vehicle approximately 15 minutes later. They followed the vehicle for about five minutes, but observed nothing unusual.
Nonetheless, they stopped the vehicle. When they did, they smelled marijuana. A subsequent search revealed 30 pounds of
marijuana.
The Court, 5–4, upheld the stop, although it stated that, as with White, it was a “close case.” Justice Thomas, writing for the
majority, held that although an anonymous tip alone rarely justifies a stop, “under appropriate circumstances, an anonymous tip
can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop.’” Here, Justice
Thomas pointed out that the caller obviously had firsthand knowledge and, despite her anonymity, the Court found indicia of
reliability: the “sort of contemporaneous report [as occurred here] has long been treated as especially reliable,” because it tends
to negate the likelihood of conscious misrepresentation; a “‘statement relating to a startling event’—such as getting run off the
road”—is treated as reliable; and furthermore, use of the 911 system enhances the caller's reliability because there are features
today that “allow for identifying and tracing callers, and thus provide some safeguards against making false reports with
immunity.” Therefore, based on the 911 call, the Court concluded that the police had reasonable suspicion that the driver was
driving while intoxicated. Id. at 400–401.
Justice Scalia wrote a stinging dissent, criticizing virtually every aspect of the majority analysis. Among his arguments:
“the peculiar fact that the accusation was anonymous” (“When does a victim complain to the police about an arguably criminal
act . . . without giving his identity, so that he can accuse and testify when the culprit is caught?”); the fact that the report was
not so immediate as to justify the majority's assumption of reliability; and, according to amicus briefs, it is often not possible to
identify an anonymous 911 caller and, even if it were true, “it proves absolutely nothing unless the anonymous caller was
aware of that fact.” Beyond this, Justice Scalia stated that the claim that she was driven off the road hardly provides reasonable
suspicion that a driver was intoxicated—there are too many other possible explanations—especially since the police observed
the driver for five minutes and observed no signs of intoxication. According to the dissent,
[t]he Court's opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous
911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that s single
instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911
caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police.
Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police
interference . . . After today's opinion all of us on the road . . . are at risk of having our freedom of movement curtailed on
suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.
Id. at 413–14 (Scalia, J., dissenting).
55. Although this subsection deals with “profiling” of drug couriers—this is because profiling case law has centered on
drug investigations, especially during the so-called “war on drugs” in the 1980s—the legal analysis discussed here would apply
to any government effort to justify Terry-level, “reasonable suspicion” seizures of persons based on profiling, such as in
terrorism investigations.
56. United States v. Cortez, 449 U.S. 411, 418 (1981).
57. Initial contact between an officer and a suspect will often fall short of a seizure of the person and, therefore, may
lawfully take place in the absence of reasonable suspicion. See § 7.03, supra.
58. See Reid v. Georgia, 448 U.S. 438 (1980) (per curiam).
59. United States v. Hanson, 801 F.2d 757, 762 (5th Cir. 1986).
60. United States v. Sokolow, 490 U.S. 1, 10 (1989).
61. “[I]t cannot be said with assurance what combination of factors from the ‘drug courier profile’ will suffice to justify a
Terry stop of a particular traveler.” § 4 LaFave, Note 1, supra, at 506.
62. 448 U.S. 438 (1980) (per curiam).
63. 460 U.S. 491 (1983).
64. 490 U.S. 1 (1989).
65. 4 LaFave, Note 1, supra, at 513.
66. Derricott v. State, 611 A.2d 592 (Md. 1992).
67. E.g., United States v. Ornelas-Ledesma, 16 F.3d 714 (7th Cir. 1994) (the suspect was Hispanic, came from the “source”
state of California, drove a two-door vehicle [which is supposedly preferred by drug traffickers], checked into a motel without
a reservation at 4:00 a.m., and was accompanied by another man; the court was critical of the fact that these factors were
correlated with the lower-income status of many innocent Hispanics on long-distance trips).
68. See Lenese C. Herbert, Can't You See What I'm Saying? Making Expressive Conduct a Crime in High-Crime Areas, 9
Geo. J. In Poverty L. & Pol'y 135 (2000); Raymond, Note 26, supra.
69. Brown v. Texas, 443 U.S. 47, 52 (1979).
70. 499 U.S. 621 (1991).
71. 528 U.S. 119 (2000).
72. See Herbert, Note 66, supra, at 143–44 (“[R]esidents or visitors of high-crime areas consistently characterize their
interactions with police as overwhelmingly adversarial. . . . [Moreover,] [p]olice admit that their interactions with those
encountered in such locations are much more aggressive, purportedly because aggression is required to establish police control
and to squelch the higher levels of criminal activity.”).
73. This subject is also considered at §§ 2.05, 2.07[B], and 8.02[F], supra. For excellent scholarly sources on the subject of
racial “and ethnic” profiling, see the biographical citations at the beginning of § 8.02[F].
74. Sharon L. Davies, Profiling Terror, 1 Ohio St. J. Crim. L. 45, 53 (2003).
75. Washington v. Lambert, 98 F.3d 1181, 1187 (9th Cir. 1996).
76. Id. at 1188.
77. 517 U.S. 806 (1996); see § 8.02[F], supra.
78. Davies, Note 72, supra, at 52.
79. 221 F.3d 329 (2d Cir. 2000).
80. The police argued instead that the contacts were consensual and, therefore, not Fourth Amendment seizures.
81. Thanks to Professor Sharon Davies for drawing this distinction.
82. Sherry F. Colb, Profiling With Apologies, 1 Ohio St. J. Crim. L. 611, 616 (2004).
83. See generally 4 LaFave, Note 1, supra, at § 9.8.
84. See § 7.03, supra.
85. See, e.g., Dunaway v. New York, 442 U.S. 200, 209 (1979) (Terry “involved a brief, on-the-spot stop on the street . . . ,
a situation that did not fit comfortably within the traditional concept of an ‘arrest’”); United States v. Place, 462 U.S. 696, 706
(1983) (“the principles of Terry and its progeny would permit the officer to detain . . . briefly to investigate the circumstances
that aroused his suspicion”).
86. 470 U.S. 675 (1985).
87. 473 U.S. 531 (1985).
88. 442 U.S. 200 (1979).
89. 460 U.S. 491 (1983).
90. See also Kaupp v. Texas, 538 U.S. 626 (2003) (per curiam) (on less than probable cause, three uniformed and two
plainclothes officers came to the home of the 17-year-old suspect at 3:00 a.m., awakened him in his bedroom, and said, “we
need to go and talk”; K was taken to the police station, handcuffed; held: the preceding events constituted an illegal seizure of
the adolescent suspect, for want of probable cause).
91. 434 U.S. 106 (1977).
92. Contra under the state constitution, State v. Kim, 711 P.2d 1291 (Haw. 1985) (a police officer must have a reasonable
basis to believe that a crime has been committed, to order a driver out of a car after a traffic stop); Commonwealth v.
Gonsalves, 711 N.E.2d 108 (Mass. 1999) (a police officer must have a reasonable belief that her or another's safety is in danger
before ordering a driver or other occupant out of a motor vehicle following a lawful stop of the vehicle); State v. Sprague, 824
A.2d 539 (Vt. 2003) (an officer must have “a reasonable basis to believe that the officer's safety, or the safety of others, is at
risk or that a crime has been committed before ordering a driver out of a stopped vehicle”).
93. 519 U.S. 408 (1997); contra under the state constitution, Commonwealth v. Gonsalves, 711 N.E.2d 108 (Mass. 1999)
(requiring reasonable suspicion to order a passenger out of a vehicle); State v. Mendez, 970 P.2d 722 (Wash. 1999) (same).
94. 555 U.S. 323, 333 (2009) (emphasis added).
95. 460 U.S. 491 (1983).
96. Justice Brennan concurred in the judgment. He stated that a Terry seizure must be so short in duration that it would be
“difficult to conceive of a less intrusive means that would be effective to accomplish the purpose of the stop.”
97. 462 U.S. 696 (1983).
98. 490 U.S. 1 (1989).
99. See also Michigan v. Long, 463 U.S. 1032, 1052 (1983) (a Terry-type search of a car for weapons is valid even if the
police could have “adopt[ed] alternative means to ensure their safety in order to avoid the intrusion involved in a Terry
encounter.”). Long is discussed in greater detail in § 17.07, infra.
100. 470 U.S. 675 (1985).
101. See generally 3 LaFave, Note 1, supra, at § 9.5.
102. 469 U.S. 221 (1985).
103. The Supreme Court has not been called upon to determine precisely when a seizure to investigate a completed offense
is justified. Justice Thomas, writing for the Court, was recently able to avoid reaching that issue in Navarette v. California, 572
U.S. 393 (2014), stating only that “we need not address under what circumstances a stop is justified by the need to investigate
completed criminal activity.” The four dissenters, per Justice Scalia, observed that “[t]he circumstances that may justify a stop
under Terry v. Ohio, to investigate past criminal activity are far from clear.” Id. at 410 n.3 (Scalia. J., dissenting) (citing
Hensley).
104. Florida v. Royer, 460 U.S. 491, 499 (1983).
105. Arizona v. Johnson, 555 U.S. 323, 327 (2009). As the language quoted in the text indicates, the Court here was
announcing a rule in “a traffic-stop setting.” However, what if a pedestrian is detained to investigate a completed
misdemeanor? Lower courts, at least prior to Johnson, have split on the answer. E.g., Gaddis v. Redford Township, 364 F.3d
763 (6th Cir. 2004) (adopting bright-line rule barring Terry-level seizures to investigate completed misdemeanors); United
States v. Hughes, 517 F.3d 1013 (8th Cir. 2008) (applying a case-by-case approach balancing personal security against
governmental interests; here, the Terry seizure was unconstitutional in the investigation of a completed misdemeanor trespass).
106. Davis v. Mississippi, 394 U.S. 721, 727 (1969).
107. Hayes v. Florida, 470 U.S. 811, 816–17 (1985).
108. Id. at 817.
109. See generally 4 LaFave, Note 1, supra, at § 9.6.
110. The Supreme Court now frequently drops the word “presently” from the description of the Terry frisk rule. E.g.,
Knowles v. Iowa, 525 U.S. 113, 117 (1998); Arizona v. Johnson, 555 U.S. 323, 327 (2009).
111. See the text to Note 24, supra.
112. 407 U.S. 143 (1972).
113. 392 U.S. 40 (1968).
114. 4 LaFave, Note 1, supra, at 657.
115. 407 U.S. 143 (1972).
116. Minnesota v. Dickerson, 508 U.S. 366 (1993). See § 14.05[B], supra.
117. 4 LaFave, Note 1, supra, at 672.
118. 463 U.S. 1032 (1983); contra under the state constitution, People v. Torres, 543 N.E.2d 61 (N.Y. 1989).
119. See Maryland v. Buie, 494 U.S. 325, 332 (1990) (“In a sense, Long authorized a ‘frisk’ of an automobile for
weapons.”).
120. The Court pointed out that if L had not been arrested, he would have returned to the car to leave the scene, and thus
could have reached the knife and any other weapon in the car. However, if he were not under arrest and no longer in temporary
custody, L would have little incentive to use the knife against the officers.
121. See generally 3 LaFave, Note 1, supra, at § 6.4(c).
122. 494 U.S. 325 (1990).
123. See § 12.02[C][3], supra.
124. The case was remanded to the state court to determine whether the requisite reasonable suspicion existed. In his
concurrence, Justice Stevens expressed doubt that the police could justify this protective sweep. He reasoned that the police
may only conduct a sweep if it will reduce the risk of harm to themselves or others: “in short, the search must be protective.”
He described the officer's decision to enter the basement after B’s arrest as “a surprising choice for an officer, worried about
safety.” On remand, however, the court found that the officers were justified in conducting the sweep. Buie v. State, 580 A.2d
167 (Md. 1990).
125. 463 U.S. 1032 (1983). See § 17.07, supra.
126. Notwithstanding the Court's observation, a protective search is far more extensive than the one approved in Terry in that
every room and hallway closet in the residence may be entered. In that sense, the Court has approved a virtual full search of a
residence based on reasonable suspicion, rather than probable cause.
127. 462 U.S. 696 (1983).
128. See § 6.09, supra.
Chapter 19
1. See generally 6 Wayne R. LaFave, Search and Seizure § 11.3 (4th ed. 2004); Sherry F. Colb, Standing Room Only: Why
Fourth Amendment Exclusion and Standing Can No Longer Logically Coexist, 28 Cardozo L. Rev. 1663 (2007); Richard B.
Kuhns, The Concept of Personal Aggrievement in Fourth Amendment Standing Cases, 65 Iowa L. Rev. 493 (1980); Lloyd L.
Weinreb, Your Place or Mine? Privacy of Presence under the Fourth Amendment, 1999 Sup. Ct. Rev. 253.
2. See Chapter 20, infra.
3. A person aggrieved by a Fourth Amendment violation may make a pretrial motion to have the seized property returned
to her as well as to exclude the evidence at her trial. E.g., Fed. R. Crim. P. 41(g)–(h).
4. Jones v. United States, 362 U.S. 257, 261 (1960), overruled on other grounds, United States v. Salvucci, 448 U.S. 83
(1980).
5. Alderman v. United States, 394 U.S. 165, 174 (1969).
6. 439 U.S. 128, 138–39 (1978) (footnote omitted).
7. Minnesota v. Carter, 525 U.S. 83, 87 (1998) (criticizing a state court for analyzing the facts of the case “under the rubric
of ‘standing’ doctrine, an analysis which this Court expressly rejected 20 years ago in Rakas”).
8. See § 19.04, infra.
9. Rawlings v. Kentucky, 448 U.S. 98, 112 (1980) (concurring opinion).
10. 6 LaFave, Note 1, supra, at 131.
11. E.g., State v. Alston, 440 A.2d 1311, 1314 n.2 (N.J. 1981).
12. 525 U.S. 83 (1998).
13. Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 367 (1974).
14. Colb, Note 1, supra, at 166 (“[T]he standing doctrine necessarily entails the demise of the Fourth Amendment
exclusionary rule”; and arguing that a coherent approach to Fourth Amendment jurisprudence requires either the abolition of
the exclusionary rule or the standing requirement).
15. 447 U.S. 727 (1980).
16. Kuhns, Note 1, supra, at 509–13.
17. Alderman v. United States, 394 U.S. 165, 175 (1969).
18. 439 U.S. 128 (1978).
19. Kuhns, Note 1, supra, at 514 & n.143.
20. See Brown v. United States, 411 U.S. 223, 229 (1973).
21. Jones v. United States, 362 U.S. 257 (1960).
22. See United States v. Jeffers, 342 U.S. 48 (1951).
23. 6 LaFave, Note 1, supra, at 226.
24. In McDonald v. United States, 335 U.S. 451 (1948), the Supreme Court reversed M’s conviction because evidence used
against him had been seized in violation of the Fourth Amendment rights of X, his co-defendant. The Court reasoned that X had
the right to have his property returned to him prior to trial as the result of the Fourth Amendment violation; therefore, the
evidence would not have been in the government's custody to use against M. Although McDonald did not speak in terms of
“standing,” many lower courts interpreted the case to mean that a defendant had the right to raise a Fourth Amendment claim if
the rights of any co-defendant or co-conspirator were violated. The doctrine of derivative standing, if it ever existed at the
Supreme Court level, was overruled sub silentio in Wong Sun v. United States, 371 U.S. 471 (1963), when the Court held that
evidence unconstitutionally seized from one defendant, James Toy, was admissible against another defendant, Wong Sun,
because the unlawful police conduct relating to Toy invaded no Fourth Amendment right of Wong Sun. The Court made the
point explicit in Alderman v. United States, 394 U.S. 165 (1969), when it stated that “[c]oconspirators and codefendants [are] . .
. accorded no special standing.” The Court concluded that the potential deterrent benefit of applying the exclusionary rule to
co-defendants who did not otherwise have standing was outweighed by the exclusionary rule costs of such an approach.
25. 6 LaFave, Note 1, supra, at 11.3(g).
26. 362 U.S. 257 (1960), overruled in United States v. Salvucci, 448 U.S. 83 (1980).
27. 448 U.S. 83 (1980); contra, under the state constitution, Commonwealth v. Amendola, 550 N.E.2d 121 (Mass. 1990);
State v. Sidebotham, 474 A.2d 1377 (N.H. 1984); State v. Wright, 596 A.2d 925 (Vt. 1991); State v. Simpson, 622 P.2d 1199
(Wash. 1980) (all retaining the automatic standing rule).
28. 390 U.S. 377 (1968).
29. Salvucci expressly reserved the question of whether the Simmons rule prevents the prosecutor from using the
defendant's testimony at the suppression hearing to impeach her trial testimony.
30. 439 U.S. 128 (1978).
31. 439 U.S. 128 (1978); contra, under the state constitution, State v. Wood, 536 A.2d 902 (Vt. 1987) (to establish
standing, a defendant need only assert a possessory, proprietary, or participatory interest in the item seized or the area to be
searched).
32. Actually, there were two petitioners in the Rakas appeal. For purposes of clarity, they are subsumed under “R.”
33. See § 19.03, supra.
34. R also claimed standing on the ground that he was the target of the search. Language in a few earlier cases hinted at the
possibility of “target standing.” E.g., United States v. Jeffers, 342 U.S. 48, 52 (1951) (observing that the search and seizure in
that case were “bound together by one sole purpose—to locate and seize the narcotics of [defendant]”); Jones v. United States,
362 U.S. 257, 261 (1960) (describing a person with standing as one who is “a victim of a search or seizure, one against whom
the search was directed”) (emphasis added). The Supreme Court rejected this basis of standing. (The dissenters in Rakas stated
that “[f]or the most part,” they agreed with the majority's rejection of target standing. 439 U.S. at 157 n.1.) The Rakas Court
concluded that target standing is not required to obtain the beneficial deterrent effect of the exclusionary rule. According to
Justice Rehnquist, the police will be deterred from improperly intruding on a non-target's privacy because she will have ample
motivation to raise her own Fourth Amendment claim; and, where the non-target is not charged with a crime, the police will be
deterred because she may recover damages in a civil action for violation of her privacy.
35. 362 U.S. 257 (1960).
36. For further discussion of this point, see § 19.01[B], supra.
37. Katz v. United States, 389 U.S. 347 (1967).
38. The facts of Jones are considered in § 19.04[B][1][a], infra.
39. Rehnquist's first example seems correct to this extent: if X invites G, a guest, into her home, and gives G access only to
one part of the home, G has no reason to object to a search of an entirely different part of the house. As a guest in the kitchen,
G does not have a reasonable expectation of privacy if the area searched is the basement. But what if the police have to enter
the kitchen, where G is sitting with X, in order to get to the basement to conduct the unlawful search? If entry of the house—as
distinguished from the specific basement search—is also at issue, it is submitted that G should have standing to contest that
aspect of the police conduct. In regard to Justice Rehnquist's second hypothetical, why shouldn't G, a casual visitor to X’s
home, albeit present there for just a few minutes, have a legitimate expectation of privacy if the police break into the house in
violation of the Fourth Amendment during precisely those few minutes G is present? If G is there permissively, it is submitted
that her expectations of privacy should begin as soon as she enters the sanctuary of X’s “castle,” and G’s expectations that the
police won't break in are no less legitimate because it is a short visit.
40. The implication of this quote is that a person could claim standing on the basis of ownership of the property seized, a
pre-Rakas basis for standing. But see § 19.04[B][4], infra.
41. The majority replied that the Jones rule had only “superficial clarity” and concealed “underneath that thin veneer all of
the problems of line drawing which must be faced in any conscientious effort to apply the Fourth Amendment.”
42. Rakas, 439 U.S. at 149 n.17.
43. 6 LaFave, Note 1, supra, at 131–32.
44. 362 U.S. 257 (1960).
45. 495 U.S. 91 (1990).
46. 525 U.S. 83 (1998); contra applying the state constitution, State v. Cuntapay, 85 P.3d 634 (Hawaii 2004) (short-term
guests have a reasonable privacy expectation in their hosts’ homes).
47. According to Justices Scalia and Thomas, the text of the Fourth Amendment, “which protects people in ‘their’ persons,
houses, papers, and effects,” and common law precedent support the view that the Fourth Amendment does not protect a
person in another’s home. What about Olson? “We went to the absolute limit of what text and tradition permit . . . , when we
protected a mere overnight guest against an unreasonable search of his hosts’ apartment.” In Olson, however, unlike in the
present case, “it is plausible to regard a person's overnight lodging as at least his ‘temporary’ residence. . . .”
48. Justice Ginsburg observed, “[o]ur decisions indicate that people have a reasonable expectation of privacy in their homes
in part because they have the prerogative to exclude others. The power to exclude implies the power to include. Our Fourth
Amendment decisions should reflect these complementary prerogatives.”
49. Justice Breyer concurred, rather than dissenting, because he went on to conclude that, although D1 and D2 could claim
the Fourth Amendment's protections, in his view the officer's observations (made from a public area outside the curtilage of the
home) did not violate the Fourth Amendment. In short, D1 and D2 had standing, but lost on the merits.
50. E.g., United States v. Dotson, 817 F.2d 1127, modified, 821 F.2d 1034 (5th Cir. 1987) (D had standing after he loaned
his car to a friend for a brief time to get the car washed); State v. Bartlett, 999 P.2d 274 (Kan. 2000) (B loaned the car to
another to take it to fill a water container).
51. E.g., United States v. Dall, 608 F.2d 910, 915 (1st Cir. 1979).
52. E.g., State v. Abramoff, 338 N.W.2d 502 (Wis. 1983) (A permitted others to drive his car for a trip between Florida and
Wisconsin).
53. 138 S. Ct. 1518 (2018).
54. Of course, a special relationship between the passenger and the car owner, such as by marriage, falls outside the “mere”
passenger situation. In such circumstances, the spouse-passenger has standing to object, as lower courts have consistently held.
6 LaFave, Note 1, supra, at 214.
55. Id. at 172.
56. 495 U.S. 91 (1990); see also Minnesota v. Carter, 525 U.S. 83 (1998) (in which five justices indicated support for the
proposition that a non-overnight guest in a home will often have standing to challenge a search that occurs in his presence). See
§ 19.04[B][1][b], supra.
57. Rakas, 439 U.S. at 148.
58. Again, this must be distinguished from the question of whether the seizure of her property may be challenged, a matter
considered in Section 19.05, infra.
59. See § 19.03, supra.
60. See the text accompanying Note 40, supra.
61. 448 U.S. 98 (1980).
62. The police incorrectly believed that the warrant authorized them to search the persons in the house.
63. 6 LaFave, Note 1, supra, at 171–72.
64. 495 U.S. 91 (1990). See § 19.04[B][1][b], supra.
65. See United States v. Ross, 456 U.S. 798, 822 (1982).
66. 6 LaFave, Note 1, supra, at 175.
67. 439 U.S. 128 (1978). See § 19.04[A], supra.
68. 448 U.S. 98 (1980). See § 19.04[B][3], supra.
69. 6 LaFave, Note 1, supra, at 129–30.
70. Brendlin v. California, 551 U.S. 249, 251 (2007) (holding that “[w]hen a police officer makes a traffic stop . . . a
passenger is seized as well and so may challenge the constitutionality of the stop”).
71. 6 LaFave, Note 1, supra, at 173 & n.231 (and cases cited therein).
72. See United States v. Place, 462 U.S. 696 (1983). See § 17.09, supra.
73. United States v. Jacobsen, 466 U.S. 109, 113 (1984). See § 7.02[A], supra.
Chapter 20
[i] In General
The greater the number of factors that intervene between the initial illegality and the seizure of the
challenged evidence, the more likely the evidence will be admitted as untainted. As the causal chain of
events lengthens, the less likely it is that the police “foresaw the challenged evidence as a probable product
of their illegality.”216 Consequently, the deterrent value of the exclusionary rule is reduced.
1. See generally Tracey Maclin, The Supreme Court and the Fourth Amendment's Exclusionary Rule (2012) (discussing
the reasoning behind the evolution of the exclusionary rule and tracing the motivations behind the broadening and narrowing of
the rule); see also 1 Wayne R. LaFave, Search and Seizure § 1.1(a)–(e) (4th ed. 2004); Francis A. Allen, Federalism and the
Fourth Amendment: A Requiem for Wolf, 1961 Sup. Ct. Rev. 1; Craig M. Bradley, Mapp Goes Abroad, 52 Case W. Res. L. Rev.
375 (2001); Dennis M. Dorin, Marshaling Mapp: Justice Tom Clark's Role in Mapp v. Ohio's Extensions of the Exclusionary
Rule to State Searches and Seizures, 52 Case W. Res. L. Rev. 401 (2001); Potter Stewart, The Road to Mapp v. Ohio and
Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365
(1983).
2. See especially §§ 20.04–.07, infra.
3. 232 U.S. 383 (1914).
4. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920).
5. See Chapter 3, supra, for an explanation of the relationship of the Fourteenth Amendment Due Process Clause to the
Bill of Rights.
6. Wolf v. Colorado, 338 U.S. 25 (1949).
7. 342 U.S. 165 (1952).
8. 347 U.S. 128 (1954).
9. 352 U.S. 432 (1957).
10. The Supreme Court has acknowledged that Rochin “today would be treated under the Fourth Amendment, albeit with
the same result.” County of Sacramento v. Lewis, 523 U.S. 833, 849 n.9 (1998). The doctrine still “point[s] the way” to courts,
however, when they must identify the point at which abusive use of police power violates the Constitution. Id. at 847. Indeed,
the principles of Rochin can come into play when there is no search or seizure, and where there is no evidence—tangible or
intangible—to exclude from a criminal trial. For example, in Chavez v. Martinez, 538 U.S. 760 (2003), M was arrested
following an altercation with the police in which he was shot several times, causing injuries that left him permanently blinded
and paralyzed from the waist down. While M was being treated at the hospital in the aftermath of the shooting, the police
obtained incriminating statements from M. There was evidence that they secured the statements by allowing M, who was
screaming in pain and coming in and out of consciousness, to believe that medical treatment would be withheld until he
answered their questions. Although M was not subsequently charged with any crime, and thus his statements were never used
against him, the Supreme Court agreed that, on proper facts, a person may pursue a civil suit, pursuant to 42 U.S.C. § 1983, for
violation of the Due Process Clause. The Court remanded the case to the Ninth Circuit, which subsequently ruled that M’s suit
could proceed against the police on due process grounds. Martinez v. City of Oxnard, 337 F.3d 1091 (9th Cir. 2003).
11. 367 U.S. 643 (1961); see generally Carolyn N. Long, Mapp v. Ohio: Guarding Against Unreasonable Searches and
Seizures (2006); Thomas Y. Davies, An Account of Mapp v. Ohio That Misses the Larger Exclusionary Rule Story, 4 Ohio St. J.
Crim. L. 619 (2007).
12. No warrant was produced by the prosecutor, nor was this failure ever explained.
13. The materials consisted of four books—Affairs of a Troubadour, Little Darlings, London Stage Affairs, and Memories
of a Hotel Man—and a hand-drawn picture “of a very obscene nature.” Stewart, Note 1, supra, at 1367.
14. Although the Fourteenth, and not the Fourth, Amendment applies in state prosecutions, see Chapter 3, supra, this Text
ordinarily uses “Fourth Amendment” as shorthand for the fundamental rights in the Fourth Amendment that have been
incorporated to the states through the Fourteenth Amendment.
15. M’s counsel raised two constitutional claims: (1) that the police conduct shocked the conscience, in violation of Rochin
v. California; and (2) that the conviction for possession of obscene materials violated the First Amendment. An amicus brief
included one paragraph calling on the Supreme Court to overrule Wolf. When M’s attorney was questioned about this in oral
argument, he indicated that he had never heard of Wolf. Stewart, Note 1, supra, at 1367; see also Dorin, Note 1, supra
(describing Justice Clark's role in Mapp).
16. 232 U.S. 383 (1914).
17. 1 LaFave, Note 1, supra, at § 1.1(f); Jerry E. Norton, The Exclusionary Rule Reconsidered: Restoring the Status Quo
Ante, 33 Wake Forest L. Rev. 261 (1998); Scott E. Sundby & Lucy B. Ricca, The Majestic and the Mundane: The Two
Creation Stories of the Exclusionary Rule, 43 Texas Tech L. Rev. 391 (2010).
18. 367 U.S. 643 (1961).
19. Id. at 656 (quoting Elkins v. United States, 364 U.S. 206, 217 (1960)).
20. On the question of whether the deterrence reasoning is valid, see § 20.04[C], infra.
21. Herring v. United States, 555 U.S. 135, 151 (2009) (Ginsburg, J., dissenting).
22. Mapp v. Ohio, 367 U.S. at 659 (quoting Elkins v. United States, 364 U.S. at 222).
23. 232 U.S. 383 (1914).
24. Elkins v. United States, 364 U.S. at 223.
25. McGuigan, An Interview with Judge Robert H. Bork, Jud. Notice, June, 1986, at 1, 6 (quoting Judge Bork, who rejected
this argument).
26. For arguments in favor of the “judicial integrity” doctrine, see Fred Gilbert Bennett, Judicial Integrity and Judicial
Review: An Argument for Expanding the Scope of the Exclusionary Rule, 20 UCLA L. Rev. 1129 (1973); Robert M. Bloom &
David H. Fentin, “A More Majestic Conception”: The Importance of Judicial Integrity in Preserving the Exclusionary Rule, 13
U. Pa. J. Const. L. 47 (2010); and Sundby & Ricca, Note 17, supra.
27. California v. Minjares, 443 U.S. 916, 924 (1979) (Rehnquist, J., dissenting); see also McGuigan, Note 25, supra (in
which Judge Bork observed that “I have never been convinced by that [judicial integrity] argument because it seems the
conscience of the court ought to be at least equally shaken by the idea of turning a criminal loose upon society.”).
28. Davis v. United States, 564 U.S. 229, 236 (2011). This is an overstatement by the Court. Previously, it had stated that
the judicial integrity rationale had only a “limited role [to play] . . . in the determination whether to apply the rule in a
particular context.” Stone v. Powell, 428 U.S. 465, 485 (1976); see also United States v. Janis, 428 U.S. 433, 446 (1976)
(“deterrence is the ‘prime purpose’ of the rule, if not the sole one”).
29. Stone v. Powell, 428 U.S. at 485.
30. See generally Thomas S. Schrock & Robert C. Welsh, Up From Calandra: The Exclusionary Rule as a Constitutional
Requirement, 59 Minn. L. Rev. 251 (1974); Sundby & Ricca, Note 17, supra.
31. 232 U.S. 383 (1914). See § 20.01[B], supra.
32. 367 U.S. 643 (1961). See § 20.01[C][2], supra.
33. 414 U.S. 338 (1974).
34. Herring v. United States, 555 U.S. 125, 141 (2009) (quoting United States v. Janis, 428 U.S. 433, 454 (1976)). More
recently still, in Davis v. United States, 564 U.S. 229 (2011), the Court reiterated the view that exclusion is not a constitutional
right. This opinion was delivered by Justice Alito for himself, Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas,
and Kagan. In Herring, supra, Justice Ginsburg, writing also for Justice Breyer and now-retired Justices Stevens and Souter,
asserted that she shares a “more majestic conception” of the exclusionary rule—as an “essential” and “inseparable” “auxiliary”
to the Fourth Amendment prohibition on unreasonable searches and seizures.
35. See §§ 20.05–.07, infra.
36. 547 U.S. 586, 597 (2006). For the view that the “bad old days” are not, in fact, behind us, see Jon B. Gould & Stephen
D. Mastrofski, Suspect Searches: Assessing Police Behavior Under the U.S. Constitution, 3 Criminology & Pub. Pol'y 315
(2004) (concluding that there were Fourth Amendment violations in almost one-third of all observed police investigations).
37. See generally Guido Calabresi, The Exclusionary Rule, 26 Harv. J.L. & Pub. Pol'y 111 (2003); Gary S. Goodpaster, An
Essay on Ending the Exclusionary Rule, 33 Hastings L.J. 1065 (1982); William C. Heffernan & Richard W. Lovely, Evaluating
the Fourth Amendment Exclusionary Rule: The Problem of Police Compliance with the Law, 24 U. Mich. J.L. Reform 311
(1991); Yale Kamisar, In Defense of the Search and Seizure Exclusionary Rule, 26 Harv. J.L. & Pub. Pol'y 119 (2003); John
Kaplan, The Limits of the Exclusionary Rule, 26 Stan. L. Rev. 1027 (1974); William J. Mertens & Silas Wasserstrom, The
Good Faith Exception to the Exclusionary Rule: Deregulating the Police and Derailing the Law, 70 Geo. L.J. 365 (1981);
Norton, Note 18, supra; Dallin H. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665 (1970);
Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63
U. Colo. L. Rev. 75 (1992); Richard A. Posner, Rethinking the Fourth Amendment, 1981 Sup. Ct. Rev. 49; Christopher
Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. Ill. L. Rev. 363; Stewart, Note 1, supra; William J.
Stuntz, The Virtues and Vices of the Exclusionary Rule, 20 Harv. J.L. & Pub. Pol'y 443 (1997).
38. 367 U.S. 643 (1961). See § 20.01[C][2], supra.
39. 414 U.S. 338 (1974).
40. Slobogin, Note 37, supra, at 364.
41. Calabresi, Note 37, supra, at 112 (“The interesting paradox is this: liberals ought to hate the exclusionary rule because
the exclusionary rule, in my experience [as a professor and federal judge], is most responsible for the deep decline in privacy
rights in the United States.”).
42. Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 785 (1994).
43. Id. at 786.
44. Stewart, Note 1, supra, at 1371.
45. Id.
46. Telford Taylor, Two Studies in Constitutional Interpretation 43 (1969); see Tracey Maclin, When the Cure for the
Fourth Amendment is Worse than the Disease, 68 S. Cal. L. Rev. 1, 46 (1994) (“If constitutional interpretation was simply a
matter of identifying whether a particular historical practice was permitted in 1789 . . . , it would be better to appoint historians
to the Court and leave the lawyers on the sidelines.”).
47. Carol S. Steiker, Second Thoughts About First Principles, 107 Harv. L. Rev. 820, 825–26 (1994).
48. Elkins v. United States, 364 U.S. 206, 217 (1960).
49. Linkletter v. Walker, 381 U.S. 618, 637 (1965).
50. E.g., Ronald L. Akers & Lonn Lanza-Kaduce, The Exclusionary Rule: Legal Doctrine and Social Research on
Constitutional Norms, 2 Sam Houston St. U. Crim. Just. Center Res. Bull. 1 (1986); Oaks, Note 37, supra; James E. Spiotto,
Search and Seizure: An Empirical Study of the Exclusionary Rule and its Alternatives, 2 J. Legal Stud. 243 (1973).
51. See Note 36, supra.
52. See Heffernan & Lovely, Note 37, supra, at 332–45 (finding that even well-trained officers are mistaken about Fourth
Amendment jurisprudence approximately 25 percent of the time).
53. Slobogin, Note 37, supra, at 374–77.
54. Police perjury “disturbingly [is] a well-documented aspect of criminal justice administration.” Richard Van Duizend et
al., The Search Warrant Process: Preconceptions, Perceptions, and Practices 108 (National Center for State Courts 1984);
Orfield, Note 37, supra, at 82–83 (in a study of Cook County, Illinois, criminal courts, the author discovered “pervasive police
perjury,” including “systematic fabrications in case reports and affidavits for search warrants, creating artificial probable
cause”). For general discussion of the problem of police perjury (or what has come to be called “testilying”), see Gabriel J.
Chin & Scott C. Wells, The “Blue Wall of Silence” as Evidence of Bias and Motive to Lie: A New Approach to Police Perjury,
59 U. Pitt. L. Rev. 233 (1998); Christopher Slobogin, Testilying: Police Perjury and What to Do About It, 67 U. Colo. L. Rev.
1037 (1996).
55. See Tonja Jacobi, The Law and Economics of the Exclusionary Rule, 87 Notre Dame L. Rev. 585 (2011).
56. See Note 36, supra.
57. Critique, On the Limitations of Empirical Evaluations of the Exclusionary Rule: A Critique of the Spiotto Research and
United States v. Calandra, 69 Nw. U. L. Rev. 740, 763–64 (1974).
58. Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind. L.J. 329, 333
(1973).
59. Posner, Note 37, supra, at 54 (footnote deleted).
60. Oaks, Note 37, supra, at 709.
61. Id. at 755.
62. Mertens & Wasserstrom, Note 37, supra, at 394.
63. United States v. Leon, 468 U.S. 897, 953 (1984) (dissenting opinion).
64. Stewart, Note 1, supra, at 1386.
65. Oaks, Note 37, supra, at 708.
66. E.g., Orfield, Note 37 supra, at 80, 94 (in a study of Cook County, Illinois, criminal courts, the exclusionary rule had an
“institutional deterrent effect,” in that “police and prosecutorial institutions respond[ed] to the exclusionary rule by designing
programs and procedures to ensure compliance with the Fourth Amendment.”).
67. Scalia recently observed that one “development over the past half-century . . . is the increasing professionalism of
police forces, including a new emphasis on internal police discipline.” Hudson v. Michigan, 547 U.S. 586, 598 (2006). It isn't a
coincidence that this development “over the past half-century” covers the time since Mapp v. Ohio recognized the exclusionary
rule for state proceedings.
68. Kaplan, Note 37, supra, at 1034.
69. David Alan Sklansky, Is the Exclusionary Rule Obsolete?, 5 Ohio St. J. Crim. L. 567, 579 (2008) (contrasting pre-
Mapp police departments—possessing “a culture of violence and secrecy”—with post-Mapp departments, describing the
differences as “fundamental and far-reaching”).
70. Silas J. Wasserstrom & Louis Michael Seidman, The Fourth Amendment as Constitutional Theory, 77 Geo. L.J. 19,
36–37 (1988).
71. Id. at 37.
72. See generally Yale Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a “Principled Basis” Rather than an
“Empirical Proposition”?, 16 Creighton L. Rev. 565 (1983); see also the cites in Note 26, supra.
73. United States v. Leon, 468 U.S. 897, 929 (1984) (dissenting opinion).
74. Yale Kamisar, Gates, “Probable Cause,” “Good Faith,” and Beyond, 69 Iowa L. Rev. 551, 613 (1984).
75. Herring v. United States, 555 U.S. 135, 151 (2009) (Ginsburg, J., joined by Stevens, Souter, and Breyer, JJ., dissenting).
76. United States v. Calandra, 414 U.S. 338, 357 (1974) (Brennan, J., joined by Douglas and Marshall, JJ, dissenting).
77. Id. (The rule “assur[es] the people—all potential victims of unlawful government conduct—that the government would
not profit from its lawless behavior”).
78. Hudson v. Michigan, 547 U.S. 586, 594 (2006) (internal quotations omitted) (emphasis added).
79. Amar, Note 42, supra, at 759.
80. Id. at 793.
81. Stone v. Powell, 428 U.S. 465, 490 (1976).
82. Id.
83. Stewart, Note 1, supra, at 1393.
84. Thomas Y. Davies, A Hard Look at What We Know (and Still Need to Learn) About the “Costs” of the Exclusionary
Rule: The NIJ Study and Other Studies of “Lost” Arrests, 1983 Am. B. Found. Res. J. 611.
85. Wayne R. LaFave, “The Seductive Call of Expediency”: United States v. Leon, Its Rationale and Ramifications, 1984
U. Ill. L. Rev. 895, 904.
86. Davies, Note 84, supra, at 680.
87. Maclin, Note 46, supra, at 44.
88. Davies, Note 84, supra, at 688.
89. Comptroller General of the United States, Rep. No. GGD-79-45, Impact of the Exclusionary Rule on Federal Criminal
Prosecutions 14 (1979).
90. Van Duizend et al., Note 54, supra, at 48–56.
91. Stewart, Note 1, supra, at 1396.
92. Amar, Note 42, supra, at 796.
93. Id.
94. Kaplan, Note 37, supra, at 1035 (quoting Justice Benjamin Cardozo in People v. Defore, 150 N.E. 585, 587 (N.Y.
1926)).
95. Statement of the Co-Chairman of the Attorney-General's Task Force on Violent Crime, quoted in N.Y. Times, Aug. 18,
1981, at 10, as reported in Wayne R. LaFave, The Fourth Amendment in an Imperfect World: On Drawing “Bright Lines” and
“Good Faith,” 43 U. Pitt. L. Rev. 307, 336 (1982).
96. William T. Pizzi, Trials Without Truth 38–39 (1999).
97. Desist v. United States, 394 U.S. 244, 258 (1969) (dissenting opinion).
98. Myron W. Orfield, Jr., Comment, The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics
Officers, 54 U. Chi. L. Rev. 1016, 1055 (1987); see Kamisar, Note 37, supra, at 130–31.
99. See generally Yale Kamisar, “Comparative Reprehensibility” and the Fourth Amendment Exclusionary Rule, 86 Mich.
L. Rev. 1 (1987).
100. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 419 (1971) (Burger, C.J. dissenting).
101. Kamisar, Note 99, supra, at 3 (articulating, but rejecting, the argument).
102. David A. Harris, How Accountability-Based Policing Can Reinforce—Or Replace—the Fourth Amendment
Exclusionary Rule, 7 Ohio St. J. Crim. L. 149 (2009); Kenneth W. Starr & Audrey L. Maness, Reasonable Remedies and (or?)
the Exclusionary Rule, 43 Texas Tech. L. Rev. 373 (2010).
103. E.g., 42 U.S.C. § 1983 (it is actionable for any person “under color of any statute, ordinance, regulation, custom, or
usage, of any State” to subject any person “to the deprivation of any rights, privileges, or immunities secured by the
Constitution”); 28 U.S.C. § 2680(h) (permitting a civil suit against federal officers for constitutional violations).
104. Contrary to the suggestion in the text, Professor Donald Dripps has proposed that the exclusionary rule be retained but
that judges be authorized to enter contingent suppression orders when the police violate the Fourth Amendment; suppression of
evidence could be avoided if the state pays damages in an amount determined by the judge. Donald Dripps, The Case for the
Contingent Exclusionary Rule, 38 Am. Crim. L. Rev. 1 (2001). But see George C. Thomas III, Judges Are Not Economists and
Other Reasons to Be Skeptical of Contingent Suppression Orders: A Response to Professor Dripps, 38 Am. Crim. L. Rev. 47
(2001).
105. E.g., 18 U.S.C. §242 (making it a federal crime for anyone acting under color of law to deprive a person of his
constitutional rights).
106. Roger Goldman & Steven Puro, Decertification of Police: An Alternative to Traditional Remedies for Police
Misconduct, 15 Hastings Const. L.Q. 45, 48 (1987).
107. Steiker, Note 47, supra, at 848.
108. Id.
109. Slobogin, Note 37, supra, at 385.
110. Sklansky, Note 69, supra, at 572 (“Chief among the barriers to suing the police . . . are the expanding doctrines of
official immunity. . . .”; “[m]ore and more, these doctrines look like the Blob That Ate [Civil Rights] Section 1983”).
111. Steiker, Note 47, supra, at 849.
112. Id.
113. Maclin, Note 48, supra, at 64.
114. Steiker, Note 47, supra, at 850.
115. Maclin, Note 48, supra, at 64–65; see also Debra Livingston, The Unfulfilled Promise of Citizen Reviews, 1 Ohio St. J.
Crim. L. 653 (2004) (Judge Livingston, a former law professor and commissioner on New York City's Civilian Complaint
Review Board, characterizes review boards as only a “mixed success”); Sklansky, Note 69, supra, at 572 (describing civil
review boards as “more sympathetic to rank-and-file officers than the [police] unions feared and than most of the original
backers of the idea expected”).
116. United States v. Calandra, 414 U.S. 338, 348 (1974) (alteration in original).
117. Hudson v. Michigan, 547 U.S. 586, 591 (2006).
118. Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 364–365 (1998).
119. See, e.g., Tracey Maclin, No More Chipping Away: The Roberts Court Uses an Axe to Take Out the Fourth Amendment
Exclusionary Rule, 81 Miss. L. J. 1183, 1227 (2012) (arguing that the Supreme Court will soon take a case “involving a routine
search and seizure violation and rule that the exclusionary rule does not apply unless there is proof of culpable or egregious
police conduct.”)
120. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965).
121. United States v. Janis, 428 U.S. 433 (1976) (civil tax proceeding); I.N.S. v. Lopez-Mendoza, 468 U.S. 1032 (1984)
(deportation hearing).
122. 428 U.S. 465 (1976).
123. 6 LaFave, Note 1, supra, at 490.
124. United States v. Calandra, 414 U.S. 338 (1974).
125. See Giordenello v. United States, 357 U.S. 480 (1958) (magistrates lack authority to adjudicate the admissibility of
evidence); Fed. R. Crim. P. 5.1(e) (“At the preliminary hearing, the defendant . . . may not object to evidence on the ground
that it was unlawfully acquired”).
126. E.g., 18 U.S.C. § 3142(f) (“The rules concerning admissibility of evidence in criminal trials do not apply to the
presentation and consideration of information at the hearing.”).
127. United States v. McCrory, 930 F.2d 63 (D.C. Cir. 1991) (evidence seized in violation of the Fourth Amendment may be
considered by the judge in determining the defendant's appropriate sentence under the federal sentencing guidelines).
128. Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357 (1998).
129. See generally 6 LaFave, Note 1, supra, at §11.6(a); James L. Kainen, The Impeachment Exception to the Exclusionary
Rules: Policies, Principles, and Politics, 44 Stan. L. Rev. 1301 (1992).
130. Walder v. United States, 347 U.S. 62 (1954).
131. United States v. Havens, 446 U.S. 620 (1980).
132. 493 U.S. 307 (1990).
133. 547 U.S. 586 (2006); see generally Albert W. Alschuler, The Exclusionary Rule and Causation: Hudson v. Michigan
and Its Ancestors, 93 Iowa L. Rev. 1741 (2008); Sharon L. Davies & Anna B. Scanlon, Katz in the Age of Hudson v. Michigan:
Some Thoughts on “Suppression as a Last Resort,” 41 U.C. Davis L. Rev. 1035 (2008); Eric A. Johnson, Causal Relevance in
the Law of Search and Seizure, 88 B.U. L. Rev. 113 (2008); Sklansky, Note 69, supra; James J. Tomkovicz, Hudson v.
Michigan and the Future of Fourth Amendment Exclusion, 93 Iowa L. Rev. 1819 (2008).
134. E.g., 6 LaFave, Note 1, supra, at § 11.4 (Pocket Pt.) (“Hudson deserves a special niche in the Supreme Court's pantheon
of Fourth Amendment jurisprudence, as one would be hard-pressed to find another case with so many bogus arguments piled
atop one another.”).
135. Contra, State v. Cable, 51 So.3d 434 (Fla. 2010) (holding that, notwithstanding Hudson, violations of the knock-and-
announce rule in Florida require suppression of the evidence seized under the state's knock-and-announce statute; although the
statute is silent as to the proper remedy for its violation, the court stated that the statute “would be undermined if the
exclusionary rule did not apply to its violation”).
136. Hudson, 547 U.S. at 592.
137. Timing can be everything in the law. As Professor David Sklansky points out, “Hudson was reargued [in the Supreme
Court] after Justice Alito replaced [retired] Justice O'Connor, and there is some evidence that the initial vote had gone the other
way.” Sklansky, Note 69, supra, at 568 n.8.
138. Hudson, 547 U.S. at 593 (emphasis in original).
139. See § 20.08[C], infra.
140. The attenuation doctrine, and Hudson’s significance in this regard, are discussed in greater depth in § 20.08[E], infra.
141. It was “created out of whole cloth.” 6 LaFave, Note 1, supra, at § 11.4 (Pocket Pt.).
142. But is this so? See Notes 107–115, supra, and the text thereto.
143. Hudson, 547 U.S. at 597.
144. Id. at 611.
145. 367 U.S. 643 (1961).
146. 468 U.S. 897 (1984).
147. Adam Liptak, Justices Step Closer to Repeal of Evidence Ruling, N.Y. Times, Jan. 31, 2009, at A1.
148. See generally Craig M. Bradley, The “Good Faith Exception” Cases: Reasonable Exercises in Futility, 60 Ind. L.J. 287
(1985); Donald Dripps, Living With Leon, 95 Yale L.J. 906 (1986); Steven Duke, Making Leon Worse, 95 Yale L.J. 1405
(1986); Andrew E. Taslitz, The Expressive Fourth Amendment: Rethinking the Good Faith Exception to the Exclusionary Rule,
76 Miss. L.J. 483 (2006).
149. 468 U.S. 897 (1984). The good-faith exception to the exclusionary rule announced in Leon was rejected by various
states. E.g., State v. Marsala, 579 A.2d 58 (Conn. 1990); Dorsey v. State, 761 A.2d 807 (Del. 2000); Harvey v. State, 469
S.E.2d 176 (Ga. 1996); State v. Guzman, 842 P.2d 660 (Idaho 1992); State v. Cline, 617 N.W.2d 277 (Iowa 2000); State v.
Lacasella, 60 P.3d 975 (Mont. 2002); State v. Canelo, 653 A.2d 1097 (N.H. 1995); State v. Novembrino, 519 A.2d 820 (N.J.
1987); State v. Gutierrez, 863 P.2d 1052 (N.M. 1993); People v. Bigelow, 488 N.E.2d 451 (N.Y. 1985); State v. Carter, 370
S.E.2d 553 (N.C. 1988); Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991); State v. McKnight, 352 S.E.2d 471 (S.C.
1987); State v. Oakes, 598 A.2d 119 (Vt. 1991).
150. 468 U.S. 981 (1984).
151. Herring v. United States, 555 U.S. 135, 142 (2009) “We (perhaps confusingly) called this objectively reasonable
reliance ‘good faith.’”).
152. 1 LaFave, Note 1, supra, at 72.
153. 438 U.S. 154 (1978). See § 10.03[B], supra.
154. 442 U.S. 319 (1979) (magistrate accompanied police to an “adult bookstore” and selected the materials to be seized).
See generally § 10.03[A], supra.
155. United States v. Decker, 956 F.2d 773 (8th Cir. 1992).
156. 462 U.S. 213 (1983). See § 8.05, supra.
157. How, then, do we explain Massachusetts v. Sheppard, 468 U.S. 981 (1984), Leon’s companion case, in which the
warrant was invalid on particularity grounds and yet the Court allowed the evidence to be introduced? In that case, the
magistrate forgot to cross out irrelevant portions of the form, but he assured the officer seeking the warrant, who was also the
one who executed it, that the corrections had been made. On these facts, reliance on the magistrate's assurances was deemed
reasonable. Sheppard left open the question of “[w]hether an officer who is ... [un]familiar with the warrant application or who
has unalleviated concerns about the proper scope of the search would be justified in failing to notice a defect [in the warrant].”
158. Leon, 468 U.S. 897, 916 (1984).
159. See § 20.04[D][1], supra.
160. See Yale Kamisar, The Warren Court and Criminal Justice: A Quarter-Century Retrospective, 31 Tulsa L.J. 1, 32
(1995) (accusing the post-Warren Court of doing its balancing “in an empirical fog,” and of conducting cost-benefit analysis by
giving “back the values and assumptions the Court fed into it”).
161. See § 10.02, supra.
162. 468 U.S. 897 (1984).
163. 480 U.S. 340 (1987).
164. 514 U.S. 1 (1995); see generally Wayne R. LaFave, Computers, Urinals, and the Fourth Amendment: Confessions of a
Patron Saint, 94 Mich. L. Rev. 2553 (1996).
165. See the text to Note 157, supra.
166. Evans, 514 U.S. 16 n.5.
167. According to 1985 projections of the Federal Bureau of Investigation—when computer databases were far less common
than today—as many as 12,000 invalid or inaccurate reports on suspects wanted for arrest were transmitted daily to federal,
state, and local police agencies. David Burnham, F.B.I. Says 12,000 Faulty Reports on Suspects Are Issued Each Day, N.Y.
Times, Aug. 25, 1985, at 1.
168. 555 U.S. 135 (2009); see generally Craig Bradley, Is the Exclusionary Rule Dead?, 102 J. Crim. L. & Criminology 1
(2012); Wayne R. LaFave, The Smell of Herring: A Critique of the Supreme Court's Latest Assault on the Exclusionary Rule,
99 J. Crim. L. & Criminology 757 (2009); Tracey Maclin & Jennifer Rader, No More Chipping Away: The Roberts Court Uses
an Axe to Take Out the Fourth Amendment Exclusionary Rule, 81 Miss. L.J. 1183 (2012).
169. The Herring majority did not deny the dissenter's claim that “liability for negligence”—and, here, someone in the
neighboring sheriff's department did act negligently—“creates an incentive to act with greater care.” But, Chief Justice Roberts
wrote, the degree of deterrence that would be gained by excluding the evidence “is not worth the cost.” § 555 U.S. at 144, n.4.
170. Id. at 146 (emphasis added).
171. E.g., LaFave, Note 168, supra at 758 (“Herring . . . I am chagrined to say, appears to deserve a category of its own, and
not on the positive side of the scale.”; its holding “is not simply wrong; it is wrong over and over again”).
172. Horton v. California, 496 U.S. 128, 138 (1990).
173. 564 U.S. 229 (2011); see generally Bradley, Note 168, supra; Maclin & Rader, Note 168, supra.
174. See § 12.05, supra.
175. 557 U.S. 519 (2009). See § 12.05[C], supra.
176. Davis, 564 U.S. at 239.
177. 1 LaFave, Note 1, supra, § 1.3, at 21 (Supp. 2011–2012).
178. One possible surprise: Justice Kagan, generally one of the more liberal members of the Court, signed on to the Alito
opinion without comment.
179. Davis, 564 U.S. at 237
180. Id. at 240.
181. Id. at 250.
182. See Bradley, Note 168, supra, at 3.
183. 547 U.S. 586 (2006). For excellent scholarly sources for understanding this case, see the cites in Note 133, supra; see
also Bradley, Note 168, supra; Maclin & Rader, note 168, supra.
184. See § 20.05[B][2][b], supra. It may profitably be reviewed at this time.
185. http://www.supremecourtus.gov/oral_arguments/argument_transcripts/04-1360b.pdf (page 50).
186. E.g., 1 LaFave, Note 1, supra, at § 1.8 (Supp. 2011–2012).
187. Nardone v. United States, 308 U.S. 338, 341 (1939).
188. See §§ 22.03[C][2][b] (Fifth/Fourteenth Amendment Due Process Clause, interrogations), 23.05[B][3][b][ii] (Fifth
Amendment, interrogations), 25.07[D] (Sixth Amendment right to counsel, interrogations), and 26.02[A] (id., eyewitness
identification procedures), infra.
189. Miranda v. Arizona, 384 U.S. 436 (1966).
190. See § 24.12[B], infra.
191. See generally Craig M. Bradley, Murray v. United States: The Bell Tolls for the Search Warrant Requirement, 64 Ind.
L.J. 907 (1989).
192. United States v. Crews, 445 U.S. 463, 471 (1980).
193. See Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).
194. Nix v. Williams, 467 U.S. 431, 443 (1984).
195. 487 U.S. 533 (1988); contra under the state constitution, Commonwealth v. Melendez, 676 A.2d 226 (Pa. 1996)
(application of the “independent source doctrine” is proper only if the “independent source” is independent of the police or
investigative team that engaged in the initial unlawful conduct).
196. Horton v. California, 496 U.S. 128, 138 (1990).
197. 547 U.S. 586 (2006).
198. See § 20.05[B][2][b], supra.
199. Hudson, 547 U.S. at 592.
200. Davies & Scanlon, Note 133, supra, at 1059.
201. Tomkovicz, Note 133, supra, at 1857.
202. 6 LaFave, Note 1, supra, at § 11.4 (Supp. 2011–2012). One case, New York v. Harris, 495 U.S. 14 (1990), however,
arguably supports Hudson. In Harris, the police had probable cause to arrest H, but they violated the Fourth Amendment by
arresting him in his home without an arrest warrant. The police transported H to the police station where they informed H of
his Miranda rights. H waived his constitutional rights, and made a statement that the prosecutor sought to introduce at his trial.
Harris held that this statement was admissible notwithstanding the initial illegal entry of the home, because H “was in legal
custody [since there was probable cause] . . . and because the statement, while the product of an arrest and being in custody,
was not the fruit of the fact that the arrest was made in the house rather than someplace else.” Id. at 20 (emphasis added). As
the Harris Court also explained, “[b]ecause the officers had probable cause to arrest [H] for a crime, [H] was not unlawfully in
custody when he was removed to the station house . . . For Fourth Amendment purposes, the legal issue is the same as it would
be had the police arrested [H] on his doorstep, illegally entered his home to search for evidence, and later interrogated [H] at
the station house.” Harris has been rejected pursuant to state constitutional law in various jurisdictions. State v. Geisler, 610
A.2d 1225 (Conn. 1992) (applying ordinary attenuated connection principles); State v. Mariano, 160 P.3d 1258 (Haw. App.
2007) (same); People v. Harris, 570 N.E.2d 1051 (N.Y. 1991) (same).
203. Hudson, 547 U.S. at 615.
204. See the text to Note 199, supra.
205. 467 U.S. 431 (1984); contra under the state constitution, Smith v. State, 948 P.2d 473 (Alaska 1997) (requiring proof
by “clear and convincing” standard); State v. Garner, 417 S.E.2d 502 (N.C. 1992) (id.); Commonwealth v. O'Connor, 546
N.E.2d 336 (Mass. 1989) (applying a “certain as a practical matter” standard); State v. Winterstein, 220 P.3d 1226 (Wash.
2009) (rejecting any inevitable discovery doctrine).
206. 308 U.S. 338 (1939).
207. 371 U.S. 471 (1963).
208. 547 U.S. 586 (2006).
209. United States v. Leon, 468 U.S. 897, 911 (1984) (quoting Brown v. Illinois, 422 U.S. 590, 609 (1975) (Powell, J.,
concurring)).
210. 547 U.S. 586 (2006).
211. Id. at 593 (emphasis added).
212. See § 10.04[C], supra.
213. The “protected interest” concept arguably was applied once before in New York v. Harris, 495 U.S. 14 (1990), the facts
of which are set out in Note 202, supra. In Harris, the Supreme Court justified the admission of H’s post-Miranda confession
at the police station, after he was unconstitutionally arrested in his home (for lack of a warrant), in part on the following
ground: “[S]uppressing the statement taken outside the house would not serve the purpose of the rule that made [H]'s in-house
arrest illegal. The warrant requirement for an arrest in the home is imposed to protect the home.” Id. at 20 (emphasis added).
Once any incriminating evidence found in the home is excluded, Harris ruled, “the purpose of the rule [prohibiting warrantless
entry into the house] has . . . been vindicated.”
214. Of course, we don't know yet how the Court will apply this limitation beyond the knock-and-announce context, so we
don't know yet how often this limitation can be put aside.
215. 371 U.S. 471 (1963).
216. Comment, Fruit of the Poisonous Tree—A Plea for Relevant Criteria, 115 U. Pa. L. Rev. 1136, 1148–49 (1967).
217. Miranda v. Arizona, 384 U.S. 436 (1966).
218. Brown v. Illinois, 422 U.S. 590, 603 (1975) (emphasis added); see also Dunaway v. New York, 442 U.S. 200 (1979).
219. 538 U.S. 626 (2003) (per curiam).
220. 136 S. Ct. 2056 (2016).
221. Id. at 2063.
222. Id. at 2056 (Sotomayor, J., dissenting).
223. Id. at 2070 (Sotomayor, J., dissenting).
224. Id. at 2064.
225. See Brown v. Illinois, 422 U.S. 590, 604 (1975). In view of recent Supreme Court decisions primarily limiting the scope
of the exclusionary rule to cases of deliberate, reckless, or grossly negligent violations of the Fourth Amendment (Herring v.
United States, 555 U.S. 135 (2009), and Davis v. United States, 546 U.S. 229 (2011), discussed in §26.06[B][2]–[3], supra),
“accidental” Fourth Amendment violations will not typically be excluded, irrespective of the attenuation doctrine.
226. See George C. Thomas III & Barry S. Pollack, Balancing the Fourth Amendment Scales: The Bad-Faith Exception to
Exclusionary Rule Limitations, 45 Hastings L.J. 21 (1993) (arguing that bad-faith conduct in obtaining evidence not only
requires a more extensive application of the exclusionary rule to secondary evidence, but also justifies use of the rule when it
otherwise would not be available—e.g., when victims of bad-faith conduct lack standing and in civil proceedings brought by
the government against the Fourth Amendment victim).
227. Strieff, 136 S. Ct. at 2063.
228. Id.
229. 435 U.S. 268 (1978).
Chapter 21
1. See generally Richard A. Leo, Police Interrogation and American Justice (2008).
2. Yale Kamisar, Kauper's “Judicial Examination of the Accused” Forty Years Later—Some Comments on a Remarkable
Article, 73 Mich. L. Rev. 15, 16 (1974).
3. Hopt v. Utah, 110 U.S. 574 (1884).
4. Bram v. United States, 168 U.S. 532 (1897).
5. Brown v. Mississippi, 297 U.S. 278 (1936).
6. Sam M. Kassin, On the Psychology of Confessions: Does Innocent Put Innocents at Risk?, 60 Am. Psychologist 215,
216 (2005); see also Welsh S. White, What is an Involuntary Confession Now?, 50 Rutgers L. Rev. 2001, 2005 (1998) (“Over
the past few decades, standard interrogation techniques have apparently led to false confessions in a significant number of
cases.”); and Jan Hoffman, Police Refine Methods So Potent, Even the Innocent Have Confessed, New York Times, March 10,
1998, at A1 (although there is considerable dispute regarding the frequency of false confessions, their number “is shaking the
confidence of both prosecutors and juries in the reliability of confessions”). Some false confessions appear highly reliable,
thereby increasing the likelihood of improper conviction. For example, one recent study of false confessions (confessions of
persons later proven with DNA evidence to be innocent) reported that police officers with some frequency intentionally or
accidentally introduce important facts about the case into the interrogation. The suspect, perhaps because of youthfulness,
mental disability, or simply the strain of a long interrogation, will ultimately confess, repeating the facts the officer told the
suspect about the crime. The factually-detailed confession will appear to be reliable—after all, how would a person know how
the crime was committed if she was innocent?—but only because the police fed the facts to the suspect who later repeated them
back to the interrogators. See Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051 (2010) (shedding
light on the phenomenon of “confession contamination”).
7. Walter V. Schaefer, The Suspect and Society 9 (1967) (emphasis added).
8. See 1.04[E], supra.
9. See §2.02, supra.
10. Yale Kamisar, The Warren Court and Criminal Justice: A Quarter-Century Retrospective, 31 Tulsa L.J. 1, 54 (1995).
11. Leo, Note 1, supra, at 43.
12. Id.
13. National Commission on Law Observance and Law Enforcement, Report on Lawlessness in Law Enforcement (1931).
14. Gary T. Marx, Undercover: Police Surveillance in America 47 (1988).
15. See Edwin D. Driver, Confessions and the Social Psychology of Coercion, 82 Harv. L. Rev. 42 (1968).
16. E.g., they should give the suspect the “illusion that the environment ... is withdrawing.” Arthur S. Aubry & Rudolph R.
Caputo, Criminal Interrogation 38 (1965).
17. E.g., the interrogator should be male, tall, deep voiced, and dressed in a business suit.
18. Richard A. Leo, Miranda's Revenge: Police Interrogation as a Confidence Game, 30 Law & Soc. Rev. 259, 260–61
(1996).
19. Richard A. Leo, From Coercion to Deception: The Changing Nature of Police Interrogation in America, 18 Crime,
Law & Soc. Change 35, 35 (1992) (quoting William Hart, The Subtle Art of Persuasion, Police Magazine (January, 1981) at
15–16) (emphasis added).
20. Akhil Reed Amar & Renée B. Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause, 93 Mich. L.
Rev. 857, 873–74 (1995) (summarizing the findings of David Simon, who observed a Baltimore homicide unit for a year, as
reported in David Simon, Homicide: A Year on the Killings Streets (1991)).
21. Kassin, Note 6, supra, at 221 (summarizing the steps often taken by police as “isolation,” “confrontation,” and
“minimization”).
22. 384 U.S. 436 (1966).
23. Malloy v. Hogan, 378 U.S. 1 (1964).
24. For example, a threat to discharge a police officer if she refuses to testify at a hearing renders her statement compelled
under the Fifth Amendment. Garrity v. New Jersey, 385 U.S. 493, 497 (1967). But such a statement is far from involuntary in
the sense that the latter concept is used in the confession cases. Stephen J. Schulhofer, Reconsidering Miranda, 54 U. Chi. L.
Rev. 435, 440–46 (1987).
25. 384 U.S. 436 (1966).
26. Oregon v. Elstad, 470 U.S. 298, 306 (1985).
27. Dickerson v. United States, 530 U.S. 428, 432, 438 (2000).
28. Id. at 437, 438, 441, 444.
29. Gideon v. Wainwright, 372 U.S. 335 (1963).
30. See §25.08, infra.
31. See generally Joseph P. Grano, Confessions, Truth, and the Law (1993); Yale Kamisar, Police Interrogation and
Confessions (1980); Yale Kamisar, Remembering the “Old World” of Criminal Procedure: A Reply to Professor Grano, 23 U.
Mich. J.L. Reform 537 (1990).
32. Arthur E. Sutherland, Jr., Crime and Confession, 79 Harv. L. Rev. 21, 22 (1965); see also Peter Brooks, Troubling
Confessions 2 (2000) (“We want confessions, yet we are suspicious of them.”).
33. Brooks, Note 32, supra, at 2 (“Confession of wrongdoing is considered fundamental to morality because it constitutes a
verbal act of self-recognition as wrongdoer and hence provides the basis of rehabilitation.”).
34. Ashcraft v. Tennessee, 322 U.S. 143, 160 (1944) (dissenting opinion).
35. See also Note 6, supra.
36. On the problem of reliability in eliciting confessions, see generally Richard A. Leo, Peter J. Neufeld, Steven A. Drizin,
and Andrew E. Taslitz, Promoting Accuracy in the Use of Confession Evidence: An Argument for Pretrial Reliability
Assessments to Prevent Wrongful Convictions, 85 Temp. L. Rev. 759 (2013).
37. George E. Dix, Federal Constitutional Confession Law: The 1986 and 1987 Supreme Court Terms, 67 Tex. L. Rev. 231,
261 (1988).
38. Escobedo v. Illinois, 378 U.S. 478, 488–89 (1964).
39. Yale Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, reprinted in Yale
Kamisar, Police Interrogation and Confessions 27 (1980).
40. Escobedo v. Illinois, 378 U.S. at 490.
41. Joseph D. Grano, Police Interrogation and Confessions: A Rebuttal to Misconceived Objections 1 (Occasional Papers
from the Center for Research in Crime and Justice, New York University School of Law, No. 1, 1987).
42. Id. at 4.
43. William J. Stuntz, Lawyers, Deception, and Evidence Gathering, 79 Va. L. Rev. 1903, 1906, 1955 (1993) (“the earlier
lawyers become part of the process, the greater the likelihood that their participation will be a relative benefit to the least
deserving parties”; lawyers “retard evidence gathering by their opponents,” yet “evidence gathering facilitates the separation of
good claims or defenses from bad ones.”).
44. Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 40 Am. Law Rev. 729, 738
(1906).
45. Minnick v. Mississippi, 498 U.S. 146, 166–67 (1990) (dissenting opinion).
46. Ashcraft v. Tennessee, 322 U.S. 143, 160 (1944) (dissenting opinion).
Chapter 22
Interrogation Law:
Due Process Clause
[d] Deception69
When the Supreme Court began to suppress confessions obtained by violence and torture, police
departments turned to more sophisticated interrogation techniques, especially deception.70 Among other
strategies, a police officer may display false sympathy for the accused, falsely claim to have incriminating
evidence proving the accused's guilt, or falsely assert that a co-defendant has implicated the accused in the
crime. Sometimes, police officers concoct highly creative ways to “con” suspects into confessing.71
In Miranda v. Arizona,72 the Court sharply criticized deceptive police practices.73 Nonetheless, the high
court's decisions in this area, especially in recent years, demonstrate that police deception is usually
permissible. Indeed, although the case law in this area is hardly consistent, one safe generalization is that
deception alone—lying to the suspect—will almost never invalidate a confession. Thus, if the police falsely
inform a suspect that the case against her is strong because a co-conspirator has already confessed, this lie,
although relevant as is every factor in the voluntariness analysis, will not by itself render the confession
involuntary.74
[436/437] In the early years of the Warren Court era, the Supreme Court took a stricter approach to
deception. For example, it suppressed a confession because interrogating officers falsely claimed that the
suspect's right to retain custody of her children was dependent on her cooperation with them.75 It also held
that the police violated due process when they masqueraded a police psychiatrist as a physician called in to
treat the suspect's very painful sinus condition, during which “treatment” the “physician” interrogated him.76
However, both of these cases included aggravating features: in the first case, the police also promised
leniency; and the second ruse was especially troubling in light of the accused's physical pain at the time.
In contrast, the Court has more recently approved the technique of placing an undercover officer,
masquerading as a burglar, in a jail cell where the “fellow inmate” could purposely elicit incriminating
statements from the suspect.77 Lower courts, as well, have permitted many forms of police deception, most
especially telling a defendant that they possess incriminating evidence that they do not in fact possess.78
§ 22.03 Due Process Clause:
Remedies for Violation of the Right
[A] Requirement of State Action
(Official Overreaching)
According to Colorado v. Connelly, “[t]he most outrageous behavior by a private party seeking to secure
evidence against a defendant does not make that evidence inadmissible under the Due Process Clause.”79
That is, in order to exclude a confession on due process grounds (or, presumably, to find a violation of the
Due Process Clause in any civil action80), there must be a “link between coercive activity of the State, on the
one hand, and a resulting confession by a defendant, on the other.”81
In Connelly, C, a person suffering from chronic schizophrenia, in a psychotic state, and responding to
“command hallucinations” (he heard “the voice of God” order him to confess or commit suicide),
approached a police officer on the street and [437/438] confessed to a murder. The perplexed officer
ascertained that C was not drunk or on drugs, but was told by C that he had been a patient in several mental
hospitals. After the officer informed C of his constitutional rights, C answered questions about the crime.
According to expert testimony, C’s mental condition at the time of his conversations with the police
“interfered with [his] ‘volitional abilities; that is, his ability to make free and rational choices’,” including the
decision whether to confess. C’s confession, motivated as it was by perceived orders from God, was as
involuntary—and potentially as untrustworthy—as a confession wrung from him by the police. Nonetheless,
the Court concluded that “the ‘involuntary confession’ jurisprudence is entirely consistent with the settled
law requiring some sort of ‘state action’ to support a [Due Process Clause] violation.”
The Court indicated that the potential unreliability of C’s confession was a matter that “the Constitution
rightly leaves ... to be resolved by state laws governing the admission of evidence.” As Justice Stevens
observed in his partial concurrence, “[t]he fact that the statements [made by C] were involuntary—just as the
product of Lady Macbeth's nightmare was involuntary—does not mean that their use for whatever
evidentiary value they may have is fundamentally unfair or a denial of due process.” Thus, just as
unreliability of a suspect's confession is not a necessary condition for excluding a statement,82 neither is it a
sufficient basis.
The Connelly dissenters objected. They contended that “due process derives much of its meaning from a
conception of fundamental fairness that emphasizes the right to make vital choices voluntarily.” Although
they conceded that police overreaching had been an element of every previous confession case, “it is also
true that in every case [until now] the Court has made clear that ensuring that a confession is a product of
free will is an independent concern.”
1. Yale Kamisar, What is an “Involuntary” Confession? Some Comments on Inbau and Reid's Criminal Interrogation and
Confessions, 17 Rutgers L. Rev. 728 (1963); Welsh S. White, What Is an Involuntary Confession Now?, 50 Rutgers L. Rev.
2001 (1998).
2. Rex v. Warickshall, 1 Leach C.L. 263, 264, 168 Eng. Rep. 234, 235 (K.B. 1783).
3. 3 Wigmore on Evidence §825, at 346 (Chadbourne Rev. 1970).
4. 110 U.S. 574 (1884).
5. 168 U.S. 532 (1897). For a discussion of the history of the law of coerced confessions, including Bram, see Wesley M.
Oliver, Symposium: Commentary: Prohibition's Fourth Amendment Confessions Rule, 17 Ohio St. J. Crim. L. 445 (2020).
6. 297 U.S. 278 (1936).
7. 384 U.S. 436 (1966).
8. Id. at 507 n.4 (Harlan, J., dissenting) (quoting Paul M. Bator & James Vorenberg, Arrest, Detention, Interrogation and
the Right to Counsel, 66 Colum. L. Rev. 62, 73 (1966)); see also Lawrence Herman, The Supreme Court and Restrictions on
Police Interrogation, 25 Ohio St. L.J. 449 (1964).
9. Regarding this requirement, see §22.03[A], infra.
10. E.g., Brown v. Mississippi, 297 U.S. 278 (1936); Spano v. New York, 360 U.S. 315 (1959).
11. E.g., Leyra v. Denno, 347 U.S. 556, 558 (1954) (“[U]se in a state criminal trial of a defendant's confession obtained by
coercion ... is forbidden by the Fourteenth Amendment”); Mincey v. Arizona, 437 U.S. 385, 398 (1978) (“[A]ny criminal trial
use of a defendant's involuntary statement is a denial of due process of law....”).
12. 538 U.S. 760 (2003).
13. The Court was deeply splintered when it came to the facts of the case before it. Three members of the Court (Chief
Justice Rehnquist and Justices Scalia and Thomas) stated that police abuse could constitute a substantive due process violation,
but they did not believe that the conduct alleged in the case before it violated the Constitution. Two more justices (Souter and
Breyer) stated that brutality that “shocks the conscience” violates due process, but preferred to leave it to a lower court to
determine whether this standard was violated here. Three more justices (Kennedy, Stevens, and Ginsburg) found such a
violation in the current case. Justice O'Connor did not state her position on the issue.
14. See generally Kamisar, Note 1, supra; Welsh S. White, False Confessions and the Constitution: Safeguards Against
Untrustworthy Confessions, 32 Harv. C.R.-C.L. L. Rev. 105 (1997); White, Note 1, supra.
15. Blackburn v. Alabama, 361 U.S. 199, 207 (1960).
16. In light of the Supreme Court's merger of Fifth Amendment self-incrimination jurisprudence (regarding what
constitutes “compulsion” in the interrogation context) with the due process “involuntariness” cases, see §23.05[A][2], infra,
much of the reasoning for Due Process Clause exclusion of involuntary confessions is commingled by courts with self-
incrimination analysis.
17. Spano v. New York, 360 U.S. 315, 320 (1959) (expressing concern regarding the “inherent untrustworthiness” of
coerced confessions). The risk that police interrogation techniques will result in false confessions and miscarriages of justice is
not trivial. See §21.01, supra, especially the text to Note 6. See generally Richard A. Leo, False Confessions: Causes,
Consequences, and Solutions, in Wrongly Convicted: Perspectives on Failed Justice 36 (Saundra D. Westervelt & John A.
Humphrey eds., 2001); Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty
and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. Crim. L. & Criminology 429 (1998).
18. Lisenba v. California, 314 U.S. 219, 236 (1941).
19. Spano, 360 U.S. at 320.
20. Miller v. Fenton, 474 U.S. 104, 109 (1985).
21. Rogers v. Richmond, 365 U.S. 534, 541 (1961).
22. H. Richard Uviller, Evidence from the Mind of the Criminal Suspect: A Reconsideration of the Current Rules of Access
and Restraint, 87 Colum. L. Rev. 1137, 1146 (1987). This argument has special resonance when considering the Fifth
Amendment privilege against compelled self-incrimination. See §23.03[B], infra.
23. Brown v. Mississippi, 297 U.S. 278, 287 (1936) (quoting Fisher v. State, 110 So. 361, 365 (Miss. 1926)).
24. See Colorado v. Connelly, 479 U.S. 157, 165–66 (1986).
25. See generally Mark A. Godsey, Rethinking the Involuntary Confession Rule: Toward a Workable Test for Identifying
Compelled Self-Incrimination, 93 Cal. L. Rev. 465 (2005); Joseph D. Grano, Voluntariness, Free Will, and the Law of
Confessions, 65 Va. L. Rev. 859 (1979); Catherine Hancock, Due Process Before Miranda, 70 Tul. L. Rev. 2195 (1996);
Kamisar, Note 1, supra; White, Note 1, supra; and White, Note 14, supra.
26. 168 U.S. 532 (1897).
27. See §23.05[A], infra.
28. Dickerson v. United States, 530 U.S. 428, 434 (2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).
29. For discussion of how the Supreme Court has wavered between these two approaches, see Kamisar, Note 1, supra (pre-
Miranda case law), and White, Note 1, supra (post-Miranda case law).
30. Culombe v. Connecticut, 367 U.S. 568, 602 (1961) (opinion of Frankfurter, J.) (emphasis added); see also Dickerson v.
United States, 530 U.S. at 434 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)) (the due process cases “refined
the test into an inquiry that examines “whether a defendant's will was overborne” by the circumstances surrounding the giving
of a confession”).
31. See Joshua Dressler, Exegesis of the Law of Duress: Justifying the Excuse and Searching for Its Proper Limits, 62 S.
Cal. L. Rev. 1331 (1989).
32. White, Note 1, supra, at 2010.
33. George C. Thomas III, Justice O'Connor's Pragmatic View of Coerced Self-Incrimination, 13 Women's Rts. L. Rep.
117, 121 (1991) (quoting 2 John Henry Wigmore on Evidence §824 n.1 (2d ed. 1923)).
34. Id. at 120 (quoting Ashcraft v. Tennessee, 322 U.S. 143, 161 (1944) (Jackson J., dissenting)).
35. Culombe v. Connecticut, 367 U.S. at 605.
36. Id. at 603.
37. Miller v. Fenton, 474 U.S. 104, 110 (1985).
38. Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973).
39. Joseph D. Grano, Miranda v. Arizona and the Legal Mind: Formalism's Triumph Over Substance and Reason, 24 Am.
Crim. L. Rev. 243, 243 (1986).
40. Lloyd L. Weinreb, Generalities of the Fourth Amendment, 42 U. Chi. L. Rev. 47, 57 (1974).
41. See generally Mary Strauss, Torture, 48 N.Y. L. Sch. L. Rev. 201 (2004).
42. Don Van Natta, Jr., Interrogation Methods in Iraq Aren't All Found in Manual, N.Y. Times, May 7, 2004, at A11; see
also Neil A. Lewis, Broad Use Cited of Harsh Tactics at Base in Cuba, N.Y. Times, Oct. 17, 2004, at A1 (reporting that,
according to one military official at Camp Delta, where many Guantanamo Bay detainees were held, one common procedure
used was “making uncooperative prisoners strip to their underpants, having them sit in a chair while shackled hand and foot to
a bolt in the floor, and forcing them to endure strobe lights and screamingly loud rock and rap music played through two close
loudspeakers, while the air conditioning was turned up to maximum levels.”). See also Senate Select Committee on
Intelligence, Committee Study on the Central Intelligence Agency's Detention and Interrogation Policy (2012), at
https://www.documentcloud.org/documents/2462194-the-senate-select-committee-on-intelligence.html (detailing instances of
sleep deprivation of up to 180 hours by keeping the detainee is stress positions, and stripping detainees naked, covering them
with Mylar tape, and dragging them up and down a hallway while being slapped and punched).
43. James Risen & David Johnston, Photos of Dead Show the Horrors of Abuse, N.Y. Times, May 7, 2004, at A11.
44. See §22.02[A][2], supra.
45. Alan M. Dershowitz, The Torture Warrant: A Response to Professor Strauss, 48 N.Y. L. Sch. L. Rev. 275, 277 (2004).
46. Id.
47. Strauss, Note 41, supra, at 275.
48. See Minnesota v. Dickerson, 508 U.S. 366, 382 (1985) (Scalia, J., concurring) (suggesting the possibility that police
officers should be permitted to conduct Terry v. Ohio frisks for weapons when they fear for their safety, but that they should not
be permitted to use any non-weapon evidence secured thereby at a later trial).
49. Brown v. Mississippi, 297 U.S. 278 (1936).
50. Haynes v. Washington, 373 U.S. 503 (1963).
51. Fikes v. Alabama, 352 U.S. 191, 198 (1957) (Frankfurter and Brennan, JJ., concurring) (assuming that it is “common
ground” that a confession obtained in this manner violates due process).
52. Beecher v. Alabama, 389 U.S. 35 (1967).
53. Payne v. Arkansas, 356 U.S. 560 (1958) (P was told that there would be “30 or 40 people” arriving at the police station
to do violence to him, but that if P told the truth, the police would prevent them from hurting him).
54. Arizona v. Fulminante, 499 U.S. 279 (1991) (F, a prison inmate, was physically threatened by fellow prisoners because
of a rumor that he was suspected of an unsolved child murder; X, a paid government informant, offered to protect F from such
violence in exchange for an admission about the crime).
55. Brooks v. Florida, 389 U.S. 413 (1967); Reck v. Pate, 367 U.S. 433 (1961).
56. State v. Phelps, 456 N.W.2d 290 (Neb. 1990).
57. Blackburn v. Alabama, 361 U.S. 199, 206 (1960).
58. E.g., a factor weighing against voluntariness of an interrogation of a juvenile is the failure of the police to permit the
youth's parents to be present during the interrogation. State v. Presha, 748 A.2d 1108 (N.J. 2000) (despite the “highly
significant” factor that a 17-year-old youth was interrogated in the parents’ absence, confession was voluntary; but announcing
the rule that any interrogation of a juvenile under the age of 14 that is conducted in the absence of a parent or other adult
representative is inadmissible as a matter of law).
59. Ashcraft v. Tennessee, 322 U.S. 143 (1944) (emphasis added).
60. Spano v. New York, 360 U.S. 315 (1959).
61. See generally Welsh S. White, Confessions Induced by Broken Government Promises, 43 Duke L.J. 947 (1994).
62. 168 U.S. 532 (1897).
63. Arizona v. Fulminante, 499 U.S. 279, 285 (1991).
64. 2 Wayne R. LaFave et al., Criminal Procedure §6.2(c) at 623–625 (3d. ed. 2007).
65. Id. at 625.
66. 365 U.S. 534 (1961).
67. Beavers v. State, 998 P.2d 1040, 1042 (Alaska 2000).
68. Bond v. State, 9 N.E.3d 134, 138 (Ind. 2014).
69. See generally Margaret L. Paris, Trust, Lies, and Interrogation, 3 Va. J. Soc. Pol'y & L. 3 (1995); Christopher Slobogin,
Lying and Confessing, 39 Texas Tech. L. Rev. 1275 (2007); Christopher Slobogin, Deceit, Pretext, and Trickery: Investigative
Lies By the Police, 76 Or. L. Rev. 775 (1997); George C. Thomas III, Regulating Police Deception During Interrogation, 39
Texas Tech. L. Rev. 1293 (2007); Welsh S. White, Police Trickery in Inducing Confessions, 127 U. Pa. L. Rev. 581 (1979).
70. See §21.02, supra.
71. Consider the following ruse by O, a New York homicide investigator. In an effort to obtain a confession from D, a
murder suspect, O told D that “when a person is murdered the last thing a person sees is the person who killed them. And this
image remains on the lens of their eyes after they die.” O went on to say that modern technology made it possible to remove
the eyes during autopsy and have them “developed” like film in a photo lab, and thereby identify the killer. Based on this
deception, D confessed. Ron Rosenbaum, Crack Murder: A Detective Story, New York Times Mag., Feb. 15, 1987, at 24; or
see the facts in State v. Patton, 826 A.2d 783 (N.J. Super. A.D. 2003) (in which the police made an audiotape in which an
officer, impersonating an eyewitness to a murder supposedly being interviewed by the police, sprinkled in certain accurate
information about the crime followed by a declaration that he saw P shoot the victim; P, after originally denying the crime,
admitted to the offense once he heard the fraudulent audiotape).
72. 384 U.S. 436 (1966).
73. See §24.04[C][1], infra.
74. Frazier v. Cupp, 394 U.S. 731, 739 (1969) (“The fact that the police misrepresented the statements that [the other party]
had made is, while relevant, insufficient ... to make this otherwise voluntary confession inadmissible.”).
75. Lynumn v. Illinois, 372 U.S. 528 (1963).
76. Leyra v. Denno, 347 U.S. 556 (1954).
77. Illinois v. Perkins, 496 U.S. 292 (1990).
78. State v. Patton, 826 A.2d 783, 793 (N.J. Super. A.D. 2003) (citing cases). In Patton, however, the court held that the
police crossed the constitutional line when they did more than falsely claim that they had incriminating evidence, but actually
created such false evidence and showed it to the suspect. (See Note 71, supra, for the facts.)
79. 479 U.S. 157, 166 (1986); contra, under the state constitution, State v. Bowe, 881 P.2d 538 (Haw. 1994) (private action
may be sufficient to render a confession inadmissible); State v. Rees, 748 A.2d 976 (Me. 2000) (same). For a fascinating
account of Connelly, including a great deal of previously unpublished information about the case, see William T. Pizzi,
Colorado v. Connelly: What Really Happened, 7 Ohio St. J. Crim. L. 277 (2009).
80. See §22.02[A][1], supra.
81. Connelly, 479 U.S. at 165.
82. See the text accompanying Note 18, supra.
83. The issue of “standing” most commonly arises in the Fourth Amendment context. See Chapter 19, supra.
84. Colorado v. Connelly, 479 U.S. at 166 (quoting United States v. Janis, 428 U.S. 433, 448–49 (1976)).
85. 297 U.S. 278 (1936). See §23.01[B][2], supra.
86. Arnold H. Loewy, Police-Obtained Evidence and the Constitution: Distinguishing Unconstitutionally Obtained
Evidence from Unconstitutionally Used Evidence, 87 Mich. L. Rev. 907, 934 (1989).
87. Accord Chavez v. Martinez, 538 U.S. 760 (2003); see §22.02[A][1], supra.
88. Mincey v. Arizona, 437 U.S. 385 (1978).
89. See §20.05[B][2][b], supra (Fourth Amendment); §24.12[A] (Miranda); and §25.07[C] (Sixth Amendment), infra.
90. See generally §20.08, supra.
91. 3 LaFave et al., Note 64, supra, at §9.5(a) at 467 (describing this position as “unquestionably correct”).
92. 499 U.S. 279 (1991).
93. A defendant must make a timely pretrial motion to suppress a confession. E.g., Fed. R. Crim. P. 12(b)(3)(C). Failure to
do so constitutes a waiver of the claim. Fed. R. Crim. P. 12(e).
94. E.g., Payne v. Arkansas, 356 U.S. 560 (1958). See generally 2 Joshua Dressler & Alan C. Michaels, Understanding
Criminal Procedure chapter 16 (4th ed. 2006).
Chapter 23
Interrogation Law:
Privilege against Compelled
Self-Incrimination
[i] Impeachment
As with the Due Process Clause,144 a statement obtained in violation of the Fifth Amendment privilege
against compelled self-incrimination is inadmissible at the defendant's trial for all purposes. That is, the
statement is not admissible in the prosecutor's case-in-chief as substantive evidence of the defendant's guilt,
nor may it be used to impeach the defendant.145
Interrogation Law:
Miranda v. Arizona
1. See generally Commentary Symposium, Miranda at Forty, 5 Ohio St. J. Crim. L. 161–203 (2007) (articles reflecting on
the past, present, and future of Miranda and police interrogations); George C. Thomas III & Richard A Leo, The Effects of
Miranda v. Arizona: “Embedded” in Our National Culture?, 29 Crime and Justice: A Review of Research 203 (2002). See also
Yale Kamisar, The Rise, Decline, and Fall (?) of Miranda, 87 Wash. L. Rev. 965 (2012). This article, written by the so-called
“father of Miranda,” will prove useful at every stage of your study of Miranda. See also Frederick Schauer, The Miranda
Warning, 88 Wash. L. Rev. 155 (2013) (responding to Professor Kamisar's article).
2. 384 U.S. 436 (1966).
3. Jethro K. Lieberman, Milestones! 200 Years of American Law: Milestones in Our Legal History vi–vii (1976).
4. Henry J. Abraham, Freedom and the Court 125 (4th ed. 1982).
5. Yale Kamisar, A Dissent From the Miranda Dissents: Some Comments on the “New” Fifth Amendment and the Old
“Voluntariness” Test, 65 Mich. L. Rev. 59, 59 (1966).
6. 18 U.S.C.A. §3501. See §24.06[A], infra.
7. Marvin Zalman & Brad W. Smith, The Attitudes of Police Executives Toward Miranda and Interrogation Policies, 97 J.
Crim. L. & Criminology 873, 904–905 (2007). However, discipline of officers who violate Miranda rules is uncommon. Id. at
923.
8. E.g., Irene Merker Rosenberg & Yale L. Rosenberg, A Modest Proposal for the Abolition of Custodial Confessions, 68
N.C. L. Rev. 69, 73 (1989); Paul Marcus, A Return to the “Bright Line Rule” of Miranda, 35 Wm. & Mary L. Rev. 93, 109–10
(1993).
9. A major campaign position of Nixon, the candidate, was that he would fill Court vacancies with justices opposed to
Miranda. See generally Liva Baker, Miranda: Crime, Law and Politics (1983).
10. That is more than can be said for Ernesto Miranda. He was killed in a barroom brawl 10 years after the case bearing his
name was decided. His suspected killer was given Miranda warnings. Id. at 408–09.
11. Arthur J. Goldberg, Escobedo and Miranda Revisited, 18 Akron L. Rev. 177, 182 (1984). One scholar has described
what the Court has done to the case as “stealth overruling.” Barry Friedman, The Wages of Stealth Overruling (With Particular
Attention to Miranda v. Arizona), 99 Geo. L.J. 1 (2010).
12. Yale Kamisar, The Warren Court and Criminal Justice: A Quarter-Century Retrospective, 31 Tulsa L.J. 1, 13 (1995).
13. See generally Alfredo Garcia, Regression to the Mean: How Miranda Has Become a Tragicomical Farce, 25 St.
Thomas L. Rev. 293 (2013).
14. See Michael J. Z. Mannheimer, The Two Mirandas, 43 N. Ky. L. Rev. 317 (2016).
15. David L. Sterling, Police Interrogation and the Psychology of Confession, 14 J. Pub. L. 25, 37 (1965) (“[I]f the
American police manuals are examined, there is a striking similarity between their recommendations and Russian and Chinese
interrogation techniques.”).
16. Fred E. Inbau & John E. Reid, Criminal Interrogation and Confessions 208 (1962).
17. Gerald M. Caplan, Questioning Miranda, 38 Vand. L. Rev. 1417, 1425 (1985).
18. Charles D. Weisselberg, Saving Miranda, 84 Cornell L. Rev. 109, 125 (1998).
19. See §§22.02, 23.05[A], supra.
20. Yale Kamisar, Gates, “Probable Cause,” “Good Faith,” and Beyond, 69 Iowa L. Rev. 551, 570 (1984).
21. Joseph D. Grano, Voluntariness, Free Will, and the Law of Confessions, 65 Va. L. Rev. 859, 863 (1979).
22. Malloy v. Hogan, 378 U.S. 1 (1964).
23. 377 U.S. 201 (1964). See §25.01, infra.
24. 378 U.S. 478 (1964). See §24.03, infra.
25. Geoffrey R. Stone, The Miranda Doctrine in the Burger Court, 1977 Sup. Ct. Rev. 99, 103.
26. Weisselberg, Note 18, supra, at 117–18.
27. 378 U.S. 478 (1964). Also on that road are two pre-Escobedo cases: McNabb v. United States, 318 U.S. 332 (1943) and
Mallory v. United States, 354 U.S. 449 (1957).
28. Kirby v. Illinois, 406 U.S. 682, 689 (1972) (quoting Johnson v. New Jersey, 384 U.S. 719, 729 (1966)).
29. Johnson v. New Jersey, 384 U.S. 719 (1966).
30. See §25.03, infra.
31. See Joseph D. Grano, Selling the Idea to Tell the Truth: The Professional Interrogator and Modern Confessions Law, 84
Mich. L. Rev. 662, 666 (1986).
32. See §23.03[B][3], supra.
33. Kamisar, Note 12, supra, at 9; see Grano, Note 31, supra, at 666 (“[I]f one takes Escobedo’s reasoning seriously, all
police interrogation should be prohibited until the defendant has had an opportunity to consult with a lawyer.”).
34. Escobedo is considered in §24.03, supra. This “was surely one of the least honest sentences in the opinion.” Marcus,
Note 8, supra, at 114. The Miranda Court's definition of “custody” is not what was meant by “focus” in Escobedo. In
Escobedo, both focus and custody were required. As explained later, Miranda rejected the “focus” requirement described in
Escobedo. See §24.07[B][1], infra.
35. In an intriguing footnote in Berkemer v. McCarty, 468 U.S. 420, 434 n.21 (1984), the Court declined to answer the
question “whether an indigent suspect has a right, under the Fifth Amendment, to have an attorney appointed to advise him
regarding his responses to custodial interrogation when the alleged offense about which he is being questioned is sufficiently
minor that he would not have a right, under the Sixth Amendment, to the assistance of appointed counsel at trial.” As explained
in §28.03[B][4], infra, an indigent does not have a constitutional right to appointed counsel at trial of a misdemeanor offense
for which he will not be incarcerated if convicted.
36. There is increasing belief that, in light of these subsidiary functions of the right to counsel, all custodial police
interrogations should be videotaped. The Alaska Supreme Court, for example, has held that, an “unexcused failure to
electronically record a custodial interrogation conducted in a place of detention violates a suspect's right to due process, under
the Alaska Constitution, and ... any statement thus obtained is generally inadmissible.” Stephan v. State, 711 P.2d 1156, 1158
(Alaska 1985). The Minnesota Supreme Court has held that a “substantial” violation of its rule—requiring the recording of all
custodial interrogations, including the reading of the Miranda rights and any waivers thereof—requires suppression of any
statements made. State v. Scales, 518 N.W.2d 587 (Minn. 1994). Massachusetts has ruled that, although an otherwise valid
unrecorded interrogation conducted in police custody or in a place of detention is admissible at trial, the defendant is entitled to
an instruction that jurors evaluate the unrecorded statement with “particular caution.” Commonwealth v. DiGiambattista, 813
N.E.2d 516 (Mass. 2004). And, as of 2008, North Carolina by statute requires all custodial interrogations in homicide cases to
be electronically recorded (audio or video) from the time Miranda warnings are given until interrogation is completed. N.C.
Gen. Stat. §15A-211 (2007). At least 12 police departments, on their own, now record interrogations, at least in their most
serious felony cases, Stephanie Simon, Smile and Say Fess Up, Los Angeles Times, Apr. 8, 2004, at A1; and three-fifths of
large city police administrators favor videotaping. Zalman & Smith, Note 7, supra, at 920–922. One critic of Miranda has
argued that videotaping should replace the right to counsel during custodial interrogation. Paul G. Cassell, The Paths Not
Taken: The Supreme Court's Failures in Dickerson, 99 Mich. L. Rev. 898 (2001); but see Stephen J. Schulhofer, Miranda,
Dickerson and the Puzzling Persistence of Fifth Amendment Exceptionalism, 99 Mich. L. Rev. 941 (2001) (unless videotaping
supplements Miranda rather than substituting for it, it will make matters worse).
37. See Johnson v. Zerbst, 304 U.S. 458 (1938).
38. Lawrence Herman, The Supreme Court, the Attorney General, and the Good Old Days of Police Interrogation, 48 Ohio
St. L.J. 733, 735 (1987).
39. Stephen J. Schulhofer, Reconsidering Miranda, 54 U. Chi. L. Rev. 435, 447 (1987).
40. Not all of the language in Miranda supports the thesis that custodial interrogation is inherently coercive. For example,
the opinion states that “we might not find the defendants’ statements [in these cases] to have been involuntary in traditional
terms.... [However,] [t]he potentiality for compulsion is forcefully apparent ...” 384 U.S. at 457 (emphasis added).
41. Weisselberg, Note 18, supra, at 121.
42. Miranda, 384 U.S. at 460. For fuller discussion of the history of, the policies supporting, and the general contours of,
the privilege against compulsory self-incrimination, see Chapter 23, supra.
43. For criticisms of Miranda, see generally Caplan, Note 17, supra; Joseph D. Grano, Miranda's Constitutional
Difficulties: A Reply to Professor Schulhofer, 55 U. Chi. L. Rev. 174 (1988); Joseph D. Grano, Miranda v. Arizona and the
Legal Mind: Formalism's Triumph over Substance and Reason, 24 Am. Crim. L. Rev. 243 (1986); Grano, Note 31, supra;
Office of Legal Policy, U.S. Dept. of Justice, Report to the Attorney General on the Law of Pre-Trial Interrogation (1986). For
a defense of Miranda and/or criticisms of it on the ground that it did not go far enough in limiting confessions, see generally
Kamisar, Notes 5 and 12, supra; Charles J. Ogletree, Are Confessions Really Good for the Soul?: A Proposal to Mirandize
Miranda, 100 Harv. L. Rev. 1826 (1987); Rosenberg & Rosenberg, Note 8, supra; Stephen J. Schulhofer, Bashing Miranda Is
Unjustified—And Harmful, 20 Harv. J. Law & Pub. Pol'y 347 (1997); Schulhofer, Note 39, supra; Welsh S. White, Miranda's
Failure to Restrain Pernicious Interrogation Practices, 99 Mich. L. Rev. 1211 (2001); Welsh S. White, Defending Miranda: A
Reply to Professor Caplan, 39 Vand. L. Rev. 1 (1986).
44. Kamisar, Note 12, supra, at 11.
45. Escobedo v. Illinois, 378 U.S. 478 (1964). See §24.03, supra.
46. Rosenberg & Rosenberg, Note 8, supra.
47. Otis H. Stephens, Jr., The Supreme Court and Confessions of Guilt 205 (1973).
48. Ogletree, Note 43, supra, at 1830.
49. Kamisar, Note 12, supra, at 12.
50. See generally Albert W. Alschuler, A Peculiar Privilege in Historical Perspective: The Right to Remain Silent, 94
Mich. L. Rev. 2625 (1996); Eben Moglen, Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against
Self-Incrimination, 92 Mich. L. Rev. 1086 (1994).
51. Miranda, 384 U.S. at 526 (White, J., dissenting).
52. Alschuler, Note 50, supra, at 2631.
53. 3 John H. Wigmore, Evidence 401 (Chadbourn rev. 1970).
54. E.g., Lawrence Herman, The Unexplored Relationship Between the Privilege Against Compulsory Self-Incrimination
and the Involuntary Confession Rule (Part I), 53 Ohio St. L.J. 101 (1992).
55. Kamisar, Note 5, supra, at 73–74.
56. Office of Legal Policy, Note 43, supra, at 42.
57. Miranda, 384 U.S. at 505 (Harlan, J., dissenting).
58. Caplan, Note 15, supra, at 1432.
59. See Grano, Legal Mind, Note 43, supra, at 246.
60. Miranda, 384 U.S. at 534 (White, J., dissenting).
61. Kamisar, Note 5, supra, at 62.
62. Grano, Note 21, supra, at 863.
63. See Schulhofer, Note 39, supra, at 440–46.
64. 168 U.S. 532 (1897). See §23.05[A][1], supra.
65. See §23.05[A][2], supra.
66. Schulhofer, Note 39, supra, at 445.
67. Miranda, 384 U.S. at 537, 538 (White J., dissenting).
68. Id. at 505 (Harlan, J., dissenting).
69. Id. at 537, 539 (White, J., dissenting).
70. See Caplan, Note 15, supra, at 1441.
71. It may do more: “[I]t gives the suspect too great an advantage. If the police are too formidable for the average offender,
a lawyer will be too formidable for the average investigator.” Id. at 1443.
72. Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 29 A.B.A. Re. 395 (1906)
(reprinted in 35 F.R.D. 273, 281 (1964)).
73. 5 Jeremy Bentham, Rationale of Judicial Evidence 238–39 (1827).
74. Grano, Note 29, supra, at 677.
75. See Rosenberg & Rosenberg, Note 8, supra, at 70–71 (reproducing portions of the comic strip “Amazing Spider-Man,”
in which Peter Parker, the web-slinger's alter ego, expresses dismay at the release of the evil bad-guy “just because of a
technicality”—the absence of Miranda warnings; Parker says “[w]e're treating justice like a game! The crook is ‘safe at first’
because the cop dropped the ball! That's insanity.”).
76. Stephen J. Schulhofer, Confessions and the Court, 79 Mich. L. Rev. 865, 872 (1981).
77. See R. Kent Greenawalt, Silence as a Moral and Constitutional Right, 23 Wm. & Mary L. Rev. 15, 40–41 (1981).
78. See generally Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 Nw. U. L. Rev. 387 (1996); Paul
G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 Nw. U. L. Rev. 1084 (1996); Paul G. Cassell
& Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L. Rev. 839
(1996); Richard A. Leo, The Impact of Miranda Revisited, 86 J. Crim. L. & Criminology 621 (1996); Richard A. Leo, Inside
the Interrogation Room, 86 J. Crim. L. & Criminology 266 (1996); Stephen J. Schulhofer, Miranda's Practical Effect:
Substantial Benefits and Vanishingly Small Social Costs, 90 Nw. U. L. Rev. 500 (1996); George C. Thomas III, Is Miranda a
Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 UCLA L. Rev. 821 (1996); George C. Thomas III,
Plain Talk About the Miranda Empirical Debate: A “Steady-State” Theory of Confessions, 43 UCLA L. Rev. 933 (1996).
79. Ashcraft v. Tennessee, 322 U.S. 143, 160 (1944) (Jackson, J., dissenting).
80. Id.
81. Richard H. Seeburger & R. Stanton Wettick, Jr., Miranda in Pittsburgh—A Statistical Study, 29 U. Pitt. L. Rev. 1
(1967).
82. Cassell, Empirical Reassessment, Note 78, supra, at 417, 438.
83. Cassell & Hayman, Note 78, supra, at 871.
84. Cassell, Empirical Reassessment, Note 78, supra, at 440.
85. Schulhofer, Note 78, supra.
86. See Schulhofer, Note 39, supra, at 456; George C. Thomas III, Stories About Miranda, 102 Mich. L. Rev. 1959, 1999
(2004) (“My study is the latest piece of evidence that Miranda has not changed very much about police interrogation. Perhaps
history will record the Miranda revolution as a mere blip on the screen in centuries of evolving [interrogation] law....”).
87. For a thorough critique of the methodologies in the Miranda studies, see especially Schulhofer, Note 76, supra; and
Thomas, Plain Talk, Note 76, supra.
88. Schulhofer, Note 78, supra, at 505.
89. Thomas, Plain Talk, Note 78, supra, at 937 (crediting Schulhofer, Note 76, supra, for identifying these reasons).
90. Thomas, Real-World Failure, Note 78, supra, at 830; see White, Defending Miranda, Note 43, supra, at 18–19.
91. Yale Kamisar, Landmark Ruling's Had No Detrimental Effect, Boston Globe, Feb. 1, 1987, at A27, as quoted in
Schulhofer, Note 39, supra, at 458 n.59.
92. Schulhofer, Note 78, supra, at 502.
93. Schulhofer, id. at 546, warns, as well, against citing absolute numbers of dismissed cases that are mere extrapolations
based on inherently soft figures and assumptions. Thus, the specific figure Cassell quoted of lost felony cases—or, indeed, any
specific figure—necessarily tells a misleading story, because it gives a false impression of precision.
94. Caplan, Note 17, supra, at 1466.
95. As previously noted, Miranda is a compromise. The Court did not take its own reasoning to its logical conclusion,
namely, to prohibit suspects from waiving their constitutional right to silence in the coercive environment of the interrogation
room until suspects consult with counsel.
96. In the Salt Lake City study, Miranda waivers were obtained in 83.7% of the cases. Cassell & Hayman, Note 78, supra,
at 860.
97. Schulhofer, Note 39, supra, at 454.
98. Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984) (“[C]ases in which a defendant can make a colorable argument
that a self-incriminating statement was ‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates
of Miranda are rare.”).
99. 530 U.S. 428, 436 (2000).
100. 417 U.S. 433 (1974).
101. 470 U.S. 298, 306 (1985) (emphasis added).
102. Stone, Note 25, supra, at 118.
103. E.g., Orozco v. Texas, 394 U.S. 324, 326 (1969) (“[T]he use of these admissions obtained in the absence of the required
warnings was a flat violation of the Self-Incrimination Clause of the Fifth Amendment....”) (emphasis added).
104. Smith v. Phillips, 455 U.S. 209, 221 (1982).
105. 530 U.S. 428 (2000); see generally Symposium, Miranda After Dickerson: The Future of Confession Law, 99 Mich. L.
Rev. 879–1247 (2001); Evan H. Caminker, Miranda and Some Puzzles of “Prophylactic” Rules, 70 U. Cin. L. Rev. 1 (2002);
Donald A. Dripps, Constitutional Theory for Criminal Procedure: Dickerson, Miranda, and the Continuing Quest for Broad-
but-Shallow, 43 Wm. & Mary L. Rev. 1 (2001); Yale Kamisar, Miranda Thirty-Five Years Later: A Close Look at the Majority
and Dissenting Opinions in Dickerson, 33 Ariz. St. L.J. 387 (2001); Daniel M. Katz, Institutional Rules, Strategic Behavior,
and the Legacy of Chief Justice William Rehnquist: Setting the Record Straight on Dickerson v. United States, 22 J. Law &
Politics 303 (2006).
106. Dickerson's confession, therefore, had to be excluded. However, as frequently occurs in such circumstances, the
suppression did not result in a lost conviction for the government. Dickerson was convicted of robbery in a retrial, even
without the statement. Man Sentenced in Case That Upheld Miranda, New York Times, Jan. 6, 2001, at A9.
107. 538 U.S. 760 (2003); see generally Thomas Y. Davies, Farther and Farther from the Original Fifth Amendment: The
Recharacterization of the Right Against Self-Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987
(2003); Marcy Strauss, Torture, 48 N.Y.L. Sch. L. Rev. 201 (2004).
108. See 23.05[B][3][a], supra.
109. See §§24.11–24.12, infra. In particular, see §24.12[B][3], and discussion of United States v. Patane, 542 U.S. 630
(2004).
110. See generally Daniel Yeager, Rethinking Custodial Interrogation, 28 Am. Crim. L. Rev. 1 (1990).
111. Oregon v. Mathiason, 429 U.S. 492, 495 (1977).
112. California v. Beheler, 463 U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason, 429 U.S. at 495)).
113. Stansbury v. California, 511 U.S. 318, 322 (1994); see also Howes v. Fields, 565 U.S. 499, 514 (2012) (“the
determination of custody should focus on all of the features of the interrogation”).
114. Stansbury v. California, 511 U.S. at 319.
115. Id. at 323 (emphasis added).
116. Berkemer v. McCarty, 468 U.S. 420, 442 (1984). What if the suspect is not a “man” but a youth? Is that relevant to the
issue of custody? In J.D.B. v. North Carolina, 564 U.S. 261 (2011), the Court concluded, 5–4, that because “children will often
feel bound to submit to police questioning when an adult in the same circumstance would feel free to leave,” a child's age is a
part of the “objective circumstances” to be considered in making the custody determination. In other words, “so long as the
child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable
officer,” then the question becomes how a reasonable person of the child's age in the suspect's position would have understood
his situation. The majority offered two responses to the dissenting judges’ worry that this result might turn the objective test
into a subjective one in which many of the suspect's personal characteristics must be considered. First, the Court contended that
a child's age is a special case because it has an “objectively discernable relationship to a reasonable person's understanding of
his freedom of action.” Second, the Court argued that considering age does not involve “a determination of how youth
‘subjectively affects the mindset’ of any particular child,” so that accounting for age does not require looking into the mind of
the particular child, as would, for example, “consideration of whether a particular suspect is ‘unusually meek or compliant.’”
117. 468 U.S. 420 (1984).
118. Stansbury v. California, 511 U.S. 318, 509 (1994) (quoting Berkemer v. McCarty, 468 U.S. at 440).
119. Thompson v. Keohane, 516 U.S. 99, 112 (1995).
120. 565 U.S. 499, 1189–90 (2012) (citations omitted).
121. 378 U.S. 478 (1964). See §24.03, supra.
122. See the text accompanying Note 34, supra.
123. 425 U.S. 341 (1976).
124. Howes v. Fields, 565 U.S. at 509.
125. 394 U.S. 324 (1969).
126. 463 U.S. 1121 (1983).
127. 565 U.S. 499 (2012).
128. 468 U.S. 420 (1984).
129. 392 U.S. 1 (1968); see §17.02, supra.
130. 468 U.S. 420 (1984).
131. 429 U.S. 492 (1977).
132. See generally Jesse C. Stewart, The Untold Story of Rhode Island v. Innis: Justice Potter Stewart and the Development
of Modern Self-Incrimination Doctrine, 97 Va. L. Rev. 431 (2011); Welsh S. White, Interrogation Without Questions: Rhode
Island v. Innis and United States v. Henry, 78 Mich. L. Rev. 1209 (1980); Yeager, Note 110, supra.
133. 446 U.S. 291 (1980).
134. See §24.10[B][3][a], infra.
135. 430 U.S. 387 (1977).
136. Innis states that the definition of “interrogation” for Miranda purposes is not informed by the Court's Sixth Amendment
right-to-counsel jurisprudence. Under the latter provision, the government may not “deliberately elicit” an incriminating
response from a person formally charged with a crime in the absence of the accused's lawyer. Thus, the latter test is explicitly
subjective. See §25.05, infra.
137. This conclusion is dubious. As Justice Marshall pointed out in dissent, an appeal to a suspect's conscience is a classic
interrogation technique recommended in the police manuals criticized in Miranda. An officer's call-to-conscience will often
succeed where a direct, accusatorial question may not.
138. The state of mind of a police officer may be relevant in “interrogation” analysis for a second reason, notwithstanding
the objective nature of the Innis test. In a footnote, the Court stated (without further explaining) that the officer's intent “may
well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an
incriminating response.”
139. Illinois v. Perkins, 496 U.S. 292 (1990). See §24.11[B], infra, for further explanation.
140. Schmerber v. California, 384 U.S. 757 (1966). This important distinction is explained in detail, and may best be
reviewed at this time, at §23.04[D], supra.
141. Pennsylvania v. Muniz, 496 U.S. 582, 592 (1990).
142. Id. at 593.
143. 453 U.S. 355 (1981).
144. 492 U.S. 195 (1989).
145. Yale Kamisar, Duckworth v. Eagan: A Little-Noticed Miranda Case That May Cause Much Mischief, 25 Crim. L. Bull.
550, 552 (1989).
146. Duckworth demonstrates that divergence from the Miranda warnings will not always render the warnings inadequate.
However, on the other side of the coin, it is important to note that the Supreme Court—or at least a plurality of the Court—has
stated that even faithful quotation of the Miranda warnings will not be adequate in certain circumstances: “[I]t would be absurd
to think that mere recitation of the litany suffices to satisfy Miranda in every conceivable circumstance.” Missouri v. Seibert,
542 U.S. 600, 611 (2004) (plurality opinion of Souter). Seibert—a case in which the plurality determined that Miranda
warnings, without further elaboration, could actually mislead, rather than edify, the suspect—is explained in detail in
§24.12[B][4], infra.
147. Duckworth, 492 U.S. at 203 (alteration in original) (quoting California v. Prysock, 453 U.S. 355, 361 (1981)); see also
Florida v. Powell, 559 U.S. 50 (2010) (holding, 7–2, that as long as the police “clearly inform” suspects of their legal rights,
divergence from the specific Miranda warnings is not violative of Miranda v. Arizona).
148. That is, Miranda does not require the presence of a “stationhouse lawyer.” Waiver issues aside, Miranda only requires
that the police not interrogate a suspect until counsel can be obtained.
149. Kamisar, Note 145, supra, at 554.
150. See Notes 94–98 and accompanying text, supra; for discussion of the techniques used by police to secure waivers, see
Richard A. Leo & Welsh S. White, Adapting to Miranda: Modern Interrogators’ Strategies for Dealing with the Obstacles
Posed by Miranda, 84 Minn. L. Rev. 397, 431–450 (1999).
151. Missouri v. Seibert, 542 U.S. 600, 609 (2004) (plurality opinion).
152. See Note 98, supra.
153. 441 U.S. 369, 375–76 (1979).
154. Id. at 374–75 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
155. 560 U.S. 370 (2010).
156. Id. at 384.
157. 304 U.S. 458 (1938); see Edwards v. Arizona, 451 U.S. 477, 482 (1981) (acknowledging that Zerbst is the applicable
test).
158. 479 U.S. 157 (1986).
159. Moran v. Burbine, 475 U.S. 412, 421 (1986).
160. Colorado v. Connelly, 479 U.S. 157, 169–70 (1986).
161. Oregon v. Elstad, 470 U.S. 298, 305 (1985).
162. Colorado v. Connelly, 479 U.S. 157 (1986).
163. Oregon v. Elstad, 470 U.S. 298 (1985).
164. See §22.02, supra.
165. See generally Morgan Cloud et al., Words Without Meaning: The Constitution, Confessions, and Mentally Retarded
Suspects, 69 U. Chi. L. Rev. 495 (2002); Robert P. Mosteller, Police Deception Before Miranda Warnings: The Case for Per Se
Prohibition of an Entirely Unjustified Practice at the Most Critical Moment, 39 Texas Tech L. Rev. 1239 (2007).
166. Moran v. Burbine, 475 U.S. 412, 421 (1986).
167. 470 U.S. 298 (1985).
168. See also §24.12[B][3], infra.
169. In Colorado v. Spring, 479 U.S. 564 (1987), the Court rejected the same “ignorance-of-the-full-consequences-of-his-
decision” argument in a different Miranda context. S was arrested for interstate transportation of stolen firearms; S was read the
Miranda warnings and waived his rights; based on prior information that linked him to a murder, the after-waiver interrogation
quickly turned from the firearms charge to the uncharged murder. S ultimately confessed to the murder. The Court held that S’s
waiver was knowing and intelligent although he did not know he was going to be questioned about the murder when he gave
up his rights: he knew what his rights were, including the right to cut off questioning at any time; and he knew that any
statement he made could be used against him.
170. See generally Andrew Guthrie Ferguson, The Dialogue Approach to Miranda Warnings and Waiver, 49 Am. Crim. L.
Rev. 1437 (2012) (arguing for an adoption of a “dialogue approach” to ensure that the waiver is knowing and voluntary by
requiring suspects to restate their rights in their own words before interrogation can begin).
171. 475 U.S. 412 (1986); contra, under the state constitution, Bryan v. State, 571 A.2d 170 (Del. 1990) (waiver is invalid if
police intentionally or negligently fail to inform a suspect during custodial interrogation that his lawyer wants to confer);
People v. McCauley, 645 N.E.2d 923 (Ill. 1994) (due process is violated if police interfere with an attorney-client relationship
by preventing a custodial suspect, under interrogation, from receiving the immediately available assistance of his own
attorney); Commonwealth v. Mavredakis, 725 N.E.2d 169 (Mass. 2000) (information regarding the immediate availability of
an identified attorney who is actually able to provide assistance has a bearing on the suspect's ability to knowingly and
intelligently waive his constitutional rights); People v. Bender, 551 N.W.2d 71 (Mich. 1996) (plurality opinion) (suspect has a
right to know that his lawyer wishes to see him, whether the request comes in person, over telephone, or by way of messenger);
State v. Reed, 627 A.2d 630 (N.J. 1993) (waiver is invalid if the police refuse to inform the suspect before or during
interrogation that an attorney wishes to confer with him).
172. 378 U.S. 478 (1964). See §24.03, supra.
173. See §24.05[B][3], supra.
174. 560 U.S. 370 (2010); contra under the state constitution, Commonwealth v. Clarke, 960 N.E.2d 306 (Mass. 2011)
(criticizing Thompkins for “turning Miranda upside down,” holding that the state constitution does not require a suspect to
employ “the utmost clarity” when invoking his right to silence).
175. Thompkins, 560 U.S. at 387 (2010).
176. Id. at 388.
177. This precedent, Davis v. United States, 512 U.S. 452 (1994), is discussed at (24.10[B][3][b][i], infra.
178. 560 U.S. 370, 381 (2010).
179. Note that some states will give legal weight to ambiguous invocations of the right to remain silent. See, e.g., State v.
Aguirre, 301 Kan. 950 (2015) (defendant's statement: “This is—I guess where I, I'm going to take my rights” was sufficient to
invoke Miranda.)
180. 423 U.S. 96 (1975).
181. 451 U.S. 477 (1981).
182. Michigan v. Harvey, 494 U.S. 344, 350 (1990).
183. See §24.06[B], supra.
184. Michigan v. Harvey, 494 U.S. at 350.
185. Arizona v. Roberson, 486 U.S. 675 (1988); see also McNeil v. Wisconsin, 501 U.S. 171, 177 (1991) (“The Edwards
rule ... is not offense specific: Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he
may not be reapproached regarding any offense unless counsel is present.”).
186. 498 U.S. 146 (1990).
187. 462 U.S. 1039 (1983).
188. 512 U.S. 452 (1994); contra, under the state constitution, State v. Hoey, 881 P.2d 504 (Haw. 1994) (when a suspect
ambiguously or equivocally requests counsel during custodial interrogation, the police must cease all questioning or seek non-
substantive clarification of the suspect's request); State v. Risk, 598 N.W.2d 642 (Minn. 1999) (same).
189. Kamisar, Note 12, supra, at 18.
190. Id. Regarding the tendency of powerless persons to talk indirectly when dealing with those in power, Kamisar has also
said this:
In Fiddler on the Roof, you will recall, Tevye the dairyman didn't come right out and say: “Lord, make me a rich man
today” or “Lord, I want to be a wealthy man right now, before the sun sets.” No, he was rather tentative. He sort of beat
around the bush. At the outset he asks: “So what would have been so terrible if I had a small fortune?” At the end he asks:
“Would it spoil some vast, eternal plan if I were a rich man?”
Yale Kamisar, Police Interrogation and Confessions 5 (Prepared Remarks at the U.S. Law Week's Sixteenth Annual
Constitutional Law Conference, Sept. 9, 1994).
191. 501 U.S. 171 (1991).
192. See §25.04, infra.
193. 559 U.S. 98 (2010).
194. 501 U.S. 171 (1991).
195. See generally Susan R. Klein, Miranda's Exceptions in a Post-Dickerson World, 91 J. Crim. L. & Criminology 567
(2001); George C. Thomas III, Separated at Birth But Siblings Nonetheless: Miranda and the Due Process Notice Cases, 99
Mich. L. Rev. 1081 (2001); Joanna Wright, Mirandizing Terrorists? An Empirical Analysis of the Public Safety Exception, 111
Colum. L. Rev. 1296 (2011) (reviewing all 588 state and federal cases decided before October 4, 2010 that discussed the
application of the “public safety” exception to admit or exclude un-Mirandized statements).
196. 467 U.S. 649 (1984).
197. See Wright, Note 195, supra, for a review of the lower court case law.
198. More than once, the Court described the police questioning in such circumstances as “instinctual” or “instinctive.” This
might suggest the possibility that the public-safety exception should be limited to brief questioning (in the present case, the
Court observed that the officer asked only one question, directly related to the gun), but lower courts have not always drawn
this conclusion.
199. 530 U.S. 428 (2000); see §24.06[C], supra.
200. Id. at 441.
201. United States v. Patane, 542 U.S. 630 (2004) (opinion of Thomas, J., joined by Rehnquist, C.J., and Scalia, J.; and
opinion of Kennedy, J., joined by O'Connor, J.).
202. 496 U.S. 292 (1990).
203. See §24.08[A][1], supra.
204. Perkins, 496 U.S. at 297 (quoting Yale Kamisar, Brewer v. Williams, Massiah, and Miranda: What Is Interrogation?
When Does It Matter?, 67 Geo. L.J. 1, 67, 63 (1978)).
205. 496 U.S. 582 (1990).
206. For a discussion of how courts are split on defining what is a “booking question,” see George C. Thomas III, Lost in the
Fog of Miranda, 64 Hast. L. J. 1501 (2013).
207. See generally Klein, Note 195, supra; Thomas, Note 195, supra.
208. 401 U.S. 222 (1971); contra, under the state constitution, State v. Batts, 195 P.3d 144 (Alaska Ct. App. 2008) (state
constitution forbids the use of statements obtained in violation of Miranda to impeach the defendant's testimony if the violation
was either intentional or egregious); State v. Santiago, 492 P.2d 657 (Haw. 1972) (disallowing use of all Miranda violations for
impeachment purposes); Commonwealth v. Triplett, 341 A.2d 62 (Pa. 1975) (same).
209. See §23.05[B][3][b][i], supra.
210. Yale Kamisar, Another Look at Patane and Seibert: The 2004 Miranda “Poisoned Fruit” Cases, 2 Ohio St. J. Crim. L.
97 (2004); Yale Kamisar, On the “Fruits” of Miranda Violations, Coerced Confessions, and Compelled Testimony, 93 Mich. L.
Rev. 929 (1995).
211. See generally §§20.08[B][1] (Fourth Amendment), 22.03[C][3][b] (Due Process Clause), 23.05[B][3][b][ii] (Self-
Incrimination Clause), supra, and §25.07[D], infra (Sixth Amendment).
212. See §24.06, supra.
213. 417 U.S. 433 (1974).
214. Johnson v. New Jersey, 384 U.S. 719 (1966).
215. See §23.02, supra, for greater details.
216. 371 U.S. 471 (1963).
217. 470 U.S. 298 (1985); contra under the state constitution, Commonwealth v. Smith, 593 N.E.2d 1288 (Mass. 1992) (S’s
second custodial statement, although obtained noncoercively, is inadmissible as a fruit of an earlier confession obtained in
violation of Miranda); State v. Smith, 834 S.W.2d 915 (Tenn. 1992) (same).
218. E also argued that the second statement should be excluded because his waiver was not “knowingly and voluntarily”
granted. He claimed that he did not realize that his first statement was inadmissible and that, therefore, “the cat was not out of
the bag,” so that his decision to waive his rights was based on a significant misunderstanding. In regard to this argument, see
§24.10[A][3][c], supra.
219. Elstad, 470 U.S. at 308 (emphasis added).
220. Why wasn't violation of Miranda itself an “improper tactic”? Could the answer be that the police here, as in Tucker,
acted in apparent good faith, i.e., the violation of Miranda was inadvertent and not an “improper tactic”? Could (or should) it
be that a purposeful violation of Miranda constitutes an “improper tactic” that would justify exclusion of a fruit of such a
violation? See §24.12[B][4], infra.
221. 542 U.S. 630 (2004), contra, under the state constitution, Commonwealth v. Martin, 827 N.E.2d 198 (Mass. 2005)
(holding that physical fruits of a Miranda violation are presumptively excludable at trial); State v. Farris, 849 N.E.2d 985 (Ohio
2006) (physical evidence discovered as a result of statements obtained in violation of Miranda is inadmissible); State v.
Peterson, 923 A.2d 585 (Tenn. 2007) (same); State v. Knapp, 700 N.W.2d 899 (Wis. 2005) (physical evidence obtained as the
direct result of an intentional Miranda violation is subject to the fruit-of-the-poisonous-tree doctrine).
222. Notice the word “voluntary” in the Court's statement. A statement obtained in violation of the “core” Fifth Amendment
privilege against compelled self-incrimination (or the Due Process Clause “voluntariness” requirement), as distinguished from
a violation of the Miranda warnings, triggers fruit-of-the-poisonous-tree principles.
223. Dickerson v. United States, 530 U.S. 428 (2000). See §24.06[C][1], supra.
224. Thomas and Scalia, of course, dissented in Dickerson. But the Chief Justice, who joined this Patane opinion, was the
author of Dickerson!
225. 538 U.S. 760 (2003). See §23.05[B][3][a].
226. See Weisselberg, Note 18, supra; see also Steven D. Clymer, Are Police Free to Disregard Miranda?, 112 Yale L.J. 447
(2002). According to one study, however, most large city police administrators claim to oppose this practice. Zalman & Smith,
Note 7, supra, at 912–918.
227. 542 U.S. 600 (2004).
228. Justice Souter stated that because the officer's intent will “rarely” be admitted as candidly as it was here, “the focus is
on facts apart from the intent.”
229. Indeed, Justice Breyer would go further than the facts in Seibert. In United States v. Patane, 542 U.S. 630 (2004),
discussed above in §24.12[B][3], Justice Breyer dissented from the admission of the weapon discovered as a fruit of an earlier
Miranda-less statement, by stating that “I would extend to this context the ‘fruit of the poisonous tree’ approach, which I
believe the Court has come close to adopting in Seibert.” He went on to suggest that under his approach “courts [should]
exclude physical evidence derived from unwarned questioning unless the failure to provide Miranda warnings was in good
faith.”
230. A majority of big city police administrators reportedly assert they agree with the outcome—the exclusion of the
evidence—in Seibert. Zalman & Smith, Note 7, supra, at 912–918.
231. Justice Breyer's position is known, however. See Note 229, supra.
Chapter 25
Interrogation Law:
Sixth Amendment Right to Counsel
[520/521] The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy
the right ... to have the Assistance of Counsel for his defence.” This right is fundamental and applies to the
states through the Fourteenth Amendment Due Process Clause.1
1. Gideon v. Wainwright, 372 U.S. 335 (1963). This chapter focuses exclusively on the Sixth Amendment right to counsel
in the context of police interrogations. For discussion of the right to counsel in other procedural contexts, see §26.02
(eyewitness identification procedures) and Chapter 28 (trial and on appeal), infra.
2. See generally Arnold N. Enker & Sheldon H. Elsen, Counsel for the Suspect: Massiah v. United States and Escobedo v.
Illinois, 49 Minn. L. Rev. 47 (1964); Martin R. Gardner, The Right to be Free from Uncounseled Interrogation: A Sixth
Amendment Doctrine in Search of a Rationale, 63 Baylor L. Rev. 80 (2011); Michael J. Howe, Note, Tomorrow's Massiah:
Towards a “Prosecution Specific” Understanding of the Sixth Amendment Right to Counsel, 104 Colum. L. Rev. 134 (2004);
Yale Kamisar, Brewer v. Williams, Massiah, and Miranda: What is “Interrogation”? When Does it Matter?, 67 Geo. L.J. 1
(1978); James J. Tomkovicz, An Adversary System Defense of the Right to Counsel Against Informants: Truth, Fair Play, and
the Massiah Doctrine, 22 U.C. Davis L. Rev. 1 (1988); H. Richard Uviller, Evidence From the Mind of the Criminal Suspect: A
Reconsideration of the Current Rules of Access and Restraint, 87 Colum. L. Rev. 1137 (1987).
3. 377 U.S. 201 (1964).
4. Uviller, Note 2, supra, at 1155.
5. Id. at 1159.
6. 384 U.S. 436 (1966).
7. 430 U.S. 387 (1977).
8. Tomkovicz, Note 2, supra, at 5.
9. See §§25.01[C], 25.04, and 25.06, infra.
10. Notice that this description of the role of counsel in the Sixth Amendment context is broader than the Miranda right to
counsel, the primary purpose of which is simply to assure that the suspect's Fifth Amendment right to be free from compelled
self-incrimination is not violated. See (24.04[B][1][b], supra.
11. Massiah, 377 U.S. at 207 (emphasis in the original).
12. See generally Martin R. Gardner, The Sixth Amendment Right to Counsel and Its Underlying Values: Defining the
Scope of Privacy Protection, 90 J. Crim. L. & Criminology 397 (2000); Howe, Note 2, supra; William J. Stuntz, Lawyers,
Deception, and Evidence Gathering, 79 Va. L. Rev. 1903 (1993); Uviller, Note 2, supra.
13. Tomkovicz, Note 2, supra, at 91.
14. United States v. Henry, 447 U.S. 264, 290 (1980) (Rehnquist, J., dissenting).
15. Tomkovicz, Note 2, supra, at 22.
16. In fact, M’s lawyer's presence in C’s car could have represented a more serious risk to M’s Sixth Amendment rights
than his absence, because the government would have been able to overhear any lawyer-client confidences. In Weatherford v.
Bursey, 429 U.S. 545 (1977), B and W, an undercover agent, participated in the vandalization of private property. In order to
protect W’s undercover status, W also was charged with the offense. Prior to trial, B invited W to sit in while he discussed trial
strategy with his attorney. At no time, however, did W pass on any of the lawyer-client conversations to the government. The
Court held that under these limited circumstances—there was “no tainted evidence in this case, no communication of defense
strategy to the prosecution, and no purposeful intrusion by [W]”—no Sixth Amendment violation resulted.
17. Enker & Elsen, Note 2, supra, at 57.
18. Only two years after Massiah, Hoffa v. United States, 385 U.S. 293 (1966), reaffirmed the Fourth Amendment principle
that one who talks to another person assumes the risk that the listener will betray her. See §6.05[B], supra. Hoffa also rejected
the claim that the use of secret government informers is a per se violation of the Due Process Clause.
19. Uviller, Note 2, supra, at 1168–83.
20. Id. at 1169.
21. Id. at 1173.
22. See especially §24.05[B][3], supra.
23. Uviller, Note 2, supra, at 1176.
24. Id. at 1161.
25. Maine v. Moulton, 474 U.S. 159, 170 n.7 (1985) (quoting Brewer v. Williams, 430 U.S. 387, 415 (1977) (Stevens, J.,
concurring)).
26. Id. at 171.
27. Id. at 176.
28. 532 U.S. 162, 171 n.2 (2001).
29. 556 U.S. 586 (2009).
30. Id. at 591 (quoting United States v. Cronic, 466 U.S. 648, 656 (1984)).
31. Id (quoting Massiah).
32. 377 U.S. 201 (1964). See §25.01, supra.
33. See Brewer v. Williams, 430 U.S. 387 (1977).
34. 384 U.S. 436 (1966). See Chapter 24, supra.
35. Texas v. Cobb, 532 U.S. 162, 171 n.2 (2001).
36. There is one marginal exception to this statement. In Escobedo v. Illinois, 378 U.S. 478 (1964), the Court applied the
Sixth Amendment to a post-arrest custodial interrogation that occurred prior to initiation of adversary judicial criminal
proceedings. However, the Court later re-interpreted Escobedo as a Fifth Amendment self-incrimination case. The holding of
Escobedo is now limited to its facts. See §24.03, supra.
37. Moran v. Burbine, 475 U.S. 412, 432 (1986).
38. Texas v. Cobb, 532 U.S. at 171 n.2.
39. See §25.04, infra.
40. Montejo v. Louisiana, 556 U.S. 778, 786 (2009). See §25.06, infra.
41. 430 U.S. 387 (1977).
42. Id. at 398 (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)).
43. Rothgery v. Gillespie County, 554 U.S. 191, 194 (2008). This rule applies whether or not a prosecutor is present at, or
even aware of, the proceeding. Id. at 194–195.
44. See Note 36, supra.
45. Rothgery v. Gillespie County, 554 U.S. at 211.
46. Kirby v. Illinois, 406 U.S. 682, 689 (1972).
47. Professor Richard Uviller has pointed out that “[n]either semantics nor reason obstructs the designation of an arrest as
the point of accusation in the constitutional sense.” Uviller, Note 2, supra, at 1167. Indeed, according to the text of the Sixth
Amendment, the “accused” in all “criminal prosecutions” is entitled to a speedy trial, yet this right has been interpreted to
attach at the time of arrest or the filing of an indictment or information, whichever comes first. United States v. Marion, 404
U.S. 307 (1971).
48. Rothgery v. Gillespie County, 554 U.S. at 221 (dissenting opinion).
49. Although no other member of the Court signed on to Justice Thomas's dissent, Chief Justice Roberts and Justice Scalia,
in a concurring opinion in Rothgery, characterized Justice Thomas's historical analysis as “compelling.” However, in their
view, “[a] sufficient case [had] not been made for revisiting [prior] precedents.” Id. at 213.
50. For an explanation of these pretrial stages, see §1.03[C], supra.
51. 554 U.S. 191 (2008).
52. Id. at 198. In a concurring opinion in Rothgery, Justice Alito, with whom Chief Justice Roberts and Justice Scalia
joined, stated that “I interpret the Sixth Amendment to require the appointment of counsel only after the defendant's
prosecution has begun, and then only as necessary to guarantee the defendant effective assistance at trial.” Id. at 217.
53. See §28.02, infra.
54. See generally Howe, Note 2, supra.
55. 430 U.S. 387 (1977).
56. 501 U.S. 171, 175 (1991).
57. 532 U.S. 162 (2001); contra under the state constitution, Jewell v. State, 957 N.E.2d 625 (Ind. 2011) (a police officer
may not question a suspect about an uncharged offense that is “inextricably intertwined” with a charged offense for which the
accused has counsel).
58. The Cobb Court explained that “[t]he Court's opinion [in Brewer v. Williams] ... simply did not address the significance
of the fact that the suspect had been arraigned only on the abduction charge, nor did the parties in any way argue this question.”
In view of Cobb, W’s conviction for murder should not have been overturned.
59. See generally 2 Joshua Dressler & Alan C. Michaels, Understanding Criminal Procedure chapter 14 (4th ed. 2006).
60. Blockburger v. United States, 284 U.S. 299 (1932).
61. Of course, the words “unlawful force” are not found in the ordinary definition of murder, but it is an implicit aspect of
the concept of killing another person. However, even this fairly straightforward example demonstrates, as Justice Breyer
observed in his dissent in Cobb, that “the simple-sounding Blockburger test has proved extraordinarily difficult to administer in
practice. Judges, lawyers, and law professors often disagree about how to apply it.” Indeed, one can imagine a murder based on
an omission, in which “unlawful force” by the defendant is not involved!
62. Howe, Note 2, supra, at 149–150.
63. Even though the Sixth Amendment would not apply to the uncharged assault of the cashier in the hypothetical set out in
the text, the Cobb majority suggested that it is fair to assume that an individual charged with robbery will be informed of her
Miranda rights and, therefore, retain the ability to refuse any and all police questioning in a custodial interrogation context
(since Miranda is not offense-specific). Moreover, a person in such circumstances is likely to have met with her counsel on the
charged offense, and thus she has the opportunity to receive her lawyer's advice whether to invoke her right to silence in regard
to uncharged offenses.
64. United States v. Lanza, 260 U.S. 377 (1922).
65. Heath v. Alabama, 474 U.S. 82 (1985).
66. E.g., United States v. Avants, 278 F.3d 510 (5th Cir. 2002); United States v. Coker, 433 F.3d 39 (1st Cir. 2005).
67. Coker, 433 F. 3d 39.
68. See generally Kamisar, Note 2, supra; Welsh S. White, Interrogation Without Questions: Rhode Island v. Innis and
United States v. Henry, 78 Mich. L. Rev. 1209 (1980).
69. 377 U.S. 201 (1964).
70. 430 U.S. 387 (1977).
71. 446 U.S. 291 (1980).
72. Id. at 300 n. 4 (emphasis added).
73. 540 U.S. 519 (2004).
74. See §24.08, supra.
75. Fellers v. United States, 540 U.S. 519, 524 (2004) (“We have consistently applied the deliberate-elicitation standard in
... Sixth Amendment cases....”).
76. 447 U.S. 264 (1980).
77. E.g., Model Penal Code §2.02(2)(c) (“A person acts recklessly ... when he consciously disregards a substantial and
unjustifiable risk [that incriminating statements] will result from his conduct”).
78. 474 U.S. 159 (1985).
79. The last name of the surreptitious agent in Moulton—Colson—was the same as in Massiah, although the two Colsons
were apparently unrelated. Id. at 172 n.8.
80. The government also argued that the statements were admissible because they were obtained during a legitimate
investigation of the proposed murder, for which the Sixth Amendment clearly did not apply. This issue is considered at
§25.07[B], infra.
81. Maine v. Moulton, 474 U.S. at 176.
82. It is worth observing that, in Fellers v. United States, 540 U.S. 519, 524 (2004), the Court quoted only the “deliberate
elicitation” language, and not the broader text, of United States v. Henry, when it observed that “[w]e have consistently applied
the deliberate-elicitation standard” in Sixth Amendment right-to-counsel cases.
83. The facts of Massiah are set out in §25.01[B], supra; for the facts in Henry and Moulton, see §25.05[B][2], supra.
84. See §25.05[A], supra, for the facts.
85. 477 U.S. 436 (1986).
86. The facts in Brewer v. Williams suggest some lurking issues undeveloped by the Court in that case: W did not
immediately respond to the “Christian burial speech” given in the police vehicle (see the text following Note 70, supra).
Although the exact timing is unstated, seemingly some considerable time passed before W decided to speak about the
whereabouts of the victim. Thus, the first question: Did the officer's deliberate conduct in fact elicit W’s statements or were
they a free will act of a conscience-stricken man that coincidentally followed the speech? Or perhaps the burial speech
triggered W’s conscience, which in turn caused him to speak, but then the issue lurking in the “elicitation” area is the extent to
which the concept of proximate causation—here, the accused's own reasons for “coming clean”—should inform the analysis.
87. United States v. Henry, 447 U.S. 264, 273 (1980).
88. 377 U.S. 201 (1964). See §25.01, supra.
89. 447 U.S. 264 (1980). See §25.05[B][2], supra.
90. 474 U.S. 159 (1985). See §25.05[B][2], supra.
91. As for statements used for impeachment purposes, see §25.07[C], infra.
92. Michigan v. Harvey, 494 U.S. 344, 348–49 (1990) (applying the test first announced in Johnson v. Zerbst, 304 U.S. 458
(1938)).
93. 430 U.S. 387 (1977).
94. See §25.05[A], supra.
95. But see Note 86, supra.
96. For a fascinating account of the facts regarding the crime, the Christian burial speech, and defense counsel's trial
strategy, much of which is not evident in the Supreme Court opinion, see Phillip E. Johnson, The Return of the “Christian
Burial Speech” Case, 32 Emory L.J. 349 (1983); Yale Kamisar, Brewer v. Williams—A Hard Look at a Discomfiting Record,
66 Geo. L.J. 209 (1977); see also Thomas N. McInnis, The Christian Burial Case (2001).
97. 475 U.S. 625 (1986).
98. 451 U.S. 477 (1981). See §24.10[B][3][a], supra.
99. Michigan v. Harvey, 494 U.S. 344, 355 (1990) (dissenting opinion); Patterson v. Illinois, 487 U.S. 285, 302 (1988)
(dissenting opinion).
100. Michigan v. Jackson, 475 U.S. at 632 (quoting Maine v. Moulton, 474 U.S. 159, 176 (1985)).
101. Michigan v. Harvey, 494 U.S. 344, 349–50 (1990); see also Texas v. Cobb, 532 U.S. 162, 175 (2001) (Jackson “was a
wholesale importation of the Edwards rule into the Sixth Amendment”) (concurring opinion of Kennedy, J.).
102. Michigan v. Harvey, 494 U.S. 344 (1990).
103. 532 U.S. 162 (2001).
104. Id. at 176.
105. Id. at 171 n.2 (2001).
106. 556 U.S. 778 (2009). Contra under state constitution, State v. Bevel, 745 S.E.2d 257 (W.Va. 2013) (retaining the rule of
Michigan v. Jackson under the state constitution).
107. The Court acknowledged that Edwards only applies when Miranda applies, namely, when the suspect is in custody,
whereas the Sixth Amendment right to counsel also applies when an accused is not in custody. Therefore, to that extent,
Jackson’s overruling denies to some persons the bright-line benefits of that case. Justice Scalia stated that such “uncovered
situations are the least likely to pose a risk of coerced waivers. When a defendant is not in custody, he is in control, and need
only shut his door or walk away to avoid police badgering.” Montejo, 556 U.S. at 795.
108. Id. at 793.
109. Id. (quoting Moran v. Burbine, 475 U.S. 412, 426 (1986)).
110. 487 U.S. 285 (1988). See §25.06[D][2], immediately infra, for more details.
111. Montejo, 556 U.S. at 790. Presumably, however, a prosecutor, as distinguished from a police officer, who approached a
counseled defendant would be subject to ethical constraints, but even if she violated an ethical canon, the Constitution would
not be violated and, consequently, any statement received by the prosecutor would not be barred from use at trial.
112. See §§24.10[A][3][b] (Miranda), and 22.02 (due process), supra.
113. 487 U.S. 285 (1988).
114. The Court stated that “we do not address the question whether or not an accused must be told that he has been indicted
before a postindictment Sixth Amendment waiver will be valid.” Id. at 296 n.8.
115. Contra, under the state constitution, State v. Sanchez, 609 A.2d 400 (N.J. 1992) (the “perfunctory recitation” of
Miranda warnings does not provide sufficient information to the accused to make a knowing and intelligent waiver of the Sixth
Amendment right to counsel).
116. See generally Gardner, Note 2, supra; Arnold H. Loewy, Police-Obtained Evidence and the Constitution:
Distinguishing Unconstitutionally Obtained Evidence from Unconstitutionally Used Evidence, 87 Mich. L. Rev. 907 (1989);
James J. Tomkovicz, The Massiah Right to Exclusion: Constitutional Premises and Doctrinal Implications, 67 N.C. L. Rev.
751 (1989).
117. See §25.02, supra.
118. See §20.03, supra.
119. See §§22.03[C][2] (due process), 23.05[B][3][a] (self-incrimination), supra.
120. 377 U.S. 201 (1964).
121. 474 U.S. 159 (1985).
122. 556 U.S. 586 (2009).
123. Id. at 592.
124. See §25.04, supra.
125. 474 U.S. 159, 180 (1985).
126. What constitutes a knowing circumvention of the accused's right to counsel? The Court has not answered this question
in this context. For example, what if the police only question D about Offense 2 and are genuinely surprised when D’s answer
includes statements relevant to Offense 1? Seemingly, this is not a knowing circumvention of D’s right to counsel and,
therefore, it would follow that the police might be able to use the statement against D. On the other hand, the Supreme Court
might prefer to avoid the near-impossible effort of divining an interrogator's knowledge or purpose and conclude that there is a
knowing circumvention if an interrogator is aware that her questioning might lead to statements about Offense 1.
127. For the answer to this question in the context of the Fourth Amendment, see §20.05[B][2][b], supra; regarding Miranda
violations, see §24.12[A], supra; regarding the Due Process Clause, see §§22.03[C][2][a]; and see §23.05[B][3][b][I] for
discussion of the privilege against self-incrimination.
128. 556 U.S. 586 (2009).
129. Id. at 593 (quoting Walder v. United States, 347 U.S. 62, 65 (1954)).
130. See generally §20.08, supra.
131. 467 U.S. 431 (1984).
132. 430 U.S. 387 (1977). See §25.05[A], supra.
133. Rhode Island v. Innis, 446 U.S. 291, 300 n.4 (1980).
134. Id.
135. Patterson v. Illinois, 487 U.S. 285, 297 (1988).
136. Id.
Chapter 26
1. See generally Elizabeth Loftus, Eyewitness Testimony (1979); Brandon L. Garrett, Judging Innocence, 108 Colum. L.
Rev. 55 (2008); Felice J. Levine & June Louin Tapp, The Psychology of Criminal Identification: The Gap from Wade to Kirby,
121 U. Pa. L. Rev. 1079 (1973); Steve Penrod & Brian Cutler, Witness Confidence and Witness Accuracy: Assessing Their
Forensic Relation, 1 Psychol. Pub. Pol'y, and L. 817 (1995); Sandra Guerra Thompson, Judicial Blindness to Eyewitness
Misidentification, 93 Marquette L. Rev. 639 (2009); Gary L. Wells, Police Lineups: Data, Theory, and Policy, 7 Psychol. Pub.
Pol'y & L. 791 (2001); Gary L. Wells & Eric P. Seelau, Eyewitness Identification: Psychological Research and Legal Policy on
Lineups, 1 Psychol. Pub. Pol'y, & L. 765 (1995); Fredric D. Woocher, Note, Did Your Eyes Deceive You? Expert Psychological
Testimony on the Unreliability of Eyewitness Identification, 29 Stan. L. Rev. 969 (1977).
2. 388 U.S. 218, 228 (1967).
3. Perry v. New Hampshire, 565 U.S. 228, 245 (2012).
4. Edwin M. Borchard, Convicting the Innocent 3–5 (1932).
5. Arye Rattner, Convicted but Innocent: Wrongful Conviction and the Criminal Justice System, 12 Law & Hum. Behav.
283, 289 (1988).
6. See Samuel R. Gross et al., Exonerations in the United States 1989 through 2003, 95 J. Crim. L. & Criminology 523,
542 (2005).
7. Garrett, Note 1, supra, at 60.
8. E.g., Ludovic Kennedy, The Airman and the Carpenter 176–77 (1985) (describing a lineup in which D, a suspect in the
kidnapping and murder of the Lindbergh baby, was identified; the police told X, an eyewitness to certain critical events, prior to
the lineup that “we've got the right man,” “[t]here isn't a man in this room who isn't convinced he is the man,” and “don't say
anything until I ask you if he is the man”; then, D, a short man, was placed “between two beefy, 6-foot [uniformed] New York
policemen” for identification).
9. Woocher, Note 1, supra, at 970; see also Perry v. New Hampshire, 565 U.S. 228, 243–4 (2012), in which Justice
Ginsburg, writing for eight members of the Court, observed:
[M]any … factors [beyond purposeful suggestive acts by the police] bear on “the likelihood of misidentification”—for
example, the passage of time between exposure to and identification of the defendant, whether the witness was under
stress when he first encountered the suspect, how much time the witness had to observe the suspect, how far the witness
was from the suspect, whether the suspect carried a weapon, and the race of the suspect and the witness.
10. Levine & Tapp, Note 1, supra, at 1087–88.
11. See id. at 1096–97.
12. See generally Sherri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934
(1984); Special Theme: The Other-Race Effect and Contemporary Criminal Justice: Eyewitness Identification and Jury
Decision Making, 7 Psychol. Pub. Pol'y & L. 3–200 (2001); see also State v. Allen, 255 P.3d 784, 787 (Wash. App. 2011)
(describing a cross-racial identification as an “especially problematic identification,” and citing studies in support of this
proposition).
13. Loftus, Note 1, supra, at 36–37.
14. Levine & Tapp, Note 1, supra, at 1108.
15. Id.
16. Woocher, Note 1, supra, at 983.
17. Id. at 986.
18. Loftus, Note 1, supra at 144.
19. R.S. Malpass & P.G. Devine, Eyewitness Identification: Lineup Instructions and the Absence of the Offender, 66 J.
Applied Psychol. 482 (1981).
20. See also Siegfried L. Sporer, Eyewitness Identification Accuracy, Confidence, and Decision Times in Simultaneous and
Sequential Lineups, 78 J. Applied Psychol. 22 (1993) (misidentifications occurred 39 percent of the time when eyewitnesses
looked at photographs of suspects one at a time; the error rate rose to 72 percent when they were shown the same pictures
together and, therefore, believed that they should pick the person who most looked like the culprit).
21. Woocher, Note 1, supra, at 988.
22. E.g., Gilbert v. California, 388 U.S. 263 (1967) (G was identified in an auditorium containing about 100 witnesses).
23. Woocher, Note 1, supra, at 988–89.
24. Gary L. Wells, Effects of Expert Psychological Advice on Human Performance in Judging the Validity of Eyewitness
Testimony, 4 Law & Hum. Behav. 275, 278 (1980).
25. Penrod & Cutler, Note 1, supra, at 822, 819–22 (summarizing studies).
26. Elizabeth F. Loftus, The Incredible Eyewitness, Psychol. Today, Dec. 1974, at 117–18 (as reported in Cindy J. O'Hagan,
Note, When Seeing is Not Believing: The Case for Eyewitness Expert Testimony, 81 Geo. L.J. 741, 749–50 (1993)).
27. Wells and Seelau, Note 1, supra.
28. Nat'l Inst. of Justice, U.S. Dep't of Justice, Eyewitness Evidence: A Trainer's Manual for Law Enforcement (2003).
29. Gina Kolata & Iver Peterson, New Way to Insure Eyewitnesses Can ID The Right Bad Guy, N.Y. Times, July 21, 2001,
at A1.
30. State v. Delgado, 902 A.2d 888 (N.J. 2006).
31. State v. Henderson, 27 A.3d 872 (N.J. 2011).
32. State v. Ledbetter, 881 A.2d 290 (Conn. 2005); see also State v. Dubose, 699 N.W.2d 582 (Wis. 2005) (deploring the
use of “showups,” in which a suspect is displayed one-on-one to the eyewitness, and recommending that “procedures similar to
those proposed by the Wisconsin Innocence Project [be adopted by police] to help make showup identifications as non-
suggestive as possible”; those recommendations include: showups not be conducted in locations, such as police stations or
squad cars, or in a manner (e.g., handcuffed) that implies the suspect's guilt; a warning similar to that set out in Ledbetter,
supra, should be given to the eyewitness; and the suspect should be shown to the witness only once). See also Commonwealth
v. Crayton, 21 N.E.3d 157 (Mass. 2014) (abrogating prior law and holding that, where a trial witness has not participated
before trial in an identification procedure, an in-court identification is deemed unnecessarily suggestive and, therefore,
inadmissible unless there is good reason for its admission).
33. E.g., State v. DuBray, 77 P.3d 247 (Mont. 2003) (holding that a trial court may not exclude expert testimony “when no
substantial corroborating evidence exists” to support an eyewitness identification); State v. Copeland, 226 S.W.3d 287 (Tenn.
2007) (overruling itself because “times have changed,” judges now have discretion to permit introduction of expert testimony
on the issue of the reliability of eyewitness identifications); State v. Guilbert, 49 A.3d 705 (Conn. 2012) (departing from prior
Connecticut Supreme Court decisions that “disfavored” eyewitness testimony on the grounds that “mistaken eyewitness
identification is by far the leading cause of wrongful convictions.”)
34. Perry v. New Hampshire, 565 U.S. 228, 246 (2012); e.g., State v. Cabagbag, 277 P.3d 1027 (Hawaii 2012) (a trial court
is required to grant a defendant's request to give a cautionary instruction on the unreliability of eyewitness testimony); State v.
Cromedy, 727 A.2d 457 (N.J. 1999) (in a case in which a defendant's guilt is based almost exclusively on cross-racial
identification by an eyewitness, the accused is entitled as a matter of law to a jury instruction on the pitfalls of such
identifications).
35. See, e.g., Sandra Guerra Thompson, Daubert Gatekeeping for Eyewitness Identifications, 65 SMU L. Rev. 593 (2012).
36. Joseph D. Grano, Kirby, Biggers and Ash: Do Any Constitutional Safeguards Remain Against the Danger of Convicting
the Innocent?, 72 Mich. L. Rev. 719 (1974).
37. United States v. Wade, 388 U.S. 218 (1967); Kirby v. Illinois, 406 U.S. 682 (1972).
38. A “corporeal” identification procedure is one in which a suspect is physically presented to an eyewitness for
identification. Typically, this is done by displaying the suspect in a lineup or by bringing him to the victim or eyewitness for a
one-on-one confrontation.
39. For a definition of “adversary judicial criminal proceedings,” see § 25.03, supra.
40. The waiver is valid if he voluntarily, knowingly, and intelligent relinquishes his right to counsel. See Johnson v. Zerbst,
304 U.S. 458 (1938).
41. Wade, 388 U.S. at 241.
42. Id.
43. 388 U.S. 218 (1967).
44. 287 U.S. 45 (1932).
45. 406 U.S. 682 (1972).
46. United States v. Wade, 388 U.S. 218 (1967).
47. See § 25.03, supra.
48. Wade, 388 U.S. at 227.
49. Joseph D. Grano, A Legal Response to the Inherent Dangers of Eyewitness Identification Testimony in Eyewitness
Testimony: Psychological Perspectives (Gary L. Wells & Elizabeth F. Loftus eds., 1984), at 321.
50. In Wade, Justice White warned that the counsel rule announced in that case “applies … regardless of when the
identification occurs, … and whether before or after indictment or information.”
51. One court has so held. State v. Jones, 849 So. 2d 438 (Fla. App. 2003).
52. See generally Grano, Note 36, supra.
53. 413 U.S. 300 (1973).
54. 388 U.S. 218 (1967). See § 27.02[B][1], supra.
55. Ash, 413 U.S. at 312.
56. See § 26.01[B], supra.
57. See generally Timothy P. O'Toole & Giovanni Shay, Manson v. Brathwaite Revisited: Towards a New Rule of Decision
for Due Process Challenges to Eyewitness Identification Procedures, 41 Val. U. L. Rev. 109 (2006); Charles A. Pulaski, Neil v.
Biggers: The Supreme Court Dismantles the Wade Trilogy's Due Process Protection, 26 Stan. L. Rev. 1097 (1974).
58. Stovall v. Denno, 388 U.S. 293 (1967); Neil v. Biggers, 409 U.S. 188 (1972). Later the Supreme Court “[s]ynthesiz[ed]
previous decisions,” describing “the approach appropriately used to determine whether the Due Process Clause requires
suppression of an eyewitness identification tainted by police arrangement”: first, “due process concerns arise only when law
enforcement officers use an identification procedure that is both suggestive and unnecessary”; and, second, “[e]ven when the
police use such a procedure … suppression of the resulting identification is not the inevitable consequence.” Instead, the Due
Process Clause “requires courts to assess … whether [the] improper police conduct created a ‘substantial likelihood of
misidentification.’” Perry v. New Hampshire, 565 U.S. 228, 239 (2012).
59. 565 U.S. 228 (2012).
60. For example, in Perry, the police received a call at night from a citizen reporting that an African-American male was
breaking into automobiles in an apartment parking lot. An officer who arrived discovered P, an African-American. between
two parked cars holding a car stereo in his hands and a metal bat on the ground. Another officer went to the apartment building
to talk to an eyewitness. When he asked for a more specific description of the suspect, the witness “pointed to her kitchen
window and said the person she saw … was [now] standing in the parking lot [visible through the window, across the street]
next to the police officer.” There were reasons to be concerned about this identification, as noted by the trial court: (1) the
parking lot was dark; (2) the suspect was standing next to a police officer; (3) the suspect was the only African-American male
in the vicinity; and (4) the witness was later unable to pick P out of a photographic array. The trial court held that, despite these
concerns, the Due Process Clause was not violated because the police did not arrange the suggestive identification procedure.
61. Perry, 565 U.S. at 233. Justice Ginsburg wrote that “[o]ur unwillingness to enlarge the domain of due process … rests,
in large part, on our recognition that the jury, not the judge, traditionally determines the reliability of evidence.” Id. at 245.
62. 388 U.S. 293 (1967).
63. 432 U.S. 98, 114 (1977); contra, under the state constitution, Commonwealth v. Johnson, 650 N.E.2d 1257 (Mass.
1995) (requiring per se exclusion of unnecessarily suggestive identifications, regardless of the reliability of the identification
process); People v. Adams, 423 N.E.2d 379 (N.Y. 1981) (same).
64. Neil v. Biggers, 409 U.S. 188, 199–200 (1972).
65. Simmons v. United States, 390 U.S. 377, 384 (1968) (emphasis added).
Chapter 27
Entrapment
1. See generally Ronald J. Allen et al., Clarifying Entrapment, 89 J. Crim. L. & Criminology 407 (1999); Jonathan C.
Carlson, The Act Requirement and the Foundations of the Entrapment Defense, 73 Va. L. Rev. 1011 (1987); Joseph A.
Colquitt, Rethinking Entrapment, 41 Am. Crim. L. Rev. 1389 (2004); Anthony M. Dillof, Unraveling Unlawful Entrapment, 94
J. Crim. L. & Criminology 827 (2004); Paul Marcus, The Development of Entrapment Law, 33 Wayne L. Rev. 5 (1986); Roger
Park, The Entrapment Controversy, 60 Minn. L. Rev. 163 (1976); Louis Michael Seidman, The Supreme Court, Entrapment,
and Our Criminal Justice Dilemma, 1981 Sup. Ct. Rev. 111; Dru Stevenson, Entrapment by Numbers, 16 U. Fla. J.L. & Pub.
Policy 1 (2005); Jessica A. Roth, The Anomaly of Entrapment, 91 Wash. U. L. Rev. 979 (2014).
2. Carlson, Note 1, supra, at 1013.Other data indicate that entrapment cases are concentrated in a small number of states
(California, Florida, Michigan, Ohio, Tennessee, Texas, Virginia, and Washington), and are declining overall throughout the
country, having peaked in the 1980s and early 1990s. Stevenson, Note 1, supra, at 2, 16.
3. 287 U.S. 435 (1932).
4. 356 U.S. 369 (1958).
5. 411 U.S. 423 (1973).
6. Sorrells, 287 U.S. at 441.
7. Sherman, 356 U.S. at 372 (quoting Sorrells, 287 U.S. at 442).
8. Id. at 372–73.
9. See generally Damon D. Camp, Out of the Quagmire After Jacobson v. United States: Towards a More Balanced
Entrapment Standard, 83 J. Crim. L. & Criminology 1055 (1993); Paul Marcus, Presenting, Back From the [Almost] Dead, the
Entrapment Defense, 47 Fla. L. Rev. 205 (1996); Paul Marcus, Proving Entrapment Under the Predisposition Test, 14 Am. J.
Crim. L. 53 (1987).
10. 503 U.S. 540 (1992).
11. In Jacobson, id., the Court gratuitously described the defendant as “a 56-year-old veteran-turned-farmer, who supported
his elderly father in Nebraska.” Presumably this description was included to make the reader more sympathetic to the
defendant, a purchaser of child pornography, whose conviction the Supreme Court reversed.
12. Sherman v. United States, 356 U.S. 369, 375 (1958) (internal quotation marks omitted).
13. On the other hand, there is some support for the proposition that a defendant is entitled to introduce evidence of prior
good acts or conduct, including evidence of her lack of a criminal or arrest record, to support an entrapment claim. E.g., United
States v. Thomas, 134 F.3d 975 (9th Cir. 1998); Sykes v. State, 739 So. 2d 641 (Fla. App. 1999).
14. 411 U.S. 423 (1973).
15. 287 U.S. 435 (1932).
16. 356 U.S. 369 (1958).
17. 503 U.S. 540 (1992).
18. Camp, Note 9, supra, at 1083.
19. E.g., People v. Watson, 990 P.2d 1031 (Cal. 2000) (in a sting operation to catch car thieves, the police left a vehicle in a
parking lot, unlocked and with the keys in the ignition; held: no entrapment).
20. United States v. Russell, 411 U.S. 423, 435 (1973).
21. Sorrells v. United States, 287 U.S. 435, 446 (1932).
22. Id.
23. United States v. Hollingsworth, 9 F.3d 593, 598 (7th Cir. 1993) (opinion of Posner, J.), aff'd en banc, 27 F.3d 1196 (7th
Cir. 1994).
24. Park, Note 1, supra, at 178 (footnote omitted). Although Professor Park's survey of the case law is quite dated, review
of more recent appellate decisions does not suggest a different conclusion.
25. Regarding the attitudes of scholars, see Stevenson, Note 1, supra, at 2 (and cites therein).
26. 287 U.S. 435 (1932).
27. 356 U.S. 369 (1958).
28. 411 U.S. 423 (1973).
29. Sherman, 356 U.S. at 384.
30. People v. Jamieson, 461 N.W.2d 884, 891 (Mich. 1990); see also United States v. Russell, 411 U.S. 423, 434 (1973)
(the question is whether the police conduct “might have seduced a hypothetical individual who was not … predisposed” to
commit the crime).
31. Park, Note 1, supra, at 174.
32. 287 U.S. 435 (1932).
33. 411 U.S. 423 (1973). The facts of Russell are set out in the text following Note 14, supra.
34. American Law Institute, Model Penal Code and Commentaries, Comment to § 2.13, at 406–07 (1985).
35. Model Penal Code § 2.13(2).
36. 2 Paul H. Robinson, Criminal Law Defenses § 209(c)(2) (1984).
37. State v. Vallejos, 945 P.2d 957, 961 (N.M. 1997).
38. Seidman, Note 1, supra, at 115 n.13.
39. Id. at 112.
40. Id. at 129–30; see also Sherman v. United States, 356 U.S. 369, 379 (1958) (Frankfurter J., dissenting) (the legislative
intent theory is “sheer fiction”).
41. 411 U.S. 423 (1973).
42. Joshua Dressler, Understanding Criminal Law § 23.01 (6th ed. 2012).
43. American Law Institute, Model Penal Code and Commentaries, Comment to § 2.13, at 406 (1985).
44. Evidence of prior convictions apparently has a powerful impact on jurors in “subjective entrapment” trials. See Eugene
Borgida & Roger C. Park, The Entrapment Defense, 12 Law & Hum. Behav. 19 (1988) (simulated-jury study).
45. Park, Note 1, supra, at 248.
46. See § 27.01, supra.
47. California v. Minjares, 443 U.S. 916, 924 (1979) (dissenting).
48. See Seidman, Note 1, supra, at 136–46; Park, Note 1, supra, at 225–39.
49. These police actions are not fanciful. See R.T. Rybak, Officer Nabs Prostitute Suspect with ‘Unbecoming’ Technique,
Minneapolis Trib., Aug. 30, 1980, at 3A.
50. See generally Tim A. Thomas, Annotation, What Conduct of Federal Law Enforcement Authorities in Inducing or Co-
Operating in Criminal Offense Raises Due Process Defense Distinct from Entrapment, 97 A.L.R. Fed. 273 (1990).
51. 411 U.S. 423 (1973).
52. 425 U.S. 484 (1976).
53. See especially Thomas, Note 50, supra.
54. United States v. Tucker, 28 F.3d 1420 (6th Cir. 1994).
55. State v. Lively, 921 P.2d 1035, 1044–1045 (Wash. 1996).
56. E.g., United States v. Twigg, 588 F.2d 373 (3d Cir. 1978) (due process violation: an informant suggested to T that he set
up a “speed” laboratory, and the government supplied equipment, raw materials, and expertise at no cost, and even rented a
farm for the production of illegal amphetamines); State v. Lively, 921 P.2d 1035 (Wash. 1996) (a government agent took
advantage of L, a 21-year-old vulnerable single mother who attended Alcoholics Anonymous and Narcotics Anonymous
meetings, by befriending her and beginning a sexual relationship in order to involve her in police-sponsored drug activities);
see United States v. Cuervelo, 949 F.2d 559 (2d Cir. 1991) (in an international drug importation case, C was entitled to a
hearing on her allegations of “outrageous governmental conduct,” based on her claim that an undercover agent “sexually
entrapped” her; dismissal of prosecution would be appropriate if she showed that the “government consciously set out to use
sex as a weapon in its investigatory arsenal, or acquiesced in such conduct for its purposes upon learning that such a
relationship existed,” that the agent initiated the sexual relationship or allowed it to continue in order to further the
investigation, and that the relationship was “entwined” with the criminal events).
Chapter 28
1. Moran v. Burbine, 475 U.S. 412, 468 (1986) (Stevens, J., dissenting). Indeed, some people believe that he has no proper
role to play during certain police-citizen encounters, such as during interrogations and at lineups. See §§ 25.01[C] (police
interrogations), § 26.02[C] (lineups), supra.
2. Gideon v. Wainwright, 372 U.S. 335, 344 (1963). This is not to say that the presence of defense counsel, even highly
competent defense counsel, can guarantee that a trial will be fair and reliable. See generally Alexandra Natapoff, Gideon
Skepticism, 70 Wash. & Lee L. Rev. 1049 (2013) (warning against such an assumption).
3. See generally Pamela R. Metzger, Beyond the Bright Line: A Contemporary Right-to-Counsel Doctrine, 97 Nw. U. L.
Rev. 1635 (2003).
4. This issue is discussed more fully in § 25.03, supra.
5. See Coleman v. Alabama, 399 U.S. 1 (1970); United States. v. Ash, 413 U.S. 300, 321 (1973) (Stewart, J. concurring).
6. See Rothgery v. Gillespie County, 554 U.S. 191, 211–212 (2008).
7. Gerstein v. Pugh, 420 U.S. 103, 122 (1975).
8. United States v. Wade, 388 U.S. 218, 226 (1967). See § 27.02, supra discussing Wade and its progeny).
9. Rothgery v. Gillespie County, 554 U.S. at 212 n.16.
10. Massiah v. United States, 377 U.S. 201 (1964). See § 25.01, 25.02, supra (discussing Massiah rule).
11. Wade, 388 U.S. 218.
12. Coleman v. Alabama, 399 U.S. 1 (1970).
13. Hamilton v. Alabama, 368 U.S. 52 (1961).
14. Estelle v. Smith, 451 U.S. 454, 469–71 (1981).
15. Missouri v. Frye, 566 U.S. 134 (2012).
16. Padilla v. Kentucky, 559 U.S. 431 (2010).
17. Mempa v. Rhay, 389 U.S. 128 (1967).
18. United States. v. Ash, 413 U.S. 300, 321 (1973). See § 27.03, supra (discussing Ash).
19. Gilbert v. California, 388 U.S. 263, 266–67 (1967).
20. See generally American Bar Association, ABA Standards for Criminal Justice: Prosecution and Defense Function
117–248 (3d ed. 1993);William M. Beaney, The Right to Counsel in American Courts (1955); Barbara Allen Babcock, The
Duty to Defend, 114 Yale L. J. 1489 (2005); Dennis E. Curtis & Judith Resnick, Colloquium: What Does It Mean to Practice
Law “In the Interests of Justice” in the Twenty-First Century?: Grieving Criminal Defense Lawyers, 70 Fordham L. Rev. 1615
(2002); Anne Bowen Poulin, Strengthening the Criminal Defendant's Right to Counsel, 28 Cardozo L. Rev. 1213 (2006); Abbe
Smith, Defending: The Case for Unmitigated Zeal on Behalf of People Who Do Terrible Things, 28 Hofstra L. Rev. 925 (2000);
Gerald F. Uelmen, 2001: A Train Ride: A Guided Tour of the Sixth Amendment Right to Counsel, 58 Law & Contemp. Probs.
13 (1995). For a thoughtful dialogue on the role of defense counsel in representing “not just the damned but the damnable,” see
Michael E. Tigar, Defending, 74 Tex. L. Rev. 101 (1995), and a response by Monroe H. Freedman, The Lawyer's Moral
Obligation of Justification, 74 Tex. L. Rev. 111 (1995).
21. Scott v. Illinois, 440 U.S. 367, 370 (1979); Chandler v. Fretag, 348 U.S. 3, 10 (1954) (holding that “a defendant must be
given a reasonable opportunity to employ and consult with counsel”).
22. Gideon v. Wainwright, 372 U.S. 335 (1963).
23. See generally Deborah L. Rhode, Access to Justice 122–32 (2004); Mary Sue Backus and Paul Marcus, The Right to
Counsel in Criminal Cases, A National Crisis, 57 Hastings L. J. 1031 (2006); Stephen B. Bright, Neither Equal Nor Just: The
Rationing and Denial of Legal Services to the Poor When Life and Liberty Are at Stake, 1997 Ann. Surv. Am. L. 783;
Committee to Review the Criminal Justice Act, Report of the Committee to Review the Criminal Justice Act, reprinted in 52
Crim. L. Rep. (BNA) 2265 (1993); Adam M. Gershowitz, Raise the Proof: A Default Rule for Indigent Defense, 40 Conn. L.
Rev. 85 (2007); Lawrence C. Marshall, Gideon's Paradox, 73 Fordham L. Rev. 955 (2004); National Right to Counsel
Committee, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel (2009) (available at:
www.constitutionproject.org); Stephen J. Schulhofer & David D. Friedman, Rethinking Indigent Defense: Promoting Effective
Representation Through Consumer Sovereignty and Freedom of Choice for All Criminal Defendants, 31 Am. Crim. L. Rev. 73
(1993); Robert L. Spangenberg & Marea L. Beeman, Indigent Defense Systems in the United States, 58 Law & Contemp.
Probs. 31 (1995).
24. Griffin v. Illinois, 351 U.S. 12, 19 (1956).
25. Charles J. Ogletree Jr., An Essay on the New Public Defender for the 21st Century, 58 Law & Contemp. Probs. 83
(1995).
26. 304 U.S. 458 (1938).
27. 372 U.S. 335 (1963).
28. See generally Beaney, Note 20, supra; Bertram F. Willcox & Edward J. Bloustein, Account of a Field Study in a Rural
Area of the Representation of Indigents Accused of Crime, 59 Colum. L. Rev. 551 (1959).
29. See, e.g., American Bar Association Standing Committee on Legal Aid and Indigent Defendants, Gideon's Broken
Promise: America's Continuing Quest for Equal Justice (2004) (detailing problems with indigent defense systems and
characterizing indigent defense as “in a state of crisis”), Backus & Marcus, Note 23, supra (same); National Right to Counsel
Committee, Note 21, supra (same). On the other hand, pre-2000 evidence suggests that indigents provided with counsel and
individuals with private counsel were convicted at about the same rate and, putting state drug prosecutions to one side, received
about the same sentences. See Caroline Wolf Harlow, U.S. Dep't of Justice, Bureau of Justice Statistics, Defense Counsel in
Criminal Cases (2000).
30. 287 U.S. 45 (1932).
31. Willcox & Bloustein, Note 28, supra, at 551. The case, which has come to be known as the “Scottsboro Case” (the site
of the trial), has been the subject of voluminous scholarly research. E.g., Dan T. Carter, Scottsboro: A Tragedy of the American
South (1969); James E. Goodman, Stories of Scottsboro (1994); Claudia Johnson, The Secret Courts of Men's Hearts: Code
and Law in Harper Lee's To Kill a Mockingbird, 19 Stud. Am. Fiction 129 (1991) (suggesting a relationship between the
Scottsboro Case and the fictional Mockingbird trial).
32. Powell, 287 U.S. at 68–69.
33. Id. at 71 (emphasis added).
34. 304 U.S. 458 (1938).
35. 316 U.S. 455 (1942).
36. 287 U.S. 45 (1932).
37. 372 U.S. 335 (1963). See generally Anthony Lewis, Gideon's Trumpet (1964); Jerold H. Israel, Gideon v. Wainwright:
The “Art” of Overruling, 1963 Sup. Ct. Rev. 211; Yale Kamisar, Betts v. Brady Twenty Years Later: The Right to Counsel and
Due Process Values, 61 Mich. L. Rev. 219 (1962); Yale Kamisar, The Right to Counsel and the Fourteenth Amendment: A
Dialogue on “The Most Pervasive Right” of an Accused, 30 U. Chi. L. Rev. 1 (1962).
38. 316 U.S. 455 (1942).
39. 304 U.S. 458 (1938). See § 28.03[B][2][b], supra.
40. If a defendant is actually (as in Gideon) or constructively (as in Powell v. Alabama) denied his constitutional right to the
assistance of counsel at trial, any resulting conviction must be reversed, i.e., the error is never harmless. See Strickland v.
Washington, 466 U.S. 668, 692 (1984). Harmless-error doctrine is discussed in 2 Joshua Dressler & Alan C. Michaels,
Understanding Criminal Procedure § 16.04 (4th ed. 2006).
41. 287 U.S. 45 (1932). See § 28.03[B][2][a], supra.
42. Gideon, 372 U.S. at 344.
43. 287 U.S. 45.
44. See Lewis, Note 37, supra, at 226–37.
45. 372 U.S. 335 (1963).
46. 407 U.S. 25 (1972); see generally Lawrence Herman, The Right to Counsel in Misdemeanor Court (1974); Steven
Duke, The Right to Appointed Counsel: Argersinger and Beyond, 12 Am. Crim. L. Rev. 601 (1975).
47. See 2 Dressler & Michaels, Note 40, supra, at § 10.02.
48. 287 U.S. 45 (1932). See § 28.03[B][2][a], supra.
49. 316 U.S. 455 (1942), overruled by Gideon. See § 28.03[B][2][c], supra.
50. 440 U.S. 367 (1979); see generally Lawrence Herman & Charles A. Thompson, Scott v. Illinois and the Right to
Counsel: A Decision in Search of a Doctrine?, 17 Am. Crim. L. Rev. 71 (1979).
51. 407 U.S. 25 (1972).
52. See 2 Dressler & Michaels, Note 40, supra, at § 10.02[A].
53. Argersinger, 407 U.S. at 30 (“While there is historical support for limiting the ‘deep commitment’ to trial by jury to
‘serious criminal cases,’ there is no such support for a similar limitation on the right to assistance of counsel …”).
54. See B. Mitchell Simpson III, A Fair Trial: Are Indigents Charged with Misdemeanors Entitled to Court Appointed
Counsel?, 5 Roger Williams Univ. L. Rev. 417 (2000) (noting that 35 states and the District of Columbia have expanded the
right to counsel in misdemeanor cases beyond minimal federal requirements, including 20 states that provide counsel for any
misdemeanor punishable by a jail sentence).
55. 535 U.S. 654 (2002).
56. 411 U.S. 778 (1973).
57. 511 U.S. 738 (1994).
58. See Mempa v. Rhay, 389 U.S. 128 (1967) (holding that Sixth Amendment right to counsel applies at sentencing).
59. See also Turner v. Rogers, 564 U.S. 431 (2011) (“analyzing under the Due Process Clause a claim of a right to counsel
in the context of a civil contempt proceeding for failure to pay child support that resulted in 12 months” imprisonment and
concluding that an indigent is “not automatically” entitled to counsel in that context).
60. See also United States v. Bryant, 136 S. Ct. 1954 (2016). B had been convicted of misdemeanors and sentenced to
imprisonment for less than one year in multiple tribal-court proceedings. Although B was indigent and was not appointed
counsel, there was no constitutional violation for the simple reason that the Sixth Amendment does not apply in tribal-court
proceedings. In Bryant, these tribal court convictions were used as the predicate crimes for a federal charge against B of
committing domestic assault with two previous convictions. The Court held that this use of B’s uncounseled misdemeanor
convictions did not violate the Sixth Amendment because those convictions were valid when obtained in tribal court.
61. Contra under state constitution, State v. Kelly, 999 So. 2d 1029 (Fla. 2008); State v. Sinagoga, 918 P.2d 228, 239–41
(Haw. Ct. App. 1996).
62. See generally Robert L. Spangenberg & Patricia A. Smith, American Bar Association, An Introduction to Indigent
Defense Systems (1986); Floyd Feeney & Patrick G. Jackson, Public Defenders, Assigned Counsel, Retained Counsel: Does
the Type of Criminal Defense Counsel Matter?, 22 Rutgers L.J. 361 (1991); Shulhofer & Friedman, Note 23, supra, at 83–96;
Spangenberg & Beeman, Note 23, supra, at 32–44.
63. Spangenberg & Beeman, Note 21, supra, at 36.
64. See Spangenberg & Beeman, Note 23, supra, at 32–34.
65. See Radha Iyengar, An Analysis of the Performance of Federal Indigent Defense Counsel, National Bureau of
Economic Research, Working Paper 13187 (2007).
66. Schulhofer & Friedman, Note 23, supra, at 89.
67. Spangenberg & Beeman, Note 23, supra, at 34.
68. See, e.g., State v. Young, 172 P.3d 138 (N.M. 2007) (staying a death penalty prosecution on the ground that $165,000
compensation for two defense attorneys in an extremely complex capital case was so inadequate as to trigger a presumption
that no lawyer could provide effective assistance); see generally Douglas W. Vick, Poorhouse Justice: Underfunded Indigent
Defense Services and Arbitrary Death Sentences, 43 Buff. L. Rev. 329, 377–97 (1995); see also § 28.08[A], infra.
69. See generally sources cited in Note 29, supra. In 2020 in Ohio, for example, counties paid between $40 and $75 per
hour for non-capital cases, and $125 per hour for capital cases. The average fee charged by private criminal defense attorneys
was $259 per hour. See Laura A. Bischoff, Ohio Pours Cash into Paying Lawyers to Represent Indigent Clients, Dayton Daily
News, January 21, 2020. In federal courts, the maximum hourly rate for panel defense attorneys was $148 for non-capital cases
and $190 for capital cases. See https://www.uscourts.gov/services-forms/defender-services. These low rates are not a new
phenomenon—back in 1994, Supreme Court Justice Harry Blackmun described the rate of compensation in death-penalty
cases as “perversely low.” McFarland v. Scott, 512 U.S. 1256, 1256 (1994) (Blackmun, J., dissenting from denial of certiorari).
In one infamous Texas capital case from the 1990s, the state paid defense counsel $11.84 per hour. See Stephen B. Bright,
Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835, 1838–39
(1994).
70. 351 U.S. 12 (1956).
71. Id. at 17–18, 19.
72. E.g., Ake v. Oklahoma, 470 U.S. 68 (1985) (due process requires that the state provide access to a psychiatrist to an
indigent defendant who makes a preliminary showing that his sanity will be an issue at trial); Mayer v. Chicago, 404 U.S. 189
(1971) (Griffin rule applies to payment of transcripts in appeals of misdemeanor convictions); Draper v. Washington, 372 U.S.
487 (1963) (a state rule providing for a free transcript only if the defendant can convince the trial judge that the appeal is non-
frivolous violates the Fourteenth Amendment); Burns v. Ohio, 360 U.S. 252 (1959) (a state rule that requires indigent
defendants to pay a fee before filing a notice of appeal violates Griffin); see also M.L.B. v. S.L.J., 519 U.S. 102 (1996) (Griffin
rule is extended to an appeal of a ruling terminating a mother's parental rights, a “quasi-criminal” case).
73. See, e.g., McKane v. Durston, 153 U.S. 684 (1894); Jones v. Barnes, 463 U.S. 745 (1983).
74. 372 U.S. 353 (1963).
75. McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 436 (1988).
76. 386 U.S. 738 (1967).
77. Smith v. Robbins, 528 U.S. 259, 264 (2000) (explaining Anders).
78. 528 U.S. 259 (2000).
79. Id. at 297 (Souter, J., dissenting).
80. 417 U.S. 600 (1974).
81. Pennsylvania v. Finley, 481 U.S. 551 (1987); Murray v. Giarratano, 492 U.S. 1 (1989) (plurality opinion) (death penalty
appeal). But see Eric M. Freedman, Giarratano is a Scarecrow: The Right to Counsel in State Capital Postconviction
Proceedings, 91 Cornell L. Rev. 1079 (2006) (noting that Alabama is now the only “active” death penalty state that does not
provide counsel to indigent Death Row inmates before they file their state habeas petitions and arguing that this and other
developments have undercut Giarratano to the point that it should be overruled).
82. See § 28.04[A], supra.
83. 372 U.S. 353 (1963).
84. A defendant may raise a number of claims on appeal following a guilty plea, including, for example:
constitutional defects that are irrelevant to his factual guilt, double jeopardy claims requiring no further factual record,
jurisdictional defects, challenges to the sufficiency of the evidence at the preliminary examination, preserved
entrapment claims, mental competency claims, factual basis claims, claims that the state had no right to proceed in the
first place, including claims that a defendant was charged under an inapplicable statute, and claims of ineffective
assistance of counsel.
Halbert v. Michigan, 545 U.S. 605, 612–22 (2005) (quoting People v. Bulger, 614 N.W.2d 103, 133–34 (Mich. 2000)
(Cavanagh, J., dissenting)).
85. 372 U.S. 353 (1963). See § 28.04[B][1], supra.
86. 417 U.S. 600 (1974). See § 28.04[C], supra.
87. 545 U.S. 605 (2005).
88. See generally John F. Decker, The Sixth Amendment Right to Shoot Oneself in the Foot: An Assessment of the
Guarantee of Self-Representation Twenty Years After Faretta, 6 Seton Hall Const. L.J. 483 (1996).
89. See generally Anne Bowen Poulin, Strengthening the Criminal Defendant's Right to Counsel, 28 Cardozo L. Rev. 1213,
1235–46 (2006).
90. Jones v. Barnes, 463 U.S. 745, 751 (1983). The Court reaffirmed the defendant's right to control his decision to plead
guilty in McCoy v. Louisiana, 138 S.Ct. 1500 (2018), noting that “If a client declines to participate in his defense, then an
attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant's best interest. Presented
with express statements of the client's will to maintain innocence, however, counsel may not steer the ship the other way.” Id.
at 1509.
91. Florida v. Nixon, 543 U.S. 175, 187 (2004).
92. Taylor v. Illinois, 484 U.S. 400, 418 (1988).
93. Florida v. Nixon, 543 U.S. at 187.
94. Poulin, Note 89, supra, at 1235. When the defendant expressly disagrees with counsel on a tactical trial decision, lower
courts are divided as to whether the lawyer may override or must abide by his client's wishes, see id., at 1241–46, and the
Supreme Court has not clearly addressed the subject. The Court has held in the appellate context that a defendant does not have
“a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter
of professional judgment decides not to present those points.” Jones, 463 U.S. at 751.
95. 422 U.S. 806 (1975).
96. Id. at 826 (quoting R. v. Woodward [1944] K.B. 118, 119).
97. See generally Martin Sabelli & Stacey Leyton, Train Wrecks and Freeway Crashes: An Argument for Fairness and
Against Self-Representation in the Criminal Justice System, 91 J. Crim. L. & Criminology 161 (2000); Robert E. Toone, The
Incoherence of Defendant Autonomy, 83 N.C. L. Rev. 621 (2005).
98. Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
99. Faretta, 422 U.S. at 834 (quoting Illinois v. Allen, 397 U.S. 337, 350–51 (1970) (Brennan, J., concurring)).
100. Erica J. Hashimoto, Defending the Right of Self-Representation: An Empirical Look at the Pro Se Felony Defendant, 85
N.C. L. Rev. 423 (2007).
101. Faretta, 422 U.S. at 849 (Blackmun, J., dissenting) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)).
102. Wheat v. United States, 486 U.S. 153, 160 (1988).
103. Martinez v. Court of Appeal of California, 528 U.S. 152, 165 (2000) (Scalia, J., concurring) (emphasis in original).
104. See § 28.05[C][5], infra.
105. See § 28.05[C][7], infra.
106. See § 28.05[C][2], infra.
107. Hashimoto, Note 100, supra, 434 n.46 (2007).
108. 528 U.S. 152 (2000); contra under the state constitution, State v. Rafay, 222 P.3d 86 (Wash. 2009).
109. The Sixth Amendment does not apply to criminal appeals, see § 28.04[A], supra, so if a right of self-representation on
appeal existed it would have to have been found in general principles of due process. The Court stated that neither the holding
of Faretta nor its reasoning compels a state to recognize a constitutional right of self-representation on direct appeal from a
criminal conviction. Although the Court conceded that Faretta’s concern for an individual's right of autonomy would seem to
support a right of appellate self-representation, it determined that such a right is not a necessary component of a fair appellate
procedure, nor are there meaningful historical roots of such a right.
110. Martinez, 528 U.S. at 164 (Breyer, J., concurring) (also quoting United States v. Farhad, 190 F.3d 1097, 1107 (9th Cir.
1999) (stating that the right of self-representation “frequently … conflicts squarely and inherently with the right to a fair trial”).
111. 554 U.S. 164 (2008).
112. See § 28.05[C][1], infra.
113. 554 U.S. at 178.
114. 509 U.S. 389 (1993).
115. Id. at 396 (quoting Dusky v. United States, 362 U.S. 402, 402 (1960)). See also 2 Dressler & Michaels, Note 38, supra,
at § 9.02[A].
116. 554 U.S. 164 (2008); see generally Christopher Slobogin, Mental Illness and Self-Representation: Faretta, Godinez and
Edwards, 7 Ohio St. J. Crim. L. 391 (2009).
117. The Court speculated that perhaps 20 percent of defendants seeking to represent themselves might be affected by the
decision. See id. at 178.
118. E.g., Fed. R. Crim. P. 5(d).
119. Wayne R. LaFave et al., Criminal Procedure § 11.5(b) (5th ed. 2009).
120. Regarding competence, see § 28.05[C][1], supra.
121. Johnson v. Zerbst, 304 U.S. 458 (1938).
122. Faretta, 422 U.S. at 835 (quoting Adams v. United States ex. rel. McCann, 317 U.S. 269, 279 (1942)); for one example
of a jury instruction that explains the pitfalls of self-representation, see United States v. Hayes, 231 F.3d 1132, 1138–39 (9th
Cir. 2000).
123. Hashimoto, Note 100, supra, at 447.
124. See generally Joseph A. Colquitt, Hybrid Representation: Standing the Two-Sided Coin on Its Edge, 38 Wake Forest L.
Rev. 55 (2003).
125. LaFave et al., Note 119, supra, at § 11.5(g).
126. State v. Melson, 638 S.W.2d 342, 359 (Tenn. 1982).
127. See generally Anne Bowen Poulin, The Role of Standby Counsel in Criminal Cases: In the Twilight Zone of the
Criminal Justice System, 75 N.Y.U. L. Rev. 676 (2000).
128. 465 U.S. 168 (1984).
129. Faretta, 422 U.S. at 835 n.46; McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984).
130. McKaskle, 465 U.S. at 177 n.8. For discussion of “harmless error” law generally, see 2 Dressler & Michaels, Note 40,
supra, at § 16.04.
131. See generally Feeney & Jackson, Note 62, supra; Bruce A. Green, “Through a Glass, Darkly”: How the Court Sees
Motions to Disqualify Criminal Defense Lawyers, 89 Colum. L. Rev. 1201 (1989); Schulhofer & Friedman, Note 21, supra;
Peter W. Tague, An Indigent's Right to the Attorney of His Choice, 27 Stan. L. Rev. 73 (1974).
132. Wheat v. United States, 486 U.S. 153, 159 (1988).
133. United States v. Gonzalez-Lopez, 548 U.S. 140, 147–48 (2006).
134. Id. at 146.
135. Id. at 151.
136. ABA Standards for Criminal Justice, Note 20, supra, 4-3.1.
137. Morris v. Slappy, 461 U.S. 1 (1983).
138. See Wheat, 486 U.S. at 159.
139. See § 28.09, infra.
140. Wheat, 486 U.S. at 159.
141. Gonzalez-Lopez, 548 U.S. at 152.
142. Id. For discussion of “harmless error” law generally, see 2 Dressler & Michaels, Note 40, supra, at § 16.04.
143. See, e.g., 21 U.S.C. § 853 (2005).
144. See, e.g., § 1345(a)(2).
145. Caplin & Drysdale v. United States, 491 U.S. 617 (1989); United States v. Monsanto, 491 U.S. 600 (1989).
146. Luis v. United States, 136 S. Ct. 1083, 1089 (2016) (plurality opinion).
147. 491 U.S. 617 (1989).
148. 491 U.S. 600 (1989).
149. 21 U.S.C. § 853 (2005).
150. Caplin & Drysdale, 491 U.S. at 635.
151. Griffin v. Illinois, 351 U.S. 12, 19 (1956).
152. Schulhofer & Friedman, Note 23, supra, at 74 (footnote omitted).
153. For example, in 1990, public expenditures on the defense of indigents was only 31 percent of that spent on their
prosecution. See Sourcebook of Criminal Justice Statistics § 1993, tbl.1.2 (U.S. Dept. of Justice 1994).
154. Caplin & Drysdale, Chartered, 491 U.S. at 647.
155. Perhaps worse, indigents in most counties are not represented by public defenders, but receive representation from
private, often relatively inexperienced, attorneys who are paid on a low hourly or flat-fee basis. See § 28.03[B][5], supra.
156. 136 S. Ct. 1083 (2016).
157. Justice Thomas added a fifth vote to the holding with his concurrence.
158. Id. at 1086.
159. Id.
160. Id. at 1103 (Kennedy, J., dissenting).
161. Id. at 1113 (Kagan, J., dissenting).
162. Herring v. New York, 422 U.S. 853, 857 (1975).
163. Brooks v. Tennessee, 406 U.S. 605 (1972) (applying the Fifth Amendment self-incrimination and due process clauses).
164. Ferguson v. Georgia, 365 U.S. 570 (1961).
165. Herring, 422 U.S. 853.
166. Geders v. United States, 425 U.S. 80 (1976).
167. 488 U.S. 272, 282 (1989).
168. E.g., Geders, 425 U.S. at 91–92 (reversing conviction without expressly determining whether prejudice occurred).
169. See generally Lisa J. McIntyre, The Public Defender: The Practice of Law in the Shadows of Repute (1987); Donald A.
Dripps, Ineffective Assistance of Counsel: The Case for an Ex Ante Parity Standard, 88 J. Crim. L. & Criminology 242 (1997);
Bruce A. Green, Lethal Fiction: The Meaning of “Counsel” in the Sixth Amendment, 78 Iowa L. Rev. 433 (1993); Michael
McConville & Chester L. Mirsky, Criminal Defense of the Poor in New York City, 15 N.Y.U. Rev. L. & Soc. Change 581
(1986–87); Mirsky, Note 19, supra; Amy R. Murphy, Note, The Constitutional Failure of the Strickland Standard in Capital
Cases Under the Eighth Amendment, 63 Law & Contemp. Probs. 179 (2000); Victoria Nourse, Gideon's Muted Trumpet, 58
Md. L. Rev. 1417 (1999); Eve Brensike Primus, Structural Reform in Criminal Defense: Relocating Ineffective Assistance of
Counsel Claims, 92 Cornell L. Rev. 679 (2007); George C. Thomas III, History's Lesson for the Right to Counsel, 2004 U. Ill.
L. Rev. 543 (2004); David Wasserman, The Appellate Defender as Monitor, Watchdog, and Gadfly (Occasional Paper 7, The
Center for Research in Crime and Justice, N.Y.U. School of Law, 1989); Willcox & Bloustein, Note 28, supra.
170. Strickland v. Washington, 466 U.S. 668, 685 (1984).
171. McMann v. Richardson, 397 U.S. 759, 771 (1970). An interesting 2012 study of criminal case outcomes in Philadelphia
demonstrated that public defenders were more effective than court-appointed private attorneys. On average, defendants with
public defenders were 19 percent less likely to be convicted in murder cases, and their sentences were 24 percent lower than
those who had court-appointed counsel. Although this does not mean that court-appointed counsel are ineffective, it does raise
“important questions about the adequacy and fairness of the criminal justice system.” James M. Anderson & Paul Heaton, How
Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes, 122 Yale L.J. 154 (2012).
172. Due process, rather than the Sixth Amendment, entitles a convicted defendant to effective assistance of counsel on his
first appeal of right. Evitts v. Lucey, 469 U.S. 387 (1985). On subsequent, discretionary appeals, for which there is no
constitutional right to the assistance of counsel, see § 28.04[C], supra, there is also no constitutional right to effective
assistance. Evitts, 469 U.S. at 396 n.7.
173. ABA Standards for Criminal Justice, Note 20, supra, Commentary to Standard 4-3.5, at 162.
174. Id. at 4-3.2, 4-3.8, and 4-5.2.
175. Id. at 4-4.1.
176. American Bar Association, Model Rules of Professional Conduct, Rule 1.1 (2004).
177. See generally § 28.03[B][5], supra.
178. McConville & Mirsky, Note 169, supra, at 746–74. According to the study of New York County during the mid-1980s,
lawyers assigned to represent indigents interviewed their clients in only 26 percent of homicide cases and 18 percent of all
other felonies; they conducted investigations in 27 percent of homicide cases and 12 percent of other felony cases; and they
filed written motions in only a quarter of the homicide cases, and in 20 percent of other cases. A New York Times study of New
York City records and court cases in the year 2000 found that “almost no part of the indigent defense system functioned as it
was intended”: most lawyers appointed to represent indigents failed to hire private investigators to look for witnesses or
evidence, did not seek experts to rebut expert prosecutorial evidence, and did not go to the scene of the crime to conduct their
own investigation. Most of the appointed lawyers did not make even a single visit to the jail to discuss the case with their
clients. Jane Fritsch and David Rohde, Lawyers Often Fail New York's Poor, N.Y. Times, April 8, 2001, at A1.
179. Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103
Yale L.J. 1835, 1838–39 (1994).
180. In the federal system, there are statutory caps on compensation: $11,500 per case for representation of a felony
defendant before and during trial; lesser amounts are set for misdemeanor ($3,300) and appellate ($8,200) representation,
although a court has the authority to waive these caps. See https://www.uscourts.gov/services-forms/defender-services.
181. 466 U.S. 668 (1984). Under federal law and in the majority of states, an ineffective assistance of counsel claim, which
often requires factual development beyond the trial record, can be brought through a collateral attack on the conviction and
need not (and often may not) be raised on direct appeal. See Massaro v. United States, 538 U.S. 500 (2003). See also, Primus,
Note 169, supra (arguing that—because of the length of time direct appeals typically take—providing appellate counsel with a
means to raise ineffective assistance of counsel in the trial court prior to adjudication of the appeal would more effectively
enforce the right to effective assistance).
182. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).
183. Strickland v. Washington, 466 U.S. at 713 (Marshall, J., dissenting) (citing State v. Pacheco, 588 P.2d 830, 833 (Ariz.
1978)).
184. See Strickland at 713–14.
185. Id. at 714.
186. In certain limited circumstances, such prejudice will be presumed. See §28.08[B][3][a], infra.
187. Strickland, 466 U.S. at 697.
188. See Alan C. Michaels, Trial Rights at Sentencing, 81 N. Car. L. Rev. 1771, 1791–94 (2003). This test also provides the
framework for evaluating a claim of ineffectiveness based on an attorney's failure to file a notice of appeal. Roe v. Flores-
Ortega, 528 U.S. 470 (2000).
189. Cuyler v. Sullivan, 446 U.S. 335, 342–45 (1980).
190. See Joshua Dressler & George C. Thomas III, Criminal Procedure: Principles, Policies and Perspectives 1025 (West 5th
ed., 2012) (calculating that through 2001 about 1,200 of some 37,000 reported Strickland claims—roughly three percent—were
successful).
191. See, e.g., Donald A. Dripps, Ineffective Litigation of Ineffective Assistance Claims: Some Uncomfortable Reflections on
Massaro v. United States, 42 Brandeis L.J. 793 (2004); Richard Klein, The Constitutionalization of Ineffective Assistance of
Counsel, 58 Md. L. Rev. 1433 (1999); Thomas, Note 169, supra.
192. See § 28.09–28.10, infra.
193. Strickland, 466 U.S. at 687.
194. Id. at 688.
195. Remarkably, one lower court found that counsel napping during trial may have been a “strategic move” to gain jury
sympathy for the client (co-counsel remained awake). See McFarland v. Texas, 928 S.W.2d 482, 505 n.20 (Tex. Crim. App.
1996). More frequently, however, lower courts seem to hold that if a defense lawyer frequently falls asleep during trial or
during significant pretrial hearings, this constitutes objectively unreasonable performance. For example, in one Second Circuit
case, the court found a violation based on undisputed evidence that the defense counsel “was unconscious for numerous
extended periods of time during which the defendant's interests were at stake.” Tippins v. Walker, 77 F.3d 682, 685 (2d Cir.
1996). And in a Texas criminal case, the Fifth Circuit concluded that the conduct of a defense lawyer who fell asleep five to 10
times during the trial for as long as 10 minutes, and during which time the prosecutor was questioning witnesses or presenting
evidence, constituted ineffective assistance. See Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (en banc). See also Ross v.
Kemp, 393 S.E.2d 244 (Ga. 1990), and Harrison v. Zant, No. 88-V-1460 (reported in Paul Marcotte, Snoozing, Unprepared
Lawyer Cited, 77 A.B.A. J., Feb. 1991, at 14) (death sentences were overturned due to the inadequacy of an 83-year-old
counsel's representation, upon proof that he slept a “good deal” during the proceedings).
196. Strickland, 466 U.S. at 690. See, e.g., Florida v. Nixon, 543 U.S. 175 (2004) (holding that the decision to concede guilt
at trial in a capital murder case was a reasonable strategic choice); Bell v. Cone, 535 U.S. 685, 701–02 (2002) (per curiam)
(concluding that the decision to forgo making a closing statement may be reasonable).
197. 483 U.S. 776 (1987).
198. 556 U.S. 111 (2009).
199. Cf. Schriro v. Landrigan, 550 U.S. 465 (2007) (rejecting claim of ineffective assistance for failure to investigate in a
5–4 decision, with Justice Alito in the majority).
200. 529 U.S. 362 (2000).
201. 539 U.S. 510 (2003).
202. 545 U.S. 374 (2005).
203. 483 U.S. 776 (1987), described in subsection [i], supra.
204. In its 2009–10 term, the Roberts Court exhibited an intense interest in ineffective-assistance-of-counsel claims in the
death penalty context, deciding five cases, and ruling twice for petitioners under sentence of death (Porter v. McCollum, 558
U.S. 30 (2009) (per curiam); Jefferson v. Upton, 560 U.S. 284 (2010) (per curiam)), and three times for the state (Bobby v. Van
Hook, 558 U.S. 4 (2009) (per curiam); Wong v. Belmontes, 558 U.S. 15 (2009) (per curiam); Wood v. Allen, 558 U.S. 290
(2009)). These cases arose in different procedural contexts, which meant different standards of review were invoked, and the
decisions were highly fact-specific, making generalizations particularly difficult. Nonetheless, this heightened activity is
somewhat remarkable by previous standards and several aspects are worthy of note. First, as the citations above indicate, four
of the five decisions were per curiam opinions written on the basis of the petitions for certiorari without full briefing or oral
argument, and each of them changed the result of the lower court. This suggests that the Supreme Court considers the correct
outcome in such cases in this particular area so important that it is willing to engage in error correction—in both directions—
even when the governing legal principles are well-settled. Second, the Court's willingness to find ineffective assistance of
counsel in at least some cases has continued after Justice O'Connor's retirement. Indeed, in one unanimous per curiam opinion,
Porter v. McCollum, in which the Court found deficient attorney performance, the Court relied in part on Rompilla v. Beard,
the high-water mark for the Court's willingness to find deficient performance. Third, claims of failure to investigate have the
most success at the Supreme Court level. That was the core of the claim in the three cases discussed in this chapter subsection,
and was the core of the claim in the two cases the defendant won in the 2009–2010 term. See also Hinton v. Alabama, 571 U.S.
263 (2014) (per curiam) (finding inadequate performance in a death penalty case and describing the attorney's “failure to
perform basic research” on “a point of law that is fundamental to his case … a quintessential example of unreasonable
performance”). But see Maryland v. Kulbicki, 577 U.S. 1 (2015) (per curiam) (summarily reversing a lower court finding of
ineffective assistance that had been based on failure to uncover a report that could possibly have been used to undermine expert
testimony).
205. 477 U.S. 365 (1986).
206. 506 U.S. 364 (1993).
207. Strickland, 466 U.S. at 691–92.
208. E.g., Gideon v. Wainwright, 372 U.S. 335 (1963). See § 28.03[B][3], supra.
209. E.g., Powell v. Alabama, 287 U.S. 45 (1932). See § 28.03[B][2][a], supra.
210. See § 28.07, supra.
211. See § 28.09, infra. The “presumption of prejudice” in qualifying conflict-of-interest cases is a limited one, under which
the defendant must still show that the conflict “adversely affected his attorney's performance.” Strickland, 466 U.S. at 692.
212. United States v. Cronic, 466 U.S. 648, 659 (1984).
213. Roe v. Flores-Ortega, 528 U.S. 470 (2000).
214. Garza v. Idaho, 139 S.Ct. 738, 742 (2019).
215. See 2 Dressler & Michaels, Note 40, supra, at § 7.02.
216. When a defendant challenges a conviction, this means that absent the error “the factfinder would have had a reasonable
doubt respecting guilt.” Strickland, 466 U.S. at 695. When a defendant challenges a death sentence, it means that absent the
error the sentencer would have concluded that death was not warranted. Id. In the case of a prison sentence, it means a
reasonable probability that the error caused an increase of any amount in actual jail time. See Glover v. United States, 531 U.S.
198, 203 (2001).
217. Strickland, 466 U.S. at 710 (Marshall, J., dissenting).
218. See § 28.08[B][2], supra.
219. In later cases, involving habeas corpus review of a state conviction, the Court reinstated state convictions after lower
federal courts had concluded that the states had not applied the “reasonable probability” standard following findings of
deficient performance. See Holland v. Jackson, 542 U.S. 649 (2004); Woodford v. Visciotti, 537 U.S. 19 (2002) (per curiam).
In these cases, however, the Court reached its conclusion on the ground that the state court did apply the right standard, without
determining whether the conclusion of no prejudice was actually correct.
220. See Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins v. Smith, 539 U.S. 510 (2003); Williams v. Taylor, 529 U.S. 362
(2000); Buch v. Davis, 137 S.Ct. 759 (2017). See § 28.08[B][2][b][ii], supra.
221. Albert W. Alschuler, Celebrating Great Lawyering, 4 Ohio St. J. Crim. L. 223, 225 (2006).
222. 550 U.S. 465 (2007).
223. Id.
224. Justice Souter, who has since been replaced on the Court by Sonia Sotomayor, voted for the defendant in both Rompilla
and Landrigan.
225. 477 U.S. 365 (1986).
226. See the text following Note 205, supra.
227. 506 U.S. 364 (1993). See § 28.08[B][2][b][iii], supra.
228. Williams v. Taylor, 529 U.S. 362, 391 (2000).
229. See § 28.08[B][3][a], supra.
230. Tippins v. Walker, 77 F.3d 682, 686 (2d Cir. 1996).
231. Id. at 687. Accord, Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (en banc) (holding that prejudice should be
presumed when there is credible evidence that a defense lawyer has repeatedly slept during the trial).
232. 137 S.Ct. 759 (2017).
233. Id. at 777.
234. See generally John Stewart Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the
Professional Responsibilities of the Defense Attorney, 62 Minn. L. Rev. 119 (1978); Green, Note 131, supra; Nancy J. Moore,
Conflicts of Interest in the Simultaneous Representation of Multiple Clients: A Proposed Solution to the Current Confusion and
Controversy, 61 Tex. L. Rev. 211 (1982); Peter W. Tague, Multiple Representation and Conflicts of Interest in Criminal Cases,
67 Geo. L.J. 1075 (1979).
235. Although the Supreme Court has acknowledged that “[t]here is certainly much substance to [the] argument that the
appointment of two partners to represent coindictees … creates a possible conflict of interest,” it has only assumed, but not
decided, that law partners should be treated as if they were one attorney for purposes of conflict-of-interest analysis. Burger v.
Kemp, 483 U.S. 776, 783 (1987). Most public defenders have strong policies against representing co-defendants and many
have outright bans. See Gary T. Lowenthal, Joint Representation in Criminal Cases: A Critical Appraisal, 64 Va. L. Rev. 939,
950 (1978).
236. Model Rules, Note 176, supra, Rule 1.7(a)–(b).
237. 422 U.S. 668 (1984). See § 28.09[B], supra.
238. 435 U.S. 475 (1978).
239. Mickens v. Taylor, 535 U.S. 162, 168 (2002).
240. Cuyler v. Sullivan, 446 U.S. 335, 347 (1980). The Federal Rules of Criminal Procedure are more demanding than this
constitutional rule, limiting the latter's importance in federal cases. The federal rules provide that when persons jointly charged
with an offense are represented by the same attorney or by different attorneys from the same law firm, “the court must
promptly inquire about the propriety of joint representation and must personally advise each defendant of the right to the
effective assistance of counsel, including separate representation.” Fed. R. Crim. P. 44(c)(2). Unless there is good cause to
believe that no conflict is likely to arise, the trial court must “take appropriate measures to protect each defendant's right to
counsel.” Id.
241. See Mickens, 535 U.S. 162 (holding that defendant was not entitled to automatic reversal when counsel failed to raise
conflict of interest prior to trial, even though trial court had reason to be aware of conflict and failed to inquire).
242. See § 28.08[B][3], supra.
243. 446 U.S. 335 (1980).
244. Mickens, 535 U.S. at 175 (2002) (quoting Sullivan, 446 U.S. at 350) (emphasis added in Mickens).
245. See generally Pamela S. Karlan, Discrete and Relational Criminal Representation: The Changing Vision of the Right to
Counsel, 105 Harv. L. Rev. 670, 687–97 (1992).
246. 486 U.S. 153 (1988).
247. Note that the latter argument was minimized by the Court in Faretta v. California, 422 U.S. 806 (1975), see § 28.05,
supra, when it held that defendants have a constitutional right of self-representation, even though (as the dissenters there
argued) assertion of this right will often result in a “lawyer” having a fool for a client. In Faretta, the defendant's right of
autonomy trumped society's interest in ensuring a fair and reliable trial; in Wheat, the latter interest won out.
248. See generally Brent R. Appel, The Limited Impact of Nix v. Whiteside on Attorney-Client Relations, 136 U. Pa. L. Rev.
1913 (1988); Curtis & Resnick, Note 20, supra; Monroe H. Freedman, Client Confidences and Client Perjury: Some
Unanswered Questions, 136 U. Pa. L. Rev. 1939 (1988); A. Kenneth Pye, The Role of Counsel in the Suppression of Truth,
1978 Duke L.J. 921.
249. 466 U.S. 668, 688 (1984). See generally § 28.08, supra.
250. 475 U.S. 157 (1986).
251. Id. at 191 (Stevens J., concurring).
Index
[650/651] A
Administrative Searches, 18.02
Aerial Surveillance
Generally, 6.07[A]
Airplanes, 6.07[B]
Helicopters, 6.07[C]
Appeals
Generally, 1.03[C][8][b]
Right to counsel during, 28.04
Arraignments, 1.03[C][5]
Arrests (See also Seizure)
Common law and statutory rules, 9.02
Custodial arrests for minor offenses, 9.03
Defined, 9.01[A]
Executing
Force against arrestee in making, 9.06[B]
General constitutional rules, 9.06[A]
Knock-and-announce rule, 9.06[A]
Stop-and-identify arrests, 9.04
Terry stops, distinguished, 17.04
Warrant requirement
Generally, 9.05[A]
In one's home
Generally, 9.05[C][1]
Exigent circumstances justifying warrantless entry, 9.05[C][2][b]
Public place, distinguished, 9.05[C][2][a]
Public places, 9.05[B]
Third-party residence, 9.05[D]
Automobile Checkpoints (See Checkpoints)
Automobile Searches
“Automobile exception” to warrant requirement
Generally, 13.01
Car inside curtilage, 13.04
Lesser-expectation-of-privacy rationale, 13.03, 13.04
Mobility rationale, 13.02
Probable cause requirement, 13.01[D]
Border, 18.03
Containers found during, 13.05
Incident to an arrest, 12.05
Inventories, 15.01
Weapons searches in, 17.07
B
Bail, 3.04
Body Searches
Fingernail scrapings, 11.03
Intrusions inside, 11.02
Pat-downs, methods of, 17.06
Border Searches
At border, 18.03[A]
Fixed interior checkpoints, 18.03[B][3]
Near border, 18.03[B]
Roving border patrols, 18.03[B][2]
C
Cell Phone Searches, 6.10[F]
Checkpoints
Anti-crime, 18.04[B][2]
Border searches, 18.03
Drug interdiction, 18.04[B][2]
License and vehicle registration, 18.04[A]
Sobriety, 18.04[B][1]
Community Caretaking Function, 11.01
Complaint, 1.03[C][1]
Consent Searches
Apparent authority, 16.06
General rule, 16.02[A]
Overarching considerations, 16.01
Practical realities, 16.01
Rationale of warrant exception, 16.02[B]
Scope, 16.04
Third-party consent, 16.05
Voluntariness requirement
Generally, 16.03[A]
Awareness of right to refuse, 16.03[D]
Claim of police authority, 16.03[B]]
Deception, 16.03[C]
Containers
Automobile searches and, 13.05
Chadwick doctrine, 13.05[C][1]
Consent searches and, 16.04
[651/652] Defined, 13.05[A][2]
Found during pat-downs, 17.06[B][2]
Garbage bags, and “search” law, 6.08
Incident to lawful arrest
Generally, 12.02[C][1], 12.02[C][2][a]
Automobiles, 12.05[A], 12.05[B][2]
Inventory searches and, 15.01[B][4][a]
Right of privacy, general rules, 13.05[B]–[C][1]
Conversations
“False friends”, 6.05
Participant monitoring of, 6.05
Protected by Fourth Amendment, 5.02
“Search” of, 6.02-.03
“Seizure” of, 7.02[B]
Wiretapping of, 6.02-.03
Counsel, Right to (See also Interrogations, Generally; Miranda v. Arizona)
Appointed counsel, right to Generally, 28.03[B]
Felonies, 28.03[B][2]–[3]
Methods of providing indigent representation, 28.03[B][5]
Misdemeanors, 28.03[B][4]
Arraignment, 1.03[C][5]
Effective assistance
Generally, 28.08
Conflicts of interest and, 28.09
Ethical canons and, 29.10
Self-representation and, 28.05[C][5]
Employ counsel, right to, 28.03[A]
Eyewitness identification procedures, 26.02, 26.03
Importance of defense lawyers, 28.01
Incorporation of, 28.03[B][3]
Interference with, 28.07
Interrogations
“Deliberate elicitation” and, 25.05
Escobedo, 24.03
Massiah, 25.01
Miranda, contrasted, 25.08
Offense-specific nature of, 25.04
Role of lawyer, in Sixth Amendment, 25.01[C]
Rule, generally, 25.02
Waiver of right, 25.06
When right is triggered, 25.03, 25.07[A]
Preferred attorney, 28.06
Self-representation, 28.05
Standby counsel, 28.05[C][4]
When right is triggered, 25.03, 28.02
Criminal Procedure, Generally
Controversies of
Accusatorial versus inquisitorial, 2.04
Bright-line rules versus case-by-case adjudication, 2.07[A]
Due process versus crime control, 2.02
Judicial versus legislative dominance, 2.06
Pretextual police conduct, 2.07[B]
Subjective versus objective rules, 2.07[B]
Criminal law contrasted to, 1.01
Norms of, 2.01
Role of race, gender, and poverty in the law, 2.05
Sources of, 1.02
Stages of, 1.03
Studying, 1.04
Curtilage
Generally, 5.03
Open fields, contrasted, 6.06[B]
D
DNA Swabs, 12.02[B][3]
Dog Sniffs, 6.09[A]
Due Process of Law
Entrapment and, 27.05
Eyewitness identification procedures and, 26.04
Incorporation of the Bill of Rights and, 3.01
Interrogations
Generally, 21.03[A][1], 22.01[B]
Exclusionary rule, 22.03[C]
Standing requirement, 22.03[B]
State action requirement, 22.03[A]
Voluntariness requirement
Critical overview, 22.02[B][1]
Deception, 22.03[B][3][d]
Rationale, 22.02[A][2]
Rule, 22.02[A][1]
Physical force, 22.02[B][3][a]
Promises of leniency, 22.02[B][3][c]
Psychological pressures, 22.02[B][3][b]
Threats of harsh legal treatment, 22.02[B][3][c]
Torture, 22.02[B][2]
“Shock-the-conscience” (Rochin) rule, 20.01[C][2]
E
Electronic Surveillance
“Beepers”
Installation of, 7.02[B]
Surveillance with, 6.10[C]
Conversations, 6.02-.03, 6.05
Global Positioning System (GPS), 6.10[D]
[652/653] Electronic Transmissions, 6.10[E]
Entrapment
Generally, 27.01
Debate regarding tests, 27.04
Due process and, 27.05
Objective test of, 27.03
Subjective test of, 27.02
Exclusionary Rule
Counsel, violations of right to
Eyewitness identifications, 26.02[A]
Interrogation cases, 20.07[D], 25.07
Due Process Clause
Generally, 22.03[C][2]
Fruit of the poisonous tree and,, 22.03[C][3][b]
Impeachment and,, 22.03[C][2][a]
Fourth Amendment
Generally, 4.04[B]
Alternatives to, 20.04[E]
Attenuated connection (Wong Sun) principle, 20.07[E]
Debate regarding, 20.04
De-constitutionalization of, 20.03
Exceptions to, generally, 20.05
Fruit of the poisonous tree, generally, 20.07[A]-[B]
Historical development of, 20.01
Independent source doctrine, 20.07[C]
Inevitable discovery rule, 20.07[D]
Knock-and-Announce rule exception, 20.05[B][2][b]
Police culpability as factor, 20.06
Rationale of, 20.02
Miranda violations, 24.12
Privilege against self-incrimination, 23.04[B][3]
Exigent Circumstances (See also Body Searches and Community Caretaking Function)
Arrest warrant requirement and, 9.05[C][2][b]
Bodily intrusions, 11.02
Home Entry, 11.04
Search of person, 11.03
Warrant exception, generally, 11.01
Eyewitness Identification Procedures
Counsel, right to
Corporeal procedures, 26.02
Non-corporeal procedures, 26.03
Role of lawyer, 26.02[C]
Due Process Clause, 26.04
Non-constitutional reform measures, 26.01[B]
Unreliability of, 26.01[A]
F
Fingerprinting, 17.05[C]
Fourth Amendment Overview
Checklist, for analysis, 4.05
Extraterritorial searches and, 4.04[F]
Historical purposes of, 4.03, 6.02
“People,” meaning of, 4.04[F]
Policy overview, 4.03
Private searches, 4.04[D]
Text of, 4.02
G
Gender and the Law
Generally, 2.05
Consent searches, 16.03[A]
Miranda assertion of rights, 24.10[B][3][b][i]
“Reasonable person” test and the Fourth Amendment, 7.03[C][3]
Global Position System (GPS) Devices, 6.10[E]
Grand Jury
Generally, 1.03[C][4]
Inapplicability of Grand Jury Clause to states, 3.04
H
Habeas Corpus
Generally, 1.03[C][8][c]
Fourth Amendment exclusionary rule and, 20.05[A][2]
Harmless Error
Coerced confessions admitted, 22.03[C][3]
Counsel, right to at trial and, 28.03[B][3]
Self-representation at trial and, 28.05[C][6]
I
Incorporation of Bill of Rights
Generally, 3.01
Current status of issue, 3.04.
Debate regarding, 3.03
Theories of incorporationism, 3.02
Indictment, 1.03[C][4]
Indigents (See Poverty and the Law)
Information, 1.03[C][4]
Interrogations, Generally (See also Counsel, Right to; Due Process Clause; Exclusionary Rule;
Miranda v. Arizona; and Self-Incrimination, Privilege Against)
Common law rule, 21.01, 22.01[A]
Constitutional overview, 21.01, 21.03
Escobedo, 24.03
McNabb-Mallory rule, 23.05
Police practices, historically, 21.02
[653/654] Policy overview, 21.04[A]–[B]
Questions to think about, 21.04[C]
Topic overview, 21.01
Inventory Searches
Automobiles, 15.01
Persons, after arrest, 15.02
K
Knock-and-Announce Rules, 10.04[C]
M
Mere-Evidence Rule, 8.02
Metadata, 6.10[B]
Miranda v. Arizona (See also Self-Incrimination, Privilege Against)
Adequacy of warnings, 24.09
Case summarized, 24.04
Constitutionality of rule, 24.06
Criticisms of, 24.05
“Custody”, 24.07
Escobedo, leading to, 24.03
Exceptions to
Covert interrogation, 24.11[B]
Public safety, 24.11[A]
Routine-booking questions, 24.11[C]
Exclusionary rule
Fruit-of-poisonous-tree doctrine, 24.12[B]
Impeachment exception, 24.12[A]
Historical context, 24.02
“Interrogation”, 24.08
Legislative efforts to overrule, 24.06[A]
Overview, 24.01
Right to counsel, compared to Sixth Amendment, 25.08
Tape recording of interrogations, 24.04[B][1][b]
Waiver
Generally, 24.10[A]
Ambiguous request for counsel, 24.10[B][3][b][i]
If suspect requests counsel (Edwards rule), 24.10[B][3]
If suspect requests silence, 24.10[B][2]
Models of Criminal Justice
Accusatorial versus inquisitorial, 2.04
Due process versus crime control, 2.02
Mosaic Theory, 6.10[D]
O
Open Fields
“Curtilage,” distinguished, 5.03
“Effect,” distinguished from, 5.04
Law regarding, 6.06
P
Parolees, Searches of, 18.05[B][3]
Pen Registers, 6.10[B]
“Persons, Houses, Papers, and Effects”
Commercial property, 5.03
Curtilage, 5.03, 6.06[B]
“Effects”, 5.04
“Houses”, 5.03
Open fields, distinguished, 5.03, 5.04, 6.06
“Papers”, 5.04
“Persons”, 5.02
Significance of phrase, 5.01
Petit Jury, 1.03[C][7]
Plain Feel (See Plain-View Doctrine)
Plain Hearing (See Plain-View Doctrine)
Plain Smell (See Plain-View Doctrine)
Plain Touch (See Plain-View Doctrine)
Plain-View Doctrine
Generally, 14.01
Elements of, 14.02, 14.03
Inadvertent discovery, 14.04
Plain hearing, 14.05[A]
Plain smell, 14.05[A]
Plain touch, 14.05[B]
Rationale, 14.01[B]
Police Perjury, 8.03[C]
Poverty and the Law, 2.05
Preliminary Hearing, 1.03[C][4]
Pretextual Government Conduct
Generally, 2.07[B]
Arrest warrants and, 9.05[D]
Inventories and, 15.01[B][1]
Probable cause and, 8.02[F]
Searches incident to arrest and, 12.04[B]
Pretrial Motions, 1.03[C][6]
Probable Cause
Aguilar (old) test of, 8.04
Arrests versus searches, 8.02[C]
Bald assertions, 8.03[B]
Camara principle of... 8.06
Constitutional role of, 8.01
Defined, 8.02[A]
Determining, generally, 8.03
Gates test of, 8.05
Hearing after arrest (Gerstein), 1.03[C][2]
Hearsay and, 8.03[D]
Objective versus subjective, 8.02[B]
Pretext and, 8.02[F]
Quantifying, 8.07
Sliding-scale debate regarding, 8.07[C]
Totality of circumstances test, 8.05
Warrant versus no warrant, 8.02[D]
Probationers and Fourth Amendment, 18.05[B][3]
[654/655] Protective Sweeps
Generally, 17.08
Incident to an arrest, 12.02[C][3]
R
Race and/or Nationality and the Law
Generally, 2.05
Border searches, 18.03[B][3]
Consent searches, 16.03[A]
Pretextual police conduct (and racial profiling), 2.05, 2.07[B], 8.02[F], 17.03[B][5]
“Reasonable person” test and the Fourth Amendment, 7.03[C][3]
Terry stops and pat-downs, 17.01
Random Suspicionless Searches and Seizures
Automobile drivers for signs of intoxication, 18.04[B][1]
Border searches, 18.03[B][3]
Drug and alcohol testing, 18.05[C]
Drug interdiction checkpoints, 18.04[B][2]
Sobriety checkpoints, 18.04[B][1]
Vehicles, for licenses and registration, 18.04[A]
Reasonableness Standard, Fourth Amendment
Consent searches, 16.02[B], 16.06
Constitutional debate regarding, 10.01
Non-criminal investigatory searches, 18.01–18.05
Probable cause
Camara principle, 8.06
Sliding-scale, 8.07[C]
Searches and seizures, Terry principle, 17.02
Surgical procedure and, 11.02
Reasonable Suspicion (See also Terry v. Ohio Principles)
Quantum of evidence required, 17.03[A]
Types of information considered
Generally, 17.03[B][1]
Drug-courier profiles, 17.03[B][3]
Flight from police, 17.03[4]
Hearsay, 17.03[B][2]
Nature of the Neighborhood, 17.03[B][4]
Race, ethnicity, nationality of the Suspect, 17.03[B][5]
S
“Search” (See also Search Warrants; Terry v. Ohio Principles)
Aerial surveillance, 6.07
Bank records, 6.10[B]
Binary searches, 6.09
Cell phones, 6.10[F]
Constitutional significance of term, 7.01
Contraband, testing for, 6.09
Conversations
Generally, 6.03
False friends, 6.05
Dog sniffs, 6.09[B]
Electronic tracking devices (beepers), 6.10[C]
Extraterritorial, 4.04[F]
Garbage bags, 6.08
Katz, explained and critiqued, 6.03
Open fields doctrine, 6.06
Pen registers, 6.10[B]
Post-Katz law overview, 6.04
Pre-Katz law, 6.02
Private searches, 4.04[D]
Technological information-gathering, 6.10
Thermal imagers, 6.10[D]
Trespass doctrine, 6.02
Search Incident to Lawful Arrest
Belton
Analyzed, 12.05[A]
Criticized, 12.05[B]
Chimel, analyzed, 12.03
Gant, analyzed, 12.05[C]
Probable cause requirement, 12.01[C]
Robinson, analyzed, 12.04
Warrant exception
Generally, 12.01[A]
In detail, 12.02
Rationale of, 12.01[B]
Search Warrant Exceptions (See specific exceptions)
Search Warrants
Application process, 10.02
Constitutional debate regarding, 10.01
Execution of
Anticipation of, procedures, 10.04[A]
Knock-and-announce rules, 10.04[C]
Night-time, 10.04[B]
Scope of search, 10.04[F]
Search of persons, during execution, 10.04[D]
Seizure of person, during execution, 10.04[E]
Requirement of
Neutral and detached magistrate, 10.03[A]
Oath or affirmation, 10.03[B]
Particularity, 10.03[C], 20.06[A][3][a]
Probable cause, Chapter 8
“Seizure” (See also Arrests; Terry v. Ohio Principles)
[655/656] Articles, subject to, 8.02[E]
Bus sweeps, as, 7.03[C][2][c]
Constitutional significance of term, 7.01
Defined
Persons, 7.03
Property, 7.02[A]
Electronic devices, installed, 7.02[B]
Factory sweeps, 7.03[C][2][b]
Nature of “reasonable person”, 7.03[C][3]
Pursuit, as potential means of, 7.03[D]
Questioning, as potential means of, 7.03[C][2][a]
Submission by authority, 7.03[D]
Self-Incrimination, Privilege Against (See Also Interrogations, Generally; Miranda v. Arizona)
Generally, 23.01
Debate regarding, 23.03
Elements of
“Compelled”, 23.04[B], 23.05[A]
“In Any Criminal Case”, 23.04[C]
Incrimination threat, 23.04[D][2]
“No Person”, 23.04[A]
“Testimonial or Communicative” requirement, 23.04[D][1]
“Witness Against Himself”, 23.04[D]
Historical origins of, 23.02
Interrogation cases
Compulsion, defined, 23.03[A]
Exclusionary rule, 23.04[B][3]
McNabb-Mallory rule, 23.05
Relationship to Due Process Clause, 23.03[A][2]
Standing to raise claim, 23.04[B][2]
State action requirement, 23.04[B][1]
Torture and, 21.04[C]
“Silver Platter” Doctrine, 4.04[E]
Sobriety Checkpoints (See Checkpoints)
Special-Needs Searches and Seizures
Generally, 18.05[A]
Drug and alcohol testing
Approved testing, 18.05[C][2]
Candidates for public office, 18.05[C][3]
Factors in determining validity, 18.05[C][1]
Pregnant mothers in public hospitals, 18.05[C][3]
Public employees, 18.05[C][2][a]
Public school students, 18.05[C][2][b]
Searches of persons and property,
Probationers, 18.05[B][3]
Public employees, 18.05[B][2]
Public school students, 18.05[B][1]
Standing
Due process clause, 22.03[B]
Fourth Amendment
Generally, 4.04[A]
Automatic, 19.03[B]
Current search law of, 19.04[A]
Derivative, 19.03[A]
Driver of car, 19.04
Pre-Rakas law of, 19.03
Privilege against self-incrimination, 23.04[B][2]
Rationale of requirement, 19.02
Seizures, 19.05
Target, 19.04[A]
State Action
Due process clause, 22.03[A]
Fourth Amendment, 4.04[D]
Privilege against self-incrimination, 23.04[B][1]
State Constitutional Law
Generally, 1.02[A]
Rejection of federal constitutional law, 6.04[B], 6.05[C], 6.06[A], 6.07[C], 6.08, 6.09[A], 6.10[B],
6.10[C], 7.03[D], 8.02[F], 8.05[A], 9.03, 9.05[B], 10.04[C][2], 12.05[A], 12.05[B], 13.01[B],
13.05[C][4], 14.04, 15.01[A], 15.02, 16.03[D], 16.06, 17.02, 17.03[A], 17.04[C][2], 17.07, 18.02,
18.04[B][1], 18.05[B][3], 18.05[C][2][b], 19.03[B], 19.04[A], 19.04[B][1][b], 20.06[A][1], 20.07[C],
20.07[D], 20.07[E][2][a], 22.03[A], 23.04[B], 24.04[B][1][b], 24.10[A][4], 24.10[A][5], 24.10[B]
[3][b][I], 24.12[A], 24.12[B][3], 25.04, 25.06[D][2], 26.04, 28.03[B][4][b], 28.04[B][4][d],
28.05[B][3]
Stop-and-Identify Statutes
Fourth Amendment and, 9.04
Fifth Amendment and, 23.04[D][2]
Supreme Court History, 1.04[E]
Surgical Procedures
Probable cause, 8.07[C][1]
Reasonableness of, as Fourth Amendment issue, 11.02
Warrants, 11.02
T
Terrorism
Due Process Clause, torture, and, 22.02[B][2]
Fourth Amendment and, 17.03[B][5], 18.01, 18.03, 18.04[B][2]
Interrogations and, 21.04[C]
[656/657] Terry v. Ohio Principles (See also Reasonable Suspicion)
Arrest, distinguished from, 17.04[C][1]
Automobile driver, forced removal from, 17.04[C][2]
Duration of detention, 17.04[B]
Forcible movement of suspect, 17.04[C]
Grounds for detentions, 17.05
Property, temporary detention of, 17.09
Protective sweeps, 17.08
Racial profiling and, 17.03[B][5]
Significance of Terry in Fourth
Amendment law, 17.01
Terry, summarized, 17.02
Weapons-searches
Automobile, 17.07
Persons, 17.06
Thermal Imagers, 6.10[A]
Third Party Doctrine, 6.10
U
Use of Force
After arrest, 9.07
During arrest, 9.06[B]
W
Wiretapping (See Electronic Surveillance)
Table of Cases
A
[632/633] Abramoff, State v., 338 N.W.2d 502 (Wis. 1983), 358
Adams v. Williams, 407 U.S. 143 (1972), 291, 292, 294
Adams, People v., 423 N.E.2d 379 (N.Y. 1981), 561
Adamson v. California, 332 U.S. 46 (1947), 45
Aguilar v. Texas, 378 U.S. 108 (1964), 140
Aguirre, State v., 301 Kan. 950 (2015), 504
Ake v. Oklahoma, 470 U.S. 68 (1985), 591
Alabama v. Shelton, 535 U.S. 654 (2002), 587
Alabama v. White, 496 U.S. 325 (1990), 291, 292, 294
Alderman v. United States, 394 U.S. 165 (1969), 345, 349, 350
Allen v. Illinois, 478 U.S. 364 (1986), 453, 598
Allen, State v., 241 P.3d 1045 (Mont. 2010), 87, 551
Allen, State v., 255 P.3d 784 (Wash. App. 2011), 87, 551
Almeida-Sanchez v. United States, 413 U.S. 266 (1973), 289, 320
Alston, State v., 440 A.2d 1311 (N.J. 1981), 346
Alvarez, State v., 138 Haw. 173 (2016), 286
Amendola, Commonwealth v., 550 N.E.2d 121 (Mass. 1990), 351
Amos v. United States, 255 U.S. 313 (1921), 265
Anders v. California, 386 U.S. 738 (1967), 592–593
Andresen v. Maryland, 427 U.S. 463 (1976), 67, 135, 188
Apple MacPro Computer, United States v., 851 F.3d 238 (3rd Cir. 2017), 455
Argersinger v. Hamlin, 407 U.S. 25 (1972), 13, 584
Arizona v. Fulminante, 499 U.S. 279 (1991), 435, 460
Arizona v. Gant, 556 U.S. 332 (2009), 205–207, 221, 398
Arizona v. Hicks, 480 U.S. 321 (1987), 118, 207, 245, 248, 265
Arizona v. Johnson, 555 U.S. 323 (2009), 305, 308, 309
Arizona v. Roberson, 486 U.S. 675 (1988), 505
Arkansas v. Sanders, 442 U.S. 753 (1979), 182, 239
Arkansas v. Sullivan, 532 U.S. 769 (2001), 258
Arvizu, United States v., 534 U.S. 266 (2002), 290
Ash, United States v., 413 U.S. 300 (1973), 558, 578, 579
Ashcraft v. Tennessee, 322 U.S. 143 (1944), 419, 422, 430, 435, 480
Ashcroft v. Al-Kidd, 563 U.S. 731 (2011), 40, 328
Atwater v. City of Lago Vista, 195 F.3d 242 (5th Cir. 1999), 158
[633/634] Atwater v. Lago Vista, 532 U.S. 318 (2001), 38, 137, 158, 177, 182, 208
Avants, United States v., 278 F.3d 510 (5th Cir. 2002), 532
B
Bailey v. United States, 133 S. Ct. 1031 (2013), 194
Baker v. McCollan, 443 U.S. 137 (1979), 50
Balicki, Commonwealth v., 762 N.E.2d 290 (Mass. 2002), 251
Balsys, United States v., 524 U.S. 666 (1998), 453
Banks, United States v., 540 U.S. 31 (2003), 191
Barnard v. State, 124 So. 479 (Miss. 1929), 87
Barron v. Baltimore, 32 U.S. (7 Pet.), 43
Bartlett, State v., 999 P.2d 274 (Kan. 2000), 358
Batts, State v., 195 P.3d 144 (Alaska Ct. App. 2008), 512
Bauder, State v., 924 A.2d 38 (Vt. 2007), 220
Bauer, State v., 36 P.3d 892 (Mont. 2001), 158
Baze v. Rees, 553 U.S. 35 (2008), 50
Beauchesne, State v., 868 A.2d 972 (N.H. 2005), 127
Beavers v. State, 998 P.2d 1040 (Alaska 2000), 436
Beck v. Ohio, 379 U.S. 89 (1964), 133
Beecher v. Alabama, 389 U.S. 35 (1967), 433
Bell v. Cone, 535 U.S. 685 (2002), 613
Bellis v. United States, 417 U.S. 85 (1974), 451
Belton, People v., 432 N.E.2d 745 (N.Y. 1982), 220
Bender, People v., 551 N.W.2d 71 (Mich. 1996), 500
Benton v. Maryland, 395 U.S. 784 (1969), 45
Berger v. New York, 388 U.S. 41 (1967), 118
Berghuis v. Thompkins, 560 U.S. 370 (2010), 498, 502
Berkemer v. McCarty, 468 U.S. 420 (1984), 157, 162, 471, 488, 489, 491, 492
Berkowitz, United States v., 927 F.2d 1376 (7th Cir. 1991), 167
Betts v. Brady, 316 U.S. 455 (1942), 582, 583, 585
Bevel, State v., 745 S.E.2d 257 (W.Va. 2013), 541
Birchfield v. North Dakota, 136 S. Ct. 1241 (2016), 200, 211
Biswell, United States v., 406 U.S. 311 (1972), 317
Blackburn v. Alabama, 361 U.S. 199 (1960), 428, 434
Bland, People v., 884 P.2d 312 (Colo. 1994), 157
Blockburger v. United States, 284 U.S. 299 (1932), 531
Blow, State v., 602 A.2d 552 (Vt. 1991), 87
Board of Education v. Earls, 536 U.S. 822 (2002), 340
Bobby v. Van Hook, 558 U.S. 4 (2009), 617
Boland, State v., 800 P.2d 1112 (Wash. 1990), 95
Bond v. State, 9 N.E.3d 134 (Ind. 2014), 436
Bond v. United States, 529 U.S. 334 (2000), 67, 84
Bonnell, State v., 856 P.2d 1265 (Haw. 1993), 84
Bostick v. State, 593 So. 2d 494 (Fla. 1992), 124
Bowe, State v., 881 P.2d 538 (Haw. 1994), 437
[634/635] Boyd v. United States, 116 U.S. 616 (1886), 55, 66, 71, 89, 455
Boylan, People v., 854 P.2d 807 (Colo. 1993), 97
Brady v. Maryland, 373 U.S. 83 (1963), 50
Bram v. United States, 168 U.S. 532 (1897), 413, 429, 435, 447, 459, 478
Breithaupt v Abram, 352 U.S. 432 (1957), 367
Brendlin v. California, 551 U.S. 249 (2007), 120, 124, 129, 363
Brewer v. Williams, 430 U.S. 387 (1977), 39, 494, 511, 521, 522, 525, 526, 528, 530, 533, 534, 537–539,
547
Brigham City, Utah v. Stuart, 547 U.S. 398 (2006), 198, 202
Brignoni-Ponce, United States v., 422 U.S. 873 (1975), 289, 320, 323
Brinegar v. United States, 338 U.S. 160 (1949), 131, 132, 138, 151, 154
Brooks v. Florida, 389 U.S. 413 (1967), 433
Brooks v. Tennessee, 406 U.S. 605 (1972), 608
Brower v. Inyo County, 489 U.S. 593 (1989), 120
Brown v. Mississippi, 297 U.S. 278 (1936), 413, 426, 427, 433
Brown v. Texas, 443 U.S. 47 (1979), 117, 118, 150, 161, 245, 297, 324, 329
Brown v. United States, 411 U.S. 223 (1973), 350
Brown v. Walker, 161 U.S. 591 (1896), 453
Brown, State v., 156 S.W.2d 722 (Ark. 2004), 158
Brown, State v., 792 N.E.2d 175 (Ohio 2003), 158
Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989)
Bryan v. State, 571 A.2d 170 (Del. 1990), 500
Bryant, State v., 950 A.2d 467 (Vt. 2008), 93
Bryant, United States v., 136 S. Ct. 1954 (2016), 588
Buch v. Davis, 137 S.Ct. 759 (2017), 620
Buie v. State, 580 A.2d 167 (Md. 1990), 313
Bullock, State v., 901 P.2d 61 (Mont. 1995), 88
Bumper v. North Carolina, 391 U.S. 543 (1968), 268
Burdeau v. McDowell, 256 U.S. 465 (1921), 59
Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001), 613, 625
Burger v. Kemp, 483 U.S. 776 (1987), 614, 616, 626
Burns v. Ohio, 360 U.S. 252 (1959), 591
Buza, People v., 231 Cal. App.4th 1446 (Cal. 2014), 215
Byrd v. United States, 359
C
Cabagbag, State v., 277 P.3d 1027 (Hawaii 2012), 554
Caballes, People v., 851 N.E.2d 26 (Ill. 2006), 5
Cady v. Dombrowski, 413 U.S. 433 (1973), 235
Calandra, United States v., 414 U.S. 338 (1974), 11, 370, 372, 375, 383, 385
California v. Acevedo, 500 U.S. 565 (1991), 55, 175, 181, 183, 230, 239, 240, 243
California v. Beheler, 463 U.S. 1121 (1983), 488, 490
California v. Carney, 471 U.S. 386 (1985), 227–229, 236, 237
[635/636] California v. Ciraolo, 476 U.S. 207 (1986), 83, 92
California v. Greenwood, 486 U.S. 35 (1988), 82
California v. Hodari D., 499 U.S. 621 (1991), 127, 298
California v. Minjares, 443 U.S. 916 (1979), 573
California v. Prysock, 453 U.S. 355 (1981), 496
Camacho v. State, 75 P.3d 370 (Nev. 2003), 220
Camara v. Municipal Court, 387 U.S. 523 (1967), 59, 147, 176, 281, 286, 316
Campbell, State v., 759 P.2d 1040 (Or. 1988), 77, 109
Campos v. State, 870 P.2d 117 (N.M. 1994), 163
Caplin & Drysdale v. United States, 491 U.S 617 (1989), 606
Cardwell v. Lewis, 417 U.S. 583 (1974), 229, 236
Carpenter, United States v., 819 F.3d 380 (6th Cir. 2016), 108, 110
Carpenter v. United States, 108, 110
Carroll v. United States, 267 U.S. 132 (1925), 228, 230, 231, 234
Carter v. Kentucky, 450 U.S. 288 (1981), 13
Chadwick, United States v., 433 U.S. 1 (19), 54, 67, 211, 240
Chambers v. Maroney, 399 U.S. 42 (1970), 229, 231, 234, 237, 242
Chandler v. Fretag, 38 U.S. 3, (1954), 579
Chandler v. Miller, 520 U.S. 305 (1997), 341
Chavez v. Martinez, 538 U.S. 760 (2003), 367, 427, 439, 442, 463, 486, 517
Chimel v. California, 395 U.S. 752 (1969), 37, 65, 176, 179, 205, 212, 215, 217, 221
Clarke, Commonwealth v., 960 N.E.2d 306 (Mass. 2011), 502
Clayton, State v., 45 P.3d 30 (Mont. 2002), 127
Clinton v. Virginia, 377 U.S. 158 (1964), 66
Coker, United States v., 433 F.3d 39 (1st Cir. 2005), 532
Collins v. Virginia, 238
Coleman v. Alabama, 399 U.S. 1 (1970), 578
Colorado v. Bannister, 449 U.S. 1 (1980), 229
Colorado v. Bertine, 479 U.S. 367 (1987), 40, 257–260
Colorado v. Connelly, 479 U.S. 157 (1986), 429, 437, 439, 498, 499
Colorado v. Spring, 479 U.S. 564 (1987), 500
Commonwealth v. (see name of defendant)
Connally v. Georgia, 429 U.S. 245 (1977), 184
Cooke, State v., 751 A.2d 92 (N.J. 2000), 228
Coolidge v. New Hampshire, 403 U.S. 443 (1971), 184, 227, 233, 237, 246, 247
Cooper Industries v. Leatherman Tool Group, 532 U.S. 424 (2001), 50
Copeland, State v., 226 S.W.3d 287 (Tenn. 2007), 554
Cordova, State v., 784 P.2d 30 (N.M. 1989), 144
Corley v. United States, 556 U.S. 303 (2009), 460
Cortez, United States v., 449 U.S. 411 (1981), 290, 291, 295
Couch v. United States, 409 U.S. 322 (1973), 461
Counselman v. Hitchcock, 142 U.S. 547 (1892), 463
County of Sacramento v. Lewis, 523 U.S. 833 (1998), 120, 367
[636/637] Cox, People v., 782 N.E.2d 275 (Ill. 2002), 97
Crayton, Commonwealth v., 21 N.E.3d 157 (Mass. 2014), 554
Crews, United States v., 445 U.S. 463 (1980), 402
Cromedy, State v., 727 A.2d 457 (N.J. 1999), 554
Cronic, United States v., 466 U.S. 648 (1984), 32, 526, 618
Cuervelo, United States v., 949 F.2d 559 (2d Cir. 1991), 575
Culombe v. Connecticut, 367 U.S. 568 (1961), 269, 430, 431
Cuntapay, State v., 85 P.3d 634 (Hawaii 2004), 356
Cupp v. Murphy, 412 U.S. 291 (1973), 201
Cuyler v. Sullivan, 446 U.S. 335 (1980), 612, 627
D
Dall, United States v., 608 F.2d 910 (1st Cir. 1979), 358
Davis v. Mississippi, 394 U.S. 721 (1969), 308
Davis v. United States, 512 U.S. 452 (1994), 369, 371, 398, 410
Davis v. United States, 564 U.S. 229 (2011), 369, 371, 398, 410
Davis, State v., 732 N.W.2d 173 (Minn. 2007), 97
Davis, United States v., 785 F.3d 498 (11th Cir. 2015), 369, 371, 398, 410
De John, Commonwealth v., 403 A.2d 1283 (Pa. 1979), 107
Dearman, State v., 962 P.2d 850 (Wash. 1998), 98
Defore, People v., 150 N.E. 585 (N.Y. 1926), 24, 380
Delaware v. Prouse, 440 U.S. 648 (1979), 322, 323, 325, 328
Delgado, State v., 902 A.2d 888 (N.J. 2006), 553
Derricott v. State, 611 A.2d 592 (Md. 1992), 297
Devone, People v., 931 N.E.2d 70 (N.Y. 2010), 97
Dichiarinte, United States v., 445 F.2d 126 (7th Cir. 1971), 270
Dickerson v. United States, 530 U.S. 428 (2000), 418, 429, 430, 460, 483, 485, 517
DiGiambattista, Commonwealth v., 813 N.E.2d 516 (Mass. 2004), 472
Dionisio, United States v., 410 U.S. 1 (1973), 455
Dixon, Commonwealth v., 482 S.W.3d 386 (Ky. 2016), 90
Dixson, State v., 766 P.2d 1015 (Or. 1988), 88
Doe v. United States, 487 U.S. 201 (1988), 451, 454
Doe, United States v., 465 U.S. 605 (1984), 451, 454
Donovan v. Dewey, 452 U.S. 594 (1981), 317
Dotson, United States v., 817 F.2d 1127, 358
Douglas v. California, 372 U.S. 353 (1963), 591
Dowling v. United States, 493 U.S. 342 (1990), 50
Draper v. Washington, 372 U.S. 487 (1963), 591
Drayton, United States v., 536 U.S. 194 (2002), 121, 125, 264, 267, 268
Driver, United States v., 776 F.2d 807 (9th Cir. 1985), 166
Dubose, State v., 699 N.W.2d 582 (Wis. 2005), 554
Dubray, State v., 77 P.3d 247 (Mont. 2003), 554
Duckworth v. Eagan, 492 U.S. 195 (1989), 496
Dunaway v. New York, 442 U.S. 200 (1979), 38, 120, 157, 303, 304
[637/638] Duncan v. Louisiana, 391 U.S. 145 (1968), 47
Dunn, People v., 564 N.E.2d 1054 (N.Y. 1990), 98
Dunn, United States v., 480 U.S. 294 (1987), 89
Dyson v. State, 712 A.2d 573, rev’§, Maryland v. Dyson, 527 U.S. 465 (1999), 175
E
Earls v. State, 496 S.W.2d 464 (Tenn. 1973), 269
Earls, State v., 70 A.3d 630 (N.J.2013), 269
Edwards v. Arizona, 451 U.S. 477, 482 (1981), 498, 504, 540
Edwards, 415 U.S. 800 (1974), 67, 210–212, 262, 498, 504–508, 540–542, 600–602
Elison, State v., 14 P.3d 456 (Mont. 2000), 228
Elkins v. United States, 364 U.S., 369, 374
Escobedo v. Illinois, 378 U.S. 478 (1964), 33, 420, 421, 468, 471, 476, 521
Estabillio, State v., 218 P.3d 749 (Haw. 2009), 286
Estelle v. Smith, 451 U.S. 454 (1981), 578
F
Faretta v. California, 422 U.S. 806 (1975), 596, 600, 629
Farris, State v., 849 N.E.2d 985 (Ohio 2006), 517
Fellers v. United States, 540 U.S. 519 (2004), 533, 534, 537
Ferguson v. City of Charleston, 532 U.S. 67 83 n. 21 (2001), 318, 328, 330, 342
Ferguson v. Georgia, 365 U.S. 570 (1961), 608
Fernandez v. California, 134 S. Ct. 1126 (2014), 181, 267, 275
Ferrier, State v., 960 P.2d 927 (Wash. 1998), 266, 271
Fikes v. Alabama, 352 U.S. 191 (1957), 433
Fisher v. United States, 425 U.S. 391 (1976), 453
Flores-Montano, United States v., 541 U.S. 149 (2004), 319
Flores-Ortega, Roe v., 612, 618
Florida v. Bostick, 501 U.S. 429 (1991), 124, 125
Florida v. Harris, 133 S. Ct. 1050 (2013), 145
Florida v. J.L., 529 U.S. 266 (2000), 291, 293
Florida v. Jardines, 133 S. Ct. 1409 (2013), 81, 90, 98
Florida v. Jimeno, 500 U.S. 248 (1991), 181, 265, 273
Florida v. Meyers, 466 U.S. 380 (1984), 28
Florida v. Nixon, 543 U.S. 175 (2004), 596, 613
Florida v. Powell, 559 U.S. 50 (2010), 496
Florida v. Riley, 488 U.S. 445 (1989), 73, 93
Florida v. Royer, 460 U.S. 491 (1983), 122, 133, 296, 304, 306, 308
Florida v. Wells, 95 U.S. 1 (1990), 259
Florida v. White, 526 U.S. 559 (1999), 229, 244
Forrester, United States v., 495 F.3d 1041 (2007), 114
Frank, United States v., 864 F.2d 992 (3d Cir. 1988), 258
Franks v. Delaware, 438 U.S. 154 (1978), 185, 391
Frazier v. Cupp, 394 U.S. 731 (1969), 436
Frisbie v. Collins, 342 U.S. 519 (1952), 163
[638/639] G
Gaddis v. Redford Township, 364 F.3d 763 (6th Cir. 2004), 308
Gagnon v. Scarpelli, 411 U.S. 778 (1973), 588
Galloway, State v., 109 P.3d 383 (Or. App. 2005), 95
Garcia, State v., 217 P.3d 1032 (N.M. 2009), 127
Garrity v. New Jersey, 385 U.S. 493 (1967), 417, 452
Garza v. Idaho, 618
Geders v. United States, 425 U.S. 80 (1976), 608
Georgia v. Randolph, 547 U.S. 103 (2006), 265, 267, 275
Geraw, State v., 795 A.2d 1219 (Vt. 2002), 87
Gerstein v. Pugh, 420 U.S. 103 (1975), 578
Gideon v. Wainwright, 372 U.S. 335 (1963), 13, 418, 521, 579, 580, 583, 598, 618
Gilbert v. California, 388 U.S. 263 (1967), 455, 552, 579
Gillam, People v., 734 N.W.2d 585 (Mich. 2007), 167
Glover v. United States, 531 U.S. 198 (2001), 619
Godinez v. Moran, 509 U.S. 389 (1993), 601
Goetz, State v., 191 P.3d 489 (Mont. 2008), 87
Gonsalves, Commonwealth v., 711 N.E.2d 108 (Mass. 1999), 305
Gooding v. United States, 416 U.S. 430 (1974), 189
Goss, State v., 834 A.2d 316 (N.H. 2003), 95
Gouled v. United States, 255 U.S. 298 (1921), 134
Grady v. North Carolina, 135 S. Ct. 1368 (2015), 81
Graham v. Connor, 490 U.S. 386 (1989), 171
Granville, State v., 142 P.3d 933 (N.M. App. 2006), 95
Griffin v. California, 380 U.S. 609 (1965), 13
Griffin v. Illinois, 351 U.S. 12 (56), 27, 580, 590, 606
Griminger, People v., 524 N.E.2d 409 (N.Y. 1988), 144
Griswold v. Connecticut, 381 U.S. 479 (1965), 48
Groh v. Ramirez, 540 U.S. 551 (2004), 187, 202
Guilbert, State v., 49 A.3d 705 (Conn. 2012), 554
Gunwall, State v., 720 P.2d 808 (Wash. 1986), 106
Gustafson v. Florida, 414 U.S. 260 (1973), 219, 289
Gutierrez-Perez, State v., 323 P.3d 1017 (Utah 2014), 183
H
Halbert v. Michigan, 545 U.S. 605 (2005), 594, 595
Hale v. Henkel, 201 U.S. 43 (1906), 451, 456
Haley, People v., 41 P.3d 666 (Colo. 2001), 97
Hall v. State, 145 P.3d 605 (Alaska App. 2006), 127
Hamilton v. Alabama, 368 U.S. 52 (1961), 578
Hampton v. United States, 425 U.S. 484 (1976), 574
Hanson, United States v., 801 F.2d 757 (5th Cir. 1986), 296
Harris v. New York, 401 U.S. 222 (1971), 407
Harris v. United States, 331 U.S. 145 (1947), 143, 215
Hayes v. Florida, 470 U.S. 811 (1985), 120, 308
Hayes, United States v., 231 F.3d 1132 (9th Cir. 2000), 602
[639/640] Haynes v. Washington, 373 U.S. 503 (1963), 433
Heath v. Alabama, 474 U.S. 82 (1985), 532
Heien v. North Carolina, 135 S. Ct. 530 (2014), 289
Hempele, State v., 576 A.2d 793 (N.J. 1990), 95
Henderson, State v., 27 A.3d 872 (N.J. 2011), 554
Henry v. United States, 361 U.S. 98 (1959), 119, 132, 157, 493, 523, 532, 534, 537, 538
Henry, United States v., 447 U.S. 264 (1980), 119, 132, 157, 493, 523, 532, 534, 537, 538
Hensley, United States v., 469 U.S. 221 (1985), 120
Hernandez, State v., 410 So. 2d 1381 (La. 1982), 220
Herring v. New York, 422 U.S. 853 (1975), 608
Herring v. United States, 555 U.S. 135 (2009), 58, 369, 371, 378, 395, 410
Hester v. United States, 265 U.S. 57 (1924), 66, 87, 88
Higazy v. Templeton, 505 F.3d 161 (2d Cir. 2007), 462
Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004), 161
Hinton v. Alabama, 134 S. Ct. 1081 (2014), 617
Hoey, State v., 881 P.2d 504 (Haw. 1994), 506
Hof v. State, 629 A.2d 1251 (Md. Ct. Spec. App. 1993), 459
Hoffa v. United States, 385 U.S. 293 (1966), 86, 524
Hoffman v. United States, 341 U.S. 479 (1951), 456, 457
Holeman, State v., 693 P.2d 89 (Wash. 1985), 167
Holland v. Jackson, 542 U.S. 649 (2004), 620
Hollingsworth, United States v., 9 F.3d 593 (7th Cir. 1993), 568
Holloway v. Arkansas, 435 U.S. 475 (1978), 626–628
Holt v. United States, 218 U.S. 245 (1910), 455
Hopt v. Utah, 110 U.S. 574 (1884), 413, 425
Horton v. California, 496 U.S. 128 (1990), 196, 246, 247, 251, 397, 403
Horton, State v., 625 N.W.2d 362 (Iowa 2001), 150, 151
Houston, United States v., 813 F.3d 282 (6th Cir. 2016), 112, 113
Howes v. Fields, 132 S. Ct. 1181 (2012), 489–491
Hubbell, United States v., 530 U.S. 27 (2000), 453, 457
Hudson v. Michigan, 547 U.S. 586 (2006), 58, 190, 371, 376, 384, 386, 400, 403, 406, 407
Huggins, United States v., 299 F.3d 1039 (9th Cir. 2002), 103
Hughes, United States v., 517 F.3d 1013 (8th Cir. 2008), 308
Hulit v. State, 982 S.W.2d 431 (Tex. Crim. App. 1998), 181
Hunt, State v., 450 A.2d 952 (N.J. 1982), 106, 324
Hunt, State v., 924 A.2d 424 (N.H. 2007), 106, 324
Hurtado v. California, 110 U.S. 516 (1884), 11, 50
I
I.N.S. v. Delgado, 466 U.S. 210 (1984), 121
Illinois v. Andreas, 463 U.S. 765 (1983), 73
Illinois v. Caballes, 543 U.S. 405 (2005), 96, 97, 285
Illinois v. Gates, 462 U.S. 213 (1983), 134, 138, 144, 149, 290, 293, 391
[640/641] Illinois v. Lafayette, 462 U.S. 640 (1983), 260, 262
Illinois v. Lidster, 540 U.S. 419 (2004), 329
Illinois v. McArthur, 531 U.S. 326 (2001), 118, 188
Illinois v. Perkins, 496 U.S. 292 (1990), 437, 495
Illinois v. Rodriguez, 497 U.S. 177 (1990), 151, 265, 266, 278, 289
Illinois v. Wardlow, 528 U.S. 119 (2000), 126, 289, 298
In re (see name of party)
Indiana v. Edwards, 554 U.S. 164 (2008), 600, 601
Indianapolis, City of, v. Edmond, 531 U.S. 32 (2000), 137, 316, 326
INS v. Delgado, 466 U.S. 210 (1984), 289
Irvine v. California, 347 U.S. 128 (1954), 367
J
J.D.B.v. North Carolina, 564 U.S. 261 (2011), 488
J.E.B.v. Alabama ex rel. T.b. 511 U.S. 127 (1994), 34
Jackson, People v., 452 N.E.2d 85 (Ill. 1983), 107
Jackson, State v., 688 P.2d 136 (Wash. 1984), 144
Jacobsen, United States v., 466 U.S. 109 (1984), 59, 100, 118, 363
Jacobson v. United States, 503 U.S. 540 (1992), 564, 565
Jamieson, People v., 461 N.W.2d 884 (Mich. 1990), 570
Janis, United States v., 428 U.S. 433 (1976), 369, 371, 384, 439
Jarrett, United States v., 338 F.3d 339 (4th Cir. 2003), 59
Jeffers, United States v., 342 U.S. 48 (1951), 350, 352
Jefferson v. Upton, 560 U.S. 284 (2010), 617
Jewell v. State, 957 N.E.2d 625 (Ind. 2011), 258, 530
Jewell, State v., 338 So. 2d 633 (La. 1976), 258, 530
Johns, United States v., 469 U.S. 478 (1985), 229, 240
Johnson v. New Jersey, 384 U.S. 719 (1966), 469, 514
Johnson v. United States, 333 U.S. 10 (1948), 9, 133, 134, 179, 184, 265
Johnson v. Zerbst, 304 U.S. 458 (1938), 266, 272, 473, 498, 555, 582, 583, 602
Johnson, Commonwealth v., 650 N.E.2d 1257 (Mass. 1995), 561
Johnson, State v., 501 N.W.2d 876 (Wis. Ct. App. 1993), 167
Johnston, Commonwealth v., 530 A.2d 74 (Pa. 1987), 98
Jones v. Barnes, 463 U.S. 745 (1983), 13, 591
Jones v. State, 745 A.2d 856 (Del. 1999), 115, 127, 144, 558
Jones v. United States, 357 U.S. 493 (1958), 55, 71, 76, 78, 79, 90, 107, 110, 112, 115, 176, 345, 350, 352,
355
Jones v. United States, 362 U.S. 257 (1960), 55, 71, 76, 78, 79, 90, 107, 110, 112, 115, 176, 345, 350, 352,
355
Jones, State v., 706 P.2d 317 (Alaska 1985), 115, 127, 144, 558
Jones, State v., 849 So. 2d 438 (Fla. App. 2003), 115, 127, 144, 558
Jones, United States v., 132 S. Ct. 945 (2012), 55, 71, 76, 78, 79, 90, 107, 110, 112, 115, 176, 345, 350, 352,
355
K
Kansas v. Glover, 291
Kansas v. Ventris, 556 U.S. 586 (2009), 526, 544
Kattaria, United States v., 503 F.3d 703 (8th Cir. 2007), 103
[641/642] Katz v. United States, 389 U.S. 347 (1967), 15, 33, 55, 66, 71, 72, 101, 176, 181, 242, 270, 353
Kaupp v. Texas, 538 U.S. 626 (2003), 304, 409
Kelly, State v., 999 So. 2d 1029 (Fla. 2008), 589
Kentucky v. King, 563 U.S. 452 (2011), 181, 202, 203
Kim, State v., 11 P.2d 1291 (Haw. 1985), 304
Kimmelman v. Morrison, 477 U.S. 365 (1986), 617, 623
Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), 173
Kirby v. Illinois, 406 U.S. 682 (1972), 469, 528, 555, 556
Kirchoff, State v., 587 A.2d 988 (Vt. 1991), 88
Kirk v. Louisiana, 536 U.S. 635 (2002), 83
Kirsch, State v., 686 P.2d 446 (Or. Ct. App. 1984), 220
Knapp, State v., 700 N.W.2d 899 (Wis. 2005), 517
Knowles v. Iowa, 525 U.S. 113 (1998), 208, 309
Knowles v. Mirzayance, 556 U.S. 111 (2009), 615
Kock, State v., 725 P.2d 1285 (Or. 1986), 228
Kuhlmann v. Wilson, 477 U.S. 436 (1986), 537
Kyllo v. United States, 533 U.S. 27 (2001), 55, 70, 75, 83, 94, 98, 102
L
Ladson, State v., 979 P.2d 833 (Wash. 1999), 136
Lanza v. New York, 370 U.S. 139 (1962), 71
Lanza, United States v., 260 U.S. 377 (1922), 532
Larocco, State v., 794 P.2d 460 (Utah 1990), 228
Ledbetter, State v., 881 A.2d 290 (Conn. 2005), 554
Lefkowitz v. Turley, 414 U.S. 70 (1973), 441, 453
Leon, United States v., 468 U.S. 897 (1984), 144, 184, 376, 377, 389
Lewis v. United States, 385 U.S. 206 (1966), 87
Leyra v. Denno, 347 U.S. 556 (1954), 437
Linkletter v. Walker, 381 U.S. 618 (1965), 374
Lisenba v. California, 314 U.S. 219 (1941), 428
Lively, State v., 921 P.2d 1035 (Wash. 1996), 575
Lockhart v. Fretwell, 506 U.S. 364 (1993), 617, 623
Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979), 184, 391
Lopez, State v., 896 P.2d 889 (Haw. 1995), 278
Los Angeles County, California v. Rettele, 550 U.S. 609 (2007), 195
Los Angeles, City of, v. Patel, 135 S. Ct. 2443 (2015), 317
Lovegren, State v., 51 P.3d 471 (Mont. 2002), 198
Luis v. United States, 136 S. Ct. 1083 (2016), 606, 607
Lynumn v. Illinois, 372 U.S. 528 (1963), 437
Lyons, Commonwealth v., 564 N.E.2d 390 (Mass. 1990), 290
M
M.L.B. v. S.L.J., 519 U.S. 102 (1996), 591
Macias, Commonwealth v., 711 N.E.2d 130 (Mass. 1999), 191
MacKintrush v. State, 479 S.W.3d 14 (Ark. 2016), 286
[642/643] Madera, People v., 596 N.Y.S.2d 766 (App. Div. 1993), 127
Maine v. Moulton, 474 U.S. 159 (1985), 41, 525, 535, 536, 538, 541, 544, 545
Mallory v. United States, 354 U.S. 449 (1957), 460, 468
Malloy v. Hogan, 378 U.S. 1 (1964), 49, 417, 441, 459, 468
Manson v. Brathwaite, 432 U.S. 98 (1977), 561
Mapp v. Ohio, 367 U.S. 643 (1961), 47, 52, 57, 365, 367, 369, 371, 376, 388, 389
Marchetti v. United States, 39 U.S. 39, (1968), 457
Marion, United States v., 404 U.S. 307 (1971), 529
Marron v. United States, 275 U.S. 192 (1927), 187
Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), 317
Martin, Commonwealth v., 626 A.2d 556 (Pa. 1993), 97, 517
Martin, Commonwealth v., 827 N.E.2d 198 (Mass. 2005), 97, 517
Martinez v. City of Oxnard, 337 F.3d 1091 (9th Cir. 2003), 367
Martinez v. Court of Appeal of California, 528 U.S. 152 (2000), 599
Martinez-Fuerte, United States v., 428 U.S. 543 (1976), 325
Maryland v. Buie, 494 U.S. 325 (1990), 165, 193, 205, 206, 213, 311, 312
Maryland v. Dyson, 527 U.S. 465 (1999), 175, 228
Maryland v. Garrison, 480 U.S. 79 (1987), 187
Maryland v. King, 133 S. Ct. 1958 (2013), 201, 213, 262, 316
Maryland v. Kulbicki, 136 S. Ct. 2 (2015), 617
Maryland v. Pringle, 540 U.S. 366 (2003), 149, 150
Maryland v. Shatzer, 559 U.S. 98 (2010), 508
Maryland v. Wilson, 519 U.S. 408 (1997), 305
Massaro v. United States, 538 U.S. 500 (2003), 611, 612
Massiah v. United States, 377 U.S. 201 (1964), 468, 521, 526, 538, 544, 578
Matalonis, State v., 875 N.W.2d 567 (Wis. 2016), 199
Matlock, United States v., 415 U.S. 164 (1974), 265, 266, 274, 278
Matos, Commonwealth v., 672 A.2d 769 (Pa. 1996), 127
Mavredakis, Commonwealth v., 725 N.E.2d 169 (Mass. 2000), 500
Mayer v. Chicago, 404 U.S. 189 (1971), 591
McAllister, State v., 875 A.2d 866 (N.J. 2005), 107
McCauley, People v., 645 N.E.2d 923 (Ill. 1994), 500
McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429 (1988), 592
McCoy v. Louisiana, 596
McCray v. Illinois, 386 U.S. 300 (1967), 138, 143, 184
McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), 50
McDonald v. United States, 335 U.S. 451 (1948), 176
McFarland v. Scott, 512 U.S., (1994), 590
McFarland v. Texas, 928 S.W.2d 482 (Tex. Crim. App. 1996), 613
McGahan v. State, 807 P.2d 506 (Alaska Ct. App. 1991), 97
McGautha v. California, 402 U.S. 183 (1971), 452
McKane v. Durston, 153 U.S. 684 (1894), 13, 591
McKaskle v. Wiggins, 465 U.S. 168 (1984), 604
[643/644] McKune v. Lile, 536 U.S. 24 (2002), 452
McLees, State v., 994 P.2d 683 (Mont. 2000), 278
McNabb v. United States, 318 U.S. 332 (1943), 460, 468
McNeil v. Wisconsin, 501 U.S. 171 (1991), 32, 505, 507, 508, 530
Medina, State v., 102 A.3d 661 (Vt. 2014), 215
Melilli, Commonwealth v., 555 A.2d 1254 (Pa. 1989), 106
Melson, State v., 638 S.W.2d 342 (Tenn. 1982), 603
Mempa v. Rhay, 389 U.S. 128 (1967), 578
Mendenhall, United States v., 446 U.S. 544 (1980), 121
Mendez, State v., 970 P.2d 722 (Wash. 1999), 305
Meyer, State v., 893 P.2d 159 (Haw. 1995), 251
Mich. Dept. of State Police v. Sitz, 496 U.S. 444 (1990), 153, 322, 324–326, 328
Michigan v. Harvey, 494 U.S. 344 (1990), 505, 540, 541
Michigan v. Jackson, 475 U.S. 625 (1986), 540, 541
Michigan v. Long, 463 U.S. 1032 (1983), 307, 313
Michigan v. Summers, 452 U.S. 692 (1981), 194–196
Michigan v. Thomas, 458 U.S. 259 (1982), 235
Michigan v. Tucker, 417 U.S. 433 (1974), 483, 485, 487, 514–516
Michigan v. Tyler, 436 U.S. 499 (1978), 59
Mickens v. Taylor, 535 U.S. 162 (2002), 627
Miller v. Fenton, 474 U.S. 104 (1985), 428, 431
Miller, State v., 630 A.2d 1315 (Conn. 1993), 228
Miller, United States v., 425 U.S. 435 (1976), 107
Mincey v. Arizona, 437 U.S. 385 (1978), 427, 439
Minnesota v. Carter, 525 U.S. 83 (1998), 66, 79, 346, 347, 356
Minnesota v. Dickerson, 508 U.S. 366 (1993), 252, 310, 433
Minnesota v. Olson, 495 U.S. 91 (1990), 165, 168, 202, 355, 356, 360
Minnick v. Mississippi, 498 U.S. 146 (1990), 421, 505
Miranda v. Arizona, 384 U.S. 436 (1966), 16, 31, 36, 37, 401, 408, 417, 426, 436, 447, 449, 460, 465–520,
522, 526, 528
Missouri v. Frye, 132 S. Ct. 1399 (2012), 578
Missouri v. McNeely, 133 S. Ct. 1552 (2013), 37, 183, 200
Missouri v. Seibert, 542 U.S. 600 (2004), 460, 496, 497, 518
Mitchell v. Wisconsin, 200
Monsanto, United States v., 491 U.S. 600 (1989), 606
Montejo v. Louisiana, 556 U.S. 778 (2009), 527, 541
Montoya de Hernandez, United States v., 473 U.S. 531 (1985), 319
Mooney, State v., 588 A.2d 145 (Conn. 1991), 182
Moran v. Burbine, 475 U.S. 412 (1986), 498–500, 527, 542
Morris v. Slappy, 461 U.S. 1 (1983), 605
Muehler v. Mena, 544 U.S. 93 (2005), 195
Mullens, State v., 650 S.E.2d 169 (W. Va. 2007), 87
Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964), 445, 447–449, 453
Murray v. Giarratano, 492 U.S. 1 (1989), 593
Myrick, State v., 688 P.2d 151 (Wash. 1984), 88
[644/645] N
Nathanson v. United States, 290 U.S. 41 (1933), 138
Navarette v. Calfornia, 134 S. Ct. 1683 (2014), 294, 307
Neil v. Biggers, 409 U.S. 188 (1972), 559, 561
New Jersey v. Portash, 440 U.S. 450 (1979), 462
New Jersey v. T. L. O., 469 U.S. 325 (1985), 59, 330, 338
New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), 36
New York v. Belton, 453 U.S. 454 (1981), 220, 239
New York v. Burger, 482 U.S. 691 (1987), 66, 317
New York v. Class, 475 U.S. 106 (1986), 118
New York v. P.J. Video, Inc., 475 U.S. 868 (1986), 153
New York v. Quarles, 467 U.S. 649 (1984), 509
Nichols v. United States, 511 U.S. 738 (1994), 588
Nix v. Whiteside, 475 U.S. 157 (1986), 629, 630
North Carolina v. Butler, 441 U.S. 369 (1979), 497
O
O’Connor v. Ortega, 480 U.S. 709 (1987), 333
Ochoa, State v., 792 N.W.2d 260 (Iowa 2010), 335
Ohio v. Robinette, 519 U.S. 33 (1996), 271
Oliver v. United States, 466 U.S. 170, 66, 67, 82, 84, 87, 104
Olmstead v. United States, 277 U.S. 438 (1928), 65, 316
On Lee v. United States, 343 U.S. 747 (1952), 105
Ontario, City of, v. Quon, 560 U.S. 746 (2010), 101, 334
Opperman, State v., 247 N.W.2d 673 (S.D. 1976), 255
Oquendo, State v., 613 A.2d 1300 (Conn. 1992), 127
Oregon v. Bradshaw, 462 U.S. 1039 (1983), 505
Oregon v. Elstad, 470 U.S. 298 (1985), 418, 484, 485, 487, 499, 515, 518
Oregon v. Mathiason, 429 U.S. 492 (1977), 487, 488, 492
Ornelas-Ledesma, United States v., 16 F.3d 714 (7th Cir. 1994), 297
Orozco v. Texas, 394 U.S. 324 (1969), 484, 490
Ortiz, State v., 600 N.W.2d 805 (Neb. 1999), 98
Ortiz, United States v., 422 U.S. 891 (1975), 321
P
Padilla v. Kentucky, 559 U.S. 431 (2010), 578
Palko v. Connecticut, 302 U.S. 319 (1937), 445
Pals, State v., 805 N.W. 2d 767 (Iowa 2011), 271
Parisi, State v., 875 N.W.2d 619, 200
Patane, United States v., 542 U.S. 630 (2004), 487, 511, 515, 517, 519
Patterson v. Illinois, 487 U.S. 285 (1988), 540, 543, 547
Patterson, State v., 774 P.2d 10 (Wash. 1989), 228
Patton, State v., 826 A.2d 783, 436, 437
Payne v. Arkansas, 356 U.S. 560 (1958), 433
Payner, United States v., 447 U.S. 727 (1980), 348
Payton v. New York, 445 U.S. 573 (1980), 54, 55, 170
Pearse v. Pearse, 63 Eng. Rep. 957 (1846), 30
Pellicci, State v., 580 A.2d 710 (N.H. 1990), 97
[645/646] Pennsylvania v. Finley, 481 U.S. 551 (1987), 593
Pennsylvania v. Labron, 518 U.S. 938 (1996), 228
Pennsylvania v. Mimms, 434 U.S. 106 (1977), 304
Pennsylvania v. Muniz, 496 U.S. 582 (1990), 446, 454, 455, 495, 512
People v. (see name of defendant)
Perham, State v., 814 P.2d 914 (Haw. 1991), 262
Perry v. Leeke, 488 U.S. 272 (1989), 608
Perry v. New Hampshire, 132 S. Ct. 716 (2012), 549, 550, 554, 560
Peterson, State v., 923 A.2d 585 (Tenn. 2007), 517
Phelps, State v., 456 N.W.2d 290 (Neb. 1990), 434
Pierce, State v., 642 A.2d 947 (N.J. 1994), 220
Pittman, State v., 127 P.3d 1116 (N.M. App. 2005), 220
Place, United States v., 462 U.S. 696 (1983), 97, 118, 303, 306, 313, 363
Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), 172
Ponce, United States v., 488 F. Supp. 226 (S.D.N.Y. 1980), 166
Pooley v. State, 705 P.2d 1293 (Alaska Ct. App. 1985), 97
Porter P., Commonwealth v., 923 N.E.2d 36 (Mass. 2010), 278
Porter v. McCollum, 558 U.S. 30 (2009), 617
Powell v. Alabama, 287 U.S. 45 (1932), 556, 580, 582, 583, 618
Presha, State v., 748 A.2d 1108 (N.J. 2000), 434
Preston v. United States, 376 U.S. 364 (1964), 209
Puffenbarger, State v., 998 P.2d 788 (Or. App. 2000), 127
Q
Quino, State v., 840 P.2d 358 (Haw. 1992), 127
R
Rabb, State v., 881 So.2d 587 (Fla. App. 2004), 97
Rabinowitz, United States v., 339 U.S. 56 (1950), 176, 282
Rafay, State v., 222 P.3d 86 (Wash. 2009), 599
Rakas v. Illinois, 439 U.S. 128 (1978), 57, 96, 346, 349, 351, 352, 362
Randolph, State v., 74 S.W.3d 330 (Tenn. 2002), 127
Rawlings v. Kentucky, 448 U.S. 98 (1980), 73, 346, 360, 362
Reck v. Pate, 367 U.S. 433 (1961), 433
Reed, State v., 627 A.2d 630 (N.J. 1993), 500
Rees, State v., 48 A.2d 976 (Me. 2000), 437
Reeves v. State, 599 P.2d 727 (Alaska 1979), 262
Reeves, United States v., 524 F.3d 1161 (10th Cir. 2008), 167
Rehburg v. Paulk, 598 F.3d 1268 (11th Cir. 2010), 115
Reid v. Georgia, 448 U.S. 438 (1980), 295, 296
Renda v. King, 347 F.3d 550 (3d. Cir. 2003), 462
Rex v. Warickshall, 1 Leach C.L. 263, 264, 168 Eng. Rep. 234, 425
Rhode Island v. Innis, 446 U.S. 291 (1980), 40, 493, 532, 533, 547
Richards v. Wisconsin, 520 U.S. 385 (1997), 191
Richardson v. State, 865 S.W.2d 944 (Tex. Crim. App. 1993), 106
Riley v. California, 134 S. Ct. 2473 (2014), 181, 183, 207, 211, 223
Risk, State v., 598 N.W.2d 642 (Minn. 1999), 506
[646/647] Robbins v. California, 453 U.S. 420 (1981), 39, 176, 239, 240
Roberson, United States v., 6 F.3d 1088 (5th Cir. 1993), 136
Robinson, United States v., 414 U.S. 218 (1973), 157, 160, 206, 207, 211, 217
Rochin v. California, 342 U.S. 165 (1952), 45, 199, 366, 368
Rodgers, State v., 240 Ariz. 245, 114
Rodriguez v. United States, 135 S. Ct. 1609 (2015), 286
Roe v. Flores-Ortega, 528 U.S. 470 (2000), 612, 618
Rogers v. Richmond, 365 U.S. 534 (1961), 31, 428, 435
Rompilla v. Beard, 545 U.S. 374 (2005), 616, 617, 620
Ross v. Kemp, 393 S.E.2d 244 (Ga. 1990), 613
Ross v. Moffitt, 417 U.S. 600 (1974), 593, 595
Ross, United States v., 456 U.S. 798 (1982), 196, 230, 236, 239, 362
Rothgery v. Gillespie County, 554 U.S. 191 (2008), 12, 528, 529, 578
Rothman, State v., 779 P.2d 1 (Haw. 1989), 106
Rousseau, Commonwealth v., 465 Mass. 372, 990 N.E.2d 543 (Mass. 2013), 112
Rumsfeld v. Padilla, 542 U.S. 426 (2004), 30
Russell, United States v., 411 U.S. 423 (1973), 564, 565, 568–570, 574
S
Safford Unified School District #1 v. Redding, 557 U.S. 364 (2009), 332
Salinas v. Texas, 133 S. Ct. 2174 (2013), 451
Salvucci, United States v., 448 U.S. 83 (1980), 345, 350, 351
Samson v. California, 547 U.S. 843 (2006), 214, 316, 335
Sanchez, State v., 609 A.2d 400 (N.J. 1992), 543
Santana, United States v., 427 U.S. 38 (1976), 166, 167
Santiago, State v., 492 P.2d 657 (Haw. 1972), 167, 512
Santiago, State v., 619 A.2d 1132 (Conn. 1993), 167, 512
Savva, State v., 616 A.2d 774 (Vt. 1991), 243
Sawyer v. Whitley, 505 U.S. 333 (1992), 30
Sawyer, State v., 571 P.2d 1131 (Mont. 1977), 255
Scales, State v., 518 N.W.2d 587 (Minn. 1994), 472
Schmerber v. California, 384 U.S. 757 (1966), 65, 153, 211, 453–455, 495
Schneckloth v. Bustamonte, 412 U.S. 218 (1973), 37, 264–269, 271, 429–431
Schriro v. Landrigan, 550 U.S. 465 (2007), 615, 620, 621
Scott v. Harris, 550 U.S. 372 (2007), 172
Scott v. Illinois, 440 U.S. 367 (1979), 579, 586
Scott v. United States, 436 U.S. 128 (1978), 40
Scott, People v., 593 N.E.2d 1328 (N.Y. 1992), 88, 318
See v. City of Seattle, 387 U.S. 541 (1967), 66, 316
Shadwick v. City of Tampa, 407 U.S. 345 (1972), 185
Shamblin, State v., 763 P.2d 425 (Utah Ct. App. 1988), 259
Sharpe, United States v., 470 U.S. 675 (1985), 307
Sherman v. United States, 356 U.S. 369 (1958), 565, 569
Sibron v. New York, 392 U.S. 40 (1968), 289, 309
Sidebotham, State v., 474 A.2d 1377 (N.H. 1984), 351
[647/648] Silverman v. United States, 365 U.S. 505 (1961), 103
Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), 366, 402
Simmons v. United States, 390 U.S. 377 (1968), 351, 561
Simpson, State v., 622 P.2d 1199 (Wash. 1980), 351
Sims, State v., 808 P.2d 141 (Utah Ct. App. 1991), 324
Sinagoga, State v., 918 P.2d 228 (Haw. Ct. App. 1996), 589
Sitz v. Department of State Police, 506 N.W.2d 209 (Mich. 1993), 322, 324, 326
Skinner v. Railway Labor Executives’ Ass'n, 489 U.S. 602 (1989), 59, 100
Slaughter-House Cases, 83 U.S. (16 Wall.) (1873), 44
Smith v. Maryland, 442 U.S. 735 (1979), 73, 76, 78, 82, 95, 104, 106
Smith v. Phillips, 455 U.S. 209 (1982), 484
Smith v. Robbins, 528 U.S. 259 (2000), 592
Smith, Commonwealth v., 593 N.E.2d 1288 (Mass. 1992), 515
Smith, State v., 834 S.W.2d 915 (Tenn. 1992), 165, 515
Smith, State v., 90 P.3d 221 (Ariz. App. 2004), 165, 515
Sokolow, United States v., 490 U.S. 1 (1989), 289, 290, 296, 306
Sorrells v. United States, 287 U.S. 435 (1932), 564, 565, 568–570
Soto, State v., 734 A.2d 350 (N.J. Super. 1996), 34
South Dakota v. Neville, 459 U.S. 553 (1983), 452
South Dakota v. Opperman, 428 U.S. 364 (1976), 40, 236, 255
Spano v. New York, 360 U.S. 315 (1959), 427, 428, 435
Spinelli v. United States, 393 U.S. 410 (1969), 138, 140
Sporleder, People v., 666 P.2d 135 (Colo. 1983), 106
Sprague, State v., 824 A.2d 539 (Vt. 2003), 305
St. Amant v. Thompson, 390 U.S. 727 (1968), 186
Stanford v. Texas, 379 U.S. 476 (1965), 188
Stansbury v. California, 511 U.S. 318 (1994), 488, 489
Stanton v. Sims, 14 S. Ct. 1, (2013), 168
State v. (see name of defendant)
Steagald v. United States, 451 U.S. 204 (1981), 41
Steele v. United States, 267 U.S. 498 (1925), 186
Stephan v. State, 711 P.2d 1156 (Alaska 1985), 472
Sterndale, State v., 656 A.2d 409 (N.H. 1995), 228
Stone v. Powell, 428 U.S. 465 (1976), 369, 370, 378, 384
Stoner v. California, 376 U.S. 483 (1964), 66, 265, 277
Stoute, Commonwealth v., 665 N.E.2d 93 (Mass. 1996), 127
Stovall v. Denno, 388 U.S. 293 (1967), 560
Strickland v. Washington, 466 U.S. 668 (1984), 583, 609, 611, 626
Subpoena Duces Tecum Dated Mar. 25 2011, In re, 870 F.3d 1335 (11th Cir. 2012), 226, 451, 455
Sullivan, State v., 74 S.W.3d 215 (Ark. 2002), 136
Sullo, Commonwealth v., 532 N.E.2d 1219 (Mass. App. Ct. 1989), 259, 261
Sutherland, People v., 683 P.2d 1192 (Colo. 1984), 149
[648/649] Sykes v. State, 739 So. 2d 641 (Fla. App. 1999), 565
T
Tackitt, State v., 67 P.3d 295 (Mont. 2003), 97
Tanaka, State v., 701 P.2d 1274 (Haw. 1985), 95
Taylor v. Illinois, 484 U.S. 400 (1988), 596
Taylor v. Louisiana, 419 U.S. 522 (1975), 34
Taylor v. United States, 286 U.S. 1 (1932), 66
Tennessee v. Garner, 471 U.S. 1 (1985), 120, 171
Terry v. Ohio, 392 U.S. 1 (1968), 35, 65, 120, 121, 133, 153, 162, 176, 193, 213, 216, 253, 281–314, 317,
332, 433
Tessier, United States v., 814 F.3d 432 (6th Cir. 2016), 335
Texas v. Brown, 460 U.S. 730 (1983), 117, 118, 150, 161, 245, 297, 324, 329
Texas v. Cobb, 532 U.S. 162 (2001), 526, 527, 530, 541
Texas v. White, 423 U.S. 67 (1975), 229, 231
Theodore v. Delaware Valley School Dist., 836 A.2d 76 (Pa. 2003), 340
Thomas v. State, 614 So. 2d 468, 157
Thomas, United States v., 134 F.3d 975 (9th Cir. 1998), 565
Thompson v. Keohane, 516 U.S. 99 (1995), 489
Thompson, State v., 760 P.2d 1162 (Idaho 1988), 106, 107
Thompson, State v., 810 P.2d 415 (Utah 1991), 106, 107
Thornton v. United States, 541 U.S. 615, 38, 222
Thurman, People v., 257 Cal. Rptr. 517 (Cal. App. 1989), 194
Tibbles, State v., 236 P.3d 885 (Wash. 2010), 228
Tippins v. Walker, 77 F.3d 682 (2d Cir. 1996), 613, 625
Torres, People v., 543 N.E.2d 61 (N.Y. 1989), 311
Triggs, People v., 506 P.2d 232 (Cal. 1973), 84
Triplett, Commonwealth v., 341 A.2d 62 (Pa. 1975), 512
Tucker, State v., 642 A.2d 401 (N.J. 1994), 127
Tucker, United States v., 28 F.3d 1420 (6th Cir. 1994), 575
Turner v. Rogers, 131 S. Ct. 2507 (2011), 588
Twigg, United States v., 588 F.2d 373 (3d Cir. 1978), 575
U
Ullmann v. United States, 350 U.S. 422 (1956), 445, 453
United States District Court, United States v., 407 U.S. 297 (1972), 55, 202
United States v. (see name of defendant)
Upton, Commonwealth v., 476 N.E.2d 548 (Mass. 1985), 144
V
Vallejos, State v., 945 P.2d 957 (N.M. 1997), 571
Vasquez v. State, 990 P.2d 476 (Wyo. 1999), 220
Ventresca, United States v., 380 U.S. 102 (1965), 134
Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), 338
Virginia v. Moore, 553 U.S. 164 (2008), 136, 209
W
Wade, United States v., 388 U.S. 218 (1967), 455, 549, 555–558, 578
[649/650] Warden v. Hayden, 387 U.S. 294 (1967), 67, 134, 167, 203, 207, 247
Warshak, United States v., 631 F.3d 266 (6th Cir. 2010), 114
Washington v. Chrisman, 455 U.S. 1 (1982), 212, 247
Washington v. Lambert, 98 F.3d 1181 (9th Cir. 1996), 300
Waters, Commonwealth v., 456 S.E.2d 527 (Va. Ct. App. 1995), 199
Watson, People v., 990 P.2d 1031 (Cal. 2000), 568
Watson, United States v., 423 U.S. 411 (1976), 163
Weatherford v. Bursey, 429 U.S. 545 (1977), 524
Weeks v. United States, 232 U.S. 383 (1914), 57, 113, 366, 368, 369
Welch v. State, 289 S.W. 510 (Tenn. 1926), 88
Welfare of E.D.J., In re, 502 N.W.2d 779 (Minn. 1993), 127
Welsh v. Wisconsin, 466 U.S. 740 (1984), 164, 168
Wheat v. United States, 486 U.S. 153 (1988), 599, 604
White, Commonwealth v., 669 A.2d 896 (Pa. 1995), 220
White, United States v., 322 U.S. 694 (1944), 74, 76, 78, 82, 86, 451
White, United States v., 401 U.S. 745 (1971), 74, 76, 78, 82, 86, 451
Whiteley v. Warden, 401 U.S. 560 (1971), 185
Whren v. United States, 517 U.S. 806 (1996), 40, 41, 132, 133, 136, 160, 219, 257, 300
Wiggins v. Smith, 539 U.S. 510 (2003), 616
Williams v. Florida, 399 U.S. 78 (1970), 46
Williams v. Taylor, 529 U.S. 362 (2000), 616, 620, 624
Wilson v. Arkansas, 514 U.S. 927 (1995), 189, 190
Wilson v. Layne, 526 U.S. 603 (1999), 170
Wilson v. United States, 221 U.S. 361 (1911), 451
Winship, In re, 397 U.S. 358 (1970), 4, 29
Winston v. Lee, 470 U.S. 753 (1985), 153, 201, 211
Wolf v. Colorado, 338 U.S. 25 (1949), 47, 52, 366, 388
Wong Sun v. United States, 371 U.S. 471 (1963), 350, 406, 408, 514
Wong v. Belmontes, 558 U.S. 15 (2009), 617
Wood v. Allen, 558 U.S. 290 (2009), 617
Wood, State v., 536 A.2d 902 (Vt. 1987), 352
Woodford v. Visciotti, 537 U.S. 19 (2002), 620
Wright, State v., 596 A.2d 925 (Vt. 1991), 278, 351
Wright, State v., 893 P.2d 455 (N.M. Ct. App. 1995)
Wyoming v. Houghton, 526 U.S. 295 (1999), 181, 240
Y
Ybarra v. Illinois, 444 U.S. 85 (1979), 192–94
York v. Wahkiakum Sch. Dist. No. 200, 178 P.3d 995 (Wash. 2008), 338
Young, Commonwealth v., 957 P.2d 681 (Wash. 1998), 127
Young, State v., 172 P.3d 138 (N.M. 2007), 590
Z
Z urcher v. Stanford Daily, 436 U.S. 547 (1978), 135