Criminal Procedure Outline

Amendment 4
• If no warrant, is the search unreasonable?
• Are the people not protected by government actions that is short of search or seizure?
• Warrant must describe place to be searched, and person, and things to be seized.

Amendment 5
• Cannot compel someone to confess, but what about coercion? What stage in investigation?
• A defendant is guaranteed a right to have assistance of counsel. Does this compel the state or
government to assist?

Amendment 14
• No deprivation of life, liberty or property without due process of law. (state or federal gov.)
• Can an individual engage in unreasonable search and seizure?
o The constitution does not regulate (except Amend 13, slavery) individuals

Supremacy Clause
• State cannot enact laws that violate the federal constitution (ex, free speech)
• State can broaden constitutional protection of individuals
• As long as U.S. supreme court concludes that conduct is within the constitution, the federal courts must
comply,

Inherent ambiguity
“the people” can be interpreted broadly, but U.S. Sup. Court see it as a limiting term, only those who
are part of national community or with sufficient connection with this country (illegal search in Mexico
of a non citizen is not covered)

Tension Between Reasonableness and Warrant Clause

• Search and seizure is presumed unreasonable without a warrant
• Many exceptions

“Probable Cause”
• Standard that permits search and seizure without a warrant

Remedies
• Considered in connection with exclusionary rule

Purpose of the Amendment

Privacy protections of the people vs. power of the government

I. Threshold Requirements for 4th, What is a search and seizure?

Katz v. United States, 38

• Government agents attached electronic listening & recording device in public telephone booth
• Issue: was the phone booth a constitutionally protected area (Δ’s argument)
• Supreme Court
o Constitutionally protected area unhelpful: 4th protects people, not places
o Right to privacy not applicable to 4th amendment
 o Even though the government does not physically invade & what they are taking may not be
tangible, could still be a search or seizure
• Π argues that they had met standards for a warrant
o Powers must be separate, need for a neutral magistrate
• J. Harlan Concurring, 2 Prong Test
o Individual has to exhibit a subjective/actual expectation of privacy [subjective]
o That expectation must be one that society is prepared to accept as legitimate [reasonable,
objective]
 Plain view doctrine
 Home
 Conversation in the open (no subjective)
 Shutting door of phone booth, reasonable qualifies as temporary private place
• Notes following Katz
o Issue is typically whether the government’s conduct was reasonable

Applications of Katz

Abandonment & Katz

• If you claim something is not yours, you do not have an expectation of privacy, no 4th amend. protection
• Abandonment may be explicit or inferred (from acts, words, and other objective facts)
• If abandoned, a person has no standing to complain of 4th protection

Open Fields Doctrine

• Distinguished from constitutionally protected areas
• A person does not have a legitimate expectation of privacy
• Oliver v. United States
o Field of marijuana, mile from Def. house
o An individual may not legitimately demand privacy for activities conducted out of doors
except in area immediately surrounding home
o No societal interest in privacy for activities in open fields
o Only curtilage warrants 4th amendment protection
o Open field may be neither “open” or a “field”
o Even if officers committed trespass, they had not violated 4th amendment
o There was a subjective expectation of privacy, but not an objective

Questions about Oliver and Open Fields Doctrine

• Possible that open fields only applies to “observation searches” (not settled)

Unites States v. Dunn, 49

• A barn located 50 yards from fence surrounding a residence on almost 200 acres of property was outside
the curtilage. Officers went pass fence enclosing entire area, and interior fence, and smelled drugs.
Shined light through netting around barn.
• Curtilage, 4 Factors
o Proximity of the area claimed to be curtilage to home
o Whether the area is included within an enclosure surrounding the home
o Nature of the uses to which the area is put
 Can’t use retroactive evidence that area was used for drugs, owner must demonstrate
objectively that it was being used for intimate activity of the home
 Judged from outside observer
 o The steps taken by the resident to protect the area from observation by people passing by
Other cases
• Visual inspection of property within the curtilage from outside of the curtilage does not constitute a
search

Access by Members of the Public

• If an aspect of a person’s life is subject to scrutiny by society, then that person has no legitimate
expectation of privacy

Consensual Electronic Surveillance

• One contemplating illegal activities must realize and risk that his companions may be reporting to the
police.
• An undercover cop does not violate 4th amendment by accepting an offer to do business that is freely
made to the public
• Hidden video camera in mailroom (p.51)
o No reasonable expectation of privacy in public mailroom

Financial Records, 51
• Does recordkeeping and reporting requirements of Bank Secrecy Act of 1970 violate 4th amendment?
• No reasonable expectation of privacy over certain bank records

Pen Registers, 52
• Supreme Court says Smith assumed the risk that the company would reveal to the police the numbers
dialed
• EPCA of 1986
o Provider must give consent or court order obtained (must give statement that pen register is
likely to uncover information relevant to criminal investigation)

Carnivore & Computers

• Patriot Act permits pen collection of Carnivore
• Trash:
o Not issue of whether it was abandoned, mere fact that animals/people have ability to go through
it, therefore no expectation of privacy
• Arial Surveillance
o Not search b/c observations from public vantage point, and had right to be, not a 4th amendment
search
o Florida v. Riley; even closer distance between ground and helicopter, court held was legal
because no law prohibited the public from doing the same, therefore no reasonable belief of
privacy

Bag Search: Bond v. United States

• Agents search bus, give bags a “hard squeeze”
• Court holds Defendant did have some reasonable expectation of privacy in that he reasonably did not
expect others to touch bag in exploratory nature
o Opaque bag
o Placed under his seat

Investigation That can Only Reveal Illegal Activity

• Not a search if it can only reveal illegal activity
• Canine Sniffs
 o Limited in manner in which info. is obtained & content of information revealed, therefore sui
generis
o Manner in which information is obtained not intrusive (does not require police to open bags)
o A canine sniff of closed luggage for drugs was not search because dog sniffed in a limited
manner
• Chemical testing: because this type of search only reveals illegal substances, not protected by 4th
amendment

Technology & 4th Amendment

Kyllo v. United States, 64
• Thermal Imager, across the street in the car, compared heat of suspect’s house to neighboring houses
• Agents also had tips from informants, as well as other info. in addition to imaging, to obtain warrant,
then searched house and found drugs
• Issue: did thermal imaging violate 4th amendment; was it a search?
• Needed probable cause for warrant, did not believe they had enough, so police used thermal imaging
device
• Reasoning:
o Warrantless search of home is unreasonable
o Visible observation is not a search
o The degree of thermal imaging makes it different from a visible search
• Holding
o Obtaining by sense-enhancing technology any info. regarding the interior of the home that could
not otherwise have been obtained without physical intrusion into a constitutionally protected area
constitutes a search, at least where the technology in question
o This assures preservation of that degree of privacy against government that existed when the 4th
amendment was adopted. On the basis of this criterion, the information obtained by the thermal
imager in this case was the product of a search.
o Government claims could not discover intimate activities; Court holds that inside home all
activities are intimate, impractical to distinguish between what activities are intimate
• Thermal Imaging today requires a probable cause, which is enough for a warrant

Dog Sniff During Routine Traffic Stop

Illinois v. Caballes (Supp.)
• To search trunk of car, needed probable cause, which dog sniff could provide
• U.S. Supreme Court
o Issue: Whether 4th amend. Requires reasonable, articulable suspicion to justify using drug-
detecting dog during legitimate traffic stop
o A seizure that is lawful if the manner unreasonable interferes with 4th amendment rights
 Duration of the stop [sub issue 1] Was it an improper extension of duration of time?
• Time that is reasonable required to write a ticket
 Character of a dog sniff, is it a search? [sub issue 2]
o Dog Sniff:
 Official conduct that does not compromise any legitimate interest in privacy is not a
search subject to 4th amend (Katz)
 No legitimate interest in contraband; gov. conduct that only reveals the possession
contraband compromises no legitimate privacy interest (no objective interest in protecting
drugs)
 Because well trained drug dogs disclose only place of contraband, it is sui generis
o Analogy to Kyllo
  Thermal imaging can detect lawful activity (heat vs. drugs)

Notes about Kyllo

• United States v. Knotts
o Monitoring of beeper signal in drums
o Issue: did officers invade reasonable expectation of privacy?
o Court held okay because visual surveillance would have sufficed, was not a search
• Investigate Activity by Private Citizens, 77
o Constitution only regulates state actions
o Person can give something to government, no action against government, only against private
individual
o How to establish if agency has been established
 Did the private actor believe he was doing it for the government, AND
 Did the gov. have reason to know actor would act in that way
o Skinner Case
 Drug testing of railroad employees, court found 4th amendment applied because clear
indices of the government’s encouragement, endorsement, and participation sufficient to
make the drug testing a government search regulated by 4th

Reasonableness & Warrant Clause

Johnson v. United States, 86
• Confidential informant told police of scent of opium coming from hotel room
• Police officers identified themselves as law enforcement; had experience in narcotics, knew smell of
opium, heard shuffling, woman opens door, “I want you to consider yourself under arrest” and searched
the room
• Supreme Court
o Entering room is the beginning of the search
o Consent allows police to search and defendant waives any rights against search
o Defendant did NOT waive search because police officers demanded entry under color of office
o Defendant’s response was submission to authority, and was not understood as an intentional
waiver of constitutional rights
o Officers, with smell and informant, had enough for probable cause & should have gone to
magistrate for warrant
o No reason for warrentless search in this case except inconvenience to officers; suspect was not
fleeing, not a search of movable vehicle, no sign of evidence being destroyed
o Was NOT a search incident to lawful arrest because there was no justification for arrest without
search

Function of a Warrant
• Policy considerations
o 4th amendment: Protects against unjustified searches and seizures
o Cannot justify improper behavior by finding drugs, ect.
o Warrant requirement limits scope of the search (must be reasonable)
o Opportunity to refuse a warrant when unreasonable
 Warrant applications are almost always granted
o Warrant requirement reduces the perception of improper police conduct
 Perception is important for good of society that society perceives that police are doing the
right thing
Obtaining a Search Warrant: Constitutional Pre-Requisites
Demonstrating Probable Cause

The Use of Confidential Informants

Spinelli v. Unites States, 91 (later overruled)
• Aguilar Test, 2 Prong Test, Application must set forth in affidavit:
o Set forth the underlying circumstances necessary to enable the magistrate independently to
judge the validity of the informant’s statements (Reliable Informant)
 Police officers & citizens are presumed to be honest
 Criminals (past or present) do not have this presumption. Can rebut through
• Showing that informant has given reliable information numerous times
• Honesty over criminal behavior
 Anonymous
• Reliability cannot be presumed
o Information by police to support claim that their informant was credible or his information
reliable (Personal Knowledge)
 Direct Statement of Personal Knowledge
 Self Verifying Detail
 Corroboration (can remedy either prong)
• Information in the affidavit
o FBI watched defendant go to certain buildings at certain time, check with telephone co., 2 phone
lines under female name
o Defendant was known to be a gambler and associate of gamblers
 Activity that could be criminal or not, without informant
o Gov. agrees that FBI did not have enough for probable cause, but in conjunction with the CI’s
tip, there was probable cause, through “totality of circumstances”
• Supreme Court held Totality of Circumstances was not enough
o Holding: Informant’s tip must pass Aguilar’s test without independent corroboration.
o The tip did not meet this standard, no probable cause
 No sufficient statement of underlying circumstances; it was conclusory
 (Draper case, p.93) source must be credible, info must be reliable
 Must prove this
 FBI independent info, does not satisfy this because not enough
• Dicta, p.94, last full paragraph
o Probable cause is NOT prima facie
o Police must only meet threshold probable cause requirement
o Aguilar is less rigorous than Rules of Evidence
o Magistrate may use common sense
o Magistrates finding of probable cause must be accorded great deference on appeal
• See page 97-98 for application of Spinelli rule

Illinois v. Gates, 99
 Anonymous tip to police about drugs and flying to Florida, police watched couple, corroborated most
actions with tip
 Illinois court
o Motion to suppress evidence: granted, saying affidavit was not enough for warrant  fruit of the
poisonous tree
 Court of Appeals & Ill. Supreme Court
o Agreed with trial court
 o Illinois Supreme Court says it is bound by Spinelli
 U.S. Supreme Court
o Two prongs are too much, only a totality of circumstances is needed, they are closely
intertwined.
o Probable cause as a fluid concept
o P. 102: deficiency in one prong can be compensated by the other
o Affidavits are usually drafted by lawyers, police are not lawyers, use common sense judgment
o If too hard to get a warrant, it will encourage police to not use warrants
o P.103 two prong test impedes the tasks of law enforcement, making anonymous tips to diminish
in value
o Holding: totality of circumstances & common sense
 Warrant was proper because
o P. 104, independent investigation suggested drug trafficking, the letter was corroborated by
police, and predicted much of the defendant’s conduct, perhaps tip was not enough (credibility),
but sufficient for common sense finding, it described and predicted details not easily obtained.
o Fair probability the informant had obtained info from defendant or someone the defendant
trusted.

State court: can use Spinelli, has to at least apply totality of circumstances

The Gates Test Applied: Massachusetts v. Upton, 110

• Facts: phone tip from anonymous female with info. about stolen items in home of defendant; identified
specific stolen items; police officer recognized voice and asked if it was the defendant’s girlfriend; she
admitted it was her, would not give personal information.
• Reinforced that Gates replaced Spinelli for probable cause and confidential informant
• Totality of Circumstances/common sense
• Ordinary Citizen
o Presumed for reliable/credible than anonymous informants, or police informants
o Presumption they are motivated for societal good
• Tip, stolen items in trailer, parked at suspects home, suspect planning to move loot soon in response to
raid
• Officer correctly guessed informant was girlfriend, (had met her before, voice and details she gave)
gives more credibility to tip, warrant was issued
• No dispute over initial raid, Issue: validity of warrant search pursuant to warrant content and
credibility of tip
• US Supreme Court
o MA Supreme misunderstood Gates
o Gates rejected Spinelli as hyper technical
o Emphasized the deference to be given to the magistrate: no de novo scrutiny after the fact: all
that is needed is a substantial basis for the warrant
o Although no single piece of evidence is conclusive, there was a substantial basis for this warrant:
pieces fit together
o We do not require certainty: reasonable inference that she was girlfriend is enough

Accomplices
• Informant is more suspect than accomplice,
• Accomplice’s testimony can be used to convict in trial
o Some jurisdictions, also needs corroboration
Quantity of Information needed for probable cause
• “fair probability” of a crime is probable cause
• Prandy-Binett Case
o Facts: Union Station, police observe particular individual walking though station, approached Δ,
said he lived in one state, license said another, officer futher suspicious over small tote (Δ had
said he just spent week in NJ). Asked if there were drugs inside. Requested permission to
search bag, Δ opened bag, an opaque bag wrapped in duct tape. Detectives arrested Δ, seized
bag and contents. (block revealed to be cocaine)
o Equivocal activity as probable cause
 Suspectable activity, which of itself is not a crime, but does suggest a crime
o “bare suspicion” <----------probable cause---------beyond reasonable doubt
o (reasonable suspicion is between bare and probable)
o Conditional probabilities
 What are the odds that someone would engage in all this conduct, and not be conducting
a crime
o At issue: was seeing the brick probable cause for arrest
 No warrant, suspect would have fled
o Probable Cause found
 Bulk of block
 Shape of block
 Wrapping
o Amounted to fair probability

Probable Cause to Arrest: Valez (118)

• Had probable cause, used description, arrested wrong man, he had drugs on him
• Why are the drugs admissible in court?
o There was probable cause based on sufficient similarity to description

Probabilities With Multiple Suspects

Maryland v. Pringle p.120-121
• Facts: police stopped car for speeding, driver (who had passengers in car) consented to search after
officer saw a large roll of bills, search found drugs in back seat.
• Driver consented to search, after officers saw roll of bills
• Find drugs, have probable cause
• Questioned, no one said who’s drugs, arrested all 3 passengers
• U.S. Supreme Court
o Issue: defendant claims arrest was unlawful, b/c only the driver should have been arrested
o Court concluded that is was reasonable under circumstances that all 3 exercised dominion or
control over the drugs

Obtaining a search warrant: constitutional prerequisites

Probable Cause for Arrest Different from the Charge on Which the Defendant was Arrested
Devenpeck v. Alford (supp)
• Issue: Suspect is suspected for crime A but arrested for crime B. They thought that they were arresting
for probable cause that Δ engaged in crime A – they were wrong. But Δ was engaged in crime B. IS
THIS A VALID ARREST?
o Cops believed they had probable cause for A, and arrested Δ; in fact they did not have
probable cause for A, but they did have probable cause for B  arrest still valid
 • Facts: wig-wag lights on car. Car on side of the road and D asked if the guy was a cop. This guy was a
wanna be cop. The police thought that D was a wanna be cop. He saw items in Ds car that. He told
officer he worked for the state patrol. A sergeant arrives at the scene and questions D – skeptical of D.
See a tape recorder recording the conversation
o The officer has PC that D committed a crime of violating the Washington privacy act. D says he
is allowed to do this – has a copy of act in car.
• D wasn’t violating the privacy act but had PC of him trying to impersonate a police officer.
o Supreme Court
 We cannot look at after the fact consideration - look only to the reasonable
inferences at the time of the arrest.
 Do we do this according to the officers own subjective inference or do we look at this
from an objective standard?
 We should not allow subjective interpretations be the deciding factor – should be
objective.
 Therefore it is irrelevant why he arrests so long as the Officer has PC to make the
arrest. When the P believes that D is engaged in conduct that P has PC to arrest – even if
he is wrong subjectively, if the facts demonstrate objectively that there is PC – then we
will allow the arrest. Although arrested for the wrong reason, cans till be lawful
subjectively. Even if not closely related
• Changed the district ct rule.
 Problem with the closely related test – we would not have consistency in arrests, it would
depend on factors familiar to the officer. – this is a surprising concern.
 Rejects the closely related rule.
 As long as we stick to the objective test then the answers are clear. We throw out
whatever statement the officer makes and we look at the facts as known to the
officer and we make a conclusion if the officer has PC to make an arrest whatever
they may be.
 Says that the 9th circuit has to look at the substance of the B charge because the close
related test is rejected and see if B alone gives rise to PC and if proper then must rule in
favor of officers and show no claim for civil rights violation.

Devenpeck v. Alford, 543 U.S. 146 (U.S. 2004)

Probable Cause, Specificity & Reasonableness

Warden v Hayden, 126

Things that Can Be Seized
• Before 1967 said the search had to be part of the fruits of the crime, and not the mere evidence of the
crime. This distinction is not workable and this case rejected this distinction.
• Exigent circumstances exception – under the circumstances seemed to impractical and difficult
• As long as Δ shows he did everything he has at the state ct level then he cal look across to the federal ct
system – habeas petition for relief that the state ct decision violated their rights
• Federal ct:
o Police found mere evidence, the clothes weren’t used to commit the crime – therefore the
conviction was based on improperly obtained evidence.
• Supreme Court:
o Privacy is no more disturbed thru this procedure of evidence related to crime, vs evidence of fruit
of the crime – there must be a nexus between the items seized and criminal activity – a relation.
 o Clear that obtaining these clothes helped with the conviction of the D and aided in the conviction
of d.
o Although they are broadening the range of police activity - 4th A search can look for mere
evidence of a crime, but we still require PC and warrant (neutral magistrate)

Concept must have PC as to the location of the evidence

• Probable cause that the evidence is located on that property
• A search of a non suspects home for the purpose of obtaining evidence of another’s crime.
• Zurcher Case – third party search  ok if properly issued
o Searched the offices but didn’t find any evidence. Warrant search of materials violated their
rights
o SC: can search for evidence of the crime – to prevent unreasonable search and seizure
must have PC and warrant with the location of area to be searched and the objects to be
seized.
o Therefore a search of another’s premises for Ds crime is ok as long as meet all the other
requirements.
o Police can search a third parties premises for evidence of a crime committed by someone else –
no violation of rights

Particularity Requirement - Reasonable

• Have to have a description of the place to be searched.
• SC says – in light of the info available to police at time warrant granted they thought this was one
particular ,apt and even though the police searched the wrong one – it is ok because there was sufficient
particularized enough – wont hold them responsible for what they discovered after the fact.
• Technical precision is not required
• Can only search areas that would be reasonable under the circumstances what could reasonably fit and
be there) cannot search for gold blocks in a small container in which it cannot fit

Breadth of the Place to Be Searched

• Search of premises generally includes any vehicles inside if objects of search could be found within
• Any person’s property can be searched so long as objects of search can be found within
• Warrant to search “premises” included detached garage, shed, office within
• Unless apparent that car does not belong to anyone connected with illegal activity- a condition that will
rarely be satisfied- police can search trunk

Describing the Things to be Seized

Anderson Case
• Application for warrant to search real estate attorney’s office; for specified documents for a specific
sale. Warrant was granted, search conducted, 3% of files were seized
• Issue: Δ claims 4th amend. right violated because terms of the search warrants were so broad as to make
them impermissible general warrants
o Specific issue: each clause of warrant had “ together with other fruits, instrumentalities and
evidence of crime at this time unknown”
• Holding: this phrase is not a separate sentence; it was preceded by “items pertaining to Lot 13”, meant to
be read a whole.
• Hence, warrant only authorized officers for evidence of Lot 13 crime, not other crimes
• (Anderson Case, last class, overbroad; evidence related to unknown crimes, Supreme Court interpreted
extra phrase as being understood in the context of the rest of the warrant)
Public official can have qualified immunity – how bad was their conduct is the issue

Severability of a Warrant
• If a clause is overbroad, generally, courts will sever that clause and it will not taint rest of warrant or
search
o Only items seized under overbroad portion will be suppressed

Reasonableness & Warrants

• P.142, even if there is probable cause & police obtain a warrant, that does not mean search is reasonable
(Winston v. Lee, order for surgery to remove bullet)
o Very intrusive form of search. (and risky), therefore court overturned validly entered warrant b/c
there was other evidence to prove case

Details of the Warrant

ALI Model Code
• Scope & contents:
o Identify of the applicant an all person whose affidavits were submitted in support of the
application
o The issuing authority’s finding of sufficiency of the application and reasonable cause for
issuance of the warrant
 Warrant will not identify name of CI

Fed. R. Crim. Proc. 41(e) (2) ( P.143-4)

• Execute warrant in specific time, no longer than 10 days
• Must be in daytime, unless good cause shown
• 6 am -10pm (unless good cause found)
o Narcotics exception, no special showing other than contraband is likely to be on person or
property at time of search

Anticipatory Warrants
o Conditioned upon future events
o If police had probable cause to believe cocaine would be delivered by two messengers, p. 144
o Anticipatory warrant is preferable to no warrant and dependency on exigent circumstances by
law enforcement
 Must set forth explicit conditions to limit the discretion to the officers in determining
whether the triggering event has occurred
 Triggering event must be set forth in specificity, in either warrant or attached affidavit

Executing a Warrant
• Knock and Announce Requirement (Federal Statute)
o (can break anything) if they are refused admittance or to liberate himself or person aiding him in
execution of warrant
o The officer must give notice of their authority and purpose
o If permission to enter is given, then they are permitted
o If admittance is refused, police are allowed to break open door
o It protects
 Citizens & law enforcement from violence
 Protect individual privacy rights
  Protects against needless destruction of private property
o Refusal of Admittance
 Express or implicit
 (implicit: police can reasonable infer refusal under the circumstances)
• Look at circumstances (size of house, time of day, ect.)
• Constitutional Basis
o (Wilson v. AR) p. 146
 If police conduct search without knock & announce, is it per se 4th amendment violation?
 In some circumstances, failure to knock & announce can be unreasonable  violates 4th
amendment
 Knock & announce is statutory requirement, not required to make reasonable
search. It is component of 4th amendment reasonableness inquiry
 If in pursuit of suspect, or risk of destruction of evidence, ect., could be reasonable not to
knock and announce, therefore no per se violation of 4th amendment
 Inquiry: whether circumstances existed sufficient to excuse the fact officers entered
without announcing presence
• Exceptions to the Notice Rule, p. 147
o Most circuits have held if door already open, it is not breaking, therefore not needed
• Emergency Circumstances [exception]
o Destruction of evidence, risk of harm to offices or others
o Richards v. Wilson, p. 147
 Needed no knock entry warrant
 Knocked, waited 2-3 seconds, kicked in door
 Found cocaine in ceiling
 WI Supreme Court: did they comply with knock & announce requirement
• Automatically excused if searching for felony drug crime
• High risk of destruction of evidence & likelihood of danger
 US Supreme Court
• Rejected automatic exception
o Overly general exception (not all drug cases will carry these risks)
o Reasons can be applied to other crimes
• Must look at each case to determine if there should be an exception
• Standard: police need reasonable suspicion that evidence will be destroyed if
they announce their presence, or dangerous, or futile; inhibit the effective
investigation of the crime
• (lesser standard than probable cause)
 Holds that it was reasonable suspicion b/c suspect knew it was the police (saw them) and
would likely destroy evidence
 Other examples of justified no knock: defendant had violent criminal history
• If police violate the Knock and Announce, what are the remedies to the Defendant?
o If police violate constitutional rights, evidence is suppressed
o However this rule is not constitutional, it is statutory
 P. 150, majority of courts, such a search does not require exclusion of evidence (per se)
 Other courts conclude if there is failure to knock & announce, then search is
unreasonable, evidence is suppressed
• Destruction of Property & No Knock Entry, p. 150
o Properly issued no knock warrant
o Reasonableness is from the perspective of the police when they executed the warrant
 o Issue: were they allowed to break window (seemingly unnecessarily)
 Wanted to prevent occupants from reaching stash of weapons
o Reasonable suspicion standard (U.S. Supreme Ct.)
 4th amend. reasonableness standard imposes some limitation of the destructiveness of a
search
o Under fact specific analysis: there was reasonable suspicion
o Statutory argument that destruction of property is per se violation court rejected (common
law)

Exigent Circumstances After Knocking

United States v. Banks, p. 152
• Facts: Knocked, no answer (over drugs), waited 15-20 seconds, then break in
• Trial Ct. Defendant’s argument: did not wait long enough time to break in
• Defendant pleaded guilty, reserving right to appeal (generally if plea, then you waive your right to
appeal)
• 9th circuit reversed, ordered evidence suppressed
• Supreme Court
o Must look at each case individually, 4th amendment does not give specifics
o Requires reasonableness, looks at totality of circumstances
o Holding: justification for police activity, did they have a reasonable suspicions, the police had a
reasonable suspicion that drugs were being destroyed
o Therefore exigent circumstances did apply  can break in
o Police did not argue that there was an implicit refusal b/c
 It was a large house, 15-20 sec. may not have been long enough for a response
o Not based on def. being in shower: police could not know this

When is the Search Completed?

• When all materials described in warrant are found
• Officers can broadly interpret the ongoing nature of the search
o Ex. officers conducting warranted search of apartment for drugs, answered phone and took
orders for drugs.
o Phone was interpreted by court as an “apparatus”, therefore warrant giving permission to search
for dug paraphernalia included the phone.

The Screening Magistrate: Neutral and Detached p. 163-66

• Elected magistrates allowed (questions neutrality)
• Warrant issued by State Attorney General (prosecutor) invalid
o Conflict of interest
• Cannot pay fee to issue, but not if deny
• Magistrate cannot assist in search itself
• P. 164: Rubber Stamp
o Cannot issue warrant without reading the application
o Hard for Δ to prove
 Volume of warrants issued proved that judge had extraordinary experience in reviewing
warrants

Legal Training of Magistrate

• Must be neutral & capable of determining probable cause (Tampa Case)
• Federal Court: Federal Magistrates or Judge of State court of record to issue federal warrants
 • P. 166: magistrate does not have to give reason for probable cause or for rejecting warrant

To Apply or Not Apply the Warrant Clause

ALI: Arrest Without a Warrant
• A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to
believe that such person has committed
o A felony;
o A misdemeanor, and the officer has reasonable cause to believe that such person
 Will not be apprehended unless immediately arrested; or
 May cause injury to himself or others or damage to property unless immediately arrested;
or
o A misdemeanor or petty misdemeanor in the officer’s presence

Atwater Case (167)

• Seatbelt law offense, punishable by fine, court held for a bright line rule that a custodial arrest is always
reasonable if the officer has probable cause of a criminal violation
o Otherwise more difficulty for officers
o Decision to proceed by arrest or summons is within officer’s discretion
• Always reasonable to arrest for probable cause even if not punishable by jail time

The Constitutional Rule: Arrests in Public

Watson Case (168)
• Informant (with past history of good tips) told police of Δ with stolen credit cards. The informant met
with Δ, and gave police signal that Δ had more on him. Police arrested Δ, searched him (found nothing),
asked to search his car, told him that if they found something they would use it against him, Δ gave
permission, police found stolen credit cards in car. Δ claimed arrest was illegal for want of an arrest
warrant
• Issue: did they have authority to arrest without warrant?
• Officers may arrest without warrant if there is reasonable/probable cause to believe that a felony had
been committed
o Common law allows felony arrests on probable cause without warrant. Not a constitutional
violation
o Warrantless public arrests on probable cause allowed

Use of Force & Reasonableness

Garner Case, (172)
• Deadly force: may be used only if (in arrest)
o there is necessity to prevent flight of suspect AND
o threat of death to police or others [necessary to warn suspect if reasonable]

Graham v. Conner (172)

• When there is a claim of excessive force (whether deadly or not) a standard of review is the 4th amend.
Reasonableness analysis applies.
o Severity of crime
o Immediate threat of safety to officers or others
o Resisting arrest or attempting to evade arrest by flight
• Non deadly force must also be reasonable
o (release of attack dog during burglary investigation without verbal warning was unreasonable
under 4th amend.)
Arrests in Home
The Payton Rule
• Went into apartment to arrest without warrant
• U.S. Supreme Court: individuals in their homes deserve special protection: absent exigent
circumstances cannot arrest in their home without arrest warrant
• Requires the police attain arrest warrant for home in own home of suspect

Arrests in Home of a 3rd Party

Stegald, 186
• Facts: received info that suspect was at certain house for next 24 hours, had arrest warrant, went to
house, did not find suspect but did find drugs. Δ moved to suppress on grounds that officers did not
have a search warrant.
• A search warrant must be obtained to search for a suspect in the home of a 3rd party
o Would require magistrate to determine probable cause to believe that the suspect is located in the
home of a 3rd party
• If 3rd party lives with the arrestee
o No search warrant required
• Police require search warrant to enter 3rd party
o Only homeowner has standing to object to lack of search warrant
o Arrestee does not have standing for this
• Arrest warrant (Olson) require arrest warrant to arrest in 3rd party home if overnight guest, ect.
(Reasonable expectation of privcacy)
• FOCUS on individual complaining of conduct on exam

Question of standing: 187

• Violation of another’s rights cannot be used to suppress evidence
• Can claim violation of right if you have standing

Rights of an Overnight Guest, Olson, 186

• Does a guest have standing to argue that they can challenge arrest in 3rd parties’ home?
• Overnight guest has sufficient expectation of privacy to require an arrest warrant [Peyton steps in] arrest
warrant required

Carter, p. 187
• Temporary visitor: did they have a reasonable expectation of privacy?
• Commercial purpose, short time, ect. did not have reasonable expectation of privacy
• Because guest for commercial purposes, short time, no connection to owner  no reasonable
expectation , no arrest warrant

Was there an actual search or seizure?

If yes, then triggers 4th amendment
Was there a warrant?  was there probable cause for it?
No warrant, was there probable cause?

4th amendment: reasonableness

• Always required if 4th amendment is triggered

Stop & Frisk Established

Terry v. Ohio, p. 200
• Facts: plainclothes cop patrolling, his attention was attracted by 2 men, (many years experience as cop;
area known for shoplifters and pickpockets), continued to observe men, watched one continue to walk to
shop look in window, walk back to other man, repeat. (looked like they were casing a job)
o Approached the men, said he was a cop, asked for their names
o Officer grabbed Δ and patted him down, felt a pistol, reached in side coat but could not reach it.
o Ordered all suspects inside, removed Δ overcoat, removed gun, and ordered all men to face wall
with hands up. Patted down other 2.
o Motion to suppress by Δ
• Key testimony in motion to suppress are police officers (more credibility than defendant)
o they attracted my attention, can’t tell you why” their actions “didn’t look right”
o Felt duty to investigate, feared they may have a gun, stopped an frisked them, felt pistol under
clothing, opens jacket and gets revolver, pats the other two, finds another revolver in overcoat
o Reason for patdown
• Court reasoning
o Considering stages of police activity, which stage of police activity was at issue? The people
argued over seizure of the guns convincing, b/c lawful arrest, problem with argument: arrest
occurred after search, assumes search was not at issue, actual arrest requires probable cause,
which police did not have before pat down
• Supreme Court (I)
o Being in the street, 4th still applies
• Supreme Court (II) Threshold Issue
o Was there a “search” or “seizure”
o 4th does apply to searches/seizures that do not rise to probable cause protection, but do trigger 4th
amendment implications (a stop is a seizure of a person)
o Issue: reasonableness in all the circumstances of the particular governmental invasion of a
citizen’s personal security.
 Search & seizure  probable cause
 Stop & frisk  reasonableness
o The initial taking hold & pat down is what is at issue
 Dual inquiry: whether the officer’s action was justified in its inception &
 It was reasonably related in scope to the circumstances which justified the interference
in the 1st place
o b/c of type of activity of police which must be swift in action, there is no time to get warrant,
why probable cause/warrant not needed
• Supreme Court (III)
o Court must look to specific, articulable facts
 so subjective feelings are not the only justification
 objective standard, good faith is not enough
o applied to facts of this case, court found officer’s conduct to be reasonable
 if officer has sufficient suspicions of danger (armed and presently dangerous to officer or
others), reasonableness allows (and requires) officer to discount or neutralize danger
 Reasonable suspicion of Danger
• Supreme Court (IV)
o Protective search for weapons not justified by concern for destruction of evidence
o sole justification must be protection of police or others nearby: scope  nature and justification
must be confined in scope to be reasonably designed to discover weapons
• Supreme Court (V)
o Facts of case justified b/c under facts, justified b/c officer had reasonable belief that defendant
may have a gun, stopped and frisked over danger of armed robbery
Stop and Frisks: because lesser degree of search and seizure, therefore as long as reasonable suspicion, do not
need probable cause AND suspect may be armed and dangerous
Limited stop and frisk to outer clothing
Only purpose to look for weapons

Applications of Terry
Adams v. Williams, 209
• Policeman was informed by known informant that that a person seated in a nearby vehicle was carrying
narcotics & had a gun; called for backup, approached vehicle, asked suspect to get out of car, instead he
rolled down window, officer reached in and grabbed gun from waistband where informant said it would
be.
• Because it was stop, not seizure, reasonableness was met
• Frisk: officer did have reason to fear for safety
• Informant’s info gave reasonable suspicion, could and did do Terry stop and frisk, through which police
obtained probable cause, pursuant to this they conducted arrest, then were allowed to conduct full search

Brightline Rules under Terry

Mimms v. PA, p. 211
• Police pulled over Δ for traffic violation, asked him to get out of vehicle to give police license, noticed
bulge in jacket and thought it was a gun (it was)
• No issue, they were justified in stop
• No question that once officer observed bulge in jacket, there was reasonable suspicion to frisk
• ISSUE: was officer justified in ordering defendant out of car (is this an actual seizure that requires
probable cause)
o Bright Line Rule: officers in course of legal stop of car have automatic right to order driver out
of car
Mimms & Passengers: Wilson, 214
• Can order passengers out of car
• Extends Mims to passengers of vehicle even if no reasonable suspicion of passengers (still represent a
danger to officer)

Mimms Applied: NY v. Class, 216

• Vin number covered up, officer reached into car to move papers on top of number, and revealed a gun
• Officer acted reasonably
o Diminished expectation of privacy regarding vin number of the car
o Can usually be seen from the exterior of car
o Motorist must expect that regulation will require police to determine VIN number, hence less
expectation of privacy

Detention of Occupants of a Residence: MI v. Summers, p. 217

• When search of home with search warrant, can order occupants to stay in home during search

Supp (?) Mena

When have search warrant for home & concern of dangerous inviduals, could handcuff occupant and inquire
over immigration status
• If searching for weapons, it is reasonable to use handcuffs
• Inquiring over immigration status did not prolong time Mena was detained
o Mere police questioning is not a seizure
Bus sweep: standard: if a reasonable person would feel they could terminate encounter with police, therefore
not a seizure, any activity is not a seizure

Crash into road block: seizure only (find this)

There can be non physical display of authority if a reasonable person would not feel free to leave & suspect
must submit to display of authority

Mendenhall “Free to Leave” Test

Mendenhall and two cases (217-221)
• Δ observed by DEA agents at airport, approached Δ, asked for drivers license, was different from name
on ticket, asked Δ to go with them to office for further questions, which Δ did. In office Δ was asked if
she would allow search of her person and bag (consented). Drugs found
• If individual reasonably believes they are not free to leave, that is a seizure for 4th amendment purposes
• If police asks individual to stay, and the individual should reasonably know they can leave, not under 4th
amendment
Florida
• Δ at airport, appearance, mannerisms, luggage and actions fit “drug courier profile”, stopped him,
looked at different name on ticket and license, asked him to go to room, Δ went, detectives retrieved
luggage, Δ asked to consent to search, did not say anything but unlocked one suitcase, which detectives
then searched without further permission. Δ said he did not know combination to lock on other bag,
detectives asked if they could, he said to go ahead, even when informed that suitcase might have to be
broken. Suitcase opened, more drugs found.
• Δ testified he believed he was not free to leave; Officers testified that they believed he did not have
probable cause to arrest until after he opened suitcase
• Rules
o State has burden to prove consent
o Without warrant or probable cause & exigent circumstances, consent is needed
o Approaching person on street to ask questions does not trigger 4th amend.
o Person does not have to answer questions
o Cannot be detained without reasonable, objective grounds for doing so, which refusal to answer
questions does not supply
• Holding: a reasonable person would have felt that he could not leave, therefore there was a seizure
o Asking Δ to go to office with them, while keeping his ticket and license, did not tell Δ he was
free to leave

Look at totality of circumstances

Need particular and objective basis for suspecting individual of particular activity

4th amendment which describes necessity for search and seizure (warrant, probable cause)
Stop and frisk is on a “lower level”  Terry v. Ohio, need reasonable suspicion

Quantum of Suspicion

1st question: source of information

White Case: anonymous tip, is the question is whether police have reasonable suspicion, look at totality
of circumstances (same as probable cause analysis)

Florida case: no reliability on informant, police were not then authorized to perform terry stop and frisk

Cortez, p. 245
 • Quantum of suspicion to meet reasonable suspicion
• Test to determine whether a reasonable suspicion exists in given set of circumstances:
o Totality of circumstances must be taken into account, the police must have a particular and
objective basis for police suspicion of Δ. Particularized suspicion must contain 2 elements:
 (1st prong) assessment must be based on all circumstances (objective observation,
police reports, consideration of particular criminal activity, inferences and deductions
from their training
• Dealing with probabilities, not certainties
o (2nd) assessment of the whole picture must yield a particular suspicion
 Must raise suspicion that particular individual is engaged in wrongdoing

Reasonable Suspicion vs. Probable Cause

• Reasonable Suspicion is less demanding standard of proof
o Think of as a “possible cause”
o Used for stops
• Probable Cause
o “Fair probablility”

Assessment of Probabilities
United States v. Arvizu, 246
• Near MX border. During shift change
• Road to avoid checkpoint had sensors
• Type of mini-van officer knew to often be used, kids looked like their feet were propped up, ect.
• AT ISSUE: did officer have reasonable suspicion to make stop
• (driver gave permission to search car)
• District Court
o There was reasonable suspicion
• 9 Cir.
th

o Reversed, 7 factors little or no weight, the remaining 3 factors are insufficient for claim of
reasonable suspicion
• SC
o Although reasonable suspicion requires more than a hunch, and police officer must articulate
precisely what gave them the reasonable suspicion, the court emphasizes that b/c it is based on
totality of circumstances, may make inferences, deductions, ect. The SC rejects a neat set of
legal rules
o Sufficient for reasonable suspicion
 Inferences from observations
 Registration check
 Expericne as a border patrol agent that suspect was on road used for drug couriers to
avoid check point
 Common sense inference over suspect using roads during shift change
 Likelihood that it was a family on a picnic diminished by trunign away from known
recreational areas, to unpaved roads
 Children’s elevated knees
• Mere hunch is not enough for reasonable suspicion necessary for Terry stop/frisk
Reasonable Suspicion of a Completed Crime
p. 356, Hensley Case
• Terry v. OH applies to completed crimes as well,
• Had reasonable suspicion to stop car, believe defendant had committed crime
• Stops are approved where police have a reasonable suspicion, grounded in specific and articulable facts,
that a person they encounter was involved in or is wanted in connection with a completed felony
• Police can rely on their collective knowledge

Profiles, p.260
• Lists of characteristics compiled through law enforcement through experience for specific crimes
• Primary and secondary characteristics of drug couriers
• On of themselves cannot be used for reasonable suspicion, but the reasoning behind the characteristics
can be used
• Sokolow Case, 261-62
o A profile does not detract from their evidentiary significance as seen by a trained agent
o Degree of suspicion of the activities was enough for reasonable suspicion
o Holding: no characteristic is given greater or lesser weight merely because the characteristic
happens to be in or absent from a profile

Reasonable Suspicion & Flight from police: Wardlow Case, p. 263

• Caravan of police vehicles in high crime area
• Suspect fled, officers performed stop and frisk, found guns
• ISSUE: was there reasonable suspicion to stop & frisk
• SC: there was reasonable suspicion under totality of circumstances
o Presence in high crime area, not enough on its own
o Unprovoked flight: consummate act of evasion, not necessarily indicative for wrong doing, but
suggestive of a wrongdoing; it is not a mere refusal to cooperate
o Investigating further is allowed
o Suspect did not merely refuse to cooperate (which he had a right to do)
o Unprovoked flight in a high crime area, under theses circumstances was justified

Terry frisks only allowed for protective searches: search for evidence is not permitted under Terry

Protective Search beyond the Suspect’s Person: MI v. Long, p. 268

• Δ was driving erratically, swerved into ditch, was out of car when police came, requested license, Δ
went to car, officer flashed light and saw hunting knife in car. Protective search performed in passenger
compartment, marijuana found.
• Officers can conduct limited examination of the area from which suspect (who is reasonable believed to
be dangerous) might gain immediate control of a weapon.
• NY state court rejected this, held that the state constitutional rights do not permits this

Applying MI v. Long
• Officers searched locked glove compartment when they had reasonable suspicion of drug activity
• Holding: weapons and violence are frequently associated with drugs, officers reasonably believed that
the individuals with whom they were dealing were armed and dangerous.

Protective Sweep, Maryland v. Buie, 271-272

• Protected sweep: quick and limited search of a premises, incident to an arrest and conducted to protect
the safety of police officers or others
 • Officers had probable cause to believe that Δ committed armed robbery, arrested Δ at his home,
conducted protective sweep and discovered clothing that tied him to robbery. AT time of sweep officers
had reasonable suspicion, but not probable cause, to believe that partner in crime might be hiding there.
• May extend to a cursory inspection of those spaces where a person may be found, and can last no longer
than is necessary to dispel reasonable suspicion of danger
• Conducted only for safety, not to prevent destruction of evidence
• The question is: whether there is a reasonable suspicion to believe that there is someone other than
the arrestee who, under the circumstances could present a risk of harm to officers or others

Line between Terry stop and arrest

• Terry limited to stop & frisks, and required reasonableness: reasonable suspicion
• 4th amend. Requires probable cause for warrant & seizure

Factors to determine
• Forced Movement of Suspect to a Custodial Area
o Royer: Δ taken from public area of airport to small room
• Investigative detention must be temporary and last no longer than is necessary to effectuate
the purpose AND
• methods should be least intrusive means reasonable available to verify or dispel the officer’s
suspicion in a short period of time
• This is the state’s burden
• Factors looked at & application of factors by court
o Begun as consensual, escalated; suspect reasonable believed he could not leave (see
underlined factors) (273)
o There was no probable cause for arrest
• Some forced movement may be justified under Terry Stop; probable cause is required if the
officer forces the suspect to move in order to further the investigation or to place more
pressure on suspect

Consensual encounters after stop has ended, 277

• Suspect may not be detained for investigated matters other than why he was stopped unless they have
reasonable suspicion
• If initial stop and frisk does not give further grounds for investigation, they can ask to search, but
suspect can refuse and leave
• Ohio v. Robinette:
o After stop, ask to search car, was consented to, found drugs.
o No probable cause, but consent makes it valid
o Bright line rule rejected by court to tell defendant that initial stop has ended and he is free to go
o Officer is under no obligation to tell individual the stop has ended and the invidiual is free to go
• Can continue to question, any answers are voluntary because suspect had right to leave

Interrogation beyond the confines of terry: custodial interrogation

• Dunaway
o Police cannot detain a suspect and transport him to the stationhouse for questioning without
probable cause, even if the detention is not deemed to be an arrest under state law (even if no
booking/arrest record)
o Requires probable cause, intrudes too severely on interests for protected by 4th amendment
• Kaupp
 o 3am, police enter bedroom, handcuff, tell suspect that he needs to go to headquarters, he says
“okay”
o At issue: involuntary transport to police station: need probable cause
o No reasonable suspicion/probable cause
o State court held was valid b/c he said “okay”
o Supreme Court: no meaningful choice, or option but to go, therefore no consent
• View from perspective of reasonable person
o Use of handcuffs: state court says was fine because police do it routinely
o Supreme Court: may be routine, and was not resisted, but it was not reasonable
• Requires probable cause for seizure, this was a seizure, there was no probable cause,
therefore violated 4th amendment
Fingerprinting, 279
• Davis
o Fingerprinting by definition is not a bright line rule under probable cause
o Here the suspect was fingerprinted 2 times, and interrogated: this required probable cause
• Hayes
o Took to stationhouse without his consent, had reasonable suspicion but not probable cause
o Although fingerprinting in field may be okay, removing suspect to stationhouse they are
making a seizure (in field could be justified under reasonable suspicion)
• May not require probable cause, but with Davis, it is required,
o In Hayes: brief detention with reasonable suspicion in field may be okay

Length of Time: Stop vs. Arrest

Sharpe Case, P.281
• 2 cars pulled over, one driver stopped for 30-40 minutes, court ruled was a reasonable time b/c officers
did not do anything unnecessary, and suspect, by trying to evade police, contributed to length of stop
• There is no set time for Terry,
o Whether police diligently pursued means to investigate to quickly dispel and confirm their
suspicions, AND
o As long as police are diligent, then they have not per se transformed from stop to de facto
seizure/arrest. AND
o It has to be necessary to have detained the defendant during that time
• At some point an indefinite stop does become an arrest because of time that has passed
o Must consider each case and police conduct

Show of force during stop

• Guns and handcuffs allowed if there is reasonable suspicion to believe that they are necessary to protect
the officer from harm
• Oliveira Case, 282
o Private citizen sees 3 black youths with expensive camera inside dilapidated car & calls police
saying may have been a burglary; 6 police cruisers form a wedge around the vehicle, by loud-
speaker plaintiffs were ordered to stop their vehicle, toss out the keys, and keep their hands on
the windows. With guns drawn, ordered driver to leave car, hands on head, walk backwards
towards police. Then ordered to kneel, handcuffed, searched while spread over car, placed in
cruiser. Entire contents of car searched. Suspects questioned separately, one read Miranda
rights. Were eventually released
o Under these facts, as matter of law, too intrusive activity
 Oppresive elements by police
 No evidence of a crime
  Absence of any indication plaintiffs were armed and dangerous
o An arrest in unreasonable matter, and with unreasonable force can violate 4th
o Same with Terry, even with reasonable suspicion, can be unreasonable stop
• Issues of Race, 285

Terry Stop & Request for Identification

Hibel, p. 23 Supp.
• Do police have authority in Terry Stop to demand identification, and if it is not provided, what are the
ramifications
• Got call, find car, police told suspect to show i.d., denied many times to do so,
• Utah statute, arrested for obstructing officer from doing his duty
• Under state statutes, officer was authorized to detain (p. 24)
o Authority to question, and in Utah, if i.d. is requested, suspect must identify themselves, does not
have to answer any other questions
• Supreme Court
o Vagrancy laws, mostly unconstitutional, to vague and broad scope
• Court held this statute did not on its terms violate the 4th?
o Officer must have reasonable suspicion to request identification
o Statute requires suspect to disclose their name (not a license, ect.)
o (narrower and more precise)
• III
o Asking questions is important for police
o Delgado: requesting id is not a seizure
o Terry: brief question with reasonable suspicion is okay
 Asking for identification is a permissible question during interrogation
• Ultimate issue: can person refuse to answer
o Not asking if suspect has obligation to respond (4th does not require this)
o Does 4th protect individual from refusing to respond
o Because police require reasonable suspicion (and has it) and under Terry, pursuant to a terry stop
police have authority to ask person to identify themselves, and the important governmental
interests in doing so, a state statute can impose criminal penalties for refusing to answer, that
gives officer probable cause to make arrest
o It is statutorily permissible in this case
o However, in absence of statute, suspect can refuse to answer and no penalty
o The 4th amendment does not prohibit the state from enacting this statute
• Upheld state statute requires id with Terry stop; because statute is allowed, failure to give id is a
crime, which in turn gives officer probable cause to make actual arrest

Detention of Property under Terry, 285

• Van Leeuwen Case
o Detained package for a day while investigating (had reasonable suspicion)
o Court said because this was done promptly and diligently, it was more prudent to hold package,
and did not open the package  privacy interest not violated
• Place, 286
o Luggage seizure is different, 90 minute detention was unreasonable because police failed to
inform defendant of the circumstances, it was tantamount to detention of defendant himself,
however no brightline rule (was unreasonable without probable cause)
 Did not tell suspect where is luggage was
o Was it reasonable for police to hold onto property,
  were they diligently pursuing,
 method of detainment,
 method of informing owner
• LaFrance
o Police had reasonable suspicion particular package had drugs. Package had guranteed delivery
time. Arrangement for dog sniff, packaged delayed past time.
o Defendant’s anticipation that he would receive goods at certain time is irrelevant; was still a
package not luggage, was a reasonable time

Limited Searches for Evidence Under Terry

Hicks
o Does Terry permit limited search for evidence based on reasonable suspicion?
o Police lawfully entered premises from which a weapon had been fired, and noticed 2 sets of
expensive stereos in crappy apt. Moved equipment to get serial number. (was stolen)
o State argued it was merely a cursory search justified under reasonable suspicion
o Supreme Court: a search is a search; looking at stereo was a search, by definition there is no
such thing as a cursory search, requires probable cause
• Dickerson
o A Terry search, frisk is allowed when it is needed to protect officers or others, not to find other
evidence
o A Terry search and frisk permitted only for protection for safety of officer or others, not
permitted to frisk solely for obtaining evidence of another crime (need probable cuase)

Search Incident to a Lawful Arrest

• Warrentless search incident to lawful arrest was common law
• This case, court seeks to explain rationale, and limit scope of an incident search
• “arrest power rule”
o Lawful arrest (warrant, or exception)
 Pursuant to arrest police may conduct warrentless search

Spatial Limitations of this

Chimmel v. CA p. 294
• Waited till he came home, lawful arrest, asked to search house, no consent given, did it anyway, and
looked inside drawers, ect.
• RULES:
o no justification for searching any room other than where arrest is made;
o reasonable to search arrestee [Terry v. OH, frisk for protection of officers] to find evidence b/c
4th amendment is present, can reach into clothing, goals need not be only safety;
o also search any area within the defendant’s immediate control [aka defendant’s grab area]; it is
assumed that defendant does not have ability to reach into closed containers, drawers, ect.
 where defendant might reach, not entire room, or closed drawers, containers
o Brightline rule
Crispin
• After arrest police can remain with defendant at all times, even can follow them into private home, ect.

Application of Chimmel: Lucas p. 296

• Defendant tried to reach for cabinet, struggle, handcuffed defendant, officers were allowed to then
search cabinet, b/c
 o Other, unhandcuffed suspects were there
o Emphasis that search was right after struggle
o Considering, there was struggle, he was reaching for the area, though a closed cabinet would not
under Chimmel be a grab area, gave police reason to be suspicious, combined factors gave police
sufficient concern for warrentless, valid search, after arrest of individual
o MAJORITY VIEW
• Unites States v. Blue, Minority

Timing of Grab Area Determination

• Upheld seizure of rifle which had been close to defendant during arrest, but after defendant was in squad
car
o b/c rifle had been in close proximately at time of arrest, it is seizable, even if after individual has
been removed

• if have probable cause, can search prior to arrest, however search cannot be used to create
probable cause to make arrest

Creating Grab Areas

• police cannot do this

Scope
• can make arrest (Atwater) even if doing so is embarresing, and can then search suspect

Post Arrest Movements, Washington v. Chrisman, 298

• kid was under arrest, his I.D. was in dorm room, police was in door way, were allowed to look in, saw
roommate was nervous, officer entered room and noticed drug paraphernalia, arrest
• ISSUE: did officer have right to enter room
• RULE: allowed to enter room at any time (b/c suspect was under arrest) officer has authority to remain
at suspect’s “elbow” at all times.
• Distinction: one thing to follow arrestee (this case) from directly creating grab areas
• Footnote: state held it violated state constitution: warrentless entry not allowed unless officer has
specific facts justifying entry (fear of safety, destruction of evidence, or escape)

Post Arrest Movements Ordered by the Officer

United States v. Butler
• Arrestee not wearing shoes, broken glass, made him go inside and get shoes, went with him, found
illegal guns. Valid arrest with warrant
• Police may conduct limited entry to protect safety of defendant, police therefore had authority, though
the police had ordered defendant to go back into trailer (was not merely to create circumstances to
conduct search)
• Other case: no safety when defendant does not want more clothing and is wearing a swim suit

An arrest leading to exigent circumstances

• Supreme Court Held, must look at case by case basis, police must show specific exigent facts, could
permit search beyond grab area during lawful arrest
• Vale v. Lousiana
o Arrested defendant right after he entered home, during arrest his family came home, cops
searched entire house including bedroom (not where defendant was arrested)
o No exigent circumstances, therefore not a valid search
 • Exigent circumstances allowed:
o A reasonable belief that 3rd persons were inside a private dwelling AND
o A reasonable belief that these 3rd persons are aware of an arrest of confederate outside the
premises so that they might see a need to destroy evidence
• Case: large scale drug operation in home, reasonable to believe when someone is arrested immediately
in front of home, there is someone else inside the home, and they will try and destroy the evidence

Protective Sweeps After an Arrest

• If there is reasonable suspicion that area harbors danger to officers, they do not need probable cause,
only for areas where there may be areas hidden

Temporal Limitations on Search & Seizure with Arrest

• “Search indecent to valid arrest”
• Search can be after arrest, as long as in short time period
• If police have probable cause or arrest warrant, they authority to search
o The arrest cannot be based on what they find
o Therefore as long as they had grounds for making arrest, the order is not important

Removal from Arrest Scene, p.302

• Basic Rule: time and spacial limitations
• Court held: once defendant is arrested & under custody, is simply not incident to the search made at
another place, without a warrant, is simply not incident to arrest.
o Vehicle impounded, without warrant cannot justify search, no longer incident to a lawful arrest
• Edwards Case: (arrested in middle of night, searched defendant next morning) this is fine, search and
seizures that could be made on the spot during the arrest may be legally conducted later at the station.
Here there was still relevance to searching him (looking for paint chips)

Searches of the Person Incident to Lawful Arrest

United States v. Robinson, 303
• Police had probable cause to arrest, they conducted pat down, feels object, could not tell what it was,
was cigarette pack, opens it up, there is heroin inside
• If this is a Terry Frisk, cannot pull it out of coat unless there is reasonable suspicion that it is a weapon,
or open it up
• Because officers had probable cause, could conduct full search for either safety OR to find evidence
(unlike Terry)

Custodial Arrests for Minor Offenses

Atwater v. City of Lago Vista, 308
• Kids in front seat of car not in belts. Misdemeanor, punishable by fine, warrentless arrest or citation
permitted by statute
• Mother was arrested
• Sued under civil rights statute: 4th amendment right against unreasonable searches
• Defendant
o Argues historical facts
 Court concluded: custodial arrests are reasonable for warrentless misdemeanor (in all 50
states
o Argues for “moderate arrest rule” (case by case look at reasonableness)
 Though court clearly Atwater has a case, obvious gratuitous humiliation; however
(Robinson) we will not have a sensitive case by case rule.
  Court holds that their role is to apply brightline rule (clear, simple rule that can be applied
without judicial second guessing)
 Claims not a problem because no other cases like this have come to them
 Other remedies: states can limit this through statutory, civil rights claims for excessive
force in a arrest, only necessary to give a new doctrine of constitutional law when there is
a certain quantum of cases, not necessary here
 RULE: if officer has probable cause for an arrest, such as misdemeanor committed in
front of officer regardless of whether the offense is jail able; the officer can arrest. The
standard of probable cause allows arrest in absence of warrant if crime is committed in
present of officer.
 Though this arrest was humiliating, it was not extraordinary for 4th amendment purposes

Arrest Power Rule Applied to Automobiles

NY v. Belton, 315
• At issue: could police check inside jacket that is in back seat of car
• Defendant was pulled over with reasonable suspicion; smell marijuana gives probable cause to make
arrest, patted down suspect, was allowed (Robinson),
• NY Court Appeals
o No grab area rule applies, because individuals were outside of car during search
o Whether safety or to obtain evidence, no rationale for this because no one was in car during the
search
• Supreme Court
o When lawful arrest, the lawful scope of search within a car is
o Chimmel: may not extend beyond area immediately within arrestee’s control \\
o There is no brightline rule for what “area immediately within arrestee”
o HOLDING: when a policeman has made a lawful custodial arrest of someone who is a recent
occupant of a car, he may, as a contemporaneous indicent of that arrest, search the passenger
compartment of that automobile. Police may also examine the contents of any containers found
within the passenger compartment, may be searched regardless of whether it is open or closed.
[distinguish: last class, cannot search closed containers during arrest in room] Defendant has no
privacy interest in contents of any containers in passenger compartment, because if area is within
the reach of arrestee, so also with the contents of containers.
o Trunk of Car: distinguished, cannot be accessed, rule does not apply (see footnote)]
• May search entire passenger compartment and all containers within, but not the trunk

Problems After Belton: The Arrestee’s Relationship to the Car

• Does Belton apply when person is arrested away from car?
o Police officer arrest defendant after he had walked away from car
o Then searched car and found gun
o Holding: Belton limited to search of passenger compartments after arrest of an occupant of a
vehicle, hence search no allowed
o Defendant 30’ away from car at time of arrest, not within grab area
• US v. Thornton
o Whether Belton is confined to when police initiate contact with person while inside car
o Court upheld search of car when defendant arrested in close proximity

Thornton v. United States

• Police officer suspicious b/c car refused to pass him; ran plate, was incorrect, after suspect parked and
get out of car, officer went to talk to him, (officer is not claiming reasonable suspicion), officer asked to
 pat down, consent, felt bulge in left pocket, asked again if suspect had drugs, suspect said yes (probable
cause), arrested suspect & placed him in patrol car; searched vehicle and found a gun (at issue)
• Although Belton was not restricted to the person being in the car, it was where the suspect was an
occupant in the car during the initial encounter
• 4th Circuit
o Defendant was in close proximity, Belton pertained to immediate control (grab area)
• Supreme Court
o The entire basis that justifies Belton is
 Safety of officer
 Destruction of evidence
o in both cases the search takes place after suspect is under arrest, outside of car
o therefore, legal as long as defendant has been in car recently
o In Chimmel, we allow search of grab area after suspect has been removed
o Also, need for clear rule easily understood by police, we do not want to require a rule that will
require officers in the field to estimate
• Scalia Concurring
o Rejection of 3 rationales for majority opinion
 Defendant could have escaped and gotten gun out of car
 Because officer could have done it at the time of the arrest (def. not yet in handcuffs,
officer goes into to car for safety/evidentiary concerns) therefore what different would it
make if they waited
• The search is not a right of the government, but an exception
 These searches are reasonable in general
o Does not view Belton as an extension of Chimel, but instead as authorizing broader search
incident to arrest because cars represent a reduced amount of privacy and broader law
enforcement needs
o It is reasonable for office to believe pursuant to an arrest that there are narcotics in the car,
therefore the search is justified
• As long as police have probable cause for arrest of someone in car, may search even if the arrestee is not
in the car, or if the person is already out of car when police arrested him

The Arrest Power Rule Where No Arrest takes Place

Knowles v. Iowa, 322
• Defendant was driving 42 in a 25mph zone; officer issue citation, (pursuant to Iowa law officer was able
to arrest, chose not to), conducted full search of car (no consent) this is at issue
• Statute
o The decision by officer who has authority to either arrest or give citation: if officer decides on
citation, they are still authorized to conduct search they would be authorized if officer had
arrested defendant
• Iowa S.C.
o Allowed as long as arresting officer had probable cause
• S.C.
o (Robinson Case) Rationales that permit search incident to lawful arrest (safety and evidence)
• Safety does not apply to citation case, more analogous to a Terry Stop/Search, As far as
evidence there is no more evidence to be obtained in a speeding ticket citation
• If police are not satisfied with identification they can arrest, because of probable cause
o Here no arrest, therefore no extension of Robinson: search was unlawful
• No authority to conduct search incident to a citation, even if they have arrested if they had issued
citation
Pretextual Stops and Arrest
• They are not conducting search or stop for reasons that they are stating. Police using their authority to
search for minor crimes to search for major crimes
Wren v. United States, 324
• Plain clothes Officer patrolling high drug area, car had temporary license plates and “youthful
occupants” , stayed in intersection “unusually long time” (20 seconds), officer called in the truck, turned
without signaling and sped off at “unreasonable speed”, police officer stops them, identifies himself as
police, saw bags of crack cocaine, arrested everyone
• At issue: when officer initially approached car did not have reasonable suspicion of a crime, it was
pretextual; officer claims he stopped car to give warning about potential traffic violations
• (paragraph, right column on p. 325)
o Proposed standard by defendant
• Whether the police officer, acting responsibly, would have made the stop for the reason
given.
• Supreme Court
o Rejected argument
o If officer has probable cause to pull over suspect for A, and finds probable cause to arrest
for B, that is okay. As long as officers objectively had authority to make stop, they were
justified
o Court views Race as an equal protection issue, not a 4th amendment issue
• As long as probable cause (civil traffic violation) then there is no 4th amend. violation if temporarily
detain driver, as long as objectively it is allowable, regardless of police’s subjective intent

Plain View Doctrine

Coolidge, 334
• Stands for proposition that if it is in the plain view of the police officer, then the object can be seized,
and object is admissible as evidence
• If the officers have a right to be in a particular place and come upon evidence that they have
probable cause to believe is subject to seizure, the may seize it

Horton v. California, 334

• Court issued warrant specifically for search for proceeds of the robbery (rings) but not for the weapons
of the robbery. (scope of search)
• During search, police, in process of looking for rings, found weapons
• Though they intended to find rings, they also had an interest in weapons
o Supreme Court: was not an inadvertent discovery, distinguished from all previous plain view
cases where police inadvertently found evidence
• Supreme Court distinguishes between a possessory interest in seizures and a privacy interest in searches
o Once you are dealing with plain view, you are no longer searching
o Justice Stewart’s 2 limitations of plainview
 Plain view alone is never enough to justify the warrantless seizure of evidence
 The discovery of objects in plainview must be inadvertent
o Justice Stewart is concerned that if plainview doctrine is extended farther, it would allow police
to skirt warrant requirement altogether
• Supreme Court
 o They do not want courts to investigate subjective goals of police officer, prefer an objective rule
o Holding: rejects the implication in Coolidge that a plain view seizure must be inadvertent
o If plain view  police have authority to seize the doctrine
• This case, Application of holding to facts
o Scope of search was not enlarged, if rings had been found the search would have stopped
o As long as the police activity can be viewed objectively as furthering aims of warrant, it is
okay
• Plain view applies even if discovery of object is not inadvertent

Probable Cause to Seize an Item in Plain View: Arizona v. Hicks

• Came into apartment, had reasonable suspicion, not probable cause to believe stereo is stolen; pick it up
to see serial number, discovered it was stolen
• Police still lacked probable cause for a search
• Had to manipulate to determine they had probable cause;
• Officers were not permitted to perform additional search
o Must have probable cause to search item that is in plain view in order to determine if they seize
item
o Plain view does not include pick up/lifting an object without probable cause of search warrant to
look for this object

Plain Touch Doctrine (applies to Terry frisks)

• Dickerson Case
• Terry Stop and Frisk
o Felt bulge, felt like crack cocaine
o If they are touching an object/person in a way they are permitted to, then if they discover object,
it is seizable
o However here officers went beyond permitted scope
o If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose
identity is immediately apparent, there has been no invasion of suspect’s privacy beyond
what has been authorized; if the object is contraband, its warrantless seizure would be
justified by the same practical considerations that inhere in the plain view doctrine
o Plain touch was not applicable in this case
 Went beyond scope allowed in Terry Frisk
 By pushing and prodding after concluding it was not a weapon (not authorized by
o If police conduct valid terry frisk, & discover/determine that individual has drugs, the plain
touch authority  have probable cause to conduct actual arrest (and search pursuant to arrest)

Automobile Exception
• Carol v. United States
o Can search a car without a warrant, so long as they have probable cause to believe it
contains evidence of criminal activity, even though no arrest has been made
 Must have probable cause for search
o (this is separate from search incident to a lawful arrest)
o Rationale: car is movable

Mobile Containers in Car

California v. Acevedo, 351
• Facts: DEA interception of drug package, agent went to Fed Ex office to arrest person who is to pick up
package. Man picked up package & drove to his apartment. Δ went to apartment, left with bag (size of
 marijuana package) put it in trunk and drove. Fearing destruction of evidence, plice stopped him,
opened trunk, found drugs
• Chadwick
o Movable footlocker is seizable because it is movable, but to search need warrant
• Sanders
o Probable cause for suit case, but not rest of car (overruled by this case)
• Ross
o Rejects Chadwick, applying automobile exception, court concluded that based on only probable
cause police can search entire car including packages inside car
• Issue:
o Do police need warrant to open sack in vehicle, when the have probable cause to search sack, but
not probable cause for entire car
• Holding: to avoid confusion, (354)
o Police can search entire car (and therefore search inside sack), even if probable cause only
extends to object inside car
o Police may search entire automobile (including trunk) and the containers within it where
they have probable cause to believe contraband or evidence is contained.

Delayed searches of containers, p. 357-361

• Court will not extend indefinite retention of vehicle, but search does not need to take place immediately
• Can conduct delayed search of car, but not indefinitely

Search of Passenger’s Property

• Passengers also have reduced expectation of privacy within a car
• When there is probable cause to search for contraband inside car, police can examine packages and
containers without individualized probable cause for each one (capable concealing object of search)

Exigent Circumstances
Exigent Circumstances Exceptions to the Warrant Requirement [search or arrest] (361)
1. escape
2. use weapons
3. destroy evidence

still need probable cause

if exigent circumstances & probable cause, can search home without a warrant

Hot Pursuit (362)

• unrealistic to try an obtain warrant
• hot pursuit does not apply where suspect does not know he is being pursued
• OJ Simpson Case: exigent circumstances because of belief that people at Simpson’s residence may be
in danger
o Exigency determined at time of police action, not in hindsight

Prohibiting Entry While Warrant is Being Obtained

Illinois v. MarcArthur, 375
• Police were at residence while wife moves out, she informed them her husband had drugs inside, one
police officer went with wife to get warrant while the other officer informed husband he must remain
outside trailer or policeman step inside (2 hours)
 • Police had probable cause (had spent time with wife, found her info. trustworthy)
• Officer has restrained movement of defendant
• Warrant came, searched, found drugs, convicted, at trial defendant claims that had he not be restrained
he would have destroyed drugs (fruit of unlawful police seizure)
• Keeping defendant outside trailer was seizure, without warrant not authority for seizure
• US Supreme Court
o Framework: dealing with a seizure, under 4th, probable cause & warrant & reasonableness
required;
o Under the Court’s view, seizure was not per se unreasonable because there was no warrant;
instead must balance law enforcement’s interest & privacy concerns, was it reasonable?
o Police action was Reasonable, 4 rationales
 Police had probable cause
 Good reason to believe evidence would be destroyed
• Circumstances (serious dispute between husband & wife, he would suspect an
imminent search)
 Police made reasonable efforts to reconcile their law enforcement needs with the
demands of personal privacy
• Did not search or arrest, used less restrictive restraint
• Degree of invasion of privacy was less restrictive
• Only kept defendant outside
 Imposed restraint for limited period of time (2 hours), was reasonable, used
diligence in getting warrant
 Allowed because materials were feared to be destroyed
o Segura Case
 Temporary restraint is permitted for purpose of preserving evidence

Administrative Searches, Searches of Special Need

Special Needs Search (379)
• Involves balancing, reasonable needs analysis,
o Need of search
o Degree of invasion
• If the purpose is merely to attain evidence for criminal enforcement, need probable cause/warrant
• Safety Inspections of Homes
o Court views this as a different type of interest; the primary goal is not obtaining evidence for
criminal prosecution but on safety, therefore general dictates of 4th do not apply in same way
o Camara Case
 Warrant is required, but do not need warrant based upon a finding of probable cause for
particular home (enough if it is in compliance to a reasonable administrative scheme)
 Instead warrant can be issued upon a finding that a search is in compliance with a
particular administrative scheme
 No need for warrant in emergency situations
• Warrants Without Probable Cause
o Griffin
 (probational search)
 Cannot issue warrant for anything less than probable cause
 A warrentless search of a probationer’s home, upon reasonable suspicion, of a probation
violation is allowed (reasonable administrative scheme)
Administrative Searches of Businesses
New York v. Burger, 382
• Search by police of junkyard conducted under statute authorizing search
• Statute allows police to inspect this type of business, and when they do, the owner must provide records,
absent of which is a crime
• Supreme Court
o 4th Amendment still applies, must be reasonable
o However, a warrant or probable cause not required
o Expectation of privacy on commercial premises is different from home, this expectation is
particularly attenuated in commercial property employed in closely regulated industries
o in situations of special need, where privacy interests of owner are weakened &
governments interests are heightened, a warrantless inspection of commercial premises
may be reasonable under 4th
o Must have 3 factors to be reasonable (in pervasively regulated industry)
 Substantial government interest
 Necessary to further the regulatory scheme
 State’s inspection system (in terms of certainty & regularity) must provide a
constitutionally adequate substitute for a warrant
• Advise owner search is being made pursuant to law and has properly defined
scope,
• It must limit the discretion of the inspecting officers
o Colonnade-Biswell Doctrine
 Less expectation of privacy in a closely regulated industry
 Essentially defined by the pervasiveness and regularity of the federal regulation
 And the effect of such regulation on owner’s expectation of privacy
 Also the duration of the scheme is an important factor
o Application of those criteria to the case
 Car junkyards qualify as closely regulated industry because it is still a new industry, but
second hand stores have been around for long time and have been regulated for long time
o Application of Factors
 State has substantial interest;
• Vehicle theft has increased,
 limit the market for stolen cars
 The statute provides a constitutionally adequate substitute for a warrant
• Statute informs owners inspections will be made on regular basis, on, during
regular business hours at police discretion (scope)
• Final Issue: NY Ct. of Appeals:
o Held that it was a pretext in first place, not an attempt to regulate, but for criminal investigation
o Supreme Court
 A State can address a major social problem both by way of an administrative scheme and
through penal sanctions.
 As long as regulation is valid, may also serve criminal enforcement purpose
 Police can stop car for traffic violation, may still search car

I. Roadblocks, Checkpoints, and Suspicionless Seizures (p. 420-436)

a. Individual Stops without Suspicion
i. Not allowed against individual
ii. Police discretion vs. set procedure for police to adhere to, and guidelines are appropriate
b. Permanent Checkpoints
 i. Allowed, state interest in stopping illegals, and minimally intrusive
c. Temporary Checkpoints to Check for DUI
i. Allowed, special need beyond law enforcement
ii. Not as if they are being stopped individually: less likely to be afraid
iii. There is set in advance procedures for police to follow
1. minimal incov. For driver
2. safety of location
3. space to pull car off road
4. set pattern to stop (?)

II. Drug Checkpoint: Edmond Case

a. Issue: is this legal?
b. Holding: no
c. 4th Amend
i. Need probable cause and individualized suspicion, however many exceptions
ii. All exceptions are distinguished because this case was only looking for ordinary criminal
activity, while all other exceptions had primary goal not to detect ordinary criminal
activity
iii. DUI checkpoints primary goal is road safety
1. drunk drivers represent a present, immediate vehicle-related safety issue
iv. Checkpoint to ask for license and registration
1. permissible because primary goal is safety issue
d. stopping vehicle is seizure
e. dog sniff not a search, can only uncover illegal contraband
f. City’s argument: anytime police make a stop, they are looking for criminal activity
i. Court distinguishes between broad law enforcement activity and what the primary goal is
g. City argument: balance based on gravity of threat
i. Court says gravity of the threat is not dispositive,
h. City argument for highway safety
i. Checkpoint for finding drugs different from border checkpoint because acute need for
public safety, more specific concern
i. Whren Case(437)
i. Only look at objective not subjective intent of police
ii. Not applicable here because expressely distinguished cases of search in absence of
probable cause
j. Lawfull secondary purpose
i. Not enough

Terrorism Checkpoints
• Have been upheld: ex. suspicionless roadblock check on military installation
• Also emergency roadblocks to catch dangerous criminal (sniper)

After Edmond
• Courts have upheld checkpoints where the secondary purpose has been drugs, as long as primary
purpose was special needs beyond law enforcement
• Roadblock in response to community complaint that drug dealers were driving dangerously was upheld

Suspicionless Checkpoints to Obtain Information About a Crime

Illinoise v. Lidster
• Checkpoint to obtain information about a crime (hit and run on same part of road a week earlier, police
had no leads or information on)
 • Court emphasized that we look from the individual that is stopped
o If they are being stopped for a crime, then need individual suspicion
• This case
o Not a suspect, not being investigated personally
o Court not concerned that allowing this will proliferate it everywhere (particular hit and run,
won’t have checkpoints everywhere)
• Holding
o Checkpoint not per se invalid under Edmond (distinguished from Edmond)
o Reasonableness analysis
 Gravity of the public concerns served by the seizure
 Degree to which the seizure advances the public interest
 Severity of the interference with individual liberty
• Police were not interrogating individuals, but instead questioning individuals
over crime of which government has substantial interest
o Will still provide an important legal limitation on police use of this kind of information-seeking
checkpoint
o Balancing of public concern (finding person who committed hit and run) on balance was
reasonable

REMEDIES FOR 4TH AMENDMENT VIOLATIONS

Exclusionary Rule
Mapp v. Ohio, 500
• Suppression of the evidence does apply to violations of the 4th amendment
• Weeks Case
o For the 1st time, barred the use of evidence secured through an illegal search and seizure in
Federal Prosecution
• Wolf Case
o Prohibition against unreasonable state search and seizure (under 4th amend.) does violate the 14th
amend. due process; how the 14th amend. incorporates the 4th amend. (incorporation doctrine)
• Mapp v. Ohio
o Issue: if Wolf follows the incorporation doctrine, does this include the exclusionary rule?
o Was let to play out in state courts before this case
o Now Supreme Court holds that exclusionary rule applies to state law as well
 Only effective way of enforcing the 4th amendment
 Without, it is an “empty promise”
o Cardozo Quote
 Under exclusionary rule: the criminal is to go free because the constable has blundered
o Court’s Response
 Imperative of judicial integrity
 Nothing can destroy a government more quickly that its failure to observe its own laws,
or worse, its disregard of the charter of its own existence
o Footnote, p. 502
 Federalism: favor of state power

Arguments for and Against the Exclusionary Rule p.504-507

• Rather than excluding the evidence and setting the criminal free, one legal scholar proposes civil
remedies (the enforcement agency or the officer himself), rather than punish society
• Another legal scholar: illegally obtained evidence should be relative to the sentence
Targets without Standing, Issue of Standing, p. 523-29
• Individual claiming violation of the constitutional right must be claiming a violation of their own
right(s)
• Federal court is not authorized to exclude otherwise admissible evidence on the ground that it was seized
unlawfully from a 3rd party not before the court

Presence in the Home of Another (view as an exception to exclusionary rule)

Minnesota v. Carter 523
• Officer looks in a gap in closed window blinds, observed bagging of cocaine. Obtained search warrant,
searched car after suspects left in car and found handgun in plain view; then searched apartment
pursuant to warrant. Defendants were not residents but visitors to the apartment
• At issue: standing outside and looking in window crack: is this a search?
o Defendant argues this was a search, therefore based on Mapp v. OH, any evidence obtained as
the result of illegal police search is fruit of the poisonous tree
• Olson Case & MN Court
o Overnight guest is entitled to expectation of privacy, here a visitor does not have expectation of
privacy
• MN Supreme Court
o Reversed, standing because defendant had expectation of privacy as a legitimate expectation of
privacy
o The conduct was unreasonable and without warrant, pursuant to exclusionary rule the evidence is
out
• Supreme Court
o To have standing, defendant must (Katz Case) have an expectation of privacy, and the
expectation must be reasonable
o No expectation of privacy, more like a temporary visitor than an overnight guest
o Therefore defendant had no standing to object
• Not always clear whether a guest as standing. Factors to look at (p.525)
o Was it purely commercial nature
o Relatively short period of time (2 ½ hours)
o Not a social nature
o Significantly lacked any previous connection between respondents and the householder
• If just a temporary visitor, they are no way similar to the owner of the home. An owner has an actual
and reasonable expectation of privacy in their own home. An overnight guest is there for social purpose,
has connection to owner of home, and is there for purposes closer to have a reasonable expectation of
privacy.
• Overnight guest would have standing
• Analysis of the word “their” in constitution (in their homes)
o Marked in case
• Justice Breyer, Concurring, p. 528
o Did not trigger the fourth amendment in the first place
• Ginsberg Dissent

When the 4th amendment violation Produces Evidence

• Fruit of the poisonous tree: without misconduct, there would be no evidence, therefore it is excluded
• If arrest is improper, then suspect can have any evidence obtained as a result of invalid arrest excluded

Brown v. Illinois, 535-529

 • Arrest was unlawful, read Miranda rights, then when he confessed had no 5th amend. violation
o Confession was pursuant to an illegal arrest
o Isseue: is it fruit of the poisonous tree
• Issue: Doctrine of Attenuation
o State of causation: if confession is sufficiently attenuated form illegal arrest, no longer fruit of
the poisonous tree
o Was the obtaining of evidence so far removed from misconduct that it should not be excluded,
not fruit of the poisonous tree
• Arrest without probable cause. Then read Miranda Warnings and confessed. Defendant argues for
suppression of confessions because fruit of unlawful arrest (arrest without probable cause)
• Trial court, not suppressed, conviction
• Ill. Supreme court
o No probable cause
o Was there attenuation between illegal activity (arrest) and evidence (confession)?
o Ruled there was attenuation because
 Miranda Warnings broke the chain
 Amount of time between two confessions (7 hours)
• Supreme Court
o Reversed, Miranda Warnings are not enough
o Must look at totality of circumstances, including Miranda Warnings
o Wong Sun Case (537)
 Came to police station several days later, and therefore was attenuated
 Because of several day gap, person had been released, and voluntarily came back; the
decisive issue was not that he made statement involuntarily but the degree the confession
was removed from illegal arrest
o This case
 First confession was not voluntarily, was taken to the police station, and 2nd confession is
merely a result of first confession, therefore both are fruit of poisonous tree, both are
suppressed
o It may be true that if someone is arrested illegally and giving Miranda warnings, confession may
be voluntarily. However, it is separate issue whether the statement is fruit of illegal arrest
o Court rejects per se rule of a “but for” scenario
 Therefore attenuation can exist
o Factors for Attenuation (p. 537)
 Miranda warnings (not mentioned by Levine in review)
 Time between arrest and confession
 Presence of intervening circumstances
 Purpose and flagrancy of official misconduct
• Burden of admissibility is on the prosecution
o P. 538 footnote
 Temporal proximity, and letting defendant go free were significant events in Wong
• Why is purposeful misconduct a factor?

Continued, Exceptions to Exclusionary Rule

Murray Case & Nix Case (544-549, 550-552)

• Independent Source Rule
• Police illegally entered building, sought search warrant, then legally searched and obtained evidence
• Saw motorists with large containers, enter warehouse
 • Other drivers took truck, and were arrested
o Vehicles lawfully seized
• Key police activity at issue (need to do this on exam)
o Police force entry into warehouse without exigent circumstances or warrant
o Observed bales of marijuana
o Was in plain view
• Warrant application for search warrant
o Did not say they entered illegally
o Did not include information they learned from illegal search
o Warrant was granted by magistrate on probable cause
• After getting warrant, performed legal search and seizure
• If info from illegal search was used to obtain warrant, would be fruit of poisonous tree, and excluded
• Segura Case (544)
o Police officers’ illegal entry upon private premises did not require suppression of evidence
subsequently discovered at those premises when executing a search warrant obtained on the basis
of information wholly unconnected with the initial entry
o Need untainted source
• Application of Segura
o If police unlawfully obtain x and y
o Police lawfully find z
 Z is admissible
o This case, found z unlawfully, then found z lawfully (independently)
• Application of Nix
o Cannot use exclusionary rule to put police in worse position or better position
o Inevitable Discovery assumes that independent source rule exists
• Ultimate question: whether the search pursuant to warrant was in fact a genuinely independent
source of the information and tangible evidence at issue here.
o Would the police had sought the warrant if they had NOT entered illegally before hand?
o Not independent source if, without unlawful conduct, would not have applied for warrant
• Ultimately remanded for district court to conclusively consider this
o Police claim that they illegally entered to prevent destruction of evidence
o Must demonstrate that they would have and could have sought a warrant without illegal
entry
 Two bolded sentences, in exam, must discuss both as a part of the rule of independent
source test, think of as 2 prong test
• Dissent
o Fear of confirmatory search before getting a warrant
o Affirmative incentive with this rule to engage in this type of behavior

Nix (550-551)
• Inevitable Discovery Rule
• Ongoing search called off when police unlawfully got suspect to show police where body was, had
search continued it was nearby and would have inevitably discovered body
• The doctrine
o The government must prove by a preponderance that the challenged evidence would have
been discovered through independent legal means
• Rationale
 o Put police back where they would be without illegal activity, not in a worse or better position, to
apply exclusionary rule would have put police in a worse position
o Exclusionary rule cannot be used to punish the state in that way
• Had the police never obtained the illegal confession, the body would have been discovered anyway (in a
short time)

United States v. Leon, 567-576

• Good Faith Exception
• If police rely, in good faith, on a faulty warrant, and that good faith is reasonable, the evidence is
admissible
• At issue: the affidavit the warrant was based on was, in trial court, found to be insufficient for probable
cause
• District Court asked for Review of :
o Whether the 4th amend exclusionary rule should be modified so as not to bar the admission of
evidence seized in reasonable, good faith reliance on a search warrant that is subsequently held
to be defective (legal question)
o Inquiry if police acted in good faith by district court accepted by district court (factual question)
but found by district court to be unimportant
o Court of appeals affirmed
• Nature of governments petition for cert
o There should be a good faith exception for invalid warrant
o Did not challenge probable cause issue
• Cost Benefit Analysis
o Goal of exclusionary rule is a deterrent
 Goal is not to ensure improperly obtained evidence will not be used
o Framing of issue
 Weighing the costs and benefits of preventing the use in the prosecution’s case in chief of
inherently trustworthy tangible evidence obtained in reliance on a search warrant issue
by a detached and neutral magistrate that is ultimately defective
o When law enforcement has acted in objective good faith or transgression is minor, magnitude of
benefit conferred on such guilty defendants offends basic concepts of criminal justice
• 3 reasons for good faith exception
o Exclusionary rule designed to deter police
o No evidence suggesting that judges are inclined to ignore or subvert 4th amend, or that extreme
sanctions are required
o No basis for believing that exclusion of evidence will have a significant deterrent effect on the
judge or magistrate
 They have no stake in outcome of particular criminal prosecutions
• Rationale
o Should not put penalty on officer for magistrates error, cannot logically contribute to deterrence
• Must be an objective, reasonable good faith
• Suppression appropriate if officers were reckless or wrong in preparing application for warrant
• Footnote h: State supreme Court declined to adopt good faith exception

5th Amendment Limitations on Confessions

• Read intro before case
• Before Miranda, was a totality of circumstances test
• 6th amendment appears to only apply to accusatory state
 • b/c it begins “no person shall be held”
• Miranda was landmark because it applied to any custodial interrogation of the subject

Miranda v. Arizona, 690

• P.693, court knew this would change how police interrogations were conducted
• Miranda: indigent Mexican
• Stewart: indigent, with 6th grade education
o Records did not evince overt physical coercion or patent psychological ploys
o However, by nature of setting gives questioned to whether the confessions were voluntary
• Court examined officer’s manuals
o See quote on p. 692
 A person knows their own rights within their own home, more reluctant to confess, ect.
o In office, investigator has all the advantages
 Goal was to make individual uncomfortable, unconfident, realize they are not in control
o Tactics designed to cast blame on victim or society, assume the individual is guilty, make
suggestions to defendant psychologically vulnerable
o Intimidation factor
 Though not physically intimidating, equally destructive of human dignity
• Safeguards Insisted Upon by Miranda Court Custodial Police Interrogations Require:
o Right to Remain Silent (in clear and unequivocal terms)
o Anything they say can be used against them in court
o They have right to counsel present
o if they cannot afford counsel it will be appointed to them
 once a defendant wants a lawyer, questioning must cease, if it does not, then not
admissible
 Waiver: heavy burden for government to prove that defendant knowingly,
intelligently and voluntarily waived
o If at anytime defendant asserts any of these rights, must stop
o Burden on people to show intelligent and knowing waiver of these rights
• P.694 Top: As a practical manner this is compulsion
• P. 698: decision not meant to hamper police; on scene question is still allowed, will not prevent
questioning, or prevent confessions from being used,

p.705 Effect of Miranda

• P.706, to eliminate pressure not confessions
p. 708 Miranda Compromise
• Defendant may still waive any of his rights

Did Congress Overrule Miranda?

Dickerson v. United States, p. 710
• At Issue: was Miranda superceded by a Federal Statute
• Procedural History
o District court granted motion to suppress, based on Miranda
o Circuit Court: (interlocutory appeal), reversed, held that 3501 made confessions turn solely on
whether they were made voluntarily; Miranda was not a Constitutional holding, therefore
Congress can supercede it
o Instead, Miranda is a suggestion of guidelines of best way to ensure voluntariness
• Statute 3501
 o Own method of best way to ensure voluntariness
o P. 711: congress retains ultimate authority over any rules of evidence and procedure not required
by the Constitution.
o Congress cannot supercede Supreme Court decisions interpreting and applying the Constitution
o Therefore at issue is whether Miranda announced a constitutional rule or was a regulation of
evidence in absence of congressional direction
• Holding
o Miranda was a constitutional ruling that could not therefore be superceded by Congress
• Arguments against Miranda
o Miranda as prophylactic measures
 Consistently held in state cases
o There are exceptions to Miranda
 Modification over time is not unusual for a Constitutional rule
 P. 712: no constitutional rule is immutable
o All that is necessary to comply with Miranda, is any legislative response be as effective in
preventing coerced confessions (Cassell, p. 713)
 Statute is not sufficient
 Not an adequate substitute

Exceptions to Miranda
• Physical Evidence as the Fruit of a Miranda Violation
United States v. Patane Supp 57-64
• Miranda does not require exclusion of evidence from voluntary statements without Miranda
o If involuntary, evidence is suppressed
• (no opinion of the court) (plurality opinion)
o If lower court had exact same scenario, must follow
o Otherwise, no other binding holding/precedent
• Facts
o Arrested for violating restraining order, started to read him Miranda warnings, defendant stops
them and says he knows his rights. Officers question defendant about gun, which defendant then
discussed
• Did not waive his Miranda warnings (was not sufficient)
• Therefore, violation of Miranda
• At Issue: fruits of statement; are they suppressed? (actual statement is suppressed)
• (also, at issue was there probable cause, Appellate Ruled there was)
• Court’s Analysis
o 5th Amendment: no person shall be compelled to be witness against themselves
o Only applies to testimonial evidence, the evidence at issue is physical evidence
o Not a situation itself was involuntary; statement was voluntary  different from situation of
coercion. Opinion does not find it compelling to exclude (was voluntary, was not a confession
be excluded)
o Self-Incrimination Clause of 5th amend.
 Language of amend. carries its own exclusionary rule: cannot use testimony in court
 Therefore, unlike 4th amend with general exclusionary rule, the 4th had no exclusionary
language
 Language of 5th amend. specifically limits exclusion of statements, and does not limit
exclusion of evidence obtained
o Dickerson Case
 Need for closest possible fit (p. 61)
  Suppression is not the only possible remedy for any constitutional violation
 Not automatic, and if under the language of amend. suppression is not required, instead
closest possible fit between remedy and violation which is
• Not permitting confession to be used
• Not permitting to force defendant to testify
o Miranda and 5th amend. only protect trial rights; proper to exclude if evidence is from statement
admitted at trial
• A voluntary statement without Miranda warnings, that was not coerced (what this case is
applicable to)
• Kenney/O’Conner Concurrence
o Do see other situations necessary to suppress
• Dissenting
o Inherently coercive character of warning-less interrogation
o Although they recognize problems of exclusion, is necessary where clear violation of Miranda

The Fruit of an Intentional Miranda Violation

Missouri v. Seibert Supp. 64-76
• Woman was interrogated without Miranda (those statements suppressed), immediately afterward was
read Miranda and they confronted with suppressed statements. Is this to be suppressed? (Yes)
• Trial Ct. admitted
• Supreme Ct. Missouri: where interrogation continuous, it is therefore a product of the first, therefore
suppressed
• US Supreme Court
o Intentionally action by police to avoid the needs of Miranda
o Situation presents new challenge to Miranda; concern this is a widespread intentional practice
 Goal to make Miranda ineffective
o Suspect would not actually believe they can remain silent, confusion over what they say can
be used against them
 If suspect could not understand the protection that Miranda gives
o Threshold Issue: would be reasonable to find that in theses circumstances the warnings could
function effectively as Miranda requires
 Ineffective in preparing suspect; close in time and similar in content
o MI Argument: Oregon v. Elstad
 Confessed without any warnings, then given warnings and confessed again
 Distinguish:
• No deliberately coercive or improper tactics
• Questioning in station house was different from questioning in home, reasonable
person could see distinction (different time, place)
• This case: only 15-20 minutes in between, nothing was said to counter an
misimpressions, not informed that first confession could not be used against her,
seen as one continuous situation from perspective of suspect; the goal of the
method used was to confuse suspect, get around Miranda
• A reasonable person could not have made an informed choice about whether
she should continue to talk, thereby making the Miranda warnings
ineffective; could not have realized that anything they said before could not
be used against them
If illegal arrest, statements obtained with Miranda, generally under 4th, statements inadmissible as fruit of
unlawful arrest. If 4th amendment violation leads to interrogation, and can be attenuated (other grounds the
would allow police to question subject) then look at confession separately, decide if Miranda allows confession
in.

6th Amendment Right to Counsel

• If person is arrested (correctly or improperly), the information that is directly result of unlawful arrest is
inadmissible under 4th. However, under 5th, if no Miranda, will be inadmissalbe but physical evidence in
pursuant to confession is admissable

The Massiah Rule

Massiah v. United States 775
• Constitutional 6 amend. right to counsel
th

• This case applies the concept of above to challenge admissibility of a confession

• Facts
o Indicted, plead guilty, got a lawyer, out on bail, co-defendant agrees to wear a wire for police,
records conversation with Massiah, conversation admitted at trial
• Issue: does this violate 6th amend.?
• Investigation can continue after indictment, however defendant’s statements taken without
counsel present cannot be used at trial
• Quote, p. 777 Higgenbotham
o 6th recognizes once the government has brought formal charges… once an accused has chosen to
retain an attorney to act as his representative, the government may not try to circumvent the
protection afforded by presence of council during questioning.

Obtaining Information from Formally Charged Defendants

Brewer v. Williams 778
• Suspect indicted, retained council both in local city and in the city of the charges, lawyer specifically
told police not to question suspect during transport & told suspect not to talk during transport
o 116 mile trip, police began discussing weather, and how the girl deserved a Christian burial
• Issue: was there a sufficient waiver of 6th amend. right to council present?
• Waiver
o Must be intentional relinquishment of right
o Not present here
• Was not deceitful as in Messiah
o Regardless of nature of police, defendant has right to council unless properly waived

Application of the Deliberate Elicitation Standard:

Fellers v. United States 787
• Grand jury indictment against defendant. Police officers went to his house to discuss meth, told him
they had a warrant and that he was indicted [formal charges, triggers 6th amend. right to council]. Police
elicited statements, then took defendant to jail, read Miranda rights, further statements taken
• District Ct
o Unwarranted statements were inadmissible under 5th
o Statement obtained post-Miranda:
• Oregon v. Elstaad (Ct. Appeals)
o Satisfied analysis of Elstad, different time, setting
• Supreme Court
 o Miranda Analysis did not address 6th amend. issue
o Deliberately elicited information obtained after indictment without council violates 6th amend.
 No question police deliberately elicited information
o b/c this is a 6th Amendment Rule, fruit of poisonous tree analysis is different from 5th amend.
 court does not decided if Elstad rationale should apply, the court remands it to lower
courts to determine the issue
• fruit of the poisonous tree doctrine

Identifying Suspects
Identifications and the Right to Counsel

United States v. Wade 809

• Facts: bank robbery, line up performed without counsel present
• May still offer incourt identification, if there is evidence that the identification of witness is based on
idnependant observation, not the tainted line up
• Supreme Court
o Critical stage, therefore right to counsel over 6th amend. still stands
o Issue of identity may be determined there and then before the trial
o Holding p. 811
 Counsel should be notified, and counsel’s presence should have b een a requisite to
conduct of the lineup, absent an intelligent waiver.
o Issue: what are the consequences?
 Test: whether evidence to which instant objection is made has been come at by
exploitation of the illegality distinguishable to be purged of the primary taint
• Attenuation/independent source hearing: what is the relation between the out of
court identification that violated 6th, and the in court identification
 Factors
• Consider the relationship between pre-trial improperly identification and
identification in court
• Was the only reason the court I.d. made was because of the line up? If so, then in
court id not admissible
• On the other hand, may have been other considerations for witness to identify
defendant

p. 814, Gilbert Case

• Out of court identification in the absence of counsel was admitted in prosecution’s case
• Issue/Holding: in court identifications would be excluded unless they proceeded from a source unless
they proceeded from an independent source of the tainted identification, such as substantial opportunity
to view the perpetrator at the time of the crime.
o as to out of court identifications, court adopted a per se rule of exclusion

Stovall, p, 819
• Improperly suggestive identification violates due process rights
• Line up cannot be suggestive
o Cannot be brought alone to be identified, or in line up and the only one who looks like physical
description of witness

p.821
• Permissible Suggestiveness Exception to Stovall
 o Confidential Informant needed to identify, did not do full line up, court held okay was to protect
innocent person
o (exigency circumstances)
o NY also protect showing on the street (allows them to quickly pursue other leads if not right
person)

Manson v. Brathwaite 824

• One on one id through photo
• Admissible unless substantial likelihood of irreparable misidentification
• If jury wants to consider evidentiary value in contribution to a conviction, jury has authority to
not find it enough
• Holding: reliability is the linchpin concerning (see p. 826)
• (do not need to know all factors)
o As long as court can find they cannot say as a matter of law that there was a substantial
likelihood of irreparable of misidentification, than whether or not the identification is reliable is a
question for the jury

Gideon v. Wainwright 844

• Holding: 6 amend. right to counsel and 14th amend. right to due process requires not only that a
th

defendant has a right to counsel, but that state must supply effective assistance of counsel

Exam Itself
• IRAC the essay
• Rule as applied to the facts of this case/particular individual rule
• Pay attention to analysis:
o Articulate how you reached the conclusion
o Include counter-arguments
 Explain why court should not follow it
o If there is no other side to the argument, do not try to create it
o Distinguish between issues and non-issues
• Consider the stages of police activity
o Does it satisfy or violate an amendment
o Do not focus on the criminal activity as much, likely the police actions are at issue
o Was the police conduct in this particular state of activity constitutional?
o Counter arguments: if one(s) exists
 Explain them, and their ramifications

Office hours
• Thursday (this week and next)
• Friday
• Over weekend: email
o If extensive question, email phone number and times to call