DEM. CO.

(March 16 April 13)

Dem Co March 16
His book(talk on Apr 7)
In class, we focus on SCOTUS
His book focuses outside of federal courts and SCOTUS
On various issues, he argues that driving factor was citizen organizing over long
haul, using strategies to develop counter-norms and then bring those norms to
bear in court
Last timewar on terror cases
Significance of these cases: they reflect a shift in Cts attitudes on Exec power on
matters of war in a time of crisis
Lawyer who brought first Gitmo cases thought they were hopeless, given past
practices of the Ct and country and tenor of the times
Rasul, Hamdi, and Boumedieneall show Ct rejecting Pres Bushs most extreme
assertions
Rasulassertion that foreign nationals have no right to challenge legality of their
detention at allCt says yes
HamdiEven American citizen has no right to challenge factual determination
that he was fighting for the enemyCt says yes, he has a due process right to that
Boumedieneassertion that Cong and Pres acted together to say only review
Gitmo detainees should get is military fact-finding processCt says no, violates
habeus corpus which requires individuals right to have those facts tried before
Art. III judge
Ct rejected unchecked Exec power and insisted on judicial/ legal checka state
of war is not a blank check for the executive (Hamdi, OConnor)
Souter: theres a tension b/t liberty and security (what could be more immediate a
challenge than a citizen being detained w/o trial on charges hes fighting for
enemy?)
Last branch youd want to resolve this tension is Exec branch
b/c Exec branchs principal responsibility is national securityso, theyre likely
to over-weigh security as against liberty
Need another branch, judiciary, to assess liberty claims against security claims
Courts role isnt necessarily to keep us safe, but its checking role is important
even in times of war, even w/ respect to foreigners outside our borders accused of
fighting for the enemy
These are new and dramatic positions for the Court w/ long-term constitutional
significance.
Guantanamo remains open. Courts havent ordered their release, even tho many
detainees have been there 14 years often w/o meaningful hearing
Real world constraints imposition of the rule of law has not ended the practice of
Gitmo
Not clear that the practice should be ended. Many arguments against it assume
that its fundamentally illegal to hold detainees at Gitmo.
But its not fundamentally illegal to hold people in an armed conflict w/o a trial as
long as conflict persists. Nations do this all the time during wareither kill or
hold the enemy until some negotiated settlement.
No negotiated settlement w/ Al Quaeda yet. (Tho, maybe arguments on both sides
as to whether theres still an armed conflict going on.)

Wed like to release many people held there, but we cant send them back b/c of
risk theyd be tortured there they have a right NOT to be sent back
Obama has been looking forand found over 100other countries who will take
the detainees
Congress has said you cant bring Gitmo detainees to U.S. for any reason.
Student Q: if some of these detainees are so dangerous, why is it hard to prosecute
them?
Detainees = combatants = people we allege were fighting against us. Theyre
not criminals convicted of a crime.
We didnt have laws criminalizing e.g., going to a terrorist training camp, or
supporting a terrorist org anywhere. Now, these things ARE crimes.
Ex post facto, we cant prosecute someone for crime that wasnt a crime yet.
When picking up people on a battlefield, you dont necessarily take the steps
required for building a criminal case.
Standard is low: If theyre fighting against you, you can detain them.
Evidence obtained via torture would not be admissible in court.
All this means: Even if we have good reason to think theyre dangerous Al
Quaeda person, we probably dont have all the stuff needed to try them.
Theyre in too difficult to try (in court), too dangerous to release category. Not a
frivolous category.
Student Q: What about detainees who happened to be found on battlefield, but
werent battling?
There was chaos after 9/11. But there was some assessment made by military.
Some of these detainees also came to us from bounty hunters who were given $$
awards. Some detainees were wrongfully brought in this way.
Bush himself released more than 500 people. After review, administration decided
they couldnt hold those people.
After Rasul, administration knew theyd have to justify detainees being held.
Student Q: Ghanaian president claimed to be good neighbor when taking a
detainee. What motivated this?
Cole: its a matter of cost. No country will line up to take a Gitmo detainee.
Maybe even w/o direct payment, still benefits to countries for doing U.S. a favor.
Many of the negotiations are probably about what the other countries get in return
for taking a detainee.

Structure of this coursebigger picture stuff leading into todays material

Were now done w/ structural part of course.
Utilitarianism (greatest good for greatest number) provides rough basis for
democracy rough b/c of questions like whose utility counts, etc (things we
discussed early in class)
utilitarians agree its limited, but best way to make social decision is put it to a
vote
Need a document as a source of rules for society
If you leave rules to majority, they might exercise tyranny over minority in
problematic ways, even from utilitarian standpoint
E.g., in 2010 elections, Republicans invested a lot of $$ in state races and
achieved big gains
Then 2010 census happened and redistricting. New Republican majorities redrew
many of the maps.
In NC, Rs redrew maps so that in next election (2012), Democrats statewide got
~53% of vote, Rs got 47% of vote in state legislature races.
Yet, now there are 9 Rs and 4 Ds in NCs congressional delegation.
Thats b/c the redrawn maps had districts w/ lots of Ds, so that Rs were spread
out more.

Majority might be self-perpetuating, but not democratic.

In NC case, it was the minority that used democracy to over-ride majority
preference.
Structure of our constitutional democracy frustrates majoritys ability
Separation of powers b/t fed/state and horizontal (b/t Exec/ Judicial/ Congress)
all geared towards avoiding tyranny of majority over minority
e.g., bicameralism and presentment (need supermajority of both chambers)
These structural principles are designed to protect liberty by checking government
and by setting up various branches to check each other to reduce likelihood of
tyranny
We also started by looking at constitutional interpretation
constitutional principles are often not particularly determinative
e.g., meaning of 10th amendment is NOT deterministic or fixednot even defined
in Constitution
job of giving meaning to these non-determined principles is left to the Court
in terms of separation of powers w/in fed government, theres very little basis
nothing in Constitution controls Execs removal power
nothing in Constitution defines what Exec power is, and yet Court has to give
meaning to and enforce some conception of an Executive in administrative state
Utilitarianism doesnt really help us resolve these undetermined principles, nor
does Constitution itself
As a result, we have kind of common law developed by Court, developed over
time in individual cases, which does constrain branches powers and job of Court
in reviewing those actions

New section of class: individual rights

constitutional structure is in a sense about protecting liberty
bill of rights is DIRECTLY about protecting liberty
We will cover
4th Amdmt right of privacy
5th Amdmt right not to be compelled to incriminate oneself
6th Amdtm right to counsel
These rights are examples of kind of challenges imposed by giving constitutional
principle meaning in a democratic society
These challenges all arise in particular context of investigation and prosecution of
criminal behavior
Todays readingsoverview of how to think about rights from utilitarian perspective
Challenge for utilitarianism is how to justify rights
By definition, an enforceable right in a democratic society means a right
AGAINST the majorityminority coerces the majority
Two ways utilitarian might justify rights
(1) as an instance of rule utilitarianism
(2) concept of pre-commitment
Utilitarians make decisions based on consequentialism, but in some cases they
could say its appropriate to defeat desires of majority in name of maximizing
utility
J. S. Mill defends concept of a right
Society should recognize right of individuals to engage in self-regarding conduct
even if society firmly believes such conduct is NOT in her best interest and even
reduces overall utility
Society should only be able to intervene legally where individuals engage in
conduct that is not self-regarding but has some direct, harmful impact on another

Your freedom to throw a punch ends at the tip of my nosethats the point at
which society can make something illegal, but not short of that
This is an instance of rule utilitarianism
Act utilitarianism would instead make each decision by using some huge utility
maximizing machineif any instance of self-regarding conduct (like using drugs)
increases utility, then its ok
Mill says nohe says you should follow this rule: You should not intervene
unless that person engages in some harmful other-regarding conduct.
Even if the drug addiction renders that person unfit to work (and other social
costs), these cant be a basis for legal intervention by society.
Mill justifies his rule on utilitarian grounds
Hes not arguing from some Kantian absolute principle that its just wrong to
intervene in someones private affairs
Instead, hes saying that as a matter of maximizing utility, you should not legally
intervene in self-regarding conduct
Why should we let a person do something that everyone recognizes is not in her
best interest and which will lead to more pain than pleasure? Like, shooting up
heroin. Different answers to this questiondifferent arguments for Mills rule:
Slippery slopesociety couldnt draw a line at which conduct to prohibit.
In response, why cant we say this: Whenever society determines that certain
conduct undermines social utility, society can prohibit it.
Theres utility in individual freedom to choose private behavior. Important to take
this autonomous decision into account. Freedom to make a choice necessarily
implies freedom to make a bad choice. Mill includes this freedom in his utilitarian
calculus.
In response, utilitarian might say: fine, so lets just plug this freedom-utility into
the calculation of individual cases. This would seem to justify a thumb on the
scale towards allowing people to make self-regarding decisions, but wouldnt
necessarily mean that all self-regarding behavior would be free from social
intervention. Just means theres a sphere of self-regarding behavior that is utilitycalculation-justified.
This is like what parents do: Parents want to give their children freedom/
autonomy, unless the costs of a certain decision outweigh its benefits (including
the benefit of autonomous choice).
Mill: Such a parental approach is not ok for society, not ok for adults. We need to
allow adults to go down even very bad roads as long as its only self-regarding
conduct.
Mill discusses social rights as ostensible justification for intervening in selfregarding conduct
[slippery slope again]: He says its very hard to draw any line once we let society
prohibit any conduct that it concludes undermines social utility
Two other utilitarian arguments Mill makes:
Counter-productive character of many of these rules.
E.g., prohibition (against alcohol). (Or, more recently, the war on drugs).
Whenever society tries to limit self-regarding behavior, it is likely to lead to waste
of resources and people probably wont abide by it. Administration problems.
Maybe most fundamental reason he gives: Individuals are best situated to know
whats best for themselves, as compared to someone else.
Im my own best judge of what maximizes my utility.
We dont actually have a utility-maximizing machine. We have to rely on human
judgment. So, we should favor the individuals own judgment.
Mills arguments are all arguments for a version of rule utilitarianism
Rule: People should be free to engage in self-regarding conduct w/o societal legal
intervention, even if in some easily imagined instances it will lead to a reduction

in overall utility.
In long run, over general run of cases, this rule will lead to more utility, as
compared to act utilitarianism (case by case) approach.
Today, one might argue that rights are a set of instances where weve decided that
the costs of allowing democracy/ majority to decide are so substantial that were
willing to allow individuals to insist upon the right to engage in this conduct, even
where in that instance doing so will reduce overall utility.
This is one way of understanding warrant and probable cause requirement,
which presumptively applies to searches and seizures.
Even tho in some instances, this requirement undermines overall utilityperhaps
b/c criminals get away, or police costs are highgeneral notion is that before
state intervenes in peoples privacy or deprives them of liberty thru a seizure, state
must obtain warrant based on probable cause. In long run, we think society will be
better off if we stick to that rule.

Example of constitutional rule utilitarianismSkokey (Nazi march case)

Divisive case in 1970s where Nazis sought permit to march in Skokey, which had
40K Jewish residents (of total of 50-60K residents town was mostly Jewish)
5,000 of residents were Nazi concentration camp survivors this is why Nazis
wanted to march here. They wanted the notoriety, publicity.
Some residents sought to enjoin the march on grounds that it would cause grave
harm and pain to many residents. Testified about severe emotional harm.
Question for court: enjoin or allow the march?
How even make the decision?
Same kind of situation: hate speech on campusregulate or prohibit?
Usefulness of Skokey case is the starkness of the facts.
ACLUs positionslippery slope/ rule-based argument
Defended Nazi partythey should have the right to march b/c if we dont let
them do this march, what else can we enjoin? Would we enjoin a protest against a
war b/c of pain it might cause to veterans?
Rule they argued for: People are free to express themselves in ways that others
find offensive.
Sure, harm in this instance (to Jews in this town) probably outweighs benefits (to
Nazis). But over the long run, the rule is important and leads to more benefits than
harms.
ACLUs proposed rule is like Mills rulelet people engage in self-regarding
behavior even in cases where everyone agrees the costs outweigh the benefits, b/c
of overall and long-term advantage of the rule.
Another argumentin favor of enjoining the march
We can draw a line w/ respect to things everybody disapproves of, as long as we
protect freedom of speech related to more contested things.
E.g., in Germany, its illegal to join the Nazi party. Nazi speech is a crime, but
Germany does have freedom of speech w/ respect to almost everything else.
So, maybe slippery slope concern is overstated. Maybe we can draw the line here.
Much of Europe has rules for speech that offends on basis of race, but allows
other kinds of offensive speech.
Example of counter-ACLU-approach: Exceptions to the rule against prior
restraints
Prior restraint is when government adopts a rule prohibiting publishing something
w/o first getting approval from government. [i.e., prohibiting government censure
before publishing]
If government wants to suppress any speech, it should do so after the publication.
Better in terms of transparency, etc.
But, court says in some cases its permissible for state to impose a prior restraint

to prohibit people from expressing certain views

Secret information is an example. Need prior approval from government before
publishing it.
Prior restraint also permissible if youre seeking to publish troop movements in a
war.
This is an example of a rule where, in particular instances, the costs of following
the rule are so great (in terms of diminished utility) that we allow exceptions to
the rule. Exception is a sub-rule.
If you keep making exceptions to rules, the limiting case is act utilitarian itself.

Aleinikoffcritical of balancing as an approach to constitutional adjudication

His reasons
Internal problems w/ balancing enterprise (indeterminism)
Hard to quantify values youre balancing and have an objective scale (e.g., liberty
and security arent commensurate)
Question about which interests to take into account when balancing
E.g., on environmental questionsshould we include interests of future
generations?
E.g., on distributive justice questionsshould we include interests of people
living in other countries?
Right answers here are not obvious.
Interests being weighed, even assuming some scale, are not commensuratenot
capable of being translated into a single calculus.
External critique: Institutional question
On constitutional questions, if all were doing is weighing interests on either side,
not clear why the court should do this balancing. Why shouldnt legislature do it?
If legislature hasnt considered XYZ interestshouldnt court remand to the
legislature (like remanding a rulemaking to an agency)?
He favors constitutional tests that dont reduce to balancing of interests.
E.g., question of whether a particular action is a taking. Court doesnt use a
balancing approach. Court looks at characteristics of government action and
decides whether to classify it as a taking or not.
Relationship of his views to act/rule utilitarianism
Act utilitarianism is limiting case of balancing.
E.g., Skokey case. Consider all the interests on either sideeven including
interests of U.S. community writ large in tolerating speech, in discouraging
Nazism, etc.
Answer = whichever way the scales tip. Thats legal realism.
Rule utilitarianism, instead, says we should adopt clear rules based on broad
principles, even in instances where their application is more costly than it is
beneficial in that instance.
This is a formalist approach. Better to have consistent rules, even if rule is
unjust in some applications.
Aleinikoff sees act utilitarianism / realist standards as a threat to constitutional
adjudication.
Like Scalia, he likes clear rules. Very skeptical of standards, b/c they dont
constrain the judges.
Coles commentary on Aleinikoff
Difficulty: Most constitutional law requires some sort of balancing.
E.g., first amendmentCongress shall make no law infringing freedom of speech.
Sounds like an absolute rule. Seems like we simply need to classify laws as to
whether they infringe freedom of speech or not. No need to balance.
Is what Nazis are doing speech? If so, cannot infringe.

This is constitutional formalism.

Very little constitutional law uses constitutional formalism.
First amendment does NOT mean that NO speech can be regulatede.g., libel,
obscenity, fighting words, commercial speech, subversive speech (inciting illegal
conduct), etc. can all be regulated.
All these forms of speech can be regulated b/c at a higher level of generality than
the specific case, Court decides that the benefits of that free expression (e.g., of
child pornography) are outweighed by its costs.
Race or sex discriminationrule is you cant discriminate on these bases unless
you have a compelling reason to do so, like affirmative action.
Saying unless XYZ implies some sort of balancing.
Concept of proportionality
Have to decide whether the action is, e.g., speech. Next inquiry is: was this speech
necessary or proportional in a democratic society?
Some rights are absolutebut this is rare w/ respect to constitutional rights.
E.g., on torture, or on coerced self-incrimination.
No unless clause on these issues. No torture, period (in international law).
Most constitutional rights require the balancing Aleinikoff thinks undermines
constitutional adjudication.
Categorical constitutional balancing are instances where there is balancing, but
engaged in a higher level of generality than the facts of the specific case.
E.g., Skokeybalance not at level of those residents and that town, but at level of
general rules for access to public action. When balancing at this level, you adopt a
rule.

Pre-commitmentShelling and Tribe

This is another reason we might adopt rule utilitarianism instead of act
utilitarianism.
Or why a democrat might adopt constitutional rights instead of majority rule.
We are capable of recognizing that we will face temptations. So we might want to
adopt rules governing our behavior, in advance, to govern our behavior in face of
those temptations. Rules would require us to do something other than what wed
want to do in the moment.
Many examples
Capt. Ahabin the moment, he wants to avoid cauterizing his wound even
though he decided to do so in advance for his own long-term good.
Retirement savings.
Paying to go to law school maybe encourages you not to drop out.
We pre-commit to not doing later what we know well want to do then, but which
we dont think we should do now. Even pigeons can learn to pre-commit.
Alcoholics can take a drug that will make them nauseous if they drink alcohol.
In a way, Constitution is a collective act to pre-commit ourselves to a set of rules
that are binding on the collective and cant be changed by a majority vote
We believe well be tempted in certain ways as a majority to do certain things that
are against our long-term interests. We know well want to do those things, but we
know theyre bad for us.
Theory is its in our long-term best interest to do so.
Shelling
There are many problems w/ this pre-commitment strategy.
How do we know decision we made in advance is actually better?
What if circumstances change? What if bad things turn out to be healthy?
What if your desires change? Maybe you pre-committed to being shot if you get
cancer. But later when you get cancer, you dont want that.
Constitution: How do we know decisions made 240 years ago are better than

decisions today? We dont know that.

When we think about rights [later in course], well discuss rights of criminally
accusedthese are paradigmatic rights that society is likely to be inclined to
disregard in the moment.
After a crime, we might want to severely punish a suspect. We might treat rules
we made in advance as technicalities that we no longer need to comply with.
We can make decisions that criminal defendants have these rights, b/c we believe
that its in societys best interests in the long run.

Dem Co 3/23/16
Lots of reading for next time.
Wednesday 3/30 at 4pm: Hart lecture by Jack Repove (??), one of most eminent
constitutional historians, from Stanford Law, will talk about originalism.
Last time
SCOTUS incorporated bill of rights to apply to states via 14th Amendment gave
itself challenge of regulating policing across the country
Most powerful tool to regulate policing is Fourth Amendment (FA)
Most common seizure = arrest of a person
Ct has ruled there is an exception to warrant requirement when police arrest
someone in public on probable cause
There is NOT an exception when police seek to arrest someone in a home
In a home, police either need an arrest warrant if arresting the resident (they also
need a reason to believe she lives there)
Or police need a search warrant if arresting in some other home (not arrestees
home)
Search warrant would say that person is subject to arrest and likely to be found
there
(this is basically a combined search and arrest warrant)
Search incident to arrest is an exception to both probable cause and warrant
requirement
To be lawful, arrest must be based on probable cause
Given the arrest, police need no more indicia to justify search
Justifications for search incident to arrest
Arrestee might have a weapon, or try to destroy incriminating evidence
Once subject to lawful arrest, arrestee has reduced right to privacy b/c of being
taken into custody
When at police station, they can do a more intrusive search (e.g., strip search), b/c
of heightened concerns for safety w/in prison

This is sufficiently regular concern that Ct adopts bright-line rule

Rule applies even when no possibility of finding evidence related to the crime and
no fear of arrest
Benefits of bright-line rule justify its broad application, even when its
justifications dont apply
Ct expanded arrest incident to arrest
Rabinowitz (one-room office) and Harris (four-room apartment)can search
person AND place shes in
ChimelCt cuts back. Justifications for search incident to lawful arrest do NOT
justify search beyond persons grasp
Whats permissible is search of the arrestee and search w/in grab area
Exception: protective sweep doctrine of Maryland vs Buie
When police enter house for purposes of arrest, police are permitted to search
person and area w/in arrestees control, AND they can do a protective sweep of
room in which arrest occurs and adjoining areas from which attack by someone
else could be launched
No requirement of suspicion or reason to believe there might be someone else in
adjoining that might attack you
Protective sweep is limited in scope by its purpose
Police can only search places where people might actually be (cant look in a
dresser drawer for a person)
If you have reason to believe someone might be in non-adjoining space, you can
search there
Student Q: I assume you couldnt take the arrestee around the house to have kind
of a movable grab area?
Related Question: Is it the grab area when you first arrest, or later when search is
conducted? These places dont always necessarily coincide.
Might search first and then arrest after (ok if sufficiently close in time).
What if you arrest person in living room, then hand over to partner to hold him in
dining room, and then want to searchis grab area where youre holding him, or
where you arrested him?
Seems like grab area should be where youre doing the search, since point is to
prevent arrestees access to weapon or evidence, regardless of time sequence.
No SCOTUS case has decided this particular question for an individual, but there
is one for a vehicle (Gant)
Student Q: What if, during protective sweep, police see obvious incriminating
evidence, like drugscan they seize the drugs?
Protective sweep has only one purposesafety.
Answer is governed by plain view doctrineanother exception to warrant
requirement for seizures of objects
If youre in a place where youre authorized to be (e.g., by protective sweep
doctrine), and if the object is in plain view, then you can seize things that are
evidently contraband.
E.g., theres a shooting in an apartment building, police go into apartment
allowed under exigent circumstances exception to warrant requirement
Police go in and see its a shabby apt, but they see an expensive stereo. They lift it
up to see what the serial # is, and use that to find out that indeed it was stolen.
Ct holds that was an illegal search b/c not plain view.
Plain view means the thing must be immediately apparent. Cant engage in
another search, even just looking under a stereo.
Student Q: Is there a reasonableness requirement for protective sweeps?
No and yes.
Noprotective sweep doctrine is itself a determination of whats reasonable. It
elucidates requirement that all searches must be reasonable; search-incident-to-

arrest exception is another automatic/presumptive reasonableness determination.

So, no restriction on this automatic exception.
E.g., w/ cigarette packetyou automatically want to rule out that there might be a
weapon there.
Yesin that, if you go beyond adjoining rooms, you need some reason. Like, you
heard a toilet flush.

Riley v. California
Should Robinson holding (search-incident-to-arrest is automatically ok) apply
equally to searches of cell phones?
Gov argument: yes. After arrest, its per se reasonable to search person and any
object w/in arrestees control. Cell phone is just another object, so same rule
should apply.
By unanimous decision, Ct rejects govs argument
This case and U.S. v. Jones both ask same question: Should analog-era 18th
century rules apply in modern, digital age?
Specific issues of cell phoneson both sides of balancearrestee and police
Increased privacy interests b/c of more data
Some data isnt even on the phone, its in the cloud and simply accessed by your
phone. Like saying if police find a key on arrestee, police should be able to use
the key to access other things not on the person. Nope.
Tho, this issue doesnt apply to the flip phone.
Whats diff b/t phone (flip or smart) and coffee cup, briefcase, diary? Police can
search those kinds of objects.
Cell phone data is qualitatively different than data in those other things. Phones
can have more data than might even be revealed by searching a persons house.
Phone can have photos, bank account, location data, who youve called
Police can combine all this data to paint very intimate picture of someones life,
even just w/ one set of data (just the calls, just the photos)
All of this greatly increases privacy interests at stake in search incident to arrest.
Polices interestssafety and evidence
Cell phone doesnt not present safety concern.
Evidence concern is remote wiping of data, but police can prevent that w/o
searching the phones data.
Balancing these interests
Privacy interests increase a lot, and police interests dont change much
presumption should be that police need to get a warrant
But, reasonable to think magistrates would frequently sign off on a warrant to
search a suspects phone
If so, whats the privacy benefit/safeguard of requiring a warrant?
One advantage is that the warrant must state w/ particularity the scope and
purpose of the search. W/ phones, thered be a strong interest in restricting scope
of phone search.
Also, some offenses may not lead to probable cause for a warrant. Like, traffic
offense or other minor offenses.
So, this cases holding is not just symbolic. It does add some privacy protections
for phones.
Student Q: Would plain view doctrine apply to searching a phone?
E.g., warrant is to look at call log and photos on a phone. As long as police are
looking at only those areas, then any immediately apparent contraband is fair
game.
Todays cases
Theyre about threshold question in FA cases (i.e., when are FA protections

triggered?), and also the range of FA.

No question that when people arrest someone or enter a home or take your stuff
thats obviously a search or seizure.
But police use many other info-gathering tactics that are not so obviously searches
and searches.
Todays cases are about when to characterize these other investigative tactics as
searches and seizures. B/c only searches and seizures are subject to FA.
From police perspective, they need a set of tools to investigate crimes and to
establish probable cause in the first place.
E.g., talking to people, accessing public social media (facebook), walking down
the street and being attentive to officers surroundings

Katz v. U.S., p. 98
Transformational decision.
Pre-Katz, question whether a tactic is a search was question of whether police
physically invaded a protected area.
Thats why the parties phrased question as whether phone booth is a protected
area.
Series of cases had defined searches as invasion of persons, houses, objects, etc.
Goldmanpolice placed Dictaphone up to a wall of an apartment to hear what
was happening in neighboring apartment.
Ct said that was NOT a search b/c it was NOT an invasion of a constitutionally
protected area.
Silvermanpolice inserted a foot-long spike into a wall, enabling them to hear
neighboring apt
b/c of physical penetration, that WAS a search
Olmsteadpolice engaged in wiretapping. Not a search b/c again no physical
invasion.
Clintonpolice used a thumbtack to connect Dictaphone to a wall. That WAS a
search.
Here, Katz was in a phone booth, and police used device outside booth to
eavesdrop on Katzs conversation.
Courts reasoningdeparts from property-based approach
Question of whether theres a physical invasion of a constitutionally protected
areathats not the right question.
FA protects people, not places. Its about privacy, not property.
As long as property serves as a proxy for privacy, can make sense to use propertybased rationale to protect privacy.
At time of FA ratification, intruding on property was pretty much the only way to
access that information.
Now, as technology advances, its becoming more possible for police to invade
privacy w/o invading property.
So, real question is whether the state has invaded a reasonable expectation of
privacy (REP)
Analyzing Katzs privacy expectation here
1) he takes measures to protect his privacy. Hes not having convo w/ his booky in
a bar in public, where he could be easily overheard. Rather, he goes into an
enclosed space (phone booth) to have quiet convo.
So, subjectively, hes taken measures that he believes will protect his privacy.
2) Was his expectation of privacy objectively reasonable? Two ways to answer:
Descriptive: What does society think? In general, do people expect this form of
activity to be private or not?
This is a descriptive question. You could take a poll to find out. What does
society in fact expect?

Normative: Is this expectation normatively important to preserve privacy for

this form of activity?
Telephone communication has become an important form of private
communication. It serves a critical function in facilitating private communications
in the modern world.
This is a normative judgment.
Now, if police get a warrant to listening in to a suspects phone convo, the police
are limited to the scope/ purpose of a warrant.
FA requires: individualized suspicion, a warrant, and some scope/purpose
limitations.
Court makes this move in order to preserve the values of the FA from the
advances of technology.
Ct is recognizing that when the world changes, the Ct sometimes needs to adjust
the rules in order to be true to the original pre-commitment, which is to protect
privacy.
Ct goes up a level of generality in FA analysis need to protect reasonable
expectations of privacy. Protecting property interests isnt good enough.
Question post-Katz becomes how to determine when there is a REP?
B/c now, REP is what triggers the FA

Florida v. Riley, p. 107

Greenhouse on Rileys propertycant see into it from nearby property, so police
fly a helicopter 400 ft. overhead and see marijuana
On basis of this inspection, police got a search warrant
Question: Was the helicopter inspection a search? I.e., did Riley have a REP in the
greenhouse?
Ct does 2-part Katz testneed both subject expectation of privacy and REP
Courts reasoning
Any member of public could occupy this navigable airspace, b/c its allowed by
FAA regulation, and anyone could look down w/ naked eye and see inside the
greenhouse.
Counter to Courts reasoning
Need to ask not only whether its conceivable that member of public could do
this, but do people regularly do it? Do people regularly fly at 400 ft.?
If an activity is legal but only police do it, then maybe its reasonable to expect
privacy against that activity.
OConnor
We have reason to believe people fly at 400 ft., and Riley didnt enter any
evidence countering that. Burden of proof is on defendant.
Dissent
Burden of proof of regular public activity is on government.
All justices agree that whats relevant is what private citizens do, not what police
do
Would be circular to ask only if the police engage in this activity, so focus needs
to be on what the public does
This case stands for proposition that assessing REP is a question of what the
public does
This turns out to be a difficult question, and contestable which side has burden to
show
California v. Greenwood, p. 103
Greenwood (D, defendant) suspected of narcotics trafficking. Police ask garbage
person to bring them Greenwoods trash so they can look through it. They find
evidence in his trash justifying a search of his home.

D argues police violated his FA rights b/c police didnt have probable cause or a
warrant to search his closed, garbage bag.
Police say its not a search.
Majoritys reasoning
D put the garbage on the sidewalka public place. Someone could come along
and tear open the bag. D has assumed that risk. D does not have a REP against
that risk.
How to respond to this?
Local ordinance required him to put the trash on the sidewalk.
He did what he could to keep it securehe put it in a closed, opaque bag.
Majoritys other argumentwhich is an independent groundis that D
relinquished his garbage to a third party, so he no longer has REP in it.
Third party disclosure rule: If you voluntarily relinquish private things to 3rd
party, then you assume risk that 3rd party will turn those things over to the police.
Similarly, whenever you talk to a 3rd party, you assume risk that 3rd party will tell
police.
E.g., in Katz, either by making bookie an informant (e.g., plea bargain), or b/c 3rd
party just wants to.
Third party rule applies to physical objects as well as other things like phone call
logs.
Smith v. MarylandCt held that getting the call logs from phone company does
NOT require warrant or probable casedoes not invade REP b/c when people
make phone calls, they assume risk that phone company will give your phone
Therefore, government can compel phone companies to provide data.
And gov does NOT need individualized suspicion.
This applies to almost anythinge.g., when you go to grocery store, you share
with them the list of what youre buying. When you do google search, youre
sharing your private interests w/ Google.
When you walk around w/ your phone and your location services are on, youre
relinquishing your location at every moment to internet service provider. All of
this is 3rd party data.
HYPO: Suppose D made an agreement w/ his garbage person that hed pick up
the trash from within Ds curtilage. Then garbage person still gives garbage to
police and they search it.
Under majoritys reasoning, would it still be a search? Yes, under second ground
3rd party disclosure.
HYPO: Suppose, in Katz situation, police convinced bookie to have listening
device next to him while hes talking on phone to Katz?
Under reasoning of this case, that would not violate FA b/c Katz voluntarily spoke
w/ bookie, and bookie voluntarily gave police access to convo.
Student Q: What about mailwhen you mail a letter, why doesnt that fall under
3rd party disclosure rule?
Mail cover = post office record of all the addresses youve mailed things to, and
all the addresses from which mail has come to you
Ct has held mail cover is available to police, but that the contents of mail are not
available for sharingpeople have a REP in their mail (whats inside the
envelope)
Emailwhenever you send an email, Google reads it
Can government get contents of your email from your ISP (internet service
provider)?
Gov argues yes, b/c you havent closed your email like you close a letter.
6th Circuit has held not. Email performs a critical service of private
communication.
SCOTUS hasnt taken cert yet on this question. Hasnt decided yet.

In modern age, third party disclosure rule explodes privacy concerns.

Everything you share on the cloud is fair game for being shared by cloud operator.
Prof. Cole thinks a big upcoming constitutional question is whether third party
disclosure rule needs to be adjusted in digital age, a la U.S. v. Jones or California
v. Riley.

U.S. v. Jones, p. 111

Gov attached GPS device to undercarriage of jeep and tracked jeeps movements
for 28 days.
Govs argument:
Relies on U.S. v. Knotts, where gov put a beeper in a package that Knotts
acquired. He takes the package to a cabin in the woods, and gov gets a warrant to
search that cabin.
There, Ct said that was not a search under FA b/c Knotts was on public roads. The
beeper just made it easier to track Knotts as he traveled on a public road.
Also relied on Karo. Very similar facts except beeper goes into the cabin. Beeper
is emitting signals from inside the house, which is how gov established suspects
location there.
Difference is obtaining information from within a private home that WAS a
search.
Gov says its GPS data was all gathered while Jones was on public roads, therefore
as in Knotts this activity was constitutional.
Concurrence rejected this argument. Pointed out the long duration of the tracking.
Even if a person might expect that someone might see her traveling from A to B
one discrete trippeople still have a REP that strangers wont follow you around
for several days in a row.
First, b/c generally theres an expectation that your travel data for long periods is
not available to anyone but yourself.
Even though its hard to say at which point a REP kicks in, Alito says 28 days is
too much.
Second, b/c tracking one discrete trip from A to B provides very limited data. But,
by tracking travel for many days, you can get a lot more information about a
person. Conglomeration of data increases the privacy costs.
This is critically affected by modern age. B/c Alito probably wouldnt require a
warrant to physically follow someone for 28 days. Two hundred years ago, that
was prohibitively expensive.
Today, technology has made it dramatically less expensive.
So, if were going to protect the level of privacy FA was meant to protect at time
of framing, we need to adjust our doctrine as technology changes, just as was
necessary in Katz.
Scalias majority decision
He doesnt like REP b/c its too fuzzy. Instead, this is an easy case from
traditional property perspective.
When police put GPS on Jones car, that was a search b/c it was an invasion of his
property for purposes of gathering information.
He says property-based approach was not rejected by Katz.
Gov was very confident about this case on its way to SCOTUS
b/c of the validity of each instance of tracking from A to B

Dem Co 3/30/16
Context for FA cases (FA = fourth amendment)
Questions to ask about any police activity thats arguably a search:
(1) Is it a search or seizure? (threshold question)
Most of the time, this is pretty cleare.g., police went in the house
But, police do a lot of other things that are less obviously searches or seizures
Two ways police activity can constitute a search:
(1) trespass for purpose of gathering information (revived in U.S. v. Jones)
(2) invasion of a REP (reasonable expectation of privacy)
REP involves largely an empirical question of what people expect would remain
private vis a vis other private citizens
If state intrudes upon that set of activity, thats a search
Katz developed this rule b/c trespass approach was inadequate given modern
technology, which allowed police to inspect people w/o physically intruding on
property
REP is difficult to applyno privacy meter out therebut Ct gives it some
guidance:
Subjectivefocuses on what the individual didhas person taken action
demonstrating that she sought to keep her activity from public view?
Objectiveis it objectively reasonable?
Plaintiff in Greenwood did what he could to protect privacy of his garbage, but his
expectation was not objectively reasonableb/c by sharing info w/ 3rd party, he
assumed risk that 3rd party would share that info w/ police
No longer private vis a vis that 3rd party
Third party disclosure rule started out as a limited exception, but now a HUGE
exceptionin digital age, via our phones, were constantly sharing private data
w/ 3rd partiesmuch more intimate details that even could be gathered from home
searches
(2) If its a search, does it fit w/in recognized exceptions to probably cause &
warrant requirement?
Exceptions such as arrest in a public place, search incident to arrest, automobile
search
If it does, then applicable rules are the rules for that exception
E.g., search incident to arrestdont need warrant or prob cause (but need prob
cause for the arrest)
(3) Do the police conduct and objective circumstances meet the relevant FA
requirement?
If requirement is prob cause AND warrant, then need both sometimes only need
prob cause.
Frisk is a less extensive search in that case, need reasonable suspicion
objective circumstances means e.g., a frisk
And then police conduct must be limited according to the scope given by the
circumstances
(4) Was the search otherwise reasonable?
Even if it doesnt fit w/in a recognized (categorical) exception, police could still
argue that it was nonetheless reasonable
Student Q: is this repetitive b/c of REP question above?
No. If no REP, then its not a search in first place.
At this stage, youre definitely dealing w/ a search, and the question is whether

the search was reasonable.

You could have an unreasonable search despite a REP.
Existence of REP means that government has to justify its action as reasonable,
despite REP.
E.g., in hypo 1 below, arguably Jones has an REP w/ respect to his travel data, but
still the On-Star method is arguably reasonable.
(5) Whats the remedy?
Principal remedy is exclusionary rulesuppress evidence
If evidence obtained in violation of FA, then evidence is NOT admissible against
person whose rights were violated, unless it fits w/in one of the many exceptions
to the exclusionary rule.
Some disagreement on Ct about the threshold question (how to start/frame the
FA inquiry)
Disagreement is b/t:
starting w/ a presumption that a search w/o warrant and probable cause IS
unreasonable (unless it fits w/in a cateogorical exception)
starting simply by asking whether the search was reasonable or not
We see this argument play out in p. 238in California v. Acevedo
It remains a cardinal principle that searches [w/o a warrant] are per se
unreasonable w/ a few exceptions
Scalia then says: there are so many exceptions (at least 20) that they swallow the
rule
In my view, path out of this confusion is to return to 1st principle that
reasonableness requirement of FA affords the protection that the common law
afforded.
No general rule that search is unreasonable unless conducted w/ prob cause and
warrant.
Some cases adopt this all things considered reasonableness approach
Maybe either approach tends to get to same outcome, but
Defendants like categorical approachputs burden on state to show that this
conduct is an exception to the rule
Government likes reasonableness approachputs burden on defendant to
show the conduct was unreasonable
In majority of cases, courts tend to start w/ cardinal principle and then asks
whether case at hand is an exception
The exceptions are guided by:
Historyby common lawif a practice was permissible when FA adopted, then
its probably reasonable
E.g., border search exceptionwe wont study it, butwhen you cross border
into U.S., state can search your bags w/o any warrant/ prob cause/ basis for
individualized suspicion for sake of customs enforcement
Reasonable, Ct argues, b/c it was deemed reasonable historically
Workability/ purposive argument: You couldnt do customs duty enforcement if
you had to develop individualized suspicionback then, you couldnt track
people outside the U.S.

U.S. v. Jones hypos

GPS caseScalia says no need to deal w/ REP question, b/c putting GPS on the
car was a trespass for purpose of gathering information
Under traditional standards, that was a search
Alitowe abandoned trespass approach, now we use REPand citizens do have
a REP that they will not be followed 24-7 for an extended period of time, except
for the most extraordinary crime
Two hypotheticals illustrating these two approaches to the threshold question

Hypo 1
suppose police gathered info on Jones by contacting On-Star for 28 days
company that monitors GPSs installed in new cars, so that in case of accident,
On-Star is immediately notified of your location so they can notify 911
Would Jones have a claim under the FA?
Under trespass analysis: No. This is similar to Knotts and Karo where gov
implanted beepers in objects before they were in the possession of individual. Not
a trespass before its your property.
Under REP, couple thoughts:
Jones still has REP that the data would be shared for such an extended period
Jones does NOT have REP b/c of third party disclosure rule
Response to this: Third party disclosure rule itself needs to be reconsidered in
order to preserve privacy expectations that Alito describedjust as in Riley,
where Ct re-conceptualizes search incident to arrest w/ respect to cell phones
But, does not follow from Alitos decision that REP exists w/ respect to data given
to a third party
Theres a case now about whether police need to get a warrant to obtain your cell
phone location info, which phone company gathers for purposes of decided when
to build new phone towers
Some courts have said no REP b/c of third party disclosure
Other courts have said this is the same kind of info in Jones that youd not expect
pre-cell phones, and it can paint too intimate picture of your life
Hypo 2
Suppose police had employed GPS on Jones car simply to follow him from his
house (where GPS was put on his car) to the house where he got the drugs, is that
a search?
Under REP analysis, this is basically Knotts, where police used a beeper to track
car from airport to cabin in the woods
Police potentially COULD HAVE followed the person, but they used technology
to do so more easily
Trespass approach: still a search, same reasoning as Jones itself
Critical fact is that state has trespassed on your property for purposes of gathering
informationthats a bright line rule
How long the police tracked the person might matter to REP, but NOT relevant
under trespass approach

Jardines
Question: was the initial dog sniff at the door a search?
Hard case b/c of this conflict:
On one hand, home was thought to be the apex of privacy, and state is obtaining
info about interior of the home.
On other hand, Ct had previously held that dog sniff was NOT a search w/ respect
to luggage or car
Reasoning in both those cases was: You dont have a REP in the presence of
contraband in an otherwise private place, and all the dog reveals is the presence of
contraband.
Otherwise, to find out whether theres contraband in luggage, youd have to
engage in some method of inspection (like looking into the bag) which would
reveal other private items.
Therefore the drug sniffsui generis type of activityis not a search and does
not require any justification
In both cases, Scalia resolves it w/o dealing w/ the tough question
He says we dont have to reconcile home-privacy w/ dog-sniff precedent b/c this
was simply a trespass for purpose of gathering information

Homeowner did not give a license to people to come up to their homes w/ a drug
sniffing dog and snoop around
Not ALL trespasses for purposes of gathering information constitute a search
Oliverpolice trespassed on property of subject by walking onto his fields, from
which point they saw marijuana
Plaintiff argued the marijuana was not visible w/o trespass search
Ct said not a search b/c FA only protects home or curtilageb/c thats what FA
says (houses, effects, person, or papers)
So, trespass on open field is NOT a search
Kagan concurrence (Alito-like)
We can reach the same result under REP analysis
She analogizes use of drug to use of a thermal imaging device in Kyllo
There, police suspected drug growing in a house, so they used a thermal imaging
device to inspect the interior of the housethey found an unusual amount of heat
from a certain part of the house
Use of thermal imaging device from across the street WAS a search, b/c police
used a tool NOT available to the general public to gather information they only
could have gathered otherwise by going into the house
Kagan says same thing here: People dont generally use drug-sniffing dogs, and
the info police gathered here was about interior of home. That intruded on
persons REP.
Difficulty for her approach is that she never resolves the fundamental tension b/t
homes and dog-sniffing
If no REP in contraband in luggage, then why REP in objects in the house?
Reasoning from prior cases about dogs results from (a) all the dog is getting is
presence of contraband and (b) you do not have a REP in presence of contraband
She just drops a footnotein a car, you have a lower REP. But, the reasoning of
prior cases turned on the ABSENCE of an REP (not a lower REP).
Cole: seems like people do actually have REP in contraband in private places
As for the dog only revealing contrabandstill, if its a private place, then thats
private.
Ct hasnt yet responded to this tension.
Student Q: what if same situation as Jardines but no porchwhat if door of home
abutted sidewalk?
Not a search under trespass analysis, but arguably still invaded persons REP.
Or, what if the police officer walked by the house and smelled marijuana, using
normal nasal technology?
For Kagan, its key that police used a drug-sniffing dogthe high-tech device.
Hypo: What if police officer walks up to door to solicit donations, and officer
happens to have drug-sniffing dog (b/c that officer is taking care of the dog offduty)?
Under Scalia/ trespass approach, the purpose-to-search is missing, PLUS its not a
trespass b/c there is an implied license for strangers to do this kind of thing.
But if person had a no solicitation sign, it would be a trespass b/c no implied
license.

Spinelli & Gates

These cases elucidate what probable cause requires
What does a magistrate need to know to make the prob cause determination?
Not about an amount of suspicion, but about the kind of information required to
make that decision.
Probable implies more likely than not, but its actually something less than
that.
Maryland v. Pringle (which were not reading in this class) involves police stop

of a car in which there are 3 people. Police search the car and find drugs. They ask
Whose drugs are these? All 3 deny. Police arrest all of them.
Question: Were these arrests reasonable? Was there probable cause?
Yes, but not based on the 33% chance. About other factors, like reasonable
suspicion of collusion among the three.
These cases revolve around tension b/t rules and standards.
In many areas, Ct prefers rules.
But in this area, Spinelli set bright line rules, which are rejected by Gates in favor
of totality of the circumstances standard.
Spinellis bright line rule
Need two things:
(1) sufficient information to determine credibility of the source of
information
(2) basis of information
Suppose police officer w/ whom magistrate has worked many times, known to be
always truthful. Police tells magistrate he has reason to believe X person is
dealing drugs at Y place.
Satisfies (1), but not (2).
W/o having basis of information, magistrate essentially is deferring to police
officer.
But the whole purpose of a warrant is having an independent determination of
whether theres sufficient evidence to conduct a search.
Whole point of a warrant is NOT to simply defer to a police officer
W/o knowing where the info comes from, may have been from a rumor,
overheard in a bar. Maybe an informant told the officerthen, need to know how
informant got her information.
Suppose officer says I talked to an informant, who said she saw Mr. Spinelli
carrying gambling equipment into 1108 Indian Circle.
Then, you have some basis of info, but now lacking demonstration of credibility
of the informant.
Assume gambling is illegal. What if informant says I gambled at Spinellis
housethen, actually helps on credibility of informant, b/c person has no
motivation to implicate himself.
U.S. v. Harrispeople are unlikely to implicate themselves in criminal activity
Magistrate needs sufficient information about how the informant got information
Illinois v. Gates
Under Aguilar-Spinelli approach,
The letter does NOT satisfy the test. In fact, anonymous tips could never satisfy
Spinelli test b/c of credibility problem.
Also, here, no basis of information.
But police also did independent investigation and end up corroborating a lot of the
predictions in the tip.
Important that the tip is mostly predictive.
Police see the Gates actually doing many of the predicted activities, which are
also inherently suspicious.
Corroboration adds to the credibility of the informant. Telling the truth about 6
things makes it more likely that the 7th thing is true also.
More reason to believe that the informant got the info in a reliable way. Suggests
informant was closely involved, or spoke w/ someone closely involved, w/ Gates
activity.
So, even just under the Spinelli test, this is arguably still probable cause. (J. White
concurrence)
Draper case is mentioned by all the opinions
There, police got detailed anonymous tip, which police corroborate, making them

believe the source was credible.

Corroboration about such details about the future makes police think informant
got the info in a reliable way. (Goes to Spinelli (2))
Nevertheless, Ct changes the rule. Replaces w/ totality of the circumstances
standard.
Argument for the standard: Spinelli prongs had led to an overly rigid approach to
the probable cause question, which is the kind of question which does NOT admit
of a rigid rule-based approach.
(a) This question involves many factorsnot helped by rule-approach.
(b) People who are making prob cause determinationspolice officers on the
street, and magistratesarent necessarily trained in the law. (Most magistrates
have a law degree, but not required.)
Probable cause is a common sense assessment.
Spinelli prongs remain highly relevant today, despite Gates totality test
Ct also said magistrate must have sufficient info to make an independent
assessment of prob cause
And in order to make an independent assessment, the Spinelli prongs are critical.
Also, rules provide guidance. Standards dont provide much guidance.
So, today, magistrates, lawyers and judges still think about the two Spinelli
factors. And Gates court said theyre still relevantbut also says the prongs
arent two independent requirements.
Totality of circums approach allows for one prong to be barely satisfied, as long
as the other prong is very much satisfied.
But have to watch against bare bones affidavits by officers, no matter how
reliable the officer is. Still need independent assessment.
Bottom-line rule is that magistrate needs sufficient info to make independent
assessment, so that shes not deferring to police officer
Big picture: Much of FA doctrine is driven by desire to have clear rules w/
categorical exceptions
Ct is regulating massive number of law enforcement officers
Even still, probable cause is not subject to rules. Better to use a standard.

Searches of Carslast three cases for today

Basic automobile exception: Police can search a car on probable cause w/o a
warrant
just like they can arrest someone in public on prob cause w/o a warrant
First set forth in Carroll in 1925
Justifications for this exception
(1) Mobility: Cars are movable. (Taking time to get a warrant could impede law
enforcement effectiveness.)
(2) Reduced expectation of privacy.
Cars have windows.
But, houses have windows too. Also, at least here, Carney put down the blinds.
Also, the exception applies to all parts of the car, much of which does NOT have a
window. No window, e.g., on a trunk, or within the upholstery (which police can
cut up).
Theres a history of cars being searched on basis of probable cause.
This is circular.
Principal argument: Cars are subject to regulation for safety purposes, meaning
they can be stopped and inspected for those purposes. Since people know this,
people have lower expectation of privacy (compared to a home)
But, is it justifiable for car to be stopping your car for safety purposes? Is there a
FA issue there?
Also, the kind of safety inspections youre subject to are pretty minimal compared

to what police can do to search for contraband.

This is a bootstrapping argument.
More fundamentally, what do expectations of privacy have to do w/ requiring a
warrant?
We usually create exceptions to warrant requirement for situations where its
impractical to get the warrant.
So, mobility is most relevant to this question. But, lots of things are mobilewhat
about briefcases?
Chadwickif police have prob cause to believe that an effect has contraband,
they can seize it (to immobilize it) but they CANNOT search it until they get a
warrant.
As in, the police have to convince a magistrate that theres probable cause to
search the object.
Why not the same thing for cars?
Its possible, but not practical, to seize a car. May have to put a boot on it, or tow
it.
Ct has held that IF police seize a car, they can do a search on prob cause w/o a
warrant.
So, mobility itself isnt enoughneed the reduced expectation of privacy (to
justify the car exception).
Carney
Question is whether car exception ought to apply to Carneys mobile home
First prongmobility:
Car was parked at the time in a parking lotbut, it was capable of mobility.
So, to the extent the question turns on mobility, then the exception should apply.
Second prongprivacy:
Home is the apex of privacy, whether it has wheels or not.
But, Ct says people can live in all sorts of carstoo hard to draw the line.
b/c mobile homes are cars as well as homesand subject to inspections for safety,
etc. (hence, reduced privacy expectation)
also, this mobile home was in a parking lota car-like placeit hadnt set down
roots there treat it more like a car
But, in a footnote, Ct indicates it would be a different case if the mobile home was
situated in a more home-like position (like, the wheels were removedprobably
would then be treated more like a house)

Dem Co, April 6, 2016

Last timestop & frisk rules

Another categorical exceptionin this case, both to probable cause and warrant
requirementbut this exception is itself subject to a set of categorical rules
Police can conduct a brief stop where they have reasonable, articulable,
individualized suspicion that crime is afoot or that person has committed a past
felony, in order to take minimal measures to confirm or dispel suspicion (usually
by asking questions)
If police also have reasonable suspicion that person is armed, police can do a frisk
If police do a pat down and feel an object that COULD be a weapon, they have
authority to pull it out and see if its a weapon
If police do a pat down and feel something that could be drugs, they do NOT have
authority to pull that outb/c purpose of frisk is only to search for weapons, not
other evidence
Minnesota v. Dickerson (we did NOT read)
police did frisk, felt small hard objects in pocket, and officer manipulated object
thru pocket w/ his fingers and determined it was a crack vile
state argued a plain feel exceptionsuch conduct was permissible b/c pipe
was found during frisk based on reasonable suspicion of being armed
Ct REJECTED the claimupholding suppression of pipe
Ct acknowledged a plain feel exception, but held the contraband character of
this evidence was not disclosed thru a legitimate pat-down for weaponsb/c of
manipulation via officers fingers
That manipulation went beyond the scope of the frisk and therefore was
inadmissible
Might have been admissible if officer had immediately felt the pipe (w/o
manipulation)
Similar to Arizona v. Hicks (we discussed in a previous class)
Search involving fancy stereo in shabby apartmentpicked it up to see serial # -it was minimal action, but it was not justified by the scope of the search (based on
gunshots heard nearby)

Three possibilities w/ respect to seizuredifferent rules for each

(1) Consensual encounternothing is required by Fourth Amendment (FA)
(2) Terry stoprequires reasonable articulable, individualized suspicion
(3) Full-scale arrest or its equivalentrequires probable cause
Important to be able to distinguish between each of these
[this was driving theme of todays class]
In both (1) and (2), civilian is (theoretically) able to just stop talking w/ police
Cases illuminating content of reasonable suspicion
Florida v. J.L., p. 274
Similar to probable cause cases dealing w/ anonymous tipshow to determine
whether tip is credible, truthful
Cant make that determination w/o predictive content that is at least partly
corroborated
Illinois v. Wardlow, p. 278
Wardlow (D), upon seeing police vehicles, turns and runspolice pursue and stop
him, search his bag, and find a gun
Only question in case is whether the stop was justifieddid officer have
reasonable articulable suspicion? Officer says yes, for two reasons: high crime
area, and D ran
Ct says neither is enough justification by itself
High crime areaif that was enough by itself, then everyone in high crime areas
would satisfy reasonable suspicion
Running awaystate argued this in itself actually is enough, but Ct said no, not

enough
Defendant said fact of running away should not enter into deciding reasonable
suspicion at allCt. rejected this bright line test too
Instead, Ct said its a totality of the circums test
Not unreasonable for officer to suspect crime may be afoot under these circums
Cole: if running away by itself is immune, unless youre in a high crime area
seems like a double standard
In fact, you might have more legitimate reason to run away from police in a high
crime areab/c of police brutality, not b/c youve done anything wrong
Circums of this caseseveral police vehiclesmight be even more alarming to
even an innocent person
J. Stevens says there are many reasons why someone might flee police
E.g.., white kid in Bethesdawhy would he flee police? Seems more likely there,
arguably, that running away there is suspicious reasonablyCole suspects that in
most instances/ contexts, fleeing police will often be seen as reasonably
suspicious
Point is: People have the right to flee police. But here, the manner of exercising
that right appears to give rise to reasonable suspicionb/c he ran away, didnt
calmly walk away
E.g., from Cole readingyou have right to refuse consent for police search of
your bag, but manner in which you exercise that right can evoke suspicion (e.g., if
youre sweating and nervous)
Cts response to Stevens/ Cole point
Possible innocent explanations does not DEFEAT reasonable suspicionits not
certain guilt, its reasonable suspicion that crime is afoot, leading to a stop to
confirm or dispel suspicion
Likewise, probable cause of a crime does not mean the crime definitely happened
its probable
Totality of circums doesnt require more than one source of facts (e.g., just one
officers testimony)
HYPO: suppose Wardlow doesnt run at first, but police say stop! and then he
runs and drops his bagthen police get the bag and see the gun, then capture him
and arrest himlawful reasonable suspicion, or no?
(Cole: If police yell stop in the name of the law! to you, you probably wont
feel free not to stop)
In this hypo, Wardlow could argue that police violated Fourth Amendment (FA)
by ordering him to stop w/o reasonable suspicion; he took matters into his own
hands by running away at that point
By same argument, court should dismiss gun evidence
These are the facts of California v. Hodari D. (in footnote on p. 291)
There, Ct holds that if civilian does not acquiesce to show of police authority, then
that does not constitute a seizure
Physical assertion of authoritylike grabbing the person, even temporarilyis a
seizure
Altho officer did not have authority to say stopdefendant was not stopped, he
turned around and ran. No acquiescence to authority, therefore no seizure
Acquiescence to a show of authority by police constitutes a seizure
If the person stops, police better have had reasonable suspicion, otherwise any
evidence would not be admissible
Royer, p. 281illustrates difference b/t Terry stop and arrest-equivalent
D (defendant) was flying under a fake name, one-way trip, etc.police said these
circums gave rise to reasonable suspicion as he got off the plane, as to whether he
was transporting drugs
Ct concludes that the encounter escalated from a Terry stop to the equivalent of an

arrest
Altho they had reasonable suspicion to make the Terry stop, they did NOT have
probable cause for the arrest-equivalent
What transformed the encounter from a Terry stop to an arrest?
Police took his boarding pass and IDthat prevented him from leaving, but that
also happens with Terry stops
So far, weve gone from consensual encounter to a Terry stop, but not necessarily
to an arrest
Police took him to a separate roomarguably its in Ds interest to be secluded
from public view, b/c of possible embarrassment of being detained
On other hand, D might feel more secure if in public viewcreates more
accountability on police
private room increases the coercion factor
Police, w/o Ds consent, retrieved his luggage
Perhaps D would want luggage w/ him, so at least its secured
But D could say that police seized luggage w/o probable cause
More importantly, again, it enhances the sense that D is under polices control,
maybe detained indefinitely
Then, police ask to search his luggageD says yes to one, and doesnt have
combo to otherpolice find drugs in luggage
Police say that their purpose for going into separate room was to search the
luggage
NOT ok under Terryterry stop is only for purpose of confirming/ dispelling
reasonable, individualized suspicion
Ct also says there were other less intrusive means for searching for drugs
Dog sniff (Placedrug sniff of luggage is not a search can be done in context of
a Terry stop (we discussed in previous class)
Police could have done it in public; they could have gotten his consent for
retrieving his luggage
All these factors lead Ct to decide this was an arrest equivalentmore than
just a Terry stop
Under Terry, police are required to use least (reasonably available) intrusive
means available to confirm/ dispel suspicion
(this test is more flexible than following alternative: If there are less intrusive
means AT ALL, police must use them)
There are at least three ways a Terry stop can escalate into an arrest
(1) if police do not use the least intrusive means reasonably available to
confirm/ dispel suspicion
(2) if the stop lasts too long
(3) if the stop begins to look like an arrest
Place (bottom of footnote on p. 268)very similar situationbut police seize
luggage for 90 minutes while police get drug sniffing dogs
There, Ct said 90 minutes was too long
Ct also said problematic b/c there were less intrusive means reasonably available
but also simply b/c 90 minutes is in itself too long for Terry stop
Theres no bright line time limit, but its supposed to be a brief stop, not lengthy
and 90 minutes is lengthy
Drug courier profile
Courts have said its not enough for police to say simply, X person met the profile
that would be deferring to police
But fitting the profile can be a factorgenerally, it is an important factor
Law enforcement has kept drug profile secretbut Cole has reverse engineered
DEAs statements in cases to reconstruct parts of the profile
Cole listed a series of contradictory bits of evidence, like arrived late at night,

early in morning, in afternoon

Point being: all these factors do NOT narrow the field of possible suspects, but
allows police to stop anyone based on profile
Cole looked at racial breakdownthey were about 75% black or Hispanic
Another example of where police have broad discretion to stop whoever they
want, using a handy checklist to justify stop
Whats difference b/t consensual encounter and Terry stop?
HYPO: Suppose police casually asked Royer to consent to all the things the
police actually did in the case
Do police need reasonable suspicion to ask these various questions? As in,
wheres the line b/t consensual encounter and Terry stop?
Courts line: consensual encounter if reasonable person would feel free to
leave; if not, its a Terry stop
Easy if person says they want to leave and police say you cantbut suppose that
doesnt happen in this hypo
In this hypo, or in general if police is not exerting any authority over person and
just asking series of questions, reasonable person would feel free to leave, in
Courts viewtho, many of us dont feel like wed be able to leave
In real world, we do feel authority being exerted over us. Especially police officer
in uniform
Court doesnt treat that coercion inherent in a police-citizen encounter to raise
casual encounter to a Terry stop
Drayton, p. 289 shows this lack of Courts sense of inherent police coercion
D on the bus, three officers on the bus, youre effectively stuck in your seat,
officers have announced theyre doing drug interdiction, officers face 12 inches
away
Court says this is a consensual encounterb/c police did nothing above and
beyond being police officers that would lead a reasonable person to feel they were
not free to terminate the encounter (they switch to terminate the encounter
from free to leave)
Police had no individualized suspicion to single out D couldnt be a Terry stop, so
must be treated as a consensual encounter
Cole: This reasoning has no connection to the real sense people feel of polices
authority/ coercive power
(Robert Wilkins is one of the judges on DC Cir (story about him in todays
readings from Coles book))
Why does the Court take this unreal approach?
B/c, it would really hamper police effectiveness if they couldnt talk to people
Cole mentioned idea of community policing which relies on police-citizen
interactions
So, theres a non-trivial reason why courts require level of coercion higher than
the mere fact of being a police officer
If its a consensual encounter, youre free to walk away. And police could pursue
you only if you create reasonable suspicionobjective reasons
Even using courts rationale (free to terminate the encounter), you could still
argue Drayton situation is very differentthat there was a higher level of
coercion and assertion of authority
You could argue that police exploited situation to heighten the coercion beyond
level of normal kind of interaction
In response, argument could be that Drayton chose to go on the busso, police
not accountable for that choice
Souter says this is crazy, in dissent, b/c police are exploiting the persons being on
the bus
Courts TEST in Drayton: Would reasonable person feel free to terminate the

encounter?
YES consensual encounter
NO at least a Terry stop, and could be an arrest
Cole: consequence of this test police are permitted to use their discretion, and
constraining circums (like being on a bus), to approach whoever they wantb/c
no individualized suspicion is requiredto subject these people to consensual
encounters
Yet another doctrine that creates discretion that allows police to engage the
citizenry w/o having individualized suspicion
Such unfettered discretion often leads police to target young people of color
Student Q: Seems to be a natural difference b/t community engagement vs.
investigative line of questioning to confirm/ dispel suspicioncant we
distinguish b/t the two?
Court (and society?) thinks polices job is to investigate crime and to get intel on
suspicious actorsnot just to make witty repartee w/ people
We need to give police some leeway to develop reasonable, individualized
suspicion

Whren (p. 181)pretextual stop

Two young men stop for 20 seconds at stop light, in new Pathfinder (car), then
turn w/o signaling and speed (a bit). Then police pull up next to them
Police had probable cause for Ds violation of traffic laws. Gives them right to
stop car.
If police were traffic enforcement officers who genuinely pulled Ds over solely
because of traffic violation, and then police happened to see drugs in plain view,
then that could be permissible.
But, these officers were plainclothes officers who, per DC police regulation, were
not supposed to pull them overthey were not authorized to make this stop.
Actually, its dangerous to do so. So, impermissible except for grave situations.
Ds lawyers argue:
This was a pretextual stop, against the DC police regulations.
Court doesnt generally see pretextual law enforcement as a problem. It happens
frequently.
E.g., Al Capone was a mass murder, but no one willing to testify against him.
They ultimately got him on tax evasiondidnt need any witnesses for that.
They didnt go after him for tax violations B/C of those tax violationsbut that
was a pretext for arresting him for murder.
So, the pretext isnt problematic in itself. But, traffic violations are particularly
problematic b/c you could find a traffic violation committed by almost anyone at
any time.
So, much like w/ expansive drug courier profile, or w/ reasonable person
standard, concern is that traffic violations dont effectively identify people
who should truly be subject to a stop. It makes everyone subject to stop its up
to polices discretion, and plenty of evidence shows they rely on stereotypes and
racial profiling.
Evidence that officers of all races do racial profiling.
But, purpose of reasonable individualized suspicion is to restrain polices
discretion to people as to whom it has developed individualized bases for
suspicion, rather than rely on generalized bases for suspicion
So, traffic violations dont do sufficient narrowing work
Therefore, Ds argue, Ct should ask whether a reasonable officer would have, in
practice, actually stopped the carand if so, thats a constitutional stopif not,
and if only reason to stop the car is to find some non-traffic violation, then thats
unconstitutional

Courts response to Ds proposed rule:

Its an unworkable standard.
How could we apply this rule? How would courts know what reasonable officer is
likely to do?
If data shows police typically stop people for speeding only when theyre 9 mph
above limitmaybe police typically think its enough to stop some people,
enough to deterso who DONT you stop?
Its unreasonable. Constitution only requires objective individualized suspicion
that person has committed a crimewe dont look into the subjective motives of
the officers
Were not going to throw out Al Capones conviction b/c the police werent really
interested in his tax evasions.
Court has consistently rejected inquiries into subjective intent of officers where
there is probable cause.
Subjective intent only matters for exceptions to prob cause requirement that turn
on reasons other than law enforcement (like, administrative searches)
If police stopped two young black men just b/c of racethat could violate equal
protection clause of 14th amdt, but not a FA issue.

Atwaterp. 187
Is it constitutional, when you engage in a stop for purposes of traffic code
violation, to arrest a person for offense not deemed by legislature to be subject to
incarceration (if found guilty)?
TX law imposes a fine for driving w/o seatbeltalso authorizes police officers to
arrest offenders
Ds proposed rule: where theres a real threat to public safetywhere theres
some reason to arrest (e.g., drunk driver)then you can arrest
Where theres no threat to public safety, police shouldnt be able to arrest
You cant arrest for a non-jailable offense short of some compelling reason (like
public safety)
Court rejects Ds argument
Often not obvious whether the person is guilty of an arrestable offense or not
how many grams of drugs? Repeat offender?
There may be multiple violationsdont know what prosecutor will charge her
with
So, state has a strong interest in clear, administrable, bright line rules
Court wants
If theres prob cause that they violated a non-jailable offense, then you can arrest
them.
Court doesnt even want dissents additional factordissent wants police, in order
to arrest someone, to provide some additional articulable reason for arrest beyond
the violation itself
All the situations we discussed today give police broad discretion to stop, arrest, etc.
almost anyone, based on generalizations
Result is the kind of police enforcement described in chapter of Coles book
Police dont have to give individualized reasons for violation theyre actually
targeting
Leads to double standard whereby police target people of color

Dem Co Notes 4/13/16

Last time: Remedies to Fourth Amendment (FA) violations
Wolfeven though FA prohibition against unreasonable search and seizure is
fundamental and applies to the states, the Exclusionary Rule (ER) remedy does
not
Rationale: b/c states had alternative remedies
So, Ct divided constitutionally required RIGHT from the REMEDY, which it said
was judicially implied and required for federal officials under Weeks
Mapp reversed Wolf
Ct says right and remedy must be seen as one
Since Wolf, weve learned that alternative remedies (tort/ trespass actions) were
not adequate, and many states had adopted ER
ER is a clear, specific, and constitutionally required, even if judicially implied,
safeguardw/o which FA would be a form of words
And they say ER is an essential part of the right of privacycontrary to Wolfs
distinction b/t right and remedy
Cole/ Amar
ER is an odd remedy in that it only compensates those w/ evidence of criminal
guilt
In Mapp, Ct analogized 5th Amdt to FAbut that analogy isnt tight, b/c Fifth
Amdt. prohibits the USE of certain evidence (defendants words) in trial
FA has nothing to do w/ incriminationsubstantive right relates to the search
itself analogy is not a strong justification for ER
ER justified as a deterrent/ safeguard
In later cases, deterrence is the primary lens thru which Ct sees ER
ER is not an individual rightER doesnt result from right inherent in the
defendant, but as a deterrent to violation of FA across the board
Stuntz
ER is a perfect mechanism for deterrence in that it avoids problem of overdeterrence by not over-penalizing officers for FA violations
Over-deterrence would be problematic to extent
ER simply takes away precise benefit state reaped by unconstitutional search
Also, ER illustrates the costs of violating FA
Cost of the ER (that guilty go free) is actually cost of the FA itself
If police complied w/ FA in first place, evidence would never have been gotten
This is inherently a cost of privacy protections for society at large; privacy
protections must cover guilty as well as innocent
Amar
ER is NOT a good deterrent, b/c it skews perspective judges perspective on FA
by ensuring that most cases they see re whether to protect privacy involve bad
guys trying to exclude evidence of their crimes
Whereas if FA enforced via civil damage actions, then innocent people whose
privacy violated would have incentives to file suit, just as much as guilty people
would
Thered be more variety of cases before judges, who would see both benefits of
FA (in terms of innocent peoples privacy violated) and what they see now (only
guilty people)
Leon, 1984, p. 66good faith exception
Question: Should ER apply when officer went to magistrate, made showing of
probable cause, obtained warrant from magistrate, officer properly executed

warrant, but turns out magistrate never should have issued the warrant for lack of
probable cause?
The wrong was magistrates mistake in treating affidavit that did NOT present
prob cause as sufficient to justify the warrant
Ct says ER should NOT be applied in these circumstances
Cole
In a sense, this is paradigmatic of what FA prohibitswarrant issued NOT on
probable cause
Here, Ct is again dividing the right and remedy, as in Wolf
Courts reasoning
Based on premise that ER is about deterrence
Cost/ benefit analysis: Question of whether to apply ER is whether the benefits
of applying justify the social costs
Ct decides that under these circums, the costs outweigh the benefits
Cost = exclude evidence and in some # of cases, exclusion will let people off
(either scot free or on lesser charge)
Ct refers to studies with very low ratesER results in non-prosecution or nonconviction of between 0.6 and 2.35% of people arrested for felonies
Still, Ct says its a large absolute number
But, major point: Even if the costs are small (of guilty people going free), if
theres NO deterrent value, then dont apply ER
Argument for no deterrence benefit
Officer didnt do anything wrong that we would want to detertheyre supposed
to get a warrant and execute it zero deterrent value
In terms of magistrates, theres already an alternative check on magistratesthey
presumably care whether they get affirmed/ reversed
But, under good faith exception, reviewing court wouldnt even have to decide if
magistrate messed up, as long as officer didnt do anything wrong
Also, Ct says wont deter magistrates b/c they have no stake in the goals of law
enforcement, which only the officers are pursuing
Magistrate is just supposed to be independent arbiter; not part of the prosecutorial
scheme
Ct also says magistrates dont NEED to be deterred b/c they have no incentive to
over-count law enforcement interests and undercount privacy intereststhose are
the reasons for FA w/ resect to police officers themselves
Magistrates dont create the kind of institutional concerns that the law
enforcement officers create
OBJECTIVITY of the GF exception
Its an objective good faith standard
Means it would be entirely unreasonable to believe that probable cause exists
that the facts amount to probable cause
Ct does NOT want a subjective standard
As much as possible, in FA law, Ct avoids tests that probe into the subjective
purpose of police officers, b/c
(1) hard to determine
(2) costly to adjudicate
(3) objective standards tend to define the reasonableness of searches on the
circumstances rather than internal working of the specific officers mind
Exceptions to the good faith (GF) exception (i.e., conduct that remains subject
to ER)
If officer knowingly or recklessly provides false affidavit to magistrate. This IS
subject to ER, b/c it can deter officers from not doing it.
If its entirely unreasonable to say that prob cause exists
If warrant is so facially invalid so as to be unreasonable to think its valid

This is not about probable cause. Its about other requirements for warrantse.g.,
that warrant describe w/ particularity the places and things to be searched
Warrant was improperly executed
E.g., warrant allows search on Monday, and officer goes on Tuesday
(However, after Hudson, unclear whether this will apply)
When magistrate abandons her judicial role and becomes part of police operation
E.g., case where magistrate goes w/ police to conduct a search
Student question about rubber stamp problem.
Cole thinks it would be very difficult to show.
Most magistrates have a very high grant rate.
E.g., for warrants to tap phone, from 1969 to 1973, under this statute (applied
across country)3,838 applications for warrants, and only 2 were denied
For FISA taps (not crim law enforcement, but tapping phones for intelligence
gathering), in 25 years the court turned down 2 applications
Judges say these #s are misleading. There are internal mechanisms to ensure
probable cause exists by the time the formal ruling to grant the warrant happens.
This GF-exception is more about glaring violations like magistrate engaged in
police activity with the police.
HYPO: Suppose police officer suspects X is criminal, and X is gathering
evidence. X goes to Y magistrate knowing that Y is lenient w/ issuing warrants
Suppose X admits he didnt not have probable cause and only went to Y b/c more
likely shed get a warrant.
Under GF exception to ER?
Depends on whether the officer was acting in objective bad faith
Arguments against GF exception:
We DO want to deter magistrates. And not having GF would at least trickle down
to magistrates, in terms of deterrence. No one will be happy if guilty people go
free BECAUSE of magistrate mistakes.
If magistrates mistakes dont matter, pro-law-enforcement magistrate might do
the bare minimum, which under GF regime, is only to ensure its not entirely
unreasonable that prob cause exists.
GF is too narrowly focused on particular officer in particular instance. Instead, we
should think of systemic effects on police departments.
Under GF regime, no real reason to pay close attention to prob cause standards.
W/o GF exception, officer would be incentivized to double check magistrates
prob cause determinations, and to have better prob cause affidavits in warrant
applications.
GF reduces obligation on police to present good prob cause showings to
magistrates.
HYPO: What if an officer believes, in objective good faith, that she has prob
cause, and executes a search w/o a warrante.g., automobile searchand finds
contraband
Suppose D (defendant) moves to suppress for lack of actual probable cause
Does GF exception apply b/c officer acted in good faith, objectively?
No.
GF only applies when officer has gotten a warrant.
Bottom-line predicate for GF exception is that magistrates WILL not and do not
NEED to be deterred by ER

Footnote cases that flow from Leon reasoning

Illinois v. Krull
Officer conducted a search based on statute authorizing certain kinds of searches
Ct ruled statute was unconstitutional but did NOT apply ER to evidence obtained
from search

Ct said police officers can be deterred, and ER can keep them in check.
Legislators, on other hand, are not directly engaged in law enforcement. They
dont need to be deterred. Since police officer didnt do anything wrong, officer
obeyed the law, so no need for ER. BECAUSE no deterrent effects.
_________ (Cole couldnt remember)
When officer executes arrest based on warrant issued due to clerical error.
ER does NOT apply for same reasoning. Clerk in court is not caught up in law
enforcement and does not need to be deterred.
Davis
If officer conducts search based on court ruling that says that in these circums
search is constitutional, and then that ruling is overruled, then ER does not apply.
Same reasoning againofficer relied on ruling, and judge messed up. Judges
cannot be deterred by ER.
General principle/ rationale:
Where the mistake/ violation can be attributed to government official who is NOT
a police officer (i.e., gov official who is not caught up in law enforcement
activities), then the GF exception applies on same reasoning as in Leon.

Two categories of exceptions to ER

GF exception has to do w/ the person whose actions dont need to be, and cannot
be, deterred
ER does not apply to use of evidence in proceedings other than criminal trials
Deportation proceeding
Civil tax proceeding
Parole revocatione.g., youre out on parole and caught w/ contraband
Parole revocation proceeding is not considered a criminal proceeding
Even a grand jury proceeding, which is to decide whether there should be a
criminal trial
Even in a criminal trial, ER only requires that the evidence not be introduced in
prosecutions case in chiefi.e., the prosecutions affirmative case
During Ds case (defenses), prosecutors can introduce otherwise inadmissible
evidence to impeach (rebut) defense
So, officers can use inadmissible evidence in lots of ways other than in case-inchief during criminal trial
Rationale is that deterrent work of ER is satisfied by prohibiting admission during
case-in-chief
Additional deterrent work of applying it to these other situations is not worth the
cost
Idea is that during investigation or field work of law enforcement, they dont
know in what way they might want to use the evidence gotten during an illegal
searchthey just know that they wouldnt be able to use it during the case-inchief
But, in many cases, defense just argues that prosecution did not meet its burden to
show reasonable search
J. Breyer lays these out in two indented paragraphs in Hudson dissent, p. 85
Next two cases expand exceptions to ER
Hudson, 2006, p. 78knock and announce
This exception does NOT fall into the two categories of exception just explained
Knock and announce ruleconstitutional requirement of FA
Officers, in conducting search, must knock and announce themselves, and then
wait a reasonable amount of time
UNLESS officers have reasonable, articulable suspicion that theres a threat to

officers safety, that evidence would be destroyed, or that knocking would be

futile
This reasonable suspicion can be developed in the moment, or in advance via noknock warrants (if allowed by that state, and if officers can show one of the three
categories of reasonable suspicion)
Ct has an originalist justification for thisEnglish common law required that
warrants be executed in this way incorporated by Framers into the Constitution
In this case, undisputed that officers violated knock-and-announce requirement,
by failing to take enough time
Scalia/ majority reasoning
(1) No but-for causation
ER requires but-for causation (but-for the FA violation, officers would not have
found the evidence)
Officers had a warrant. So, even if they waited 30 seconds rather than 3 seconds,
they still would have executed the warrant and found the evidence
(2) Attenuation
Even if its a but-for cause, ER does NOT apply to all evidence found where there
is attenuation
In general, attenuation can be in terms of the causal chaintoo remote. If too
remote, Ct might say fruit of poisonous tree doctrine no longer applies.
But Scalia uses attenuation in a different waydisjuncture b/t interests served by
knock and announce requirement and evidence that was found
Warrant requirement protects privacy of a home. If officers w/o warrant search
home and find evidence, theres a direct connection b/t evidence and the privacy
protection.
Here, privacy of home is already protected by the warrant. Instead, knock and
announce protects DIFFERENT INTERESTS (violence, property damage,
decency)
Knock and announce does NOT protect privacy of contraband in the home
So, the finding of the evidence is attenuated b/c its not connected to the purposes
served by the knock and announce requirement
Scalia relies on Harris, where police had probable cause but did not have warrant,
and arrest person at home
(Payton: warrant required to arrest someone at home)
At police station, Harris voluntarily confessed. Then argues ER should exclude
confession b/c brought about by unconstitutional arrest.
Ct said it was attenuated b/c warrant requirement is to protect privacy at the
home.
But, once D is at the station, privacy of the home is no longer being exploited.
(3) Costs outweigh the benefits
In some ways, this is the ultimate categorical assessment that justified all the prior
exceptions to ER, for those specific categories of circumstances.
Costs
Costs of litigation. Every defendant in every warrant search would raise this
exception.
Over-deterrence. Officers might hesitate to do the search at all for fear of being
accused of not waiting long enough. Or, they might be incentivized to wait too
long, which can have negative consequences.
Less need for deterrence for violation of this rule, b/c police dont get much for
violating it. Once already authorized by warrant to enter the home, they have
access to the home either way.
Dissent
This holding means that knock and announce requirement is meaningless
In Mapp, Ct said that a right w/o a remedy is merely a form of words.

To dissent, Scalia says theres the option of civil damage actionslots more
options now
(Hes not making the Amar argumentthat would overturn lots of precedent)
1983 gives individuals cause of action against states for damages for states
violations of civil rights
Or plaintiffs can file directly under the Constitution if suing federal officials
You can sue municipalities today
You can get damages AND attorneys fees
Problem: Scalia cant point to a single case of civil damages for violation of
knock and announce
Partly b/c of immunity doctrines, and small amount of damages to be recovered
Dissent says this damages-alternatives rationale helps not at all
Cole
The argument about alternatives (updating) could be made in favor of rejecting
the ER entirely
Kennedy is 5th vote, only joins in the judgment
He specifically says the ER continues, and so does the knock and announce rule
But only in these particular circumstances does Kennedy agree w/ judgment

Herring, 2009, p. 92
Like Hudson, it doesnt fall into Breyers categories
It involves police, and involves excluding evidence from case in chief
Broader than Hudson b/c but-for & attenuation arguments are not available
So, this case comes down to pure costs/benefits analysis
Next time well start w/ these questions about this case:
Why does CJ Roberts find that costs outweigh the benefits in this situation?
How expansive is this exception to ER?
Also well discuss other ways to enforce other ways to enforce constitutional
rights
McCleskey is challenge to capital punishment on racial lines
Supplement looks at other ways of addressing constitutional violations