Miranda Warnings and Terry Stops: Another Perspective

This article discusses the issue that federal Courts of Appeals have grappled with: whether an investigative stop upon less than probable cause under Terry v. Ohio may sometimes involve a need for Miranda warnings prior to questioning. It is the view of this commentary that post-Berkemer v. McCarty analyses by the Supreme Court concerning the Miranda “in custody” determination have had a singular influence upon judicial developments. There is now a very noticeable trend among the circuits towards the recognition of the appropriateness of Miranda warnings during some Terry stops

Governmental Acquiescence in Private Party Searches: The State Action Inquiry and Lessons From the Federal Circuits

In an area characterized by a significant potential for governmental abuse, judicial examination of whether governmental acquiescence in a specific private party search constitutes state action, consequently subject to Fourth Amendment constraints, has often lacked appropriate focus and depth. An examination of the standards used among the federal circuits reveals prevalent approaches which identify the circumstances bearing upon the matter, but which address them under multi-factored totality of the circumstances standards. The result has too often been a lack of specificity in discussing the issues and a failure to provide needed clarity for law enforcement. This article examines the analyses among the circuits. It then suggests a restructured inquiry that employs a rebuttable presumption that evidence should be suppressed if there has been sufficient police encouragement to search. Consistent with state action analysis in other contexts, the suggested approach would emphasize the importance of a central focus upon the nature of the governmental encouragement. It would also retain past productive judicial observations concerning the countervailing significance of independent private motivations, facilitate a detailed examination of the relevant issues, and address other shortcomings of the current approaches