Black Letter Outline on Basic Criminal Procedure,9780314158918

Black Letter Outline on Basic Criminal Procedure

by ; ;
Edition: 4th
ISBN13: 9780314158918
ISBN10: 031415891X
Format: Paperback
Pub. Date: 2005-02-28
Publisher(s): West Academic
List Price: $32.55

Buy New

Usually Ships in 5-7 Business Days
$31.00
Add to Cart

Rent Textbook

Select for Price
Add to Cart
There was a problem. Please try again later.

Used Textbook

We're Sorry
Sold Out

eTextbook

We're Sorry
Not Available

Buy from our Marketplace starting at $5.50

How Marketplace Works:

  • This item is offered by an independent seller and not shipped from our warehouse
  • Item details like edition and cover design may differ from our description; see seller's comments before ordering.
  • Sellers much confirm and ship within two business days; otherwise, the order will be cancelled and refunded.
  • Marketplace purchases cannot be returned to eCampus.com. Contact the seller directly for inquiries; if no response within two days, contact customer service.
  • Additional shipping costs apply to Marketplace purchases. Review shipping costs at checkout.

Summary

This Black Letter presents the basic principles of criminal procedure. Provides extensive discussion on the Fourth Amendment, exclusionary rules, and significant cases such as Miranda and their effect on constitutional interpretation. Addresses exceptions to the general Fourth Amendment requirements of probable cause and warrant, eavesdropping, and the use of secret agents. Also examines remedies for Fourth Amendment violations, privilege against self-incrimination, self-incrimination and confessions, constitutional limits on identification evidence, and the right to counsel.

Table of Contents

Capsule Summary 1(70)
Perspective 71(10)
Introductory Concepts: Determining the Effect of a Supreme Court Decision on Criminal Procedure
81(12)
Application of Bill of Rights Protections to the States---Incorporation
83(5)
Bill of Rights and Fourteenth Amendment
83(1)
Scope of Protection
83(1)
Incorporating the Bill of Rights
83(1)
Analysis Employed
83(1)
Fundamental Rights Approach
84(1)
Criticism of Case-By-Case Approach
84(1)
Total Incorporation Approach
84(1)
Criticism of Total Incorporation Approach
85(1)
Effect of Total Incorporation View
85(1)
The Selective Incorporation Approach
85(1)
Generalized Approach
85(1)
Criticism of Selective Incorporation
85(1)
Selective Incorporation Predominates
86(1)
Rights Not Selectively Incorporated
87(1)
Advantages and Disadvantages of Equal Application on Federal and State Level
87(1)
Efficiency
87(1)
Possible Erosion of Federal Protections
87(1)
Non-Constitutional Protections
88(1)
Supervisory Power
88(1)
Limitations
88(1)
State Court Activism: Providing Greater Rights to Criminal Defendants by Relying on the State Constitution
88(5)
Greater Protection Under State Law
89(1)
No Federal Question
89(1)
Two-Step Process
89(1)
Different Language
89(1)
Independent Policy Determination
89(1)
Limitations on Activism
90(1)
Amendments to State Constitutions
90(1)
Plain Statement Rule
90(1)
Decision on Both Federal and State Grounds
90(1)
Remand to State Court
91(2)
The Fourth Amendment
93(78)
Introduction
95(6)
Basics of the Fourth Amendment
95(1)
Does Not Apply to Private Activity
95(1)
Government Can Use the Fruits of a Private Search
95(1)
Not Acting in an Official Capacity
95(1)
Private Actors as Government Agents
96(1)
Applies to All Government Agents, Not Just Police Officers
96(1)
Protects ``The People''
97(1)
Protects Innocent and Guilty Alike
97(1)
Does Not Protect Aliens When the Search Is Conducted Abroad
97(1)
Dissent
97(1)
Open Question: Does the Fourth Amendment Apply To Searches Conducted of Illegal Aliens and Their Property In the United States?
98(1)
Protects ``Persons, Houses, Papers and Effects''
98(1)
Two Clauses
98(1)
Which Clause Predominates?
98(1)
Historical Basis
98(1)
Predominance of the Warrant Clause
99(1)
Rationale
99(1)
Common Law Approach
99(1)
The Theory of the Warrant Clause
100(1)
Prior Record of Probable Cause
100(1)
Limitation on the Scope of a Search
100(1)
Sign of Authority
100(1)
The Rise of the Reasonableness Clause
101(1)
Threshold Requirements for Fourth Amendment Protections; ``Search'' and ``Seizure''
101(26)
The Katz Test
102(1)
Government Contentions In Katz
102(1)
Court's Response In Katz
102(1)
Modern Definition of ``Search'' and ``Seizure''
102(1)
Concurring Opinion of Justice Harlan
103(1)
Interests Protected by the Fourth Amendment After Katz
103(1)
The Fourth Amendment Protects ``Legitimate'' Interests
103(1)
If it Is Legitimate, What Is There to Hide?
103(1)
Physical Disruption and Inconvenience
104(1)
Interest in Secrecy
104(1)
Possessory Interests
104(1)
Different Intrusions
104(1)
Application of the Katz Principle: Manifestation of a Subjective Interest in Privacy
105(1)
Strict Application
105(1)
Abandonment
105(1)
Sufficient Manifestation Found Under Some Circumstances
106(1)
Application of the Katz Principle: Legitimacy of the Expectation of Privacy, Access by Members of the Public
106(1)
Bank Records
106(1)
Telephone Pen Registers
106(1)
Recordkeeping by Third Party Not Required
107(1)
Dissents in Smith and Miller
107(1)
Response
107(1)
Trash
107(1)
Lack of Choice Irrelevant
108(1)
Efforts at Concealment
108(1)
Dissent
108(1)
Limitations on Greenwood
109(1)
Homeless Persons
109(1)
Aerial Surveillance
109(1)
Rationale
110(1)
Dissent
110(1)
Low-Flying Helicopters
110(1)
Legally Permissible Access
110(1)
Actual Access
110(1)
Burden of Proof
111(1)
Implications From Riley
111(1)
Limitations on Public Access Theory
111(1)
Hotel Room Searches
111(1)
Distinction from Smith and Miller
112(1)
Must Have a Current Right to Reside in the Room
112(1)
Bags in Public Transit
113(1)
Application of Katz: Investigation Which Can Only Uncover Illegal Activity Is Not a Search
113(1)
Dog Sniffs
113(1)
Implications From Place
113(1)
Seizure of Luggage in Order to Conduct the Canine Sniff Triggers Fourth Amendment Protections
114(1)
Positive Result Does Not Allow Opening the Luggage
114(1)
Dog Sniffs of People
115(1)
Dog Sniffs of Rooms and Residences
115(1)
Chemical Tests
115(1)
Not All Chemical Tests Are Free From Fourth Amendment Scrutiny
116(1)
Seizure to Do the Test
116(1)
Application of Katz: Re--Opening of Packages by Government Officials
116(1)
Rationale
116(1)
Re-Opening After Private Search
116(1)
Dissent
117(1)
Later Activity Can Be a Search to the Extent That it Exceeds the Scope of the Original Legal Search
117(1)
Controlled Delivery
117(1)
Lapse in ``Control''
118(1)
Dissent
118(1)
Application of Katz: Sensory Enhancement Devices
118(1)
Beepers
118(1)
Sale of Merchandise Containing a Beeper
119(1)
Entering a Private Area to Install a Beeper
119(1)
Obtaining Private Information Through Use of a Beeper
119(1)
Flashlights
120(1)
Binoculars
120(1)
Microphones
120(1)
High-Tech Cameras
120(1)
Limitations on Dow
121(1)
Thermal Imaging Devices
121(1)
Application of Katz: Prisoners and Jail Cells
122(1)
Rationale
122(1)
Dissent
122(1)
Searches of Persons
122(1)
Application of Katz: Open Fields
123(1)
Rationale
123(1)
No Case-By-Case Approach
123(1)
Dissent
124(1)
Curtilage Remains Protected
124(1)
Porches, Decks, etc. as Curtilage
125(1)
Aerial Surveillance
125(1)
Industrial Property
125(1)
Other Property
126(1)
Application of Katz: Public School Students
126(1)
Search Is Reasonable
126(1)
Application of Katz: Government Employees
126(1)
Search Is Reasonable
127(1)
The Probable Cause Requirement
127(21)
Standard of Proof Required for Probable Cause to Exist
127(1)
No Requirement of Certainty
127(1)
Plausible, Innocent Explanations Are Not Dispositive
128(1)
Officers Are Allowed to Make Reasonable Mistakes
128(1)
Totality of Circumstances
129(1)
Deference to Police Officer's Expertise
129(1)
Collective Knowledge
130(1)
Generally Required for All Searches and Seizures
130(1)
Exceptions
130(1)
Seizures of Persons or Things Which Constitute a Limited Intrusion
130(1)
Limited Searches to Protect the Officer From Harm
131(1)
Search or Seizure Conducted for Special Needs Beyond Criminal Law Enforcement
131(1)
All Searches for Criminal Law Enforcement Purposes Require Probable Cause
131(1)
Application of the Probable Cause Standard to Questions of Identity
131(1)
Particularized Information Required
132(1)
Statistics
132(1)
Ownership and Control
132(1)
Fitting a Description
132(1)
Prior Criminal Record
133(1)
Application of Probable Cause Standard to Equivocal Conduct
133(1)
Innocent Explanations for Equivocal Activity
133(1)
First Amendment Considerations
134(1)
Probable Cause as Applied to Location
135(1)
Staleness
135(1)
One of Several Locations
136(1)
The Use of Hearsay in the Probable Cause Determination
136(1)
Former Two--Pronged Test for Evaluating Hearsay
137(1)
First Prong: Reliable Informant
137(1)
Police Officers
137(1)
Citizen--Informants
137(1)
Informants With Track Records
137(1)
Declarations Against Interest
138(1)
Anonymous Informants
138(1)
Second Prong: Personal Knowledge
138(1)
Direct Statement of Personal Knowledge
138(1)
Self--Verifying Detail
138(1)
Independent Prongs
139(1)
Corroboration
139(1)
Rejection of the Two-Pronged Test and Adoption of the Totality of Circumstances Approach
140(1)
Facts of Gates
140(1)
Lower Court Analysis
140(1)
Analysis in Gates
141(1)
Dissent in Gates
141(1)
Impact of Gates
141(1)
No Change in Many Cases
142(1)
A Tip Which Fails Both Prongs Cannot Itself Constitute Probable Cause
142(1)
Strong Showing on One Prong Can Make up for a Weak Showing on the Other
143(1)
The Expanded Role of Corroboration
144(1)
Corroboration of Innocent Activity
145(1)
Strict Scrutiny of the Magistrate's Determination Is No Longer Permitted
146(1)
Deferential Review In Warrantless Search Cases
146(1)
Gates Rejected by a Number of State Courts
146(1)
Disclosure of Informant's Identity
146(1)
Disclosure Is Not Generally Required
147(1)
Where Officer's Testimony Is Not Credible
147(1)
In Camera Proceedings
147(1)
Police Misrepresentation of Facts Constituting Probable Cause
147(1)
Franks Hearing
147(1)
No Relief for Negligent Misstatements
148(1)
Remaining Information May Still Constitute Probable Cause
148(1)
Obtaining a Valid Search Warrant
148(11)
Neutral and Detached Magistrate
148(1)
Cannot Be a Law Enforcement Official
148(1)
Conducting the Search Destroys Neutrality
149(1)
Contingent Fee Destroys Neutrality
149(1)
``Rubber Stamp''
149(1)
Need Not Be Lawyers
149(1)
Federal Courts
149(1)
Must Be Competent to Determine Probable Cause
150(1)
Magistrate Decisions
150(1)
Probable Cause Based Only on Facts Presented to the Magistrate
150(1)
Affidavits
150(1)
Telephone Warrants
150(1)
Warrant Is Obtained ex parte
151(1)
Particular Description of Place to Be Searched
151(1)
Rationale
151(1)
Reasonable Particularity
151(1)
Applicability to More Than One Location
151(1)
Problems of Execution
152(1)
Incorrect Address
153(1)
Technical Accuracy Not Required
153(1)
Particular Description of Things to Be Seized
154(1)
Reasonable Particularity
154(1)
Documents
155(1)
Document Searches Will Usually Be Extensive
155(1)
Pervasive Criminal Activity
156(1)
Catch-All Clauses in the Warrant
156(1)
Catch-Alls Must Be Qualified by Preceding Descriptions
156(1)
Qualification by Reference to a General Crime Is Insufficient
156(1)
Must Be Qualified by Previously Described Property
157(1)
Severability
157(1)
Warrant Can Authorize the Seizure of ``Mere Evidence''
158(1)
Issuing Warrants Against Non-Suspects
158(1)
No Special First Amendment Protection
158(1)
Statutory Protections for the Media
159(1)
Execution of Search Warrants
159(12)
Time of Execution
159(1)
New Information
159(1)
Anticipatory Search Warrants
160(1)
Execution in the Nighttime
160(1)
Constitutional Concerns
160(1)
Execution in the Absence of the Occupant
161(1)
Covert and Surreptitious Entries
161(1)
Notice Requirement
161(1)
Rationale
162(1)
Constitutional Basis
162(1)
Manner of Entry
162(1)
Open Doors
162(1)
Entry by Ruse
163(1)
Compliance With the Notice Requirement
163(1)
Response by Occupants
163(1)
Emergency Exception
163(1)
Destruction of Property
164(1)
Forcible Entry After Knocking and Announcing
164(1)
Use of Extraordinary Force
165(1)
Scope and Intensity of the Search
165(1)
Search of the ``Premises'' Described in the Warrant
165(1)
Vehicles Within Curtilage of Described Premises
166(1)
Scope of Search Inside the Premises
166(1)
Personal Effects in Described Premises
166(1)
Search of Person Described in Warrant
166(1)
Search of Person Includes Things Carried by the Person
167(1)
Search of Person Not Described in Warrant
167(1)
Detention of Individuals While the Premises Is Searched
167(1)
Arrival While Search Is Conducted
167(1)
Intensity of Search
168(1)
Length of Search and Damage to Premises
168(1)
The Presence of Private Citizens
168(1)
Assistance by Occupant
168(1)
Assistance of Private Individuals
169(1)
Media Ride Alongs
169(1)
Flagrant Disregard of Warrant Limitations
170(1)
Exceptions to the General Fourth Amendment Requirements of Probable Cause and a Warrant
171(174)
Introduction
174(1)
Presumptively Unreasonable
174(1)
Different Requirements for Each Exception
174(1)
The Plain View Doctrine
174(6)
Seizure Without a Warrant
174(1)
Justification
175(1)
Limitations on the Plain View Doctrine
175(1)
Officer Must Be Within the Scope of Lawful Activity
175(1)
Plain View Doctrine Allows Warrantless Seizures, Not Warrantless Searches
175(1)
Exception for Containers Which ``Bespeak'' Their Contents
176(1)
Probable Cause Required for a Plain View Seizure
176(1)
Nexus to Criminal Activity
176(1)
Probable Cause Must Be Immediately Apparent, Without the Necessity of a Further Search
177(1)
Arizona v. Hicks
177(1)
Ruling in Hicks
177(1)
Immediately Apparent
178(1)
No Requirement That the Plain View Discovery Be Inadvertent
178(1)
Facts of Horton
178(1)
Rationale of Horton
178(1)
Plain Touch
179(1)
Rationale
179(1)
Touch Cannot Be Beyond the Scope of Legal Activity
179(1)
Warrantless Arrests
180(6)
No Warrant Required for a Public Arrest
180(1)
What Is at Stake
180(1)
Rationale of Watson
180(1)
Post-Arrest Determination of Probable Cause
180(1)
Much Like a Pre-Arrest Warrant Procedure
180(1)
Prompt Hearing Is Required
181(1)
Arrests for Minor Offenses
181(1)
Warrant Required for an In-Home Arrest
181(1)
Distinguished From Watson
181(1)
Payton Violation Constitutes Illegal Search, Not an Illegal Arrest
182(1)
When Is an Arrest Made in the ``Home?''
182(1)
Doorway Arrests
182(1)
Common Hallways
183(1)
Homeless Persons
183(1)
Hotels and Motels
183(1)
Houseboats, Mobile Homes, etc.
184(1)
Arrest in the Course of Executing a Search Warrant
184(1)
Search Warrant Is Required for an Arrest in the Home of a Third Party
184(1)
Arrest Warrant Not Sufficient if the Suspect Is Temporarily In the Home of Another
184(1)
Rationale of Steagald
184(1)
Distinction From Payton
185(1)
Is the Suspect Living at or Visiting the Premises?
185(1)
Who Has Standing to Object to the Lack of a Search Warrant?
185(1)
Anomaly
186(1)
Can a Visitor Object to the Lack of an Arrest Warrant When Arrested in a Third Party's Home?
186(1)
Exigent Circumstances
186(13)
Introduction
186(1)
Rationale
186(1)
Types of Risks Which Excuse the Warrant
187(1)
Hot Pursuit
187(1)
Suspect Must Be Aware of Pursuit
187(1)
Risk to Public or Police Safety
188(1)
Government Must Show an Imminent Risk to Public or Police Safety
188(1)
Fire Scenes
189(1)
Destruction or Loss of Evidence
189(1)
Factors Relevant to Whether an Imminent Risk of Destruction of Evidence Exists
190(1)
Narcotics Cases
191(1)
Need Not Be In the Process of Destruction
191(1)
Not an Automatic Rule
192(1)
Murder Scene Searches
192(1)
Minor Crimes
192(1)
No Misdemeanor/Felony Distinction
193(1)
Impermissible Creation of Exigent Circumstances
193(1)
No Impermissible Creation of Exigency Where Officers Act Lawfully
193(1)
Initial Search or Seizure Must Itself Be Illegal for ``Impermissible Creation'' Doctrine to Be Applicable
194(1)
Another View---Impermissible Creation Is Found When the Officer's Sole Intent Is to Create Exigent Circumstances
194(1)
Intent--Based Test
195(1)
Supreme Court's Emphasis on Objectivity
195(1)
Prior Opportunity to Obtain a Warrant
195(1)
Probable Cause and Opportunity to Obtain a Warrant Must Be Clear
195(1)
Litigation Anomaly
196(1)
Telephone Warrants
197(1)
Telephone Warrants Can Be Time--Consuming
197(1)
Securing Premises While Waiting for the Warrant
197(1)
Illinois v. McArthur
198(1)
The Court's Rationale
198(1)
Stop and Frisk
199(52)
Terry and the Court's Reliance on the Reasonableness Clause of the Fourth Amendment
199(1)
Stop and Frisk Permissible if Reasonable Suspicion Exists
199(1)
Inapplicability of the Warrant Clause
199(1)
Importance of Reasonableness Clause Analysis
200(1)
Application of Reasonableness Balancing to Stop and Frisk
200(1)
Application of Reasonable Suspicion Standard to the Facts of Terry
201(1)
Reasonableness Balancing Not Limited to Stop and Frisk
201(1)
Three Categories of Police--Citizen Contacts
201(1)
Arrest and Incident Search
201(1)
Stop and Frisk
201(1)
Encounter
202(1)
Standard of Proof Must Accord With the Intrusion
202(1)
What Is a ``Stop''?--The Line Between Stop and Encounter
202(1)
The Mendenhall Reasonable Person Test
203(1)
Does a Reasonable Person Ever Feel Free to Leave From an Officer's Presence?
203(1)
Active Coercion Prohibited
203(1)
Factors Considered Under the Mendenhall Test
203(3)
Two Modifications to the Mendenhall ``Free to Leave'' Test
206(1)
Bostick: Not Free to Leave Because of the Suspect's Own Circumstances
206(1)
Literal Application Rejected
206(1)
Freedom to Terminate the Encounter
206(1)
No Per Se Rule Requiring that Passengers be Warned
207(1)
Hodari: If Coercive Tactics Are Non-Physical, It Is Not a Stop Until the Suspect Submits
207(1)
Two Types of Seizures
207(1)
Physical Touching Is a Seizure
208(1)
Non-physical Show of Authority Is Not a Stop Until the Suspect Submits
208(1)
Application to the Facts of Hodari
208(1)
Officer Is Not Required to Use an Encounter as a ``Less Intrusive Alternative''
208(1)
What Is Reasonable Suspicion?
209(1)
Nature of the Analysis Is Similar
209(1)
Difference In Quantity and Quality of Proof
210(1)
Quantum of Suspicion Required for Reasonable Suspicion
210(1)
Questions of Identity of a Perpetrator
211(1)
``Stop and Identify'' Statutes
211(1)
General Description Can Support a Stop
211(1)
Descriptions Can Be Incorrect in Certain Particulars
212(1)
Changed Circumstances May Be Taken into Account
212(1)
Size of the Area Is Relevant
213(1)
Number of People in the Area Is Relevant
213(1)
Suspicious Activity of a Person Fitting a General Description
213(1)
Suspect ``Fails'' the Encounter
214(1)
Prior Record of Criminal Activity
214(1)
At Some Point, the Totality of Factors Remains Too General to Support a Stop
214(1)
Suspicious Conduct
215(1)
Case-by-Case Approach; Relevant Factors
216(1)
Sokolow Approach Affirmed
217(1)
Patterns of Activity
217(1)
Demonstrated Unfamiliarity
218(1)
Time of Day
218(1)
Location of Activity; High Crime Area
219(1)
Known Criminal Record
219(1)
Evasion in a High Crime Area
220(1)
Dissent in Wardlow
220(1)
Some Reactions Are Not Evasive
220(1)
Failing an Encounter
221(1)
Non-cooperation During an Encounter
221(1)
Non-cooperation Distinguished From Evasion
221(1)
Nervousness During an Encounter
222(1)
Example of Case in Which Reasonable Suspicion Was Found
222(1)
Example of Case in Which Reasonable Suspicion Was Not Found
223(1)
Use of Profiles
224(1)
Match With Profile Is Not Dispositive
224(1)
Officers' Use of Profile Does Not Render the Stop Illegal
225(1)
Relevance of Suspect's Race
225(1)
Racial Incongruity
225(1)
Racial Profiling
226(1)
Officers Can Rely on Collective Knowledge
227(1)
Limitation
227(1)
Use of Informants
227(1)
Facts of White
228(1)
Analysis in White
228(1)
Application of the More Permissive Standards to the Facts of White
228(1)
Corroboration Not as Substantial
229(1)
Corroboration Sufficient to Support a Stop
229(1)
Dissent in White
230(1)
Reasonably Correct Prediction of Future Activity Is Strong Corroboration
230(1)
Reliability of a Tip Is Irrelevant if Police Investigation Uncovers Sufficient Facts
230(1)
No ``Firearm Exception''
231(1)
The Right to Frisk Incident to a Stop
231(1)
Frisk Is Not a Search for Evidence
232(1)
Plain View
232(1)
Exception for Probationer's Residence---Terry Applied Outside the Stop and Frisk Context
232(1)
Inception of a Frisk; Reasonable Suspicion of Bodily Harm
233(1)
Automatic, Immediate Right to Frisk a Person Suspected of Violent Crime
233(1)
Drug Distribution
234(1)
Non-violent Crimes
234(1)
Self--Protective Frisk of Those Not Suspected of a Crime
235(1)
Automatic Companion Rule
236(1)
Ordering a Person Out of a Car for Self--Protection
236(1)
Bright-Line Rule
236(1)
Passengers
237(1)
Limitations on the Scope of a Frisk
237(1)
Feeling an Object During a Pat--Down
237(1)
Probable Cause
237(1)
Containers on the Suspect's Person
238(1)
Right to Protective Search Beyond the Suspect's Person
238(1)
Protective Search of Automobiles
239(1)
Protective Sweep
239(1)
Facts of Buie
239(1)
Analysis in Buie
240(1)
Protective Sweep Not Permitted to Protect Against Destruction of Evidence
240(1)
Arrests Outside the Home
240(1)
Articulable Facts Must Indicate a Risk of Harm
240(1)
Brief and Limited Detentions: The Line Between Stop and Arrest
241(1)
Forced Movement of the Suspect to a Custodial Area
241(1)
Police Cars
241(1)
Transporting the Suspect to the Station for Interrogation or Fingerprinting
241(1)
Forced Movement in Order to Obtain an Immediate Identification
242(1)
Forced Movement for Purposes of Safety or Security
242(1)
Investigative Techniques
243(1)
Overly Intrusive Investigation Techniques
243(1)
Time Limits on Terry Stops
244(1)
Reasonable Diligence Test
244(1)
Suspect's Actions May Justify a Lengthier Detention
245(1)
Suspect's Refusal to Consent to a Search
245(1)
Detention of Household Occupants During Execution of a Search Warrant
245(1)
Show of Force or Use of Restraint
246(1)
Relevant Factors
246(1)
Detentions of Property Under Terry
247(1)
Personal Interests at Stake
247(1)
No Suspicion Required if There Is No Material Interference With Property
248(1)
Reasonable Suspicion Is Sufficient for Certain Temporary Detentions of Property
249(1)
Justification for Lengthy Detention of Property
249(1)
Detentions of Property That Require Probable Cause
249(1)
Holding in Place
250(1)
Relevance of Notice
250(1)
Diligence of the Investigation
250(1)
Relevant Factors Determining Whether a Seizure of Property Requires Probable Cause
250(1)
Reasonable Diligence Required
250(1)
Relevance of Notice to the Property Owner
251(1)
Administrative and Regulatory Searches and Seizures
251(44)
Safety Inspections of Homes
252(1)
Probable Cause Not Required
252(1)
Rationale
252(1)
Search Warrant Required
253(1)
Role of the Judicial Officer
253(1)
Benefit of the Warrant Requirement
254(1)
Post--Camara Limitation on the Use of Warrants Without Probable Cause
254(1)
Administrative Inspections of Businesses
254(1)
Same Basic Analysis
255(1)
More Searches May Be Permitted
255(1)
May Not Be a Search at All
255(1)
Balance of Interests at Stake
255(1)
Heavily Regulated Businesses
256(1)
Examples of Heavily Regulated Businesses
256(1)
OSHA Searches
257(1)
Expansion of Heavily Regulated Industries Exception
257(1)
Dissent
258(1)
Relevance of Historical Regulation
258(1)
Regulatory Statute Must Be an Adequate Substitute for a Warrant
258(1)
Limitations on Frequency of Inspection
259(1)
Enforcing the Criminal Law
259(1)
Argument in Burger
260(1)
Analysis in Burger
260(1)
Application of Analysis in Burger
260(1)
Administrative Search Can Lead to Evidence of a Criminal Violation
261(1)
Use of Police Officers to Conduct an Administrative Search
261(1)
Civil--Based Searches of Individuals Pursuant to ``Special Needs''
261(1)
Searches Directed at Students
261(1)
Balance of Interests Does Not Justify a Warrant Requirement
262(1)
Balance of Interests Allows a Search on the Basis of Reasonable Suspicion
262(1)
Distinction From Terry
262(1)
More Intrusive Searches
263(1)
Suspicionless Searches
263(1)
Searches by Law Enforcement Officials
263(1)
Use of Evidence Obtained
264(1)
Searches of Students in Private Schools
264(1)
Employer Inspections of Government Offices
265(1)
Balance of Interests Does Not Justify a Warrant Requirement
265(1)
Balance of Interests Allows a Search on the Basis of Reasonable Suspicion
265(1)
Non-Investigative Work-Related Searches
265(1)
Searches to Investigate Suspicion of Work-Related Misconduct
266(1)
Search for Evidence of Criminal Activity Which Is Not Work--Related
266(1)
Searches Directed at Parolees and Probationers
266(1)
Balance of Interests Does Not Justify a Warrant Requirement
267(1)
Balance of Interests Allows Search Upon Reasonable Suspicion
267(1)
Search by Police Officers
268(1)
Participation by Police Officers
268(1)
Application to Parolees
269(1)
Security Searches at Airports, Courthouses, Military Installations, Prisons, etc.
269(1)
No Requirement of Particularized Suspicion
269(2)
Distortion by Law Enforcement Objectives
271(1)
Drug-Testing of Government Employees and Officials
272(1)
Drug-Testing Is a Search
272(1)
Special Needs Analysis Applies
272(1)
Dissent
273(1)
Balance of Interests Does Not Justify a Warrant Requirement
273(1)
Balance of Interests May Allow Suspicionless Drug--Testing In Some Cases
274(1)
Diminished Expectation of Privacy
274(1)
Government Interest Placed in Jeopardy by Requirement of Individualized Suspicion
275(1)
Deterrence Factor Is Relevant
276(1)
Documented Problem of Drug Abuse Not Absolutely Required for Suspicionless Testing
276(1)
Dissent
277(1)
Not All Suspicionless Drug-Testing Is Reasonable
277(1)
Suspicionless Drug--Testing Plan Must Be Neutral to Be Reasonable
278(1)
Drug-testing of Students
279(1)
Rationale
279(1)
Preference for Suspicionless Searches?
279(1)
Acton Extended to Participants in All Extracurricular Activities
279(1)
Drug Testing of Pregnant Mothers
280(1)
Rationale
280(1)
Distinguishing Previous Drug--Testing Cases
281(1)
Dissent
281(1)
Border Searches and Seizures
281(1)
Routine Border Searches
282(1)
Minimally Intrusive
282(1)
Searches Beyond the Routine
282(1)
Definition of ``Routine''
283(1)
Dismantling Property
283(1)
Strip Searches
283(1)
Drilling or Dismantling
284(1)
Extended Detentions
284(1)
Search or Seizure Beyond the Routine Requires Reasonable Suspicion; Sliding--Scale Approach Rejected
285(1)
Reasonable Suspicion Sufficient
285(1)
Distinction From Terry
285(1)
No Warrant Requirement
286(1)
Two Types of Intrusions
286(1)
Probable Cause Not Required
286(1)
Some Standard Less Than Reasonable Suspicion Is Not Appropriate
287(1)
Functional Equivalent of the Border
287(1)
Recent Border Crossings; Extended Border Search
287(1)
Suspicion Not Required for Routine Extended Border Search or Seizure
288(1)
Change of Conditions
288(1)
Roving Patrols in the Interior
288(1)
Reasonable Suspicion
289(1)
``Reverse'' Border Searches and Seizures
290(1)
Roadblocks
290(1)
Permanent Fixed Checkpoints
290(1)
Balance of Interests
291(1)
Location of a Permanent Fixed Checkpoint
291(1)
Temporary Fixed Checkpoints
291(1)
Analysis in Sitz
291(1)
Controls on Locating a Temporary, Fixed Checkpoint
292(1)
Roadblocks for Drug Detection Invalidated
293(1)
Rationale
293(1)
Dissent
294(1)
Information-Seeking Checkpoints Upheld
294(1)
Suspicionless Seizures, Not Searches, Are Authorized
295(1)
Longer Detentions and Interrogations Not Permitted Without Suspicion
295(1)
The Arrest Power Rule
295(14)
Spatial Limitations
295(1)
Arrest Power Rule Is Automatic
296(1)
Determining the Grab Area
296(1)
Determination of Grab Area at Time of Arrest
296(1)
Determination of Grab Area at Time of Search
296(1)
Factors Helpful in Defining the Area Within the Immediate Control of the Arrestee
296(1)
Movable Grab Area: No Risk of Danger Needed to Trigger the Arrest Power
297(1)
Application of Chrisman in the Lower Courts
297(1)
Other Exceptions That Justify Searches Beyond the Grab Area
298(1)
Exigent Circumstances
298(1)
Protective Sweeps
298(1)
Seizing the Premises
299(1)
Temporal Limitations
299(1)
When Is the Search Too Late or Too Far Removed to Be ``Incident to'' an Arrest?
300(1)
Searches the Day After an Arrest May Be Upheld Where Arrest Processes Are Not Yet Complete
300(1)
Distinction Between Edwards and Chambers
300(1)
Searches of the Person Incident to Arrest
301(1)
United States v. Robinson
301(1)
Distinguishing a Search of a Person Incident to Arrest From a Terry Frisk
301(1)
Arrests for Traffic Violations: Police Discretion
302(1)
Custodial Arrests for Minor Traffic Offenses Held Constitutional
302(1)
Dissent in Atwater
303(1)
Search of Objects in the Grab Area
304(1)
Effect of Chadwick
304(1)
Searches of Objects ``Immediately Associated'' With the Arrestee
304(1)
Searches of Objects Not ``Immediately Associated'' With the Person of the Arrestee
305(1)
The Arrest Power Rule Applied to Automobiles
305(1)
New York v. Belton
306(1)
Passenger Compartments of Cars Are Always in the Grab Area
306(1)
Does Not Apply to the Trunk
306(1)
The Police May Search All Containers Found in the Passenger Compartment
306(1)
Aftermath of Belton
307(1)
Temporal Limitations
307(1)
What Is the ``Passenger Compartment''?
307(1)
Containers in the Passenger Compartment
308(1)
``Recent Occupants'' of a Vehicle
308(1)
Are the Belton Bright-Line Rules Applicable Outside of the Automobile Context?
308(1)
No Arrest, No Search
309(1)
Pretextual Searches and Seizures
309(3)
The Pretext Problem
310(1)
Supreme Court View
310(1)
Rationale
310(1)
Whren Reaffirmed
311(1)
The Selectivity Problem
311(1)
Stop or Arrest for Minor Offense Must Itself Be Legal
311(1)
Search Must Be Within Confines of Minor Offense
312(1)
Searches and Seizures of Automobiles and Other Movable Property
312(14)
The Automobile Exception to the Warrant Requirement
312(1)
The Carroll Doctrine
313(1)
Distinguishing Carroll From Search Incident to Arrest
313(1)
When the Automobile Exception Is Used
313(1)
Warrantless Searches and Seizures of Automobiles
313(1)
Chambers v. Maroney
314(1)
Justification for the Automobile Exception
314(1)
Dissent
314(1)
Difference Between Searches and Seizures
315(1)
Reasons for Diminished Expectation of Privacy In Cars
315(1)
Dual Justification for the Automobile Exception
315(1)
Exigency Not a Requirement
316(1)
Application of the Automobile Exception to Mobile Homes
316(1)
The Automobile Exception as Applied to Airplanes
316(1)
Movable Property---In and Out of Cars
317(1)
Chadwick
317(1)
Containers in Cars
318(1)
Clash Between Container Rule and Car Rule in Sanders and Ross
318(1)
The Ross Rule
318(1)
The Ross Anomaly
318(1)
California v. Acevedo: Resolving the Anomalies
319(1)
Critique of Acevedo Rule
319(1)
Search of a Passenger's Property
319(1)
Dissent in Houghton
320(1)
Searches and Seizures of Automobiles Pursuant to the Community Caretaking Function
321(1)
Justifying Searches
321(1)
Must Be a Public Safety Interest
321(1)
Justifying Seizures of Vehicles
321(1)
Impoundment of Vehicles and the Inventory Exception to the Warrant Requirement
322(1)
When Impoundment Is Justified
322(1)
Requirements for Inventory Searches
322(1)
Special Needs Beyond Law Enforcement That Are Effectuated by Inventory Searches
323(1)
Warrant Not Required
323(1)
Must Conduct Inventory Search Pursuant to Standardized Regulations
323(1)
Regulations Concerning Treatment of Containers Found in Cars During the Course of an Inventory Search
324(1)
Some Discretion Permitted
324(1)
Police Must Follow Regulations
324(1)
Alternative ``Less Intrusive'' Means
325(1)
Inventory Searches of Other Property
326(1)
Immediately Bailable Offenses
326(1)
Seizure and Inventory Under Forfeiture Laws
326(1)
Consent Searches
326(19)
Consent Must Be Voluntary
327(1)
Schneckloth v. Bustamonte
327(1)
Test for Voluntariness of Consent
327(1)
Burden of Proof
327(1)
Factors Relevant to Voluntariness
328(1)
The Right to Refuse Consent
328(1)
Consent After Completion of a Stop
328(1)
Threat of a Warrant
329(1)
False Statement Concerning the Possession of a Warrant Renders the Consent Involuntary
329(1)
Genuine Expressions of Intent to Obtain a Warrant Do Not Render Consent Involuntary
329(1)
Use of Force
330(1)
When the Suspect Is in Custody
330(1)
Requests for Consent
330(1)
The Character and Emotional State of the Suspect
331(1)
Suspect's Lack of Education Relevant to Involuntariness
331(1)
Suspect's Impaired Mental or Emotional Condition Does Not Necessarily Render Consent Involuntary
331(1)
The Suspect's Belief That Evidence Would Be Found
332(1)
When Evidence Is Well--Hidden
332(1)
Third Party Consent
332(1)
Rationales for Allowing Third Party Consent
333(1)
Limited Access May Restrict Authority to Consent to a Search
333(1)
Areas of Access
333(1)
Marital Relationships
334(1)
Consent by Parents and Children
334(1)
Retention of Ownership Interest
335(1)
Presence of Defendant and Defendant's Refusal to Consent
335(1)
The Third Party Must Possess Actual or Apparent Authority
336(1)
Actual Authority: United States v. Matlock
336(1)
Apparent Authority: Illinois v. Rodriguez
336(1)
Distinguishing Between Consent Searches and Waivers of Fourth Amendment Rights
337(1)
Question of Authority Is Governed by the Standard of Reasonableness
337(1)
Police Officers Must Make Reasonable Inquiries to Determine Whether Third Party Possesses Apparent Authority
337(2)
Third Party Consent May Be Based on Actual But Not Apparent Authority
339(1)
Difference Between Mistakes of Fact and Mistakes of Law
339(1)
Scope of Consent
339(1)
Officer Must Reasonably Believe That the Defendant Consented to the Area Searched
340(1)
Florida v. Jimeno
340(1)
Distinguishing Between the Bag Found in the Car and a Locked Briefcase
340(1)
Ambiguity Regarding the Scope of the Consent Is Construed Against the Citizen
340(1)
Consent to Search Does Not Permit the Destruction Or Mutilation of the Area Searched
341(1)
Removing Car Door Panels May Be Within the Scope of Consent
341(1)
Construing the Scope of Consent for Body Searches After Jimeno
341(1)
Revoking Consent
342(1)
Withdrawal or Limitation of Consent
342(1)
Refusal to Give Written Consent Does Not Revoke an Oral Consent
342(3)
Eavesdropping and the Use of Secret Agents
345(6)
The Law on Electronic Surveillance Prior to Katz
346(1)
Olmstead
346(1)
Dissent in Olmstead
346(1)
Development of Trespass Doctrine
346(1)
Katz ``Reasonable Expectation of Privacy'' Doctrine
347(1)
Reasoning in Katz
347(1)
Electronic Surveillance After Katz
347(1)
Publishing Illegal Communications
347(1)
The Usa Patriot Act
348(1)
Use of Secret Agents
348(3)
Assumption of Risk
348(1)
Limitation on Assumption of Risk
349(2)
Remedies for Fourth Amendment Violations
351(74)
Introduction
353(10)
Historical Development
353(1)
The Weeks Rule
353(1)
Rationale
353(1)
Fruits
354(1)
Wolf v. Colorado
354(1)
Dissent In Wolf
355(1)
Due Process Violations
355(1)
Mapp v. Ohio
355(1)
Dissent in Mapp
355(1)
The Exclusionary Rule Is Not Required by the Fourth Amendment
356(1)
Rationale
356(1)
Response
357(1)
Applicability to the States
357(1)
Possibility of Congressional Action
358(1)
The Cost-Benefit Analysis of the Exclusionary Rule
358(1)
Arguments Against the Exclusionary Rule: The Costs Outweigh the Benefits
358(1)
Arguments in Favor of the Exclusionary Rule: The Benefits Outweigh the Costs
359(2)
Current Supreme Court Position
361(1)
Alternatives to the Exclusionary Rule
361(1)
Civil Damage Actions
361(1)
``Fortified'' Tort Remedy
362(1)
Criminal Prosecution of Offending Officers
362(1)
Police Regulations and Departmental Discipline
362(1)
Standing to Invoke the Exclusionary Rule
363(11)
Fourth Amendment Rights Are Personal
363(1)
Deterrent Effect
363(1)
Supervisory Power
364(1)
Reasonable Expectation of Privacy
364(1)
Two--Pronged Test
364(1)
Burden on Defendant
365(1)
Different Application From Katz Situation
365(1)
``Legitimately on the Promises'' Test Rejected
365(1)
Target Theory Rejected
366(1)
Deterrent Effect
366(1)
Application of Expectation Test to the Facts of Rakas
366(1)
Result in Jones Remains Sound
366(1)
Standing to Contest the Seizure
367(1)
Owners
367(1)
Permissive Use
368(1)
Overnight Guests
368(1)
``Business'' Guests
369(1)
Rationale
369(1)
Dissent
369(1)
Possessory Interest In Items Seized Is Insufficient
370(1)
Bailment Relationships
370(1)
Objecting to the Seizure
371(1)
Disassociation With the Object of the Search
371(1)
Express Disassociation
372(1)
Disavowal by Conduct
372(1)
Co--Conspirator Standing
372(1)
Automatic Standing
373(1)
Rationale of Jones
373(1)
Simmons Rule
373(1)
Automatic Standing Doctrine Abolished
373(1)
Prosecutorial Inconsistency
374(1)
Risk of Impeachment
374(1)
Exclusion of ``The Fruit of the Poisonous Tree''
374(24)
Introduction
374(1)
Exclusionary Rule Applies to ``Tainted'' Evidence
375(1)
Standing Requirement Must Be Met
375(1)
Attenuation
376(1)
Wong Sun
376(1)
Possible ``Fruits'' in Wong Sun
376(1)
Test of Causation
376(1)
Application to the Facts of Wong Sun---Toy's Statement
377(1)
Use of Narcotics Against Toy
377(1)
Use of Narcotics Against Wong Sun
378(1)
Use of Confession Against Wong Sun
378(1)
Confessions and Miranda Warnings
378(1)
Miranda Warnings Do Not Per Se Break the Chain of Causation
379(1)
Miranda Warnings Are Relevant
379(1)
Application to the Facts in Brown
379(1)
Burden on Government
380(1)
Progeny of Brown
380(1)
Rawlings
381(1)
Confession Made Outside the Home Is Not the Fruit of a Payton Violation
381(1)
Analysis in Harris
381(1)
No Retreat From Brown
382(1)
Seizure of Evidence in the Home in the Course of a Payton Violation
382(1)
Confessions in the Home
382(1)
Abandonment During the Course of or After an Illegal Search or Seizure
383(1)
Calculated or Spontaneous
383(1)
Criteria for Attenuation
384(1)
Impact of the Illegality on the Defendant
384(1)
Intervening Circumstances
384(1)
Temporal Proximity
384(1)
Purpose and Flagrancy of the Misconduct
384(1)
Testimony of Live Witnesses
385(1)
Ceccolini
385(1)
Willingness to Testify Is Likely to Purge the Taint
385(1)
Application to the Facts of Ceccolini
386(1)
No Per So Rule
386(1)
Identifications
387(1)
Independent Source
388(1)
Rationale
388(1)
Search With a Warrant After an Illegal Entry
388(1)
Rediscovered Evidence Can Be Admissible
389(1)
Danger of Confirmatory Searches
389(1)
Protection Provided by Murray
390(1)
Officer's Assurance Not Sufficient
390(1)
Application to the Facts of Murray
390(1)
Dissent in Murray
391(1)
Direct/Indirect Distinction Rejected
391(1)
Mixed Affidavits
392(1)
Inevitable Discovery
392(1)
Rationale
393(1)
Inevitability Must Be Shown by a Preponderance
393(1)
Applies to Fourth Amendment Violations
393(1)
Primary Evidence
394(1)
Open Question
394(1)
One View---Williams Analysis Requires Application of Inevitable Discovery Exception to Primary Evidence
395(1)
Contrary View---Primary Evidence Must Be Excluded Even If It Would Have Been Discovered Through Legal Means
395(1)
Distinction From Independent Source Exception
396(1)
Inevitability, Not Possibility
397(1)
Focus on What Would Have Been Done
397(1)
Legal Means Must Derive From Facts Independent of Illegal Search or Seizure
397(1)
Active Pursuit
398(1)
``Collateral Use'' Exceptions to the Exclusionary Rule
398(13)
Introduction
398(1)
Grand Jury
398(1)
Rationale
399(1)
Dissent
399(1)
Sentencing
399(1)
Rationale
400(1)
Search or Seizure for Express Purpose of Enhancing a Sentence
400(1)
Forfeiture Proceedings
401(1)
Proof of Criminal Violation Through Other Means
401(1)
Owner Not Entitled to Return of Contraband
401(1)
Deportation Proceedings
402(1)
Rationale
402(1)
Dissent
403(1)
Civil Tax Proceedings
403(1)
Rationale
403(1)
Search by Same Sovereign
403(1)
Parole Revocation
404(1)
Rationale
404(1)
Dissent
405(1)
Habeas Corpus Proceedings
405(1)
Rationale
405(1)
Full and Fair Opportunity
406(1)
Definition of Full and Fair Opportunity
406(1)
Narrow Exception
406(1)
Ineffective Assistance
406(1)
Impeachment
407(1)
Rationale
407(1)
Impeachment of Testimony First Brought Out on Cross--Examination
408(1)
Facts of Havens
408(1)
Analysis in Havens
408(1)
Dissent in Havens
408(1)
Exclusionary Rule Prevents Impeachment of Defendant's Witnesses With Illegally Obtained Evidence
409(1)
Facts of James
409(1)
Analysis in James
409(1)
Dissent in James
410(1)
Subsequent Perjury Trials
410(1)
Rationale
411(1)
Search Following the Perjured Testimony
411(1)
The ``Good Faith'' Exception to the Exclusionary Rule
411(14)
The Leon Case
411(1)
Facts of Leon
412(1)
Holding in Leon
412(1)
Rationale---Officer Who Did Nothing Wrong Cannot Be Deterred
412(1)
Can the Magistrate Be Deterred From Issuing Invalid Warrants?
413(1)
Dissent in Leon
413(1)
Objective Reasonableness
414(1)
Room for Reasonable Minds to Differ
414(1)
Clearly Established Law
414(1)
Exceptions to the Good Faith Exception
415(1)
Misleading Information
415(1)
Abandonment of Judicial Role
415(1)
Abandonment Must Be Known by Police
416(1)
Abandonment Other Than by Participation in the Search
416(1)
Affidavit Clearly Insufficient to Establish Probable Cause
416(1)
Facially Deficient Warrant
417(1)
Sheppard
417(1)
Lack of Particularity
418(1)
Unreasonable Execution of the Warrant
419(1)
Reliance on Unconstitutional Legislation
419(1)
Rationale
419(1)
Dissent
419(1)
Unreasonable Reliance on Unconstitutional Legislation
420(1)
Abdicating the Legislative Role
420(1)
Statute Clearly Unconstitutional
420(1)
Misinterpretation of Legislation
420(1)
Mistakes by Court Clerical Personnel
421(1)
The Good Faith Exception and Warrantless Searches and Seizures
421(1)
Rationale of Leon May Preclude Extension to Warrantless Searches and Seizures
422(1)
Some Language in Leon May Be Applicable to Warrantless Search Situations
422(1)
Reasonable Reliance on a Warrant Based on Illegally Obtained Information
423(1)
Split in Courts
423(2)
The Privilege Against Self--Incrimination
425(28)
Introduction
427(3)
The Policies of the Privilege Against Self--Incrimination
427(1)
Protection of the Innocent
427(1)
The Cruel Trilemma
427(1)
Limiting Perjury
427(1)
Unreliability of Coerced Statements
427(1)
Preference for Accusatorial System
428(1)
Need to Deter Improper Police Practices
428(1)
Fair State--Individual Balance
428(1)
Preservation of Official Morality
428(1)
Privacy Rationale
428(1)
First Amendment Rationale
429(1)
Scope of the Privilege
429(1)
Compulsion by the State
429(1)
Witness Against Himself
429(1)
Testimonial or Communicative Act
429(1)
Legitimate Risk of Harm
429(1)
Must Be Personal
429(1)
Use in a Criminal Case
429(1)
Proceedings in Which the Privilege Applies
430(2)
Compulsion in Any Proceeding Where Testimony May Be Used in a Criminal Case
430(1)
Ultimate Use in a Criminal Case
430(1)
The Use of Compelled Testimony Outside of a Criminal Case Does Not Implicate the Fifth Amendment
431(1)
What Is a Criminal Case?
431(1)
Sexually Dangerous Persons Act
431(1)
Legislative Intent Is Crucial
431(1)
Criminal Law Objectives
431(1)
Foreign Prosecutions
432(1)
What Is Compulsion?
432(5)
Use of Contempt Power
432(1)
Other State-Imposed Sanctions
432(1)
Economic Sanctions for Invoking the Privilege
432(1)
The Fifth Amendment Does Not Protect Against the Use of Immunized Testimony Outside of a Criminal Case
433(1)
Use in a Civil Case
433(1)
Compulsion in the Prison Context
433(1)
Clemency Hearings
433(1)
Prison Treatment Programs
434(1)
Comment on the Invocation of the Privilege
435(1)
Argument That Evidence Is Uncontradicted May Be Compulsion
435(1)
Invited Comment
435(1)
Adverse Inference at a Sentencing Hearing
435(1)
Adverse Inference in a Civil Case
436(1)
Compulsion and the ``Exculpatory No'' Doctrine
436(1)
Identifying the Holder of the Privilege
437(1)
The Privilege Is Personal
437(1)
Attorneys May Not Claim Privilege for Their Client
437(1)
Subpoena Served Upon Accountant to Produce Taxpayer's Records Does Not Violate the Fifth Amendment
437(1)
Subpoena Served Upon Attorney to Produce Client's Documents Does Not Violate the Fifth Amendment
437(1)
Business Entities
437(1)
Collective Entity Rule
437(1)
No Matter What the Entity
438(1)
Personal Privilege
438(1)
The Fifth Amendment Protects Sole Proprietorships
438(1)
Information Protected by the Privilege
438(10)
Evidence Is Not Protected Unless It Is Testimonial
438(1)
The Cruel Trilemma
439(1)
Schmerber v. California
439(1)
Extending Schmerber
439(1)
Pennsylvania v. Muniz
439(1)
The Slurred Speech
440(1)
The Sobriety Test
440(1)
The Sixth Birthday Question
440(1)
The Sixth Birthday Question and the Cruel Trilemma
441(1)
A Statement Must Be Capable of Being True or False in Order to Be Testimonial
441(1)
Refusal to Supply Physical Evidence
441(1)
Documents
442(1)
Types of Testimony Compelled by a Subpoena for Documents: Content of Documents and the Act of Production
442(1)
Content of Documents
442(1)
Act of Production
443(1)
What Does the Act of Production Communicate and When Is It Incriminating?
443(1)
Admitting That the Documents Exist
443(1)
Admitting Possession and Control of Documents
444(1)
Admitting That the Documents Are the Ones Demanded by the Government: Authentication
444(1)
Foregone Conclusion
444(1)
Content of Personal as Opposed to Business Documents
444(1)
Document Production, Incrimination, and Immunity
445(1)
Compelling Agents of Business Entities to Produce Documents: The Collective Entity Rule
445(1)
Braswell
446(1)
Reasoning in Braswell
446(1)
Nonconstitutional Agency Analysis
446(1)
Oral Testimony Distinguished
447(1)
Required Records
447(1)
Legitimate Administrative Purpose
448(1)
California v. Byers
448(1)
Procedural Aspects of Self--Incrimination Claims
448(5)
Determining the Risk of Incrimination
448(1)
Possibility, Not Likelihood of Criminal Sanction
449(1)
``Stop and Identify'' Statutes
449(1)
The Risk of Incrimination and Denial of Guilt
449(1)
Assertion of the Privilege
450(1)
Immunity
450(1)
Transactional Immunity
450(1)
Use and Derivative Use Immunity
450(1)
Prosecution Is Still Possible
451(1)
Government's Burden
451(1)
Witnesses Should Not Have Access to Immunized Testimony
451(1)
Waiver of the Privilege
451(1)
Subject Matter Test
451(2)
Self--Incrimination and Confessions
453(96)
Confessions and Due Process
455(6)
The Due Process Clause Prohibits the Admission of an Involuntary Confession
455(1)
Evolution of Due Process
455(1)
Little Precedential Value
455(1)
Reliability Is Not the Only Concern
455(1)
Continuing Viability of the Due Process Test
456(1)
The Prohibition Against Admission of a Confession That Is Extracted by Physical Coercion
456(1)
Rationale
456(1)
Psychological Coercion
457(1)
Case-by-Case Approach
457(1)
Spano v. New York
457(1)
Rationale
458(1)
A Proposed Right to Counsel
458(1)
Debate Over Right to Counsel
458(1)
Threats of Violence
459(1)
Rationale
459(1)
Relevant Factors
459(1)
Actual Violence Not Required
460(1)
Some Police Coercion Is Required
460(1)
Rationale
460(1)
Deterrence
461(1)
Harmless Error
461(1)
An Involuntary Confession Is Not Admissible at Trial for Any Purpose
461(1)
The Special Federal Standard for Confessions
461(2)
Delay in Presentment: The McNabb--Mallory Rule
461(1)
Rationale
462(1)
Nature of Delay
462(1)
Demise of the McNabb--Mallory Rule
462(1)
Relationship to Miranda
462(1)
The Congressional Approach: 18 U.S.C. § 3501
463(1)
Confessions and the Sixth Amendment Before Miranda
463(2)
The Prohibition on ``Deliberate Elicitation'' of Incriminating Statements From Indicted Defendants
463(1)
Rationale
463(1)
Critical Stage
464(1)
Need for Undercover Activity
464(1)
Dissent
464(1)
``Deliberate Elicitation'' of a Confession From an Unindicted Suspect Who Asks to See His Retained Counsel
464(1)
Confessions and the Fifth Amendment
465(64)
Miranda v. Arizona
465(1)
Rationale
465(1)
Custodial Interrogation Constitutes Fifth Amendment Compulsion
465(1)
Interrogation Techniques
466(1)
Not Involuntary Under the Due Process Clause, but Compelled Under the Fifth Amendment
466(1)
The Fifth Amendment Privilege Against Self--Incrimination Applies to Custodial Interrogation
467(1)
The Miranda Safeguards
467(1)
The Warnings
467(1)
Functions of the Warnings
467(1)
Second-Tier Safeguards
468(1)
Honoring the Suspect's Rights: The Right to Silence
468(1)
Honoring the Suspect's Rights: The Right to Consult Counsel
468(1)
The Miranda Right to Counsel Distinguished From the Sixth Amendment Right to Counsel
468(1)
Waiver of Miranda Rights
469(1)
Sufficient Proof of Waiver
469(1)
Insufficient Proof of Waiver
469(1)
Evidence That Negates Waiver
469(1)
Triggering of the Safeguards
470(1)
Miranda Is Not a ``Constitutional Straightjacket''
470(1)
The Miranda Requirements and Law Enforcement Goals
470(1)
Dissent
470(1)
Justice Clark's Dissent
470(1)
Justice Harlan's Dissent
471(1)
Justice White's Dissent
472(1)
Perspective
473(1)
Miranda as the Definitive Solution for the Problems Presented by Custodial Interrogation
473(1)
The Need for Further Judicial Definition of Miranda Concepts, and for Case-by-Case Application of These Definitions
473(1)
The Miranda Compromise
474(1)
Is Miranda a Constitutional Rule?
474(1)
Interpreting the Language of Miranda
474(1)
A Congressional Attempt to Overrule Miranda
475(1)
Dickerson v. United States: Miranda's Constitutional Status
475(1)
Procedural History
475(1)
Congress' Authority
476(1)
Miranda's Applicability to the States
476(1)
The Language of Miranda
476(1)
Post--Miranda Cases
476(1)
Miranda Affirmed
477(1)
Dissent
477(1)
Miranda and Impeachment
477(1)
Miranda-Defective Statements May Be Used to Impeach a Defendant Who Takes the Stand at Trial
477(1)
Defendant Who Takes the Stand at Trial
477(1)
Rationale
478(1)
Consequences of Analysis in Harris
478(1)
Continued Affirmation of the Harris Rule
478(1)
Rationale
479(1)
Dissent
479(1)
Miranda--Defective Confessions Cannot Be Used to Impeach Defense Witnesses
479(1)
Involuntary Confessions Cannot Be Used for Impeachment
480(1)
Impeachment with Post-Miranda Silence
480(1)
Rationale
480(1)
Due Process, Not Fifth Amendment
480(1)
Dissent
481(1)
Limitations of Due Process Analysis
481(1)
Continued Affirmation of Doyle
481(1)
Doyle and the Insanity Defense
481(1)
Post--Warning Statements Inconsistent With Later Trial Testimony
482(1)
No Evidence of Silence
482(1)
Impeachment with Pre-Miranda Silence
482(1)
Silence Before Arrest
482(1)
Rationale
483(1)
Dissent
483(1)
Silence After Arrest
483(1)
The Admissibility of the Fruits of Miranda-Defective Confessions
484(1)
Identity of a Witness as a Fruit of a Miranda Violation
484(1)
Subsequent Confession as the Fruit of a Miranda Violation
485(1)
The Fruits of Involuntary Confessions Are Excluded
485(1)
Subsequent Confession Excluded if It Is Obtained Involuntarily
486(1)
Second Confession Not Involuntary in Elstad
486(1)
``Cat Out of the Bag'' Warning Not Required
486(1)
Balancing Approach
487(1)
Dissent
487(1)
Other Types of Miranda Violations
487(1)
Post-Dickerson Elstad Jurisprudence
488(1)
The Fruit of An Intentional Miranda Violation
488(1)
Physical Evidence as the Fruit of a Miranda Violation
488(1)
The ``Voluntary, Knowing, and Intelligent'' Waiver of Miranda Rights
489(1)
A Waiver Need Not Be ``Express''
490(1)
Rationale
490(1)
Dissent
490(1)
The Government Has the Burden of Proving Waiver
490(1)
Insufficient Proof of Suspect's Understanding of Warnings
490(1)
Proof Required that Suspect Understood His Rights and Voluntarily Waived Them
491(1)
Voluntariness Aspect of Waiver Is the Same as the Due Process Test for Confessions
491(1)
The Mentally III Defendant's Ability to Make a ``Knowing'' Waiver
491(1)
A ``Conditional'' Waiver May Be ``Knowing and Voluntary''
492(1)
The Miranda Warnings Give the Suspect All the Information That Is Necessary to Make a Knowing Waiver
492(1)
A Suspect Need Not Be Informed of All the Subjects of the Interrogation Before Making a Waiver
492(1)
A Suspect Need Not Be Informed That a Prior Unwarned Confession Would Be Inadmissible at Trial
493(1)
A Suspect Need Not Be Informed That an Attorney Is Trying to Consult With Him
493(1)
Upsetting the Miranda Compromise
494(1)
Affirmative Misrepresentation
494(1)
Deceiving the Attorney, and the Attorney's Role in Miranda
495(1)
Preponderance of the Evidence
495(1)
Rationale
495(1)
Dissent
496(1)
Waiver and the Resumption of Questioning After Invocation of Rights
496(1)
Police May Obtain a Waiver From a Suspect Following His Invocation of the Right to Remain Silent
496(1)
Rationale
496(1)
Momentary Cessation
496(1)
Applied to Facts of Mosley
497(1)
Mosley's Application to Different Factual Settings
497(1)
Knowing and Voluntary Waiver Must Still Be Found
497(1)
The Right to Silence Must Be Clearly Invoked
498(1)
Request to See a Third Party Is Not an Invocation of the Right to Silence
498(1)
Waiver After the Invocation of the Right to Counsel
498(1)
Rationale
499(1)
Distinction From Mosley
499(1)
Bright-Line Rule
500(1)
Two Step Approach
500(1)
When Does the Suspect ``Initiate'' Re-interrogation?
500(1)
A Suspect's Request for a Polygraph Examination Constitutes Initiation
500(1)
Suspect's Desire for Generalized Discussion About the Crime
501(1)
Knowing and Voluntary Waiver
501(1)
Dissenting View
502(1)
Post--Bradshaw Applications of the ``Initiation'' Rule
502(1)
Ambiguous ``Invocation'' of the Right to Counsel
502(1)
Interrogating on Unrelated Crimes After a Suspect Invokes His Right to Counsel
503(1)
Rationale
503(1)
Information Permissible
504(1)
Dissent
504(1)
Request for Counsel at an Initial Appearance in Court
504(1)
Rationale
505(1)
Dissent
505(1)
Anticipatory Invocation of the Miranda--Edwards Right to Counsel
505(1)
Police--Initiated Interrogation After the Suspect Has Consulted With Counsel
506(1)
Rationale
506(1)
Dissent
507(1)
Incomplete or Ambiguous Miranda Warnings
507(1)
The Miranda Warnings Need Not Inform a Suspect Explicitly of the Right to Have an Attorney Appointed Before Further Questioning
507(1)
Rationale
507(1)
Dissent
508(1)
Warnings Need Only Reasonably Convey the Necessary Information
508(1)
Rationale
508(1)
Prophylactic Rules
508(1)
Totality of Warnings
508(1)
Implying That Appointed Counsel Is Optional With the Authorities
509(1)
The Meaning of ``Custody''
509(1)
Custody Outside the Stationhouse
510(1)
Rationale
510(1)
When Custody Does Not Exist Outside the Stationhouse
510(1)
``Focus'' on the Suspect Does Not Equal Custody
511(1)
Objective Test
511(1)
Custody in Prison
512(1)
Rationale
512(1)
No Automatic Rule
512(1)
More Than Usual Restraint
512(1)
No Automatic Rule of Custody for Stationhouse Interrogation
513(1)
Rationale
513(1)
Dissent
513(1)
When a Suspect is Asked to Accompany Police to the Stationhouse
514(1)
When a Suspect is Driven to the Stationhouse by His Parents
514(1)
Custody Does Not Exist Simply Because a Suspect Is Required to Meet With a Government Official or Body
515(1)
Three Distinguishing Factors
515(1)
Custody Does Not Exist When a Person Is Called to Testify Before a Grand Jury
515(1)
Custody Does Not Exist During a Normal Traffic Stop
516(1)
Rationale
516(1)
More Coercive Activity May Lead to a Finding of Custody
516(1)
Applied to the Facts
516(1)
The Meaning of ``Interrogation''
517(1)
Police Tactics Reasonably Likely to Elicit an Incriminating Response
517(1)
Definition of Interrogation
517(1)
More Than Express Questioning
517(1)
Relevance of Police Intent
518(1)
The Average Suspect and Peculiar Susceptibility
518(1)
Applied to the Facts
519(1)
Justice Marshall's Dissent In Innis
519(1)
Mere Possibility That the Suspect Might Incriminate Himself Does Not Mandate a Finding of Interrogation
520(1)
Rationale
520(1)
Relevant Factors
520(1)
Confrontation With Incriminating Evidence as a Form of Interrogation
521(1)
Distinction From the Ploy in Innis
521(1)
Not a Universal Rule
521(1)
Direct vs. Indirect Statements
522(1)
Questions Attendant to Custody Are an Exception
522(1)
Applied to the Facts
522(1)
Limits of the ``Booking Exception''
523(1)
Instructions and Questions Necessary for Custodial Procedures
Rationale
523(1)
Scope
523(1)
The Application of Miranda to Undercover Police Activity
524(1)
Rationale
524(1)
Dissent
524(1)
Misdemeanors and Miranda
524(1)
Rationale
525(1)
The ``Public Safety Exception'' to Miranda
525(1)
Rationale
525(1)
Cost--Benefit Analysis
526(1)
Going Away From the Bright--Line Rule
526(1)
Applied to the Facts
526(1)
Justice O'Connor's Opinion
526(1)
Dissent
527(1)
Exigent Circumstances
527(1)
Subject Matter Limitation on Questioning
527(2)
Confessions and the Sixth Amendment After Miranda
529(20)
Brewer v. Williams: Deliberate Elicitation of Incriminating Statements From a Formally Charged Defendant
529(1)
Facts of Brewer
529(1)
Rationale
530(1)
Deliberate Elicitation After a Formal Charge
530(1)
No Waiver
530(1)
Unethical Behavior as the Touchstone of Sixth Amendment Analysis
531(1)
Affirmation of the Brewer--Massiah Rule
532(1)
Must Be Formally Charged; Having Counsel Is Not Enough
532(1)
``Deliberate Elicitation'' Distinguished from ``Interrogation''
532(1)
Sixth Amendment Waiver
533(1)
Waiver After Invoking the Right to Counsel at Arraignment
533(1)
Rationale
533(1)
Lack of Police Knowledge Irrelevant
534(1)
Dissent
534(1)
Police--Initiated Interrogation Where the Accused Does Not Invoke the Sixth Amendment Right to Counsel
534(1)
Sixth Amendment Right to Counsel Is Offense--Specific
535(1)
Jackson--Edwards Rule Against Police--Initiated Interrogation Held Inapplicable
535(1)
Rationale
535(1)
Sixth Amendment Right Inapplicable to ``Closely Related'' Charges
536(1)
Rationale
536(1)
Applying the Blockburger Test
536(1)
Dissent
537(1)
The Miranda Warnings Adequately Inform an Indicted Defendant of the Sixth Amendment Right to Counsel
537(1)
Rationale
538(1)
Distinction From Waiver of Counsel at Trial
538(1)
Dissent
538(1)
Indictment Warning
539(1)
Two Exceptions Where Waiver Standards May Differ
539(1)
Lawyer Trying to Reach an Indicted Defendant
539(1)
Undercover Activity
540(1)
The Meaning of ``Deliberate Elicitation''
540(1)
Obtaining Information Through Jailhouse Informants
540(1)
Rationale
541(1)
Conduct Likely to Elicit Incriminating Information Is Deemed Deliberate
541(1)
Undercover Activity; Distinction From Miranda
541(1)
Meeting Initiated by the Indicted Defendant
542(1)
Use of a ``Listening Post'' Does Not Constitute Deliberate Elicitation
542(1)
Rationale
543(1)
Applied to the Facts
543(1)
Dissent
543(1)
Defining the Scope of the Government's Agency Relationship With an Informant
544(1)
Deliberate Elicitation and Continuing Investigations
544(1)
Rationale
545(1)
Deliberate Elicitation Found From Likely Consequences
545(1)
The Sixth Amendment Exclusionary Rule
546(1)
A Statement Obtained in Violation of a Prophylactic Rule May Be Used to Impeach a Defendant's Credibility at Trial
546(1)
Constitutional Status of Sixth Amendment Exclusionary Rule Left Open
547(1)
Does the Constitution Require Exclusion of a Confession Obtained In Violation of the Sixth Amendment?
547(2)
Constitutional Limits on Identification Evidence
549(16)
Introduction
550(1)
Post-Charge Identifications
550(4)
The Wade--Gilbert Rule
550(1)
Critical Pre-trial Stage
550(1)
Observer Status of Counsel
551(1)
Substitute Counsel
551(1)
``Per Se'' Exclusion
552(1)
In-Court Identification and Independent Source
552(1)
Relevant Factors
553(1)
Dissent
554(1)
Pre--Charge Identifications
554(3)
Kirby
554(1)
Rationale
554(1)
Adversarial Proceedings
554(1)
Dissent
555(1)
Application of the Sixth Amendment Right to Counsel After Kirby
555(1)
Delaying Indictment
555(1)
Charge--Specific
555(1)
Photographic Identification
556(1)
Rationale
556(1)
Dissent
556(1)
Video Identifications
556(1)
Due Process Limitations on Suggestive Identifications
557(8)
Two--Factor Test
557(1)
Exigent Circumstances
557(1)
Rarely Applied Exception
558(1)
Street Identifications
558(1)
The Linchpin of Reliability
558(1)
Relevant Factors in Determining the Reliability of an Identification
559(1)
Degree of Police Suggestiveness
559(1)
Opportunity to View
559(1)
Degree of Attention
560(1)
Accuracy of the Description
560(1)
Level of Certainty
560(1)
The Time Between the Pre-identification Opportunity to View and the Identification Itself
561(1)
Character of the Witness
561(1)
Totality of the Circumstances
561(1)
If Pre-trial Identification Is Excluded, Trial Identification Is Excluded as Well
562(1)
Trial Identification Governed by the Same Due Process Standard
563(1)
Examples of Due Process Identification Cases
563(1)
Identifications Excluded
563(1)
Identifications Found Reliable Under the Totality of Circumstances
564(1)
The Right to Counsel
565(80)
The Basic Right to Counsel
567(3)
The Right to Retained Counsel of Choice
567(1)
Qualified Right
567(1)
The Right to Appointed Counsel for Indigent Defendants
567(1)
The Definition of ``Indigency''
568(1)
No Constitutional Right to Appointed Counsel of Choice
568(1)
The Definition of a ``Criminal Prosecution'' Where Counsel Rights Apply
568(1)
When ``Adversarial Judicial Proceedings'' Begin
569(1)
The Definition of ``Critical Stage''
569(1)
Confessions and the Right to Counsel
570(1)
Due Process and the Right of Adequate Access
570(2)
Counsel for Non--critical Stages
570(1)
The Right to Counsel on Appeal
570(1)
The Right to Effective Assistance of Counsel on Appeal
571(1)
The Role of Appellate Counsel Who Feels That the Appeal Has No Merit
571(1)
Due Process Right to Tools With Which to Prepare an Effective Case at Trial and on Appeal
571(1)
The Right to a Trial Transcript
571(1)
The Right to Obtain Expert Witnesses for Trial
572(1)
The Rights of Indigent Prisoners to Tools for Appeal in Lieu of Counsel
572(1)
Jailhouse Lawyers
572(1)
Prison Libraries
572(1)
Effective Assistance of Counsel
572(16)
Introduction
572(1)
Applies to Appointed and Retained Counsel
572(1)
Applies to Trial, Sentencing, and Other Critical Stages
573(1)
Inapplicable Where Right to Counsel Does Not Apply
573(1)
Strickland
573(1)
Deficient Performance
573(1)
Prejudice
574(1)
``Reasonable Probability'' Standard
574(1)
Strict Test
574(1)
Elements of Competence
575(1)
Investigation
575(1)
Information Provided by the Defendant
575(1)
Limitations on Investigation
575(1)
Presentation
576(2)
Decisions Based on Errors of Law
578(1)
Prejudice
579(1)
Strength of the Government's Case
579(1)
Weakness of the Government's Case
580(1)
No Right to a Lawless or Improper Verdict
580(1)
Per Se Prejudice
581(1)
Limited Exception
581(1)
Total Denial of ``Counsel''
582(1)
Ineffectiveness and Prejudice May Still Be Found on the Facts
582(1)
Multiple Representation
583(1)
Per Se Reversal If No Hearing Held After Risk of Conflict is Brought to the Judge
584(1)
Limited Presumption
584(1)
Conflict May Be Waived
585(1)
Waiver Does Not Bind the Court
586(1)
Judicial Discretion
586(1)
Ineffective Assistance Through No Fault of Defense Counsel
587(1)
Per Se Reversal
587(1)
Line--Drawing
587(1)
The Right to Self--Representation
588(7)
Faretta
588(1)
Policy Arguments Supporting the Right to Self--Representation
588(1)
Right of Free Choice
588(1)
Strategic Benefit
588(1)
Dissent
589(1)
Self--Representation Requires Knowing Waiver of Right to Counsel
589(1)
Invocation of Right to Self--Representation Must Be Unequivocal
589(1)
Tension Between Rights to Counsel and Self--Representation Requires an Unequivocal Waiver of Counsel
590(1)
Need Not Know Rules of Evidence and Trial Practice
590(1)
Defendant Must Be Competent
591(1)
Limitations on the Right of Self--Representation
591(1)
Disruption of the Trial
591(1)
Treated Like a Lawyer
591(1)
Standby Counsel
591(1)
Limits of Standby Counsel
592(1)
Procedural Problems
593(1)
No Right to Standby Counsel
593(1)
No Right to Hybrid Relationship of Counsel and Self--Representation
593(1)
Election Must Be Timely
594(1)
Faretta Violation Cannot Be Harmless
594(1)
APPENDICES
A. Criminal Procedure---Sample Examinations
595(10)
B. Criminal Procedure---Sample Answers
605(14)
C. Glossary
619(8)
D. Text Correlation Chart
627(4)
E. Table of Cases
631(14)
F. Index
645

An electronic version of this book is available through VitalSource.

This book is viewable on PC, Mac, iPhone, iPad, iPod Touch, and most smartphones.

By purchasing, you will be able to view this book online, as well as download it, for the chosen number of days.

Digital License

You are licensing a digital product for a set duration. Durations are set forth in the product description, with "Lifetime" typically meaning five (5) years of online access and permanent download to a supported device. All licenses are non-transferable.

More details can be found here.

A downloadable version of this book is available through the eCampus Reader or compatible Adobe readers.

Applications are available on iOS, Android, PC, Mac, and Windows Mobile platforms.

Please view the compatibility matrix prior to purchase.