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You can’t tell a book by its title

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References

  1. Myron Moskovitz,Cases and Problems in Criminal Procedure: The Police (1995); Myron Moskovitz,Cases and Problems in Criminal Procedure: The Courtroom (1995); Myron Moskovitz,Cases and Problems in Criminal Law (3d ed. 1995).

  2. H. Richard Uviller,Virtual Justice at xvi (1996).

  3. 437 U.S. 385 (1978). When Uviller says "no footnotes," he means it — not even for the cases he discusses.

  4. 2 Wayne LaFave,Search and Seizure § 4.6(a) (1986) ("A greater degree of ambiguity will be tolerated when the police have done the best that could be expected under the circumstances, by acquiring all the descriptive facts which reasonable investigation of this type of crime could be expected to uncover and by ensuring that all of those facts were included in the warrant.").

  5. Uviller,supra note 2, at 44–45.

  6. 391 U.S. 543 (1968).

  7. Uviller,supra note 2, at 73, makes some more puzzling statements about consent, apparently still relying onBumper. He claims that a suspect’s "Be my guest" in response to a request for consentmight be found to be coerced because the Court has held "that a person’s acquiescence to even the most polite official request is presumptively coerced simply by the popular apprehension that refusing cops is likely to bring unpleasant consequences — a charge of ‘obstructing justice’ or worse." I know of no Supreme Court case supporting this proposition — certainly notBumper. Indeed, the Court has tended to find consent where it is doubtful that the suspect even knew the implications of what he was doing.E.g., Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Florida v. Jimeno, 500 U.S. 248 (1991).

  8. Kirby v. Illinois, 406 U.S. 682 (1972);cf. Wade v. United States, 388 U.S. 218 (1967).

  9. Uviller,supra note 2, at 66.

  10. Id. at 67–68.

  11. Indeed, the Court seems to have expressly rejected this rationale. United States v. Leon, 468 U.S. 897 (1984).

  12. Uviller,supra note 2, at 69.

  13. 468 U.S. 897 (1984).

  14. 367 U.S. 643 (1961).

  15. The "free-to-go" test of United States v. Mendenhall, 446 U.S. 544 (1980), and its progeny has to go.

  16. Such as "thermal imaging devices," which measure the amount of heat escaping from a building and can indicate higher than normal energy consumption (as in indoor cultivation of marijuana). Some recent decisions hold that use of such devices intrudes on the occupant’s "justifiable expectation of privacy" and therefore constitutes a "search" under the fourth amendment.E.g., United States v. Cusumano, 67 F.3d 1497 (10th Cir. 1995).But see, e.g., United States v. Ford, 34 F.3d 992 (11th Cir. 1994).

  17. Uviller,supra note 2, at 94.

  18. Id. at 96.

  19. Id. at 98.

  20. United States v. Karo, 468 U.S. 705 (1984).

  21. Uviller,supra note 2, at 105.

  22. New York v. Burger, 482 U.S. 691 (1987); Uviller,supra note 2, at 105.

  23. Compare, e.g., Vale v. Louisiana, 399 U.S. 30 (1970),with California v. Acevedo, 500 U.S. 565 (1991).

  24. Camara v. Municipal Court, 387 U.S. 523 (1967); Uviller,supra note 2, at 105.

  25. Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990); Uviller,supra note 2, at 106–07.

  26. At least one court replaced the "average person" test with "whether that conduct [of the police] falls below an acceptable standard for the fair and honorable administration of justice." Pascu v. State, 577 P.2d 1064 (Alaska 1978). Though an accurate statement of the policy underlying entrapment, this language does not offer much help in predicting how a court will come out in the next entrapment case. I can’t come up with any better language, and I doubt that anyone else can.

  27. Uviller,supra note 2, at 168.

  28. Id. at 169.

  29. Id. at 167.

  30. Id. at 186.

  31. Though he ultimately notes, "The consequence of a contrary holding would have been unimaginable—an endless, untriable docket of serious cases."Id. at 185.

  32. Id. at 182.

  33. Santobello v. New York, 404 U.S. 257 (1971).

  34. See Myron Moskovitz,The O.J. Inquisition: A United States Encounter with Continental Criminal Justice, 28 Vand. J. Transnat’l L. 1121 (1995).

  35. Uviller,supra note 2, at 216.

  36. Hernandez v. New York, 500 U.S. 352 (1991).

  37. J.E.B. v. Alabamaex rel. T.B., 511 U.S. 127 (1994).

  38. Joseph v. State, 636 So. 2d 777 (Fla. Dist. Ct. Appl. 1994).

  39. Gilchrist v. State, 667 A.2d 876 (Md. 1995).

  40. People v. Stiff, 620 N.Y.S.2d 87 (1994).

  41. Murchu v. United States, 926 F.2d 50 (1st Cir. 1991).

  42. United States v. Bucci, 839 F.2d 825 (1st Cir. 1988).

  43. State v. Davis, 504 N.W.2d 767 (Minn. 1993).

  44. United States v. Santiago-Martinez, 58 F.3d 422 (9th Cir. 1995).

  45. Uviller,supra note 2, at 293.

  46. Id. at 304.

  47. Id. at 307.

  48. Id.

  49. Id.

  50. Id. at 308.

  51. Id. at 310.

  52. Id. at 311.

  53. E.g., Joseph D. Grano,Confessions, Truth, and the Law (1993).

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  1. Golden Gate University, San Francisco, California, United States

    Myron Moskovitz (Professor of Law)

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B.S., University of California at Berkeley 1960; LL.B., University of California at Berkeley 1964.

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Moskovitz, M. You can’t tell a book by its title. Crim Law Forum 8, 125–142 (1997). https://doi.org/10.1007/BF02677805

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