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Terms in this set (168)
Whether actor acting as agent of police/gov
The court must consider
(1) the degree of governmental participation, encouragement, knowledge, or acquiescence in the act, and
(2) the actor's motivation.
CI and Exclusionary Rule
Since the judge determined that the confidential informant was acting as an agent of the government and that the search was unreasonable, the exclusionary rule applies, as set forth in Weeks v. United States, 232 U.S. 383 (1914)
Although the practical effect of exclusion may be dismissal in some cases, the Fourth Amendment only requires exclusion of evidence that the government obtained by an unlawful search or seizure.
In some cases, exclusion of the evidence will not be dispositive, and the government may still prosecute the case without the excluded evidence.
REP And Third Party Acess
The other evidence obtained, however, is information shared with third parties, i.e. the phone company, Internet provider, and social-media companies.
This type of information is similar to banking records in terms of Fourth Amendment privacy concerns. See United States v. Miller, 425 U.S. 435 (1976); see also Smith v. Maryland, 442 U.S. 735 (1979) (holding that the numerical information of numbers dialed was voluntarily provided to the phone company and therefore installation of a pen register was not a search under the Fourth Amendment).
Note that courts make no legal distinctions in this regard among phone companies, Internet providers, and social-media companies.
When defendant is seized
A person is seized by the police when
(1) the person submits to a show of authority by an officer;
(2) the officer arrests the person successfully; or
(3) the officer physically subdues or restrains the person.
The Supreme Court provides the following factors for consideration in determining whether an area is curtilage:
(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, and
(4) the steps taken to protect the area from observation by people passing by.
See United States v. Dunn, 480 U.S. 294 (1987).
Viewing open field from helicopter
The relevant questions for the court under these facts would be:
(1) whether the drone was flying from a public vantage point, and
(2) whether the equipment used constituted a sensory enhancement device.
Informant Tip for Probable Cause and Warrant
(1) the basis of the informant's knowledge,
(2) the informant's credibility, and
(3) the truth of particular details in the tip in assessing the reliability of an informant's tip.
Magistrate signed warrants for detectives on prior occasions
Although signing warrants for these detectives in the past demonstrates a prior relationship, it does not rise to the level that "would distort the independent judgment the Fourth Amendment requires." Shadwick v. City of Tampa, 407 U.S. 345 (1972).
U.S. Supreme Court decision that established the flexible totality of circumstances test for determining the existence of the probable cause needed for obtaining a search warrant.
Illinois v. Gates
False Info on Warrant
During the preliminary hearing stage of a Franks motion to suppress evidence on the grounds that the affidavit to support a search warrant contained false information, the defendant bears the burden of justifying the need for an evidentiary hearing.
To meet this burden, the defendant must produce evidence raising a fair probability that statements in the affidavit are false and that the officer either knew they were false or acted with reckless disregard of the truth. See Franks v. Delaware, 438 U.S. 154 (1978).
The defendant's evidence must contain sworn affidavits or other reliable statements from witnesses, or a satisfactory explanation for the lack of such evidence.
If the defendant does all this, the judge then treats the affidavit as though it did not contain the false statements.
If the affidavit still has enough information to establish probable cause, the court does not proceed to the evidentiary hearing stage.
Items described in warrant
"Other evidence of ______" is nonspecific and could encompass anything from paper records to cell phones, computers, curtains, locks, or other items used to shield the operation from detection.
The police must specifically outline each type of evidence they expect to possibly find to meet the particularity requirement for a warrant.
U.S. currency is typically specific enough for a search warrant.
Incorrect location specified on warrant
The Fourth Amendment requires that a warrant describe the place to be searched with particularity.
If there is a significant risk that the police might search the wrong location, then the particularity requirement is not met.
A typographical error or inconsistency will not necessarily invalidate a warrant; if police could ascertain what the correct location was without significant risk of searching the wrong location, a warrant may still be upheld even if the place as described with the error does not exist.
What constitutes a search?
Electronic listening device on phone booth (Katz)
Entry and exploration of house or curtilage
Using sense-enhancing technology outside a house to determine the activities within a house- that could not be determined otherwise without physical intrusion- when the technology is not generally used by the public (Kyllo)
Use of dog sniff to locate contraband inside a residence could constitute a Fourth Amendment search (contra Caballes)
Using a drug-sniffing dog to investigate contraband within a house or dwelling is a search under the Fourth Amendment (Jardines)
Testing to determine a person's prior use of contraband (Skinner)
Surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public may be constitutionally prescribed absent a search warrant (Dow Chemical)
Placing GPS tracking device on car without a warrant to monitor movement (Jones)
Beeper put in container of chemicals allowing police to track it in homes and in public (Karo)
NOT a search
Fake friends: informant posing as friend
Entry and exploration of open fields even when officers trespass (Oliver)
Barns outside of fence being used for cookin' drugs (Dunn)
Aerial surveillance (non-sense-enhanced) of curtilage occurring in (1) navigable airspace (2) physically nonintrusive (3) does not reveal intimate activities connected with use of home or curtilage
Flying a private plane 1000 ft over backyard in navigable airspace and observing marijuana plants, failed objective prong of expectation of privacy (Ciraolo)
Flying police helicopter at 400 ft to observe inside of greenhouse which was growing marijuana (Riley)
Inspection of garbage enclosed in a closed bag and left for collection in curtilage of home (Greenwood)
Getting phone numbers that home-dweller dialed from the telephone company (Smith)
Dog sniff of luggage in a public place by a trained canine (Place)
Non-intrusive & revealed extremely limited information "sniff only discloses presence or absence of contraband"
Dog sniff around car that is lawfully stopped on the highway for speeding (Caballes)
Testing to determine if a substance is contraband (Place)
Sighting an object that is in plain view with binoculars or other magnifying device (On Lee)
Beeper put in chemical drum approved by merchant sold intentionally to suspect and placed in suspects car to monitor movements (Knotts)
Seizure of Property
Officer destroys property, removes it from actual or constructive possession, secures premise (prevents entry to house or office)
A electronic device installed inside a person's property in a manner that meaningful interferes with the property (i.e. breaking open lock of car or suitcase or damage the property to install beeper)
Seizure of Person
When a person is arrested it uncontroversially constitutes a seizure
When a person is physically restrained or ordered to stop so that they can be frisked or questioned on the street (Terry)
When a person is intentionally shot by a police officer
When a person is taken into custody and brought to police station for questioning or fingerprinting
The driver and passengers of a car are seized when ordered to pull off the highway for questing or to receive a traffic citation by police officer
When the person does not attempt to leave it can still be a seizure when: Police officers physically touch a person, threatening presence of several officers, displaying a weapon, use of language or tone indicating that compliance may be compelled
Police officer chases suspect and grabs them it is a seizure even if the suspect gets free (Hodari D.)
Not a seizure of property
Officer picks up object or moves it a small distance because there is no meaningful interference with possessory interest
Placement of tracking device in container with permission of owner that is given to suspect to track movements because the tracker was placed in something that did not belong to the suspect at the time so there was no interference with possessory interest (Knotts-Karo)
Not a seizure of person
Police officer makes a showing of authority or physical force intended to terminate or restrain a person's freedom but they do not submit. There is no seizure without submission.
Police officer asking a person on the street for the time (Terry-Mendenhall)
When a law enforcement officer believe there is criminal activity afoot, brief questioning in a public place does not amount to a seizure by itself.
Law enforcement with no basis for suspicion of a particular individual, may pose questions, like ask for identification, request consent to search luggage, as long as they do not induce cooperation by coercive means (Drayton).
Factory sweeps (1-2 hours) not all workers are seized when agents enter to find undocumented workers even when armed, display badges, stand at exits, carry walkie talkies and ask workers about citizenship when employees are allowed to continue work (Delgado)
Bus sweep when agents are wearing uniforms, question individual and ask for consent to search luggage for narcotics (Bostick)
Extended even when officers do not inform the passengers that they are not required to cooperate (Drayton)
A suspect fleeing when an officer yells "Stop in the name of the law" or something like that (Hodari D.)
Reasonable Suspicion examples
Person driving erratically for a traffic stop (Navarette)
Fugitive behavior or flight by suspect in a high-crime area (Royer)
Believe person is armed for Terry frisk
Probable cause search examples
An officer may make a custodial arrest for a minor traffic violation based on probable cause even if arrest is a mere pretest to conduct a search incident to arrest (interpretation of. Whren)
Definition of reasonable suspicion
Reasonable suspicion: reasonable grounds, rooted in facts, to suspect a person is committing, has committed or is about to commit a crime.
Definition of Probable Cause
Probable cause: particularized suspicion or facts sufficient to entertain a strong suspicion, such that a person of ordinary caution would find that the object of the search is in the particular place to be searched.
Before making warrantless search or arrest, must have probable cause.
If warrant, does NOT mean the police had probable cause; just mean they have a warrant.
Test for detaining people present while searching with a warrant
Test: (1) Officer safety, (2) facilitating completion of the search, and (3) preventing flight
Extingent circumstances for requiring police to not announce their presence
Factors: cases of physical danger, destruction of evidence
REP for Open Fields
Factors for open fields: person's use of the area (growing crops doesn't count), sanctity of the place,
REP for trash
Test for trash search: no reasonable expectation of privacy, unless respondent manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable.
Where anticipatory warrants are allowed
Test: (1) must be true that if the triggering event occurs, there's a fair probability that contraband or evidence of a crime will be found in a particular place, and (2) there's probable cause to believe the triggering condition will occur
Objective reasonableness for warrantless search of a house
Test: objectively reasonable belief or immediate threat of serious injury of someone in the house
* officer's actual motivation is irrelevant
If officer can reasonably obtain warrant before blood sample can be drawn without significant undermining of efficacy- they have to
Parolee search w/o warrant
Parolee search w/out warrant: reasonableness under 4th amendment requires considering totality of the circumstances and balancing an individual's privacy interests against legitimate gov't goals
*Not really a test- more like a purpose: (1) protects officer by ensuring suspect is disarmed, (2) preserves evidence
Protective sweep: limited to places where a person would actually be hiding- but apply the Terry balancing test of officer safety vs. privacy interests of the individual
Test: closely regulated industries can be searched without a warrant as long as (1) the search is necessary, (2) there's a substantial gov't interest, and (3) the state statute serves the function of the warrant
* also- admin searches are subject to PB analysis- PB exists where there's reasonable legislative and administrative standards for conducting inspection which are satisfied for that particular dwelling
Border crossing re cars
Cars- Factors: (1) cars entering the border are subject to search search, and there's less privacy interest in certain parts of the car than others (gas tank v. passenger seat), (2) can the inspected part be removed or inspected without damage to a car? (3) is the infringement of property rights outweighed by the gov'ts interest in controlling the border? * also consider whether or not the length of time of the detention is reasonable (1-2 hrs is)
Border crossing re persons
Person- Test: reasonableness- considering all the facts and circumstances surround a search, and the person's privacy interests vs. the gov'ts interests
Police conduct that constitutes search
test: (1) person whose 4th amendment rights were allegedly violated must exhibit actual, subjective expectation of privacy w/ respect to place searched, (2) that subjective expectation must be one that society is prepared to accept as reasonable
(3) * corollary of rule- when a person knowingly exposes something to the public, they "assume the risk" that the gov't will discover it and use it against them
No per se test: TOC, look to whether the waiver was knowing and voluntary
Waiver re subsequent unrelated questioning
Not barred by miranda- as long as suspect's right to end questioning has been "scrupulously" honored
After invoking right to silence, LEO can ask:
1. Questions that don't count, like booking questions
2. reinterrogation if the original invocation was scrupulously honored
3. public safety questions
6th Amendment triggered when...
D has been indicted or faced a formal proceeding (Kirby)
Right to counsel where:
Photographic evidence whether formal charges have been laid or not
Does not apply to because the suspect is not confronting the state or witnesses against him.
(US v. Ash)
When will evidence re identification of D be excluded?
If the D is able to prove that:
1. an ID procedure was unnecessary and suggestive and
2. that the ID was unreliable under TOC (created substantial risk of mistaken ID), then
evidence will be excluded
When D invoked right to silence following receipt of Miranda rights and D invokes his right to silence
LEO may not reinitiate questioning unless they scrupulously honor his desire not to speak.
BY way oh honoring right to silence immediately, introducing some significant period of respite, and returning in a non-threatening mode with a new set of warnings.
(Michigan v. Mosley)
When agent of police/CI talks to D and does not merely act as passive listener but instead prompts D to discuss crime...
Amounts to deliberate elicitation of incriminating statements contrary to the protections of the 6th Amendment right to counsel.
Post-indictment interrogation by the State or its agent is a critical stage of the prosecution requiring presence of counsel in the absence of valid waiver. (Massiah v. US)
5th Amendment concerns itself with...
5th Amendment concerns itself with: Issues of compulsion
6th Amendment concerns itself with...
6th Amendment concerns itself with: Insuring the defendant has aid of counsel at critical stages of a prosecution, including interrogation.
State v. Federal powers
States may interpret their own state constitutions in a way that gives greater protections to the criminally accused, so long as they clearly indicate that it is relying on its own constitution.
A search conducted pursuant to consent excuses the 4th Amendment's warrant requirement.
Valid consent must be voluntary, such that it must not be coerced by explicit or implicit means, by implied threat or force
Schhneckloth v. Bustamonte
For consent to be valid...
TOC must suggest that the consent to search was given voluntarily.
Voluntriness here must show that:
1. Consent must not be a product of coercion or duress, express or implied
Ordinary automobile stop
Not custody for Miranda purposes
A person who gave incriminating statements to the police under the coercion of his own mental illness could not claim a violation of DP because there was no state action casually connected to the pressures experienced by D.
Colorado v. Connelly
Absent waiver, a post indictment line-up conducted without the defendant's lawyer violates 6th amendment right to counsel.
1. Per se exclusion of the pretrial ID, no matter fairness
2. a potential loss of an in court ID by the same witness unless the gov proves, by C&C evidence, that the in-court ID was not based on the improper line-up.
Knock and announce requirement does not justify exclusion of evidence found in a subsequent search of the premises
SCOTUS here questions the continued vitality of the exclusionary rule.
Hudson v. Michigan
Police may use reasonable force to effectuate detention
Muehler v. Mena
A search warrant is sufficiently grounded on PC if the magistrate, accorded all due deference, had a substantial basis to conclude that there was a fair probability that evidence of a crime would be found in a particular place.
Illinois v. Gates
Even if probable cause under such a lenient standard is lacking, evidence seized pursuant to a warrant may still be admissible if an officer's reliance on the probable cause determination and the technical sufficiently was objectively reasonable.
US v. Leon
A warrantless entry into a home is reasonable, and thus permissible, if police officers have an objectively reasonable basis for believing that a person within the home is in need of immediate aid.
Brigham City v. Stuart
Administrative searches are significant intrusions upon the interests protected by the 4th Amendment.
4th Amendment applies to inspections of the non-public areas of commercial premises as well as to private homes, thus requiring a warrant or exception.
Camara v. Municipal Ct of SF
Closely regulated business searches without warrant
No warrant needed if:
1. Gov has substantial interested in the activity regulated
2. Warrantless inspections must be necessary to further the regulatory scheme
3. Gov's statute or regulatory program must be a constitutionally adequate substitute for a warrant by providing notice to businesses that their properties are suspect to inspection and by identifying the criteria and scope of inspections
NY v. Burger
Police need a reasonable suspicion to believe the suspect is present at his residence at the time they enter to arrest.
A valid in-home arrest requires probable cause and absent an emergency/exigency, a warrant.
Payton v. NY
Failure to warn is unlikely to invalidate consent, but giving a warning is always deemdd highly relevant to finding consent
US v. Mendenhall
SCOTUS refused to follow fruit of the poisonous tree by saying that a confession made outside of the home can never be the product of a warrantless, in-home arrest.
A warrantless in-home arrest is properly viewed as a form of illegal search of the home, not an illegal arrest.
Consequence is loss of evidence obtained as a result of the illegal entry into the house and that's all
NY v. Harris
Miranda warnings, although constitutionally based, are not mere prophylactic protections.
Dickerson v. US
A violation of Miranda rules is not, of itself, a violation of 5th amendment.
Oregon v. Elstad
To invoke right to silence, suspect must do so unambiguously and unequivocally.
Berghuis v. Thompkins
If a suspect makes a statement regarding counsel that is ambiguous or equivocal, the police are not required to end interrogation and they are not obligated to ask clarifying questions to see whether the suspect wants to invoke her Miranda rights.
Davis v. US
Waiver can be inferred from the actions and words of a person, including an eventual confession
North Carolina v. Butler
The term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonable likely to elicit an incriminating response from the suspect.
Rhode Island v. Innis
Prerequisite for the application of Miranda
Suspect in custody
Prerequisite for the attachment of the right to counsel.
Suspect been formally charged
Investigation by a grand jury is NOT the commencement of a criminal case and does NOT trigger right to counsel.
Fifth Amendment rights must be asserted at the time of interrogation and not anticipatorily
McNeil v. Wisconsin
Search incident doctrine does not permit searches beyond the immediate area of the arrested person
Chimel v. CA
When warrant permits search for only one specific item...
Once recovered, police had no basis for further intrusion
Persons in an apartment for a hours to bag cocaine and no previous relationship with the lawful occupants had NO standing to object of a search of the premises
Minnesota v. Carter
Exclusionary rule in non-criminal proceedings
Does not apply to parole revocation hearings or deportation hearings.
Does not apply in grand jury proceedings.
Does not apply in federal habeas corpus proceedings
Exclusionary rule balancing; loose and easily manipulated
Ct will apply exclusionary rule where:
The need to deter police misconduct plainly outweighs the loss of probative evidence and any procedural disruption the rule will cause.
Katz v. United States
"Knowingly Public Exposure"/ "Seek to Preserve as Private"
A person has a constitutionally protected "reasonable expectation of privacy"
Subjective Component: Individual exhibited actual expectation of privacy
Objective Component: Expectation exhibited is one that society is prepared to recognize as reasonable, legitimate or justifiable. Factors considered: (a) Site or nature of the property inspected (b) The extent to which a person has taken measures to keep information, his property, or an activity private (c) Degree of intrusion experienced
U.S. v. Jones
Warrantless placement of a GPS on a car to track movements is an unconstitutional search.
The Fourth Amendment provides, in part, that the people are to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. A vehicle is an "effect" for Fourth Amendment purposes. Thus, the government's installation of a GPS device on D's vehicle constitutes a "search" and a violation of the Fourth Amendment
U.S. v. Dunn
Entry and exploration of open fields is not a search (bright line rule) but entry and exploration of curtilage and home is a search
Four Factors Used to Determine Curtilage: (a) Proximity to the home (b) Whether area is included in the enclosures surround the house (c) Nature of use (d) Steps taken to protect land from observation
Florida v. Riley
Aerial surveillance (non sense enhanced) of curtilage is not a search when:
Occurs from navigable airspace
Physically non intrusive
Does not reveal intimate activities connected with use of home or curtilage
Kyllo v. United States
Police use of sense enhancing technology outside of a home to secure information regarding activities inside the home or dwelling when otherwise could only be obtained by physical intrusion is a search when the technology in question is not in use by the general public
United States v. Knotts
Beeper did not constitute a search and therefore there was no need for a warrant required to monitor Knotts movements.
Using a beeper to monitor the movements of a car does not constitute a search
Smith v. Maryland
There is no reasonable expectation of privacy for information that is voluntarily turned over to others.
Pen registers used by telephone companies to record the numbers dialed from a residence unbeknownst to the government is not a search.
"In all probability" the D did not have an expectation of privacy in the numbers dialed because there is some awareness that there is record of this. (Yes subjective expectation, but unreasonable)
Florida v. Jardines
Dog sniffing porch of house to determine whether there is contraband within the house is considered a search under the Fourth Amendment
Illinois v. Caballes
Use of dog to smell for contraband in containers (automobile or luggage) that is lawfully encountered in a public area is not a search
Illinois v. Gates
Totality of the Circumstances Test
Abandoned Aguilar/Spinelli 2 pronged test for totality of the circumstances test. Under this case, a magistrate judge must conduct a "balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip. The factors from Aguilar are still relevant: basis of knowledge, and veracity (no longer treated as separate prongs)
Whren v. United States
Objective, probable cause is determined objectively and an officer's subjective motivations for an investigation do not negate the constitutionality of a search or seizure.
Scalia wrote in the decision that subjective intentions play no role in ordinary, probable cause 4th Amendment analysis.
Whren is one of the most controversial and far reaching 4th Amend decisions because it eliminates the consideration of an officer's pretextual motivation for launching an investigation.
I.e. traffic violations are so common and prevalent that everyone could likely be stopped for a violation, which then gives the officer an opportunity to investigate a mere hunch
Andresen v. Maryland
General warrants allowing police to rifle through an individual's property at their discretion looking for any type of evidence of any crime are forbidden.
Form: A warrant must detail with specificity that which is to be searched and seized.
The search for evidence of any other crime was not sanctioned. Searching for documents to demonstrate the occurrence of complex crimes presents unique privacy concerns, but it is the duty of the governmental officials involved to ensure that these searches are handled with as little damage to legitimate privacy interests as possible.
Groh v. Ramirez
A warrant that does not specifically describe the person or property to be searched or seized or incorporate supporting documents with those descriptions is invalid under the Fourth Amendment.
This Requirement protects individuals from general searches and informs them of the legitimacy/scope of the search.
Π's argument that the search didn't violate 4th amendment even tho warrant was invalid because there was sufficient probable cause and he described orally the property to be seized to the πs's is invalid
Muehler v. Mena
Police officers may lawfully detain the occupant of a home for the duration of a lawful search.
Under Michigan v. Summers police may detain the occupants of a home while they are conducting a lawful search. The government interest in such detentions greatly outweighs the minimal added infringement of privacy
United States v. Bailey
Police can detain people in the immediate vicinity of the premises being searched while executing a search warrant
Warden v. Hayden
Police officers may now seize fruits of a crime, instrumentalities, contraband and any item that has a nexus to criminal activity.
Nexus exists if there is probable cause to believe that the evidence sought will aid in a particular apprehension or conviction.
S. Ct. abolished mere evidence rule.
Practical result of this case was that it enlarged group of people who may be subjected to searches
Payton v. N.Y.
Absent exigent circumstances, without a warrant police may not cross the threshold of a house.
Police cannot enter a house without a warrant to make a routine arrest
Missouri v. McNeely
In drunk driving investigations the natural dissipation of alcohol in the blood stream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. It must be determined case by case looking at the totality of the circumstances
Maryland v. King
When officers make an arrest for a serious offense that is supported by probable cause and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is a legitimate police booking procedure that is reasonable under the Fourth Amendment
Brigham City, Utah v. Stuart
Police may enter a home without a warrant if there is an objectively reasonable basis for believing an occupant is injured or in immediate danger.
The Fourth Amendment does not forbid warrantless entry into a home if there is an objectively reasonable basis for believing an occupant is injured or in immediate danger. There was an objectively reasonable basis for believing that the injured person needed assistance and that there was an ongoing risk of injury to others in the home. In addition, the officer's efforts to announce police presence were reasonable in this situation
Kentucky v. King
The exigent circumstances exception to the Fourth Amendment's warrant requirement applies to an officer created exigency if the exigency does not arise from the officer's unreasonable or unconstitutional conduct.
Under the exigent circumstances doctrine, officers may enter a home without a warrant to deliver emergency aid to an individual, pursue a fleeing suspect, or to prevent the imminent destruction of evidence. A prerequisite to gaining entry into a residence without a warrant under the doctrine is that the officers must have probable cause to believe that dangerous or suspicious activity is currently taking place
Minnesota v. Dickerson
Under Terry v. Ohio, 391 U.S. 1 (1968), a police officer with reasonable suspicion is permitted to "stop and frisk" a suspect. The plain view doctrine allows a police officer to seize contraband inadvertently found during a lawful search.
There is no reasonable expectation of privacy for an item left in the open and visible to police officers from a lawful vantage point. This type of observation is not a search under the Fourth Amendment. Seizure of an object inadvertently found during a lawful search presents no additional intrusion
Chimel v. California
Incident to a lawful arrest, a warrantless search of the area in possession and control of the person under arrest is permissible under the Fourth Amendment
Riley v. California
Under the Fourth Amendment, the government may not conduct a warrantless search of the contents of a cell phone seized incident to an arrest absent exigent circumstances.
There is no safety risk posed to an officer by a cell phone beyond a preliminary search to make sure the phone does not house a blade or other small weapon. Searching the contents of a cell phone is distinguishable from the approved warrantless search of a cigarette pack.
The government may not conduct a warrantless search of cell phone incident to arrest, rather, the government must secure a warrant or demonstrate exigent circumstances
Arizona v. Gant
Police may search a vehicle after a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe that crime related evidence is located in the vehicle.
Considering Chimel and Belton together, we hold that police can search a vehicle after the occupant's recent arrest only when arrestee is unrestrained and within reach of the passenger compartment, and objects within it.
Following Thornton v. United States, 541 U.S. 615 (2004), we also affirm that police, having stopped a vehicle, can search for evidence only when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle."
Police may search a vehicle after a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe that crime related evidence is located in the vehicle
Maryland v. Buie
Incident to an arrest, police may conduct a protective sweep of a premises based on reasonable suspicion that other people who pose a threat are in the building, provided the search is limited to those areas where a person may be hiding.
Like in Terry, the concern about officer safety outweighs the subject's privacy interest and justifies a warrantless search. This holding is consistent with Chimel v. California, 395 U.S. 752 (1969).
Chimel held that the police may search the area in the immediate control of an arrestee where he may access a weapon or destroy evidence. Similarly, a protective sweep is a limited search of potential hiding places. A more extensive search is permissible only when there is reasonable suspicion based on articulable facts
Georgia v. Randolph
The police may not enter a home without a warrant to search for evidence where they obtain consent from an occupant but a cooccupant is present and objects to the search.
When there are two occupants of a dwelling present and one is consenting to a search by the police and the other is objecting to the search, the police may not enter the home and conduct a warrantless search for evidence.
The holding in United States v. Matlock, 415 U.S 164 (1974), that the police may search a home with consent of a cooccupant even when another occupant later objects, is premised on social expectations and commonly held assumptions about people sharing a home. In Matlock, the primary assumptions at issue involved the equal authority of all of the occupants and the assumption of risk when living with others.
Therefore, when one occupant who is present expressly objects to a police search, the consent of another occupant actually provides no additional authority to the police to enter absent a warrant or exigent circumstances
Fernandez v. California
Even if the person is present when the officers arrive, but he is then arrested, the co-habitant may consent during his absence
Camara v. Municipal Court
Special Probable Cause Standard for Administrative Searches: Probable cause exists to issue a warrant to inspect premises for administrative code violations as long as there are reasonable legislative or administrative standards for conducting an area inspection that are satisfied with respect to a particular dwelling.
Administrative searches are significant intrusions upon the privacy and security interests, so such searches are subject to the same probable cause requirement.
"Probable cause" for an area code enforcement inspection exists if reasonable legislative and administrative standards for conducting the area inspection are satisfied with respect to a particular dwelling
New York v. Burger
A business in a closely regulated industry may be searched without a warrant so long as the searches are necessary, there is a substantial government interest, and the authorizing statute serves the functions of a warrant.
Warrantless inspections of businesses operating in heavily regulated industries are permitted under the following three conditions. First, the inspection program must serve a substantial governmental interest. Next, the inspections must be necessary to serve that interest. Finally, the authorizing statute must serve as a substitute for a warrant. This means that the statute must provide notice to business owners of the scope of the inspection scheme and specifically limit the authority of inspectors
City of Los Angeles v. Patel
The warrantless search of hotel records for general inspection purposes does not fall under the administrative search exception to the warrant requirement of the Fourth Amendment.
Even if hotels are determined to be closely regulated, warrantless inspections must: (1) serve a substantial governmental interest, (2) be necessary to further the interest, and (3) be of adequate certainty and regularity.
The warrantless search of hotel records permitted by an ordinance does not fall within the administrative search exception, because there is no opportunity for precompliance review and there is a criminal penalty for noncompliance.
This Court held in Camara v. Municipal Court, 387 U.S. 523 (1967), that business owners cannot be subject to this choice of compliance or criminal charges without a precompliance review. An owner must be afforded the opportunity to have an officer's demand reviewed by a neutral authority before the owner may be penalized for failure to comply. The warrantless inspections are unnecessary, because a subpoena can be obtained and there is no certainty or regularity to the inspections, which are demanded at the whim of the police
United States v. Flores Montano
Reasonable suspicion is not required for the routine search of the gas tank of a vehicle attempting to enter the United States.
First, cars entering at the border are subject to search, and there is certainly less of a privacy interest in the fuel tank than the passenger area. Second, gas tanks can be removed, inspected, and replaced without damaging the car, and the infringement of property rights is outweighed by the government's interests in controlling its borders. In addition, the one to two hour delay associated with a gas tank inspection is not unreasonable.
United States v. Montoya Hernandez
A person entering the country may be subjected to more intrusive searches than routine border searches, if there is reasonable suspicion that drugs are being smuggled in that person's alimentary canal.
People and property entering the country may be searched without probable cause or a warrant. In addition, if there is reasonable suspicion that drugs are being smuggled inside a person's alimentary canal, that person may be subjected to additional detention and search. Reasonable suspicion is a "particularized and objective basis for suspecting the particular person" of the criminal activity. Indeed, the nature of this type of smuggling makes it unlikely that officials would ever have probable cause
Michigan Dept. of State Police v. Sitz
In Brown v. Texas(1979), the Court established a three prong test to determine the constitutionality of this checkpoint.
Considered is the state's interest in preventing drunk driving accidents
Drunk driving is a huge problem in the United States and the states have a strong interest in preventing them.
Considered is the effectiveness of such checkpoints in achieving this goal.
Consider is the level of intrusion on an individual's privacy caused by the checkpoint. The objective intrusion on a motorist is minimal since the length of the average stop was merely 25 seconds. The subjective intrusion is also slight because it is determined based on the fear and surprise that a reasonable, law abiding driver would experience.
During the time the checkpoint was in operation, 1.6 percent of drivers were arrested for drunk driving. The national average is one percent of motorists stopped at checkpoints are arrested for driving drunk. Therefore, while another method may be proven more effective, law enforcement techniques are left to the police and not the courts
City of Indianapolis v. Edmond
A suspicionless roadside checkpoint established for the purpose of deterring general criminal activity is unlawful under the Fourth Amendment
A suspicionless roadside checkpoint established for the purpose of deterring general criminal activity is unlawful under the Fourth Amendment. We proceed under the assumption that stopping a vehicle represents a seizure. We must determine whether such seizure is constitutional under the Fourth Amendment.
In Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990), we ruled that a roadside checkpoint was constitutional because the primary purpose of the program was to ensure highway safety by stopping and arresting motorists who might be impaired by alcohol. In Sitz, there was an obvious connection between the need for highway safety and the means employed to effect such safety. Absent some quantum of individualized suspicion, which would justify a stop, such roadblocks are unconstitutional. Even if the plaintiffs claim that a legitimate secondary purpose of the program is to keep impaired motorists off the road and verify licenses and registration, we cannot give sanction to the program. For it would be easy to institute all manner of illegal searches as long as license verifications were included, just to make the search "legal."
New Jersey v. TLO
Only RS needed for search by school official
Safford Unified School District #1 v. Redding
A school related strip search of an adolescent, conducted without probable cause, is unlawful under the Fourth Amendment.
The search must be "reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." Reasonable suspicion is the standard for school related searches.
Applying the standard articulated in T.L.C., we believe that the intimate search was not "reasonably related to the objectives of the search." an invasive search for non dangerous drugs in Redding's intimate places is not a reasonable search under the Fourth Amendment
Bd. of Education v. Earls
Students who participate in extracurricular activities may be subjected to drug testing without a warrant or individualized suspicion.
Public schools may require students participating in extracurricular activities to submit to drug testing without a warrant or individualized suspicion. The special needs of public schools to manage and discipline students justify relaxing the requirements of the Fourth Amendment. The amendment does not always require individualized suspicion or use of the least intrusive means of accomplishing a governmental goal. Reasonableness must be assessed by balancing students' privacy rights against the achievement of the school's legitimate goals
Ferguson v. City of Charleston
A state hospital may not drug test pregnant women without a warrant or informed consent for law enforcement purposes under the Fourth Amendment.
The privacy expectation of a patient that medical test results will be kept confidential is a compelling one. In previous cases permitting suspicionless drug testing, the employer or school doing the testing did not share the results with police or other third parties, and the consequence of a positive test was loss of a promotion or suspension from extracurricular activities. Further, the government's special need in those cases was something other than law enforcement
Florence v. Board of Chosen Freeholders
A strip search in jail for those who commit minor offenses does not require reasonable suspicion.
Given the legitimate penological interests of correctional officers in conducting strip searches, this Court gives deference to the judgment of correctional officials. In order to overcome the difference granted to correctional officials, there must be substantial evidence that demonstrates their policies are unnecessary or unjustified as a solution to jail security
United States v. Knights
A probationer's home may be searched if there is reasonable suspicion of criminal activity. The Fourth Amendment requires balancing an individual's privacy interests against legitimate governmental goals. The government interests at issue here greatly outweigh a probationer's reduced privacy rights. Probation and other criminal sanctions reduce rights and freedoms. The purposes of probation are to rehabilitate the offender and protect the public
rehabilitation is not the only goal. In this case, the fact that Knights agreed to the search condition is certainly an important factor in determining that the search was reasonable, but it is not dispositive
Samson v. California
The suspicionless search of a parolee does not violate the Fourth Amendment.
The state's interest in protecting the public and rehabilitating the offender are substantial. Under California law, a parolee must consent to search or seizure with or without cause as a condition of release
United States v. Mendenhall
Added objective component to seizure definition: A person is seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed they were not free to leave
Atwater v. City of Lago Vista
Fourth Amendment does not forbid police from making custodial arrests, rather than issuing citations, if they have probable cause to believe that the person has committed an offense, even an exceedingly minor one
Virginia v. Moore
A police search based on probable cause does not violate the Fourth Amendment even when the search is conducted subsequent to an arrest that is not authorized by state law.
Officers are allowed to arrest a suspect and perform a search when they have probable cause to believe a person has committed a crime in their presence in order to safeguard evidence and ensure their safety even when the state law does not sanction the arrest
Terry v. Ohio
A person is seized when the officer by means of (a) physical force or (b) show of authority terminates or restrains an individual's freedom of movement through means intentionally applied
A police officer is allowed to stop people when they have reasonable suspicion that criminal activity is taking place, and can do a limited search for weapons if he reasonably believes that they are armed
Navarette v. California
Fourth Amendment allows brief investigative stops like traffic stops when law enforcement has a particularized and objective basis for suspecting the particular person stopped of criminal activity. Reasonable suspicion necessary to justify stop is dependent upon both the content of information possessed by police and its degree of reliability
Hiibel v. Sixth Judicial Dist.
4th A permits police to ask for individual's identity during a lawful "Terry" stop.
Stop & Identify Statutes do not violate the Fourth Amendment but an officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop, does not alter the nature of the stop or the duration. But request for ID is trivial because it is reasonable in almost every criminal investigation
United States v. Arvizu
An officer with reasonable suspicion of criminal activity based upon the totality of the circumstances may stop a car.
Although there is no specific test for reasonable suspicion, officers must use their training and experience to assess the totality of the circumstances to determine whether there are objective grounds to suspect a particular person of crime
Florida v. J.L.
Reasonable Suspicion can be based on hearsay and since it is a less demanding standard than probable cause it may be satisfied by a lesser quantum of evidence but also on the basis of information that is less reliable than that required to show probable cause. Still look at informants knowledge and veracity.
When police receive a tip from a known informant, officers can evaluate the informant's credibility and hold the informant accountable for false allegations. Police have no means of similarly assessing the credibility of an anonymous tip and additional corroboration is needed to ensure that the tip has "sufficient indicia of reliability" to create reasonable suspicion justifying a stop
Illinois v. Wardlow
Reasonable suspicion can be present when an individual takes flight from police in a high crime area. A police officer may stop and frisk a citizen on the street when he has reasonable suspicion that the person is armed and may pose a threat to the officer.
The flight of a suspect in a high crime area can amount to reasonable suspicion and justify a lawful stop and frisk by the police.
In Florida v. Royer, 460 U.S. 491 (1983), the Court held that a person who is stopped by an officer without reasonable suspicion or probable cause may ignore the officer and continue on his way. However, running from the police is not an exercise of this right but instead amounts to evasive and suspicious behavior that properly leads law enforcement officers to reasonably believe unlawful activity is occurring.
Hudson v. Michigan
The exclusionary rule does not apply to violations of the knock and announce rule. If police fail to properly follow the knock and announce rule the evidence they find may still be admitted at trial.
The exclusionary rule was later determined to not be constitutionally mandated but rather a safeguard.
The exclusionary rule is not a proper remedy for a knock and announce violation because there is a greater interest in safety and preventing injury and harm to property that can be jeopardized if police have to wait a longer time before entering a suspect's home
Weeks v. United States
In federal trials the Fourth Amendment bars the use of evidence unconstitutionally seized by federal law enforcement
Mapp v. Ohio
The exclusionary rule applies in state criminal trials like it does in federal trials (Weeks) and evidence that is obtained illegally by the state is inadmissible in state court.
The exclusionary rule is no longer considered an essential component of the Fourth Amendment but it is a remedy devised by the justices to deter unconstitutional governmental misconduct.
The reason for the exclusionary rule is to deter unlawful search and seizure by police officers and helps ensure judicial integrity.
Herring v. United States
Evidence that is recovered based on police mistake (that is not deliberate or reckless) is not made inadmissible by the exclusionary rule because there is no unlawful police conduct to be deterred.
The exclusionary rule is not an individual right and applies only where it results in appreciable deterrence and the argument that the exclusionary rule is a necessary consequence of a Fourth amendment violation has been repeatedly rejected.
Heien v. North Carolina
Search and seizure is reasonable when they officer has made a reasonable factual or legal mistake: those mistakes must also be objectively reasonable.
An officer can't gain benefits of 4th a reasonableness through sloppy or incomplete knowledge of the law.
Rakas v. Ill.
Standing is determined by whether or not the defendant had a legitimate expectation of privacy in the area searched by police.
Only people with a legitimate expectation of privacy in the place searched or thing seized may challenge a search or seizure as unconstitutional.
A person "legitimately on the premises" may only claim a Fourth Amendment violation if he has a legitimate expectation of privacy in the place searched or thing seized. Instead of deciding cases such as this in terms of standing, it is preferable to decide them under Fourth Amendment doctrine. The fact that a search is directed at obtaining incriminating evidence against an individual does not alone give that person standing to challenge the constitutionality of a search or seizure and invoke the exclusionary rule.
Minnesota v. Carter
Household guests, present for commercial purposes, do NOT have a reasonable expectation of privacy in the house.
Brendlin v. California
Passengers in a car are seized during a traffic stop and can challenge the constitutionality of the stop and the effect of finding a seizure is that the passengers can invoke the exclusionary rule by arguing the police acted illegally.
Murray v. U.S.
Even if police obtain evidence in violation of the Fourth Amendment it is still admissible if it is also obtained through a source independent of the police misconduct and untainted by the illegal actions of the police.
The independent source doctrine applies and evidence can be admitted at trial when it was initially obtained illegally but later was obtained lawfully and independently.
Nix v. Williams
If police can demonstrate that they inevitably would have discovered the evidence without a Fourth Amendment violation, the exclusionary rule does not apply and the evidence is admissible.
The prosecution must show discovery would have inevitably occurred by a preponderance of the evidence. Requiring the prosecution to prove an absence of bad faith as part of the exception would do little to deter police misconduct and would be overly punitive.
U.S. v. Leon
Evidence obtained in reasonable, good faith reliance on a facially valid search warrant is not subject to the Fourth Amendment's exclusionary rule, even if the warrant is later deemed defective.
Objective test: the inquiry into "good faith" is limited to the objectively ascertainable question whether a reasonably well trained officer would have known the search was illegal despite the magistrates authorization.
Evidence may be introduced at trial by the prosecutor in their case in chief if a reasonably well trained officer would have believed the warrant was valid.
Miranda v. Arizona
An individual in police custody at any time must be informed of his constitutional rights:
To remain silent (manner: clear and unequivocal terms)
To consult with attorney and have them present for interrogation (manner: clearly)
Must be told that anything they say can and will be used against him in court, and
If they can't afford an attorney one will be provided
A suspect may waive these rights but it must be voluntarily, knowingly and intelligently (Demonstrated by pros)
If a suspect invokes the right to counsel police must stop questioning until attorney is present.
If a suspect invokes the right to remain silent police must cease questioning.
Dickerson v. United States
Miranda is a constitutional decision that congressional acts cannot override.
Prior to Miranda, to satisfy the 5th A. and the Due Process Clause of the 14th A., a confession had to be voluntary: determined by looking at the totality of the circumstances, which proved unworkable in light of modern interrogation tactics that are themselves inherently coercive. Therefore, Miranda established four warnings to ensure that a suspect's constitutional rights are protected.
J.D.B. v. North Carolina
Whether a suspect is "in custody" is an objective inquiry under Miranda and the age of a child subjected to police questioning is relevant to whether that child is in custody, so long as the age was known to the officer or would be objectively apparent to a reasonable officer.
Rhode Island v. Innis
"Interrogation" applies not only to express questioning but also to the functional equivalent which is "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 subject (other than those normally attendant to arrest and custody).
Focus is on the perception of the suspect not the intent of police (primarily objective test)
Unless police officers reasonably should know that their comments will elicit an incriminating response from a suspect, comments made between police officers in the presence of a suspect do not constitute interrogation for the purpose of Miranda.
Under Miranda, "interrogation" is not limited to situations where the police actually question a suspect.
In this case, there is no indication that the two officers knew or should have known that Innis was particularly susceptible to an appeal to his conscience. Furthermore, there is no indication that Innis was disoriented or upset at the time of his arrest.
Oregon v. Elstad
A suspect can make a statement that is admissible in court after being read his Miranda warnings, even when he previously made an unwarned statement, because the initial failure to read a suspect his Miranda warnings does not taint later voluntary statements.
Therefore, while a subsequent statement, made after Miranda has been given, will be inadmissible if it is coerced, there is no such presumption that arises due to the initial Miranda violation.
However, if the unwarned statement was in fact coerced, the voluntariness of any subsequent statements would be suspect.
Missouri v. Seibert
A second confession after a Miranda waiver is admissible only if there was a long enough break following the initial confession without a Miranda waiver to give a reasonable suspect the belief that he or she had a right not to speak to officers.
Confirmatory (midstream warnings) Interviews
Questioning first and warn later does not convey rights (Seibert)
However, possibility of statements being admitted in situation of a good faith mistake by officer
U.S. v. Patane
Physical evidence found on the bases of a suspect's voluntary but unwarned statements is admissible at trial. Miranda warnings are required to protect a suspect's rights under the Self-Incrimination Clause, but admission of physical evidence found on the basis of a suspect's voluntary but unwarned statement does not violate the clause.
North Carolina v. Butler
An explicit waiver is not necessary in all cases to support a finding that the defendant waived the right to remain silent or right to counsel guaranteed by Miranda.
Usually, requires gov't to prove suspect validly waived rights in some cases waiver can be inferred from the actions and words of the person interrogated AFTER the Miranda warnings are given.
During a custodial interrogation, a suspect need not specifically waive his right to counsel but may do so implicitly through his actions and words. Whether or not a suspect has effectively waived his right to counsel is not an issue of form, but about asking whether the suspect knowingly and voluntarily waived his rights under Miranda. A court must look at the particular facts and circumstances surrounding a case and the suspect's waiver to determine if it was knowingly and voluntarily made.
Berghuis v. Thompkins
Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of right to remain silent.
Waived or Invoked Rights: If a suspect receives adequate Miranda warnings, understands them, and has the opportunity to invoke the rights, the interrogation can continue until the suspect invokes one of the rights, even if the suspect has not yet waive the rights.
Thompkins implicitly waived right to remain silent because he fully understood them and then embarked on a course of conduct that indicated waiver. Thompkins argues that his statements are inadmissible because he invoked his right to remain silent by staying silent for a long period of time. This argument fails because a defendant must invoke his Miranda rights unambiguously.
Waiver need not be express, an implicit waiver is enough.
Michigan v. Mosley
REINITIATION. Invocation may be scrupulously honored even if conversation reinitiated.
Silence is offense specific.
Cease questioning after 1st invocation
Different location & crime
Edwards v. Arizona
Police must cease an interrogation after a suspect has asserted a right to counsel, until such time as counsel is present --> unless the accused initiated further communication, exchanges, or there has been a break in custody of at least 14 days (Maryland v. Shatzer)
NOT OFFENSE SPECIFIC. Cannot further interrogate until counsel is made available to suspect who invokes, unless:
Lawyer is there, or
No custody (thus no Miranda)
Davis v. United States
Unambiguous and unequivocal statement to invoke the right to counsel.
Do not need to stop questioning if an ambiguous or equivocal reference to an attorney
Harris v. N.Y.
A prosecutor may use a statement obtained in violation of Miranda to impeach a defendant who testifies at trial inconsistently with a custodial statement.
Miranda prohibits the prosecution from using unwarned statements to prove its case in chief. Court held that evidence that had been barred from use in the government's case in chief by the exclusionary rule could be used to impeach the witness by an inconsistent statement.
N.Y. v. Quarles
The police may question a suspect without first reading a suspect his Miranda warnings, and the suspect's statements may be admitted at trial, where the exigency of a situation requires that public safety take precedence over a suspect's Fifth Amendment privilege.
Massiah v. U.S.
When a suspect has invoked his right to counsel, his Fifth and Sixth Amendment rights are violated when the police deliberately elicit incriminating statements from him after he has been indicted and in the absence of his retained counsel.
Texas v. Cobb /Blockburger test
Rule: 6th Amendment invocation is offense specific, cannot question for the "same offense"
Can question about crimes in which defendant has not been charged so long as they are no the "same offense" i.e. each must have an incriminating factor independent of the other
Blockburger test - overlapping elements
Ex: ABC & ABCD (bad)
Ex: ABCD & ABCE (ok)
Absolute right to have counsel present at any pretrial confrontation procedure (including lineups and showups) (Wade)
Subsequent Court ID
To cure tainted pre trial identification, must show:
Clear and convincing evidence that ID was independent of tainted lineup
Kirby v. Illinois
NO right at confrontation because without formal proceedings commencing (i.e. indictment), 6th Amendment has not attached.
Manson v. Brathwaite
Gets at overly suggestive identifications that give rise to questioning reliability
Procedure impermissibly suggestive
Likelihood of irreparable misidentification (how much can you rely?)
Totality of Circumstances: to establish reliability and nevertheless admit suggestive identification
Factors: (Biggers) S.A.A.C.T.
Opportunity to see suspect at time of crime
Degree of attention
Accuracy of prior description (does it match)
Level of certainty
Time between crime and identification
Standing requires that a person has a REP in the invaded place/premises
Rakas v. Illinois
Fourth Amendment draws a firm line at entrance to home
Payton v. NY
Ct ruled that info actually obtained by illegal means is nevertheless admissible if the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by unlawful means.
Nix v. Williams
When officers make an arrest for a serious offense that is supported by probable cause and bring the suspect to the station to be detained, taking and analyzing a cheek swab of the arrestee's DNA is a legitimate and reasonable police-booking procedure under the Fourth Amendment
Maryland v. King
A witness's silence in response to a law enforcement official's question is not sufficient to invoke the witness's right against self-incrimination, even when the official believes the answer may incriminate the witness.
Salinas v. Texas
Court declines to extend Edwards to cases where an accused requests an attorney at his first interrogation and is re-interrogated after a break in custody without counsel.
14 days is an adequate period of time for the accused to re-enter his normal life, seek advice, and to escape the coercive effects of his first interrogation.
Maryland v. Shatzer
Police may seek a knowing and voluntary waiver of a defendant's right to have counsel present during interactions with the police, even after the defendant's Sixth Amendment rights have attached and become operative.
Montejo v. Louisiana
Under the Sixth Amendment, police may conduct a post-indictment PHOTO lineup outside the presence of counsel.
United States v. Ash
A suggestive identification procedure does not violate due process if the police are not involved in creating the suggestive circumstances;
Also, public defender can cure this on cross
New Hampshire v. Perry
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