c
 


 
 


    
 

 
Forward Backward
Collective Individual
Legislative Judicial
Utility Rights
Active Gov¶t Passive Gov¶t
Public Private

Court makes decisions at trial stage. Enforce/formulate rules of criminals though courts
-Y After the fact (someone who has been caught and charged)
-Y Judge made law

  
Which Constitutional rights are applicable against the states?

-Y A: G  
   
  

-Y 

 
 !"#$:14th amendment incorporated the amendments into the states.
Duncan concerned the right to a trial by jury for a criminal case. Almost all of the Bill of Rights
now applies to the states. MAJOR EXCEPTIONS:
mY No right to a grand jury (for indictment purposes)
mY No right to a jury for a  trial

%  Ghould the legal rule be applied to government conduct occurring before the date of the
decision.
-Y 
% & ' 
A new rule is applicable to all cases that are still under court
review; up to the time a petition for certiorari in the SCOTUS has been denied or the time to file
such a petition has run out. Rules are generally inapplicable to habeas cases (fed ct review of
state judgments brought after D¶s direct appeals through the state appellate courts and the US SC
have been rejected or foregone). If the rule is fully retroactive in that it is applied to not just
people who raise in the future but to those who have not exhausted all appeals.
-Y Rules that are not ³new´ are fully retroactive ± that is, if it was an established rule, but was
misapplied or misinterpreted, you can bring it up in a habeas hearing. Rule is new if ³reasonable
minds disagreed before it was rendered´ Can¶t bring up new rulings, but can bring up
reinterpretations.
-Y AEDPA (current approach): Threw out the two Teague exceptions. Now, no habeas proceedings
allowed re: a claim adjudicated on the merits UNLESS:
mY The proceedings resulted in a claim contrary to, or involving a misapplication of,
 Federal Law
mY Resulted in a decision based on an 
 
   

 ( (.
-Y In sum, though: If it¶s a
 , it only applies to you if your case is still on   appeal (not
in a habeas proceeding)
-Y r) Danforth allowed a State Court to apply its habeas rules based on a new rule, as,
technically, Teague and its progeny apply only to Federal Courts
-Y

&*+,-%&*./+r/+r&
[he right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but
upon probable cause, supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
 
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´ A cardinal rule of the 4th is that
circumstances is presumed to be unconstitutional´

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 Court balances privacy versus policing. There was PC and a
magistrate would have granted, but magistrates decision. (Forward looking rule,
warning police to behave) 
Y +  G 1
% 5 
9Formalism ruled based. 
Y Need PC and Specificity and it is magistrates decision. Reduces perception of
police intruding, and reduces interference from government and police itself. 
    ( (
  
 
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& : 5 independent questions, all must be addressed; to successfully prove violation = yes for (1) AND
(5); no for (2) OR (3) AND (4) required:

(1)Y Fourth implicated? Dispositive; NOT implicated if:

ÔY Complainant not covered by Fourth (e.g., non-resident alien NOT w/in ³people´ even
though charged w/violation of US law; search conducted by US police at least re:
property NOT w/in US)
ÔY Conduct not covered by Fourth (the protections of the Fourth Am only apply to
 ' 6 ; private persons may perform unreasonable searches/seizures)
ÔY Conduct = NOT search or seizure at all, b/c no reasonable expectation of privacy
(objective + subjective OR possessory interest)
(a)Y If yes, go to (2)
(b)Y If no, no exclusion
(2)Y Warrant?
(a)Y If yes, go to (3)
(b)Y If no, go to (4)
(3)Y Supported by magistrate¶s determination of PC AND specificity?
(a)Y If yes, legal search or seizure, no exclusion
(b)Y If no, go to (4)
(4)Y Applicable exception?
(a)Y If yes, legal search or seizure, no exclusion
(b)Y If no, go to (5)
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(5)YDoes the exclusionary rule apply? IFF yes for (1) + no for (2) OR (3) AND (4)
(a)Y If yes, exclusion
(b)YIf no, no exclusion

+7 
 % 5 


.

 Secondary evidence obtained by means sufficiently removed from initial
illegality (causal chain = long + unbroken)
:

;


  Exclusionary rule does NOT apply b/c attenuation (suppression wouldn¶t
G 
  serve interest protected by constitutional guarantee) (udson v. MI; NY v.

 arris)


 

   Secondary evidence obtained from independent source, not by exploiting
original illegality (causal chain = short + broken); (1) warrant application
w/support independent of violation; (2) warrant application not motivated by
violation


    Secondary evidence Vould have ultimately been discovered anyway by lawful
means;     , NOT simply plan to obtain evidence
G

' Exclusion available only if possessory interest or reasonable expectation of
privacy
,

 NOT habeas; grand jury; deportation; probation; or civil actions
c ( Officer reasonably relies on facially valid warrant issued by magistrate unless
(1) police deliberately mislead; (2) warrant obviously invalid; (3) magistrate
not neutral + detached; (4) warrant based on illegally seized evidence (police
knew/should have known)

 
 Evidence otherwise excluded admissible solely to impeach D¶s testimony at
7 
 trial
*    Conviction would have resulted in any event b/c of overwhelming evidence

.%=Y(.Y=0*,=1=(.Y

& < G =% (8 

): A warrant is required unless numerous categorical exceptions.
Warrant req. neither found in text nor in Framers¶ intent, so to justify, must be unreasonable for
police not to get warrants + necessary to be secure against unreasonable searches + seizures; but
officer w/PC did ³right thing,´ so requirement punishes wrong person; BUT have to punish this
officer b/c worried about next officer w/o PC (deterrence). 4. .

1
: judicial authorization for police action, permitting either search of particular place
(search warrant) or arrest of particular person (arrest warrant); affords protection against
unilateral action of overly zealous police officers

  : (1) inferences drawn by neutral + detached magistrate instead of being judged
by officer engaged in often competitive enterprise of ferreting out crime; (2) confines
scope of intrusion to areas/items specified
 % 5 
: (1) issued by neutral + detached magistrate capable of determining PC;
(2) adequate showing of PC supported by oath/affirmation presented to magistrate; (3)
warrant describes w/particularity place to be searched + items/persons to be seized

Why are PC and warrant req separate? Courts are ( 9


' in this sense: just because a
cop ³called it´ correctly this time (i.e., upon review ct agrees there was PC), he still needs to get
a warrant so that a magistrate gets to take an ex ante look at it too. (Unless there¶s an exception
to the warrant req, of course)


%,).)+.-G+

: ex parte, so challenge heard ex-post; on review, scope of warrant = fn:
information presented to magistrate  

 is a function of the totality of the circumstances, at the time the warrant was
sought. No ex post review. The Aguilar/Spinelli two-pronged test (source¶s basis of
knowledge + source of info¶s veracity req¶d, then threshold Q) was ³replaced´ in
Gates by a TotC analysis ± but the Court used the prongs!

6
  


 
( 
6  


 (

 ' w (Gates)

N.B.: Defects in veracity may be cured through police corroboration, specific

detail may cure defect in basis of knowledge, and other evidence can cure both.

So, what is PC? Ct¶s haven¶t really said ± the above just describes the    (
 
'(  . Case-by-case analysis required. AND, Spinelli/Gates only deal
with information acquired from paid and/or criminal 
( 
. Citizen informants
are     .

guilar-SpinelliGates: (1) basis of knowledge + (2) veracity; can remedy defect in
(1) by detail; defect in (2) by corroboration; informant tip can provide RS, especially
if sufficiently detailed + corroboration (although not as much as is required for PC b/c
lesser standard) ( v. White), but NOT anonymous tip b/c lacks indicia of reliability
+ often incapable of corroboration (F v. J )

PC FOR SEARCHES

Prandy-Binett: D was at train station, stopped by police, they saw a ³brick´ in his bag,
and cuffed him and searched the bag. (   ? YES, acc¶g to the ct. Police
had narcotics experience, etc, and based on the circ¶s there was:

.(        
  ( 
    .

 PC FOR ARRESTS

Valez: Cops arrest D, who looked like a suspect they were searching for. D was
carrying drugs, too. Ok? YES. D matched ³every detail´ of the description, and was
in the immediate vicinity of the ³other´ suspect. Legit ± and D can be prosecuted!

.(       
    ( 


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 (( 6 
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PC is evaluated  (   ( ± so, Valez is screwed, even though they weren¶t
looking for him.

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Also, e.g.: If police have PC to arrest Mr. X, and PC to believe Mr. Y is actually Mr.
X, then their arrest of Mr. Y is supported by PC.

Pringle (p. 121): ³To determine whether an officer had PC to arrest an individual, we
examine the events leading up to the arrest, and then decide whether these historical
facts, viewed from the standpoint of an obj reasonable officer, amount to PC.´
In Pringle, cops found drugs in the backseat armrest of a car. Arrested all three
occupants. PC? Ct: YES ± fair probability they were engaged in a crim enterprise.

PROBABLE CAUSE, SPECIFICITY, AND REASONABLENESS

Warden v. Hayden: Until this, ³mere evidence´ of a crime could not be seized. Why?
%  (     ± you still had a legit possessory interest in (legal)
evidence (as comp to stolen merch, weapons, etc). And you have a 4th Am
' in your legal possessions.
However, the Court in Hayden says your privacy has already been violated (and
legally, if PC/warrant satis), so you don¶t really have a legit privacy interest in ³mere
evidence.´

This dramatically increases the possibility of   in police searches.

: based on Fourth language, limits permissible bounds of search; meant

to avoid ³writs of assistance´ (open licenses) from colonial era; standard of
particularity regarding items to be seized requires description leave nothing to
discretion of officers (Marron v. UG), but where items = readily identifiable as
contraband, generic descriptions permitted

Andresen: Warrant desc¶d items to be seized and then added ³and other evidence, etc,
related to to crime.´ Normally, this would be way too broad, but the Ct here noted
that this clause related only to doc¶s pertaining to the crime being investigated.
 Takeaway points: (1) By eliminating ³mere evidence´ rule, you broaden the
allowed search area; (2) By allowing non-specific mentions of ³evidence,´ you
broaden the scope even more.

 : Warrant must describe what you¶re looking for. If PC, permitted to search
whole house, but no court would permit search of every room in boarding
house/every street on block/every locker in train station if PC to believe contraband in
one room/house/locker. NOR CAN YOU ³LOOK FOR AN ELEPHANT IN A
SUITCASE,´ even if you have search warrant for the whole house.

 7: (1) search warrant for drugs = search anywhere drugs could be concealed vs. search
warrant for rifle = search only where rifle could be concealed; (2) 7
 (  
 

 (>(
      ( : if many things, PC will
justify larger search, but if fewer things, less likely to have PC to believe thing will be in place
they think it is; (3) innocent subject to greater search b/c they¶ll tear the whole house apart

ANTICIPATORY WARRANTS

Grubbs: Warrant
 invalid just b/c it is contingent on a future event. Police mailed D
kiddie porn, and then arrested him when he received it. How can you establish PC for something
that you are mailing to the suspect? Hmm. However, Ct est¶d criteria:
It is noV probable that (a) contraband, ev. of a crime, or a fugitive Vill be on the
described premises (b) Vhen the warrant is 7  .

WHAT IS THE ROLE OF THE MAGISTRATE?

The whole point is that they act/decide differently than the police. Otherwise, no point.
BUT, the magistrate must be <

  =(whatever that means). It does mean that
the magistrate cannot be a law enforcement officer (e.g., AG) and cannot have a financial stake
in her decisions.

But legal training isn¶t necessary (Why? Ct: Non-lawyers do this all the time: juries,
grand juries, etc.) Keep in mind, if magis¶s aren¶t really doing their job, then maybe the
exceptions to the warrant requirement are OK.

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& . +7 
: (1) no warrant if (a) arrest in public place (including doorway/porch)
AND (b) PC to believe subject committed crime (r,& 7 
   5 
; no
magistrate determination, BUT challenged after arrest); valid even if sufficient time to obtain
arrest warrant + no practical impediment; (2)   warrant required for arrest of person in own
home; (3)   warrant required for arrest of person in 3P home
r 
'  (   
 

. : if arrest, following permitted w/o judicial approval: search incident to arrest;
detention (paradox: more guilty, better treatment re: detention facility); interrogated; picture
taken (placed in mug book where anytime police have victim who¶s seen perpetrator, victim
looks at mug book; overwhelming social science evidence: pick = random)

& 9  @  : (1) formal system w/careful, elaborate, protective rules +
procedures; rational, but cumbersome, time-consuming + unrealistic b/c doesn¶t respond to
police on street w/sense things getting out of control, so (2) dark underside of criminal justice
system; NOT rule-based, rather wide discretion to police to dole out rough justice: perps
police know are guilty, but will escape punishment in formal system, so police officers
punish informally (e.g. arrest + 48-hour lockup; search w/o warrant or PC to get guns off
street); show who¶s in charge

8 : systematic subjugation to communicate to blacks who was in charge; BUT

disanalagous b/c segregation¶s purpose = immoral, whereas police purpose = defensible
(public safety)

˜S v. Watson: police need not obtain warrant to arrest in public place even if zero law
enforcement cost; sweeping exception to warrant requirement, authorizing extensive invasion
of privacy/liberty w/o magistrate approval

: informant in restaurant w/D gives signal to undercover police that D has stolen
credit cards; police arrest D; search person + find nothing; police ask to look in car +
Watson says yes; search of car reveals stolen credit cards under floor mat; Court assumed
credit cards = fruits of arrest, so if arrest illegal, cards suppressible


(  
 : some risk of losing D or evidence on which PC based, so

justified in not seeking warrant

% 

': common law (BUT Constitution overruled common law of seditious libel,
e.g.) + statute requiring warrant only if felony arrest (BUT Supremacy Clause + common
law history)

,  : if Fourth meant to circumscribe    (seize item without any
additional privacy invasion),

 
(  2 
; warrant not
required to seize D b/c no privacy invasion when he¶s in public (anyone can see item/D)

÷ayton v. NY: given sanctity of home under Fourth jurisprudence, arrest warrant required to
enter + effect nonexigent arrest of subject in own home

: police suspected Payton of murder; police went to Payton¶s home to arrest (had
PC, but no warrant), opened door, shell casing in plain view. Suppressed.
 . 
: Authorizes home entry + search. ³An arrest warrant founded on PC
carries with it the limited auth to enter the suspect¶s dwelling Vhen there is reason to
believe the suspect is within´;

 
 
  (except person¶s body +
immediate surroundings (search incident to arrest)) b/c further search would require
further justification (may be ideal to obtain search warrant, but arrest warrant = sufficient
to protect privacy, so don¶t also need search warrant)

N.B. If you have an arrest warrant, and want to execute it at suspect¶s home, you
need a reasonable belief that the location to be searched (a) is the suspect¶s home
and (b) he¶s there.

A Peyton violation constitutes an illegal  . (p. 188; A"B)

Steagald v. ˜S: where police seek to arrest suspect in 6 
 , police must,
absent exigent circumstances or consent, obtain search warrant to enter and search home for
suspect

: police obtained arrest warrant for Lyons; thinking they could find him in
Steagald¶s house, police searched house; police didn¶t find Lyons, but saw cocaine in
plain view + Steagald convicted

G 
: issues on PC to believe subject = guilty + in place to be searched OR

PC to believe item = seizable + in place to be searched; necessary to protect P privacy
interest (need only arrest warrant if guest makes 4th Am complaint b/c guest doesn¶t have
more protection in 3P house than own home)

Pub Policy: If arrest warrant was enough, cops could    
 ( 6
(
6  

G

': if police w/arrest warrant had found + arrested Lyons in Steagald¶s house,
might be unconstitutional, but Lyons lacks standing b/c search violates Gteagald¶s rights,
NOT Lyons¶s (search = overbroad only in regard to Steagald, so if evidence introduced
against Steagald, Steagald would have standing (MN v. Carter)) Also, if they had found

6 
, it¶s OK ± b/c no ³collateral damage´ towards Steagald.

N v. Carter: guest cutting up cocaine in another person¶s house cannot complain about lack
of warrant b/c not his house/not overbroad as to him (if evidence used against homeowner,
that could be suppressed b/c warrantless search overbroad as to him). Guest has no
expectation of privacy in the apt, so no 4th Am protections. BUT:

N v. Olson: OVERNIGHT guest arrested in another¶s home w/o warrant may

complain/standing b/c, as overnight guest, likely he will have some personal effects with him
+ warrantless search will be overbroad with regard to overnight guest

Gerstein 
': after warrantless arrest, D entitled to prompt determination by magistrate that
PC for arrest; ex-parte, no live testimony, no lawyer, no opportunity for D to present case (same
procedural protections as if a warrant was needed, just in reverse order). However, this does
mitigate the effects of Watson.

cLaughlin: (1) time limit tied to completion of administrative tasks rejected; (2)
permissible to delay cerstein hearing to combine w/initial appearance; (3) delay can¶t be
longer than 48 hours; (4) even if w/in 48 hours, unreasonable delay if D shows impermissible
purpose for delay (punish D or more time for govt to gather evidence to justify arrest); (5) if
after 48 hours, presumptively invalid + BOP on govt to show actual, ³extraordinary
circumstances´ justifying delay

: county practice (mimicked in many jurisdictions) of combining cerstein hearing

w/initial appearance; b/c practice, D could be held in jail for up to 5-7 days before
hearing; appeals court: no delay longer than 36 hours; length tied to administration of
arrest

   : arrest; D brought to police station + booked (photographed, fingerprints,

record reason for arrest); prosecutor decides whether to ³paper´ case (bring charges
against D); if ³papered,´ D appears before judge for initial appearance (may be asked to
plead, first opportunity to talk to lawyer, judge decision whether to release D on bail,
bond, or own recognizance w/conditions)

: (1) cerstein = ex-parte, cursory, govt needs a hearing to issue warrant (and
usually does so rather quickly), so can do the same for these; (2) Judges interpret
Constitution, NOT make policy (48 hours NOT from Constitution)

 (
 : (1)case-specific reasonable delay determination in every cerstein case =

inefficient (Court hears few cases vs. massive criminal justice system); (2) no guidance to
police/need to know rules (Ct trying to be fwd-looking)

What about evidence gathered beyond 48 hours? NOT suppressible unless it was a direct
result of the unreasonable detention. If nothing to suppress, no remedy for Mc aughlin
violation (could ask judge to release D, but D¶s beef is not having been brought before
judge); nothing to deter police from ignoring Mc aughlinw

porrester v. San Diego (p. 177): force necessary only b/c protestors resisting

[N v. Garner (p. 174): deadly force only if PC to believe D poses risk of serious injury to
officer or others; if mere use of excessive force, police permitted to use amount of force
necessary to affect arrest ± based on ³4th Am reasonableness standards´

: abortion protestors engaging in civil disobedience; police ordered to apply pain
w/nunchuks until protestors cooperated

  : Headwaters (same Circuit): Cops used pepper spray on passive
protesters, b/c it continues to cause pain after arrestw
 :  $Watson 2 
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=+7 
: in appropriate circumstances + in appropriate manner, officers
may briefly detain person to investigate possible criminal activity; if stop: RS required, if < stop:
neither RS nor PC required. r   

 56( < 
(
=

BLACK LETTER:
1. Officer may ³stop´ if he has %G of ongoing illegal activity or that the person stopped has
committed a crime.
2. Officer may ³frisk´ iff he has made a legit ³stop´ AND there is %G that person stopped
has a weapon and/or poses a danger to the officer(s).

[erry v. OH: (1) if police want to conduct investigatory stop of ongoing criminal activity,
they may w/o warrant or PC, but only if RS of ongoing criminal activity OR crime
committed (UG v. ensley); NOT full-fledged arrest, rather investigation + stop authorized
for no longer than necessary to investigate/dispel suspicion; (2) officer authorized to conduct
external frisk/pat-down to look for weapons IFF RS that D = armed + dangerous

: Officer McFadden¶s attention drawn to 2 men on street corner who appeared to
experienced officer to be ³casing´ store for robbery, McFadden approached men, asked
them to identify themselves, men mumbled, McFadden patted men down, felt pistol on
each, removed guns, men placed under arrest for possession of concealed weapon, moved
unsuccessfully to suppress guns

8(
: (1) PC model doesn¶t describe vast majority of police contacts (range); (2)
inappropriate to hold police to PC standard b/c although no oversight b/c most stops don¶t
end in arrest, less severe invasion of personal liberty (doesn¶t culminate in trip to station
house, temporary, NOT full-blown search) + not search for evidence; (3) pat-down =
search w/in meaning of Fourth, but no warrant required b/c fast-moving emergency w/no
time to obtain one + for stop, officer has suspect in front of him (might escape) + totally
impractical to req a warrant for stop; (4) PC = standard of whether D has committed
crime, whereas here suspicion that D may commit crime

Ct: ³The sole justification of the   . . . is the protection of the police officer and
others nearby.´ (p. 199)

%G: (1) govt interest justifying invasion (freezing status quo long enough to investigate +
frisk to protect officer from harm, NOT desire to find evidence other than weapon IFF RS
unless plain touch provides PC to arrest); (2) invasion no greater than interest implicated;
(3) specific articulable facts showing interest implicated + sufficient to convince judge of
RS (NOT hunch)
 / 

': based on whole picture, common sense analysis + deference to expertise of
law enforcement officers; detaining officer must have particularized + objective basis
for suspecting particular person stopped of criminal activity; ³totality of the
circumstances´ (UG v. Cortez); can arise from information less reliable than required
for PC; hunch < RS < preponderance of evidence

% (  : alone, not grounds for RS; if refusal to stop = grounds alone for RS,
wouldn¶t have right not to stop (cf. Mendenhall p. 212); BUT refusal to stop, along
with other factors = RS? Punishing exercise of constitutional right OR right to read
book on how to make pipe bomb, but may take into account the fact that your library
records include checking out such a book?

IL v. Wardlow: unprovoked flight from police in high-crime area = sufficient to

establish RS for stop, although flight by itself = insufficient

: stop justifies frisk, frisk doesn¶t justify stop; BUT (1) govt interest in frisk to
protect officer from harm only b/c interest in stop (interest in frisk parasitic on interest in
stop b/c officer putting himself in harm¶s way by approaching D + officers, in practice,
stop so they can frisk); (2) insufficient interest in stop b/c what will stop consist of apart
from frisk (D likely won¶t confess + if interest in preventing crime, officer can wear
uniform; BUT not investigating, rather showing who¶s in charge)?; (3) informal police
conduct arguably more subject to abuse, so limit discretion vs. informal activity w/need
for quick action + diverse, so impossible to craft formal, uniform rule; (4) enlarged
beyond initial justification

dams v. Williams: frisk justified b/c 3.00am in ³high crime area´ + RS to believe
armed/dangerous based on known informant

: officer patrolling at 3.00am in ³high crime area´ + approached by informant

(officer has relied on informant before, but some information incorrect); informant tells
officer there¶s a guy in nearby car w/narcotics + gun in waistband; officer goes to car,
Williams sitting in it, taps on window + asks to open; Williams instead opens door +
officer pulls gun out of waistband; Williams under arrest + search incident to arrest,
finding narcotics; Williams convicted of unlawful possession of firearm + drugs; argues
on appeal search = unconstitutional


'  
:(1) [erry: pat-down = more intrusive b/c feeling up D vs.
reaching into car (but into waistband!) + RS b/c informant and high crime area; (2)
cates: officer knows informant, so can return + talk to informant (crime to lie to police)
+ lower standard to meet

: no indication crime about to happen, but worry tail wagging dog ( 

  (
to look for evidence of crime)

G   ((
: limited to exigencies, restricted to weapons search (r,& 
 ) or plain
touch + can¶t go beyond what¶s reasonable to find weapons (MN v. Dickerson). Judge will
have to believe, e.g., that cop thought it was a weapon up until the moment it was discovered.
Then, can be intro¶d as evidence.

N v. Dickerson: officer in course of frisk felt something that wasn¶t weapon; if on that
basis, PC to arrest, arrest + search incident to arrest; but if insufficient PC to arrest +
knew it wasn¶t a weapon, manipulation beyond initial touch (further privacy invasion),
giving officer PC to arrest b/c drugs, invalid b/c manipulation NOT to find weapon

I v. Long: permitted ³frisk´ of automobile for weapons b/c, under circumstances (D

swerved erratically into ditch while driving, appeared intoxicated, refused to produce
license + hunting knife in car), D could return to car, access weapons + pose danger (RS
to believe armed + dangerous)

Ybarra v. IL: unconstitutional to frisk all patrons in course of executing search warrant in
public bar b/c no individualized suspicion

[

Y .r.-&,/,)
+G

÷ v. imms: [erry encompasses  authority to order driver + passenger(s) (MD v.

Wilson) out of car after a  ' stop; RS required to stop car AND to frisk.

: officer notices D¶s car being driven w/expired license + stops car to issue
summons; officer orders D out of car + notices bulge in jacket; fearing bulge = weapon,
officer frisks D + discovers gun (no RS to frisk until ordered out of car)

% 

': (1) Again, (( ( : ordering D out of car diminishes chance D will
make unobserved movements (BUT DC practice of ordering D to remain in car b/c less
dangerous); (2) after legitimate stop, ordered to exit car = de minimis intrusion

: (1) Court moving away from [erry facts b/c  5
'

to order
D out of car; (2) )-&not'9
 , instead officer discretion. Therefore, risk that
black Ds ordered out while white Ds aren¶t (Court doesn¶t want to constitutionalize every
police interaction w/citizens b/c endlessly diverse + happen quickly)

NY v. Class: reasonable expectation of privacy diminished b/c motorist must expect VIN
regulation will require state to inspect

: D stopped for speeding + cracked windshield; officer looks through windshield for
VIN, but paper on dashboard obstruct view; officer enters car to move paper + sees gun
in plain view; D moves to suppress

: (1) govt interest = ticket for cracked windshield, which doesn¶t require VIN
(used to check if car stolen, but police couldn¶t enter parked car to move paper + check
 VIN); (2) police could ask D to move paper (avoid overbreadth; if VIN on house, can¶t
enter w/o warrant just b/c VIN = not private)

I v. Summers: when police execute  
, they may automatically stop + hold
people who are in house (even those leaving when cops arrive), whether owner or visitor,
until search completed

: automatic stop w/o justification (NOT de minimis invasion b/c house);
consistent w/[erry b/c RS to believe people leaving house = removing evidence or
otherwise endangering search (BUT Court didn¶t say this)

uehler v. ena: detention permissible b/c dangerous situation, P not detained for longer
than necessary to search house + only reasonable use of force permitted

: officers believed gang member lived at particular address + obtained search
warrant to search for evidence; SWAT arrived at 7.00am + removed P from bedroom in
handcuffs + at gunpoint (no reason to believe she¶s gang member); P kept in garage for 2-
3 hours while search conducted

%
 : The detention during the search is ³surely less intrusive´ than the warranted
search. Under Summers, this is legit. Also, b/c ³mere police questioning´ is not a 4th Am
seizure, no RS needed to question Mena about her immigration status, etc.

G : Fourth implicated if officer by means of physical force or show of authority restrains

liberty of subject ([erry v. O) or RP, under circumstances, believes he is not free to leave (UG
v. Mendenhall); NOT subjective b/c applicability of Fourth NOT based on subjective state of
mind/eccentricities of confronted person

Wouldn¶t it make sense to use suspect¶s subj impression? B/c if he doesn¶t feel free to leave, he¶s
³stopped.´ Yes, but this is a ( 9

' , so RP is the standard.

   (

 G
 (@(


Subject confronted but free to leave (³mere´ contact) No justification required
Stop (subject confronted + NOT free to leave; RS of criminal activity; > hunch/particularized
detention = temporary + for investigation purposes) suspicion
Frisk (limited to pat-down search) RS of criminal activity AND RS that suspect = armed
+ dangerous
Arrest/intrusion equivalent to arrest PC

<    = : whether under circumstances, RP would feel free to walk away; yes, mere
contact; no, stop (or arrest); objective test = bright-line rule + preferable b/c individualize justice
= inefficient + impossible; from drug courier profile cases (Mendenhall; F v. Royer)

If it is not a ³stop,´ and only a ³contact,´ then the 4.
5  .

1*.&
G.G&, 3
1  
  

 6( <(    =3

. 
  : (1) did this person feel free to leave (too subjective; all Ds would say no);
(2) did officer think person felt free to leave (too subjective; all officers would say yes); (3)
Miranda rights for stops (cumbersome); (4) all officer questioning = a ³stop´ requiring RS
(leads to more crime)

  : (1) threatening presence of several officers, (2) display of weapon, (3)
physical touching, (4) language/tone indicating compelled compliance, (5) officers take your
belongings (e.g., luggage) and ask you to come with them

: (1) question begging: what RP would do begs question of RP in V
Vhat

characteristics (short-tempered?; previously accosted by police?; previously felt free to leave
+ did?); (2) free: all decisions made under some constraint; free to leave if D thinks
police/other people will suspect her by leaving? Questions unanswered, test manipulated

INS v. Delgado: NOT a stop b/c RP in circumstances would feel free to leave, so agents may
question w/o suspicion (RP never feels free to walk away Vhenever police talk to him?). Ct
says further they¶re at work, so police action not <    =

: INS conducting unannounced factory survey looking for illegal aliens; INS agents
enter factory floor + position themselves near exits (can¶t leave w/o passing agent),
display badges, carry walkie-talkies, armed (but not drawn) + ID themselves as INS
agents; systematically go from position to position asking questions about citizenship to
each individual

: (1) no such thing as RP b/c all biased w/own life experiences (I feel free to
leave, but illegal alien?); (2) RP would fear losing job if he left (police permitted to take
advantage of these extrinsic facts?); (3) like right to porn: right, but won¶t encourage
(Fourth rights not for timid?); (4) right only if known + asserted?

˜S v. Cardoza $: where cop, recognizing D, pulls over to question him about a
shooting, NOT stop b/c no siren/lights, not asked to stop + questioning only; even if few
people would ever walk away from police, doesn¶t mean every police encounter = stop
(would require RS every time police approach someone).0     
coercively

˜S v. Drayton: NOT stop b/c consent to search; police permitted to ask questions, for ID + to
search luggage (not stop); stop only if reasonable person would NOT feel free to terminate
encounter (totality of circumstances)

: scheduled stop of Greyhound; plainclothes police board bus as part of routine
drugs/weapons effort (one officer in front, one in back, one walking up aisle, talking to
passengers, not informed of right not to cooperate); D permitted officer to search bag;
officer noticed baggy clothing + heavy jackets despite weather; D consented to pat-down;
objects that felt like drug packages found; D arrested
 % 

': police didn¶t 
 weapon or intimidate (just b/c flashed badge doesn¶t
mean it¶s a seizure); aisle left free to exit; if encounter on street = constitutional; won¶t
find unconstitutional merely b/c on bus; in fact, more secure b/c other passengers =
witnesses; NOT dispositive that few passengers ever refuse to answer; NOT seizure just
b/c companion was arrested before D (rather, put D on notice of consequences of
consent)

Is this a price society is willing to pay to stem the flow of narcotics?

C v. Hodari: What about when suspect  
63No seizure where police have not
yet caught subject or placed any physical restraint on him; must be (1) actual application of
force or touching (whether person submits) OR (2) submission to nonphysical police
authority for seizure to occur (person actually submits and a RP would not feel free to leave)
(encourages compliance with police orders by not rewarding noncompliance)

: group fled when police arrived; D threw rock away as cops chased (was crack
cocaine); D caught + argued stop = chasing + w/o RS

So: touch of a finger = seizure, but firing at fleeing suspect (and missing) = no 4th Am
implications?

irower v. County of Inyo: where police set up blind roadblock to apprehend fleeing suspect
= seizure when suspect crashed into it + died b/c 6 2 (  '  


((   (  
 ' 



 
 
Perhaps ioVer only applies to situations where the suspect  
(B/c
Mendenhall: Officer intent irrelevant ± RP standard from suspect¶s POV.)

irendlin v. C: D seized, even though passenger, b/c unintended person can be object of
seizure as long as willful (citing iroVer) + not consequence of unknowing act (officer
seizing everyone in car when stop); although no physical contact, D submitted to
nonphysical show of authority by remaining in car

So, 
, two diff situations re: ³stops´ (aka seizure):

1. Suspect submits: The test is whether a  
  
would have felt (  

  .
2. Suspect does
 submit (flees, etc): The test is: Was the subject 



   or ( ' , restricting his movement?


1*.&
G%+.G,r.)+G-G

,r3

How much evidence do you need for RS? Two sub-Q¶s:
1. Is the   of the information   ?
 a. Basis of knowledge?
b. Veracity?
2. What is the quantum of suspicionto justify the stop?

1. Reliable Source?

.1 : An 

  informant called in a tip. Police corroborated the
information (well, most of it). Even though the caller predicted 


 future activity,
the Ct said RS was met b/c (1) basis of knowl satisfied by detail (color of car, busted tail
light), and (2) veracity satisfied by corrob.

COMPARE with Adams, which said  could not be based on tips of innocent activity.

.

  tips      . (Must be ³reliable in its assertion of illegality´;

that is, enough corrob to lead to a RS that the rest is true ± FL v. J.L.)

2. Quantum of suspicion met?

-G.2: Totality of the circumstances. RS is like ³possible cause,´ ToC to

determine whether officer has a ³particularized and objective basis´ for suspecting legal
wrongdoing. .(  (criminal and ³innocent´) should be included in ToC.

SEE pp. 247-52 for examples of RS/not RS as det¶d by the courts

% ( ( %G: (1) race should never be taken into account (rejected; if race = part of
description of suspect, race may be taken into account); (2) racial profiling: police stop young
black man b/c, empirically, young black men more likely to use drugs/have guns, so RS
(rejected); B$ 9' 
 >  
a (  
 

St. ÷aul v. ˜ber: insufficient basis for RS for stop based on car registered in white suburb
but parked in black neighborhood known for prostitution at 2.15am even if as empirical
matter white-registered cars never in that neighborhood at that time but for prostitution

G: black male walking down street w/TV in all-white neighborhood; sufficient
RS to question? Street crime: significant correlation w/race vs. other crimes: drug use, tax
evasion: majority of perpetrators = white

 9
(
: costs of offense/indignity by wrongly targeting D solely b/c he¶s

black helps fight crime (goal: as safe as possible, but not necessarily ³right¶); BUT black
community less likely to cooperate w/police, incurring cost to crime prevention

 
: to avoid racial profiling, develop profiles that don¶t include race,
telling police officers that if person meets particular description (NOT race), they may
stop them; limits police discretion; record of profiles, so can check for fairness (although
not perfectly fair)
 ˜S v. Sokolow: drug courier profile factors²(1) paid cash for airline ticket, (2) traveled
under assumed name, (3) did not check luggage, (4) traveled to/from narcotics source city,
(5) stayed only briefly, (6) appeared nervous²together may amount to RS, but independent
RS determination   '  ( 

  ( legally  
$Seid:
But hey, better than some lone cop¶s on-the-spot j-ment: this focuses analysis for beat cops.


: mechanistic application of formula limits officer¶s ability to make sensitive +

fact-specific inferences based on experience; can lead to outrageous results

1   
< =


' 
<
 = 
 

9 9 

 '
,  6
.%%+G&

G+.%*
r
+r&&,.%%+G&

BLACK LETTER
1. There must be  (   , but
2. No PC  warrant needed to search the arrestee.
3. Two gov¶t interests at play here:
a. Officer Saftey
b. Preservation of Evidence
4. Time/space limits:
a. Only

 to arrest and
b. On/in suspect¶s person and in the ³grab area´ (situation-dependent)

% 5 
: (1) underlying arrest must be lawful (i.e. based on PC to believe suspect
committed crime); (2) arrest must precede search b/c former justifies latter, not vice versa; (3)
search must be substantially contemporaneous to arrest

 .Arrest warrant for D, cops wait for him at his house w/ his wife. They arrest
him when he arrives, search house for 3 hrs. Ct: Illegal search ± searches incident to arrest
can only be justified by 3(a-b), above.

Critique: This doesn¶t make sense ± his wife could have destroyed the evidence! But,
he¶s already under arrest ± so no need to search, right?

 
 
  (     
  

  (

  
 ( BF#9F!$

/) : Protective sweep of the place where the arrest is made is OK, but police must
show RS that area swept might harbor 3rd party posing a danger to officers/others.

-G% 

: D¶s license expired, cop req¶d to make custodial arrest. Pats down incident
to arrest, feels cig pack, opens it and finds H. Ct: This is ok ± the search was incident to an
arrest (unlike Mimms), and cops can open containers on the suspect¶s person.
 Critique: But wait ± was there a danger (one of the two PP reasons for search)? Or a risk
of evidence being destroyed? No evidence needed for the  
' ± that was
already established! This seems very unfair. But, no one contested the validity of the
arrestw

Upshot: Court here is trying to make a ( 9


' that will best handle future
situations. ³A custodial arrest of a suspect based on PC is a reasonable 4th Am intrusion; that
intrusion being lawful, a S.I.A.  56

@(
.´

. '  :Affirmed police authority for warrantless arrests (if there¶s PC) for
misdemeanors in officer¶s presence ± even those that are punishable only by fine (mother +
children not wearing seatbelts). D arg¶s for ³jailable´ and ³fine only´ distinction, but Ct says
this is too fine a line for cops to eval on the street. )'9
  
  ' 
'(


 . (Ct: Even though in this case the arrest was ridic.)



.%%+G&G
r.%G

If lawful arrest in car, police permitted to search interior of passenger compartment, glove
compartment, and containers, (  
  
  (  (  (unless plain view) if
contemporaneous to arrest (NY v. ielton), arrestee w/in reach, or ³reason to believe´ evidence
relevant to crime of arrest in car ( v. cant)

r
) 
: permitted pockets of jacket found on rear seat to be opened while arrestees
stood outside and away from car; bright-line rule > case-by-case analysis: (1) generally, even
if not inevitably, w/in reach (³as a matter of law´ = w/in reach), (2) officers don¶t have time
to reflect, rather quick ad-hoc judgment

R¶ales: r 9 99 9  9 : If police can conduct search at time A (when D
arrested), right to conduct search not lost at time B (when D secured on the curb)
r  
'
: No greater privacy loss for D than if search had been
conducted immediately on arrest + net privacy gain b/c if officer not required to search
immediately or lose right; officer might, on reflection, determine search unnecessary +
forego

& 

-G: Ct applies ielton to a suspect who was arrested (  he had exited his car!
Rationale: Suspect was a ³recent occupant,´ to hold otherwise would encourage peeps to
ditch their cars whenever they saw police coming.

.Gc
: Modifies ielton. Suspect was cuffed in cruiser when cops searched his car. Ct:
Illegal search. Dist¶d from Belton b/c in Belton, there was potential danger to officers (four
occupants, could gang up) AND potential evidence (b/c arresting crime was possession).

R¶ale: ielton too broad ± only should apply if one of Chimel¶s two prongs are satisfied.
 Gant was 
and was arrested for 
   ± so NEITHER r¶ale for S.E.I.
applies.

N.B.: Gant¶s narrow holidng is for car searches (  
 . Automatic search
contemporaneous to arrest is still OK ± but searchable area is det¶d at time of search, not
arrest.

:
 
.: Cop had option of custodial arrest; wrote ticket instead, then searched car.
Ct: can¶t do that.

Does KnoVles incentivize cops to arrest whenever they have a chance?

./  : Cop arrested D for driving with susp license, but State law outlawed such an
arrest. Ct: Arrest is legit for 4th Am purposes; D perf¶d misdemeanor in cop¶s presence, so
custodial arrest and S.E.I. legit under 4th. R¶ale: Can¶t subject the 4th Am to state-by-state
statutory analysis. (³Warrantless arrests for crimes committed in the presence of an arresting
officer are reasonable under the Constw´)

SUMMARY:
1. If a person is legally arrested, you can search the person and grab area (no warrant/PC
needed).
2. If the arrest involves a car, the grab area includes the whole passenger compartment
and any packages within it, but
 if arrestee could have grabbed it.
3.
(
, you can only search the car if you have ³reason to believe´ it contains evidence
of the crime the arrest Vas for.

%+&+?&-.G&, G.r.%%+G&G

1
-G: Car stopped ³too long´ at a stop sign, then drove off ³quickly´ (but w/in spd
limit); police pulled em over and saw drugs in the driver¶s hand when they walked up. Ct: +

 ' cops suspected drug poss/use, it was ok to pull them over as a ³pretext´ to check it out
(BUT ONLY WITH PC, of course).

Upshot: ´Pretextual´ stops and arrests, if supported by RS/PC, are ok.

Problem: Doesn¶t this allow police to discriminate at will? B/c 99% of drivers break some
minor traffic law, so cops can just pick and choose who to pull over and check outw This
discrim is prob and equal protection violation, but hard to prove and no exclusionary
remedy anyway.

Where does this all leave us?

Court could have (1) constrained the criminal law (fewer traffic laws, e.g.), but that¶s not
their job; (2) outlawed pretextual stops/arrests, but you can¶t really do that b/c they¶re
 dependent on cops¶ interior motives (so who knows?); (3) prohib¶d arrests for minor
violations ± but they refused just that in Atwater and there was no arrest in Whrenw

BUT, the Court has (1) limited the extent of searches during traffic stops/arrests (Gant);
(2) made clear that you have to   the suspect before searching their car
(Knowles). And you could file an equal protection suit if discrim¶d (but good luck, and
no remedyw)

.
r
+1,&%
r+

BLACK LETTER:
1. PVD deals with   
 2 .
2. If police come upon an item without performing an illegal search, AND they have PC
that the item is seizable, they can seize it.
3. This is an exception to the 
 5 

   5

PVD is best understood ³not as an independent exception to the warrant clause, but simply as
an 7

of whatever the  @(
for an officer¶s access to an object may be.´

Two examples:
1. Watson, but he¶s sitting in restaurant with a lit joint. Cops can seize ± no search, no
overbreadth.
2. Johnson, e.g., but cops have legit search warrant for opium in living room. They see a
cocaine on the table in plain sight ± they can seize it, too (no overbreadth/collateral d¶ge).

* 
.: Search warrant for X, cops enter and search apt. Don¶t find X, but find Y (a
gun). OK? Yeah ± it was in plain view in the area they were legally allowed to search. Even
though the police 7  that the guns might be there ± irrelevant.

R¶ale: No additional 4th Am interest is furthered by excluding this discovery ±


  

Dist from Whren, where here the pretextual reason is not the but-for cause of the search.

Criticism: Couldn¶t cops just use ³pretextual warrants´ for item X to go after item Y? Or
you could save time by filing a warrant app for only one ³hard to find´ item and hope
you¶d find other evidence in the processw

.G*
: Police look under turntable to check serial number, realize it¶s stolen. BUT,
cops had no PC/r¶ale to check the turntable ± they were there in response to a bullet coming
through the ceiling.

Upshot: Police    to seize an item viewed during the course of illegal
activity, and that PC must be  
 ± can¶t perform another ³search´ to get
there. So, yeah PVD deals with searches in the sense that you can only seize things that
 are given PC by the  ' . Otherwise you are expanding the scope of the orig
search = overbreadth.

 
 : Remedies for illegal seizure (item returned) is better for suspect than
remedy for illegal search (because your privacy has been violated ± hard to ³make good´).
So, this helps explain why after-the-fact determ¶s of PC are more acceptable for seizures.
Hence, PVD means officer seizes something and then the ct decides if he had PC to do so.


&  



/r

: During a Terry frisk, officer felt a ³pea-shaped´ object, and prodded it to
fig out what it was. Felt like crack; suspect had just left a ³drug house,´ so officer fig¶d he
had PC to seize it. Ct: ³Plain touch´ is like plain view, 
'  6
<  =
 
'
 '
 '  .

So, here, cop

( 
' the object after it was clear it wasn¶t a weapon ± this is   

[erry ; therefore, it¶s an illegal search b/c of overbreadth.

- G*,&As long as the touching does not exceed Terry, if cops feel something they
have PC is seizable evidence of a crime, they can seize it.

.%G+.%*+G

Police may search an entire automobile (incl trunk)  
, but
(they have 
to believe it contains 
 of some criminal activity.

Unlike S.I.E., this is only an exception to the warrant requirement, NOT the PC requirement.

Carroll v. ˜S: Warrantless search of car (independent of search incident to arrest, which is
limited to passenger compartment) permissible b/c PC to believe car contained bootleg
liquor; warrant impracticable b/c inherent mobility of cars

: Car is stopped and Ds under arrest, so car is NOT mobile; plain view doctrine:
car in plain view + PC to believe car = seizable b/c likely contains contraband, so seize
car + obtain warrant back at station

Carroll  Gant: Carroll permits search of entire car (including trunk), where PC to
believe contraband or evidence (not just for crime of arrest) in car, but not PC that occupants
are guilty of crime (permits search of parked car) (requires PC to search); cant permits
search incident to arrest V
o PC to search (arrestee in car or unsecured OR ³reason to
believe´ evidence of crime of arrest) (requires PC to arrest)

8(
: (1) impracticability of obtaining warrant to search car stopped on open
road (~mobility, but later exception applied even if car = immobilized/secured (MD v.
Dyson) (no separate exigency requirement)), (2) no-use-it-or-lose-it rule (equal privacy
invasion: seizure + wait on warrant vs. immediate search) (Chambers v. Maroney)
  /
: Cops impounded car, then searched it w/o a warrant (but PC to
search). Ct: With actual PC, cops will either search w/o a warrant (Carroll), or they¶ll seize it
and go get a search warrant (w/ their PC). So, same privacy interest. ³No use-it-or-lose-it´
doctrine at work, perhaps.

Dissent: ³The Court, unable to decide whether search or temporary seizure is the µlesser¶
intrusion, authorizes both.´

r  The car search exception is a good example of what happens when the Court develops
doctrine w/o a true underlying theory/guidepost in mind. Carroll was ostensibly about
mobility, but then came Chambers. Then the Court flopped around for a while before
deciding that PC was all you needed to search a car. Now, it is best explained by saying that
the Ct has decided you have a lessened expectation of privacy in a car. .
'  
   
 

 
  (

   (
 
  
(  2 

/  




, (

-G
: You need a 
 to 
a footlocker. Ct¶s rationale: mobility of the
luggage justifies its warrantless seizure, but b/c of higher expectations of privacy in luggage
(vs. car), you need a warrant to search it. (Unless, of course, it¶s ³ticking´ ± exigent circ¶s.)

What about containers found in cars? Court struggled with this, first trying to distinguish:

 v. Sanders: D carrying suitcase, which police had PC to believe contained

contraband; warrant required to search on street, but when D places suitcase in taxi, PC to
believe taxi contains contraband, authorizing search of entire car (Carroll); but police
must seize suitcase + obtain search warrant to search (ChadVick)

˜S v.
oss: if PC to search stopped vehicle for X, search may extend to any part of car
(trunk, glove compartment, interior of upholstered seats) + any containers that might
contain X (object of search). BUT smaller/more particular the item, greater the search;
abandons doctrine protecting closed containers)

THIS MADE NO SENSE. SO:

..   : Ct adopts a  9  
' : Police may search a car and any
containers w/in when they have PC to believe contraband or evidence of crime is present
anyVhere inside the car. So, at least now there¶s a bright-line rule. But:

: Anomaly ± right to warrant before police search briefcase, but, to make less
public, place briefcase in locked trunk of car (briefcase contents doubly enclosed), which
permits police to search w/o warrant (less privacy than when walking on street); could
officer order D out of car + ask her to leave purse? Justified b/c de minimis privacy
invasion after ordered out of car or creating circumstances permitted search?
 It seems that the Court has taken the notion that there is a  
 7 
 (


6, and run with it.



When the Court applies a  

 -G+%,/*+%+&*%,-c*),%+%
G+%.*+G$to a warrantless search/seizure, it generally evaluates the following factors:

& ' ( 
 
     2 

 D&  '     2 
  
  

 B&    ( 
 ( 
 
 
______________________________________________________________________________

+?
c+r&
%-/G&.r+G

BLACK LETTER: When there are fact-specific reasons that it is impractical for police to get a
warrant, they may be excused from the requirement. There facts are usually in three separate
categories:
1. ³Hot pursuit´
2. State officials safeguarding the public/themselves (e.g., fighting fire)
3. Protect against the loss of evidence

This is an exception to the 
 5 
 ± you still need PC (except maybe in
category #2, above). PC that search/seizure is legit, and also PC that one of the above applies.
+7'
6    
  

% 5 
: (1) circumstances cause RP to believe search/arrest = necessary; (2) police

have justification amounting to PC to believe (a) items relating to crime will be found
(search) or (b) suspect has committed crime (arrest); (3) exigency = viewed from totality of
facts known to officer at time of intrusion; (4) BOP on govt to show impracticability; (5) NO
exigency where suspects = unaware of polices surveillance/presence (but see MacDonald)

% )

': In general, courts have taken two approaches to 4th Am cases:
1. Balancing: Use general reasonableness ± this is backwards-looking and ³judicial.´
2. Rules-based: Formal rules guide decisions (e.g., for PC and warrant). This is forward-
looking and ³legislative.´

Generally, when police are ³doing what they do´ (e.g., investigating/regulating
criminal activity), the courts use approach #2. When police are doing ³something
else´ (e.g., civil, noncriminally related tasks), courts use approach #1.
 So, e.g.: A [erry frisk is not a search for evidence (or a seizure), so approach #1
governs it.

*  1
*
 Suspect ran into his house, police had PC to believe he
was in there and had weapons. So they looked into a washing machine, found ³incriminating
clothing.´ Ct: That¶s OK ± cops had PC to look in machine for weapons, no warrant b/c of
exigent circ¶s, and clothes allowed b/c plain view once they opened the machine.

r)Hot pursuit  
 if the suspect doesn¶t know he¶s being pursued.

-GG

: Officers had PC to arrest D. D was in doorway to home, saw cops, and
went inside. ³Hot pursuit´ justified warrantless entry into the house.

 
 (+
 -G/
³Controlled buy,´ then cops went back to the
seller and ³knocked and announced.´ Heard shuffling, kicked down door ± police said

 (marked $5 bill, drugs) was 
. Ct agrees ± exigent circ¶s.

Dissent: Police created the exigent circ¶s by giving the marked bill and/or knocking and
announcing!

r)In most cases, ³drug houses´ will be granted the destruction of evidence EC
exception to a warrant. But of course, officers must have PC to believe a ³large scale
drug operation´ is being conducted inside.

/.: Police called to trailer home by wife, who told them there were drugs
inside. They kept husband out of the trailer until a warrant was obtained, fearing
destruction of evidence. Court: OK.

G( )'G: exigent circumstances where police reasonably
believe occupant = seriously injured or in immediate danger; @'   
 (
@    
 rather than motivation (Whren). For public safety exception,
police must have a

9
 rationale for search or arrest.

: police respond to noise complain at 3.00am; arriving at house, see fight in kitchen,
adults trying to restrain juvenile, who breaks free, strikes adult, blood spat in sink,
juvenile pushed into fridge so hard fridge rocks; police enter + arrest D. Warrantless
entry OK¶d by the Ct.

  + 
For one, it is worth noting that the   
 (  ((
 is
part of the ³reasonableness´ calculation for excusing the warrant requirement. But, no crime
is so serious that a warrant is automatically excluded:

/
 .G Shootout, cop killed. Police perform a sweep (OK), then, homicide
detectives scour the apt for four days w/o a warrant. Ct: Nope. No ³murder scene´
exception to the warrant req. Police must make a ( 
' of exigent circ¶s.
 1 1
 D crashed his car and left scene, returning home (drunk). Police went to
his house and arrested him w/o a warrant. Police say EC b/c his BAC would be down by
the time they got a warrant. Ct: Because a (first-time) DWI in Wisc is a nonjailable, civil
offense, we can¶t uphold a warrant exception here. The crime isn¶t serious enough to
discard 4th Am warrant protections. )

'.

<
    7'
= Some courts have held that police can¶t create the
exigent circ¶s (a la MacDonald), but the Court says there is no impermissible creation of
exigency 
   
 (
 '  2 .

If police can foresee an exigency, and have time/PC beforehand, they cannot later claim
the EC exception to a warrant. )-& police are not required to obtain a warrant at the first
opportunity to do so ± they are allowed to choose instead to continue building a case.

./
r
G&%.&
+G+.%*+G+&

The Court has used the ³reasonableness´ clause of the 4th Am for searches conducted for
purposes other than criminal law enforcement. However, if the purpose of the search is  

 
 ( 

(  
   

 
   5 

*  /
 Admin searches to enforce housing code. Ct says you

need a warrant, but the warrant doesn¶t need site-specific PC. Warrant can be issued (say, for
a city block) if it is 
 
  
 

   .

)

': Public interest in enforcing safety codes vs. limited invasion of privacy
(inspections here are NOT personal in nature or meant to discover evidence of crime)

%  

% 
(  
Camara-style admin searches must be conducted acc¶g

to neutral, standardized criteria ± can¶t be used as a pretext for evidence-based searches
(e.g., only conduct ³housing code´ searches in high-crime areas). But what if high-crime
areas also have the most housing code violations?

r) This is really the
 7  (  2
'
 

2  . (See criffin V. WI, where the Ct ruled against search warrants based
on RS for probationers. But they did allow warrantless searches of probationers¶ houses
with RS. Point is, the Const says ³

 
 .´)

)
 r
)'  Car parts dealers req¶d to keep ³police book´ to track

cars/parts; police allowed to come by and take a look at it whenever. Ct says that, despite
appearances, this is definitely an administrative search. Furthermore, being a ³'
 ' 
,´ the police didn¶t even need a warrant! Huh?

Rationales: †ery diminished expectation of privacy in commercial enterprises

participating in highly regulated industries. Ct says there¶s a reasonable 
 between
 operator¶s privacy interests and gov¶t regulation interests. And this is aimed at an
underlying     (trafficking in stolen cars/parts).

Warrantless inspections of highly regulated businesses are OK only when:

1. There is a substantial gov¶t interest informing the regulatory scheme pursuant to
which the inspection is performed.
2. The warrantless inspections must be necessary to further the regulatory scheme.
3. The statutory program must provide a constutuionally adequate substitution for a
warrant, namely one that:
a. Fully inform business owners of the statute¶s purpose and (limited) scope
b. Limits the discretion of the inspecting officers

What¶s going on here? Two possibilities:

1. Representation Reinforcement: Searches are widespread/random enough that
people won¶t be unfairly targeted and the majority will determine the searches¶ limits.
2. 

: When you ³sign up to play,´ (i.e., operate such a business), you accept
the burdens that come with it.

#1 is reflective of democracy, #2 is reflective of individual liberty

G +
.r++G

³Special needs´ searches (usually) have three general characteristics:
1. The gov¶t is not engaged in law enforcement-related evidence gathering
2. They implicitly rely on Rep Reinforcemet ± the searches are widespread and/or
random enough that the democratic process can modify/correct them
3. They rely (somewhat) on the notion of consent ± by engaging in whatever activity is
subject to such searches, you implicity agree to a diminution of privacy

In evaluating ³special needs´ claims, courts will employ a 

'  between individual
pricacy concerns and states¶ interests.

G r8&,Principal had RG (not PC) that student had cigs. Searched her purse,
found µem. Ct says this is ok, balancing the student¶s diminished expectation of privacy at
school and the state¶s interest in a healthy and safe school environment. (Also, there¶s a
touch of ³consent,´ too, in that she was at school.)

r)
(   (  
  (    
 

The TLO reasoning was used to uphold warrantless, RS-based searches of a government
official¶s office and the house of a probationer (see Griffin, above).

G(( % 
': Principal has RS that student has pills (asprin) on her; kid has to
strip to underwear, etc. Ct: Despite legitimate RS, here the ³

 ( 

(   

 (  .´ BALANCING.
'& 
'Testing urine for drugs  , b/c it can reveal private information
(pregnancy, scrips, etc) and the actual monitoring of the urination implicates privacy
interests.

G


%: All employees involved in accidents had to get tested. Ct: This is
OK, b/c it is standardized, administrators are given minimal discretion, and the railroad
industry is heavily regulated. The Court further noted that there was a history of drug
abuse amongst employees.

%: Customs employees had to get tested, no suspicion needed. Ct upheld for
those involved in drug interdiction (obv) and those given weapons. Not allowed for those
who handle classified doc¶s. )

' used ± but Ct notes that public safety is key.


 / : Politicians running for state office in GA req¶d to take test. The
Court says that there is
  
 that justifies the invasion of privacy: ³No
evidence of a drug problem amongst candidates (Gkinner), they do not perform high-risk,
safety-sensitive tasks (†on Raab), and the tests don¶t really help w/ war on drugs.

Court: G 
 



So, you can drug test kids (see below) and Customs workers, but not
politicians (who wrote the bill and choose to run for office? Hmm.)

)  (+ (   +School adopted suspisionless drug test,
which was well regulated and did not reveal medical conditions. All students who
wanted to participate in an extra circular activity were required to take the test. If failed,
could not participate and there were some consequences.

I.Y  ´ '
r 
6
%G.

i.Y Must review reasonableness. The conduct of the schools is not in anyway
criminally related. D argues that it needs to be specified anyways. Unlike other
cases where the interest was in preventing injury to the kids and major drug
problem, here it is something else. No special need problem here.
ii.Y r  ( 

  Privacy is limited in school where vaccinations and
physical exams are often required. Students who participate in extra curricular
voluntarily submit to certain intrusions. 


iii.Y   (


 Negligible in that only hearing kid pee behind door.
Files are separate. Only on thrird test is student suspended from participation.
Will not even be suspended from school. Minimally intrusive.
iv.Y r 

  (c  


 
Health and safety are role of
schools. Society facing drug problem and there¶s documented '  
 . Also having individualized tests might unfairly target some groups over
others. It is a reasonably effective means of deterring and preventing drugs.
II.Y There is kind of consent here. If don¶t want to participate don¶t take the test. It is

 
(  
, it is all about the kids. Regime of RS would be destructive of
representation reinforcement. Single people out.
 How does Earls square with Safford (see above)? Is it about rep reinforcement, privacy
interests, school¶s interests? ALL OF THE ABOVE.

 '
 
: Struck down state H¶s policy of testing pregnant women for
drug use b/c pervasive participation of police in drafting and monitoring program, and
ultimately arresting prosecuting women, precluded characterization as administrative
³special needs´ practice; remand to decide consent issue

Court: This policy was  '
  
 
 that could be used in 

  


Kennedy (concurr.): This means, though, that hospitals could design a prog strictly
for mothers¶ and babies¶ safety, and then police could subpoena the records. Mothers
wouldn¶t get a 2nd/3rd chance to clean up (as they were allowed under the policy).

G r 
. G

': Sup Ct has not ruled on this, but lower courts have
applied the following analysis ± screenings are OK under special needs (esp. considering
'
(
' 6
   in keeping weapons/bombs off planes) if:
1. It is no more extensive/intensive than necessary to detect weapons and/or bombs,
2. It is confined in good faith to that purpose, and
3. Passengers may avoid the search by electing not to fly (consent).

%,.),:G*+: ,
r&G+&

Roadblocks and checkpoints are allowed when discretion is contained (everyone is stopped) and
it¶s for

9
 enforcement purposes. r)(( 
 btwn DUI and drug searches.

+   : Upshot ± police 

 stop an automobile to check for license/reg unless
they have RS. But, Court notes that this would be OK if they stopped everyone (e.g.,
roadblock.)

 7It¶s OK to stop people randomly (that is, cops¶ discretion) if you have RS, but
it¶s not OK to stop an individualized person with barely less than RS. If it is random and
spread out, we allow it without any RS. Why do we allow stops when it is less likely?

-G/
29  : Ct approved suspicionless stops at a checkpoint near (but not on) a
border when it is permanent. Necessary to implement the state interest in regulating illegals.
Minimally intrusive because people know it¶s there, and officer discretion is limited, and
checkpoint locations are chosen by a detached expert.

/
   G2: Suspicionless stops at temporary DUI checkpoints are OK. Ct
applies M-F (above), and says that (a) the checkpoints are minimally invasive (similar to
reasons above) and the stop is very brief, and (b) the state has a   
'
   in
getting drunks off the road.
 Dissent: [emporary checkpoints are diff than M-F because drivers are often surprised by
them AND officers on the ground get to choose when/where to deploy them (too much
 
).


 +
: City develops narcotics stop with the   of
discovering narcotics and interdiction of drugs (i.e.,
(  
). Stops include
drug dog and glancing inside the car. Very efficient; 9% of random stops produce arrests.

Ct: Although these are similar to Gitz-style stops, there is no compelling state¶s interest,
AND the Court has ³never approved a checkpoint program whose primary purpose was
to detect evidence of 


' 
'.´ (Ct distinguishes Gitz on the
grounds that highway safety was an very compelling concern.)

PP: If this were allowed, police could set up checkpoints all over the place, all the time,
to search for any sort of wrongdoing. Goodbye, 4th Am.

 Permitted police to set up suspicionless highway checkpoint to obtain info
from motorists about crime (manslaughter) committed a week before at same location;
distinguished =dmond b/c here primary law enforcement purpose was NOT to determine
whether motorists themselves were implicated in crime, rather to seek help in solving earlier
crime; minimal intrusion (10-15 sec stop w/ simple questions: ³have you seen anything?´)

 
: (1) police generally lack resources to conduct such checkpoints;
(2) political support may be lacking (representation reinforcement)

r +r&,%
G+.%*+G

Police may conduct ³inventory searches´ of cars and other containers 
  ;
NEITHER PC NOR A WARRANT REQUIRED. But, these searches (at least on paper) must be
unrelated to criminal investigation of any kind, and are to protect the owner¶s property from
loss/damage, etc.

G, 
: Car impounded for parking violation, police broke into the car and
searched the glove compartment, finding drugs. Court upheld this 
 
 
search, based on the following state interests:
1. Protection from false property claims (strict inventory function),
2. Protection of the owner¶s property interests, and
3. Protection of the police and public from potential dangerous items.

Against this, the Court noted that the owner had a per se diminished privacy interest in
his automobile.


(  : Police may perform an inventory search on an arrestee¶s property (here, a
shoulder bag); Ct uses the same three interests from Opperman to justify. However, the Court
noted that the search may have been invalid if he was not going to be jailed after being
 booked (or, e.g., he had the option of immediately posting bail). Then, the three justifications
above do not apply.

,) 
: Routine inventory searches of impounded cars and personal effects of
arrestees are designed to protect officials from property claims. They¶re permitted if
conducted according to standardized criteria, which  (( 6 
. Here it was
S.O.P. to open and inventory containers found in impounded cars. Ct: OK.

1 : Police in this case had no policy whatsoever re: the opening of closed
containers in impounded cars. Gome latitude is allowed, but this policy allowed 
 
   
, which creates an unacceptable risk of abuse.

r   For inventory searches, officers¶ @  

  
 ± as long as they conduct
the search according to a standardized inventory policy. This creates the risk of pretextual
searches, but at least there is   

 
(  
 in the policy-based scheme.

)-&


  /-G&< ((    
   supporting an

inventory search.´ So, e.g., the police cannot impound a car that was parked in a locked
garage ± the state interests are already taken care of!

Inventory searches are certainly an example of regulatory regimes¶ tendency to ³slosh over´ the
hard-and-fast rules designed for 
 police procedure.

),%+%G+.%*+G

At an international border,  
(warrantless) border searches are allowed without 

showing of PC/RS. The  
in this case is

 . (Pretty big one.)

³Border searches´ may be conducted on persons who have just landed on an international flight,
even if they land in KC, e.g. It¶s a ³functional border´ if it¶s your first U.S. landfall.

All international mail may be searched upon crossing the border, period.

-G  9/

: Border patrol dismantles car, finds drugs in the gas tank, puts the car
back together. Court: That¶s OK ± as long as the procedure did not reduce the ³functionality,
operation, or safety of the vehicle.´ And they 
6 

%GSo the Court here is
using a  

 balancing test, but keep in mind that national security is given great
weight. Arguably, this is a ³non-routine´ search of property, and the Court allows it w/o RS.

Along the same lines, appellate courts have ruled that  
   
  '    

± e.g., they can take your laptop and scour
the hard drive, b/c it¶s no more than a ³container,´ like a car.

G   ( 
 )  The court has ruled that ³routine´ bodily searches (pat-
downs, purse searches, etc) are fine, no PC/RS needed. The line between routine and ³non-
 routine´ is at   
 9  
 

   
 
< 
=

So, obviously, the Court accords the state interests great weight, if the only searches
protected by RS are strip and B-C searches.

What does it take for a ³non-routine´ bodily search? % 
 
   
(  . This acknowledges the intrusiveness of the search; you better have a
reason before you start.

What about searches (    3

)     : (1) permanent checkpoints maintained at intersections of important

roads near border; (2) temporary checkpoints established in other strategic locations; (3)
roving patrols supplement checkpoints

-G/
29  : Upheld warrantless/suspicionless   of cars at permanent

checkpoints for limited questioning, including referral to secondary checkpoint;
necessary for law enforcement + this interest > driver/occupant privacy interest (risk:
referral to secondary checkpoint based on race). But this reflects Gitz, above.


   

. 9G
 2-G4" $: Successful constitutional challenge to border search;

stop and   by roving patrol 25 miles from border NOT excused under the border
search and/or checkpoint exceptions, so regulated by regular police standards.

-G)'

9
 : Vehicles may be stopped by roving patrols near border and
occupants briefly questioned about immigration status

%G that vehicle contain
illegal aliens. [erry      

,rG+r&G+.%*+G

Where there is consent,   
 . To qualify, consent must be  
, which

is determined @   as viewed in the   ( 
 

Police may NOT use refusal to consent against a suspect in any way.

G

 <G '  =$The proper test is not whether D ³waived´ his 4th Am
rights, but whether the consent to a search was voluntary under the ToC. 

 can
be hard to determine. But, obv, D¶s knowledge of his right to refuse consent is relevant (but
NOT dispositive).

See Drayton, p. 220 for another example of ³voluntary´ consent.

The '  

  
of showing voluntary consent. But, there are

  factors ± not even the suspect¶s being in custody. (Nor do police have to notify a
 suspect that the suspect is free to leave.) It¶s a totality of the circ¶s analysis ( 

),
period. BUT mere absence of resistance to a search is

'. (See factors, p. 465.)

&9

: Justification for ³actual authority´ third-party consent is where there are
co-owners or co-inhabitants of property; any inhabitant has the right to consent, just as every
inhabitant has   
that the other might do just that. What about ³apparent
authority´?

% ' 2: D¶s girlfriend kept a key (w/o permission) after moving out. Then she
consented to a search of his apt.  
 


>

 H Similar to the objective theory of contracts ± reas person would have assumed
consent. Scalia uses the text of the 4th, saying that this is not an ³unreasonable´ search.

c.%
 : If two co-inhabitants are at the property and one consents while the other
refuses,   ( . (Unless, e.g., there¶s a ³recognized hierarchy´: parent/child,
captain/private, etc.)

Following the rationale from Rodriguez, the Court noted that if the ³potential objector´ is
asleep on the couch (and misses his chance to object), then there¶s consent. But that
makes sense under the  

  ± cops can¶t be expected to read his mind.

Because consent is judged objectively, subjective mindset is irrelevant: if it (reasonably) appears

that you¶ve consented, you no longer have a reasonable expectation of privacy.

*,1,+G,r+/.:+G+rG+,
&.3

 )'
 

1. The Court has tried to define categories of cases where warrant and/or PC are just
impracticable. But it has done this through  , not on a case-by-case basis. (Forward-, not
backward-looking.)
2. Warrant req is designed to protect a  (  
@   . Following
from that, when there¶s no overbreadth or irrep harm, the warrants are less necessary.
3. Representation reinforcement: Where we can be confident that authentic democratic
majorities have OK¶d something, courts are less likely to intervene (e.g., airport searches).
4. Implied Consent: Searches are more likely to be upheld when person has done something
to bring the search on themselves (e.g., border crossings, highly regulated industries, etc.).
5. Warrant/PC procedures were designed for 
 ± so when criminal law is not
involved, they¶re less necessary (³special needs,´ ³admin.´).

1*.&
G.G+.%*.r1*.&
G.G+
G-%+3

³The [4th] Amendment protects two different interests of the citizen ± the interest in retaining
possession of property and the interest in maintaining personal privacy. A seizure threatens the
former, a search the latter.´ Texas v. Brown (Stevens, concurring) (1983)
 
% 
 +7 
 ( : 4th Am applies
( search violated a: (1) subjectively
manifested expectation of privacy AND (2) expectation society prepared to say is objectively
reasonable (test from Harlan concurrence in Katz) OR possessory interest; if NOT search, Fourth
doesn¶t apply

If conduct is a search/seizure, it
 
 that the 4th Am applies ± it could still be

permissible if it satisfies the requirements of the Am (e.g., PC/warrant).


 : (1) overbreadth (concerned not w/seizure, but w/collateral privacy intrusion
produced by seizure): no search in constitutional sense when ³search´ = surgical/targeted +
reveals only that which you have no right to (e.g. dog sniff); (2) representation reinforcement
(less important role for courts when political process fairly aggregates people¶s preferences):
no search if conduct people are regularly subjected to; if conduct = widespread + disliked,
political process capable of changing; if conduct = NOT widespread, greater role for courts
b/c people singled out

* : police action deemed search if it constituted a common law trespass/closely

tied to property law; BUT outdated + underinclusive as technology developed + permitted
surveillance w/o physical intrusion (formalism)

Lochnerr    
: common law rules = NOT simply made up, rather reasoned
elaboration of natural rights, discovered by reference to human freedom (naturalist); post-
revolution: no pre-political property rights from nature, rather from gov¶t decisions, so gov¶t may
redistribute property (but how limit judicial power?) (positivist)

atz v. ˜S: Fourth protects people, not places; reach doesn¶t turn solely on physical
intrusion; applicability derives from privacy ± and here, gov¶t violated privacy on which D
justifiably relied while using phone booth, thus it¶s a search w/in meaning of 4th Am.

/@ : Fourth protects people, not places; D may reveal things in home + conceal
things in public (Stewart)

: turns on autonomy: consent if D chooses to make thing public, even in
private place (not search), but Fourth protection if D chooses to keep thing private,
even in public place (search); untenable b/c D can¶t choose to bury body in Rock
Creek Park/keep private + expect police must first obtain warrant



 : Fourth protects people, often requiring reference to place (D not only
intended privacy, but conducted conversation in place where he thought he would have
privacy); so: (1) actual/subjective expectation of privacy + (2) expectation of privacy
society ready to consider reasonable (Harlan)

: reasonable expectation of privacy = subjective (did D expect privacy?) +

objective (empirical (would RP expect privacy?) vs. normative (would RP expect privacy in
just society?))
 G@  : no subjective expectation of privacy if President announces all phone
conversations from now on will be recorded by govt, so govt power to change privacy by
changing what¶s reasonable to expect (provides too little protection)

+: armed robber chooses alley where, in its history, no police officer has ever
patrolled; if police officer stumbles across robber committing robbery, illegal search
absent warrant + PC b/c objectively reasonable that D would have privacy (provides too
much protection)

r  : answering it¶s normatively reasonable = circular (in just society, people
would have privacy rights that people would have in just society); doesn¶t provide answer
+ reasonable minds disagree (leave nine on Court to answer?)


: atz
   
+ freeing Constitution from rigid, out-of-date
formalism that prevented Court from dealing w/emerging problems like electronic
surveillance, opposite
 atz'   @' 

'  

  $   
 + permit searches that would be rejected under old
test

+7  ;.
 (%

: ³what a person knowingly exposed to the public, even
in his own home or office, is not subject to Fourth Amendment protection´; protection only for
what D seeks to keep private + police don¶t have to avert eyes from evidence of criminal activity
observable by any member of public (Katz)

, -G,
  
: A person does not have a REP in an open field (Ct:
more precisely, and ³unprotected area´). D put up fences around his marijuana crop,
indicating a SEP, but the Ct flat-out says that there¶s not REP in an open field, period.

Seid: The open fields doctrine is premised on the assumption that nothing private
happens in open fields. Hmmw

r)The Court has protected the <' = as different than open fields ± the area
immediately adjacent to the house (i.e., ³where you mow your lawn´). BUT you can
visually inspect the cartilage from outside it ± no violation of SEP/REP there.

-G1 .
 (%

: D talked to a gov¶t informant who was wearing a wire.
Court: One must acknowledge the risk that his companions may pass along his talk of illegal
activity, or even turn him in. No absolute REP there.

Criticism: But the 4th applies to gov¶t actions ± so what does one¶s companions¶ potential
betrayals have to do with it? (Good Qw)

What about exposing information to strangers?

 .c
 : Police went through his trash on the curb. Ct says, no REP in trash out
on the street. NB ± Court DID NOT use ³abandonment´ theory (which would cancel out his
SEP) b/c you have to show  
 
5
 for that.

.)

.6
G2: D had no REP in his banking records because he (of
necessity) had granted the bank access to them ± Ct says that therefore there should be no
legit expectation that gov¶t won¶t be able to access them, too. (Really?)

Same goes for ³pen registers´ (records dialed #¶s) and lists of reciptients of your email.
r): The Court has made a distinction btwn just your email addresses (³pen register,´
basically), and the messages themselves. You DO have a REP in the messages¶ content.

, ('%  : The possibility that a member of public   be in the
airspace means there¶s no REP in the area surveilled. (Craziness.) NB ± I guess if the
airspace is restricted (e.g., to military or gov¶t only) then there  a REP

*   
  (3


Some cases are explainable by the notion that the 4th Am only protects against overbreadth:

 '
   .

+'
  Police used drug dog to sniff car during routine (PC-supported)
traffic stop. Dog alerts; police search trunk. That provided PC to search the trunk (and
you only need PC for cars) ± but was the original sniff legit? Court: Yeah ± the sniff did
not infringe any further upon D¶s legit privacy interest, and didn¶t hold him longer than
the stop would have anyway.

(-G  : A canine sniff has
     6
 . BUT,
detention of a person¶s bag prior to sniff and/or a search into it (w/o a warrant) does
violate the 4th. So, if a dog alerts to luggage, you have to go get a warrant.

G  -G8 
: Fed Agent chemically field-tested a small sample of

powder from a package. Not a search, b/c a test that ³merely discloses whether or not
a partic substance is cocaine does not compromise any legit interest in privacy.´ (B/c
NB no interest in illegal items.) But, maybe a seizure b/c of the test sample.

Back to summary: Looking at all of this in terms of   
  '
helps keep it straight. E.g., if gov¶t subpoenas your bank records from you, there¶s no
overbreadth at all ± it¶s a ³self search.´ (This might help explain Ghultz, above.) Finally, even
if the govt¶s methods are a little overbroad, it might be OK if the gov¶t is using common
methods (see Riley).

This is   
 when the gov¶t is using uncommon methods to single out
suspected individuals.
 )
-G: Gov¶t agent squeezes D¶s bag in the overhead compartment, feels ³brick´ of
drugs. Court: Passengers clearly expect their luggage to get jostled, etc ± but
 for people
to ³feel it in an exploratory manner.´ This is not an 
 thing to do. Therefore, this is a
search b/c violates his REP. [Q: Maybe this falls under ³special circ¶s´ in a post-9/11 world?]

Technologically Enhanced Inspection

: -G: Thermal scanner used on outside of house; detected grow-house. Court relies on
the fact that this is a   (most sacred of 4th Am locations), and says that using ³sense-
enhancing tech to obtain info re: the interior of a home that could not otherwise be obtained
w/o physical intrusion into a Const protected area´ is a  .

³In the home, all details are intimate details, because the entire area is held safe from
prying gov¶t eyes.´ Furthermore, this could be seen as   : what about the ³lady
of the house¶s bath´?

Dissent says the ³heat waves´ emanating from the walls are no different than aromas
coming out of the chimney. Diff might be that you need a thermal scanner for the former.

Cf. with the White line of cases (informants with wires) ± diff being, in those cases the
informants (the ³govt¶s prying eyes´) were invited in?

Sidenote: Katz and its progeny  
 apply to surveillance of foreigners/foreign govt¶s. FISA
(see pp. 492-94) governs those; under FISA, the gov¶t must obtain ³FISA warrants´ but does not
need to show PC to get them (b/c targets are not protected by 4th, presumably) ± just have to
show that they¶re a ³foreign power or agent of a foreign power.´

G Originally, US legal system based on property rts and freedom of contract. Then, as
these were chipped away at by the gov¶t, the Ct turned to  
 to help define things like
the 4th Am. The reliance on social mores takes it (somewhat) out of the hands of the indiv
justices¶ proclivities, but leaves the dvpt of the law at the mercy of things like our culture¶s
gradual subjugation of the right to privacy.

%+/+
+G,%4&*./+r/+r&
,.&
,rG

Usually, the fruits of an illegal search/seizure are excluded from the courtroom.

SEE UNDERLYING PHILOSOPHY/SEIDMAN¶S TAKE ± NOTES, 3/31

1
-G: Set the precedent for the ER, although it was restricted to federal courts.
Court¶s rationale in this case was twofold:
1. The ER is the only effective means of   
'4.', and
2. 8
 'requires that the courts not sanction illegal searches/seizures by
admitting their fruits as evidence.
 Prob with Weeks was that federal officials would get state officers to obtain evidence
illegally and then serve it to them on a <  =; clearly, that wouldn¶t fly.

Wolf v. US held that the 4th definitely applied to the states, but the Court couldn¶t decide
whether ER was a Const-required remedy. So it was a moral restriction? Hmmw

/, Four-justice plurality said that in state cases, all evidence obtained in
violation of the 4th must be excluded. The Court made three arg¶s in support:
1. Without the ER, you have a ³right without a remedy´;
2. Judicial integrity: If the gov¶t can break the law (and get away with it), it breeds
contempt for the law; and
3. The ER will    future abuses of 4th Am protections.

Criticisms (Seid):
1. ³Remedy´ means 
 
' the wrong (as best possible) ± the ER doesn¶t really do
that, because:
a. 4th protects agains collateral damage, which can¶t be ³undone´
b. Innocent victims of 4th Am viol¶s have no remedy at all (b/c they¶re not going
to court)
2. Yes, the gov¶t ought not to break the law, but by the time the ER is applied, the
law-breaking (4th Am viol.) is long past! Plus, ³judicial integrity´ is undercut every
time a guilty man walks free on an ER technicality.
3. These days, this is the primary support for the ER. But, how much deterrence of
unconst behavior does the Const require? You can¶t have 100% deterrence w/o
draconian penalties. Futhermore, this doesn¶t really punish the police ± worst case,
they get ³caught´ and their illegally obtained evidence is withheld. Very weak
penalty.
BUT, the above at least shows why you must use the ER when possible, b/c otherwise
there is no penalty at all.
Since Mapp, a number of exceptions to the ER have been established, undercutting its deterrence
and making criticisms of the ER a self-fulfilling prophecyw

<c = 7 
 Note ± this is not a blanket exception; limited to certain circ¶s.

-G
: If the police rely on a (warrant, the ER does not apply. In eon,
police relied on a warrant that was subsequently held to be defective (no PC). But, this
holding is limited to @  ' 9(  , not cases where police use false info
(or info they should know is false) to get the warrant in the first place.

Upshot: As long at the magistrate did his duty properly, and the police weren¶t
dishonest or reckless in applying for warrant, the ER does not apply. ,)8+&
+

.

Seid: cates pretty much covers this already (see ´, p. 519), so there¶s little social
cost.

:: Police relied (in good faith) on a state statute that auth¶d certain types of
warrantless searches. Those were later found unconst. The Court viewed the Legislature
in the same light as the magistrate in eon; i.e., a detached middleman. (Crit: Legis¶s are

 neutralw)

.G+
: Police officer relied in good faith on a judicial officer (court clerk) to make
an arrest. (Clerk¶s info provided PC.) Court upheld this, basically following eon. And
saying there¶s no   
 here ± a clerk made an accidental mistake.

Dissent: Outrageous that a citizen to be arrested, cuffed, searched simply because of

some bureaucrat¶s mistake.

* 
'-G: Here the Ct extended =vans to an error by a    (( . The Court
emphasized that the ER was a @   that doesn¶t apply automatically.
And, since the officer¶s error was negligent but not reckless and/or deliberate, the ER
does not automatically apply.

Maj¶s Rationale: <& ''  +%  
 ((

    7

 

'(  
((
 
  
     @  =

, +7 
  +%

.

: There must be a substantial causal connection between the illegal
search/seizure and the evidence presented at trial; otherwise, no ER. (This is similar to
proximate cause analysis in Torts.)

) 

 Brown was illegally arrested (no PC) and taken downtown, where he
was Mirandized and then voluntarily confessed. Court ± this is too closely related to
the illegal arrest, so ER applies.

Under iroVn, courts must take a case-by-case approach to see whether the
evidence being challenged <
   7 
 (=  '.
The attenuation doctrine is about how 
' the causal chain is: even if the chain is
unbroken, if it¶s too long, ER won¶t apply. Why? +&+%%+r+is the
underlying rationale ± so, if applying the ER is unlikely to deter future action,
courts are hesistant to do so. (See N.B., p. 565)

Other ³prox cause´ approaches apply, too: see Wong Sun (in iroVn), where D
voluntarily went to police station days after an illegal arrest to confess to the
crime. Clearly, the ³taint´ of the arrest had worn off.

iut it¶s all about how broadly/narrowly you construe the facts/officers¶ intent.

r
*: Here, D was arrested at home w/o a warrant (which violates Payton,
above). He then was taken downtown, where he confessed to a crime. Court: That¶s
OK. Huh? Key is that a Payton violation is an illegal   of the house, whereas
 they had PC to arrest D. Thus, any evidence from the search would be excluded, but
the illegal search and the later voluntary confession are too attenuated, even if the
former is a ³but for´ cause.

 

G  : Here, the causal chain might be short, but it is 

± that is,
you cannot say that <( = the illegal act, the evidence would not have been
discovered.

/-G Evidence admissible at trial if warrant affidavit was in fact based on

sources independent of illegal entry; causal connection between violation and seeing
pot, but NOT between violation and seizure b/c independent basis for validly
obtained warrant (no ³but for´ causation b/c police would have seen pot w/o
violation)

: Police illegally entered warehouse w/o warrant + observed bales they
believed to be pot; left + sought warrant to search, relying solely on information
they had prior to illegal entry; warrant issued/executed; bales ³rediscovered´


: Doesn¶t this turn the ER on its head? What about   
 ? Why
Vouldn¶t cops illegally search/surveil a place to see if it¶s even worth the trouble
of getting a warrant? And only the police know what they knew before/after the
illegal searchw

.
 : Police must show: (1) warrant application doesn¶t include anything

about what police witnessed when they acted illegally, otherwise warrant not
issued on basis of evidence obtained independently; (2) police didn¶t decide to
obtain warrant b
c of what they saw during violation ± i.e., would have sought a
warrant anyway.

Dissent¶s C-A: Well, now it¶s all about officers¶ 

 ± aren¶t we trying to avoid
that?

    AKA, the ³hypothetical´ independent source doctrine. Gov¶t must
show that illegally obtained evidence   
    through idependent,
legitimate means. Gov¶t must show by a  
 
  (  
 .

Criticism: But, what if the illegal means is very easy, and the legal one is very hard?
Couldn¶t the police just ³start´ the hard one, and then break the law, using the ID
doctrine as a cure-all?

Because of this possibility, courts have tended to restrict the ID somewhat ± e.g.,
many have said that the police    '
the legal means of
discovery when the violation occurs. (Kind of like #2, above.) Can¶t use it as a cover-
up of illegal activity.
 r71: Police had search teams looking for a body; in the meantime, police
violated D¶s rights and he confessed to its location. The confession was illegally
obtained, but the Court said they would have found the body sooner or later, so OK.

G

'+7 
 The Q here is whether the person seeking to suppress illegally obtained
evidence has had  
4.'violated. The Court has come to view the standing
doctrine as a corollary to ³reasonable expectation of privacy´ analysis.

%

: Car searched, evidence in car used against one of the passengers.
(Passenger himself not searched.) Court: Only those who have had their  
4
.'violated may benefit from the ER.

/r : Guy at someone else¶s apt to cut up drugs, only there for a couple hrs, not
a social guest. Court basically uses the REP analysis from Katz to say that D had no REP
in the apartment, and therefore had no standing b/c no 4th violation from his POV.

%
':
: This shows the impact of the abolition of the automatic standing rule.
Ownership of property  

 
( 

', either, when it comes to
  . Why? If the property is in a location that you don¶t have a personal REP in,
you can¶t object to the search. In RaVlings, D¶s drugs were found in his friend¶s purse ±
and he didn¶t have a REP in the purse, so


'.

See ´, p. 547 for distinction btwn search/seizures of personally owned property.

No legit possessory interest in contraband.

:

9
9.


 % : As a matter of substantive 4th Am law, reasonableness
requires, where practicable, that police knock and announce (long pedigree); if the
requirement is NOT burdensome (15-20 seconds), and N.B. the rule is NOT applicable if RS
of violence, destruction of evidence, or futility

8(
: if police fail to knock + announce, suspect may think he¶s being
burglarized + respond violently; also avoids needless destruction of property + gives
inhabitants opportunity to collect themselves

: knock + announce may provide suspects w/time to escape, destroy

evidence, or ready for attack

Hudson v. I (p. 564): Attenuation can occur when suppression would not serve interest
protected by constitutional guarantee violated; b/c seizure of evidence has nothing to do
w/concerns underlying knock + announce rule (see ³Justification,´ above ± but the 4th
protects privacy/property, not the search/seizure itself!), exclusion not applied

% 

': (1) cost-benefit analysis: excluding evidence will result in litigation re:
knock and announce requirement and increased risk that guilty Ds go free; (2) civil
litigation is an adequate remedy; (3) purposes don¶t match remedy; (4) if consequence
 = suppression, officer will wait longer + more evidence destroyed (avoids
overdeterrence + permits police to go right up to line)

: (1) if right, asserted; NOT excuse to forego enforcing right; (2) adequate
civil litigation remedies undercuts point of avoiding more knock and announce
litigation; plus, civil remedies are ineffective (damages are negligible; unsympathetic
Ps; risk overdeterrence majority wants to avoid if liability); (3) yes, but suppression
not to suppress evidence, but to mitigate overbreadth (suppress evidence + run risk
that guilty Ds go free to protect against ancillary impacts of violation on guilty and
innocent), so if seizure doesn¶t relate to avoiding violence, it does relate to
overbreadth

, +% 7 




 
 (
 
: You can use illegally obtain evidence against the D
(but not a witness) to challenge D¶s credibility, but NOT to support your case.

 



 

'  
 
'  '2    
 ( 
+



   
'  Habeas 
'

rG-/, a simple ER would have a solid deterrence effect (which was the point, right?). But,
complaints about it and challenges to it have become a self-fulfilling prophecy: it has been so
watered down with exceptions that perhaps the criticisms are now true.

 .(.The 4th is all about forward-looking aggregation of rules/principles,

to create the greatest good for the greatest number. The 5th, on the other hand, is (generally)
situation-specific, and is focused on the 
 who is up against the crim justice system.

The 5th does not purport to deter/incentivize future behavior like the 4th does. Both Am¶s
sometimes prevent evidence from being introduced at trial, but the 4th aims to protect



 people from (  '   2 , while the 5th really 
6  
 


 (b/c the 5th is all about self-incrimination ± if you¶re innocent, you can¶t incrim
yourself).

The 4th Am is 5(  (exceptions, PC, ER, etc); the 5th Am is   .

This may reflect society¶s interest in 
  : the state may lock you up, but they
cannot violate your  

.
 G+9
r%
/
r.&
,r


&*+
&*./+r/+r&%
c*&

The 5th Amendment protects against (1)  
of (2) 

  testimony (both
elements are always present in 5th Am violations).

BLACK LETTER: Begins with three questions:

1. When does it apply?

2. What does it protect?
3. Whom does it protect?

I. The 5th Am applies during 
 , where the witness is the  (

. Both of these
need to be satisfied for the 5th to apply. So, 
 ?

A. Just b/c a person¶s freedom is at risk, does not mean it¶s a criminal case. Similarly, just
b/c a person¶s freedom is not at risk, doesn¶t make it civil.

B. If the state   it as criminal, it¶s criminal.

C. Even if it¶s a civil proceeding, 

A if his testimony might

incriminate himself in a ( 
  
' ± but only on a 5 
99
5 
.

D. This highlights the diff btwn criminal/civil: if you¶re the D in a criminal case, you have
the right not to take the stand . Civil trials require you to claim 5th one Q at a
time.

II.The 5th Am protects against a D being     to be a witness '
 (.

A. So, both  
and  (9


are required elements of 5th Am violations.
1. Usually, the way to ³knock out´ self-incrimination is through immunity, and the way
to ³knock out´ compulsion is through the 5th itself.

B. Immunity: An enforceable promise by the gov¶t not to use your testimony against you.
Diff types of immunity:
1. Transactional Immunity: You will not be prosecuted  for 

' you say/admit
to. (Rarely given, because it¶s so broad: e.g., if you have T.I., you could confess to
crimes nobody knows about and the police couldn¶t do a thing.)
2. ³Use´ Immunity: You can be prosecuted for whatever crimes you mention, etc ± but
the actual  


   in any future proceedings.
 3. ³Derivative Use´ Immunity: If granted, the prosecution must show in any later
proceeding that they did not use your testimony to      other
incriminating evidence.

C. Compulsion: The 5th itself protects agains compulsion, because once you claim it, the
police can¶t force you to say anything. If you do choose to testify, it¶s hard to say later
that you were compelled to do so.
)-&, N.B.: If the police take away the self-incrim leg (e.g., by granting immunity), they

    to testify (e.g., with a subpoena), b/c the 5th doesn¶t protect against only
one or the other.

D. What exactly does ³compulsion´ mean?

1. Contempt is a classic example ± ³testify or I¶ll lock you up.´
2. It is not something done to you that does not involve the compulsion of your . Nor
is it, e.g., the pressure you feel if a criminal prosecution against you is not going well.
(B/c you have the right not to take the stand AND the right  take the stand.)
3. What else is compulsion?
a.  (
2& : Contractors who refused to waive immunity and/or testify re:
state contracts would lose any existing contracts and be shut out for five years.
Because the state (1) did not offer immunity and (2) threatened ³substantial
economic sanction´ both elements (self-incrim and compulsion, respectively) are
present. This violates 5th Am.
b. r  : The state is free to do one or the other. E.g., state employees forced to
answer Q¶s about their jobs, but were told they had immunity. If they refused,
they were fired. Ct: This is OK, b/c although that is bald-faced compulsion, there
is no risk of self-incrimination. So the employees were free to choose what to do.
4. & 
 
6' 
'
  r) (( 
  
< ((=
< 
( =
 ( ((  (

     
C 
 
 (  
    
  $

   
A. 

5. Benefit/Penalty Distinction: ³The 5th Am is a shield, not a sword.´ If one¶s refusal to
testify results in their missing out on a benefit, there is no compulsion. Of course, this
depends on which  
you choose: benefit/penalty is in the eye of the beholder.
, . .1 : Ohio offered death row inmates the option of
³clemency hearings,´ where they could offer testimony to get off death row. D
refused, and said this amounted to compulsion of testimony. Ct: Um, no. Up
to you, take it or leave itw
But, by this logic, couldn¶t NY in efkoVitz said ³


' unless you
provide testimony, etc´? State contracts are now a 
( of testimony!

E. Can your refusal to testify be used against you?

1. Criminal trials: NO. If the judge or prosecution makes an adverse comment to the jury
re: D¶s refusal to testify, this constitutes a punishment, which is  
. Also,
the D may request that the judge specifically inform the jury not to draw adverse
inferences from his silence.
 2. Civil trials: Yes ± the 5th Am only protects against criminal self-incrim, so there¶s
nothing wrong with inferences against parties to civil suits when they refuse to testify
in response to evidence against them.

III. The 5th Am protects those compelled to  something. So, if police seize your self-
incriminating business papers (following 4th Am rules), you can¶t claim 5th ± you¶re just
standing there.

A.  -G: Gov¶t subpoenaed lawyer for his client¶s tax records that he¶d given to
lawyer for safekeeping. Ct: The 5th Am right is a ³purely personal´ one. Here, the only
person     was the lawyer ± and he had no danger of self-incrim. And D had risk
of incrim, but no compulsion.

B. ) -G: No 5th Am protections for partnerships/corporations (even though they¶re

legal ³persons´). Why? The 5th Am means 
when it says  
. So, a partner-
ship may be compelled to produce info that will incriminate the partnership itself. AND,
1. An employee of the partnership may be compelled to produce p-ship documents that
will personally incriminate him, ( it¶s part of his official duties and he hold the doc¶s
in a representative ± and not personal ± capacity (see p. 635); b/c the p-ship 
 the
documents. BUT
2. An employee still cannot be compelled to give  
 against himself (think
Fastow), b/c that is info in his head ± see pp. 637-38.

C. G  .: D was forced to give blood as part of a BAC test, led to DUI
conviction. Isn¶t this compelled, self-incrim information? Yes, but the Court says the 5th
only applies to  
  
 evidence.
1. Seid: This conforms with the distinction between body and mind ± the 5th only
protects one¶s dominion over the latter.
2. Which explains why being forced to stand in a line-up does not implicate the 5th Am.
3. The Court has extended this logic to handwriting and voice samples, which it says are
 , not the content of one¶s mind, etc.

D. Other Issues
1. ³Production´ of a person: D given court order to produce her son; she refused b/c she
feared she would be charged with neglect, and claimed 5th Am. Court: No ± this is
about custodial duty as part of a noncriminal regulatory regime.
2. % 5 %  +7 
: The state can compel you to keep certain records as
part of its administrative functions, and this compulsion doesn¶t ³count´ for 5th Am
purposes. Otherwise, everyone would always refuse to keep these records, and the
state would be SOL. Limits to the RRE:
a. The state cannot require records for whatever it wants ± must be part of legit admin
fuction. In / , the Ct overturned a conviction based on D¶s unwillingness
to submit paperwork for taxes on illegal gambling income. Ct says this tax was
³directed to a select group inherently suspect of criminal activities.´ No can do.
 b. Along the same lines, Ct said the state couldn¶t make you register a sawed-off
shotgun and at the same time make possession of one a criminal offense. Duh.
3. ³Hit and run´ statutes: State can compel you to stay at the scene of an accident, b/c (1)
there are significant state interests, (2) the req is regulatory and not targeted at
anyone, and (3) staying at the scene basically just ID¶s yourself, like a lineup. r 
 
.
4. You cannot say that giving your name to the police triggers the 5th Am ± not
testimonial in that sense (dissent disagreed with that notion).

E. So, what¶s going on?

1. The 5th Am does not apply if the state is doing something to you that does not require
an 7   ( .
2. Even if consent is needed, if it does not reveal anything about your interior mental
state, the 5th Am does not apply.
3. Also, NB, if there is zero possibility that your statements could be used to prosecute
you (e.g., double jeopardy, SOL, etc), then you 
     to testify. Makes
sense.

,r+GG
,rG

The Court¶s treatment of the admissibility of confessions has evolved:

1. From 1936 to now, the DPC of the 5th and 15th Am¶s have been used to exclude
involuntary confessions.
2. From 1964 to now, the 6th Am right to counsel has been applied to determine the
admissibility of a confession made by a defendant who has been charged with a crime.
3. From 1966 to now, the 5th Am¶s privilege against self-incrimination has been applied to
statements made during custodial interrogation, unless the suspect was warned of his
rights and made a knowing and voluntary waiver of those rights.

.     


   1934-64 Use of compulsion against D + introduction of compelled
statements violates DP; totality of circumstances: has D¶s will
been overcome?
G7  1964-Massiah + Interrogation prior to trial = critical part of prosecution, so right
=scobedo to lawyer if police deliberately illicit incriminating response
iranda 1966-Miranda Compulsion inherent in station house interrogation; if custody +
  interrogation, Miranda warnings designed to dissipate

Prior to 1964, courts found it very difficult to determine the  

 of a suspect¶s
confession using a ToC approach. They were trying to balance liberal autonomy with the desire
to check gov¶t abuses, but this leaves it to case-by-case analysis and is obviously very confusing
for the police. (NOTE: This ³voluntary´ aspect of the DPC has sort of been wrapped into
Miranda analysis in terms of determining waiver.) The Court¶s first attempt to fix it came
through the 6th Am:
    /
    
%'  
 

G "" 9"!(   
 
 


/-GD was indicted for a crime (aka formally charged), then cops bugged D¶s
buddy, and used D¶s bugged conv¶s as further evidence against D during trial. No 4th
concern (b/c talking to 3rd party), and no 5th concern (no compulsion)

BUT the Court says wait ± this violated D¶s right to counsel! The Feds    
 


'
( from him after he had been indicted and 
 
  (
 
 .

R¶ale: Once the (formally) accused has retained an attorney to represent him in the
adversary process, the gov¶t may not try to 
  
. This sort of
³constitutionalizes´ general legal ethics.

&*+
&*./+r/+r&. %,.*/
%.r.

Miranda BLACK LETTER:


1. If a statement is given while in   and under 
  '
, there is de facto 5th
Am  
.
2. And, of course, 5th Am violations have compulsion 
 self-incrimination.
3. The protection against compulsion 
  , if the suspect is properly warned of
his rights ± e.g., to remain silent, to have a lawyer, etc.
r  This right to a lawyer is not the same as 6th Am right. If you claim your 5th
Am right to counsel, chances are you won¶t get a lawyer ± but they have to stop
their interrogation. More theoretical than anything, but an important safeguard
regardless.
4. Once a suspect   his Miranda rights, the compulsion is gone.
5. But, any suspect who does claim his rights may then suppress any subsequent custodial
interrogation. The warning and waiver are   5  to the admissibility of 

 
   (

.

So it seems that the Court is attempting to ³clean up´ the voluntariness morass by using
( 9

' judicial legislation to  (
 
. That is, unless there¶s a waiver,
custody + interrogation = compulsion. EVEN IF you give a voluntary confession! If you
haven¶t made a proper waiver, your statement was ³compelled.´

So, what¶s Miranda¶s status, Constituionally?



-G: Congress passed a statute in response to Miranda, legislatively
reinstituting the ToC test for ³voluntariness´ that existed up till then. Also, the Court had
in subsequent cases said in passing that Miranda was not a ³Const´ rule. The Court says
that the statue is unconstitutional, which could mean either:
 1. Miranda is Const, but then there shouldn¶t be any exceptions to it; OR
2. Miranda isn¶t, but then how could the Court enforce it in re: the States?

The Court threaded this needle, saying Miranda is more like ³Consitutional doctrine´ that
isn¶t in the Const per se but helps enforce it.

Why didn¶t the (conservative) Ct just overrule Miranda? Seid: It¶s pro-police! It says to
them, here: do your interrogations like this, and D cannot suppress the confession. Much
easier to follow/get right than case-by-case ToC.

*  /
(

 3 Three possible situations (from the text of Miranda):

1. No warning given: .
 statements given are per se inadmissible.

2. Warning given, D does not claim rights: State bears a heavy burden to show that D
waived his rights.

3. Warning given, D claims rights: All questioning must   .

*r
: D was interrogated without a Miranda warning ± so his statement was
inadmissible as evidence. However, the prosecution used the statement to contradict
his testimony at the trial ± to   his credibility.

If you make a self-incriminating, voluntary, but ³Miranda-bad´ statement, you¶re

pretty screwed, even though it can¶t be used in the case-in-chief. B/c now you have to
either expect the prosecution to use it against you on cross-ex, or refuse to take the
stand ± which definitely increases chance of conviction. So, is exclusion from case-
in-chief a ((
  
? Not reallyw

A

9 
 confession may not be used AT ALL ± it goes against the very heart of
5th Am protections.

(  ,*A suspect¶s 
 during a custodial interrogation 

  

'
  . Otherwise, Miranda protections would be pretty worthless.

8


.
 
: D waited two weeks before turning himself in for a crime, but said
that  9 <
 = should be excluded (applying Doyle). Court: NO ± this was
pre-arrest, and Miranda rights weren¶t even read. Doesn¶t apply.

  1 Suspect testified that he killed in self-defense; prosecution asked him
why he didn¶t say that the minute he was arrested (but before Miranda), which would
seem the natural thing to do. Ct:  9  9/

 may be used to
impeach.

How do all of the above fit together?

 Seid: You have a right to remain silent, and that silence cannot be used against you. But,
you also have a right to speak (unlike in old CL). You 
6  , though:
e.g., you can¶t give your side of the story and then refuse cross examination.

Once the D takes the stand, that means you can compel them to talk (b/c they¶ve waived
their Miranda rts); therefore, you can introduce previously compelled statements to
impeach their credibility.

What about the ( (/
 
?

-G 
: D didn¶t let police finish their Miranda warning, then told police where the
gun was. Ct: ( of a Miranda-bad* confession are not tainted. Huh? Court
says that the self-incrimination aspect ³is not implicated by the admission into evidence
of the physical fruit of a voluntary statement.´ Huh.

*NOTE: ³Miranda-bad´ means voluntary statement given without a proper

warning or waiver. (B/c involuntary statements would trigger DPC.)

/,G  Police had a deliberate ploy whereby they would obtain a pre-Miranda
confession, then read suspect his rights, and then try to get the confession again (b/c a
prev Sup Ct case had allowed this based on the ³fruits´ doctrine).

Ct: Not only was this intentional (which they don¶t like), it seems perfectly natural for
a suspect to assume that they¶re already screwed after 1st confession, so no point in
trying to ³un-confess´ after being Mirandized.

It¶s one thing if the suspect lets a confession slip before the cops have had a chance to
read warnings, and then knowingly and voluntarily waives his Miranda rights and
confesses again. This is totally different (and sure feels like  
).

Status of Seibert toady? From Kennedy¶s concurrence ± a (2nd) confession made after a
Miranda-bad confession   
 :
1. The officers were in bad faith in not giving the warnings, AND
2. The second confession proceeded directly from the first.

+ '
 7 
r
0 : Miranda-bad (in this case, no warning) confession
is admissible in the case-in-chief if there are ³overriding consdirations of public safety.´
Cops chased a guy who hid a gun in a grocery store. They grabbed him and asked where it
was, and this ³confession´ was used at trial. Ct says that¶s OK.

Dissent: First off, isn¶t the point of Miranda to give bright-line rules? These days, the gun
could be intro¶d b/c of the ³physical fruits´ line ± not yet established when Quarles was
decided.

, +r0-+G&
,rG.&+%/
%.r.
Must the warning itself directly mirror the Court¶s wording? NO ± generally, it must inform
the suspect of (all of) his Miranda rights, and reflect the ³gist´ of Miranda.

1 3

1. .  is custody.
2. NOTE: FOR MIRANDA, [=RRY STOPS DO NOT COUNT AS CUSTODY. (Why?
Acc¶d to the courts, they¶re not ³inherently coercive´w)
3. But, being at the police station isn¶t necessarily custody, if you¶re free to leave. This is
governed by an @   what would a reasonable person in the suspect¶s
position think?
4. †ery objective ± the suspect¶s personal characteristics 
6 count.
5. If you¶re already in prison, it¶s only ³custody´ if you¶re questioned in a different/  
  area. (This can be explained by the  
rationale underlying Mir.)

1
  '
3

³Black Letter´: Interrogation is 
 direct questioning OR any (

 5
,
which = ³any words or actions on the part of the police w that the police should know
are reasonably likely to elicit an incriminating response from the suspect.´

%



: Cops had D in their car, started talking about how D¶s missing weapon could
injure kids, etc. D piped up to tell them where it is. Court says OK ± b/c they weren¶t
talking to him, and it was ³a few off-hand remarks,´ Ct won¶t say that the cops should
have known it was reasonably likely that D would do what he did. (Really?)
 ± Forward looking: this lets cops do ³coercive´ things, right? (If they subj
suspect they¶ll get guy to confess, maybe they¶ll get away with it.) Backward looking:
since test is of officers¶ reasonable expectation, D¶s views are irrelevant. Hmm.

What about 
   ? Not covered by Miranda ± why? If the suspect doesn¶t
know he¶s talking to the police (or some agent of the police), then there 
6 

 
.

NOTE: ³Routine booking´ questions are NOT protected by Miranda.

1 3

Whether or not a valid waiver has occurred is a Q of fact. What constitutes ³validity´ is
somewhere between these two extremes:
1. A waiver is
 shown just by the giving of a warning and a subsequent confession
2. BUT, you do not need an actual 7 waiver.

If a suspect makes a  
 decision to speak with (



  

of all the information Miranda req¶s the police to convey, there is a valid
waiver.
 A waiver must be both


' and  
.

Knowing: I.e., ³made with a full awareness both of the nature of the right being
abandoned and the full consequences of the decision to abandon it.´ (This helps
explain #1, above.)
Voluntary: ³In the sense that it was a product of a free and deliberate choice rather
than intimidation, coercion, or deception.

:

'

D¶s characteristics must be taken into account when analyzing the knowing leg ±
what if, e.g., D has an IQ of 50? Maybe he doesn¶t really understand what the
warning means, and then his waiver doesn¶ t count. The D must 

 
 the Miranda warnings. (Knowing and intelligent.)

Police need not use exactly the same words as the Miranda Court did, but they
must tell suspect of all of his rights and pass along the general ³gist´ of it.

And a suspect doesn¶t have to know the ins/outs of Miranda for the
³knowing´ req to be satisfied. In Elstad, the suspect made a pre-warning
confession, then was Mirandized, and confessed again b/c he thought he was
already cooked. Ct: Too bad. He was given a proper warning, and waived.

A suspect need not know exactly what he¶ll be questioned about for his waiver to
be valid: the point is, he has a right to remain silent, and his statements can be
used against him if he waives that right. (Compare with   , below.)




,

: ³Voluntariness of a waiver . . . has always depended on the
absence of police overreaching, not on µfree choice¶ in any broader sence of the
word.´

D can  ; e.g., ³I¶ll talk about X, but not Y.´ If police interrogate
him about Y and he answers, that part of the testimony will be suppressed.
(Unless he made a subsequent, valid waiver re: Y before the Y line of questioning
began.)

In sum, at least there are these rules for waivers, unlike for the 4th Am and non-Miranda
5th Am waivers, where


' or

 '  ( ' is required.

1

  (


/
'
 
(  3

Any invocation of one¶s Miranda rights must be unambiguous and unequivocal.

 Courts have taken different approaches depending on whether a suspect invokes his
Miranda right to silence, or his Miranda right to counsel.

Silence: Just b/c a suspect invokes right to silence  
 mean that police
questioning is forever barred. Police must ³scrupulously honor´ a suspect¶s
invocation of this right, but after a  
' ((  , may try again. But multiple
attempts to resume questioning have been frowned upon by lower courts (reeks of
compulsion/coercion).

Counsel: Once you claim the right to counsel, 5 

'
  .
06G.),-&.r
&*
rc.&.$. Edwards. It may only be ³rebooted´ if the
suspect <
 =a new conversation with the police. Furthermore, claiming this
right invalidates any future waivers (unless there¶s initiation).

What does ³initiate´ mean here? ,%): Inquiries/statements that

³represent a desire on the part of an accused to open up a more generalized
discussion  
'  
   
 '
.´

+
( the suspect does ³initiate´ communication, the state must show that
subsequent events/statements indicated a waiver of the 5th Am right to counsel.

So, the Court uses a two-step analysis to determine if a suspect waives his rights
after invoking the right to counsel:
1. Step one is the bright-line safeguard of the suspect-initiation requirement.
2. Step to is the familiar ToC test of a knowing and voluntary waiver

/


/G: The protection provided by Edwards 7
 
( 


with the attorney. That is, you invoke right to counsel, cops shut up,
and then you meet with him. The cops 

 then come to you and ask you Q¶s,
or anything.
  
 , period.

BUT, NB, a break in your custody (> 2 wks) terminates your Edwards rights
(SCOTUS, 2010).

It is important to remember that Edwards rights are A. rights, and therefore only
apply to  
  '
and are only available if Miranda rights are invoked.


&*+G
?&*./+r/+r&. %,.*

/-G: 6th Am right to counsel attaches when a person is ( ' .
(Indicted, etc.)
 The Ct briefly extended this protection to arrestees, but abandoned this approach. The
rationale behind Massiah is that once    
' have begun, you have a
6th Am right to counsel.

)  1(p. 771): D was arrested, charged, and Mirandized multiple times.
Assigned a temp attorney; had another attorney waiting for him. Car ride ± Christian burial
speech; D leads cop to body. The Court assumes arguendo that Miranda was not violated 

D¶s statements were voluntary, but overturns conviction anyway. Huh?

/
  
/ '  
 
'


  
So, there is a different conception of ³interrogation´ for the two:

Miranda: Since it¶s about compulsion, an @  
is used to determine if
cops were interrogating.
Massiah: Since it¶s about adversarial process, the Q is whether the police
       incriminating info from the D.

  -G: The Court crystallized the above distinction, and that ³deliberate
elicitation´ doesn¶t necessarily have to qualify as ³interrogation´ to trigger 6th Am
protections.

-G*
 (p. 780) also shows the compulsion/elicitation difference. D talked to a
gov¶t-paid informant in prison after he had been indicted and was awaiting trial. The
Court ruled that this testimony must be suppressed, 
 ' the informant didn¶t
³initiate´ the conv. The point is, the gov¶t ³


  
that was
likely to 
 Henry to make incriminating statements.´

r)This would not be protected under the 5th Am, b/c there was
 
.
(Same goes with undercover informants on the outside.)

But (:
, where the informant in jail was a ³listenting post´ who didn¶t say
anything to ³stimulate´ the conv with the D. Must show the gov¶t has 

  
'to elicit this info to trigger 6th.

So, it¶s easier to establish ³interrogation´ under the 6th than the 5th. (Deliberate elicitation is
not enough to trigger 5th b/c it¶s an objective standard.)

&*+%
c*&&,,-rG+

What What¶s ³interrogation´? How does a waiver work?

triggers the
protections?
 1. No warning ± 


Was the officer
2. A Miranda warning is sufficient;
deliberately trying to
Messiah-Williams: A (  and Mir waiver rules apply*
elicit a response (or
6th Am Cases '  3. Warning, rights claimed ±

should he have known
+  
. Cops can
that it probably would)?
approach you for a waiver.**

Would a reasonable 1. No warning

Miranda-Innis: 5th officer think his actions 2. Warning, rights not claimed
 
Am Cases would elicit an incrim 3. Warning, rights claimed ±
response? Edwards rule applies

I+?+ &1*+r:
1. If a suspect is not told that a lawyer was trying to reach him, his waiver would not be
valid in the 6th Am context.
2. Once an accused is formally charged, a surreptitious conversation between an
undercover police officer would be prohib¶d (and a waiver could not be found).
  A.

**A person may waive his ". right to counsel anytime, so long as the waiver is
voluntary, knowing, and intelligent. (See #1, above.) 1
'
6/
'
5( ".  

Why is the Court so protective of a D¶s right to counsel (especially in a case like Williams)? The
adversarial system   
the relationship between the accused and his/her counsel ± the
accused must be able to trust his counsel¶s advice and the gov¶t 






 
.

%+/+
,%G
?&*./
,.&
,rG

 The Court has decided that the remedy is the same as with 4th/5th violations: A
confession gained from a 6th Am violation may not be used in the case-in-chief, but  
     (

 on the stand.

 : physical attributes not on public display + whose examination

requires bodily intrusion, such as blood type, urine, breath, fall w/in Fourth Amendment¶s
purview (Gkinner)

.
 (
: when party to conversation ³invites´ govt in, Fourth constraints don¶t
apply
 ˜S v. Davis: D invited confidential information into residence, forfeiting privacy interest
+ informant¶s secret videotaping of drug deal did NOT implicate Fourth

˜S v. Longoria: D¶s expectation that confidential informant would not disclose

conversation not one society would deem reasonable, even though he spoke in Spanish +
thought informant didn¶t)

˜S v. White: NOT search b/c no reasonable expectation of privacy; White assumed risk
that conversation would be transmitted to govt (assumed risk b/c Court says he¶s not
protected (circular))

: govt informant secretly carrying radio transmitter + transmitting conversation

w/White to govt

&: trust = fragility, inherent possibility of betrayal + in normatively just society,

people should be cautious about being betrayed

Cf.
andolph: White, unaware conversation being transmitted = Randolph, if he had

been asleep, so can¶t object; police not obligated to assume D will say no unless D
actually says no (requires D to explicitly tell conversation partner, ³do not transmit
this to the police´; police would have to shut off mic)

Hoffa v. ˜S: one who conveys information to 3P, even if apparent private
communication, can¶t reasonably rely on 3P maintaining confidentiality; applies where
3P later reports conversation to police or police listen in via wire on 3P (³misplaced
confidence´ not protected by Fourth)

Gouled v. ˜S: invalidated search where undercover informant pretended to enter office
on social call, but rummaged through papers; search went beyond scope of invitation


irendlin v. C: D seized, even though passenger, b/c unintended person can be object of
seizure as long as willful + not consequence of unknowing act (officer seizing everyone in
car when stop); although no physical contact, D submitted to nonphysical show of authority
by remaining in car

: police stop car w/temporary permit to check permit matches vehicle + spot D,
parole violator; D ordered out of car at gunpoint + arrested; search revealed drugs
pL v.
oyer: investigative detention must be temporary + last no longer than necessary to
effectuate purpose of stop; investigative methods employed should be least intrusive means
reasonably available to verify/dispel officer¶s suspicion in short period of time

˜S v. ontoya De Hernandez: detention = stop, NOT arrest, b/c duration didn¶t exceed
time necessary to complete preliminary field investigation; 16 hours necessary to await
bowel movement of suspected balloon swallower