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Articles 61 - 89 of 89
Full-Text Articles in Fourth Amendment
The Applicability Of Miranda Warnings To Non-Felony Offenses: Is The Proper Standard "Custodial Interrogation" Or "Severity Of The Offense"?, Kenneth W. Gaul
The Applicability Of Miranda Warnings To Non-Felony Offenses: Is The Proper Standard "Custodial Interrogation" Or "Severity Of The Offense"?, Kenneth W. Gaul
University of Michigan Journal of Law Reform
This Note argues that the proper standard for determining the necessity of the Miranda warnings for any offense is the existence of custodial interrogation. When interrogation for non-felony offenses takes place in a custodial atmosphere, Miranda warnings should be required, as they are for more serious offenses. Part I summarizes the two basic approaches taken by courts that have confronted the question of the applicability of the Miranda warnings to non-felony offenses. Part Ill argues that neither the rationale for the Miranda doctrine nor the roots of the fifth amendment support a distinction based on the severity of the offense …
The Fourth Amendment And The Control Of Police Discretion, William J. Mertens
The Fourth Amendment And The Control Of Police Discretion, William J. Mertens
University of Michigan Journal of Law Reform
The fourth amendment protects the security of people's "persons, houses, papers, and effects" in two distinct (if overlapping) ways. First, it requires a sufficiently weighty public interest before the government's agents are allowed to search or seize. Thus, for example, probable cause is required for arrest. Whatever uncertainty there may be in the phrase "probable cause" (and, for that matter, however indefinite the idea of "arrest" may have become), in this context, at least, the probable cause standard requires the demonstration of objective facts that point with some probability to the guilt for some particular offense of the person arrested. …
Gates, 'Probable Cause', 'Good Faith', And Beyond, Yale Kamisar
Gates, 'Probable Cause', 'Good Faith', And Beyond, Yale Kamisar
Articles
Illinois v. Gates1 was the most eagerly awaited constitutional-criminal procedure case of the 1982 Term. I think it fair to say, however, that it was awaited a good deal more eagerly by law enforcement officials and the Americans for Effective Law Enforcement than by defense lawyers and the American Civil Liberties Union. As it turned out, of course, the Gates Court, to the disappointment of many, did not reach the question whether the exclusionary rule in search and seizure cases should be modified so as not to require the exclusion of evidence obtained in violation of the fourth amendment when …
Forgotten Points In The "Exclusionary Rule" Debate, James Boyd White
Forgotten Points In The "Exclusionary Rule" Debate, James Boyd White
Michigan Law Review
Most contemporary discussions of the "exclusionary rule" assume or assert that this "rule" is not part of the fourth amendment, nor required by its terms, but is rather a judicial "remedy" that was fashioned to protect those rights (against unreasonable search and seizure) that actually are granted by the fourth amendment. The protection is said to work by "deterring" official violations; this is, however, an odd use of the word, for the rule does not punish violations but merely deprives the government of some of the benefits that might ensue from them, namely the use in the criminal case of …
The Fourth Amendment As A Device For Protecting The Innocent, Arnold H. Loewy
The Fourth Amendment As A Device For Protecting The Innocent, Arnold H. Loewy
Michigan Law Review
Part I of this Article establishes that the government has a right to search for and seize evidence of crime. Part II develops the corollary proposition that the fourth amendment does not protect the right to secrete evidence of crime. Part III explores the impact of the reasonable expectation of privacy concept on the innocent. Part IV evaluates consent searches and their effect on the innocent. Finally, Part V considers the exclusionary rule as a device for protecting the innocent.
Does (Did) (Should) The Exclusionary Rule Rest On A 'Principled Basis' Rather Than An 'Empirical Proposition'?, Yale Kamisar
Does (Did) (Should) The Exclusionary Rule Rest On A 'Principled Basis' Rather Than An 'Empirical Proposition'?, Yale Kamisar
Articles
[U]ntil the [exclusionary rule] rests on a principled basis rather than an empirical proposition, [the rule] will remain in a state of unstable equilibrium. Mapp v. Ohio, which overruled the then twelve-year-old Wolf case and imposed the fourth amendment exclusionary rule (the Weeks doctrine) on the states as a matter of fourteenth amendment due process, seemed to mark the end of an era. Concurring in Mapp, Justice Douglas recalled that Wolf had evoked "a storm of constitutional controversy which only today finds its end."' But in the two decades since Justice Douglas made this observation, the storm of controversy has …
Warrantless Searches And Seizures In Virginia, Ronald J. Bacigal
Warrantless Searches And Seizures In Virginia, Ronald J. Bacigal
Law Faculty Publications
There is a well-recognized lack of consistency and clarity in fourth amendment decisions. At times, each search and seizure case seen is unique and the decisions appear to rest on factual determinations rather than on legal principles. Nonetheless, it is desirable to have some understanding of the basic principles of the fourth amendment, and the way in which these principles affect individual cases.
The Warren Court (Was It Really So Defense-Minded?), The Burger Court (Is It Really So Prosecution-Oriented?), And Police Investigatory Practices, Yale Kamisar
Book Chapters
In one sense the Warren Court's "revolution" in American criminal procedure may be said to. have been launched by the 1956 case of Griffin v. Illinois (establishing an indigent criminal defendant's right to a free transcript on appeal, at least under certain circumstances) and to have been significantly advanced by two 1963 cases: Gideon v. Wainwright (entitling an indigent defendant to free counsel, at least in serious criminal cases) and Douglas v. California (requiring a state to provide an indigent with counsel on his first appeal from a criminal conviction). But these were not the cases that plunged the Warren …
Criminal Procedure, The Burger Court, And The Legacy Of The Warren Court, Jerold H. Israel
Criminal Procedure, The Burger Court, And The Legacy Of The Warren Court, Jerold H. Israel
Book Chapters
Richard Nixon's criticism of the Warren Court during the 1968 presidential campaign centered largely on the Court's handling of cases involving criminal rights. According to candidate Nixon, the Court had gone much too far. It had twisted the Constitution to serve its own purposes, created a maze of legal technicalities that worked only to frustrate legitimate law enforcement efforts, and so weakened "the peace forces as against the criminal forces in this country" as to be largely responsible for the sharp rise in crime that had occurred in the sixties. What had to be done, continued Nixon, was to appoint …
Stone V. Powell And The Effective Assistance Of Counsel, Michigan Law Review
Stone V. Powell And The Effective Assistance Of Counsel, Michigan Law Review
Michigan Law Review
Part I briefly identifies the considerations underlying the Stone Court's decision to limit habeas corpus review of fourth amendment claims. Part II then argues against applying Stone to the sixth amendment claim. After establishing the analytic difference between the two constitutional claims and examining Stone's "opportunity for full and fair litigation" standard, it concludes that Stone is fully consistent with free review of habeas corpus petitions alleging incompetent handling of fourth amendment questions. Finally, responding to a popular interpretation of Stone, Part II demonstrates that the possibility that ineffectiveness claims may not further the determination of a defendant's …
Search And Seizure Of America: The Case For Keeping The Exclusionary Rule, Yale Kamisar
Search And Seizure Of America: The Case For Keeping The Exclusionary Rule, Yale Kamisar
Articles
Twenty years ago, concurring in Mapp v. Ohio (1961), Justice William 0. Douglas looked back on Wolf v. Colorado (1949) (which had held that the Fourth Amendment's substantive protection against "unreasonable search and seizure" was binding on the states through the due process clause, but that the Fourth Amendment exclusionary rule was not) and recalled that the Wolf case had evoked "a storm of controversy which only today finds its end." But, of course, in the twenty years since Justice Douglas made that observation the storm of controversy has only intensified, and it has engulfed the exclusionary rule in federal …
Assaults On The Exclusionary Rule: Good Faith Limitations And Damage Remedies, Pierre J. Schlag
Assaults On The Exclusionary Rule: Good Faith Limitations And Damage Remedies, Pierre J. Schlag
Publications
No abstract provided.
The Jury As A Source Of Reasonable Search And Seizure Law, Ronald J. Bacigal
The Jury As A Source Of Reasonable Search And Seizure Law, Ronald J. Bacigal
Law Faculty Publications
The definition of a reasonable search has bedeviled the United States Supreme Court for some ninety years. Formal logic or legal reasoning assists the Court in tracing premise to conclusion, but does not alone suggest the initial premise. The Court's difficulty in fourth amendment cases, in general, lies in identifying the premise-the fundamental value which is embodied in this constitutional guarantee. The Court has recognized that this fundamental value, whatever it is, has an origin outside the language of the amendment, and the Court has considered sources such as history, popular consensus, natural law, and utilitarian balancing to find this …
Search And Seizure: A Treatise On The Fourth Amendment, William H. Erickson
Search And Seizure: A Treatise On The Fourth Amendment, William H. Erickson
Michigan Law Review
A Review of Search and Seizure: A Treatise on the Fourth Amendment by Wayne R. LaFave
Fourth Amendment Standing And Expectations Of Privacy: Rakas V. Illinois And New Directions For Some Old Concepts, Richard A. Williamson
Fourth Amendment Standing And Expectations Of Privacy: Rakas V. Illinois And New Directions For Some Old Concepts, Richard A. Williamson
Faculty Publications
No abstract provided.
Rationalizing Administrative Searches, Michigan Law Review
Rationalizing Administrative Searches, Michigan Law Review
Michigan Law Review
At the outset, this Note examines the major decisions concerning administrative searches. Specifically, it traces the development of a warrant requirement and of the corresponding lower standard of probable cause announced in the Camara and See decisions. Subsequent modifications of that seemingly absolute rule are then analyzed. To develop a framework for evaluating administrative search cases, Section II groups those principal Supreme Court cases, along with pertinent lower court opinions, into three tiers of fourth amendment protection: administrative searches that require a warrant based on a traditional criminal standard of probable cause; administrative searches that require a warrant based on …
Exclusionary Rule: Reasonable Remarks On Unreasonable Search And Seizure, Yale Kamisar
Exclusionary Rule: Reasonable Remarks On Unreasonable Search And Seizure, Yale Kamisar
Articles
Can we live with the so-called exclusionary rule, which bars the use of illegally gained evidence in criminal trials? Can the Fourth Amendment live without it? A growing number of lawyers and judges, including Chief Justice Warren Burger, have called for abandonment of the rule, usually on the ground that it has not prevented illegal searches and seizures and on the ground that the rule has contributed significantly to the increase in crime. No one has convincingly demonstrated a causal link between the high rate of crime in America and the exclusionary rule, and I do not believe that any …
The Exclusionary Rule In Historical Perspective: The Struggle To Make The Fourth Amendment More Than 'An Empty Blessing', Yale Kamisar
The Exclusionary Rule In Historical Perspective: The Struggle To Make The Fourth Amendment More Than 'An Empty Blessing', Yale Kamisar
Articles
In the 65 years since the Supreme Court adopted the exclusionary rule, few critics have attacked it with as much vigor and on as many fronts as did Judge Malcolm Wilkey in his recent Judicature article, "The exclusionary rule: why suppress valid evidence?" (November 1978).
A Defense Of The Exclusionary Rule, Yale Kamisar
A Defense Of The Exclusionary Rule, Yale Kamisar
Articles
The exclusionary rule is being flayed with increasing vigor by a number of unrelated sources and with a variety of arguments. Some critics find it unworkable and resort to empirically based arguments. Others see it as the product of a belated and unwarranted judicial interpretation. Still others, uncertain whether the rule works, are confident that in some fashion law enforcement's hands are tied. Professor Yale Kamisar, long a defender of the exclusionary rule, reviews the current attacks on the rule and offers a vigorous rebuttal. He finds it difficult to accept that there is a line for acceptable police conduct …
Is The Exclusionary Rule An 'Illogical' Or 'Unnatural' Interpretation Of The Fourth Amendment?, Yale Kamisar
Is The Exclusionary Rule An 'Illogical' Or 'Unnatural' Interpretation Of The Fourth Amendment?, Yale Kamisar
Articles
More than 50 years have passed since the Supreme Court decided the Weeks case, barring the use in federal prosecutions of evidence obtained in violation of the Fourth Amendment, and the Silverthorne case, invoking what has come to be known as the "fruit of the poisonous tree" doctrine. The justices who decided those cases would, I think, be quite surprised to learn that some day the value of the exclusionary rule would be measured by-and the very life of the rule might depend on-an empirical evaluation of its efficacy in deterring police misconduct. These justices were engaged in a less …
The Supreme Court, Warrantless Searches, And Exigent Circumstances, Richard A. Williamson
The Supreme Court, Warrantless Searches, And Exigent Circumstances, Richard A. Williamson
Faculty Publications
No abstract provided.
Reconsideration Of The Katz Expectation Of Privacy Test, Michigan Law Review
Reconsideration Of The Katz Expectation Of Privacy Test, Michigan Law Review
Michigan Law Review
This Note, by modifying certain aspects of the reasonable expectation of privacy test, offers a theory that attempts to identify the minimum content of the fourth amendment. In the first section, the Note examines the reasonable expectation of privacy test and considers whether it has been or can be applied in a manner that fails to protect the right to have certain minimum expectations of privacy. It analyzes both the "actual" and the "reasonable" expectation requirements, identifies weaknesses inherent in the current application of these requirements, and suggests certain ways in which they might be refined. In the second section, …
Criminal Procedure, The Burger Court, And The Legacy Of The Warren Court, Jerold H. Israel
Criminal Procedure, The Burger Court, And The Legacy Of The Warren Court, Jerold H. Israel
Articles
I start in Section I of this Article with an examination of the first major theme of the criminal procedure decisions of the Warren Court, the selective incorporation of Bill of Rights' guarantees into the due process clause of the fourteenth amendment. My conclusion is that the selective incorporation principle, which provided the doctrinal basis for many of the "liberal" decisions of the Warren Court, remains firmly established today under the Burger Court. Section II of the Article then analyzes the theme of equality and the role it played in Warren Court decisions in the criminal procedure area. It is …
Mondale On Mapp, Yale Kamisar
Mondale On Mapp, Yale Kamisar
Articles
Any judicial reversal of the Mapp rule threatens to have just the opposite effect. Law enforcement officials are likely to treat a decision that illegally obtained evidence may be admitted into state criminal trials as though that were a practical suspension of the constitutional rules as to lawful arrest, search, and seizure. They are likely to feel that once again "the judiciary is okaying it." With the smell of revelations of FBI "black-bag jobs" and intelligence agency abuses still in the air, is this how we want the Court to contribute to the atmosphere of police practices as we enter …
Searches Without Warrants, Jerold H. Israel
Searches Without Warrants, Jerold H. Israel
Book Chapters
My primary area of concentration today is the search made without a warrant. Studies indicate that 95 percent or more of all searches are without warrants. It is quite understandable, then, that most of the search-and-seizure litigation concerns the validity of searches without warrants.
The Warren Court And Criminal Procedure, A. Kenneth Pye
The Warren Court And Criminal Procedure, A. Kenneth Pye
Michigan Law Review
On October 5, 1953, Earl Warren became Chief Justice of the United States. During the fifteen years of his tenure as Chief Justice, fundamental changes in criminal procedure have resulted· from decisions of what is popularly called "the Warren Court." There may be a legitimate difference of opinion whether these changes constitute a "criminal law revolution" or merely an orderly evolution toward the application of civilized standards to the trial of persons accused of crime. Whatever the characterization, however, there can be little doubt that the developments of the past fifteen years have unalterably changed the course of .the administration …
Custodial Police Interrogation In Our Nation's Capital: The Attempt To Implement Miranda, Richard J. Medalie, Leonard Zeitz, Paul Alexander
Custodial Police Interrogation In Our Nation's Capital: The Attempt To Implement Miranda, Richard J. Medalie, Leonard Zeitz, Paul Alexander
Michigan Law Review
In his attempt to define the meaning of democracy, Carl Becker, looking back to Plato's view of society, observed that "[a]ll human institutions, we are told, have their ideal forms laid away in heaven, and we do not need to be told that the actual institutions conform but indifferently to these ideal counterparts." Becker's observation may well set the perspective from which to view what occurred when the attempt was made in the District of Columbia to implement the Supreme Court's decision in Miranda v. Arizona.
Recent Developments In The Law Of Search And Seizure, Jerold H. Israel
Recent Developments In The Law Of Search And Seizure, Jerold H. Israel
Book Chapters
This article is designed to provide a survey of recent decisions dealing with several important issues in the area of search and seizure. It is intended primarily as a basic collection of sources. I have, therefore, sought to keep my own commentary at a minimum and the citations to relevant cases at a maximum. Wherever space permits, I have let the courts speak for themselves. In most instances, however, it has been necessary to provide fairly general descriptions of the cases.
Search By Consent, Jerold H. Israel
Search By Consent, Jerold H. Israel
Book Chapters
My topics this morning are eavesdropping, search by consent and entrance gained by fraud and deceit. You should be forewarned that these are areas in which the law has been "on the move" for the past few years. Changes have occurred and still more will take place in the future. I will attempt to anticipate some of those developments, but, obviously, the only safe course is keeping up-to-date through continuing education. In covering my assigned topics, I hope to paint with a rather broad brush. It has always been my feeling that the pohce officer cannot be expected to learn …