A.        Constitutional Formation


1.         Sovereign – Absolute Power (in England, the King had all power to make laws.  Sit in power and judgment).


            2.         Thirteen Colonies formed in United States.


                        a.         Took the power away from the king.

                        b.         Each wrote a constitution telling the state what it could not do.

                                    Each had sovereign power,

c.         But each colony understood that the federal government was needed for common defense and common interest.


            3.         United States Constitution adopted.


                        a.         States surrendered some of their sovereignty.


1.         The constitution defined the power and limits of powers of the federal government.  Told the Federal Government what it could do.


a.         Set up the branches of government.  Executive, Judicial, Legislative.  (States and people worry about too much power – The three branches provided a system of checks and balances.)


                        b.         Main Difference.


1.         State constitution – What the sovereign states could not do.

2.         United States Constitution – What the Federal Government could do.


            4.         Historical Progression.


                        a.         Declaration of Independence from England 1776.

b.         Articles of Confederation – Weak federal system (1781), could not tax – could not regulate commerce between states – could not enforce laws.

c.         Constitution (1787)


1.         Stronger federal government.  Constitution declares what the federal government can do.  Supreme Law of Land.  No state law can conflict.  **Federal Government can do only what constitution says it can do.


                                    2.         Checks and balances – separate branches of government.


Introduction to the Legal Blocks Objective 2


5.         Still a concern that the Federal Government had too much power over individual.  Passed Bill of Rights (1791), the first ten amendments to the Constitution.  HANDOUT




                        a.         One -               No laws establishing religion.

                                                            Abridging freedom of speech or press.

                                                            People have right to assemble and petition.


                        b.         Two -               Right to Bear Arms.


                        c.         Three -            No soldiers in homes.


                        d.         Fourth -           No unreasonable searches and seizures.

Warrants – probable cause, place to be searched, things to be seized.


                        e.         Fifth -              Right to indictment; no double jeopardy.

Protection against self-incrimination – Condemnation of Property (pay if government takes it).  Cannot be deprived of life, liberty or property without due process.


f.          Sixth - Speedy trial – by jury – arraignment – confront

witness, subpoena power, right to counsel.


g.         Eighth -           No cruel and unusual punishment.


h.         Seventh, Nine and Ten not relevant to our study.


Introduction to the Legal Blocks Objective 3


6.         The Bill of Rights was originally enacted solely for the purpose of the limiting the federal government.  However, in 1868, the Fourteenth Amendment was enacted – in part, NO STATE MAY DEPRIVE ANY PERSON OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF LAW.


a.         Now since the acts of state law enforcement officials are clearly state actions for Fourteenth Amendment purposes – State Criminal Procedures now governed by United States Constitution.  No state can pass a law which takes away any rights guaranteed to U.S. citizens.


b.         A citizen of this country is a U.S. citizen first and a citizen of a particular state second.  This means that every citizen has the same rights as every other citizen regardless of which state they reside in.


7.         Review:


a.         United States Constitution is Supreme Law of Land.  But Federal Government can do only what the Constitution says it can.


b.         State Constitutions are supreme law of states.  They are supreme only to extent that they do not conflict with United States Constitution.  Cannot do what they say they cannot.


c.         Bill of Rights applies to all states now by virtue of Fourteenth Amendment.


B.        Case Law.


1.         The words of the Constitution are simple.  But what the words mean is up to the Courts.  Because of stare decis (Courts following precedents) the definitions change.  Cases that change old definitions make new law and become landmark cases.


a.         We feel it is more important for you to remember the concepts of cases and apply the analysis.  However, there are certain landmark cases where the name of the case itself reflects the right or the interpretation.


Go over the POST handouts.  Pages 1-6.  For the Criminal Process, see separate notes.


Introduction to the Legal Blocks Objective 1


REVIEW the difference between civil and criminal law – referring to Handout page 1.


Introduction to the Legal Blocks Objective 4


Go over the three branches into which the government is divided – see handout page 2.  The local police officer is considered a member of the Executive Branch.  The work you produce is used by the Judicial branch.  Police officers operate under two conflicting sets of guidelines – the executive branch wants suspects arrested and crimes solved and controlled.  The judicial branch wants officers to do these things adhering to proper guidelines.  This is a built-in conflict for the police officer.


Go over POST handouts, pages 7-11 (1st section), if time allows.  See notes on Rules of Evidence.


Reading Assignment:  Law Officer’s Pocket Manual (2000) 1:1 to 1:2; 3:1 to 3:4; 7:3 to 7:5 and 8:8 to 8:9.




            The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.




            The Fourth Amendment of the United States Constitution has two (2) basic clauses as follows:


            1.         The first clause prohibits unreasonable searches and seizures.

2.         The second clause requires that search warrants only be issued upon the showing of probable cause and upon meeting certain other conditions.


            In dealing with searches and seizures, one must first determine whether or not the Fourth Amendment applies.  If it is determined that the Fourth Amendment applies, one must then determine whether it has been satisfied in a particular fact situation.


            The Fourth Amendment does not apply in the following situations:


            1.         Actions outside the United States

            2.         Situations involving private action as opposed to government action

            3.         Situations involving abandoned property

            4.         Situations involving open fields.


            In all other situations, searches and seizures must take place under the requirements of the Fourth Amendment which basically requires a search warrant be issued by an appropriate court.  There are exceptions where a search may take place under the Fourth Amendment without the necessity of a search warrant.  These exceptions are as follows:


            1.         Searches incident to a lawful arrest.


            2.         Searches of an automobile based upon probable cause.


            3.         Certain searches of suitcases or containers.


            4.         Situations involving hot pursuit.


            5.         Situations involving stop and frisk based upon reasonable suspicion.


            6.         Plain view seizures.


            7.         Searches and seizures based upon consent.


            8.         Inventory searches.


9.                  Checkpoints.





I.          Fourth Amendment Analysis (Use Handout – “Fourth Amendment Instruction”)


            A.        Read carefully.


            B.        Use a two step analysis


                        1.         Does the Fourth Amendment apply?


                        2.         If it applies, have the requirements been satisfied, i.e.


                                    a.         Was there a valid warrant issued on probable cause.

Always best to get a warrant if possible.  They carry a presumption of legality.

b.         Was the action reasonable either because it falls into the type of action that was determined to be reasonable search or seizure without warrant and was it reasonable with warrant.


II.          Understanding the Analysis – We know there are four areas or categories of actions where the Fourth Amendment does not apply i.e. by definition and/or because the Supreme Court has said there is absolutely NO EXPECTATION OF PRIVACY.


A.        Actions outside of the United States.  By definition search of individual or home outside of United States boundaries even though by United States Agents, not covered by Fourth Amendment.


Non-Fourth Amendment Searches Objective 4a


B.        Private Action – We have already discussed that the Fourth Amendment limits only state actors, the Government by definition – no restrictions on searches by private persons under the Fourth Amendment.


                        1.         Examples – Federal Express agent and DEA

                        2.         Hotel manager and Kansas City, Missouri Police Department

                        3.         But Courts are split over postal workers.


                                    a.         Could also use REP test – get same result.


Example:  Federal Express Agent examines damaged parcel and found a tube containing white powder substance.  Called DEA.  Package wrapped and delivered to addressee.  He was then arrested pursuant to a warrant (arrest & search warrant) when he received package.  Should this evidence be suppressed?


                                    a.         The Bill of Rights tells who what they can and cannot do?

                                                The government.

                                    b.         Is Federal Express the Govt?  No.


Example:  Motel manager finds keys in rented room.  Gives to Kansas City, Missouri Police Department which recognize keys are connected to robbery.  Can keys be evidence?  Yes.  Motel manager not the government.


Non-Fourth Amendment Search Objective 4b


Follow-up searches by police of areas searched by private citizen may not exceed the scope of the original private search.


Non-Fourth Amendment Search Objective 4c


If police officer directs a private person to search, may be a violation of the Fourth Amendment, evidence will be suppressed.


Non-Fourth Amendment Searches Objective 1, a., b., c.


C.        Abandoned Property – By definition and also REP test Fourth Amendment does not apply.  Must show that it was reasonable to believe that the ownership of the property had been relinquished.  Personal property can be presumed abandoned if dropped or thrown away in a public place, if it is in the trash in a non-curtilage area or if the owner, when asked, states that they are not the owner.  Vehicle left in one place for a long period may be abandoned, but abandonment of premises is more difficult to establish.  Look for extended periods of no occupancy, no maintenance, no payment of taxes, etc.  No justification necessary to search abandoned property.


                        1.         Examples:


                                    a.         Search of trash out at curb – No REP.

b.         Individual throws something away while being chased.  No REP in property, no seizure has occurred yet.  If a police officer yells at a subject to halt and the subject ignores him, runs and throws something down before the officer reaches him, that evidence is probably inadmissible since the subject has already been seized.




Non-Fourth Amendment Searches Objective 2a


D.        Open Fields – The curtilage case discussed above are still important.  It is obvious that by its very words, the Fourth Amendment protects your home form searches without warrants.  Thus, anything that causes questions about whether your actions are protected because you are near your home means that we must decide if the curtilage is your home.  We use the REP test to determine today, i.e., the amount of privacy considered appropriate by society.


1.         Open Fields – By definition, Fourth Amendment does not apply, but to determine if truly open field must use REP test i.e., Fourth Amendment applies only to home and curtilage. 


Non-Fourth Amendment Searches Objective 2c


Look at glossary definition of open field - any area of public land in which the owner has no legitimate expectation of privacy.  An area which is not curtilage.


Non-Fourth Amendment Searches Objective 2d


            No justification necessary to search an open field.


                        2.         Examples:


Non-Fourth Amendment Searches Objective 2b


a.         Field – House not near.  Barn door is open.  DEA agent sees drug lab in barn.  Uses that info to get search warrant.  No problem.  Not curtilage.  4 part test from U.S. v. Dunn.  How close is the area claimed to be curtilage. . .


                                                1.         To the home.

                                                2.         Is it within an enclosure around the home

                                                3.         How is this area used.

4.         What did the resident do to protect the area around the home from observation.


b.         Backyard fenced – Officers climb to get a better look.  There is REP if reasonable to expect no one should enter area.


c.         Grabbing suspect in doorway or area attached to the house.


Non-Fourth Amendment Searches Objective 2h and Searches, Seizures and the Search Warrant, Objective 2c


Surveillance of private property is reasonable if the officers are not on the curtilage and use unaided senses.  Aids available to the general public such as binoculars are OK.  Generally, all occupants of a protected area generally have Fourth Amendment protection against unreasonable or unwarranted searches and seizures.  This includes overnight guests per Minnesota v. Olsen, 495 U.S. 91 (1990).  But, in Minnesota v. Carter, 119 S.Ct. 469 (1998), the Supreme Court rules that a short-term visitor, especially one who is only there to transact business, has no standing to exercise his or her Fourth Amendment right to privacy.  The guests in Carter were only there for a couple of hours and were preparing drugs for distribution.  (Note that in Carter, the Supreme Court did not address the issue of the officer peeking into the window of the apartment.  It must be assumed at this point that where an officer is on the curtilage to peek in the window or must use a means not available to the common citizen passing by, should be considered a Fourth Amendment violation.)



Look at POST Handout, page 29.


Non-Fourth Amendment Searches, Objective 2f,g

Certain public areas such as public rest room stalls and phone booths are not open fields because a person has a reasonable expectation of privacy while using them.  This reasonable expectation of privacy only exists as long as the area is being used for its intended purpose.


III.         What does the Fourth Amendment mean by “the right of people to be secure in their persons, houses, papers and effects unreasonable searches and seizures.”  Remember, it applies to searches and arrests.  (Arrest = Seizure)


A.        Prior to 1967 it was easier.  Fourth Amendment protected places i.e. private property owned by the subject to be searched.  Thus your dwelling and the curtilage of the dwelling (areas necessary and convenient to the dwelling).  But in 1967 the Court applies the Fourth Amendment to protect people not just places.


IV.        Fourth Amendment Prior to 1967.


            A.        The Government could not trespass into one’s home to gain evidence.


1.         Thus, whether the Fourth Amendment was violated depended solely on the analysis of “places.”


2.         House was defined as house, apartment, hotel room, attached garages and curtilage.


a.         Curtilage thus solely could determine if the Fourth Amendment applied, “the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacy of life” i.e. porches, fenced in backyards, etc.


b.         Curtilage is still important today, but we now ask other questions first in our analysis.


            B.        Examples of Old Analysis.


1.         Federal Agents know that a guy is using an outside phone booth to conduct bookmaking operation.  They but the phone booth.  Under the old analysis – was the bugging a violation of the Fourth Amendment?  Was the government trespassing in the suspect’s home?  No.  No violation because before 1967, the place determined if the Fourth Amendment was violated.


V.        Current Fourth Amendment Analysis.


A.        Katz v. U.S., 1967 develops the Reasonable Expectation of Privacy Test (REP) to determine if the Fourth Amendment interest was protected.  Look at glossary definition.  REP exists only as long as the area is being used for its intended purpose.


                        1.         Fourth Amendment protects people, not places.


2.         The question is whether the person expected that his actions (could be conversation, could be some activity) was private and whether the expectation was one society recognizes as reasonable.  Thus, if a person believed his actions were private and if that belief is reasonable, then any police search without warrant is unconstitutional.


                        3.         Examples: 


a.         Katz case – Bookie had reasonable expectation of privacy that his conversation was private – need warrant even though he is on public property.


1.         But what about if he was shooting drugs in phone booth?  No REP.


2.         What if he talked in public booth with door open and agent overheard?  No REP.



Non-Fourth Amendment Searches, Objective 2e


Generally, law enforcement officers may board buses to conduct cursory investigations of loaded buses for drugs.  Drug dogs may be brought onto the bus as well.  Absent justification to conduct a search, officers are not allowed to handle luggage more than would be expected by luggage handlers or other passengers.  In a recent case, U.S. v. Bond, the Supreme Court held that squeezing of a soft-sided bag in an exploratory manner goes beyond the reasonable handling expected by a passenger when placing a piece of luggage on an overhead rack in a bus or other public conveyance.  Note that this differs with the plan feel exception of Minnesota v. Dickerson in that in the Dickerson situation authority to frisk exists.


VI.        All other circumstances you must have a warrant to search and seize unless the circumstances completely fit within one of the nine exceptions.


            A.        Why the Fourth Amendment is important.


1.         Since 1961 (Mapp v. Ohio) If the Fourth Amendment is violated, all evidence seized will be excluded in court.  (States since 1961; Federal since 1914).  Called Exclusionary Rule.  Usually done by a Motion to Suppress.  A hearing is conducted to determine if evidence seized was seized legally.


2.         Even more damaging because of Fruit of the Poisonous Tree Doctrine.  Evidence obtained illegally shall not be used for gathering other evidence i.e. once the original evidence “The Tree” is shown to have been unlawfully obtained, all evidence, stemming from it, the “fruit” is equally unusable.  Does not destroy arrest, but if you cannot use the evidence, you cannot make the case.  See POST Handout, page 11.


Introduction to the Legal Blocks Objective 5


            Define “right and remedy” – See glossary (Required by POST)


Searches, Seizures and the Search Warrant Objective 2b.


Define Search and Seizure – see glossary (Required by POST)


Introduction to the Legal Blocks Objective 5


The Exclusionary rule is the Citizen’s remedy for violations of the 4th, 5th, 6th Amendment.  See POST Handout, Pages 12-13, for exceptions to the Exclusionary Rule.


Searches, Seizures and the Search Warrant Objective 1


B.        If the Fourth Amendment applies, must have search warrant properly obtained and executed to be reasonable search (except for the nine exceptions).


Search Warrants


Searches, Seizures and the Search Warrant Objective 3a


Definition of Search Warrant – The written order of a Court authorizing the officer serving it to search the areas named for the evidence and contraband described and to seize such items if they are found.


Searches, Seizures and the Search Warrant Objective 3b


            In most cases, a search warrant is required before a search may take place.  Even when not required, there is an advantage to using a search warrant, since the police officer is operating on the authority of the judge who issued it and not his own.  There is a presumption of legality when a search warrant is used.  Searches and seizures without a warrant are presumed to be illegal until the prosecution proves to the court that one of the exceptions to the warrant requirement applies.


Searches, Seizures and the Search Warrant Objective 3c


The search warrant requires an affidavit (signed sworn statement applying for warrant).  Must describe with particularity the place to be searched (address and description) things to be searched for (very specific, types of drugs, serial numbers) and must set forth probable cause for warrant.  Approved by prosecutor, signed by Associate Circuit Judge in County where search is to occur.  (Note that KCPD is only police agency in Jackson County preparing their own affidavits/applications.)


Searches, Seizures and the Search Warrant Objective 2a


1.         Probable Cause must be present (Probable Cause applies to more than just search warrants, i.e. arrests).  What is Probable Cause?  Reasonable belief that an offense has been or is being committed and that a particular person had committed or was committing it based on reasonable suspicion from facts and inferences or more than suspicion and less than absolute.  A Set of facts and circumstances which would lead a reasonable and prudent man to believe that an offense had been committed and a particular person had been committing it.


                        a.         Examples:


1.         Facts learned by officers in course of investigation (crime scene).

                                    2.         Personal observations (what the officer sees).

                                    3.         Odors and sounds.  (Example:  McDonald’s Robbery)

                                    4.         Question – informants.


            Illinois police receive anonymous letter saying that Susan and Lance Gates are drug dealers, that Susan would drive their car to Florida on May 3rd and Lance would fly down shortly thereafter and drive the car back with $100,000 in trunk.  Police confirmed Lance Gates lived in Bloomington and had reservations in his name to fly to West Palm Beach on May 5th.  West Palm Beach police conduct surveillance.  Did drive with woman back to Bloomington.  Police get search warrant for house and car.  Find drugs.  PC?  Yes – detailed info corroborated the informants information – Totality of Circumstances Test.


                        b.         These are not enough:


1.         Anonymous calls without corroboration.  (Discuss Florida v. J.L. briefly.  It is covered in detail under stop and frisk exception.)

                                    2.         Someone’s bad reputation.


2.         Warrants must describe with particularly the things to be searched for.  What you can get on warrant for:


                        a.         Fruits of Crime (stolen money)

                        b.         Contraband (items that the state says is illegal to possess)

                        c.         Instruments of Crime (murder weapons)

                        d.         Mere evidence (things relevant to crime)


            3.         What can be seized?


a.         When searching for an item listed in search warrant, you cannot exceed scope of the warrant.  Need to judge the seize of what you are looking for and where you should be looking.


1.         Question – Can you look in desk drawers if warrant say looking for stolen T.V. – No.


                                    2.         Elephant in Bread Box – Will not work – exceeds scope.


                        b.         Note – Plain View Exception.


Here, though assume you have warrant and you find other evidence or contraband.  Can you seize?


            Maybe.  We are only discussing seizure here i.e. plain view here can only justify invasion of a possessing interest (seizure) but not a privacy interest (the right to be there).


            Example:        Police had search warrant for three rings only.  They had a description of weapon used in robbery but it was not in warrant.  FIND GUNS in plain view.  OKAY – even though they expected to find it – does not have to be inadvertent like it used to be.


Searches, Seizures and the Search Warrant Objective 3e


4.         Warrants must describe with particularity the places to be searched – address alone not sufficient, need description.  Can search the area specified in the warrant.


            D.        Other Warrant Issues.


Searches, Seizures and the Search Warrant Objective 3g


1.         Good for ten days and must be executed as soon as practical.  Avoid delay.


2.         Copy must be presented at time of search and must be presented to someone in charge.  In no one in charge, leave in plain view.


Searches, Seizures and the Search Warrant Objective 4a, d


3.         Must announce purpose and authority (knock and announce) POLICE! SEARCH WARRANT!  If denied entry you can break down door.  Knock and Announce – knock, announce, wait a reasonable time


Searches, Seizures and the Search Warrant Objective 4e


The length of time that it is reasonable to wait is determined by the destructibility of the evidence for which you are searching.


Searches, Seizures and the Search Warrant Objective 4c

Four types of responses can be received to your knock and announce:

1.         compliance - enter with caution

2.         refusal - enter immediately using reasonable amount of force if necessary

3.,4.     silence or ambiguous response - wait a reasonable amount of time depending on the destructibility of the evidence you are searching for, then if no compliance, enter using reasonable amount of force.


Searches, Seizures and the Search Warrant Objective 4b


            Only exception to Knock and Announce Rule is Exigent Circumstances i.e. can articulate danger very specifically (known to possess gun and known to be violent) (Heard sounds like people were trying to hide) (Knew occupants were armed and involved in large scale drug operation) In a recent case, U.S. v. Ramirez, 118 S.Ct. 992 (1998), the Supreme Court reaffirmed the standard established in Wilson v. Arkansas, 115 S.Ct. 1914 (1995) and Richards v. Wisconsin, 117 S.Ct. 1416, 1421 (1997) for unannounced entry to execute a warrant:  reasonable suspicion that to announce would be “dangerous, futile or would inhibit the effective investigation of a crime.”  No automatic or blanket exception to knock and announce.  Also, Supreme Court’s standard may not be the law in the Western District of Missouri.  See Ricketts v. State, 1998 WL 863952 (Mo. App. W.D. 1998).


Searches, Seizures and the Search Warrant, Objective 5a

If the premise is occupied or if the occupant is arrested, must give the copy of the search warrant to the persons present and read it to them or have them read it.   If premises are unoccupied, leave a copy of the warrant and the inventory where it can be easily found.


Searches, Seizures and the Search Warrant Objective 5b

In terms of what to do with the inventory, if the premise is occupied, inventory all items seized, try to have the inventory signed if possible.  If the occupant is arrested, place the inventory in their pocket.  If the premises are unoccupied, leave a copy of the warrant and inventory where it can be easily found.


Searches, Seizures and the Search Warrant Objective 5c

If the premise is occupied, it is the occupant’s responsibility to secure the premises after execution of the warrant.  If the premises are unoccupied, it is your responsibility to secure the premises.


Searches, Seizure and the Search Warrant Objective 5d


Everything must be inventoried and back of warrant is for inventory and receipt.  Inventory and return must be filed within 2 days of execution.


            Missouri allows night searches if not practical to serve in daytime.


Searches, Seizure and the Search Warrant Objective 4f


            If damage is reasonably necessary to carry out warrant, the Fourth Amendment is not violated.


Searches, Seizure and the Search Warrant Objective 3d


            Generally, the evidence should be no more than 24-36 hours old when the application for a search warrant is made.  Otherwise, the information may be deemed “stale” and the warrant may be invalidated.


Searches, Seizure and the Search Warrant Objective 3h


Once you leave the area being searched, you generally need a new warrant to get back in.  The only exception is if they left under emergency circumstances, can re-enter after emergency is resolved.


Searches, Seizure and the Search Warrant Objective 3f


Can search for a reasonable time only – until the evidence named on the face of the warrant is found or until all places where the item could be hidden have been searched.


                        4.         Detention of occupants.


                                    a.         Okay when there is search warrant.


                                    b.         Cannot stop someone from driving away.


Stop and Frisk Objective 3a, b


c.         Cannot automatically search person in the premises when executing a search warrant.  Having a search warrant for narcotics does not give you automatic reasonable suspicion to frisk persons found inside, but should not be difficult to articulate reasonable suspicion to do so.


d.         See handout entitled “Searches and Seizures at a Glance” for justification to frisk incident to execution of a search warrant.


                        5.         Once you find what you’re searching for you must stop.


Searches, Seizures and the Search Warrant Objective 6


6.         In Wilson v. Lane, the Supreme Court held that inviting the media “and other third persons” to accompany officers when serving a warrant in a private area is a violation of the occupants’ Fourth Amendment privacy rights where the presence of the media is not related to objectives of the warrant.  To be included, law enforcement must show that the media personnel are there to assist with the execution of the warrant – say, where their expertise is required to help identify particular evidence – and not simply to document the warrant execution.


            See POST handout on Execution of Search Warrants, page 28.


VII.       The exceptions to the warrant requirement:


If the Fourth Amendment applies, search warrants are required for any search, except the Courts have held that in nine specific areas, warrantless searches are reasonable.


            A.        Searches Incident to lawful arrest.


Search Incident to Arrest Objective 1a, c, e


1.         Officer making a lawful custodial arrest may conduct a warrantless search of the person arrested and the area within his immediate control (grabbing area) under this exception.  Note cases mostly deal with immediate control.


Search Incident to Arrest Objective 1b


No authority to search person who is being issued a summons and released – see Knowles.


Search Incident to Arrest Objective 1d


a.         Rationale – Assure officer safety; make sure party has no weapons and prevent destruction of evidence.  Authority to do this search extends through the booking process.


Search Incident to Arrest Objective 1c


                        2.         Area with his immediate control (key question)


a.         D is suspect in coin shop robbery.  Police hare arrest warrant but no search warrant.  He lets them into home.  They make arrest and then they do a full scale search.  Found coins (3 bedroom house).  Admissible?  No, search was too widespread.


b.         Immediate control means some possibility that suspect can

reach the area being searched.


Search Incident to Arrest Objective 1g


1.         Bright Line Passenger Compartment of Car – Exception within an exception.  Courts draw bright line around compartment.  It and all locked and closed containers (glove compartment too, but not trunk) can be searched incident to arrest.  In the case of United States v. Doward, 41 F.3d 789, 794 (1st Cir. 1994), in connection with the search incident to arrest of a vehicle, the court defined the passenger compartment of an automobile to include any generally reachable without exiting the vehicle, without regard to the likelihood in a particular case that such a reaching was possible.”  In U.S. v. Olguin-Rivera, 168 F.3d 1203, 1205 (10th Cir. 1999), the United States Supreme Court held that the covered cargo area of an SUV was to be treated as part of the interior, accessible to occupants, as opposed to “the functional equivalent of a trunk” as decided by the U.S. Dist. Ct. for the Dist. Of Colo.  The Court held that a driver will not be allowed to make an area normally available to officers to search off-limits by covering it.  If a passenger can reach into it, it is available to be searched incident to arrest.


Search Incident to Arrest Objective 1h


May search containers incident to arrest if they are immediately accessible to the suspect.  If container is locked, a search warrant must be obtained to search it.                   


Search Incident to Arrest Objective 3a, 3b,1f


2.         Protective sweeps of homes okay if defendant is in house when arrested; sweep is quick and cursory and is done for people, accomplices, not evidence.  Sweep is of adjacent rooms, anywhere accomplices could hide.            Need to do this search before the suspect is removed from the premises.  Once suspect is removed from the area, justification diminishes quickly.


Search Incident to Arrest Objective 3c

May not continue sweep after suspicion of danger has been dispelled.  May last no longer than necessary to complete the arrest, leave the premises.


a.         Note items in plain view may be seized if sweep is okay.


b.         Best bet is to cite in report that sweep was because officer had reason to believe other individuals posing a danger may be in the house.  Not required by cases, but is good idea.


                                                3.         Lawful custodial arrest.


a.         Guy runs red light.  Take him out of car, search him, find cigarette pouch in coat pocket that has heroin in it.  Admissible evidence?  Do you normally take into custody for red light?  No.  Then no search under incident to arrest exception.  Other exceptions?  Possibly – we’ll talk about it.


b.         Search must be at time or near time of arrest.


Search Incident to Arrest Objective 2


Also, authorized to follow someone under arrest and search anything within grabbing distance.  Can also make plain view seizures as long as evidence or contraband was visible from within leap or lunge or along route to remove suspect.


Searches and Seizures without a Warrant Objective 3c and Search Incident to Arrest Objective 4


Can obtain certain physical evidence from a suspect as long as force exerted or procedure used is not shocking, is reasonable.  Courts have said it is reasonable in a DUI case to take a blood sample without a warrant because critical evidence will be lost if time passes as long as competent medical personnel do the extraction.  (Technically, an emergency exception.)  No warning of rights required.  Other ways you can take this kind of evidence:  Consent, court order or grand jury subpoena.


The role-playing situations which have been added to this section are covered in the Practical Applications which is taught by the Academy Staff.


            B.        Searches of Automobiles Based on Probable Cause.


Searches and Seizures without a Warrant Objective 1


            The general rule is that to stop a car you must have probable cause to believe a traffic violation has been committed or reasonable suspicion of a crime.  If you have one of those, you may:  require the driver and passenger to get out of the vehicle, request an opportunity to inspect license and registration, examine the exterior of the vehicle, examine as much of the interior as is visible from the outside (may use a flashlight to aid that examination), may ask questions regarding the reason for the stop, may inspect the VIN and make whatever entry is necessary to clear a view of the VIN.


            In the case of Maryland v. Wilson, 117 S.Ct. 882 (1997), the U.S. Supreme Court ruled that officers may order a passenger out of a car during a car stop in addition to the driver.


            Much judicial debate has taken place in the last few years regarding the power of officers to ask consent to search a vehicle during or after a traffic stop.  Of course, where there is justification that has been developed during the stop, the search may take place.  But absent such justification, there has been some disagreement overt the reasonableness of asking a driver for consent to search.  In Ohio v. Robinette, 117 S.Ct. 417 (1996), the U.S. Supreme Court refused to create a bright line rule regarding extensions of traffic stops after completion of original business.  Court stated that reasonableness was the standard in light of the totality of the circumstances and that knowledge of right to refuse consent was but one factor to be considered.


Searches and Seizures without a Warrant Objective 2a


1.         To use the automobile exception to the Fourth Amendment you must have probable cause for the search.  Probable cause to believe contraband or evidence is in the car.


a.         Note – if you’re doing it because it is incident to arrest, then you can search area in which he can reach including any containers found in passenger compartment.  Remember, if no custodial arrest, no search incident to arrest (not good if only giving ticket).  Can’t search trunk under search incident exception.


Searches and Seizures without a Warrant Objective 2b


2.         But if you have P.C. to do search – then you can search as thoroughly as if you had a search warrant, i.e. all receptacles, all packages, all luggage, trunk.  See U.S. v. Ross.  Must stop the search if you find the evidence you are seeking in a container.  Authority for the search ends when all evidence has been found.  In Wyoming v. Houghton, 119 S.Ct. 1297 (1999), the U.S. Supreme Court held that all containers in a vehicle are subject to search as long as the item(s) sought could reasonably be in the container.  Court refused to exempt containers that obviously belonged to passengers who are not suspected of criminal activity, but which were left in the vehicle.  (A body search of a passenger is not justified under this exception.)


            a.         Key is P.C. to believe contraband is in the car.  Must be P.C.


b.         Also note – when we get to consent exceptions, “driver consent” extends to any closed containers in vehicle unless consenter indicates otherwise.


Searches and Seizures without a Warrant Objective 2d


c.         Also applies to motor homes that are not anchored to the ground.


Searches and Seizures without a Warrant Objective 2c


d.         Inventory searches are legal as long as Department has policy allowing them.  In Maryland v. Dyson, 119 S.Ct. 2013 (1999), the Supreme Court held that the use of this exception to justify searches of motor vehicles does not require exigent circumstances.  A search delayed 13 hours was justified by probable cause that existed at the time of the seizure of the motor vehicle.


            C.        Suitcase or container exception to warrant requirement.


1.         When luggage comes under exclusive custody of police, it may not be searched without a warrant (unless emergency, i.e. explosives).  High expectation of privacy.  Seizure may be justified because of exigent circumstances, i.e. highly moveable, etc. . Immediate action required to protect against destruction of evidence, but cannot open without a warrant, i.e. seizure of container, okay.  No search.


                        2.         But what about containers in vehicles.


a.         If probable cause that containers contains evidence, contraband.  Can open (auto’s have less expectancy of privacy).


1.         Could wait until suspect moves container into car.  Note – If the only reason to stop car is P.C. that luggage has contraband or evidence, then may search only luggage.


2.         If P.C. to stop car or to arrest, then search entire car.

            See POST Handout, page 30.


            D.        Situations involving Hot Pursuit as an exception.


1.         The underlying question is whether exigent circumstances exist that are sufficiently serious to support the warrantless entry of home (private place) to arrest one of the occupants.


a.         Exigent circumstances defined.  Immediate action necessary to prevent destruction of evidence or to prevent harm to others.


Searches and Seizures without a Warrant Objective 3d


2.         Thus, the hot pursuit exception only applies (i.e., entry of private place) without arrest or search warrant if the police are pursuing a felony suspect and have reason to believe he has entered a particular premise:


                                    a.         The officer has probable cause to arrest. . .

                                    b.         For a serious felony freshly committed and

c.         If the officer reasonable believes the person to be dangerous or the officer reasonably believes evidence will be destroyed.


3.         May search for person, weapons, may recover other evidence if found in a place it was reasonable to be looking for the evidence in.


4.         But, when it applies, the officer may enter the premises to search for the person and may with P.C., seize suspect, weapons and other evidence so long as the evidence is found in a place where the officer is reasonably searching for the suspect and weapons.  i.e., an officer enters, finds suspect, checks for weapons.  Raises lid on washer, that’s where suspect could have hid weapon to use on officer.  Bloody clothes found.  ADMISSIBLE.   Warden v. Hayden


                                    a.         Bottom line – danger must exist.


Searches and Seizures without a Warrant Objective 3a


5.         Note – True emergencies (probable cause that an emergency exists) are also exceptions to the warrant requirement.  Can search for weapons, evidence or contraband or render aid.


                                    a.         Dead Body

                                    b.         Wounded Person

                                    c.         Prevent death or serious injury

d.         To prevent evidence destruction if you can hear or see it being destroyed.  Cupp v. Murphy


Searches and Seizures without a Warrant Objective 3b


            Must stop search and get a warrant when the emergency ceases.


            In West Virginia v. Flippo (1999), the Supreme Court affirmed earlier case law – in particular Mincey v. Arizona, 437 U.S. 385 (1978) which holds that there is no general right to search a crime scene without a warrant.  Must be justified by an exigency, but if no emergency or once the emergency has been addressed, a search warrant must be obtained to search further.


            Handout – Entry into Private Premises


            E.        Stop and Frisk Exception.


                        1.         Terry Stop – Terry v. Ohio (1968).


a.         Police officer observes unusual conduct which leads him to believe, based on his experience, that criminal activity may be afoot.


                                    b.         Officer may briefly stop suspicious party and…


Stop and Frisk Objective 1b, 2a


c.         If officer is justified in reasonably believing the individual is armed and dangerous, he may conduct a pat down search of outer clothing to determine if carrying a weapon.  In a vehicle the passenger compartment may be checked.


2.         If search goes beyond what is necessary to determine if suspect is armed, no longer valid search and fruits may be suppressed.  Key is reasonableness of stop and limited scope of search.


Stop and Frisk Objective 1a


                        3.         Thus the keys:


a.         Reasonable suspicion – You can approach anyone if you don’t detain or frisk.  If no reasonable suspicion, he can refuse to cooperate and go on his way.


4.         Standard for stopping is reasonable suspicion based on objective



a.         People on street have no obligation to stop and talk to you without reasonable suspicion.  Up to officers to get them to converse.


b.         The sources of facts to build reasonable suspicion are basically unlimited as long as they are credible.  The officer’s own knowledge and senses are an obvious source, but reasonable suspicion need not be limited to those.  The officer may also use other sources of information.  These include sources, which can be revealed such as verbal communications with other officers, information from identified reliable sources in the community, radio dispatches, police bulletins, hot sheets, etc.  They also can include those which cannot be revealed such as anonymous tips, where facts have been corroborated or criminal informants whose identities need to be protected.


In the recent case of Illinois v. Wardlow, 120 S.Ct. 673 (2000), the Supreme Court asserted that while unexplained flight from police by itself will not produce reasonable suspicion for a detention, the flight is a pertinent factor in developing that reasonable suspicion.  In Wardlow, the fact that the defendant fled from police as they arrived in a high crime area was sufficient to justify the stop.  There were previous decisions asserting flight as an exercise of the right to freedom of movement that, as a right, could not be used to build reasonable suspicion.  This Supreme court case takes precedence over those cases.


In another case, Florida v. J.L., 120 S.Ct. 1375 (2000), the Supreme Court upheld the basic requirements for investigative detentions and frisks as outlined in Terry v. Ohio.  The Court held that a frisk cannot be based entirely on an uncorroborated, non-predictive anonymous tip, even if it turns out the tip was accurate.  The Court did leave open the possibility that anonymous tips regarding a serious situation such as a bomb threat, an armed person at an airport or about a weapon in a school would be sufficient.  Anonymous tips that predict some sort of movement by the person are considered by the Court to be more reliable.


Criminal profiles are being used to justify suspicion for stop at airports to detain but usually not to frisk.


Courts look to purpose, time to effectuate purpose, and officers diligence to determine if stop took too long.


Stop and Frisk Objective 2b


                        Along with Terry, Court develops the “Plain Feel” exception.


a.         Question is whether an object other than a weapon can be seized during valid protective frisk.


b.         Only if officer’s sense of touch made it immediately apparent that the non-weapon was contraband, i.e., KNEW IT WAS CRACK IMMEDIATELY NOT AFTER squeezing, feeling or otherwise manipulating.  See Legal Bulletin.


Stop and Frisk Objective 2c, 2d


c.         For rules about what containers may be searched during a valid frisk, see handout entitled “Overview of Container Searches (Page 30).  Container must be immediately accessible to subject and not locked.  The officer may temporarily seize the container, set it out of reach of the suspect and return it when the detention is over.      


                        5.         Common Sense Advise.


a.         Put in your report or on your activity sheet the grounds for stopping and frisking, i.e. just saying frisk was for:


1.         Officer safety without specific factual basis is legally insufficient.


                                                2.         Write out what factors caused you a concern.


                                    b.         Justify both the stop and frisk separately.


                                    c.         Examples of justifying the frisk:


1.         Appearance – bulge in pocket, heavy coat in warm weather, matches description of violent suspect;


                                                2.         Quick movement by suspect;


3.         Time and place of stop – officer alone, late at night, place is deserted;


                                                4.         Nature of offense – drug dealers, carrying weapon;


5.         Officer’s experience – previous contact with suspect;


                                                6.         Unusual conduct by suspect;


                                                7.         Neighborhood.


6.         Drug courier profiles and anonymous tips and detailed corroboration have been defined by courts to equal reasonable suspicion justifying stop.


            F.         Plain View Exception.


Non-Fourth Amendment Searches Objective 3a


1.         Any items that are immediately recognized as contraband or evidence of a crime and are in plain and open view can be legally seized if officer is in place where he had right to be.  That the discovery must be inadvertent is no longer required.


Non-Fourth Amendment Searches Objective 3c


a.         Authorizes seizure only not search, i.e. invasion of possession NOT privacy (right to be there).  If officer sees item but is not in place he/she has right to be, then must keep watch and get a search warrant.


Non-Fourth Amendment Searches Objective 3b


Must have probable cause to believe that item seized is evidence, contraband or fruit of crime.


b.         Famous stereo case (Arizona v. Hicks).  Bullet comes through apartment and injures man in apartment below.  Police go into Defendant’s apartment to locate shooter – other victims – weapons.  Officer sees expensive stereo which seems out of place in trashy apartment.  Suspects that it is stolen.  Picks up a component, writes down serial number.  Calls in – learns it is stolen and seizes.  No probable cause for search, i.e., moving the component.  Incriminating nature must be apparent. 


            G.        Consent Exception


                        1.         Fourth Amendment can be waived.


Searches and Seizures without a Warrant Objective 4c, 4a


2.         Two legal requirements for a consent search:  a.  Must be voluntary i.e. No coercion – physically or psychologically a “we will get a warrant” is not coercion.  b.   Consent must be given by a person who has authority to consent (legal possession with right of access).  Officers can invalidate the consent by their actions - i.e., lying to them about having a warrant, not leaving when asked to, demanding consent, implying that a refusal to consent will result in arrest.


                        3.         Consent may be withdrawn at any time (consent forms)


Searches and Seizures without a Warrant Objective 4e


A search based on consent must end when all areas have been searched or when the person tells you to stop searching.


                        4.         Consent applies to possession not ownership.


Searches and Seizures without a Warrant Objective 4f


                        5.         Joint Users


a.         Did they have mutual access:  Joint authority, Reasonable belief by officer enough.  In a situation with joint access, either person can give consent.


Searches and Seizures without a Warrant Objective 4g


b.         If the person present has doubtful authority or persons with equal authority disagree regarding the consent, then an officer must either get a search warrant or get consent from another person whose consent cannot be challenged.


6.         Primary question in consent is voluntariness.  Court applies totality of circumstances.  Don’t have to tell them they can refuse.


Searches and Seizures without a Warrant Objective 4d


a.         The scope of a consent to search extends to anywhere the person allows you to search.  Thus, a consent to search vehicle extends to closed containers unless consenter indicates otherwise.


Searches and Seizures without a Warrant Objective 4b


Try to get a written consent if possible – warn person evidence found might be used against them in court.


Searches and Seizures without a Warrant Objective 4h

If an officer reasonably believed the person had authority at the time the consent was given to give it, but it turns out the officer was wrong, as long as the officer acted in good faith the search will be upheld.


            H.        Inventory Searches.


1.         If person is to be arrested; if there is a police department policy in place and if police had not acted in bad faith, (arrested just for purpose of being able to conduct a warrantless inventory search), the warrantless search of entire vehicle, including closed containers inside vehicle is valid.


                        2.         Rationale:


Searches and Seizures without a Warrant Objective 5a


a.         Protecting property of the person to be arrested and to protect the police from false claims that property was missing.


Searches and Seizures without a Warrant Objective 5b, 5c


b.         You may use reasonable force to break into a locked container in order to inventory its contents, but you need department policy that requires it in all cases.  The department may be required to pay for the damage later.  This includes glove boxes and trunks.  (The same rationale applies for search of locked containers in the possession of an arrested party.)


3.         Standard operating procedure of Department is to inventory seized and impounded cars.


Searches and Seizures without a Warrant Objective 5d


Nothing – Pretextual searches upheld by Supreme Court in Whren – objective in incorrect.


Searches and Seizures without a Warrant Objective 5 e, f


During booking all of a prisoner’s personal effects may be inventoried.  The justification is to keep items of value safe, keep the suspect and officers safe and to prevent escapes.  During booking, if an inventory is conducted of a locked container and damage is done, the Department may have to pay for the damage.


The role-playing which has been added to this objective is covered in the Practical Applications section taught by the Academy Staff.


            I.          Checkpoints.


1.         No random stops to check drivers license (reasonable suspicion only).


2.         But can stop every car at organized road block (or every 5th car).  Michigan State Dept. of Police v. Sitz


            a.         Brief Stop/Observation Only.


3.         Rationale – safety of roads outweighs intrusion.


4.         Note on Checkpoints – vehicle questions


a.         Unconstitutional to pull cars over randomly just to check driver’s license.  Must have reason suspicion.  (Exceptions) Can, if there is organized road block.  Initial stop must be brief everyone is stopped just for observation.


            Rationale – The intent of safety is the roads outweighs the intrusions.


            Gun checkpoints do not relate to car.  Unconstitutional.


VIII.      Serving Arrest Warrants.  Distribute Handout – “Entry into Private Places Without a Search Warrant”


A.        An arrest warrant issued on probate cause that the crime has been committed it


1.         Under arrest as soon as they feel they are not free to leave.  Don’t have to be told.


            B.        Allows to enter home only if. . .


                        1.         Suspects home (felony or misdemeanor)


C.        If no arrest warrant – no entry into any home without exigent circumstances, i.e., hot pursuit.


1.         Entry into private home is an extreme intrusion.  No warrant, arrest is invalid.  All evidence seized will be suppressed.


                        2.         Search warrant allows for arrest and search.


            D.        No arrest warrant required in public place when you have probable cause.


            E.        No entry into third parties home without search warrant


                        1.         Unless consent.


                        2.         Unless hot pursuit (exigent circumstances)


                                    a.         Must be serious felony.


b.         AND lives may be endangered or critical evidence being destroyed.


            F.         Review.


                                    - Search warrant always allows entry and arrest.


            G.        Going back into house.


1.         If person comes to door can arrest without warrant.  But if they slam door, cannot use hot pursuit i.e., cannot rely on exigent circumstances you create.


Review – End of First Half.


Use “John Stevens” scenario and KCPD CRN 94-142090

Review for test






            When are suspects statements admissible in evidence?




            1.         Coerced confessions never admissible.


            2.         To be valid confessions, must comply with Miranda.


            3.         Miranda applies. . .


                        *Police Custodial. . .


                        *Interrogations. . . . .


                        *And if there is no valid waiver.



Fifth Amendment


Admissions and Confessions Objective 2c


I.          No person shall be compelled to be a witness against himself.  The right not to incriminate one’s self.


A.        Issue – From police standpoint when can confessions obtained by police interrogation be used in evidence.


                        1.         NO POLICE COERCED confessions admissible. . . .


a.         If police coerced then this is involuntary confession.  But to be involuntary must be police coerced confession.



                                                1.         Non governmental coerced – still voluntary.


2.         Mental illness – God told me to do it – still voluntary.


*****b.             Even Miranda warning will not make an involuntary confession admissible.


Admissions and Confessions Objective 1


The overriding procedural requirement regarding obtaining admissions and confessions is voluntariness.


Admissions and Confessions Objective 2


2.         However, Miranda v. Arizona, still governs in deciding whether a confession made to the police is admissible.


a.         Miranda sets forth technical requirements which must be met before any confession can be considered valid.  Refer to glossary definition of the term “Miranda warning.”


3.         Summary – No police coerced confession is ever admissible even if Miranda warning is given.  NO other confession is admissible if Miranda applies and the warning was not given.


Admissions and Confessions Objective 2g


4.         Why is it often better not to read Miranda when it is not required, i.e., by a patrol officer on the street who has no intention of questioning?  The reading of Miranda tends to discourage people from talking when they might otherwise do so.  The giving of the warning establishes a presumption of custodial interrogation, even if no actual custody exists.


5.         People with apparent sub-standard IQ may be Mirandized and interrogated but be careful!  May need to simplify warning in order to make sure they understand.  If intoxicated or on drugs, better to wait until they sober up, but if they seem lucid, you may Mirandize and interrogate.  In State v. Mitchell, (Mo. App. 1999), the Missouri Court of Appeals for the Southern District held that even a blood alcohol level of .24 in a party that was described as “very, very drunk” does not itself preclude ability to knowingly and intelligently waive Miranda rights after receiving a warning.  The Court cited State v. Loazia, 829 S.W.2d 558, 556 (Mo. App. 1992), which stated that intoxication was not an issue as long as it “does not amount to mania.”  Mitchell had driven a truck to a nearby store and called the sheriff.  Despite slurred speech and mumbling, has twice given a cogent account of what happened after being warned of his Miranda rights and having waived them.  Clearly, as long as the subject is functioning well enough to do this sort of activity, there are clear precedents that will allow Miranda to be read and waived.


6.         If an attorney is present, not necessary to read Miranda warnings, but good idea to ask attorney if he would like them read.


7.         If a suspect indicates that they do not want to talk, you can ask again later if they have changed their mind, but must not appear to be badgering.


8.         Be sure you are clear that the suspect understands the waiver even if they begin talking right after you read them their rights.  Anything that leads you to believe they may not understand should be clarified and an explanation of the rights is appropriate.


9.         Anytime there is a significant passage of time between interrogation sessions, when there has been a change in interrogators or the interrogation has moved from one location to another, the warning should be repeated.


II.          Principles behind Miranda.


Admissions and Confessions Objective 2b, 2c


A.        When an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subject to questioning, the 5th Amendment privilege against self-incrimination is jeopardized.


Admissions and Confessions Objective 2d


1.         Thus, the Curt develops procedural safeguards that must be followed during custodial police interrogations to avoid violating self-incrimination privilege.  An attorney may need to be present to protect the suspect’s Fifth Amendment right, according to the courts.  Confessions are inadmissible if violate Miranda.


Admissions and Confessions Objective 3


2.         Thus, what has Court said:  applies only to police or persons known by suspect to be directed by the police – see Handout page 15.


                                    a.         Custodial (Was subject free to leave?)


Admissions and Confessions Objective 2f


b.         Only to interrogations (did questioners either question the suspect or use any words or action reasonably likely to elicit an incriminating response from suspect).  Only to testimonial evidence.  That is why pre-charge line-ups are not covered.


c.         Note – Miranda deals only with situations where the suspect has not been formerly charged before questioning takes place.  If no questioning – no right to attorney.


III.         Warning required by Miranda before questioning.


            A.        Right to remain silent.


            B.        Anything said can be used against him in Court of Law


C.        Right to presence of attorney before questioning (note:  not to just consult).


            D.        Cannot afford one – one will be appointed prior to questioning.


IV.        Two Part Analysis.


Admissions and Confessions Objective 2e


A.        First Question – Are Miranda warnings required anytime police intend to question an individual?  No.  Only if custody and interrogation.  This is the Miranda equation.


Admissions and Confessions Objective 4a


1.         Custodial.  Only when custodial, which means person is in custody or deprived of his freedom in a significant way.  Voluntary statements without custody – no warning.


B.        Second Question – What is an interrogation?  Must be interrogated to involve Miranda.


Admissions and Confessions Objective 5


2.         Interrogation – Direct questions and indirect questions if police should have known they were reasonably likely to elicit an incriminating statement.  May not even be questions – confronting a suspect with the evidence against them, even if not accompanied by questions.


C.        Third Question – Under what circumstances will Defendants confessions offered during a custodial interrogation be admissible.


3.         Only if Miranda warning was given and a valid waiver obtained. 


Admissions and Confessions Objective 6c

Two requirements – To be a valid waiver, prosecutor must prove waiver was intelligent and knowing, i.e., Defendant understood and relinquished or waived his rights.


V.        Analysis of Key Issues.


Admissions and Confessions Objective 4a, b, c


A.        Police Custody – The key is whether a person is deprived of his freedom of action in a significant way.  Analysis – how would a reasonable innocent person in suspect’s position have understood his situation.  Things an officer can do to create custody:  Grabbing or touching for purpose of preventing departure may be custody.  A show of a weapon may create custody.  Remember a suspect who is fleeing is not seized until stopped so anything he says during  chase is not affected by Miranda.  The demeanor of the officers can create custody – hostile behavior, ordering persons around and using insulting or demeaning language, for example, may create custody in the mind of a reasonable person.  Courts have even said an isolated location or one unfamiliar to the suspect may create custody.


1.         Police Station – True or False:  Anytime someone is questioned at the station, they must be given a warning.  FALSE.


a.         Example – You suspect X of stealing.  You call him and say, I would like to talk to you can you come to the station.  He comes in and you say, I think you stole a set of pearls.  Suspect is not under arrest, but confesses.  Court says no custody.  No arrest.  Could have left.  Reasonable person would have known they could leave.  No deprivation of freedom.


b.         Example – D’s in jail pending trial on aggravated assault.  They suspect he is a participant in unrelated murder.  Police plant undercover agent in cell.  Upon questioning, suspect implicates self.  Why is this non-custodial?  Rationale for receiving Miranda is because suspect feels compelled to speak when he is in coercive police atmosphere.  No coercion here since the person he is speaking to is an undercover agent.  Sixth Amendment violation if questioning was related to the assault.


2.         Out of station questioning – General Rule – Not custodial.  But key is if the individual feels he is not free to leave (reasonable person standard) coercion if many police, long questioning, in a private place.


                                    a.         Examples – Suspect’s home.


1.         3:00 a.m. police to boarding house of suspect.  Wake him up and sit at the foot of his bed for a few minutes, questioning him.  No rights given.  He confesses.  Admissible?  No.  He would not feel free to leave.


2.         4:00 a.m. police go to suspect’s house and question for four hours.  He makes incriminating statements.  He claims inadmissible.  He says I knew I could end interview at anytime.  But they still should have given me warnings.  Admissible?  Yes.  He knew he wasn’t in custody.  He knew he could leave at any time according to his own testimony.


                                    b.         Examples – Scene of crime.


1.         Crime has just occurred.  Grab some individuals, start asking general questions, but start narrowing to one suspect.  Okay, but, at point start focusing on one suspect, if plenty of officers present atmosphere coercive.  The need to warn might arise, before the arrest.  General Rule:  On scene general questioning, no waiver needed.


c.         Examples – Scene of crime.  Terry Stop.  Do you think the stop is custodial?  How about the frisk for officers safety?  Generally not, but what if police out number the suspects or the on-street questions become sustained and intense, i.e., suspect will be deemed in custody as soon as his freedom of action is curtailed to a degree associated with formal arrest.  Remember, coercion only matters if the confession is necessary for trial.


d.         Examples – Traffic stops.  Generally, no warning because traffic stop is deemed temporary and brief and motorist knows he will be allowed to continue on his way and it is usually public i.e., 1 or 2 police, not police dominated.  But again, if they become so sustained and so intimidating, he could be in custody even though no formal arrest.  Also triggered when suspect learns he is being arrested.  Note – Does not matter here when officer decided to arrest only when suspect learns of it.  (Not like search cases).


e.         Examples – Airport smugglers.  Can stop and talk to suspected smugglers but if it is clear to suspect that he is not free to leave or if large number of police present, then coercive atmosphere.  Lady strip searched and the taken to office – confesses.  More than a routine stop, she was in custody.  Confession inadmissible.


f.          Examples – suspect voluntarily comes to station.  No Miranda.


g.         Minor crimes – No exception to Miranda.  Key is custodial interrogation, even if an infraction.



B.        Interrogation.  There must be no interrogation after the suspect invokes his right to an attorney under Miranda.


Admissions and Confessions Objective 5


1.         Voluntary statements with no custody.  No Miranda (Someone walk up on street and makes a confession.)  Make note of what they say and read Miranda warning as soon as possible.


2.         But Court is skeptical of any voluntary statements made while in custody because of coerciveness of the atmosphere.


a.         Court will look to see if indirect questioning was actually interrogation, i.e. police should have known if their words or actions are reasonably likely to elicit an incriminating response from subject.  i.e., Statement to another officer that I sure hope these handicapped kids in that school don’t find that missing shotgun shell and get hurt.  (Court said not reasonable to believe officers can get confession from this statement. 


                                    b.         Brewer v. Williams – Christian burial speech


3.         Note – public safety exception.  If police questioning is reasonably prompted by concern for public safety, no warning necessary.


            C.        Waiver – What is a valid waiver of Miranda?


Admissions and Confessions Objective 6d


1.         Express – In writing the best, tends to prove rights were read – verbal okay.


Admissions and Confessions Objective 6a


2.         Implied – Courts will scrutinize.  Prosecutor has the burden of proving waiver was intelligent and knowing, i.e. Defendant understood and intended to relinquish rights.


a.         Note – Since the issue is understanding the rights and intending to waive them, these types of things do not affect suspect who waivers. . . .


1.         You simply do not tell him his lawyer is trying to contact him.


2.         Deception is not a violation of Fifth Amendment so long as suspect understands the essentials of the warning i.e. tell him others have confessed and have implicated him; if concealed, you could get death.  But, note – cannot fabricate evidence.


3.         Mental illness does not affect.  Chronic schizophrenic confesses on street, OK.


4.         Even if he waives for minor crime and questioning turns to major crimes.


VI.        Other Fifth Amendment Concerns.


A.        Once suspect has asserted a desire to have counsel, can you question him again prior to supplying a lawyer?  No.  Only if suspect initiates conversation and knowingly waives.


B.        Warning given on a burglary – suspect invokes rights.  Several hours later you question on another burglary after second warning Okay.


            C.        What about evidence other than answers to questions. . .i.e


1.         Blood samples – no warning (You have probable cause or search warrant but no Miranda given.)


2.         Forcing suspect to appear in lineup and speak – no warning required.


3.         Fingerprinting, photographs, handwriting samples, etc., Courts have said these are not testimonial.  Stop drunk driver.  At station they videotape.  Okay, name, address, weight, DOB, age, video

admissible at trial to show slurred speech.


            Note – These issues change when formal procedures begin.




                        X         Coerced confessions never admissible.


                        X         To be valid confessions must comply with Miranda.


                        X         Miranda applies if:


                        X         In Police custody AND


                        X         Interrogation takes place.


                        X         Must be valid waiver.


Admissions and Confessions Objective 6b


                        If custody, suspect must be warned prior to questioning


                        a.         Right to remain silent


                        b.         Anything can be used against him in court of law.


                        c.         Right to the presence of an attorney.


                        d.         Cannot afford one, one will be afforded prior to questioning.


            Discuss appropriate method for giving Miranda and obtaining a waiver.


III.         Miranda Issues.


            A.        Custodial Only


            B.        Rights may be exercised at anytime.


C.        Waiver must be knowingly and intelligently made (i.e., silence does not waiver).


D.        Right to counsel.  Only if questioned.


E.        Inadmissible if violating Miranda.


            1.         Could be used to impeach.


Admissions and Confessions Objective 7, 8, 9


Answers are contained in the POST Handouts, pages 14-22.  Go over and discuss each of the situations and how officer should deal with them.


Play video of interrogation – discuss legality of procedures used, the warning and how the waiver is obtained.


IV.        How Fifth Amendment compares with Sixth Amendment


A.        Miranda relies more on Fifth Amendment (self incrimination) than the Sixth Amendment (right to counsel).  Protecting against incrimination, no absolute right to lawyer.  Police do not have to give attorney if no questions.  (Go to lecture notes on the Sixth Amendment)