MIRANDA WARNINGS ATTACK OUTLINE

1. W AS THERE AN INCRIMINATING STATEMENT MADE

THAT WAS OBTAINED BY POLICE ?
2. W AS THE INCRIMINATING STATEMENT OBTAINED
DURING A CUSTODIAL INTERROGATION ?
 TWO PARTS TO THIS:
1. Was the individual in custody?
a. Defined as when a person is not free to leave, or otherwise deprived of their freedom in any
significant way.
b. Would a reasonable person believe they are free to leave?
2. Was the individual subject to an interrogation?
a. Not just express questioning, but any words or actions that the police know, or should know,
are likely to elicit an incriminating response.

3. D ID POLICE READ THE M IRANDA RIGHTS ?

 MIRANDA WARNINGS DO NOT HAVE TO CONFORM TO THE EXACT
FORMULATION, SO LONG AS THE SUSPECT IS FULLY INFORMED OF HIS
RIGHTS.
 THE INQUIRY IS SIMPLY WHETHER THE WARNINGS REASONABLY CONVEY
TO A SUSPECT HIS RIGHTS AS REQUIRED BY MIRANDA.

4. D ID THE INDIVIDUAL INVOKE THEIR M IRANDA

RIGHTS ?
 RIGHT TO COUNSEL: SPECIFIC, UNAMBIGUOUS. IF INVOKED, ALL
INTERROGATION MUST STOP UNTIL COUNSEL IS PRESENT.
o When you invoke your right to counsel, subsequent waiver is presumed coercive if initiated by an
officer, unless 14 days have passed. On 15th day, they must re-mirandize you.
o Need 14 days in a non-coercive environment. (Jail = non; solitary confinement = coerc.)

 RIGHT TO SILENCE: SPECIFIC, UNAMBIGUOUS. MERE SILENCE IS NOT

ENOUGH. INTERROGATOR MUST SCRUPULOUSLY HONOR THAT REQUEST.

O WOULD THE SUSPECT FEEL LIKE IT WAS ONE CONTINUOUS

INTERROGATION, AND A WEARING DOWN OF HIS WILL?
O DETERMINING IF REQUEST WAS SCRUPULOUSLY HONORED:
 Original interrogation must immediately cease,
 Passage of time between invocation and new questioning,
  New set of Miranda rights and a waiver,
 Questioning about a different crime, by a different officer, in a different location.

5. D ID THE INDIVIDUAL WAIVE THEIR M IRANDA

RIGHTS ?
 MUST KNOWINGLY, INTELLIGENTLY, & VOLUNTARILY DO SO.
 PROSECUTIONS BURDEN TO SHOW, BY PREPONDERANCE OF THE EVIDENCE.

6. W AS THE STATEMENT INVOLUNTARY?

 W A S I T A R E S U L T O F I M P R O P E R P O L I C E T A C T I C S -- COERCION?
 COERCION CONSTITUTES PHYSICAL VIOLENCE, THREATS, OR PROMISES THAT SUSPECT
WILL NOT BE PROSECUTED.

7. A RE THERE ANY EXCEPTIONS?

 IF THE STATEMENTS ARE USED FOR IMPEACHMENT PURPOSES (HARRIS)
 IF THE STATEMENTS WERE OBTAINED IN AN EMERGENCY SITUATION (QUARLES)
 IF THE STATEMENTS WERE MADE AT THE TIME OF BOOKING IN RESPONSE TO ROUTINE QUESTIONS BY
POLICE. (MUNIZ)

8. S HOULD THE STATEMENTS OR ANY FRUITS BE

EXCLUDED UNDER THE 5 TH A MENDMENT ?
 If individual’s Miranda rights are violated, then the statement is excluded
and inadmissible at trial.
o As a general matter, any physical fruits of the confession are NOT excluded. Includes
evidence seized on reliance on the statement.
 If individual made an involuntary statement, it is excluded and inadmissible
at trial.
o Any physical fruits of the statement will be excluded as well.
 SEARCH ATTACK OUTLINE
1. W AS IT A GOVERNMENT ACTOR ?
2. I S IT A SEARCH FOR FOURTH AMENDMENT
PURPOSES ?
 KATZ - IT IS A SEARCH IF THE PERSON HAS (1) AN INDIVIDUAL
EXPECTATION OF PRIVACY AND (2) ONE THAT SOCIETY DEEMS
REASONABLE.
i. Katz Exception: Third party doctrine: person has no reasonable expectation of privacy in
information that they knowingly expose to the public. Even if you're forced to expose it.

 JONES - D I D THE GOVERNMENT PHYSICALLY TRESPASS ONTO

CONSTITUTIONALLY PROTECTED AREA TO GATHER INFORMATION?
ii. Open field doctrine: not a search for fourth amendment purposes under Katz or Jones even
though its physical.

3. W AS IT REASONABLE?
 WARRANT SEARCHES ARE PRESUMPTIVELY REASONABLE

4. A RE THERE ANY EXCEPTIONS TO THE WARRANT

REQUIREMENT ?
 Exigency
o Safety: Police can enter home if there is an immediate danger to protect welfare of citizens.
o Destruction of evidence: Only if police didn’t create the exigency by threatening violate the 4th.
 Plain view: Must be (1) Lawful intrusion and (2) item incriminating on its face and immediately apparent.
 Consent: Police can search if obtain voluntary consent. Voluntariness determined totality of circum.
 Search incident to arrest: Allowed bc of Chimel concerns -- safety & destruction of evidence. Can search
body and grabbable area (Chimel), but not if suspect is in back of patrol car (Gant). 3 reasons to search car
SIA post-Gant.
o Within reaching distance
o Probable cause there is contraband
o Reasonable suspicion of evidence in the crime is in the car.
 Special Needs: Balances governmental & private interests.
 o Border crossing: Does not need RS to search car or mail at border; only need RS to detain; can
have more intrusive searches
o Checkpoints: Unconstitutional when primary purpose is to detect evidence of ordinary criminal
wrongdoing; okay when it is information seeking or legit interest like sobriety checkpoint.
o Jails/prisons: Strip searches don’t require RS because of health/security risks.
o DNA of arrested: Applies only to serious offenses, lower expec of privacy, considered reasonable.
 Automobile: Vehicles have less protection bc of extensive regulation. If PC attaches to car -> can search
anywhere.
 Hot pursuit: police can enter home in pursuit of fleeing felon. They can search house where it is
reasonable to find suspects/weapons.
 Inventory Searches: Police as caretakers can inventory an impounded car, and can do inventory search of
arrested person during booking.
 Protective Sweep: When police arrest somebody, the police can look in immediate area where an attack
can be launched, beyond that there must be articulable facts and rational inference would warrant officer
in believing that the area being swept harbors an individual who may be a threat.

5. I F NOT REASONABLE SEARCH , SHOULD

EXCLUSIONARY RULE APPLY ?
 D OES THE DEFENDANT HAVE STANDING?
o A PERSON LEGITIMATELY ON THE PREMISES MAY CLAIM A FOURTH
AMENDMENT VIOLATION ONLY IF HE HAS A LEGITIMATE
EXPECTATION OF PRIVACY IN THE PLACE SEARCHED OR THING
SEIZED. RAKAS V. ILLINOIS
O IF POLICE STOP A CAR, EVERYONE IN THE CAR IS SEIZED AND MAY
THEREFORE CHALLENGE THE STOP'S CONSTITUTIONALITY.
BRENDLIN
O SOMEONE IN LAWFUL CONTROL OF A RENTAL CAR HAS
REASONABLE EXPEC OF PRIVACY. BYRD.
O NEED REASONABLE EXPEC OF PRIVACY FOR WHERE THING IS (LIKE
F R I E N D S P U R S E I S N O T R E A S O N A B L E ). R A W L I N G S V . K E N T U C K Y
O FOR VISITORS IN HOME, COURTS LOOK TO RELATIONSHIP,
CONTEXT, DURATION, FREQUENCY, POSSESSIONS.

 IF THERE IS STANDING , IS THERE AN EXCEPTION TO THE

EXCLUSIONARY RULE ?
O INDEPENDENT SOURCE: ALSO OBTAINED THROUGH A SOURCE
INDEPENDENT OF THE POLICE MISCONDUCT AND UNTAINTED BY THE
ILLEGAL ACTIONS OF THE POLICE.
O ATTENUATION OF TAINT: ADMISSIBLE IF LACK OF FLAGRANT
IMPROPRIETY, LACK OF TEMPORAL PROXIMITY, OR AN INTERVENING
 CIRCUMSTANCE ATTENUATED THE CHAIN BETWEEN POLICE
MISCONDUCT AND THE SEIZURE.
O GOOD FAITH: NEGLIGENT OR GOOD FAITH VIOLATIONS OF 4TH
AMENDMENT.
O INEVITABLE DISCOVERY: POLICE WOULD’VE INEVITABLY
DISCOVERED THE EVIDENCE WITHOUT A VIOLATION OF THE FOURTH
AMENDMENT.
 A L W A Y S G O T O H E R R I N G [ A F T E R T H E 4 E X C E P T I O N S ]:
RULE: U N L E S S T H E P O L I C E O F F I C E R H A S A C T E D R E C K L E S S L Y O R
BEEN GROSSLY NEGLIGENT OR CONDUCT IS THE RESULT OF
SYSTEMIC MISCONDUCT, THE EXCLUSIONARY RULE DOES NOT
APPLY.

SEIZURE ATTACK OUTLINE

1. IS IT A GOVERNMENT ACTOR?
2. W HAT DID THE OFFICER DO HERE ?
A. STOP & FRISK?

I. WHEN AN OFFICER OBSERVES UNUSUAL CONDUCT THAT

REASONABLY LEADS HIM TO ASSUME THAT CRIMINAL
ACTIVITY IS AFOOT AND THAT THE PEOPLE HE IS INTERACTING
WITH ARE ARMED, THE POLICE OFFICER MAY CONDUCT A
LIMITED SEARCH FOR WEAPONS

B. ARREST?

I. MENDENHALL: A REASONABLE PERSON UNDER THE

CIRCUMSTANCES WOULD BELIEVE THAT HE OR SHE WAS NOT
FREE TO LEAVE.
II. H O D A R I D.: 1) W O U L D A REASONABLE INNOCENT PERSON
FEEL FREE TO TERMINATE THE ENCOUNTER? AND (2) D I D THEY
SUBMIT OR WERE THEY PHYSICALLY RESTRAINED?
• TORRES V. MADRID:
 O THE APPLICATION OF FORCE, WITH INTENT TO
RESTRAIN, IS AN ARREST EVEN IF THE PERSON
ESCAPES.
O IF THERE IS NO FORCE, THERE MUST BE AN ORDER
AND COMPLIANCE OF AN ORDER TO BE AN ARREST.

3. REASONABLE: W HAT WAS REQUIRED OF THE

OFFICER BEFORE STOP
A. STOP  REASONABLE SUSPICION

A. [BEFORE THE STOP] THE POLICE OFFICER MUST BE ABLE TO

POINT TO SPECIFIC AND ARTICULABLE FACTS WHICH TAKEN
TOGETHER WITH RATIONAL INFERENCES FROM THOSE FACTS,
REASONABLY WARRANT THAT INTRUSION. FACTS MUST BE JUDGED
AGAINST OBJECTIVE STANDARD. NOT A MERE HUNCH.
B. ARREST  PROBABLE CAUSE

A. IF AN OFFICER HAS PROBABLE CAUSE THAT AN INDIVIDUAL IS

VIOLATING THE LAW, HE MAY ARREST THEM, EVEN FOR

MINOR OFFENSES. ATWATER.

B. INVESTIGATIVE DETENTION: MUST BE TEMPORARY AND LAST NO

LONGER THAN IS NECESSARY TO EFFECTUATE THE PURPOSE OF THE

STOP. LEAST INTRUSIVE MEANS TO VERIFY OR DISPEL SUSPICION IN

A SHORT PERIOD OF TIME.

C. INVESTIGATORY STOP: TOTALITY OF THE CIRCUMSTANCES LEADS

TO A REASONABLE SUSPICION OF CRIMINAL ACTIVITY, EVEN IF

NONE OF THE FACTORS, VIEWED INDIVIDUALLY, WOULD LEAD TO

REASONABLE SUSPICION. ARVIZU.

D. STOP FROM ANONYMOUS TIP: TOTALITY OF CIRCUMSTANCES

ANALYSIS. CAN SUPPORT REASONABLE SUSPICION IF INDICA OF

RELIABILITY ( P R E D I C T I V E ).

4. D OES THE EXCLUSIONARY RULE APPLY ?

 D OES THE DEFENDANT HAVE STANDING?
o A PERSON LEGITIMATELY ON THE PREMISES MAY CLAIM A FOURTH
AMENDMENT VIOLATION ONLY IF HE HAS A LEGITIMATE
EXPECTATION OF PRIVACY IN THE PLACE SEARCHED OR THING
SEIZED. RAKAS V. ILLINOIS
O IF POLICE STOP A CAR, EVERYONE IN THE CAR IS SEIZED AND MAY
THEREFORE CHALLENGE THE STOP'S CONSTITUTIONALITY.
BRENDLIN
O SOMEONE IN LAWFUL CONTROL OF A RENTAL CAR HAS
REASONABLE EXPEC OF PRIVACY. BYRD.
O NEED REASONABLE EXPEC OF PRIVACY FOR WHERE THING IS (LIKE
F R I E N D S P U R S E I S N O T R E A S O N A B L E ). R A W L I N G S V . K E N T U C K Y
O FOR VISITORS IN HOME, COURTS LOOK TO RELATIONSHIP,
CONTEXT, DURATION, FREQUENCY, POSSESSIONS.

 IF THERE IS STANDING , IS THERE AN EXCEPTION TO THE

EXCLUSIONARY RULE ?
O INDEPENDENT SOURCE: ALSO OBTAINED THROUGH A SOURCE
INDEPENDENT OF THE POLICE MISCONDUCT AND UNTAINTED BY THE
ILLEGAL ACTIONS OF THE POLICE.
O ATTENUATION OF TAINT: ADMISSIBLE IF LACK OF FLAGRANT
IMPROPRIETY, LACK OF TEMPORAL PROXIMITY, OR AN INTERVENING
CIRCUMSTANCE ATTENUATED THE CHAIN BETWEEN POLICE
MISCONDUCT AND THE SEIZURE.
O GOOD FAITH: NEGLIGENT OR GOOD FAITH VIOLATIONS OF 4TH
AMENDMENT.
O INEVITABLE DISCOVERY: POLICE WOULD’VE INEVITABLY
DISCOVERED THE EVIDENCE WITHOUT A VIOLATION OF THE FOURTH
AMENDMENT.
 A L W A Y S G O T O H E R R I N G [ A F T E R T H E 4 E X C E P T I O N S ]:
RULE: U N L E S S T H E P O L I C E O F F I C E R H A S A C T E D R E C K L E S S L Y O R
BEEN GROSSLY NEGLIGENT OR CONDUCT IS THE RESULT OF
SYSTEMIC MISCONDUCT, THE EXCLUSIONARY RULE DOES NOT
APPLY.