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218 Cards in this Set

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Katz
4th Amend.
rights are personal and do not belong to an area. Even if no trespass there can be violation
Reasonable expectation test
Person must have a subjective expectation of privacy. Must be something that society will find reasonable and legitimate.
Abandnment of property
Gives up your right to privacy
Legitimate interests for expectation test
Being free from physical disruption and inconvenience
Keeping personal or embarrassing information private
Control and use of his or her property
Oliver v. US
No expectation of privacy in open fields
Dunn v. US
curtilage is protected by 4th amend.
Curtilage factors
(1)Proximity of the area to the home
(2)Whether the area is included within an enclosure surrounding the home
(3)The nature of the uses to which the area is put
(4)The steps taken to protect the area from observation by people passing by
Access by members of the public
No expectation of privacy if the general public has access
US v. White
No expectation of privacy for public conversations
Smith v. Maryland
No expectation of information voluntarily given to 3rd party. Ex. phone numbers recorded on pen register.
California v. Greenwood
Trash rips okay
Calfornia v. Ciraolo
Aerial surveilance okay
Florida v. Riley (Oconnor concurrence)
Reasonableness of expectation is whether the public ordinarily had access to the info. not whether it was legally possible
Bond v. US
Bus passenger expects his bag to be touched but not exploratorily searched.
US v. Place
Canine sniffs no problem, they only reveal illegal activity--not a search. Must have PC to stop
Canine sniff alerts
Can lead to PC but still must get warrant or an exception
Illinois v. Caballes
use of trained K9 during Traffic stop okay--no privacy interests. Stop must not go past time of ordinary stop
Kyllo v. US
Use of thermal imaging device to get information from the inside of house is a search into a constitutionally protected area
US v. Knotts
Beeper tracking device okay on vehicle because the information is the same as following
US v. Karo
Beeper movements tracked while out of public view no good.
Texas v. Brown
the use of artificial means to illuminate the dark does not constitute a search
Burdeau v. McDowell
search by private citizen not violation of 4th unless citizen thought they were agent of police or police should reasonably have known their actions would lead to such belief
Walter v. US
Private citizen search can provide PC for warrant but does not abrogate warrant requirements
US v. Jacobsen
Courts look to see extent government exceeded the private search, therefore, reopening is permitted
US v. Paige
if a private party's intrution into the home is forseeable, then the occupant no longer has a reasonable expectation of privacy
NJ v. TLO
school children have expectation of privacy, any intrusion by school officials must be reasonable
Oconnor v. Ortega
public employees have an expectation of privacy but intrusions justified if officials have reasonable suspicion
Spinelli v. US
Two part test for PC on informants
1. must have underlying circumstances for the magistrate to verify
2. gov must support the credibility of informant
Illinois v. Gates
Totality of circumstances test
Totality of circumstances test
Magistrate to make practical common-sense decision whether all of the circumstances in warrant requirest whether there is a fair probability of getting evidence sought
Probable cause to search
whether there is fair probability that the evidence sought will be found
Probable cause to arrest
there is a fair probability that the person committed the crime.
Maryland v. Pringle
if there is PC that felony has occurred and there are multiple people in the vehicle, PC over all of them
Warden v. Hayden
Distinction between items of evidentiary value and the instrumentalities, fruits, or contraband of a crime no longer valid
Zurcher v. Stanford Daily
Requirement on warrant app.
reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.
Factors: 1.type of crime, 2. nature of item, 3. Opportunity for concealment, 4. normal inferences about hiding spaces
Andresen v. Maryland
Requirement on warrant app.
must describe the items to be searched for with reasonable particularity to prevent a general rummaging by police
Knock and announce
PO must knock, announce, and allow a reasonable amount of time under the circumstances for a person to answer before entering under warrant
Wilson v. Arkansas
Knock and announce not constitutional requirement but merely a component of the 4th reasonableness inquiry
Knock and announce exception
the door is already open--no breaking.
PO tricks person out
Richards v. Wisconsin
no knock and announce if officers reasonably believe a danger to persons or inhibit effective invest.
Hudson v. Michigan
violation of knock and announce does not require exclusion of any evidence found
Shadwick v. Tampa
Magistrate must be neutral, detached and capable of probable cause determination
Atwater v. Lago Vista
PO can arrest for minor offenses if wants to and state allows custodial arrest for that crime`
US v. Watson
PO may arrest for crimes committed in his presence or for felony commited outside of presence but reasonable belief person committed.
Graham v. Connor
excessive force to be judged by the 4th reasonableness standard
Excessive force factors
(1)Severity of the crime at issue
(2)Whether the suspect poses an immediate threat to the safety of the officers or others
(3)Whether the suspect is actively resisting arrest or attempting to evade arrest by flight
Scott v. Harris
When a PO tries to stop a vehicle chase, not liable for the injuries to suspect. Must involve danger to others
Payton v. New York
an arrest warrant is required to enter home of suspect to arrest.
Steagold v. US
Search warrant necessary to enter the home of third party to look for someone on arrest warrant
Minnesota v. Olson
Arrest warrant required to enter the home of third party when suspect staying overnight
Minnesota v. Carter
One merely on the premises of a third party has no expectation of privacy. PO may enter and arrest
Terry v. Ohio
PO may reasonably search the outer clothing area of suspect for weapons if he believes the person possibly armed and dangerous
Adams v. Williams
Reasonable suspicion for terry stop can be supplied by another person. Not just based upon PO observations
Penn. v. Mimms
PO can order driver out during TS--automatic, no reasonable suspicion
Maryland v. Wilson
PO can order passengers out durign TS--automatic, no reasonable suspicion
Brendlin v. Cal.
PO must have reasonable suspicion to stop vehicle--hunch not good enough
Michigan v. Summers
PO can require all persons on premises to remain while executing search warrant
Reasons PO can make people stay during search warrant
(1) Prevent flight in the event that incriminating evidence is found
(2) Minimize the risk of harm to the officers
(3) Facilitate the orderly completion of the search
Muehler v. Mena
Along with authorization to make occupants remain, PO can use reasonable force to make that happen.
US v. Mendenhall
a person seized if a reasonable person would believe they were not free to leave.
Florida v. Royer
PO can approach a person and ask to talk. A person does not have to talk, cannot be made to remain without reasonable suspicion. They can walk away
Morgan v. Searle
A person must express his desire not to be bothered and to continue to express
INS v. Delgado
Police do not have to tell people that they have the right to walk away. If they ask questions and the people respond, then ok
Florida v. Bostick
PO allowed to approach people in Bus station as long as reasonable person believed they were free to go.
US v. Drayton
Officers do not have to tell people they have the right to refuse consent to a search
Cal v. Hodari
Pursuit does not constitute seizure until person submits
Alabama v. White
Reasonable suspicion less demanding than PC--less reliable information, less quantity, and content
Flordida v. J.L.
Anonymous info must be reliable for reasonable suspicion, not just giving identity of person
US v. Arvizu
totality of circumstances approach in determining whether PO had objective reason for arrest
Objective reason
draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them
US v. Sokolow
PO must be able to articulate what factors gave them reasonable suspicion even if in the form of profile
Illinois v. Wardlow
Sudden and unprovoked flight enough to give Reasonable suspicion for a stop
Minnesota v. Dickerson
Terry stop used for weapons..cannot use for evidence
Michigan v. Long
Can search in Terry stop anywhere the person can grasp reach or lunge.
Maryland v. Buie
A protective sweep of premises okay as long as justify the reason
Hiibel
PO can ask for ID during Terry stop
Ohio v. Robinette
Totality of the circumstances approach when deciding whether the continuing conversation was consensual after Terry stop
Knapp v. Texas
Forced transportation and questioning constitutes arrest and needs PC
US v. Sharpe
Time limit on TS, “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant”
Arizona v. Hicks
even a limited inspection for evidence not allowed during terry stop
Chimel v. Cal.
Search incident to arrest. Okay to search person and anywhere he could grasp, reach or lunge
Davis v. Robbs
Grab area is determined at the time of arrest, not where the person is at time of search
US v. Robinson
Not only full search of person incident to arrest okay but reasonable
Atwater
If PO has PC to arrest, even for minor crime, then he can and does not violate 4th
NY v. Belton
Search incident to arrest. Can search auto passenger compartment and any containers
Thornton v. US
If arrestee was recently in a vehicle, PO can search incident to arrest.
Knowles v. Iowa
Search incident to citation no good. Does not meet the officer dangerousness or evidence destruction possibility
Whren v. US
Actual subejective motivations of the individual PO doesnt matter to PC analysis accordign to 4th

If discrimination fall under equal protection
Plain view doctrine
if a po in a protected area legitimately and see an article in open view, then he may seize. No search took place
Coolidge
If the PO find an article outside the scope of their legitimate entry, then illegal search
Horton v. Cal.
Discovery of article in plain view does not have to be inadvertant. Meaning--PO can be looking for contraband but not searching
Plain touch search
If giving terry pat, and feel an object consistent with contraband, then can seize
Cannot go beyond scope of pat down, no pushing and prodding
Minnesota v. Dickerson
Carroll v. US
Police may search a vehicle w/o warrant as long as PC of evidence of criminal activity
Chambers v. Maroney
Siezure of vehicle to obtain a warrant okay, but so is searching w/o a warrant since you are seizing the whole thing anyways.
Coolidge
but a warrant is required if PO had a chance to obtain
Cal. v. Carney
autos have a lesser expectation of privacy because it is mobile but even when it isn't the exception still applies
US v. Chadwick
search of container--seizure of footlocker allowed because of mobility but cannot search without warrant
Personal luggage
privacy greater than automobile
Cal v. Acevedo
PO may search auto and containers in it if PC
Wyoming v. Houghton
Where PC exists to search vehicle, PO do not have to have individual PC for each sparate container. Passengers also have a lower expectation of privacy to containers
Warden v. Hayden
Hot pursuit doctrine--suspect knowing that he is being pursued runs so he may destroy evidence, escape, or threaten public safety
Welsh v. Wisconsin
SUspect must know he is being pursued.
Police and public safety
PO may enter a house without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury
Brigham young v. Stuart
action reasonable under 4th when objectively viewed, doesnt matter what the PO subjectively wanted
Risk of destruction of evidence
if evidence will be destroyed in the time it takes to get a warrant, the warrant requirement is excused
Dorman v. US
Exigency factors:
(1) Gravity or violent nature of the offense with which the suspect is being charged
(2) Whether the suspect “is reasonably believed to be armed”
(3) A clear showing of probable cause to believe that the suspect committed the crime
(4) Strong reason to believe that the suspect is in the premises being entered
(5) A likelihood that the suspect will escape if not swiftly apprehended
(6) The peaceful circumstances of the entry
Mincey v. Arizona
A warrantless search must be strictly circumscribed by the exigencies which justify its initiation, and there is no “scene of the homicide” exception to the warrant requirement
Welsh v. Wisconsin
 An important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made
Illinios v. Macarthur
 It is permissible to seize a premise for a reasonable period of time while diligent efforts are being made to obtain a warrant
Administrative searches
 If the government search or seizure is designed to effectuate “special needs” beyond criminal law enforcement, then the Court engages in a balancing of interests under the reasonableness clause to determine what safeguards must apply
Camara v. Municipal court
Warrant is required for admin. safety inspection. Need not be based on PC that problem with house but based upon reasonable admin. scheme
New York v. Burger
Warrantless inspection of closely regulated business
Factors: 1) There must be a “substantial” government interest that informs the regulatory scheme pursuant to which the inspection is made
(2) Warrantless inspection must be “necessary to further the regulatory scheme”
(3) The statute’s inspection program, in terms of certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant
(a) It must advise the owner that the search is being made pursuant to the law and has a properly defined scope
•“sufficiently comprehensive and defined”
(b) It must limit the discretion of the inspecting officers
•“carefully limited in time, place, and scope”
NJ v. TLO
School can seach students and lockers under reasonable suspicion
Skinner
No suspicion necessary if huge governmnt interest and privacy interests are minimal
Ex. Drug testing
Von Raab
Suspicionless drug searches okay for gov. workers who carry weapons
Earls
Drug testing okay for kids in sports because school has to mainain discipline, health, and safety. Children already have a diminished expectation of privacy
Chandler v. Miller
suspicionless drug tests no good for politicians. no evidence of a drug problem, the officials do not perform high-risk, safety-sensitive tasks, and the required certification aids no interdiction effort
Ferguson
Cannot test pregnant women for drug use in a LE capacity when not offering them treatment
US v. Davis
 Airport screening search is reasonable if: (U.S. v. Davis)
(1) It is no more extensive or intensive than necessary, in light of current technology, to detect weapons or explosives;
(2) It is confined in good faith to that purpose;
(3) Passengers may avoid the search by electing not to fly
Delaware v. Prouse
absent reasonable suspicion, an officer cannot stop a vehicle and detain to check license and registration
US. v. Martinez-Fuerte
Suspicionless stops okay at checkpoint to look for illegal aliens, fixed checkpoints minimally intrusive
Sitz
Intrusiveness of sobriety check point okay if for a legitimate state purpose and limited.
Edmond
Primary purpose of drug checkpoint was for criminal intertiction. No public safety motive. No good.
Lidster
Okay to stop vehicles in a limited manner to ask info about a crime. That drugs were found is secondary
South Dakota v. Opperman
Inventory searches okay if following a standard police procedure
Inventory searches
 Three legitimate state interests supported inventory searches
(1) Protection of the police department from false property claims
(2) Protection of the property interests of the owner
(3) Protection of the police and public from dangerous items
Illinois v. Lafayette
Inventory searches at the station to include personal property
Colorado v. Bertine
Police have discretion to allow a person to make arrangements to pick up vehicle or can impound..as long as policy says
Florida v. Wells
 Police officers discretion must be exercised pursuant to standardized departmental regulation; however, the Fourth Amendment does allow some discretion to be exercised in the opening of containers in an inventory search in light of the nature of the search and the characteristics of the container itself
US v. Ramsey
 Searches made at the border without probable cause and without a warrant are nonetheless reasonable under the Fourth Amendment
Border searches
Routine” border searches of the personal belongings and effects of entrants may be conducted without probable cause or reasonable suspicion, and such searches are deemed reasonable because of the important state interest involved in regulating the border, and the limited intrusiveness of a routine border search
Montoya de Hernandez
“Non-routine” or highly intrusive border searches require reasonable suspicion
Flores-Montano
 A “non-routine” or highly intrusive search of a vehicle requires more than the removal of the gas tank, but conduct that results in serious damage to, or destruction of, the property
Martinez-Fuerte
 Inland checkpoints (both permanent and temporary) require no suspicion to stop and propound limited questions; additionally, no articulable suspicion is required to refer a motorist to a secondary inspection area for further questions. However, if the secondary inspection was unduly offensive or intrusive, then individualized suspicion would be required
Brignoni-Ponce
Roving border patrols require reasonable suspicion
Almeida-Sanchez
Searches related to the border but not at the border or equivalent require PC
Schneckloth v. Bustamonte
whether a consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances
Bumper
burden of proving that consent was, in fact, freely and voluntarily given is on the government, and “this burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority”
Frazier v. Cupp
 A joint user of a bag can voluntarily consent to a search of the entire bag because the joint users have “assumed the risk” that the other would consent
US v. Matlock
 It is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched
Illinois v. Rodriguez
 Even if someone does not have actual authority to consent to a search, because they do not have joint access or control of the premises, the entry can still be valid if the officers had reasonable belief that the person had authority to consent
consent to search residence by family member
can consent to search their area and common area but not where others have exclusive control
Georgia v Randolph
 A warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident
FLorida v. Jimeno
The scope of consent is determined by a standard of objective reasonableness.  It is up to the citizen rather than the officer to clarify any ambiguity concerning the scope of consent
Withdrawing consent
Revocation of consent must be clear and explicit
Consent cannot be revoked retroactively after the officers has found incriminating evidence
Lopez v. US
 The recording device was used to obtain the most reliable evidence possible of a conversation that was fully entitled to be disclosed The risk of doing illegal activity is that it will be accurately reported in court
Lewis v. US
 A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the purposes contemplated by the occupant
Gouled v. US
the undercover agent's search must still be within the scope of the invitation into the home
Hoffa v. US
 Relying on misplaced confidence that someone will not reveal our statements is the “kind of risk we necessarily assume whenever we speak”
Wiretaping Title III (18 U.S.C. §§ 2510 – 2520)
 Coverage – “the aural acquisition or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device”
 “Necessity” Requirement – normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous
 Time limits – “not for any period longer than is necessary to achieve the objective of the authorization, not in any event longer than 30 days”
 Roving Wiretaps – “interception of communications that are not tied to a particular location – must show that a stationary wiretap will not be a sufficient means for intercepting the targeted communications”
Foreign Intelligence Surveillance Act (50 U.S.C.A. § 1801)
 Does not require probable cause, but that “the target of the electronic surveillance is a foreign power or agent of a foreign power”
 Includes “Lone Wolf” – not directly affiliated but engages in international terrorism
Weeks v. US
Evidence obtained in violation of 4th must be excluded
Map v. Ohio
exclusionary rule applies to state courts as well
Exclusionary rule
generally does not apply outside the context of a criminal trial
The Exclusionary Rule is to be applicable only where its deterrence benefits outweigh its substantial social costs
Exclusionary Rule does apply to forfeiture proceedings
Government would receive award for violation
Attacking the warrant
There is a presumption of validity to the warrant affidavit. To get hearing must have allegations of deliberate falsehood or consious disregard for the truth. must be accompanied by offer of proof
Challenging warrantless search
gov has burden to prove by a preponderance of the evidence that an exception to the warrant requirement was justified.
Simmons v. US
When a defendant testifies at a suppression hearing, gov cannot use his testimony against him. except: prior inconsistent statement-impeachement. Gov can use witness testimony
Standing
a person must have their personal 4th amend rights violated, cannot be someone elses, and the claimed rights must be reasonable
Rakas
whether search and seizure violated the Fourth amendment rights of a criminal defendant requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect. Overturns the “legitimately on the premises” test of Jones v. U.S
Wong Sun
Fruit of the poisonous tree.
substantial causal connection between illegal search & siezure and the evidence presented at trial. If the evidence is sufficiently attenuated from the illegal search, it will be allowed
Brown v. US
Confession exploited by illegal arrest: (1) Whether the Miranda warnings were provided
(2) The temporal proximity of the arrest and the confession
(3) The presence of intervening circumstances
(4) The purpose and flagrancy of the official misconduct
•The burden of showing admissibility rests on the prosecution
Ceccolini
If a defendant decides to testify, the causal link between testimony and illegality
Independent source doctrine
evidence will not be excluded if it is obtained independently and without reliance on any illegal police activity
Murray v. US
 Even if the police had obtained knowledge as a result of an illegal search, if they do not rely on that information in obtaining a search warrant, then the evidence seized pursuant to the search warrant is still admissible
Nix v. Williams
Inevitable discovery--the government must prove by a preponderance of the evidence that the challenged evidence would have been discovered through independent legal means
Walder v. US
 Evidence that had been illegally seized can be used for impeachment when the defendant “opens the door” to the evidence on direct examination
US v. Havens
 There is no difference of constitutional magnitude between impeachment of direct testimony and impeachment of testimony elicited on cross-examination, so long as the questions put to the defendant on cross examination “are plainly within the scope” of the direct
James v. Illinois
 The impeachment exception is not extended to allow impeachment of defense witnesses (as opposed to the defendant) with illegally obtained evidence
US v. Leon
Good Faith exception-- The Exclusionary Rule cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity, especially when the officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues is objectively reasonable. Does not apply if the error is the officer’s and not the magistrate’s
Does not apply when the individual who issued the warrant is not neutral and detached
Due process test for confessions
Involuntary tests are inadmissible--Brown v. Mississippi
Due process for confessions factors:
Totality of Cir.--(1) Characteristics of the suspect (youth, educational background, mental condition)
(2) Characteristics of the police behavior (duration, trickery, handcuffing, isolation, physical deprivation or mistreatment)
(3) Characteristics of the context of the situation (denied the aid of family, friends, or counsel, and rewards and inducements for confession)
Fulminante
 A finding of coercion need not depend upon actual violence by a government agent; a credible threat is sufficient
Colorado v. Connelly
 The Due Process focus is primarily on police misconduct rather than the suspect’s state of mind, and coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause
Miranda v. Arizona
1. Custody
2. Interrogation
Dickerson v. US
 Congress cannot legislatively supersede our decisions interpreting and applying the Constitution and Miranda is a constitutional right
Harris v. New York
 Statements received as a result of a Miranda-defective interrogation can be admitted for purposes of impeaching a witness’s credibility
Doyle v. Ohio
Post-Miranda silence can not be used to impeach an explanation subsequently offered at trial
Jenkins v. Anderson
Pre-miranda silence can be used
Fletcher v. Weir
Post-arrest, pre-miranda silence can be used
Michigan v. Tucker
 A Miranda-defective statement that leads to witnesses will not result in the exclusion of the witnesses testimony as ‘the fruits of a poisonous tree’
Oregon v. Elstad
 A suspect who has once responded to unwarned yet coercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings
Missouri v. Seibert – Concurrence by Kennedy
 If a two-step interrogation strategy that involves interrogation until a confession is received and then providing Miranda warnings and getting another confession, then the post-warning statements must be excluded unless curative measures are taken before the post-warning statement is made
U.S. v. Patane – Concurrence by Kennedy
 Admission of non-testimonial physical fruits does not run the risk of admitting into trial an accused’s coerced incriminating statements against himself, and therefore should not be excluded
New York v. Quarles
 “Overriding considerations of public safety” can justify an officer’s failure to provide Miranda warnings, and that an unwarned confession and physical evidence obtained under such circumstances is admissible despite Miranda
Custody
when the person is deprived of his freedom of action in any significant way
Stansbury v. California
 An officer’s subjective and undisclosed view concerning whether the person being interrogated is a suspect is irrelevant to the assessment whether the person is in custody
Yarborough v. Alvarado
A suspect’s youth is irrelevant in determining whether he is in custody
Oregon v. Mathiason
An individual questioned at a police station is not necessarily in custody
Berkemer v. McCarty
 Terry stops are not custodial for Miranda purposes; however, if the stop escalates to an arrest, Miranda will apply
Rhode Island v. Innis
 “Interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect
Edwards v. Arizona
Confronting a suspect with incriminating evidence constitutes an interrogation
Pennsylvania v. Muniz
 “Booking exception” – officers can ask questions attendant to custody without Miranda warnings, and if the suspect’s answer is incriminating, it is admissible at trial.  Officers’ instructions must be “limited and focus inquires” that were “necessarily attendant to the legitimate police procedure
U.S. v. Perkins
An undercover agent does not have to give Miranda warnings because there is no danger of coercion
Moran v. Burbine
Miranda does not require the police to inform the suspect of an attorney’s efforts to reach him
It is the suspect who has the right to counsel under Miranda; and that right does not come into effect until the suspect invokes the right
Counsel has no independent rights to assert
Colorado v. Spring
 A suspect’s awareness of all of the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege
Oregon v. Elstad
 A person can make an intelligent waiver of the Fifth Amendment privilege even after a Miranda defective confession has been obtained, and the police do have to provide an additional warning that the previous confession is inadmissible
Michigan v. Mosley
 The suspect’s right to cut-off questioning must be “scrupulously honored;” however, questioning can be resumed after the officers gave the suspect a reasonable “cooling off” period
Davis v. U.S
 Police questioning a suspect can continue the interrogation unless the suspect has made a clear and unambiguous invocation of the Miranda right to counsel; further, police are not obligated to clarify the suspect’s intent
Edwards v. Arizona
 A suspect cannot waive the right to counsel after he has invoked his right to have counsel present during custodial interrogation, unless he initiates the conversation
Oregon v. Bradshaw
 Two-step Analysis to suspect “initiated” communication:
(1) Defendant “initiates” further communication when he evinces a willingness and a desire for a generalized discussion about the investigation
Inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally “initiate” a conversation in the sense in which that word was used in Edwards
(2) Totality of the circumstances test of a knowing and voluntary waiver
Even if the suspect initiates communication, “where re-interrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation”
Arizona v. Roberson
 An invocation of the right to counsel under Edwards was not offense-specific, and prevents police-initiated interrogation on any crime
Sixth Amendment right is “offense-specific”; therefore police can initiate questioning on crimes other than the crime with which the defendant was charged
Invocation of the Miranda right to counsel protects against police-initiated interrogation with respect to any crime
Minnick v. Mississippi
 Police-initiated interrogation after an invocation of and consultation with counsel may occur only if counsel is actually present during the interrogation
Massiah v. U.S.
 The Sixth Amendment right to counsel is violated by the use in evidence of his own incriminating statements which government agents deliberately elicited from him after he had been indicted and in the absence of his retained counsel
Brewer v. Williams
 It is incumbent upon the State to prove “an intentional relinquishment or abandonment” for a waiver of the right to counsel. Must be more than receiving warnings and electing to speak
Fellers v. U.S.
The Sixth Amendment requires that the incriminating statements be “deliberately elicited”
U.S. v. Henry
 By intentionally creating a situation likely to induce the accused to make incriminating statements without assistance of counsel, the government violated the accused’s Sixth Amendment right to counsel.  Informant must be working for the government at the time the information was obtained – otherwise there is no state action implicated
Kuhlmann v. Wilson
 To prove a Sixth Amendment violation, a defendant must show that the police took some action, beyond mere listening, that was deliberately designed to elicit incriminating remarks
Maine v. Moulton
 Police may investigate crimes separate from the crimes charged and may use statements made by a suspect in a later trial for those crimes, but incriminating statements pertaining to pending charges are inadmissible at the trial of those charges, not withstanding the fact that the police were also investigating other crimes, if, in obtaining the evidence, the State violated the Sixth Amendment by knowingly circumventing the accused’s right to the assistance of counsel
Patterson v. Illinois
 The Miranda warnings are sufficient to adequately inform a suspect of their Sixth Amendment rights so that they can make a knowing and intelligent waiver
Michigan v. Jackson
 When an accused unequivocally invokes his Sixth Amendment right to counsel, the standards of Edwards govern the waiver of the Sixth Amendment rights
Texas v. Cobb
The Sixth Amendment right to counsel attaches only to charged offenses. Determined through the Blockburger Test (Double Jeopardy)
Whether each offense requires proof of fact which the other does not
U.S. v. Wade
Counsel’s presence is a requisite for post-indictment lineups
Gilbert v. California
failure to have counsel present will result in exclusion of the out-of-court identification
Kirby v. Illinois
 A person’s Sixth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him
U.S. v. Ash
 A defendant has no right to counsel at a photographic identification, whether conducted before or after indictment or formal charge
Stovall v. Denno
 A claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it
Neil v. Biggers
 Even if the confrontation procedure was suggestive, the identification can still be reliable if the witness had an independent source for the identification.  The defendant must prove both that the confrontation procedure was suggestive, and unnecessarily suggestive
Manson v. Brathwaite
 Factors for the admissibility of identification testimony:
(1) The opportunity to view the criminal at the time of the crime
(2) The witness’s degree of attention
(3) The accuracy of the witness’s prior description of the criminal
(4) The level of certainty demonstrated at the confrontation
(5) The time between the crime and the confrontation
•1, 2, and 4 are all self-reports and are highly susceptible to misassessments