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Constitutional Criminal Procedure
PART I. THE FOURTH AMENDMENT: SEARCH AND SEIZURE
Chapter 1  Protected Interests: Property, Technology, & Personal Rights
A. Fourth Amendment Text
The 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.
Relationship between first clause (reasonableness) and second clause (warrant)
(1) Conjunctive Theory – warrant clause – the language is an internal textual guideline to what is reasonable and what is not
reasonable.

The warrant clause is intended to be an indication of what makes an unreasonable search or seizure.
o
The warrant clause defines a way a search or seizure may be reasonable.
o
The warrant clause provides guidance for interpretation of the previous clause.
o
All searches and seizures are presumed to be unreasonable if they occur without a warrant (warrant
clause informs the reasonableness clause)

To be reasonable there has to be a warrant based upon probable cause issued by a judge stating with particularity
describing the place to be searched, and the persons or things to be seized.
(2) Disjunctive Theory – interprets the two clauses as distinct enactments. A search, a seizure, or both – those will be reasonable
if they are. The warrant clause is only relevant if there is a warrant, if there is no warrant than the measure if whether it’s
reasonable.
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Questions
What right does the Fourth Amendment protect? Who possesses that right?
Who does the Fourth Amendment regulate? To the extent that it regulates government actors, what is its scope? Does
it regulate only federal government actors, or are state and local actors governed as well? Does the text answer these
questions?
a. The Fourth Amendment regulates two types of government conduct: searches and seizures. The
requirements of probable cause, particularity, and a warrant issued by a neutral and detached magistrate do
not apply to government actions that are neither searches nor seizureseven if they consist of purposeful
inquiries designed to obtain incriminating evidence.
b. Fourth Amendment regulates and limits the conduct of government actors (state, federal, and local), or
people acting on behalf of the government; but does not regulate actions of private citizens or entities.
c.
In 20th century (from Bill of Rights) expanded its coverage to include state and local government actors.
What conduct is prohibited by the Fourth Amendment? What conduct is permitted by the Fourth Amendment?
a. Unreasonable searches and seizures; not prohibited if reasonable.
What conduct does the 4th Amendment regulate?
a. Searches and Seizures by government/government actors.
b. A search OR a seizure (if not a search or a seizure, 4th Amendment is irrelevant)
If the Fourth Amendment is violated, what remedies are available? Who can enforce those remedies? Does the text
answer these questions? If not, where do we find the answers?
What is the relationship between the first (reasonableness) clause and the second (warrant) clause of the Fourth
Amendment?
a. The language of the warrant clause is an internal textual guideline to what is reasonable and what is not
reasonable
i. To be reasonable there has to be a warrant based upon probable cause issued by a judge stating
with particularity…
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
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SEARCH = 2-fold requirement
o (1) the person has exhibited an actual, subjective expectation of privacy; AND

Whether the individual has shown that she/he seeks to preserve something as private
o (2) the expectation be one that society is prepared to recognize as “reasonable”

Whether it is justifiable under the circumstances.
SEIZURE =
o OF PERSON 
o OF PROPERTY  exercise of dominion or control over something or an interreference with the
possessory rights of the owner of the property.
B. Property, Privacy, and the Nature of Fourth Amendment Rights


United
States
v. Jones
(2012)

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Whether the attachment of a GPS tracking device to an individual’s vehicle, and subsequent use of
that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure
within the meaning of the Fourth Amendment.
Federal agents went to a judge and got a warrant – authorizing them to plant a GPS tracker on the
SUV of Jones
The government’s installation of a GPS tracking device on a vehicle, and the use of the device to
monitor the vehicle’s movements, constituted a physical intrusion into a constitutionally protected
area (i.e., it was a trespass as to the vehicle) and, as such, was a search governed by the Fourth
Amendment.
Placement of GPS device on D’s vehicle for the purposes of monitoring the vehicle’s movements
constituted a search  gathered evidence for 28 days, 24 hours a day.
Warrant was valid for 10 days and it had to be installed within the jurisdiction of the court.
o The agents installed the GPS in a different jurisdiction and on the 11 th day  it is as if this
is a warrantless search because the warrant they relied upon was invalid/ineffective.
Trespass doctrine articulated by Scalia – for there to be a search there must be a physical intrusion
into a constitutionally protected area, for there to be a seizure there must be an intangible thing.
Jones revived the “trespass” test of the earlier period and held that surveillance is a search if it
violates a defendant’s reasonable expectation of privacy OR infringed on the defendant’s property
interests.
4th Amendment traditionally interpreted to define a search in terms of property rights (until Katz).
SEIZURE of a person occurs when the government interferes in a significant way.
C. Foundational Cases: From Boyd (Property) to Katz (Privacy)
Fourth Amendment “search” analysis is divisible intro 3 historical periods:
(1) 1886 Boyd  laid the idea for a property rights interpretation of the 4 th Amendment.
(2) 1967 Katz  rejected the idea of property as defining 4 th Amendment rights & the Reasonable
Expectation of Privacy prevailed.
(3) 2012 Jones  resurrected property (trespass test) as a core fundamental concept in defining 4 th
Amendment rights and defining what is a government search.
“SEARCH”
(1) Original “Trespass Analysis”  was there a physical intrusion?
OR
(2) Reasonable Expectation of Privacy Test
(1) PROPERTY
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
Boyd v.
United
States
(1886)

Broad Property Theory of 4th Amendment Rights – court seeks to limit government power to
search and seize and preserve citizens from being intruded upon by the government.
Laid the seeds for a property-rights interpretation of the Fourth Amendment.

Under Boyd, the Fourth Amendment did not apply in the absence of a physical intrusion  a
trespass  by government agents into a “constitutionally protected area,” in order to “find
something or to obtain information.
Civil dispute about paying taxes on imported glass for plate glass windows – came to light that the
importers weren’t paying necessary customs taxes and judge issued a subpoena for the glass and
business records. Government read the invoices, took notes and returned the paper.
Was there a search? No, they sent a court order, wrote notes and returned them (least vigorous
intrusion).
Boyd said this conduct amounted to an unreasonable search and seizure under the 4 th
Amendment. Why? Because under traditional property law rules, the government was entitled to
search for property and seize property only if the government had an interest in the property
recognized by property law.
o Property includes work, knowledge, personalities, expression of our personalities,
writing (not limited to thing we use and control).
o Government has a superior possessory interest in contraband.
o Can seize “instrumentalities of the crime” = tools used to commit the crime.
Government has the right to search for and seize stolen property, right to contraband, property in
which required taxes haven’t been paid – the government wanted paper records as evidence, not
the glass – couldn’t assert property interest in the papers, just the glass.
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Olmstead
v. United
States
(1928)
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Narrow Property Theory of 4th Amendment Rights
Olmstead was general manager of a criminal enterprise that imported liquor – during Prohibition
so this was an illegal act. Wiretaps of conspirators’ phone conversations were a critical source of
the evidence used to convict. The wire-tapping occurred outside of the house on a public
telephone pole.]
Laid the foundation for the Katz decision; retained the Boyd statement that Fourth Amendment
interpretation is based upon property, but abandoned the broad interpretation theory.
Olmstead provides an example of the Court’s pre-Katz property rights/trespass approach to the
4th Amendment.
Federal officers, without obtaining a search warrant, used wiretaps to intercept the conversations
of O and others, conducted by telephone from their homes and offices. The Court ruled that this
conduct fell outside the reach of the Fourth Amendment.
o Because conversations are intangible, they are not “persons, houses, paper, or effects” so
they are unprotected; the houses and offices from which the conversations arose are
protected by the 4th Amendment, but only from physical intrusions or trespasses, eyes
and ears cannot “search” or “seize,” since neither can trespass; and wiretaps used to
listen to the conversations, which can trespass, did not do so here because they were
installed on telephone lines outside Olmstead’s property.
Privacy Theory of 4th Amendment Rights (Brandeis Dissent)
Wiretaps were placed on telephone company wires on the streets attached to the pole, no physical
intrusion into Olmstead office – there is no search.
o Since no search, no seizure, the 4th Amendment is irrelevant and there is no basis for
suppressing this evidence.
SC’s decision here guaranteed that if the government agents did not commit a trespass on private
property to install a listening device, the Fourth Amendment would be irrelevant for regulating
the use of new technologies to monitor conversations.
(2) PRIVACY SUPPLANTS PROPERTY

Pre-Warden
o Goldman v. United States (1942) 

Conversations recovered through use of a detectiphone set up in the adjoining room
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o
Both parts of Olmstead – no search and no seizure – could not seize an intangible
conversation.
Silverman v. United States (1961) 

Seizure of intangible conversations.

Search occurred when a spiked-microphone inserted into a party wall intruded minutely
into the speaker’s side of the wall.

A “search” occurred when FBI agents made a physical intrusion inside a home and placed
a spike microphone into a party wall which intruded minutely into the speaker’s side of
the wall.

There was a 4th Amendment search here because there was a physical intrusion
into a home, it required a warrant, and since there was no warrant, the results of
the search were suppressed.
o This is notable because the case is cited for recognizing that a
conversation is something that can be seized  aka the majority must
have assumed that a conversation could be seized (in a sense overruling
Olmstead for Silverman to have won; but they didn’t actually make this
holding, just assumes it).
Warden
v.
Hayden
(1967)
[Overruled the mere evidence rule – the government cannot search for and seize anything that it just
wants to use merely as evidence]

QUESTION: Whether, even though the search was lawful, the Court of Appeals was correct in
holding that the seizure and introduction of the items of clothing violated the Fourth Amendment
because they are “mere evidence.”
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
Katz v.
United
States
(1967)
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Reasonable Expectation of Privacy Theory of Fourth Amendment Rights
Is electronically eavesdropping on a conversation occurring within a closed glass phone booth
without physically penetrating it an “unreasonable” search protected against by the 4 th
Amendment?
In Katz, federal officers conducted warrantless surveillance of K’s conversations by attaching an
electronic listening device to the outside of a telephone booth K used to conduct conversations.
Court announced that the “trespass doctrine can no longer be regarded as controlling” and
instead, created a new test: “whether the government surveillance violated the D’s reasonable
expectation of privacy.”
Court overruled the property-based “trespass doctrine” announced in Olmstead.
Held that a search occurred when federal law enforcers used an electronic eavesdropping device
to listen to conversations made from a public telephone booth, even in the absence of a physical
trespass into a constitutionally protected area.
Government placed a bug on the outside roof of a telephone booth – the device was capable of
picking up sounds from inside the phonebooth.
The Fourth Amendment protects people, not places.
“Expectation of Privacy” 2- part test [Justice Harlan, concurring]
Wiretapping and Eavesdropping – Fourth Amendment Requirements – Wiretapping and any
other form of electronic surveillance that violates a reasonable expectation of privacy constitute a
search under the Fourth Amendment.
*** Mr. Justice Harlan, Concurring ---
Reasonable Expectation of Privacy  2-fold requirement:
(1) First, that a person have exhibited an actual (subjective) expectation of privacy, AND
(2) Second, that the expectation be one that society is prepared to recognize as “reasonable” (objectively).
When an expectation of privacy meets both of these requirements, government action that “invade[s]” the
expectation normally counts as a search.
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D. Privacy, Technology, and the “Third Party Doctrine”

“Third Party Doctrine” – doctrine decreed that a person can lose any reasonable expectation of privacy in
information by disclosing information to a third party.
o If a person turns over information to a third party, human, or entity, that person gives up any
expectation of privacy that the Supreme Court was willing to call reasonable.
Katz reasoning  what a person knowingly eposes to the public, even in a private space, is not
protected.
United States v. Miller (1976) 
o Court held that the government could obtain records of a customer’s bank accounts without
needing first securing a search warrant.

Decision rested upon the conclusion that the customer has no reasonable expectation of
privacy doctrine in information voluntarily disclosed to another private person or entity.
o The bank records contained information that the customer had voluntarily turned over to the bank,
and the records were the banks property, maintained for the bank’s business purposes, and we’ve
never held that a person has a property right in someone else’s business records.
Smith v. Maryland (1979) 
o At the government’s request, the telephone company installed a “pen register” on the customer’s
telephone line.
o Court held that the government did not need a search warrant to authorize this intrusion, because
the customer had no expectation of privacy in the information recorded by the pen register.
o By using a phone, you knowingly communicate to the phone company the phone records (the
number you called, the day you called, the length of the phone call, etc.)  under third party
doctrine, for the government to get that information from the phone company and use it, is not a
4th Amendment intrusion (not a search  aka no warrant is needed).
o Wiretapping and Eavesdropping – Pen Registers – A pen register records only the numbers dialed
from a certain phone. The Fourth Amendment does not require prior judicial approval for
installation and use of pen registers.
o
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
United
States v.
Carpenter
(2016)
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Majority opinion
The information could not be used against him because the court majority holds that he has a
reasonable expectation of privacy against the government action to track his phone 24 hours a day
for month  this was so intrusive and just goes too far.
Stored Communications Act – the government can get information stored on computers with just a
subpoena
4 requirements police must satisfy to obtain cell cite location/signal from telephone company.
Chapter 2  Technology and the Reasonable Expectation of Privacy
A. The Home and Its Curtilage
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California
v. Ciraolo
(1986)
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Whether the Fourth Amendment is violated by aerial observation without a warrant from an
altitude of 1,000 feet of a fenced-in backyard within the curtilage of a home.
Police officer received a tip that marijuana was growing in D’s backyard but could not observe
contents because of the fence. Since an anonymous tip alone is not enough to get a search warrant,
officers got a plane and photographed area and then got a search warrant based on the tip and
their observations and photograph.
No violation – court says he does not have a reasonable expectation of privacy in his garden 
court does not recognize his subjective expectation as reasonable because plans are always flying
up in the sky.
His expectation that his garden was protected from such observation is unreasonable and is not an
expectation that society is prepared to honor.
What a person knowingly exposes to the public, even in his own home or office, is not a subject of
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Fourth Amendment protection.
The Plain View Doctrine  When the officers were flying over the garden (in a public place), a
navigable airspace, was a legal observation
Officers were also lawfully allowed to be there – no trespass
An inspection conducted from the air, whether by an airplane or a helicopter, does not violate a
reasonable expectation of privacy and therefore is not a search for the purposes of the Fourth
Amendment.
Plain View Doctrine (exception to 4th Amendment)  an officer does not need to avert their eyes,
if they are in a legally entitled area, and do not need to keep from viewing observable stuff.
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Fly-Overs  the police may, within the Fourth Amendment, fly over a field or yard to observe
with the naked eye things therein.
Opinion held that police officers can use flying machines to get a vantage point permitting
them a view inside a home’s curtilage, a view otherwise impossible without a physical trespass.
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
Dow Chemical Co. v. United States (1986) 
o Sense enhancing technologies --- what standards identify which devices are so intrusive that their use
must be authorized by a judicial warrant?
o “Generally available to the public” test – thermal imager is generally available to the public
o This is not a house, it is an industrial facility, no reasonable expectation of privacy.
o If Dow wanted to prevent airplane observation of its acre facility there was a simple solution: put a roof
on top and then nobody could take pictures.

Kyllo v.
United
States
(2001)
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Whether the use of a thermal-imaging device aimed at a private home from a public street to
detect relative amounts of heat within the home constitutes a “search” within the meaning of the
Fourth Amendment.
Use of thermal imager on D’s home from outside the curtilage to detect the presence of high
intensity lamps commonly used to grow marijuana constitutes a search.
Technology Enhanced Searches of Homes  The SC has held that because of the strong
expectation of privacy within one’s home, obtaining by sense enchaining technology any
information regarding the interior of a home that could not otherwise have been obtained without
physical intrusion constitutes a search, at least where the technology in question is not in general
public use.
Justice Scalia reintroduces property theory (trespass theory) back into the Katz test (Katz
overruled the trespass test as a measure of a search), but here, Justice Scalia wrote that if, by using
technology, the government can obtain information otherwise unobtainable without a physical
trespass, it is a search.
Court ruled that police use, outside a home, of sense-enhancing technology, to secure information
regarding activities inside a home  information that could not otherwise be obtained without a
physical intrusion into the dwelling  constitutes a search (at least where the --technology in
question is not in general public use).
o  functional equivalent of a trespass  this thermal imager allows government to obtain
information that would otherwise be unobtainable without a trespass.
o  Technological trespass.
Court focuses on the intimate activities in the home --- house is the most protected area; gets the
highest amount of protection under the 4th Amendment.
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Florida
v.
Jardines
(2013)
Courts are going to treat a dog alert as creating probable cause.
Whether using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the
home is a “Search” within the meaning of the Fourth Amendment.
o The government’s use of trained police dogs to investigate the home and its
immediate surroundings is a search within the meaning of the Fourth Amendment
(FOR THESE FACTS)(purpose of the dog was to get information about the inside of
the home).

This court reached this conclusion on “trespass” rather than expectation-ofprivacy grounds.
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There is an implicit license to come knock on the door of an
individual’s house and wait to be received, and then (absent
invitation to linger longer) leave  however, introducing a
trained police dog to explore the area around the home in hopes of
discovering incriminating evidence is something else (no
customary invitation to do that).
Police responded to an unverified tip that marijuana was being grown in J’s home by
approaching the front porch with a dog trained to detect the scent of narcotics.
o The dog’s behavioral changes alerted his handler to the presence of illegal narcotics
inside the home.
A search may also occur when the government physically intrudes upon private property for
the purpose of obtaining information  Using a drug-sniffing dog on a homeowner’s porch
for the purpose of investigating the contents of the home constituted a search.
Justice Scalia, writing for a five-justice majority, held that this police activity did constitute a
search, but he reached this conclusion on “trespass” rather than expectation-of-privacy
grounds.
United States v. Place (1983) 
o DEA agents seized Place’s luggage at the airport and as part of their investigation, the agents
“subjected the bags to a ‘sniff test’ by a trained narcotics detention dog.”
o In dicta (plurality opinion), Justice O’Connor concluded that the dog sniff itself as not a search.
majority held that because dog search is only operating against the exterior of the bag and only
gives one kind of information (drugs are in the bag or not), this kind of government interaction is
sui generis (one a kind) and therefore because the search is so limited and only reveals the presence
of contraband, there is no 4th amendment search.
o
The dog sniff (IN THIS CASE)  critically limited to exposure of P’s luggage, which was located
in a public place, to a trained dog,  did not constitute a search.

Information was obtained in a comparatively nonintrusive manner (exterior of the
luggage, it was not opened) and the information revealed by the test was extremely
limited (the sniff discloses only the presence or absence of narcotics, a contraband item)
B. Dog Sniffs and Motor Vehicle Searches
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Illinois
v.
Caballes
(2005)
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Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drugdetection dog to sniff a vehicle during a legitimate traffic stop.
o A dog sniff conducted during a concededly lawful traffic stop that reveals no information other
than the location of a substance that no individual has any right to possess does not violate the
Fourth Amendment.
Police officer stopped responded for speeding (legal traffic stop to investigate) and if the violation
is confirmed, the officer will make a decision (warning, ticket, etc). Officer radioed to report the
stop, and a second officer come over with his narcotics dog. When second officer arrived,
respondent was in the first officer’s car and while he was in the process of writing a warning
ticket, the dog was walked around respondent’s car and alerted at the trunk.
The amount of time the officer is allowed to seize the driver is the amount of time needed to
complete the handling of the traffic violation.
As long as the police do not extend the valid stop beyond the time necessary to issue a ticket and
conduct ordinary inquiries incident to such a stop, it does not violate the Fourth Amendment to
allow a narcotics detention dog to sniff the car.
Fourth Amendment was not violated when, during a routine traffic stop, a police officer walked a
narcotics detection dog around defendant’s car and the dog alerted to the presence of drugs, even
though before the dog alerted, the officer did not have a reasonable and articulable suspicion that
would justify a search; the sniff is not a search.
Court said the rule that a dog sniff is not a search applies because the traffic stop was carried out
expeditiously as possible and the car was seized legally when sniffed, and since a dog sniff is not a
search, we hold that no 4th Amendment violation occurred.
As long as the traffic stop is not impermissibly extended, a drug sniff by a dog that does not make
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a stop be longer than reasonably required, can be conducted even though there is no suspicion that
there are drugs in the car (even without warrant or probable cause).
A canine inspection of an automobile during a lawful traffic stop, do not violate the “reasonable
expectation of privacy” described in Katz.
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Rodriguez
v. United
States
(2015)
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Whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop.
o We hold that a police stop exceeding the time needed to handle the matter for which the
stop was made violates the Constitution’s shield against unreasonable seizures.
o A seizure is justified only by a police observed traffic violation, therefore, “become[s]
unlawful if it is prolonged beyond the time reasonably required to complete th[e]
mission” of issuing a ticket for the violation.”
If the dog sniff is conducted after the time required for completion and handling of the traffic stop
is over, and the dog sniff is possible only because the citizen in the car has been seized (held by
police beyond the time of the traffic stop so the dog could arrive) --- that is an impermissible
seizure and an impermissible dog sniff and in effect, an impermissible search.  Application of
Cabelles
It was a violation of the Fourth Amendment when a police officer issued the D a warning ticket,
thereby completing the traffic stop, and then detained the D for 7 to 8 minutes to conduct a dog
sniff.
Canine drug alert at D’s front door could not be the basis of probable cause to obtain a search
warrant; the sniff constituted an unconstitutional warrantless search.
Majority draws a bright line --- when traffic stop is over, have to let the people go without reasonable
suspicion or probable cause.
C. Searches of Mobile Phones

Riley v.
California
(2014)
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
Two cases raise a common question: Whether the police may, without a warrant, search digital
information on a cell phone seized from an individual who has been arrested.
o First case – smart phone; second case – flip phone  In both cases, the devices hold
quantities of information and types of information that are so extensive that a warrant is
required to search the contents of these phones unless there is an exigent (emergency)
circumstance.
o First case – R was stopped by PO for driving with expired registration tags. During the
stop, the PO learned that R’s license had been suspended. Pursuant to department policy,
the car was impounded, and an investigatory search was conducted which turned up
weapons. He was then arrested for possession of concealed and loaded firearms.

Officer searched R incident to arrest and found his smart phone.
o Second Case – PO observed W making a drug sale from a car. W was arrested, and at the
police station W’s phones were taken from her person.
Both cases concern the reasonableness of a warrantless search incident to a lawful arrest (an
exception to the warrant requirement) – search for weapons that could be used against the officer
and evidence that can be tossed away.
o In the context of modern cell phones and digital data  digital data cannot itself be used
as a weapon to harm an arresting officer or to effectuate the arrestee’s escape 

Law enforcement officers remain free to examine the physical aspects of a phone
to ensure that it will not be used as a weapon, however data on the phone
cannot endanger anyone.
MUST have a warrant to justify looking at the contents and data in the phone.
Search incident to arrest is reasonable for traditional physical objects (weapons, evidence).
Court held the government may not access a smartphone’s internal dataor, one might say, its
contentswithout a warrant.
D. GPS Monitoring of the Person
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
Grady v.
North
Carolina
(2015)
The Fourth Amendment prohibits only unreasonable searches.
o Reasonableness of a search depends on TOTALITY OF THE CIRCUMSTANCES, including the
nature and purpose of the search and the extent to which the search intrudes upon reasonable
privacy expectations.
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Wearing a GPS monitor constitutes a search under the Fourth Amendment.
Think U.S. v. Jones – placing a GPS tracker on the bottom of a vehicle constituted a search under
the 4th A.
Chapter 3  The Warrant Preference Theory and Warrant Exceptions
A. The Warrant Preference Theory

Probable Cause  facts and circumstances within their [the officer’s] knowledge and of which they had
reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the
belief that an offense has been or is being committed.
o Officer has to know facts and can draw inferences from those facts to justify an intrusion into another
person’s life for law enforcement purposes.
o Facts and circumstances that would lead a reasonable officer to believe that a crime has been
committed.
(1) ENTRY INTO THE HOME



Payton
v. New
York
(1980)


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

Evidence is suppressed absent a search warrant, arrest warrant, consent, and exigent
circumstances.
Investigating murder that occurred 2 days prior – they investigated for two days, meaning they
also had time to get a warrant (but they didn’t); PO busted in without a warrant and nobody was
there. They found a gun shell casing in plain view that was seized.
Holding: SCOTUS held that the Fourth Amendment prohibits the police from making a
warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony
arrest.
When police seek to enter a person’s own home in order to arrest him/her, they must (absent
consent or an emergency) have an arrest warrant.
Constitutional requirements for police to enter home to arrest D  a search warrant or arrest
warrant.
o Arrest Warrant – probable cause to believe the individual is the murder
Holds that entry into a home is illegal unless authorized by a search or arrest warrant, consent, or
an exigency.
Probable Cause is Necessary 
o If there is sufficient evidence of a citizen’s participation in a felony to persuade a judicial
officer that his arrest is justified, it is constitutionally reasonable to require him to open
his doors to the officers of the law.
o For Fourth Amendment purposes, an arrest warrant founded on probable cause
implicitly carries with it the limited authority to enter a dwelling in which the suspect
lives when there is reason to believe the suspect is within.
o The police must have a warrant to arrest an individual in his own home, absent exigent
circumstances or valid consent to enter the arrestee’s home.
NOTE 
o
What Fourth Amendment interest does a search warrant protect?  Protects privacy;
protects your home from an unwanted intrusion (either a privacy interest or a property
interest in your home, for example).
o What Fourth Amendment interest does an arrest warrant protect?  Protects liberty
interest of the person named in the arrest warrant; designed to protect your constitutional
10
right/liberty to move around and be free from restriction.
Legally Enter Home Without a Warrant?

Exigent Circumstance  police can enter without a warrant if there is an exigent circumstance.
o EX: If Police had reasonable belief that the individual was flushing his drugs down the toilet, they
can break in without a warrant to stop the destruction of evidence (McArthur case)
Entering the Home

You can enter the home:
o With an Arrest Warrant
o With a Search Warrant
o Exigency
o Consent [person has to have authority over the place to give consent]

Without any of these, police cannot enter a home without violating the 4 th Amendment
(2) SEIZURES OF THE HOME



Illinois v.
McArthur
(2001)







POs accompanied wife while she removed her things from McArthur’s trailer.
Wife told officers they should look inside the trailer home because McArthur had drugs in there.
PO asked McArthur to enter trailer home and he said no.
While PO sent another PO to get a search warrant, PO made McArthur wait outside the trailer till
the search warrant got back - police kept suspect from reentering his trailer alone for two hours
while an officer obtained a warrant
McArthur could not reenter his trailer home without being accompanied by an officer.
Court believed the warrantless temporary seizure of the home/premises was reasonable because
(1) PO had probable cause to conduct the search for contraband, (2) the PO had good reason to fear
that, unless restrained McArthur would destroy the drugs, (3) the PO made reasonable efforts to
reconcile their law enforcement needs with the demands of personal privacy (waited till they got
the warrant), and (4) the length of time of the restraint was limited (2 hours here).
Reasonable restriction of the premises is OK to preserve the situation and get a warrant.
Police may secure the premises for a reasonable time to enable officers to obtain a warrant when
the police have reason to believe that failure to do could result in the destruction of evidence.
Permits officers to seize a home to prevent residents who are present from entering and destroying
the evidence, while other officers secure a search warrant  if they have probable cause. (Officers
using that strategy can simply eliminate the Vale dilemma).
Detention to Obtain a Warrant  If the police have probable cause to believe that a suspect has
hidden drugs in his house, they may, for a reasonable time, prohibit him from going into the house
unaccompanied so that they can prevent him from destroying the drugs while they obtain a search
warrant.
A temporary seizure, supported by probable cause, designed to prevent the loss of evidence while
the police diligently obtain a warrant in a reasonable period of time is permissible.
B. Seizures
(1) ARRESTS: WARRANTS AND PROBABLE CASE


NEED PROBABLE CAUSE to arrest for a felony without a warrant.
o Arrest for felonies can be made, whether committed in the officer’s presence or not, without a
warrant.
NEED PROBABLE CAUSE to arrest for a misdemeanor.
o When is a warrant NOT needed to arrest for a misdemeanor? If the misdemeanor is occurring in
the officer’s presence.
o When IS a warrant needed to arrest for a misdemeanor? When the misdemeanor occurred in the
past.
11

NOTE: Arrests in Public Places vs. Arrests in the Home


For a FELONY, probable cause is all that is necessary for an arrest – no warrant required.
A police officer may arrest without warrant an individual who, believed by the officer upon
reasonable cause to have been guilty of a felony.
The Warrantless Manner of Arrests
o If police officer believes defendant’s have probable cause that they committed a felony,
they do not need a warrant.
o Arrests can be made for felonies whether committed in officer’s presence or not without a
warrant.
o If police officer sees a misdemeanor occurring in their presence, they do not need a
warrant for an arrest.
o If arresting for a misdemeanor that has occurred in the past, police officer needs a
warrant.
Warrant generally not required  in contract to the rule for searches, police generally need not
obtain a warrant before arresting a person in a public place, even if they have time to get a
warrant.
Permits police to arrest without prior judicial authorization so long as the arrests occurs in a public
place and there is probable cause to believe the subject has committed a crime.

United
States
v.
Watson
(1976)



Maryland
v. Pringle
(2003)



3 AM, officers stopped a car for speeding occupied by 3 men; driver consented to a search of the
car. PO found money and cocaine.
Nobody claimed ownership of money or cocaine, under these circumstances, the officers had PC to
believe that P, alone or jointly with the other occupants, committed the crime of possession of
cocaine.
When unclear who did it and officers have PC to believe crime occurred, all can be arrested.
Ybarra v. Illinois (1979) 
o Police officers obtained a warrant to search a tavern and its bartender for evidence of possession of a
controlled substance. Upon entering, the officers conducted patdown searches of the customers present
in the tavern, including Y.
o The search warrant did not permit body searches of all the tavern’s patrons and that the police could
not pat down the patrons for weapons, absent individualized suspicion.
o “A person’s mere propinquity to others independently suspected of criminal activity does not, without
more, give rise to probable cause to search that person. Where the standard is probable cause, a search
or seizure of a person must be supported by probable cause particularized with respect to that person.
This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there
exists probable cause to search or seize another or to search the premises where the person may happen
to be.”
o Execution of a Warrant – Search of Persons Found on Premises – A search warrant does not authorize
the police to search persons found on the premises who are not named in the warrant.
o Independent justification is needed to search persons not named in a search warrant, mere proximity to
a named person does not supply such justification.
o Merely being in the presence of a person who is a subject of an investigation does not make you subject
to a search.
o “A person’s mere propinquity to others independently suspected of criminal activity does not, without
more, give rise to probable cause to search that person. Where the standard is probable cause, a search
or seizure of a person must be supported by probable cause particularized with respect to that person.
This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there
exists probable cause to search or seize another or to search the premises where the person may happen
to be.”
o The search warrant did not permit body searches of all the tavern’s patrons and that the police could
not pat down the patrons for weapons, absent individualized suspicion.
12
C. Exceptions to the Warrant Rule
(1) CONSENT

When there is valid consent (VOLUNTARY consent), in essence, removes the 4 th Amendment restrictions
for police conduct  aka don’t need to have P.C., no warrant, etc.
o Once someone consents, the scope of the officer’s intrusion is defined by what a reasonable officer
would interpret the consent to mean.


Schneckloth
v.
Bustamonte
(1973)








Illinois v.
Rodriguez
(1990)





Constitutional question: definition of “consent” in the Fourth and Fourteenth Amendment
context.
2:40 AM, PO stopped a car containing multiple passengers because a headlight and license plate
light were out. Driver did not own the car and driver did not have an ID. PO asked if they could
search the car and got consent.
The standard for consent is voluntariness – do not have to be informed of right to refuse.
o The failure by police to inform the person from whom consent is sought that she has the
right to withhold consent does not invalidate the consent.
Constitutional Test  For consent to be valid, it must be voluntary, judged by the totality of the
circumstances in which the officer is making sure that the suspect has the knowledge to say “no” –
this is ONE factor to be considered along with other factors
Before Miranda, courts interpreted voluntariness of confessions by using the totality of the
circumstances test
5th and 6th Amendment Waiver – give up your right to counsel under 6th amendment, and the D
has to testify to the waiver test. To go up to 5 th amendment right not to be coerced into confession
is the standard is the waiver test.
o The police may conduct a valid warrantless search if they have a voluntary consent to do
so. Knowledge of the right to withhold consent, while a factor to be considered, is not a
prerequisite to establishing a voluntary consent.
No waiver under constitutional standard is required as it is required for 5th and 6th Amendment
rights  she must make a knowing, intentional, intelligent, and voluntary relinquish of the rights
to give up those rights.
Whether a warrantless entry is valid when based upon the consent of a third party whom the
police, at the time of the entry, reasonably believe tot possess common authority over the
premises, but who in fact does not do so.
Reliance on Illegal consent can be valid if officers were reasonable in belief.
The third party’s consent may be valid even though she lacks actual authority if the police
reasonably believe that she has such authority (aka a warrantless entry of a residence is valid when
it is based on the consent of a person whom the police, at the time of entry, reasonably (but
incorrectly) believe has common authority over the premises.)
Court focused on what the officer’s perceptions were – the court ruled that because the officers
were reasonable in believing that the woman had lived in the apartment and because of the facts, it
was reasonable for the officers to believe that she in fact had actual authority to consent (even
though she did not).
Standard  Would the facts available to the officer at the moment warrant a man of reasonable
caution in belief that the consenting party had authority over the premises?
o If not, then warrantless entry without further inquiry is unlawful unless authority
actually exists.
o But if so, the search is valid.
Don’t have to be correct but has to be reasonable.
A warrantless entry of a residence is valid when it is based on the consent of a person whom the
police, at the time of entry, reasonably (but incorrectly) believe has common authority over the
premises.
In the case here: Mrs. R did not live there, was not on the lease, moved out, and stole the key
without Mr. R’s knowledge  aka no authority over the apartment and her consent was invalid.
13

4th Amendment searches based upon consent of a third party  the court has traditionally always
demanded that the third party establish some legal basis for giving that consent.
o The person had actual authority over the place or property to be searched – they have equal
authority with the person who is the subject to the search, they both live in the apartment, or these
has been a giving of authority by the person whose property is being searched.

Bailor and bailee – property law bailment – property law defines the rights of the bailee


Florida
v.
Jimeno
(1991)



What would an objectively reasonable officer think was the scope of the consent?
Whether a criminal suspect’s Fourth Amendment right to be free from unreasonable searches is
violated when, after he gives a police officer permission to search his automobile, the officer opens
a closed container found within the car that might reasonably hold the object of the search.
SCOTUS held that it is not (no rights violated).
o The Fourth Amendment is satisfied when, under the circumstances, it is objectively
reasonable for the officer to believe that the scope of the suspect’s consent permitted him
to open a particular container within the automobile.
o A suspect can limit the scope of his search, but if his consent would reasonably be
understood to extend to a particular container, the 4 th Amendment provides no grounds
for more explicit authorization.
Although a search is limited to the area to which consent applies, the search may extend to areas
that a reasonable person would believe it extends. For example, consent by a driver to search his
car for drugs extends to a closed container within the car that could contain drugs.
“The standard for measuring the scope of a suspect’s consent… is that of ‘objective reasonableness
 what would the typical reasonable person have understood by the exchange between the officer
and the suspect?”
On the facts here, the Court maintained that “it was objectively reasonable for the police to
conclude that the general consent to search J’s car included consent to search containers within the
car which might bear drugs.”
o Because he did not restrict the scope of the search, the officer was reasonable to believe he
could search the container in the car.
(2) PLAIN VIEW





The elements of the plain view exception can be condensed into the following ideas: If an officer is in a place
where it is lawful for him/her to be, she is entitled to see/view/look at anything that is in plain view.
She need not avert her eyes or ignore what she sees.
But she cannot seize anything she sees unless she has probable cause to believe the item is related to
criminality (i.e., it is contraband) before she physically exercises control of it.
In addition, merely viewing the object does not obviate other constitutional limits on searches and seizures.
REMEMBER… Katz majority: what a person knowingly exposes, even in the privacy of his own home, is
not protected by the 4th Amendment (aka the 4th Amendment does not apply when things are in plain view)
PLAIN VIEW DOCTRINE – permits an officer to make a warrantless seizure of incriminating items that he/she comes upon
while otherwise engaged in a lawful arrest, entry, or search.

Coolidge v. New Hampshire (1971) (plurality)  (3 parts)
(1) Officer is in a place where they had a lawful right to be – the officers have to be in a place where they are
lawfully entitled to be when they make the observation.
(2) It was immediately apparent that what the officer sees is associated with criminality
--- Arizona v. Hicks defines what immediately apparent means – it means today: probable cause 
if the officers see what they see, they have probable cause to think that what they see if contraband,
or a crime, or something they are entitled to seize.
(3) Inadvertent discovery [OVERRULED IN Horton] – the officers could not have expected to find what they
found in plain view would actually be there – replaced by the standard plain view doctrine  if officers
had a warrant and were lawfully there and what they saw in plain view (while exercising authority under
warrant) could be seized if there was probable cause to associate with criminality.
14
(a) Probable Cause and the Plain View Exception

Whether the “plain view” doctrine found in Coolidge may be invoked when the police have less
than probable cause to believe that the item in question is evidence of a crime or is contraband.
PO entered Hicks’s apartment without a search warrant because a bullet had been fired through
Hicks’s floor into the apartment below, wounding a man. The officers entered “to search for the
shooter, for other victims, and for weapons.”
Hicks did not consent, they did not have a warrant – only justification to enter is exigency (danger
to the public).
Probable cause is required to invoke the plain view doctrine.
While investigating a shooting in an apartment, Officer spotted two sets of expensive stereo
equipment which he had reasonable suspicion (but not probable cause) to believe were stolen.
Officer moved some of the components to check their serial numbers. Such movement constituted
an invalid search because of the lack of probable cause.
The scope: they can search for the guns and people (if danger is someone shooting guns or injuring
people – the police who enter to deal with that exigency are allowed to look for people and
weapons) – aka, anywhere a person or weapon can be, the government can look.
Justice Scalia – this may not be much of a search, but a search is a search  when the officer is
taking action to obtain information that exceeds the scope of the constitutional justification of
entering the home, that is a 4th Amendment search and in this case, it is unreasonable.
The majority is really applying the default rule: the warrant rule

Arizona
v. Hicks
(1987)






(b) Inadvertence and Probable Cause



Majority opinion
Rejects the (3) requirement of Coolidge PVD test (discovery has to be inadvertent)
Even though inadvertence is a characteristic of most legitimate “plain view” seizures, it is NOT a
necessary requirement.

PO get warrant that allows them to search for coins and money – because the scope of the search,
under the warrant, is defined by the objects the PO are entitled to search for, they can search
anywhere where coins and money could be.

Therefore, when the PO see the stun guns and weapons in PLAIN VIEW, they are entitled to be
looking there, they are allowed to seize them, EXCEPT in this case, the officers were EXPECTING
to find them – under Coolidge, since the officers were expected to find them, they should have had
the weapons listed in the warrant for what they were allowed to search for – aka the search was
not inadvertent (and letting them claim PV ruins the default rule.
After this case – inadvertence requirement is no longer there – only 2 requirements for the PVD
exceptions to the warrant rule.
Horton v.
California
(1990)
(3) EXIGENT CIRCUMSTANCES

NOTE: When the police are acting (entering the home) under the justification that there is an exigency, the
nature of the exigency defines the scope of the permissible search that they can properly engage in without a
warrant.
(a) Fleeing Felons


“Fleeing Felon Exigency Rule”
PO had probable cause to believe that H had committed an armed robbery moments earlier and
had entered a particular house. Officers hurried to the house, knocked on the door and were
allowed to enter without objection by a woman living in the house. The Court upheld the officers’
warrantless entry of the house to search for and arrest H on the basis of the “exigencies of the
15
Warden
v.
Hayden
(1967)





situation making the course imperative.”
o Scope of Exigency = look for cash and weapon (because of armed robbery)
If the exigencies merit it, police office may search house.
Exigencies of the situation made the course of action imperative.
o The 4th Amendment does not require police officers to delay in the course of an
investigation if to do so would gravely endanger their lives or the lives of other people.
o The permissible scope of search must be as broad as may reasonably be necessary to
prevent the dangers that the suspect at large in the house may resist or escape.
The exigency justified the warrantless entry, and the nature of exigency defined the legitimate
scope of the warrantless search after the entry.
o The police had a right to search any place in the home where the armed robber, anyone
else who might interfere with the arrest, and/or weapons, might be found.
o But the right to conduct the exigency search ended as soon as the robber was discovered
and the threat to the officers’ safety ended.
There must be a nexus between the item to be seized and the criminal behavior.
Vale v. Louisiana (1970) 
o Arrest outside of the home, without more, cannot provide its own exigent circumstance justifying the
search of the home.
o Government must be able to point to the facts that show, that if they are going to search without a
warrant, that the evidence was in the process of being destroyed.
o The arrest warrant protects the liberty interest and does not justify intrusions into the home without a
search warrant.
o SCOTUS has never overruled Vale, but other decisions have affected its significance  i.e., Illinois v.
McArthur permits officers to seize a home to prevent residents who are present from entering and
destroying the evidence, while other officers secure a search warrantif they have probable cause
o Adopted the rule: government must be able to point to the facts that show, that if they are going to
search without a warrant, the evidence was in the process of being destroyed.
(b) Danger of Injury or Death

Brigham
City v.
Stuart
(2006)




Whether police may enter a home without a warrant when they have an objectively reasonable
basis for believing that an occupant is seriously injured or imminently threatened with such an
injury. THEY MAY.
What is essentially, the exigency exception to the warrant rule? AKA the justification for the entry?
Can the evidence obtained as a result of that entry to the home be admitted at trial?
o If the entry is not legal, the charges will be dismissed.
For an exigency, just need an objectively reasonable basis.
The officers had an objectively reasonable basis for believing both that the injured adult might
need help and that the violence in the kitchen was just beginning.
o Nothing in the 4th Amendment required them to wait until another blow rendered
someone “unconscious” or “semi-unconscious” or worse before entering.”
Emergencies that threaten health or safety if not immediately acted upon will justify a warrantless
search.
o This includes situations where the police see someone injured or threatened with injury.
(c) Danger of Loss of Evidence

Missouri
v.
McNeely
(2013)
Whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that
justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood
testing in all drunk-driving cases.
o HELD, consistent with general Fourth Amendment principles, that exigency in this
context must be determined case by case based on the totality of the circumstances. (no
per se exigency)
16


Piercing the skin of a person to remove part of that person’s body so that person’s body can be
examined for use against that person is a 4th Amendment search  intruding under the skin of a
physical person is a 4th Amendment search.
Schmerber v. California (1966) 
o SCOTUS upheld a warrantless blood test of an individual arrested for driving under the influence of
alcohol because the officer “might reasonably have believed that he was confronted with an emergency,
in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction
of evidence.
o Schmerber was arrested at a hospital for driving under the influence of alcohol. On the order of the
arresting officer, a physician took a blood sample from S to test for alcohol content.
o There was probable cause for the arrest, but there was a search and seizure of blood because there was
no warrant.
o The warrantless taking of the blood (piercing the skin/intruding the skin) was justifiable on the ground
that the evidence  the alcohol in the blood stream  would have been lost if the police had been
required to obtain a warrant  The evidence was in the process of being destroyed as Schmerber’s
body eliminated it from its system.

 AKA an exigency justified dispensing with the warrant requirement.
 Officers must get a warrant before they can intrude on an individual’s body unless there are definite
unusual extraordinary circumstances which make it impossible to get a helpful blood sample after you
obtain a warrant.
D. Automobiles and Containers
(1) SEARCHES AND AUTOMOBILES

Automobile Exception – exception only to the requirement of a search warrant – NEED PROBABALE
CAUSE.
o The scope of a warrantless search of an automobile is defined by the object of the search and places
in which there is probable cause to believe that it may be found.

Carroll
v.
United
States
(1925)
Searches Conducted Pursuant to a Warrant – Showing of Probable Cause – A warrant will be
issued only if there is probable cause to believe that seizable evidence will be found on the
premises or person to be searched.

Automobile Exception is announced in this case  exigency-based case  inherent mobility of the
vehicle threatens loss of evidence and escape of criminals and it is important to allow a
warrantless search as long as there is probable cause.
o (1) inherent mobility of the vehicle
o (2) Reasonable Expectation of Privacy standard (Katz)

Recognizing the impracticability of obtaining a warrant to search a car stopped by police on the
open road, this case authorized warrantless search where the officers have probable cause to
believe that there is contraband or other evidence of criminal activity in the vehicle.

Traditional definition of probable cause  “if the facts and circumstances before the officer are
such as to warrant a man of prudence and caution in believing that the offense has been
committed, it is sufficient.”

If the officers have probable to cause to believe contraband, instrumentality of crime, stolen
property, are in the vehicle, they are entitled to seize the vehicle and search it for the things they
have probable cause to believe are in the vehicle. AKA no warrant is required. (IS THIS TRUE
LOL?)
PROBABLE CASE – Court creates a formal definition of probable cause – “If the facts and
circumstances before the officer are such as to warrant a man of prudence and caution in believing
that the offense has been committed, it is sufficient.”

Federal officers in this case are prohibition officers – going after illegal alcohol distribution – they
develop reason to suspect that Carroll and his buddies were bringing in alcohol from across the
17
bridge and distributing it throughout the local area.

Collins v. Virginia
o Privacy protections given to a home including curtilage.
o Nothing in this opinion changes the automobile exception – reasonable expectation of privacy and
mobility survive – but the Court holds – the officer’s intrusion into the curtilage without a warrant,
consent, or exigency are two different issues under the 4 th Amendment.
o Same protection of home (need warrant, consent, or exigency), extends to the curtilage of the home.
o Automobile exception allows a search of the vehicle BUT DOES NOT allow a trespass to get to the
vehicle.
(2) IS IT A VEHICLE OR A HOME?

NOTE: Under Payton v. New York, the officers need what to justify entrance into a home?
o A warrant – arrest or search, or
o Exigency, or
o Consent

SPECTRUM OF FOURTH AMENDMENT PROTECTION
o NOTE: Reasonable Expectation of Privacy Test was adopted for searches of automobiles
o MOST PROTECTED: house
o LESSER THAN A HOME, MORE THAN A CAR PROTECTED: a closed opaque container (receives
a higher expectation of privacy than a car under the automobile exception)
o LESSER PROTECTED: a vehicle (lesser expectation of privacy attaches to a vehicle than to a home)


California
v. Carney
(1985)







Whether law enforcement agents violated the Fourth Amendment when they conducted a
warrantless search, based on probable cause, of a fully mobile “motor home” located in a public
space.
There was probable cause to believe that contraband was inside the vehicle – the eye witness
involved in the transaction involving marijuana.
In the case here, the officers do not have a warrant, and do not have consent --- the only thing that
would justify their entrance under typical rules would be an exigency.
o Under Carroll – the automobile exception – exigency of the mobility of a vehicle in
transit, would not apply here.
Case involved a warrantless search of a motor home located in a public place.
Court holds that the search is not unreasonable.
Majority holds that this is not a home for 4th amendment automobile exception purposes; aka
holds it is a vehicle.
o It is capable of being driven on the street, it is inherently mobile even though it is not in
transit at the time of the search.
Court holds that we have to decide if this RV is a home (entry is only justified with warrant,
consent, exigency + PC) or if it is a vehicle subject to the automobile exception?
Automobile Exception – Motor Homes – The automobile exception extends to any vehicle that has
the attributes of mobility and a lesser expectation of privacy similar to a car.
SCOTUS has held that it extends to motor homes if they are not at a fixed site.
(3) CONTAINERS IN AUTOMOBILES

NEW JUSTIFICATION  did not overrule Carroll exigency concept but added a second justification.
o THINK: highest protection is afforded to the home, automobiles are toward the other end of the
spectrum (but not all the way at the other end); the car has a significantly reduced expectation of
privacy because of its exposure to the public (most vehicles have a lot of glass, aka people can look
in).
o Does not inherently apply to containers in automobiles  (glove box, trunk, covered storage area
of hatchback of vehicle – all not inherently visible), but a container that is separate and
18
independent from the vehicle (brief case, brown paper bag, green opaque bag), all containers,
under any 4th Amendment theory, carry a privacy expectation that is separate and distinct from
where they are.

Placing your backpack in the back seat of your car: people can see the backpack through
the window, but you have not exposed the contents of the backpack.

A car is not a house, and for 4th Amendment purposes, a closed opaque container is not a car (receives a
higher expectation of privacy than a car under the automobile exception.
o All containers for 4th Amendment purposes are equal.

Rules when officers seize a vehicle and want to search containers in it?
o 3 cases: 1977, 1979 & 1980 that lay the foundation for Ross case (1982).

United States v. Chadwick (1977) 

Involved the warrantless search of a 200-pound footlocker secured with two
padlocks.

Dog alerts gave the agents probable cause, but they did not have a warrant, and
they did not have consent --- don’t have any relevant exception to allow them to
open the footlocker while it is sitting on the ground at the train station, so the
agents waited till the footlocker was placed in the trunk of Chadwick’s vehicle.

SCOTUS held: illegal search because closed opaque luggage is not a car
o Privacy in the contents of the container  have to distinguish between
vehicles and the containers found in vehicles.

Officers can search a vehicle without a warrant if they believe that there is
probable cause.

Officers can seize the vehicle, impound it, take it, but then they have to get a
warrant  there is a high expectation of privacy.

Containers found in vehicles can be seized if there is probable cause.

When police unexpectedly encounter a container that they believe holds criminal
evidence, and assuming that no other warrant exception applies, police may seize
the container without a warrant. However, they may not open it until they
convince a magistrate that they have probable cause to search it.

Unanimously rejected automobile exception argument  the footlocker wasn’t
actually linked (attached to the car), it was conveniently placed in the car; the
inherent mobility of the vehicle was not really posing a threat, the reasonable
expectation of privacy test adopted for searches of automobiles -- a container does
not have the same expectation of privacy as the vehicle  container has a
heightened expectation of privacy, not as much as a home, but more than a car.

Officers had probable cause that the container contained drugs  probable cause
attached to the footlocker.

Arkansas v. Sanders (1979) 

Officers had probable cause  the probable cause was attached to the suitcase; it
was just a coincidence that the suitcase was inside the taxi.

Police did not seize the suitcase until it was placed in the vehicle – a taxicab at
the airport – then the police allowed the taxi to drive away.

Because the officers had probable cause, they were entitled to seize the suitcase,
but need to get a warrant to open it and get inside to the contents.

Robbins v. California (1981) 

Probable cause attached to the vehicle.

Even though probable case attached to the vehicle, not just container, the officers
were still required to get a warrant before they could look inside (but they could
just seize it).
o All 3 cases focus on the attribute of containers that support the idea of 4th amendment privacy that
should be protected in a way that does not apply to automobiles.
o All 3 cases emphasize the warrant preference rule --- all searches and seizures conducted without
the authority of a warrant are presumed to be unreasonable, and therefore, unconstitutional.
o In all cases, the court held that the officers needed to get a warrant before they could open the
container even though they had probable cause to believe the container was a repository for drugs.
19

It was the probable cause that the container had drugs that justified the warrantless
seizure of the container, but it did not permit a warrantless search of the contents 
because just like a house is not a car, the containers are not a car.
Chadwick & Sanders were not overruled – if the officers decided they had PC to search the entire vehicle, they could
search anything; but if the PC only attached to certain containers, they had to seize the container and then obtain a
warrant.
Whether PC attached to entire vehicle or specific containers determined whether a warrant was needed or not.
***If you have probable cause, you can search the car and if you see a container you can seize the container, but you
cannot search it.




United
States
v. Ross
(1982)






LAW TODAY!  Did not overrule Chadwick, did not overrule Sanders, but did overrule Robbins.
Consider the extent to which police officers – who have legitimately stopped an automobile and
who have probable cause to believe that contraband is concealed somewhere within it – may
conduct a probing search of compartments and containers within the vehicle whose contents are
not in plain view.
o HELD: that they may conduct a search of the vehicle that is as thorough as a magistrate
could authorize in a warrant “particularly describing the place to be searched.”
PO had PC to search an entire car for contraband.
Officers have probable cause to believe Ross is selling Dope if they can confirm the tip. They ride
out to location to confirm the vehicle matches the description, and there is a man selling out of the
vehicle. There was no activity when they got there so they waited and when they get back, Ross is
driving away. Officers followed him, and stopped him, searched the vehicle and in the trunk, they
find money and drugs (opaque bags and container). PO had probable cause to search an entire car
for contraband. During the search, they discovered a closed paper bag in the trunk, which they
opened without a warrant.
o Under the 3 cases, the officers should have seized the containers, taken them to a judge
and sought a warrant authorization to open them. Here, like Robbins, probable cause
attached to the vehicle, they didn’t know about the containers, they only had reasonable
suspicion that he was selling dope out of the car from the tips and records.
SCOTUS majority overruled Robbins and held that if the officers have probable cause to search the
vehicle for drugs, they can search anywhere in the vehicle where drugs might be contained
(including glove box, trunk, areas under the seats, and any closed containers found in the vehicle
that could contain the drugs (because there was probable cause to believe there was drugs in the
car).
o Scope of the permissible search is defined by the object of the search  therefore, if the
officers had a warrant that authorized them to search the car for drugs, the officers could
search anywhere in the car where the drugs might be found (aka anywhere and
everywhere, certainly a container).
o Scope of a search within a vehicle that is justified by probable cause to believe that there
are drugs in the vehicle, can be just as extensive as if a judge had issued a warrant.
Opinion then goes on to equate the officer’s PC to a magistrates’ PC
o Officers determination that there is PC to search in the vehicle carries the same weight as
the decision by a judge that there is PC for 4 th Amendment purposes.
Automobile Exception – Scope of Search – If the police have full probable cause to search a
vehicle, they can search the entire vehicle (including the trunk) and all containers within the
vehicle that might contain the object for which they are searching.
Difference between Sanders and Chadwick  In Ross, the PC focused on an automobile, in which
a container coincidentally was discovered; in Chadwick and Sanders, the PC was directed at a
container, later coincidentally placed in a car.
Court determined – “if probable cause justifies the search of a lawfully stopped vehicle, it justifies
the search of every part of the vehicle and its content that may conceal the object of the search.”
o Clarified the scope of the Carroll doctrine as properly including a “probing search” of
compartments and containers within the automobile so long as the search is supported by
probable cause.
Distinguished the Carroll doctrine from the separate rule that governed the search of closed
20
containers.
o Separate rule unique to luggage and other closed packages, bags, and containers
[Chadwick]
SCOTUS rejected Chadwick’s distinction (in Ross) – concluded that the expectation of privacy in
one’s vehicle is equal to one’s expectation of privacy in the container and noted that “the privacy
interests in a car’s trunk or glove compartment may be no less than those in a moveable
container.”




California
v.
Acevedo
(1991)







Case requires to consider the so-called “automobile exception” to the warrant requirement of the
Fourth Amendment and its application to the search of a closed container in the trunk of a car.
Police may search an automobile and the containers within it where they have probable cause to
believe contraband or evidence is contained in the car.
1) If P.C. attaches to the car, can search anywhere in the car including containers.
Whether the Fourth Amendment requires the police to obtain a warrant to open the sack in a
moveable vehicle simply because they lack probable cause to search the entire car. WE
CONCLUDE THAT IT DOES NOT.
Automobile Exception – Scope of Search – Limited Probable CauseContainers Placed in
Vehicle – If the police only have probable cause to search a container (recently) placed in a vehicle
they may search that container, but the search may not extend to other parts of the car.
The SC erased what it described as the “curious line between the search of an automobile that
coincidentally turns up a container [Ross] and the search of a container that coincidentally turns
up in an automobile [Chadwick-Sanders].
If officers have PC to search a vehicle, they could search anywhere in the vehicle that might hold
the object of the search; but if the PC only attached to the specific container in the vehicle, the
officer is still entitled to search that container without getting a warrant. (Does not matter whether
the PC attached to the vehicle or the PC attached to the specific container  automobile exception
allows the search of the container in either circumstance).
Police observed A place a small paper bag in the trunk of a vehicle and drive away.
Police had PC to believe that the bag contained drugs; they had no reason to believe that the car
(beyond the bag) contained contraband.
On these facts, the PO had PC to search only the trunk to look for the paper bag.
If the container is put in a vehicle and it drives away – law permits the car to be seized, but the
container to be searched. Does not matter whether the PC is attached to the car or container.
Officers can search the container. Acevedo changed the law from what it was under Ross and
Chadwick.
(4) SEIZURES OF AUTOMOBILES AND THEIR OCCUPANTS



Whren
v.
United
States
(1996)


Whether the temporary detention of a motorist who the police have probable cause to believe has
committed a civil traffic violation is inconsistent with the Fourth Amendment’s prohibition against
unreasonable searches and seizures unless a reasonable officer would have been motivated to stop
the car by desire to enforce the traffic laws.
Police in a high drug crime area stopped D’s automobile after observing D wait a long time at an
intersection, abruptly turn without signaling, and speed off at an unreasonable speed.
Whether, in evaluating the Fourth Amendment reasonableness of a traffic stop, the subjective intent of the
police officer is a relevant consideration? HELD: NO the making of a traffic stop . . . is governed by
the usual rule that probable cause to believe the law has been broken outbalances private interests
in avoiding police contact.
Establishes for the first time, with real clarity, that SCOTUS has held that an objective
standard/test is to be used to determine the constitutionality of a seizure carried out by law
enforcement officers  officers acting under probable cause  do they possess/know
facts/circumstances that permitted the decision that there is PC justifying a seizure under the 4 th
Amendment.
Probable Cause to have believed that a violation occurred  does not matter that the officer has
stopped the vehicle because he is a racist.
21
o Pre-test stop  DWB (driving while black)
FOCUS ON OBJECTIVE, as long as there is probable cause, does not matter what the officer’s
subjective purposes/intent/motive was.
So long as the officers had probable cause (traffic violation), does not matter that they did it because the
people in the car were young black men in an expensive car, and therefore the seizure is lawful.

Atwater
v. City
of Lago
Vista
(2001)



Majority opinion.
Whether the 4th Amendment forbids a warrantless arrest for a minor criminal offense, such as a
misdemeanor seatbelt violation punishable only by a fine. WE HOLD THAT IT DOES NOT

Even if the offense is a minor offense (here a seat belt violation punishable by a small fine) (no jail
time), the officer can make an arrest if there is probable cause to believe a violation has occurred.

SCOTUS held: the officer had probable cause to make the arrest and even though by all accounts
his behavior was bad, he did not violate Mrs. A’s 4th Amendment rights because he had probable
cause to believe a traffic violation occurred.

Entitled to make a seizure, including an arrest.
The police may make a warrantless misdemeanor arrest even if the crime for which the arrest is made
cannot be punished by incarceration.
Virginia v. Moore (2008) 
o SCOTUS held that when police officers make an arrest based on probable cause but prohibited by state
law, they do not violate the Fourth Amendment.
o Officers who made the arrest was not authorized by law to arrest and the court held that it doesn’t
matter what state law matter provides.

We are applying 4th Amendment, not state law.
E. Searches Incident to Arrest
(1) Was the stop legal?
(2) If legal, was there reasonable suspicion or probable cause?
Assuming the stop was legal – (3) look at the length of the stop.
(4) If there is no consent and officer searches the car… have to ask if the automobile exception applies? (probable
cause that the officer is entitled to search)
(5) If the answer is no, is it justified as a search incident to arrest or as an inventory search?


United
States v.
Robinson
(1973)




Focused on the issue of whether the police, as an incident to a lawful custodial arrest for a routine
traffic violation, may search an arrestee although they have no reason to believe that weapons or
criminal evidence will be found on him.
Justifications start with:
o (1) lawful arrest (a warrant or probable cause to arrest)

Lawful custodial arrest is the prerequisite for a valid search incident to arrest.
o (2) does not require probable cause to search, only probable cause to arrest.
Justifications = protecting officer’s safety and preservation of evidence.
“It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the
case of a lawful custodial arrest a full search of the person is not only an exception to the warrant
requirement of the Fourth Amendment, but it is also a ‘reasonable’ search under that
Amendment.”
o The justification or reason for the authority to search incident to a lawful arrest rests quite
as much on the need to disarm the suspect in order to take him into custody as it does on
the need to preserve evidence on his person for later use at trial.
Officer had probable cause to stop him while driving and arrest him, therefore, the search was
valid.
In terms of timing  search incident to arrest  the arrest must be based upon probable cause that
exists before the search, but the arrest does not have to be made before the search.
o As long as probable cause to arrest exists before the search, the court has said the arrest
has to be relatively contemporaneous to the search (arrest can follow the search).
22





Chimel v.
California
(1969)



New
York v.
Belton
(1981)








It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant
requirement of the Fourth Amendment. The general exception has historically been formulated
into two distinct propositions.
o The first is that a search may be made of the person of the arrestee by virtue of the lawful
arrest.
o The second is that a search may be made of the area within the control of the arrestee.
Exceptions to Warrant Requirement – Search Incident to a Lawful Arrest – Any Arrest Sufficient
“In the case of a lawful custodial arrest a full search of the person is not only an exception to the
warrant requirement of the Fourth Amendment, but it is also a ‘reasonable’ search under that
Amendment.”
Exceptions to Warrant Requirement – Search Incident to a Lawful Arrest – Geographic Scope –
Incident to a constitutional arrest, the police may search the person and areas into which he might
reach to obtain weapons or destroy evidence (his “wingspan”).
Concerned with the scope of SITA exception  what is the scope of the area around the arrestee
that can be searched under the authority of the SITA.
o Establishes the 4th Amendment rule for searches of the area around the person arrested 
“arm’s length” “wingspan doctrine” = holding --- although officers are entitled to search
anywhere on the person of the arrestee, under SITA, they can only search, without a
warrant, the area within the wingspan or arm’s length of the arrestee (area from which
the arrestee could grab a weapon or evidence at the time of the arrest).
The justifications for s search incident to arrest are ABSENT where a search is remote in time or
place from the arrest.
A lawful custodial arrest creates a situation which justifies the contemporaneous search without a
warrant of the person arrested and of the immediately surrounding area.
o The scope of a search must be strictly tied to and justified by the circumstances which
rendered its initiation permissible.

Court found ample justification for a search of the area from within which an
arrestee might gain possession of a weapon or destructible evidence, but found
no comparable justification for routinely searching any room other than that in
which an arrest occurs – or, for that matter, for searching through all the desk
drawers or other closed or concealed areas in that room itself.
Held that the police could not search all the drawers in an arrestee’s house simply because the
police had arrested him at home, the Court noted that drawers within an arrestee’s reach could be
searched because of the danger their contents might pose to the police.
Applying Chimel to automobiles.
This case addresses the proper scope of a search of the interior of an automobile incident to a
lawful custodial arrest of its occupants.
Majority held --- when the arrestee was an occupant of a vehicle, the passenger compartment is
deemed to be the area within the wingspan of an arrestee ALWAYS even if the arrestee was
handcuffed and locked in the patrol car.
Including containers and locked areas of car (glove box) under SITA
When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as
a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
o It flows from this conclusion that the police may also examine the contents of any
containers found within the passenger compartment, consoles or other receptacles, etc.
Respondent was the subject of a lawful custodial arrest, the search of respondent’s jacket followed
immediately upon that arrest, the jacket was located inside the passenger compartment of the car
in which the respondent had been a passenger just before he was arrested, the jacket was thus
within the area which we have concluded was “within the arrestee’s immediate control” within
the meaning Chimel. The search of the jacket, therefore, was a search incident to a lawful custodial
arrest, and it did not violate the 4th & 14th Amendments.
If the individual is out of the car, can’t use SITA.
What brought us to Gant?
23
The right to search a hatchback and closed containers when arrestee was an occupant was
treated as a police right, even if at the time of the search there was no possibility the
arrestee could have access to the place or thing.

Court in Gant said no  suspects were locked in the back of the patrol car with
handcuffs, the suspects could not have access to the vehicles in question at the
time of the search.
5 police officers outnumbered the three arrestees, all of whom had been handcuffed and secured in
separate patrol cars before the officers searched Gant’s car.
Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within
reaching distance of the passenger compartment at the time of the search or it is reasonable to
believe the vehicle contains evidence of the offense of arrest.
o When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable
unless police obtain a warrant or show that another exception to the warrant requirement
applies
Established that for search incident to lawful arrest of the passenger compartment of a vehicle at
the time of the search, there must some risk the arrestee would have some access to the
compartment.
Held that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s
arrest only when the arrestee is unsecured and within reaching distance of the passenger
compartment at the time of the search.
o Court added a new feature to SITA from Thorton v. United States – concluded that
circumstances unique to the vehicle context justify a search incident to a lawful arrest
when it is “reasonable to believe evidence relevant to the crime of arrest might be found
in the vehicle.”
o Court added a caveat ^^^^  where the officers have reasonable suspicion (not probable
cause, RS is a lesser standard), that the objects related to the crime in which the arrest is
made are in the passenger compartment, the police can still use SITA.
o
Arizona
v. Gant
(2009)




F. Inventory Searches



Inventory searches are kind of like the catchall exception for officers.
Need to be following departmental rules (like administrative searches); governmental justifications.
Colorado v. Bertine 3 options:
o According to departmental directive, after placing a driver under arrest, an officer has 3 options for
disposing of the vehicle:

(1) allow a third party to take custody

(2) park the car in the nearest public parking facility

(3) officer can impound the vehicle, and search and inventory its contents, including
closed containers.


Illinois
v.
Lafayette
(1983)



Whether, consistent with the Fourth Amendment, is it reasonable for police to search the personal
effects of a person under lawful arrest as part of the routine administrative procedure at a police
station house incident to booking and jailing the suspect.
PO conducted an inventory search of the contents of a shoulder bag in the possession of an
individual being taken into custody.
o In deciding whether the search was reasonable, the Court recognized the search served
legitimate governmental interests (administrative needs)  determined that those
interests outweighed the individual’s fourth Amendment interests and upheld the search.
Held that the police may search an arrested person, as well as his/her personal effects, including
containers, as part of a routine inventory at a police station, incident to his/her booking and
jailing.
Neither a search warrant or probable cause is required for an arrest inventory search.
Justifications for inventory searches (administrative needs):
o Protect his/her property (vulnerability of property); prevent theft of the arrestee’s
property by inmates and jail employees;
24
To protect the officers from false claims (i.e., false theft claims);
Safer in the jail if the police inventory everything the arrestee is carrying; preventing the
arrestee from carrying dangerous instrumentalities or contraband into the jail.
This type of search is not based upon PC, but based on administrative needs – as long as the local
law enforcement office has some reasonable rules governing how inventory searches are
conducted, they can be as intrusive as the government wants.
NOTE: 4th Amendment does not require the police to act in the least intrusive fashion as possible
to handle search and seizures.
Exceptions to Warrant Requirement – Search Incident to a Lawful Arrest – Search Incident to
Incarceration or Impoundment – The police may search an arrestee’s personal belongings before
incarcerating him after a valid arrest.
o
o




Colorado
v.
Bertine
(1987)






When B was seized, officers did not arrest him in his driveway, he is arrested on a public street,
and they are entitled to make a discretionary decision to impound his car. Once they make that
decision, they are entitled to search. BUT how broadly? An inventory search allows the officers to
search every inch of the vehicle including the containers in it. WHY so broad?
o 3 administrative reasons – they are not searching for evidence is the theory, they are
protecting the government from false claims, and keeping guns and knives and other
potentially dangerous things out of the jail.
Court approved an inventory search in which the regulations allowed officers in certain
circumstances to choose whether to impound the car and conduct an inventory of it, on the one
hand, or simply to park it in a public lot and lock it, on the other hand.
If he is arrested, and the officers impound the car, they can conduct a full inventory search of the
vehicle and its contents.
The big issue was whether the local boulder regulations and rules impounding vehicles satisfied
the 4th Amendment.
o Rules (like Lafayette) must constrain the arbitrary decision making of officers  requires
local law enforcement agencies to have proper rules limiting what the officers can do.
Dissenters said the rules are not goo because the officer is given unconstrainted choices --- aka too
much discretion.
o Park and lock the vehicle if they can do in a safe well lighted place
o Let the driver call a third party to drive the vehicle home
o Impound it
Majority held --- even though the officer has choices, they are not arbitrary choices, and the
regulations are sufficient and the amount of discretion left to the officers is ok.
Exceptions to Warrant Requirement – Search Incident to a Lawful Arrest – Search Incident to
Incarceration or Impoundment – Similarly, the police may search an entire vehicleincluding
closed containers within the vehiclethat has been impounded.
G. Informers, Probable Cause, and Warrants



Definition of probable cause = “If the facts and circumstances before the officer are such as to warrant a man
of prudence and caution in believing that the offenses has been committed, it is sufficient (Carroll v. United
States).
Aguilar v. Texas (1964) 
o 2-pronged test:

Validity of a warrant to search for drugs was at issue in this case.

(1) Applicated needs to set forth “underlying circumstances” necessary to enable the
magistrate independently to judge the validity of the informant’s conclusion;

(2) Informant must be “credible” or “the information reliable.”
Aguilar/Spinelli test was used to let judges determine if an informer’s tip could be the basis for probable
cause or contribute to a finding of probable cause.
o Until Gates, if it required the informer’s tip for the judge to find probable cause, the
Aguilar/Spinelli test was used to evaluate that issue.
25
Summary of Aguilar/Spinelli Test

Aguilar  Although an affidavit may be based on hearsay information and need not reflect the direct
personal observations of the affiant, . . . the magistrate must be informed of some of the underlying
circumstances from which the informant concluded that the narcotics were where he claimed they were, and
some of the underlying circumstances from which the officer concluded that the informant . . . was
“credible” or his information “reliable.”

Spinelli  suggested inquiries: (1) How did the informant get the information? And (2) Why should I (the
magistrate) believe this person?
o These two questions represented the two prongs of Aguilar: (1) the basis-of-knowledge prong AND
(2) the veracity prong  “credibility of the informant” and the “reliability of the information.”

Spinelli
v.
United
States
(1969)




Aguilar/Spinelli Test  Need to establish: (1) basis of knowledge (how the informer obtained the
information AND (2) veracity of informer (reliability of the tip).
o If probable cause depends entirely, or even in part on an informer’s tip, the judge must be
provided with facts that allow him/her to determine how the informer obtained the
information (aka information establishing that it is a reliable tip or that it is credible).
Court held  unlike our usual 4th amendment totality of the circumstances approach that we
usually use in deciding probable cause does not work (not adequate as a check for government
power when informer’s give information- provides part or all the basis of the probable cause
decision); INSTEAD, there needs to be guideposts to ensure the judge has enough information to
permit him/her to make a fact based independent decision.
o (1) basis of knowledge prong  judge always needs to be presented with enough
information that they can say “only someone with personal knowledge could have this
information” “inside of the dope ring to know what informer said” and when officer
confirmed details by seeing a man get off the predicted train, fitting the description a
judge would be able to infer a basis of knowledge (confirmed facts showed there had to
be some basis of knowledge)
o (2) reliability or credibility prong.
The facts of the Draper case illustrate the kind of information the judge needs to have
o (1) reason to believe that the informer was reliable – when an informer gives a VERY
detailed description in their tip, and their tip is made in advance (the kind of prediction
someone would make only if they have inside knowledge) – this very specificity of the tip
makes it possible to evaluate the basis of knowledge.
o (2) Demonstrate that he has veracity and tip is reliable when the agent corroborates every
detail of the tip.
Probable cause does not simply exist from the tip, but when every detail of the tip was
corroborated by independent police action, the officers have probable cause based upon the tip +
corroboration.
Draper v. United States (1959) 
o A paid government informer approached his handler and said that on one of two days a man is going
to get off a certain train coming from Chicago to Denver and said what the man looks like and what he
would be wearing (gave a very detailed description).
o On day 2, Draper (matching the description) got off the train, agents approached him and arrested him.
o In search, they found heroin that the informer predicted he would have.
o SCOTUS reaffirmed in Gates and Spinelli that the federal officer had probable cause to make the arrest
based upon the tip.
o Facts of Draper illustrate the kind of information the judge needs to have.

Reason to believe that the informer was reliable, and when an informer gives a VERY detailed
description in their tip and that tip is given in advance (aka this is a prediction someone would
only make if they had inside knowledge).

The specificity of the tip makes it possible to evaluate the basis of knowledge and has
demonstrated that he has veracity and tip is reliable when the agent corroborates detail of the
tip.
26



Illinois
v. Gates
(1983)



Probable cause does not simply exist from the tip, but when every detail of the tip was
corroborated by independent police action, the officers have probable cause based upon the tip
+ corroboration.
Gates opinion overrules Spinelli to the extent that Spinelli requires proof of both the prongs.
Whether an informant’s tip provides PC to justify an issuance of a search warrant all by itself or in
conjunction with other police activity (information obtained by a police investigation)?
PO received an anonymous letter accusing a couple of selling drugs
Standing alone, the anonymous letter sent to the PO would not provide the basis for a magistrate’s
determination that there was probable cause to believe contraband would be found in the car and
home.
Court holds that the totality of the circumstances analysis that traditionally has informed probable
cause determinations is what we have to use.
o The factors – basis of knowledge and veracity/reliability – are still relevant in
determining the value of an informant’s tip, however, the prongs are no longer treated as
separate, independent requirements.
Chapter 4  The Reasonableness Clause and Fourth Amendment Balancing
A. Balancing Emerges in Fourth Amendment Theory





Conjunctive Theory  interpreting the two clauses of the 4th amendment together: (1) reasonableness when
there is a search and seizure; (2) lays out of the requirements of valid warrant. (used the warrant clause to
help define “reasonableness”
o Chapter 1-3.
Disjunctive Theory  Don’t have to look at the second clause in all cases when trying to decide if
government conduct is reasonable; arguments that the Fourth Amendment does not require probable cause
of particularity for searches and seizures to be reasonable and does not adopt the exclusionary rule.
o Terry.
NOW – balancing approach: supplementary way of looking at 4 th Amendment issues.
Camara v. Municipal Court (1967) 
o A warrant is required for administrative searches  they are significant intrusions upon the
interests protected by the 4th Amendment
o Administrative Searches Require Warrants Based on a Balancing on the Government Interest and the
Invasion that It Entails
o Test for determining reasonableness = balancing the need to search against the invasion which the
search entails.
o Extended the reach of the Fourth Amendment to include administrative searches.

Only a year after the Court extended the reach of the Fourth Amendment to include
administrative searches, the Supreme Court explicitly employed a balancing methodology
to uphold a warrantless search and seizure in a criminal case when the officer did not
possess probable cause or a warrant.
o SC recognized a different form of probable cause, applicable to administrative search cases, that did
not require individualized suspicion of criminal wrongdoing and that is based on the general
Fourth Amendment standard of “reasonableness.”

To determine “reasonableness,” the Court invoked a balancing test in which the
individual’s and society’s interest in the given type of administrative search were weighed
against each other.
Frank v. Maryland (1959) 
o Held that public health inspections were not regulated by 4 th Amendment.
o Upheld a state court conviction of a property owner who refused to permit a municipal health
inspector to enter and inspect his premises without a search warrant.
27
B. The Terry Revolution



Terry transported Camara’s “reasonableness” balancing test from the realm of administrative searches to
traditional criminal investigations and used it to determine the reasonableness of certain warrantless
searches and seizures, rather than merely to define “probable cause.”
Terry recognized that searches and seizures can vary in their intrusiveness.
o Many police-citizen on-the-street encounters that do not involve arrests or full-blown searches
come within the scope of the Fourth Amendment but are considered lawful notwithstanding the
absence of a warrant or probable cause.
PO may now conduct a wide array of searches and seizures that are considered less-than-ordinarily
intrusive, on the basis of a lesser standard of cause than “probable cause,” so called “reasonable suspicion.”
REMEMBER: FOR A TERRY STOP  NEED R.S.





Terry v.
Ohio
(1968)







Role of the 4th Amendment in the confrontation on the street between the citizen and the police
officers investigating suspicious circumstances.
PO thought the men were “casing a store” and had guns.
Whether an investigatory stop (temporary detention) and frisk (pat-down for weapons) may be
conducted without violating the Fourth Amendment’s ban on unreasonable searches and seizures.
Whether in all circumstances of this on-the-street encounter, an individual’s right to personal
security is violated by an unreasonable search and seizure?
In order to assess the reasonableness of Officer McFadden’s conduct as a general proposition, it is
necessary “first to focus upon the governmental interest which allegedly justifies official intrusion
upon the constitutionally protected interests of the private citizen…”
o Effective crime prevention and detection
There must be a narrowly drawn authority to permit a reasonable search for weapons for the
protection of the police officer, where he has reason to believe that he is dealing with an armed
and dangerous individual, regardless of whether he has probable cause to arrest the individual for
a crime.
In making that assessment it is imperative that the facts be judged against an objective standard:
would the facts available to the officer at the moment of the seizure of the search “warrant a man
of reasonable caution in the belief” that the action taken was appropriate?
An officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when
the officer has a reasonable, articulable suspicion that criminal activity is afoot.
o While “reasonable suspicion” is a less demanding standard than probable cause and
requires a showing considerably less than preponderance of the evidence, the Fourth
Amendment requires at least a minimal level of objective justification for making the
stop. The officer must be able to articulate more than an “inchoate and unparticularized
suspicion or ‘hunch’” of criminal activity.
Unprovoked flight in a high crime area can give officers reasonable suspicion.
Terry recognized that searches and seizures can vary in their intrusiveness. The court no longer
treats all searches and seizures alike. As a result of this case, many police-citizen on-the-street
encounters that do not involve arrests or full-blown searches come within the scope of the 4th
Amendment but are considered lawful notwithstanding the absence of a warrant or probable
cause.
NOTE:
o
ONE END OF CONTINUUM: Traditional rule = if there is a search and/or seizure 
have to have (1) warrant preference rule (has exceptions) and (2) requirement of probable
cause.
o OTHER END OF CONTINUUM: There is no search or seizure, don’t need probable cause
or warrant (4th Amendment only deals with searches and seizures)
o NOW… ADD A THIRD CATEGORY (IN THE MIDDLE): stop & frisk – a stop is a
seizure under 4th Amendment, less than an arrest, and when the officer pats down
clothing to feel for weapons that is a search.
So… under the new category, if probable cause applies to all 4 th amendment encounters, Terry
would lose. Court says we recognize that a stop is a seizure, and a frisk is a search, but since there
28







are lesser intrusions, and not a full blown arrest or search/intrusion, we are not going to analyze
them using the tradition PC/Warrant model. We are going to apply a new standard – Camara case
– the only ready way of determining what is reasonable is by balancing government interests with
the nature and scope of intrusion.
o Can be reasonable under 4th Amendment if we balance government interest against
intrusion upon the individual’s liberty privacy and policy.
Probable Cause is a quantitative concept – have enough facts and inferences to justify the arrest or
search.
Balancing – Reasonable Suspicion – the initial intrusion was justified by showing facts, scope of
intrusion was justified, and the court says (1) RS is like PC in that it has a quantitative element –
officer has to point to facts and circumstances that say “I’m justified in grabbing this individual,
then (2) officer has to justify proceeding to take individual and frisking them.
o RS – involves a bit of quantitative analysis – but how much does the officer know? What
facts does the officer know that would justify the encounter?
A Terry stop can be for any crime.
Justify initial contact, like an arrest, and then justify everything else that happens after it.
Terry got rid of 2 part either-or-model of 4th amendment analysis, and asserted a third middle
category – if PO have reasonable suspicion they can engage in seizures and perhaps searches
which are less intrusive than a full-blown search
Terry frisk is only justified if there is RS that crime is afoot, and that person is armed and
dangerous AND then to be a frisk, it can only be a pat down of exterior clothing.
Arizona v. Johnson 
o Court considered whether an investigatory stop (temporary detention) and frisk (patdown for
weapons) may be conducted without violating the Fourth Amendment’s ban on unreasonable searches
and seizures. The court upheld “stop and frisk” as constitutionally permissible if two conditions are
met. FIRST, the investigatory stop must be lawful. That requirement is met in an on-the-street
encounter, Terry determined, when the police officer reasonably suspects that the person apprehended
is committing or has committed a criminal offense. SECOND, to proceed from a stop to a frisk, the
police officer must reasonably suspect that the person stopped is armed and dangerous.
C. The Meaning of Reasonable Suspicion

United
States v.
Sokolow
(1989)


United
States
v.
Arvizu
(2002)

The conduct of Sokolow fit the drug-courier profile
o He paid for airline tickets totaling $2,100 with a roll of $20s, he traveled under a name
different from that listed for his telephone number, he didn’t check his luggage, etc.

When officers look at the “suspicious characteristics,” they form suspicion based
on innocent behavior.
o The drug-courier profile neither helps nor undercuts the case for reasonable suspicion 
must look at the facts the officer knew and the totality of the circumstances to decide
whether there is reasonable suspicion to justify the initial Terry stop.
Suspicion must be based on objective, articulable facts.
TEST FOR OBTAINING REASONABLE SUSPICION = TOTALITY OF THE CIRCUMSTANCES
o When discussing how reviewing courts should make reasonable suspicion
determinations, they must look at the “totality of the circumstances” of each case to see
whether the detaining officer has a “particularized and objective basis” for suspecting
legal wrongdoing. This process allows officers to draw on their own experience and
specialized training to make inferences from and deductions about the cumulative
information available to them that “might well elude an untrained person.”
Officer’s knowledge is relevant.
[Presence in a high-crime area]

Unprovoked flight --- D fled upon seeing the officers patrolling an area known for heavy narcotics
29

Illinois
v.
Wardlow
(2000)



trafficking.
In the case of unprovoked flight in an area of high crime, officers can take that into account and
can treat it as suspicious in the analysis – under the TOC approach, the officers were justified (aka
there was reasonable suspicion to stop).
“An individual’s presence in an area of expected criminal activity, standing alone, is not enough to
support a reasonable, particularized suspicion that the person is committing a crime… But officers
are not required to ignore the relevant characteristics of a location in determining whether the
circumstances are sufficiently suspicious to warrant further investigation.”
o In this case, moreover, it was not merely respondent’s presence in an area of heavy
narcotics trafficking that aroused the officers’ suspicion but his unprovoked flight upon
noticing the police.
This case, involving a brief encounter between a citizen and a police officer on a public street, is
governed by the analysis in Terry.
Was there Reasonable Suspicion to stop? YES – determination of whether there is RS is based on a
TOC analysis
D. Terry Seizures of People

Different tests for “seizure” given the situation (fact intensive and case-by-case)

Post Terry case law recognizes 3 tiers of police-citizen encounters related to Fourth Amendment seizures.
o Least intrusive tier consists of consensual encounters that do not trigger Fourth Amendment
protections.
o Brief, investigatory detentions falling short of full-blown arrests are Fourth Amendment seizures.
United States v. Mendenhall (1980)  a seizure occurs when, “in view of all the
circumstances surrounding the incident, a reasonable person would have believed he was
not free to leave.” Would a reasonable person feel free to leave? If YES  consensual (no
4th A problems). If NO  4th A problems) Then go on to is it a Terry stop or an arrest? If
just a terry stop, and officers have R.S., then that I ok.

*** Determining whether and at what point a consensual encounter evolves into a
seizure can be difficult  if the encounter is or becomes a Terry seizure, it must
be justified by reasonable suspicion to comply with the Fourth Amendment.
Florida v. Royer (1983)  [scope and duration]
o Held that when an officer, without reasonable suspicion or probable cause, approaches an
individual, the individual has a right to ignore the police and go about his business.
o SC held that the encounter had escalated into an arrest because the officers had retained Royer’s
identification and ticket, had taken him to a private interrogation room in the airport, had retrieved
his checked luggage without his permission, and has asked him to open the suitcases.

Because probable cause did not exist at the point the encounter matured into an arrest, the
arrest was illegal and the marijuana subsequently found in Royer’s suitcase must be
suppressed.
o Full blown arrest can occur even when the arresting officers fail to inform the suspects that they are
under arrest.
California v. Hodari D. (1991) 
o D discarded what appeared to be cocaine while being pursued by a PO. D argued that the officer’s
pursuit was a seizure under Mendenhall because the officer’s show of authority was undisputed.
o SC rejected that argument and held in “the absence of physical contact, a mere display of authority
is a seizure only if the suspect submitted to it.”
o Show of authority is a seizure only if the person complies.
Tennessee v. Garner (1985) 
o PO shot and killed a fleeing suspect.
o Court concluded that his conduct constituted a Fourth Amendment seizure: “Whenever an officer
restrains the freedom of a person to walk away, he has seized that person. While it is not always
clear just when minimal police interreference becomes a seizure, there can be no question that




30

apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of
the Fourth Amendment.”
Brower v. County of Inyo (1989)
o SC held that a governmentally caused termination of a person’s freedom of movement does not
always amount to a seizure, but a seizure does occur “when there is a governmental termination of
freedom of movement through means intentionally applied.”


Florida
v.
Bostick
(1991)


Drug profile methodology used at a bus station.
A seizure does not occur simply because a police officer approaches an individual and asks a few
questions. So long as a reasonable person would feel free “to disregard the police and go about his
business,” the encounter is consensual and no reasonable suspicion is required.
NEW TEST” Would a reasonable person feel free to cooperate?
o We adhere to the rule that, in order to determine whether a particular encounter constitutes a
seizure, a court must consider all the circumstances surrounding the encounter to determine
whether the police conduct would have communicated to a reasonable person that the person was
not free to decline the officers’ requests or otherwise terminate the encounter.

That rule applies to encounters that take place on a city street or in an airport
lobby, and it applies equally to encounters on a bus.
Michigan v. Chesternut (1988)
E. Terry Searches of People
Florida
v. J.L.
(2000)
[Does a tip equate to reasonable suspicion?]

Whether an anonymous tip that a person is carrying a gun is, without more, sufficient to justify a
police officer’s stop and frisk of that person?
o We hold that it is not.

Application of Gates & Spinelli – to answer the question: when is there reasonable suspicion based
upon an informer’s tip?

Our “stop and frisk” decisions begin with Terry v. Ohio 
o Where a police officer observes unusual conduct which leads him reasonably to conclude
in light of his experience that criminal activity may be afoot and that the persons with
whom he is dealing may be armed and presently dangerous, where in the course of
investigating this behavior he identifies himself as a policeman and makes reasonable
inquires, and where nothing in the initial stages of the encounter serves to dispel his
reasonable fear for his own safety, he is entitled for the protection of himself and others in
the area to conduct a carefully limited search of the outer clothing of such persons in an
attempt to discover weapons which might be used to assault him.

In cases where the officer’s authority to make the initial stop is at issue, an anonymous tip lacking
an indicia of reliability does not justify a stop and frisk whenever and however it alleges the illegal
possession of a firearm.

“[T]ip provided no predictive information that would provide police with means to test the
informant’s knowledge or credibility, so that all police had to go on in this case was the bare report
of an unknown, unaccountable informant who neither explained how he knew of the gun nor
supplied any basis for believing he had inside information.”

Tip provided no predictive information and therefore left police without means to test informant’s
knowledge or credibility.

A police officer may not legally stop and frisk anyone based solely on an anonymous tip that simply
described that person’s location and what he/she might look like but did not furnish information as to any
illegal conduct that the person might be planning.

An anonymous tip of this sort is inadequate to create PC and Terry RS.

Even if the standard is only RS, not PC, an anonymous tip that does not provide detail, or anything
that shows how credible or reliable it is, doesn’t cut it.

This is not only insufficient to create PC under Draper/Gates/Spinelli, but insufficient to show RS
too.
31

Alabama v. White (1990) 


Minnesota
v.
Dickerson
(1993)









Arizona
v.
Johnson
(2009)


Whether the Fourth Amendment permits the seizure of contraband detected through a police
officer’s sense of touch during a protective patdown search.
o Permitted, as long as the officers’ search stays in within the bounds marked by Terry.
PO were patrolling an area and the house was known as a crack house; they see Mr. Dickerson
leave that apartment building (him leaving is not enough for reasonable suspicion --- Ybarra v.
Illinois – the fact that the person is in a place that police believe drug trafficking occurs is not
enough to create any suspicion) and begin walking. When he saw the PO he made eye contact and
then turned around (no crime here).
PO seized him when they pulled their car up and ordered him to stop.
o Must have RS or PC to justify the seizure and its scope
What is the Fourth Amendment issue here? The seizure is not the issue, the search is the issue.
o Must be saying that the officers had reasonable suspicion that the suspect was armed and
dangerous – court assuming that if officers see someone leaving a known drug den who
doesn’t want to stop and chat with the officers, then they have reason to believe he is
armed and dangerous.
The court recognized a “plain touch” or “plain feel” corollary to the plain view doctrine.
o Under this doctrine, the police may seize contraband detected solely through an officer’s
sense of touch if, analogously to plain view, the officer had the right to touch the object in
question and, upon tactile observation, its identify as contraband was immediately
apparent.
If the patdown is legally justified and the officer fees a weapon, the officer can take the weapon. But if the
officer feels something that is immediately apparently (probable cause now) associated with criminality, they
can seize that too.
o Analogizes PVD to sensory touch.
However, in this the case, the officer overstepped the bounds of Terry  once the officer
determined there were no weapons, his second search – the examination of the lump – fell outside
the scope of the original lawful intrusion. Officer’s continued exploration of the pocket AFTER
having concluding no weapons, was unrelated to the sole justification of the search under Terry
(protection of police and others)
If a pat down is being lawfully conducted, and the officer feels something that is not a weapon but
is immediately apparent of criminality, the officer can seizure it (doesn’t have to ignore what his
fingers feel, just like officers don’t have to turn their head away from seeing obvious criminality).
The sense of touch is sufficiently reliable, the Court opines, to allow an officer who is otherwise lawfully
conducting a Terry search, to seize contraband under these circumstances here, the officer merely
stated that it was “probably crack cocaine”
Case concerns the authority of police officers to “stop and frisk” a passenger in a motor vehicle
temporarily seized upon police detection of a traffic infraction.
In a traffic-stop setting, the first Terry condition a lawful investigatory stopis met whenever it
is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular
violation. The police need not have, in addition, cause to believe any occupant of the vehicle is
involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic
stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the
police must harbor reasonable suspicion that the person subjected to the frisk is armed and
dangerous.
Traffic stop for an observed traffic violation: officers had no reasonable suspicion, man in backseat
“kept his eye on the officers,” the blue bandana that Johnson was wearing  based off that, officer
concluded that he is a gang member. He also had a scanner in the pocket. Officer has him get out
the car and asks him questions, and Johnson is truthful. Officer does a patdown and finds a gun.
SCOTUS reaffirmed that searches and seizures must be based upon facts and inferences –
individualized particularized suspicion. For officers to make a Terry stop, they have to point to
facts that some crime is occurring, but for the pat down for weapons have to point to facts
suggesting that suspect (Johnson) is armed and dangerous.
32


A Terry stop is a basis for a traffic stop – just as an officer can stop someone on the street based on
RS, the court says, if the officers have RS to believe a crime has occurred, they can pull over the
vehicle without PC but still need facts.
o For traffic stops, PC is not an issue because the officers see the violation.
Pennsylvania v. Mimms (1977) 
F. Terry Searches and Seizures of Property


Michigan
v. Long
(1983)





United
States
v. Place
(1983)





Authority of a police officer to protect himself by conducting a Terry-type search of the passenger
compartment of a motor vehicle during the lawful investigatory stop of the occupant of the
vehicle?
Officers on patrol see a guy weaving on the road who then drives into a ditch, so they stopped to
investigate. Officers follows him back to his vehicle and see that there is a hunting knife lying on
the floor of the driver’s seat area. Officers stopped Long’s progress, kept him away from the
vehicle, and subjected him to a Terry protective patdown (frisk), but felt no weapon. Officers then
shone a light inside the car to look for other weapons, however they noticed something protruding
from under the armrest on the front seat. Officer entered the vehicle, lifted the armrest and
determined that it was marijuana.
Driving under the influence and possession of marijuana, they impound the car and relying on an
inventory search they search the trunk of the car and find more marijuana.
The search of the passenger compartment of an automobile, limited to those areas in which a
weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief
based on “specific and articulable facts which, taken together with the rational inferences from
those facts, reasonably warrant” the officer in believing that the suspect is dangerous and the
suspect may gain immediate control of weapons.
Search of vehicle is OK if police officer possesses reasonable belief that the suspect is dangerous and could
gain control of the weapon.
The officer may search the passenger compartment of the vehicle, even if the officer has not arrested
the occupant and has ordered the occupant out of the vehicle, provided the search is limited to those
areas in which a weapon may be placed and the officer possesses a reasonable belief that the occupant
is dangerous.
Duration & Scope  police may briefly seize items upon reasonable suspicion that they are or
contain contraband or evidence, but such seizures must be limited.
Airport context
Court ruled that a 90-minute detention of P’s luggage, and implicitly of P, in order to get a drug
sniffing dog to sniff the luggage was unreasonable.
o They had prior knowledge of P’s arrival  they had hours to get the drug dog over and
the dog could have been there when P arrived.
o This violated the Terry limited on a search because it was just too long.

Luggage can be seized for a Terry search

But this action is limited by Terry – rationale for Terry seizure  whether a
person or a suitcase, is for a brief investigatory detention
Whether the officers perform the Terry seizure in a constitutional manner as to a duration of time
is tested against a standard of “did they perceive diligently to investigate?”
Message of the case: it defines for us, the permissible time frame for a Terry stop  an officer must
diligently pursue the investigation and not cause unnecessary delay.
The permissible length of a Terry stop and a Terry seizure of property will be determined by the diligence (or
lack thereof) used by officers in pursuing the investigation.
G. Stops and Frisks Based on Profiling
Floyd v.

Stopping most of the people because they are male and most of them are either African American
33
City of
New
York
(2013)
or Hispanic
H. Balancing, Special Needs, and Suspicionless Searches and Seizures

Moving away from government activities that are not based upon the traditional 4th Amendment model that requires
fact based individualized particularized suspicion  government actors are allowed to engage in searches and
seizures without any suspicion at all (no RS, no PC), some other standard used to justify the government
intrusion  completely replacing the traditional 4th Amendment model.




Skinner v.
Railway
Labor
Executives’
Association
(1989)






FDA promogulated regulations that mandate blood and urine tests of employees who are
involved in certain train accidents. Authorized railroads to administer breath and urine tests to
employees who violate certain safety rules.
Issue: Do mandatory blood and urine tests for employees who violate safety rules or are involved
in accidents violate the 4th Amendment? [holding  NO].
In certain circumstances, where special needs (other than the need for traditional law
enforcement) are present, the government can engage in conduct that is a search and seizure
under the 4th Amendment and can do it without pointing to any suspicion attaching to any
person.
3 scenarios (triggering events) that may have nothing to do with a specific employee, and doesn’t
require that the railway say, “we thought it was employee Y because he smelled of alcohol.” Don’t
have to point to any facts, just the fact that the event occurred that triggered the blood testing for
all employees:
o (1) Major Accident  death, property damage of half a million or more.
o (2) Minor Incident  personal injuries and property damage less than half a million.
o (3) railway sees the employee with open alcohol bottle, the employee smells, their eyes
are messed up, and based upon individualized suspicion, testing can be required.
Special need here: protecting safety --- threat to safety justifying mandatory drug tests of railway
employees directly involved with the operation of the vehicle  justification?
o People are hurt, millions of dollars of property damage, 25 people have been killed in
about 11 or 12 years.
Suspicionless searches without RS, PC, or a warrant are ok on these circumstances (they are
searches, but they are reasonable)  Why?
o Safety needs make a special need, separate and distinct from law enforcement, and in
those circumstances, when we find there is a special need for a search or seizure, we
sometimes permit suspicionless intrusions.
Balancing of government social interest in keeping people from being killed by drunk drivers
against taking a blood test.
This regulation for railway employees is triggered by an incident  different categories: injured,
killed, property damage – can government require drug and alcohol testing for everyone that is
involved in an accident that causes personal injury, property damage or death?
o Yes they can do that now --- the requirement when a government can require that a
blood sample be taken after they are involved in an automobile accident  rule since
1966 – individualized suspicion – probably PC, but before a PO can arrest somebody, or
take a blood sample, the standard is: individualized particularized suspicion.
What level of individualized suspicion is required under Skinner? NONE  no individualized
suspicion is required.
o The government can require people to be searched and submit to searched without
pointing to any facts suggesting that this person has violating anything.
3 kinds of testing: SCOTUS holds that all 3 are searches.
o (1) blood samples

Why a search? It is a physical intrusion – we have an expectation of privacy in
the innards of our bodies, and a forced intrusion violates REOP (like a physical
trespass)
34
o
o




Veronia School District 47J v. Acton (1995) 
o Upheld random urinalysis drug testing of students voluntarily participating in the District’s school
athletic programs
o If athletes play sports intoxicated, the chances of injuries to them or someone else triggers the school in
loco parentis authority to protect the health and safety of the students.
o Taking test before season starts, and at random in the season – helps keep students from increasing the
danger
o SPECIAL NEED OF SAFETY
Board of Education v. Earls (2002) 
Chandler v. Miller (1997) 
o GA passed a law that people running for public office must pass a drug test.
o SCOTUS said there is no special need here, like students engaged in high school football, or people
driving trains, or flying airplanes.
o SCOTUS refused to extend the reach of its holding in Veronia beyond the school setting.
National Treasury Employees Union v. Von Raab (1989) 

Michigan
v. Sitz
(1990)






(2) urine samples

Why a search? Against the law to urinate in public, it is something you do in
private (a private activity), chemical analysis of urine can reveal medical facts –
clearly seems to implicate EOP.
(3) breathalyzer

Why a search? It is a search because breathalyzer only works from getting air
from the bottom third of your lungs --- air that never moves, you have to blow
so hard to get that air, which we normally don’t do  sounds like the
technological equivalent of a trespass.
PO department established a sobriety checkpoint pilot program. Sobriety checkpoints at selected
sites. All vehicles passing through a checkpoint would be stopped and their drivers briefly
examined for signs of intoxication—in the case where a checkpoint officer detected signs of
intoxication, the motorist would be directed to a location out of traffic flow where an officer would
check the motorist’s driver’s license and car registration and if warranted, conduct further tests.
Should the field tests and the officer’s observations suggest that the driver was intoxicated, an
arrest would be made.
Safety interest – prevent drunk drivers (intersection of Skinner) – same rational  special need:
public safety – allows government to set up roadblocks where every driver is stopped and
subjected to some kind of investigation despite the fact that government has NO facts pointing to
suspicion of any driver (must be neutral and everyone treated the same).
Suspicionless seizures affecting every driver.
Are these seizures reasonable? [average stop was about 25 seconds; government action
restricting/preventing mobility if part of the right to be free from a seizure]
o SCOTUS holds yes --- keeping drunk drivers from killing/injuring people is a big deal;
government interest in having checkpoints and ensuring the safety of people outweighs
liberty interest of the single driver (the one stopped for about 25 or 26 seconds).
o Balancing – by defining the interests, the majority determines the outcome.

Government interests against (1) interests of motorists collectively vs (2) interest
of the single individual motorist.

Depending on how the government defines the interests, they may lose.
Whether seizures at the checkpoint were reasonable under the Fourth Amendment?  YES
o The balance of the State’s interest in preventing drunken driving, the extent to which this system
can reasonably be said to advance that interest, and the degree of intrusion upon individual
motorists who are briefly stopped, weighs in favor of the state program.
The proper analysis was a three-prong test balancing the state's grave interest in curbing drunk
driving, the effectiveness of the stops, and the insubstantial subjective intrusion on individual
liberties.
Indianapolis v. Edmond (2000) 
35
Court considered the constitutionality of a narcotics interdiction checkpoint.
Supreme Court held that a highway checkpoint program whose primary purpose was the
discovery and interdiction of illegal narcotics was unconstitutional – was unconstitutional because
it allowed police to conduct suspicionless seizures “primarily for the ordinary enterprise of
investigating crimes.”
o Set up roadblocks for drug investigations – program designed to catch people driving with drugs
in the car
o When the roadblock is not for some special need like safety, but just used for traditional law
enforcement purposes like catching people with drugs, suspicionless searches and seizures are not
permitted. We have permitted them when there is a special need, but not just for traditional
criminal law enforcement looking for drugs.
o Court ruled that the drug interdiction checkpoint violated the 4th Amendment  drew a line, on
the one hand, between the border stop and sobriety-checkpoint-cases (cases designed primarily to
serve purposes closely related to the problems of policing the border or the necessity of ensuring
roadway safety)  and the at hand, namely, a roadblock “whose primary purpose was to detect
evidence of ordinary criminal wrongdoing.”
Illinois v. Lidster (2004) 
o Roadblock was set put up to stop motorists and ask them for info regarding a fatal hit-and-run
accident that had occurred a week earlier, at roughly the same hour and site as the checkpoint.
o Court concluded that Edmond and, thus, an individualized suspicion requirement, does NOT
apply in these circumstances.
o
o

I. Suspicionless Searches in Criminal Investigations

Maryland
v. King
(2013)






King was arrested and charged with first-degree assault for menacing a group of people with a
shotgun; on the day of his arrest, as part of processing King for detention, the police used a “cheek
swab” to take a DNA sample from him, pursuant to the state’s DNA collection statute, which
authorized collection of DNA samples from anyone charged with a crime of violence.
After King’s arraignment, his DNA was uploaded to a database, and it was discovered that his
DNA tied him to an unsolved rape case from 6 years earlier; King was subsequently convicted for
that rape and sentenced to life in prison without the possibility of parole.
In considering the constitutionality of taking and using King’s DNA, every member of the Court
agreed that the cheek swab procedure constituted a “search” for purposes of the 4 th Amendment.
DNA info can be sent to CODIS so in future investigations, DNA taken from someone arrested can
be run against DNA in the database to see if there is a match.
Weigh the “promotion of legitimate governmental interests” against “the degree to which [the
search] intrudes upon an individual’s privacy.”  The government interest must outweigh the degree
to which the search invades an individual’s legitimate expectations of privacy.
o Legitimate government interest served by the Maryland DNA Collection Act is one that is
well established: the need for law enforcement officers in a safe and accurate way to
process and identify persons and possessions they must take into custody.
o By comparison to this substantial government interest and the unique effectiveness of
DNA identification, the intrusion of a cheek swab to obtain a DNA sample is a minimal
one.
SCOTUS upheld the regulation
o (1) DNA samples were not taken from everybody, but only for people arrested under a
special list of specific state crimes (i.e., violence; limiting it to people who have been
arrested for violent crimes); DNA would be destroyed if crime dismissed (there are
various methods for destroying DNA)
o (2) Majority held that we accept the states’ argument: that this is just like finger printing,
they are taking the DNA to make sure they know who they have arrested (identification
purposes), because the state is entitled to know who they are resting.
Court approved a process of taking a” buccal swab,” which “involves wiping a small piece of filer
paper or a cotton swab similar to a Q-tip against the inside cheek of an individual’s mouth to
collect some skin cells,” from all arrestees booked on “serious offenses” in order to obtain a DNA
identification.
36
J. The Border
3-part mode for border analysis 
(1) the actual, literal border (wherever people enter is the border)  rules from class apply  as long as
ROUTINE search or seizure, don’t need any justification.
 Seizure has to be routine, but the stop can be for good/bad/any reason.
(2) setting is a fixed checkpoint  fixed set of rules for permissible seizure with follow up Terry seizure
(officers have same authority to conduct routine searches and seizures of at least, in the most limited way,
that they would have at the border) (subject anybody in the vehicle they pulled over to question), but if they
wanted to do more (i.e., search the vehicle – which would be fine at the border – that would violate the law
at the fixed checkpoints (at FC – have to have at least RS to go further than just pulling someone over and
asking questions.
 functional equivalent of border for limited purposes of a seizure (within 100 miles of the border)
 for initial seizure, it is ok not to have R.S. or P.C. (aka it is not restricted by traditional 4 th
Amendment requirements that are inside the border). Once the vehicle is seized, the 4 th
Amendment restrictions kick in  to search need P.C. or warrant. After some time, officers may
develop R.S. or P.C., but if they don’t, have to let the people/vehicle go. (for brief investigatory
stop officers can try and develop by asking questions).
(3) (settings away from the border); Roaming patrols – in theory are subjected to same rules away from the
border as would be any law enforcement officer in a motor vehicle – same rules that would apply to
domestic law enforcement officers (can’t stop a car just because, racially invidious ideas cannot be basis for
law enforcement stopping), but officer can seize a vehicle if they can point to facts that amount to RS or PC
(the appearance of the people in vehicle, their clothing, the appearance that would suggest they would be
involved in criminality – if you look Mexican, dress like a Guatemalan, a lot of people in an old Chevy,
clearly bias use of racial observation) for a permissible stop; but as to the search of a car – the traditional
rules apply (Search Incident to Arrest, Investigatory Search, Automobile Exception) --- these rules look like a
set of rules for everyone driving a vehicle in this country. RS and PC is for a seizure, and PC is for an
automobile exception search.
 court uses traditional 4th Amendment requirements (Arvizu)
(1) PEOPLE AT THE BORDER

Slavco – Victory (2018) 
o Where did the trucks enter the U.S. from? Canada, but this case is in Southern California – this case
is about the placement of the GPS tracking devices (like Jones) to track the movement of a motor
vehicle, technologically.
o Government says, “it’s the border, they are coming across the border” and 4 th Amendment
protections are weak, government interests at border are strongest, so for routine searches and
seizures, no 4th Amendment rights exists (no RS, no PC, no warrant needed).
o Where does the border exist? Where people enter the country  creates a dilemma about the 4th
Amendment’s control because it isn’t just a checkpoint.
o To the extent that the border rules apply, they apply anywhere where a person enters the country.


United
States v.
Montoya
De


LAX = the border for her purposes.
Air traveler from Colombia was detailed incommunicado by customs officials for 16 hours because
she was suspected of being a balloon swallower
Agent didn’t have PC to believe she was committing crimes, she got off the most notorious drug
smuggling flight in the world, so agent became suspicious.
Agent interrogated her and he is entitled to subject her to routine seizures and searches for good
37
Hernandez
(1985)








reason, bad reason, imaginary reason, no reason, but as long as it is routine, it is ok.
After interrogating her, the agent concluded that she was a balloon smuggler, the next flight out of
US to Columbia had a layover in Mexico City (she did not have a Mexican visa so she could not get
on the next flight home), agent said we will keep her here  16 hours, refused food, beverages, etc.
(her resistance was “heroic”).
They wanted to send her to the hospital for an X-ray to see if there was anything in her stomach,
but she said she was pregnant, and they didn’t want to hurt the fetus.
A court order is obtained for her to be subjected to medical examination – before X-ray, a doctor
started pulling out balloon of cocaine after probing her rectum and anus.
Could this line of law enforcement have been used against her if she had been arrested in
downtown LA? (not at the border) NO!
o You cannot subject someone seized in the US to this kind of seizure, but because it was at
the border, the SC majority held that what she was subjected to was reasonable because it
was at the border.
For a seizure at the border, routine seizures of people are not subject to any requirements of RS, PC, or
warrant.
Detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified
at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably
suspect that the traveler is smuggling contraband in her alimentary canal.
For a routine search and seizure  (search of property, search of person, short of a strip search) is
routine, based on no level of required 4th Amendment information. But did the seizure go beyond
what is routine?
REMEMBER – RS – government has to show information they possessed, at the initial
inception, and then show that the rest was justified as well. And then the facts of the case show
that the seizure was justified in holding her till she defecated. (fits Terry model) but the
analysis is much stronger in favor of the government here because it is at the border.
NOTE:



The two cases above have to do with seizures of people, and seizures and searches of property in the broadest
sense and broadest legal concept.
It is the inherent right of the sovereign (the US in our cases) to control its border to control who comes in, who
leaves, to control what comes in and what leaves).
Government has its greatest power of people at the border because it is the border – metaphorical line between
us and everybody else.

United States v. Martinez-Fuerte (1976) 

United States v. Villamonte-Marquez (1983) 
(2) PROPERTY AT THE BORDER

United
States v.
FloresMontano
(2004)



Driving a car in Mexico, customs agents became suspicious and directed the driver to drive his car
off to a large area off to the side for investigation. Customs officials, without reasonable suspicion,
seized F’s car at the international border, removed the gas tank, disassembled it, and thereafter
seized 37 kilograms of marijuana they discovered inside the tank (seizure and subsequent search
took a little less than an hour).
Officers did not need PC to do this, did not need RS to do this  they could do it because they
wanted to.
For a routine seizure and search, investigated the car, carefully tapped on the gas tank, and based
on the sound from the top, they recognized that the gas tank had been modified  they
dismantled the car, and removed the gas tank, and found drugs.
Is this a routine or nonroutine search?
o From last case, can infer the court is going to require some additional level of fact-based
knowledge and inference to permit something beyond a routine search to be reasonable.
o So, if something is more than a routine search (dismantling the car), based on what the
officers know may not be a justified intrusion and the evidence may need to be
38

suppressed.
Court unanimously approved the warrantless, suspicionless search and seizure (search in question
did not require reasonable suspicion).
Chapter 5  Fourth Amendment Remedies and the Exclusionary Rule

The following stuff is the area between substantive 4th Amendment rights and procedural 4th Amendment
rights.
A. Introduction





For every constitutional right, there has to be a remedy.
4th Amendment, 5th Amendment, & 6th Amendment  most important remedy = (fundamental remedy for
violations of those constitutional rights is the exclusionary remedy.)
o A person who has suffered a 4th, 5th, or 6th amendment violation that produces evidence against her, can
have the evidence suppressed and not used in court.
When the government (or agents acting on behalf of the government), violate the constitutional rules regulating
searches and seizures, a number of remedies are available.
o Include civil suits seeking damages from individual government agents and from the governmental
entities that employ them, criminal prosecutions of individual law enforcers who violate constitutional
rules, and administrative sanctions against those officers.
Most commonly used remedy --- Exclusionary Rule
Exclusionary remedy applies not only to evidence obtained as a direct result of a constitutional violation, but
also to evidence indirectly derived from the violation.
B. The Exclusionary Rule and Constitutional Judicial Review


Weeks
v.
United
States
(1914)






Adopted the Fourth Amendment Exclusionary Rule
Weeks decision is pretty much Boyd applied  takes Boyd test and applies it to a setting where
there is a warrantless search for documents.
D was arrested without a warrant. PO searched his home without a warrant and took possession
of various papers and articles found. Rights are tied to property; Mr. Boyd filed to have his paper
returned (writ of replevin = remedy), saying that my property was illegally taken, and therefore,
my property should be returned.
Officers had broken into the D’s home (using a key shown to them by a neighbor), confiscated
incriminating papers, then returned again with a U.S. Marshal to confiscate even more (Federal
agents searched his home without a warrant twice).
Not only did they not have a search warrant, which the Court held was required, but they could
not have gotten one had they tried. They were so lacking in sworn and particularized information
that “not even an order of court would have justified such procedure.”
SC held that someone, whose 4th amendment rights have been violated, can, in federal court, get
the evidence suppressed and the property retuned  the evidence cannot be used against you.
In a federal prosecution/trials, the Fourth Amendment barred the use of evidence secured through
an illegal search and seizure (aka bars the use of evidence unconstitutionally seized by federal law
enforcement officers).
The problem with the Exclusionary Rule is that the criminal goes free, evidence is suppressed, all
because the constable blundered even if the evidence is really probative of guilt.
C. Incorporation of the Bill of Rights and the Exclusionary Rule

AKA the Exclusionary Rule and the States

SCOTUS held that the right to be free from unreasonable searches and seizures is a fundamental
39
Wolf v.
Colorado
(1949)






Mapp v.
Ohio
(1961)




right, but the exclusionary remedy was not.
o Justice Frankfurter delivered opinion of the court  Fundamental Rights Theory – if a
right is so fundamental that we cannot imagine a free society without it, then 14 th
Amendment imposes that right on the states -- applied – since we can imagine a
democracy that does not have that remedy, the concept is not implicit in the concept of
ordered liberty under the Due Process Clause.
o In order to be a fundamental right, then we would not be able to imagine a just,
democratic society without that right – the court decides that they could imagine an open,
free, democratic society without the exclusionary rule.
Does a conviction by a State court for a State offense deny the “due process of law” required by the
Fourteenth Amendment, solely because evidence that was admitted at the trial was obtained
under circumstances which would have rendered it inadmissible in a prosecution for violation of a
federal law in a court of the United States because there deemed to be an infraction of the Fourth
Amendment as applied in Weeks v. United States.
o In a prosecution in a State court for a State crime the Fourteenth Amendment does not
forbid the admission of evidence obtained by an unreasonable search and seizure.
Do the Fourth Amendment and the Exclusionary Rule apply to the States? This court held, no 
Weeks does not apply to state courts and state crimes.
o Not imposed on the states because there were alternative remedies – sue under writ of
trespass, local prosecutor can charge offending officers, administrative crimes, injunctive
relief
Illegal searches and seizures – these actions violated the 14th amendment due process, not because
the 4th Amendment contained provision, but because when looked in the abstract, the court said
we cannot imagine a decent democratic society that permits unreasonable searches and searches.
The right to be free from unreasonable searches and seizures is a fundamental right, but the
exclusionary rule is not a fundamental right.
SC revisited the question of whether it was imposed upon the states.
Overruled Wolf v. Colorado and extended the exclusionary rule to the States, and held, in fact, that
the 4th Amendment was imposed upon the states and that included all its judicial additions including the
exclusionary rule. It is not enough to say that you cannot engage in unreasonable searches and seizures,
there must be an effective remedy.
Officers forced open a door to Ms. Mapp’s house, kept her lawyer from entering, brandished what
the court concluded was a false warrant, then forced her into handcuffs and canvassed the house
for obscenity.
Mapp imposed the 4th Amendment on the states and held that all the elements of the Supreme
Court’s interpretation of the Fourth Amendment were also imposed on the states --- aka adopting
the exclusionary rule for everyone in the states as well.
An error that arises from nonrecurring and attenuated negligence is thus far removed from the
core concerns that led us to adopt the rule in the first place.
Applied the exclusionary remedy to state, as well as federal, prosecutions.
D. Limiting the Impact of the Exclusionary Rule

The most important constraining device is, however, the acceptance of the theory that the sole purposes of
the exclusionary rule is to deter police misconduct, which in turn justifies the balancing of the costs and
benefits of exclusion in deciding whether to apply it.
(1) BALANCING COSTS AND BENEFITS

United
States v.

The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim;
instead the rule’s prime purpose is to deter future unlawful police conduct and thereby effectuate
the guarantee of the fourth Amendment against unreasonable searches and seizures.
The rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally
40
Calandra
(1974)



through its deterrent effect, rather than a personal constitutional right of the party aggrieved.
o In other words, the exclusionary rule is no longer considered an essential component of
the 4th Amendment, but is merely a remedy devised by the justices to deter
unconstitutional governmental misconduct.
Not being enforced to protect your rights, only reason for ER is to have future general deterrence
of police misconduct (therefore, educating police about what they are entitled to do and what they
are not entitled to do and the cost of violating those rules).
ER is the only remedy that the judge in a criminal trial controls – if someone moves to have
evidence suppressed in her own case, can be vindicated right now in this criminal case, by a ruling
right now by this criminal trial judge that is presiding over the case  aka the judge can enforce
the right of unreasonable searches and seizures in the presiding case right now.
Exclusionary Rule, under the 4th Amendment, is not inherent in the 4th Amendment and is not part
of the 4th Amendment rights, it is a judge made rule that was intended to deter police misconduct
and there it was subject to balancing and the court said we will balance the cost of society
excluding evidence against its deterrence benefits.
(2) THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE





United
States
v. Leon
(1984)




Adopted “Good Faith” Exception to the Exclusionary Rule for violations of the 4 th Amendment.
Only applies in cases where a warrant has been issued.
Whether the Fourth Amendment Exclusionary Rule should be modified so as not to bar the use in
the prosecution’s case-in-chief of evidence obtained by officers acting in reasonable reliance on a
search warrant issued by a detached and neutral magistrate but ultimately found to be
unsupported by probable cause.
PO developed some reason to believe Leon was part of a group of people involved in drug
importation (monitored people, searched records, followed people), and when they decided they
had enough information for a warrant, they applied for a warrant and got a warrant.
o
PO did exactly what the courts have asked them to do – investigate, warrant
applications, submit facts to judge, etc.
o Had a facially valid warrant executed, pursuant to warrant, found marijuana.
D’s argument  the warrant was invalid because it was not supported by probable cause.
o SC rejected this argument  If thinking about the ER amounting to deterring police
misconduct, there is no misconduct to deter here, the PO did all they could do and it was
the right stuff.
When police are operating in good faith reliance upon a warrant, even if a judge later decides the
warrant was deficient, the exclusionary rule will not have to be applied.
o If officers in good faith rely on a warrant, even if declared invalid, the evidence may be
introduced at the D’s criminal trial in the prosecutor’s case-in-chief, so long as a
reasonably well-trained officer would have believed that the warrant was valid (aka the
exclusionary remedy is not available).
Actively balancing costs, harm to society, excluding evidence, etc. on each side of the scale.
Supreme Court emphasized that the 4th Amendment Exclusionary Rule is to deter police
misconduct, and therefore, if there is no misconduct to deter, the Exclusionary Rule imposes no
costs and the benefits are nonexistent.
Case noted situations in which a reasonably well-trained officer would not rely on a warrant
subsequently declared effective (aka where the good faith exceptions does NOT apply and thus
exclusionary remedy remains available)
o (1) “Knowing or reckless falsity of the affidavit on which the determination was based.”
 Non-suppression rule of Leon would not apply if the magistrate who issued the
warrant relied on information supplied by a police officer who knew that statements in
the document were false or who recklessly disregarded the truth  Franks v. Delaware
o (2) “the issuing magistrate wholly abandoned his judicial role” (i.e., not acting in
pursuance of duties as a neutral and detached magistrate, but more so helping the cops)
o (3) When an officer may not rely on a warrant based on an affidavit “so lacking in indicia
of probable cause as to render official belief in its existence entirely unreasonable.”  no
good faith reliance on that warrant  arises when either any reasonable officer could
41
understand that the facts being submitted to judge do not amount to PR or when on its
face, no real officer could think its legit (i.e., violations of particularity requirement).


Herring
v.
United
States
(2009)
Massachusetts v. Sheppard (1984)  (Leon’s companion case)
o PO seized evidence related to a homicide pursuant to a warrant later declared invalid because of a
technical error committed by the issuing magistrate.
o Challenge is to the warrant as to the particularity requirement – does not describe with
particularity what the officers are to search and seize (facially invalid)
o SC held that the evidence would not be excluded because the officers relied on good faith on the
conversation with the judge and their own efforts, presuming the warrant was valid.
Groh v. Ramirez (2004) 
o Supreme Court revisited the question of remedies for searches conducted in violation of the
particularity requirement in this case.
o Warrant authorized them to search a blue house (that was it) and the court held that this was such
a clear, blatant, violation of particularity requirement, that no one in good faith could rely on this
warrant and that the warrant was invalid.

Search was conducted pursuant to a warrant that failed to describe the “persons or things
to be seized.” Because of this violation of the particularity requirement imposed by the
Fourth Amendment, the Supreme Court ruled that “the warrant was plainly invalid.”
o The warrant was so facially invalid that reliance on it could not be regarded as reasonable.






State v.
Handy
(2011)


Court is still disputing the nature, scope, and application of the exclusionary rule.
What if an officer reasonably believes there is an outstanding arrest warrant, but that belief turns
out to be wrong because of a negligent bookkeeping error by another police employee?
o The parties agree here that the ensuing arrest is still a violation of the 4 th Amendment, but
dispute whether contraband found during a search incident to that arrest must be
excluded in a later prosecution.
Court held that the ER would only be applied where the police misconduct was intentional or at
least reckless, where it was merely negligent, the GF exception could apply because how do you
deter unintentional conduct.
o We can conclude that the ER will only be applied by the SC and under 4th amendment
federal law if the police misconduct is intentional or reckless.
Separation of Federal and State Constitution interpretation in this case.
New Jersey Supreme Court suppressed evidence found after a police department dispatcher
erroneously reported the existence of an arrest warrant for the suspect.
A SITA led to the recovery of drugs.
o Was arrest and subsequent SITA valid?
Government argued in state court that this is just Herring revisited, NJSC rejected reliance on
Herring 
o (1) NJ has their own State Constitution that they interpret separately, and since NJSC has
the final power to interpret their State Constitution, but as long as we provide more rights
to the USSC applying to the 4th Amendment (state law cannot fall below floor supplied by
4th Amendment), because 4th Amendment is imposed upon the states. But when we use
our State Constitution to apply rights and remedies that the 4 th Amendment does not, the
officer does not get to rely upon the false information in making the arrest and when he
does, the evidence should be excluded.
o (2) NJSC thinks that even under Herring, the evidence would still be excluded (GF does
not apply).
The state court emphasized the difference between having the false report delivered by an
employee of the police department (the dispatcher) from an employee of the court’s clerk office.
42
(3) THE INDEPENDENT SOURCE AND INEVITABLE DISCOVERY
EXCEPTIONS

Silverthorne Lumber Co. v. United States (1920) 
o Doctrine requiring courts to suppress evidence as the tainted “fruit” of unlawful governmental
conduct had its genesis in this case.
o Court held that the exclusionary rule applies not only to the illegally obtained evidence itself, but
also to other incriminating evidence derived from the primary evidence.

Extended the exclusionary rule to evidence that is the fruit of unlawful police conduct.
o Independent Source Doctrine (exception to the exclusionary rule)  allows the prosecution to use
evidence only if it was, in fact, obtained by fully lawful means.
o SC held, even if there is a violation of 4th Amendment in obtaining evidence, if they already have
PC based upon an independent source of information at the time they conduct the search and
seizure, the fact that they some way violate the 4 th Amendment will not lead to the exclusion of the
evidence.



Nix v.
Williams
(1984)





Police set up a system of searching fields in counties, set up grids and teams of police officers and
volunteers were assigned to different part of grids in order to search for the body.
The day before body was found, the search has been terminated but would have proceeded the
next day. The body was found in the interim.
If the officers had not violated William’s 6th amendment rights, it would have inevitably
discovered the body (like the next day) and it would have been found.
The fruit of the poisonous tree doctrine is applicable to violations of the Six Amendment right to counsel.
Is there an inevitable discovery exception to the exclusionary rule? YES.
o “If the prosecution can establish by a preponderance of the evidence that the information
ultimately or inevitably would have been discovered by lawful meanshere the
volunteers’ search then the deterrence rationale has so little basis that the evidence
should be received. Anything less would reject logic, experience, and common sense.”
o Unconstitutionally obtained evidence may be admitted at trial if it inevitably would have
been discovered in the same condition by an independent line of investigation that was
already being pursued when the constitutional violation occurred.
o If PO would have inevitably discovered the evidence without the constitutional rights
violation, the evidence should not be excluded under the 4 th Amendment exclusionary
rule.
Government should not be put in a worse position than it would have been without the violation.
The initial illegality in this case was the violation of the suspect’s Sixth Amendment rights – the
officers deliberately elicited an incriminating statement from him in the absence of his counsel.
Also held, as long as the government could show by preponderance of the evidence that the
evidence would have been found inevitably, this exception to ER applies, and the evidence
shouldn’t be excluded
o Preponderance of the evidence standard (lowest evidentiary standard in our system) 
just more than 50%.
E. Standing to Suppress Evidence
(1) PERSONAL RIGHTS, PROPERTY, AND FOURTH AMENDMENT
STANDING

SC has held that Fourth Amendment rights are personal rights  to have a standing to challenge the legality of a
search or seizure in order to seek the suppression of relevant evidence, a person must establish “that he himself
was the victim of an invasion.”
o A person has a standing, for example, if he was the person seized, or government agents searched his
home.
43

 3 different time periods: (1) before 1960; (2) 1960-1978; (3) 1978+.
Fourth Amendment standing traditionally was linked to property rights, but in recent years property has been
supplanted by a reasonable-expectation-of-privacy model intended to determine whether a person’s substantive
Fourth Amendment rights were violated.
o Prior to 1960, courts used property rights to define standing  if you had an identified right/interest
under property law, you had a right to challenge. If you didn’t, you could not challenge the search or
seizure of property.
o In 1960 SCOTUS expanded the classes of people who would have standing to challenge the searches
and seizures of property.


Jones v.
United
States
(1960)







Federal agents seized narcotics belonging to Jones in a search of someone else’s apartment. Jones
was prosecuted for possession of the narcotics.
Jones did not own the apartment, he was not a tenant of the apartment, he was just staying in his
friend’s apartment. PO expected drugs, and without a warrant searched the apartment.
o Under traditional property law concepts, he would not have had a standing to challenge
the government search of the apartment and the discovery of and seizure of the heroin
(he did not have any property interest in this place, and therefore, the evidence could not
be suppressed).
The area searched did not belong to the defendant, but the resident had allowed Jones to exercise,
possession, control, and dominion over the apartment to an extent sufficient to create standing.
SC affirmed that 4th Amendment standing traditionally had been linked to property rights.
o A range of property interests, like “ownership in or right to possession of the premises,
the interest of a lessee or licensee, or one with dominion,” were the bases for standing.
Only someone with a property-based interest could contest the search or seizure of property.
SCOTUS expanded its notions of who had standing  they did not get rid of property  but
ADDED:
o (1) legitimately on the premises standing – that because he was there, not as an intruder,
but staying there with the friend’s permission, he had standing to challenge the entry into
and search of the apartment. (Rakas overruled and objects) NOTE: After Jones #1 AND
property is ok to assert a standing
o (2) Automatic standing – existed when a person was charged with a possessory offense.
Government must prove that the person charged had possession of the property to
charge the person with a possessory offense.

PROBLEM with automatic standing: Someone could claim standing under
traditional property law standing, but that presents a confession. Person would
have to confess to the crime to claim the 4th amendment violation, so if he loses
suppression motion, government has a confession to use. (the government
cannot force him to give up his 5th Amendment right, aka he cannot be put in the
cruel position/dilemma of having to give up one right to assert another).

Aka a person would have to give up their 5 th amendment right.
Court does not reject property interest standing idea but says that there are additional classes of
people who have standing as well (aka court increasing availability of standing so more people
could now challenge 4th amendment violation).
Court said, ESSENTIALLY, Mr. Jones had a sufficient connection with the apartment to have
standing even though he did not have a property interest. He stayed there frequently, he kept
clothes in a closet there, had a key, and stayed here when his friend was out of town. Court said
even w/o a defined property interest, he had a sufficient interest in the place (privacy notion) to
have a standing to challenge.
Simmons v. United States (1968) 
o Simmons was a member of a group who committed a bank robbery. Investigators found property
belonging to Simmons that implacted him in the crime, but wasn’t an instrument of the crime.
o “Simmons Standing”  the charge was not a possessory offense, charge was bank robbery.
Evidence that was being contested from an unreasonable search of the home included clothing that
matched the clothing one of the bank robbers was wearing. Automatic standing was not available
because it was not a possessory offense.
44
Court held  in nonpossessory offenses, if a person testifies under oath (i.e., that’s my shirt) at a
suppression hearing, in order to get standing under 4th amendment to try and get evidence
excluded at trial because it was the product of an alleged illegal search and seizure, that testimony
under oath at a suppression hearing CANNOT be used as evidence in the government’s case in
chief at trial.
o Court held that a D could not be forced to abandon his 5 th Amendment privilege against selfincrimination in order to assert his 4th Amendment rights.

Therefore, if a D testified at a suppression hearing that he had a possessory or ownership
interest in property in order to gain standing, his testimony could not be used against him
in the prosecution’s case in chief.
o Court held that the testimony of a D in support of a Fourth Amendment motion to suppress
evidence may not be used against her at trial, over her objection, on the issue of guilt.

D can safely get on the stand and say “yes, that is mine” and by asserting a property
interest, the D now has standing. But if the suppression motion fails, the government
cannot use that testimony in its case in chief against the D.
o SCOTUS didn’t rule on: could that testimony in the suppression hearing be used to impeach a D
that got on the stand at trial that testified in a way that contradicted the statements made at the
suppression hearing?
United States v. Salvucci (1980) 
o Court abolished the “automatic standing” rule.
Rakas overruled “legitimately on the premises” standard and replaced it with “reasonable expectation of
privacy” analysis from Katz.
o Why? (1) a person could be legitimately on the premises and not have an expectation of privacy
(visitor, business-invitee [Minnesota v. Olson]); there has to be some greater connection with the
place than just being there to have an expectation of privacy – to minimal of a connection.
Alderman v. United States (1969) 
o “Conversational standing” – if the government uses electronic surveillance to monitor
conversations, certain groups of people have standing.
o Government conducted electronic surveillance – electronic surveillance of his home gave him
standing under the 4th amendment to challenge the constitutionality of the wiretapping or bugging,
AND ALSO HELD: any party to the conversation also had standing to challenge the search and
seizure of the conversation by means of the ES.

But note Olmstead – court didn’t treat conversations as property.
o Physical trespass into home by government agents provides homeowner with standing to
challenge the seizure of both tangible property and intangible conversations.
o



(2) STANDING AND EXPECTATIONS OF PRIVACY
(1) Search or Seizure?
(2) Are the persons rights affected? Did the person suffer a violation of his or her rights?
(3) Was the search and/or seizure constitutional or unconstitutional?
*** Opinion in Rakas held that these questions were a waste of time --- the ultimate question = were this person’s
personal rights violated? Did the search violate the person’s reasonable expectation of privacy?
Question of standing thus becomes merged with the question of whether the challenged action infringed an interest protected by
the amendment  Whether this particular defendant’s reasonable expectation of privacy was intruded upon?


Rakas
v.
Illinois
(1978)

Rakas and company convicted of armed robbery. PO stop Rakas in a car that matches the
description of the car and people involved in a robbery. PO search the people and the car and find
shell casings and a shotgun.
Seemed to abandon the traditional property bases for standing, and held, that individual must
possess a “legitimate expectation of privacy in the invaded space” to have standing to challenge the search of
an automobile.
Involved an automobile search and seizure. Owner of the car was the driver, the two petitioners
were the passengers (they did not challenge the seizure – the 4th Amendment legality of the seizure
was not at issue), but they did challenge the search.
45
1)
PO stopped an automobile that purportedly met the description of the car used in a
robbery that had transpired moments earlier. The 4 occupants, including its owner who
had been driving, were ordered out of the car and the PO searched the passenger
compartment (rifle shells were found, and a sawed-off rifle was found).
At the time of this case there was no decision whether passengers can challenge the seizure (until
Brendlin in 2007).
HELD  they did not have standing because (1) they never asserted a possessory or property
interest in the gun and in the ammunition (which under traditional property rights standing,
would have given them standing)
1) Remember: In Simmons, the SC did not decide whether the suppression hearing testimony
could be used on cross-examination in future trials (but after Simmons, Illinois SC ruled
and held that under Illinois law, if someone testified “that’s not mine” in a suppression
hearing but in a trial said “I’ve never seen it,” that testimony could be used to impeach
them (aka they might be precluded from testifying at trial; so they didn’t claim ownership
because they were scared it would preclude them from testifying at trial.
i. So they did not have a property interest, and they did not have a reasonable
expectation of privacy (Court seemed to use expectation of privacy idea to
define 4th Amendment rights a least in a global way as it did in this case).
After Rakas, to challenge a search a person has to be able to assert an expectation of privacy that
the court is going to recognize as reasonable or legitimate.



Brendlin
v.
California
(2007)




Rawlings
v.
Kentucky
(1980)
PO stopped a car in which Brendlin was a passenger. They found out Brendlin was a parole
violator, searched him and the car, and found materials used to make meth.
When a police officer makes a traffic stop, the driver of the car is seized within the meaning of the
Fourth Amendment. The question in this case is whether the same is true of a passenger? We
hold that a passenger is seized as well and so may challenge the constitutionality of the stop.
Everyone in the car is seized during a traffic stop, so therefore, everyone in the car has standing to
challenge the seizure.
PO showed up for an arrest warrant for someone who lived in the house, where the other people
were visiting. They came in the house and the guy named on the arrest warrant wasn’t there. They
searched the house for him (which was ok, they had a warrant), but they also seized the people
who were in the house (warrant did not name those people, and did not have PC relating to those
people), they became suspicious because they smelled weed (this does not become PC to arrest
them), so the officers seized the people and said you can leave if we can fully search you.
Rawlings challenged a search of his female companion’s pursue, in which he had hidden drugs.
At the time of the search and seizure he said, “this is my pile of illegal drugs.”  challenge of the
evidence seized.
Court ruled he lacked standing  A D who hides drugs in a friend’s purse in order to avoid their
detection by police has no legitimate expectation of privacy in the purse (aka he did not have a
reasonable expectation of privacy in X’ purse).
Evaluate under the totality of the circumstances
o Must evaluate under the TOC to determine whether an individual had a reasonable
expectation of privacy, considering such factors not only as ownership of property seized,
but also the location of the property at the time of the search.
Standing  only if reasonable expectation of privacy in area searched.
A person may NOT successfully challenge a search of an area in which she has no reasonable
expectation of privacy even though she has a possessory or ownership interest in the property
seized during the search of that area.







Touches on the issue mentioned in Rakas where people do not have a strong connection with the
property but are there for business purposes.
PO get an anonymous tip that people are in the apartment bagging drugs for sale. (does not give
PO PC) just like Spinelli or Gates – this unverified tip does not give them probable cause. D and
lessee of an apartment were sitting in an apartment bagging cocaine. PO observed through a
drawn window blind what they were doing. PC once PO saw.
46

Minnesota
v. Carter
(1998)






D1 and D2 sought to have evidence later seized by the PO from the host’s apartment suppressed at
their trial on the ground that the surveillance by PO was unconstitutional.
4th Amendment violation?
o No --- held: any search which may have occurred did not violate their Fourth
Amendment rights.
Problem was that the officer violated the 4 th amendment – he trespassed. Without the trespass
there is no probable cause. So anyone who has standing will prevail in a 4 th amendment challenge.
(person who rented and lived in the apartment, but she is not the D, the two visitors were the D’s
but they do not have standing because they do not have an expectation of privacy they are only
business invitees, only for completing commercial transaction).
An overnight guest in a home may claim the protection of the Fourth Amendment, but one who is
merely present with the consent of the householder may not.
o Respondents here were not overnight guests, but were essentially present for a business
transaction and were only in the home a matter of hours.
Court focused on 3 factors that, in its view, placed this case on the no-right-to-challenge side of the
line:
o “The purely commercial nature of the transaction engaged in here, the relatively short
period of time on the premises, and the lack of any previous connections between the D’s
and P, all lead us to conclude that their situation is closer to that of one simply permitted
on the premises.”
Property used for commercial purposes is treated differently for Fourth Amendment purposes
than residential property.
o An expectation of privacy in commercial premises, however, is different from, and indeed
less than, a similar expectation in an individual’s home.
o The D’s did not have a significant connection to X’s apartment.
Minnesota v. Olson (1990) 
o An overnight guest in a house had the sort of expectation of privacy that the Fourth Amendment
protects, a mere business invitee does not.
United
States
v.
Payner
(1980)
[Transition between the standing doctrine and the “fruit of the poisonous tree doctrine”] [FOTPT
Doctrine is closely related with standing doctrine] [shared characteristic: the requirement that a person
claiming/seeking relief can assert that his/her personal rights were violated].

Did the District Court properly suppress the fruits of an unlawful search that did not invade the
respondent’s Fourth Amendment rights?

IRS launched an investigation into the financial activities of taxpayers living in the Bahamas.
Government set up a scheme to gather evidence against US tax payers who were attempting to not
pay taxes by using a foreign bank. The bank rep was in Florida, federal agents purposefully broke
into foreign banker’s hotel room, stole contents from his brief case (bank records of customers),
photocopied the records and placed them back ---all done without a warrant, and without a clear
showing of PC.

IRS intended to use the contents of the briefcase against Payner (a target of the IRS investigation).

Defendant tried to suppress the evidence based on a theory that the government had knowingly
and willfully participated in an unlawful seizure of the VP’s briefcase.
o The standing requirement prevented him from successfully asserting this 4 th
Amendment claim.

Majority held that although the government engaged in purposeful, intentional violations of 4 th
amendment rights, they created a carefully crafted scheme to carefully violate the banker’s fourth
amendment rights (aka the SC has said that intentional, purposeful, violation of rights is subject to
exclusionary rule), violation of rights was against the banker, and not Payner (the US citizen),
Payner did not have standing to challenge the admission of evidence obtained by violating the
banker’s rights.

Even though the evidence was directly derived from violation of constitutional rights, it was not
the fruit of the poisonous tree as to Payner because his rights were not violated.

Cannot claim 4th Amendment violation when someone else’s constitutional rights were violated.
47
F. The Fruit of the Poisonous Tree Doctrine




Standing doctrine attempts to define WHO has standing to challenge searches and seizures.
The poisonous tree = the violation of a constitutional right.
The fruit = the evidence derived directly or indirectly from that violation; the evidence secured by the government
as a result of that violation.
The FOTPT doctrine adds a test for determining what evidence will be subject to exclusion because of
unconstitutional government conduct.



Wong
Sun v.
United
States
(1963)



FA stopped a man (Hom Way) in the early morning, they suspected he was a drug dealer, did not
have any prior relation with him as a drug informer. When they seized him without PC or even
RS, the officers searched him and found heroin in his pocket. Hom Way told officers that he
purchased it from Blackie Toy.
Federal drug enforcement officers conducted a series of searches and seizures of 3 different men;
each of those searches and seizure violated the 4 th Amendment rights of each of them.
Evidence = statements from all men, and evidence of heroin (tangible sort) possessed by 1 of the
men.
Wong gave statements that were incriminating (orally, and written down, even though he refused
to sign the statement), that statement, at the federal building, together with the heroin found at
Jonny E’s apartment were evidence against Wong Sun. Wong Sun did not have standing to
challenge search and seizure that occurred at another person’s home, and it happened before
Wong Sun’s rights violations.
Derivative Evidence Doctrine --o J. Toy was arrested on suspicion of narcotics trafficking and he made a statement to police
implicating J. Yee. Police then proceeded to arrest and search Yee. After they discovered
narcotics in his bedroom, Yee made a statement implicating W. Sun. Sun was then
arrested, released, and then several days later he made a statement concerning the
narcotics transactions.
o The arrest of Toy was held unlawful because it was not based on probable cause.
o The question before the Court was how far the taint of that illegality should travel down
the road of subsequent events?

Were the statements and evidence obtained from Yee and Sun inadmissible
against Toy because they could all be traced back to his unlawful arrest?
o Court’s Analysis:

Where the secondary evidence was discovered by exploitation of the initial
illegality, it must be suppressed; however, where it is obtained by means
sufficiently removed from the initial illegality, it is admissible.

The statement made by Toy was excluded from evidence because it
was the direct product of his unlawful arrest, having occurred
immediately thereafter.

The statement of Yee, as well as the narcotics found in his home, were
also suppressed because the federal agents got to them solely and
directly by using the information illegally obtained from Toy.

Sun’s statement, however, was admissible against Toy because,
although it was the “fruit of the poisonous tree,” its connection to the
initial illegality was attenuated  Sun had been released and had
voluntarily returned days later to make the statement. The taint of
Toy’s unlawful arrest had dissipated with the passage of time and the
intervention of Sun’s own free will.
Establishes the exploitation doctrine and the attenuation doctrine, but also makes clear that the
FOPTP can be tangible evidence (like heroin) or it can be intangible evidence (like statements).
Court’s effort to determine/define when the link between the evidence and the rights violation is so close that
evidence should be suppressed really has (2) parts.
In determining whether evidence is “fruit of the poisonous tree,” the following analysis must take place:
48
(1) The violation of rights, if it exits, must be of the person seeking to suppress the evidence (personal
right),
Decide if there is a primary rights violation? (illegality), and
(2) Court broadly defines the doctrine as follows: whether granting the primary illegality (violation of the
right), the evidence was come at by the exploitation of that primary illegality (the evidence has to have been
obtained by taking advantage/relying upon/exploiting the rights violation to find the evidence.
Was the evidence obtained by exploiting that violation?
***NOT A SIMPLE BUT FOR TEST; the doctrine requires a different kind of link/connection between the
rights violation (poisonous tree) and the evidence that is discovered (the fruits of that violation).
Court’s effort to determine/define when the link between the evidence and rights violation is close that the evidence
should be suppressed really has to parts:
(1) Whether we assume/decide that there is a primary rights violation (illegality), was the evidence obtained by
exploiting that?
(2) A different way of trying to define the difference between evidence that is fruits and evidence that is not --attenuation doctrine (Streiff)  holds that evidence is not suppressible as fruit of the poisonous tree if the
link between the rights violation and the finding of the evidence is so attenuated that the taint of the
violation is purged (the taint of the violation will be eliminated/removed if the link between the evidence
and rights violation is just too attenuated).

Utah v.
Strieff
(2016)





PO stopped the D without reasonable suspicion (aka, he conducted an illegal Terry stop). During
the stop he conducted a routine warrant check on the D and found that the D had a valid
outstanding warrant for a traffic offense. The officer arrested the D, searched him pursuant to that
arrest, and recovered meth and drug paraphernalia.
SC upheld the search, holding that the officer’s “arrest of Strieff thus was a ministerial act that was completely
compelled by the pre-existing warrant. And once the officer was authorized to arrest Strieff, it was
undisputedly lawful to search Strieff as an incident of his arrest to protect the officer’s safety.”
HELD that drugs and paraphernalia found in a search of his clothing were not the fruit of a seizure that was so
obviously illegal, that the state didn’t even argue that it was constitutional. They conceded that the rights
violation had occurred.
Majority opinion: although the seizure of Strieff was illegal, once the arrest was made, the officer was in his
rights, to check to see if there was outstanding warrants, and when he discovered there was, this warrant,
purge the taint of the illegal seizure.
Even if seizure is illegal, if there is a valid warrant, that existence will purge the taint of the illegal seizure, and
the evidence found will not be suppressed.
Brown v. Illinois (1975) 
o Police, without a warrant, broke into, Mr. Brown’s apartment, and hid there until he returned,
surprised him, arrested him and interrogated him at the police station. He was Mirandized, signed
a waiver and confessed. Lawyers argued that the confession was the fruit of the poisonous tree.
o SC HELD that Brown’s statement was the fruit of the poisonous tree, focuses on the time proximity
(violation of rights and giving of confession), two hours was not enough time to purge the taint,
impact of rights violation was still very strong at time of confession. (2) we don’t see any
intervening circumstances that would break the chain connecting rights violation and the obtaining
of his confession, (3) Flagrancy of police conduct.
o 3 factors articulated in this case:

(1) look at the “temporal proximity” between the unconstitutional conduct and the
discovery of evidence to determine how closely the discovery of evidence followed the
unconstitutional search.

(2) consider “the presence of intervening circumstances.”

(3) and “particularly” significant, examine “the purpose and flagrancy of the official
misconduct.”
49
PART II. INTERROGATION, CONFESSION, AND THE RIGHT
TO COUNSEL
Chapter 6  The Fifth Amendment: Voluntariness and Confessions
Two basic issues that must be resolved concerning the admissibility of a confession:
(1) Did the suspect make a legally effective waiver of his/her Miranda rights?
 STANDARD = knowing, intelligent, & voluntary
(2) Was the suspect’s confession voluntary or the result of police coercion?
A. Fifth Amendment Text
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of
War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be taken for public use, without just compensation.
“no person… shall be compelled in any criminal case to be a witness against himself.”  “privilege against compelled
self-incrimination”
A D may not be compelled to testify (to be a witness) against him/herself.
B. Introduction




Focuses of the development of doctrines in US in the late 19 th Century, and from 19th century till now, the
underlining fundamental legal concept that worked in the 5th amendment interrogation cases = voluntariness.
5th Amendment privilege against self-incrimination is a concept that developed in England over a period of
centuries.
Miranda does not overrule idea of voluntariness, it just creates a specialized set of rules for custodial
interrogation.
Miranda rules and its progeny, are designed to ensure that a confession obtained by government interrogators
during custodial interrogation is voluntary.
C. The Law Before Miranda
(1) FIFTH AMENDMENT VOLUNTARINESS

Bram v.
United
States
(1897)
People murdered on board of the American ship. Brown was believed to be the killer and was
seized by the crew and placed in irons and locked up (shackled with metal). Brown says, “it wasn’t
me, it was Bram. I saw him do it.” Bram was seized and placed in irons as well. They got to the
port and were taken into custody. Bram was interrogated and when he was taken into the room,
he was stripped naked, shackled with metal irons and interrogated in a foreign country by
Canadians. (intimidating setting); he did not confess but did say “based upon his story, Brown
could not have seen me do the killing where it occurred, from the location from where he claimed
to see it.” Bram was arrested based off co-suspect’s statement that he saw D commit the crime.
50

When Bram returned to US for trial, federal government treated that as a confession. SCOTUS
held, that there was no way, under the 5th Amendment, that this confession could be treated as
voluntary.
Voluntariness standard to test admissibility:
o
How the court approached measuring voluntariness  any threat, or any inducement
that might be a promise, could be the source of an unconstitutionally, involuntary
confession.

“A confession, in order to be admissible, must be free and voluntary: that is,
must not be extracted by any sorts of threat or violence, not obtained by any
direct or implied promises, however slight, nor by the exertion of any improper
influence.”
o Totality of the Circumstances approach in order to determine whether a confession was
voluntary or involuntary --- procedure rejected in Miranda (saying it was inadequate to
protect constitutional rights in the setting of custodial interrogation).
Look to the circumstances surrounding, and the facts established to exist, in reference to the
confession in order to determine whether it was shown to have been voluntarily made.


(2) FOURTEENTH AMENDMENT DUE PROCESS


Brown v.
Mississippi
(1936)




Whether convictions, which rest solely upon confessions shown to have been extorted by officers
of the State by brutality and violence, are consistent with the due process of law required by the
Fourteenth Amendment of the Constitution of the United States.
SCOTUS reversed a state court conviction on the grounds that it was based upon a coerced
confession, resting upon the 14th Amendment Due Process Clause, not the 5th Amendment.
o Egregious misconduct by the police  investigators tortured the suspects until the
confessed.
Can confessions obtained by torture be considered voluntary and consistent with due process?
NO
Invoked the Fourteenth Amendment Due Process Clause to invalidate a murder conviction
obtained solely on the basis of confessions “shown to have been extorted by officers of the State by
brutality and violence (torture).
Conviction and sentence are void for want of the essential elements of Due Process.
o The state is free to regulate the procedure of its courts in accordance with its own
conceptions of policy, unless in so doing it “offends some principle of justice so rooted in
the traditions and conscience of our people as to ranked as fundamental.
o The freedom of the State in establishing its policy is the freedom of constitutional
government and is limited by the requirement of due process of law.
Court began using voluntariness concept to require states as governed by 14 th amendment DP
clause, to apply voluntariness principles in obtaining confessions as well.
D. Sixth Amendment Text
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of
the state and district wherein the crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance
of counsel for his defence.
This right is fundamental and applies to the states through the Fourteenth Amendment Due Process.
(3) SIXTH AMENDMENT RIGHT TO COUNSEL
51



The Sixth Amendment right to counsel if offense-specific.
o In determining whether the 6th Amendment applies to a particular effort by the government to
deliberately elicit incriminating statements from an accused, the issue is NOT simply whether formal
judicial proceedings have commenced against the accused for some crime, but rather whether such
proceedings have commenced in regard to the specific offense at issue.
6TH AMENDMENT RIGHT TO COUNSEL ATTACHES AUTOMATICALLY WITH THE INTIATION OF
FORMAL ADVERSARIAL PROCEEDINGS.
o CONTRAST: with Miranda created 5th amendment right to counsel --- does not automatically
apply/operate; a person has to request/invoke the right to counsel (Davis  unequivocal statement).

6th amendment right seems broader than the 5th amendment right, because the 5th amendment
does not contain the right to counsel, the court made it up in Miranda, imposed it upon the
settings.
Second fundamental: the standard for determining when after the 6 th a right has attached has the government
violated that right in obtaining statements from the defendant.

Even if a statement is admissible under the voluntariness test, it may still be excluded from trial if
the taking of the statement violated the D’s 6th Amendment right to counsel.
o The right is violated if after formal adversary judicial proceedings have begun (e.g., after
indictment), the police question the defendant outside the presence of counsel or without a
valid waiver of the right to counsel.

Massiah
v.
United
States
(1964)











Majority opinion – conversations overheard through a bug placed in D’s car were inadmissible
because the government had intentionally elicited incriminating evidence after indictment and in the
absence of counsel.
Petitioner was indicted for violating the federal narcotics law. He retained a lawyer, pleaded not
guilty, and was released on bail. While he was free on bail a federal agent succeeded by
surreptitious means in listening to incriminating statements made by him.
CLEAR RULE: once adversary proceedings have commenced against an individual, he has a right
to legal representation when the government interrogates him.
Government may not deliberately elicit statements from a person under indictment in the absence
of counsel.
Federal case, where the specific guarantee of the Sixth Amendment direct applies (not a state court
conviction).
Held  petitioner was denied the basic protections of that guarantee when there was used
against him at his trial evidence of his own incriminating words, which federal agents had
deliberately elicited from him after he had been indicted and in the absence of his counsel.
The Constitution is violated when government agents, in the absence of defense counsel,
deliberately elicit incriminating information from a person against whom adversary judicial
criminal proceedings have commenced.
Held that the defendants have the right to an attorney present during any “critical period” of the
proceedings, including confrontations between defendants and undercover agents for the state,
after “formal adversarial proceedings” have commenced.
Once somebody has been indicted, formal adversarial proceedings have commenced, initiation of
prosecution occurs with the indictment, and therefore FAP have begun, and someone indicted (no
longer a suspect, but a defendant now) is entitled to have counsel present at any critical stage of
the proceeding and anyone confrontation between the now defendant and the government is a
critical stage.
Once formal adversarial proceedings have commenced by indictment or otherwise, a person
automatically has the right to have an attorney.
If there is a confrontation between government and the defendant, that is a critical stage in the
proceedings of the adversarial case, and if during that process the government deliberately elicits a
statement from the suspect, that statement is inadmissible, but only in the case that is covered
under the indictment or however else the adversarial proceedings started.
Extended the right to counsel to a pre-indictment interrogation.
52


Escobedo
v.
Illinois
(1964)


Whether, under the circumstances, the refusal by the police to honor petitioner’s request to consult
with his lawyer during the course of an interrogation constitutes a denial of “the Assistance of
Counsel” in violation of the Sixth Amendment to the Constitution as “made obligatory upon the
States by the Fourteenth Amendment,” Gideon v. Wainwright, and thereby renders inadmissible
in a state criminal trial any incriminating statement elicited by the police during the interrogation.
D made incriminating statements during custodial interrogation, but before the commencement of
formal adversarial proceedings. Court suppressed D’s confession because officers had taken the
suspect into custody after he had become the focus of the investigation, and refused to let him
meet with his attorney.
We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into
police custody, the police carry out a process of interrogations that lends itself to eliciting
incriminating statements, the suspect has requested and been denied an opportunity to consult
with his lawyer, and the police have no effectively warned him of his absolute constitutional right
to remain silent, the accused has been denied “the Assistance of Counsel” in violation of the 6 th
Amendment to the Constitution as made obligatory upon the State by the Fourteenth Amendment,
and that no statement elicited by the police during the interrogation may be used against him at a
criminal trial.
Can a statement made by a person that the police have focused on as a suspect be admitted if the
police have denied a request to speak with an attorney? NO.
o “The interrogation here was conducted before petitioner was formally indicted. But in the
context of this case, that fact should make no difference. When petitioner requested, and
was denied, an opportunity to consult with his lawyer, the investigation had ceased to be
a general investigation of "an unsolved crime. Petitioner had become the accused, and the
purpose of the interrogation was to "get him" to confess his guilt despite his
constitutional right not to do so. At the time of his arrest and throughout the course of the
interrogation, the police told petitioner that they had convincing evidence that he had
fired the fatal shots. Without informing him of his absolute right to remain silent in the
face of this accusation, the police urged him to make a statement.”
E. The Miranda Revolution


Miranda
v.
Arizona
(1966)



SCOTUS attempted, with success to create a universal rule: when somebody is subjected to
custodial interrogation, any statement obtained cannot be admitted unless the government has
used effective procedural safeguards to ensure that the suspect is aware of his/her rights and
talked voluntarily.
Custodial interrogation was inherently compelling of testimony (the coercion, the compulsion
inherent in the custodial interrogation), means that the due process totality of the circumstances
approach used to decide if a statement was voluntary, is inadequate.
o Absent some other equally effective methods as a perquisite to obtaining an admissible
confession, police have to advise the suspect of their (3) rights (AKA, equally effective
means must be used if you don’t give the warnings).
SC devised a set of warnings that the police must give a suspect in custody before they may
interrogate him/her, in order to protect her privileged against self-incrimination.
o In the absence of the procedural safeguards set out in the case, no statement obtained
from the defendant [during custodial interrogation] can truly be the product of his free
choice.”
In setting of custodial interrogation, the inherent pressures that attend that setting (suspect is held
in custody, subjected to police coercive power, not just physical authority, psychological
pressures), those pressures inherent to custodial interrogation and the coercion inherent to
custodial interrogation, require something more than the old fashioned (DPC approach), to make
sure that when someone makes a statement that is incriminating, that person acted, even if there
was police coercion at some point, that person acted with free will and that decision to talk was
without being pressured by police coercion.
A WAIVER of a constitutional right must be knowing, intelligent and voluntary.
o If police give warnings, and receive a waiver of those rights, then the confession is
53
admissible. Without this process, the confession has to be excluded.

Without custody and interrogation, Miranda warnings are not required.
(1) MIRANDA APPLIED: CUSTODY

Berkemer – Traffic stops are not custody for Miranda purposes.




Berkemer
v.
McCarty
(1984)






Officer observed car weaving, followed, stopped the car and asked driver to get out of the car.
Responded complied, PO noticed respondent was having trouble standing.
At no point in this sequence of events did the PO or anyone else tell respondent that he had a right
to remain silent, to consult with an attorney, and to have an attorney appointed for him if he could
not afford one.
SC granted certiorari to resolve confusion in the federal and state courts regarding the applicability
of our ruling in Miranda to interrogations involving minor offenses and traffic stops.
Case presents two related questions: First, does our decision in Miranda v. Arizona govern the
admissibility of statements made during custodial interrogation by a suspect accused of a
misdemeanor traffic offense? Second, does the roadside questioning of a motorist detained
pursuant to a traffic stop constitute custodial interrogation for the purposes of the doctrine
enunciated in Miranda?
HOLDINGS: is a standard, normal, regular, traffic stop, considered a 4 th amendment seizure? YES.
Analogous to what kind of 4th amendment seizure? Terry. (distinct from an arrest). In this context,
of just a traffic stop, does the officer need to give Miranda warnings since there is a 4 th amendment
seizure before asking questions (interrogating)? NO. We assume this is a temporary, brief,
encounter (presumptively temporary); a traffic stop, without more, is not custody for Miranda
purposes, so when officers ask direct question it is not custodial interrogation. An arrest would be
custody. All 4th amendment seizures are not custody, only ones that are those that satisfy the
language of Miranda “some kind of seizure that interferes with the suspects freedom of movement
in a significant way”
For this kind of traffic event, that is in the public, it doesn’t have the same pressure and it is brief
and will be over soon (needs to be carried out and completed expeditiously).
o Inherently coercive practices just don’t apply to these situations.
Can a traffic stop, which is not custody for Miranda purposes, become custody? Yes, when
though? Officer says “you are under arrest” but this is not the only thing that triggers Miranda 
what is the test? Reasonable person in the circumstances would have understand the situation to be. (what
the driver perceives would be something that would tell a reasonable person that you are arrested).
o Doesn’t matter the officer’s subjective intent, the officer has to indicate that the reasonable
person is under arrest.
Mere traffic stop, does not create Miranda custody. Unless and until, the officer, by words and or
actions, communicates that would tell a reasonable person that they are under arrest, Miranda is
irrelevant. When that happens, even if officer does not say “you are under arrest” there is custody
for Miranda purposes.
Yarborough v. Alvarado (2004) 
o Plurality opinion explained how to determine whether a person was in custody for Miranda
purposes:

Custody must be determined based on how a reasonable person in the suspect’s situation
would perceive his circumstances  Berkemer v. McCarty  the traffic stop was
noncustodial despite the officer’s intent to arrest because he had not communicated that
intent to the driver.
Thompson v. Keohane (1995) 
o Two discrete inquiries are essential to the determination: first, what were the circumstances
surrounding the interrogation; and second, given those circumstances, would a reasonable person
have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set
and the players’ lines and actions are reconstructed, the court must apply an objective test to
54
resolve the ultimate: was there a formal arrest or restraint on freedom of movement of the degree
associated with a formal arrest.
(2) MIRANDA APPLIED: INTERROGATION

INTERROGATION = inquiry is whether police officers should know that their actions are reasonably likely to
elicit an incriminating response from the suspect.


Rhode
Island
v. Innis
(1980)



Innis was arrested for murder in which the weapon used in the crime had not yet been discovered.
He was Mirandized twice and said he wanted to speak with a lawyer. Innis was placed in a police
car with 3 officers. On the way to the police station, PO started talking (it would be very sad if a
little girl picked up a weapon; there’s a school in the vicinity, etc.).
Innis interrupted and said he would show the PO where the gun was. He was informed of his
Miranda rights again, he said he understood, but wanted to get the gun away from kids and the
school. Innis was in custody when he spoke and took the PO to where the gun was found.
Whether the respondent was “interrogated” by the police officers in violation of his undisputed
right under Miranda to remain silent until he had consulted with a lawyer?
o Starting point is defining “interrogation

DEFINITION: The Miranda safeguards come into play whenever a person in
custody is subjected to either express questioning or its functional equivalent 
that it to say, the term “interrogation” under Miranda refers not only to
express questioning, but also to any words or actions on the part of the police
(other than those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating response from
the suspect.

A practice that the police should know is reasonably likely to evoke an
incriminating response from a suspect thus amounts to interrogation.
No interrogation here – majority says this was just a normal conversation among the police officers
Dissenters say this was a purposeful attempt to have a conversation that would prompt Innis to
speak about the gun.
(3) INOKING AND WAIVING MIRADA RIGHTS



Michigan
v.
Mosley
(1975)




M was arrested and read his Miranda rights. He invoked his 5th Amendment privilege. PO ceased
interrogation and placed M in a jail cell. Two hour later, a different officer, who wanted to
interrogate M about a different crime, went to M’s cell, and re-read the Miranda warnings, and
took him to a different interrogation room.
M waived his right to be silent, talked and incriminated himself.
The question here was, did this procedure comply with 5 th amendment requires and the Miranda
rights?
The Court held that on these facts – the police ceased interrogation immediately upon request,
waited two hours, a different officer in a different place for the later interrogation, he was again
Mirandized  this showed that the officers respected M’s 5th Amendment rights and was sufficient
to satisfy the Miranda requirement.
o Plurality opinion takes a familiar totality of the circumstances approach to define when a
suspect who invokes their right to remain silent can be interrogated again (aka when a reinterrogation or second interrogation can begin again)
Court held that government could re-start interrogation even the same day, if it had respected his
right to remain silent when he asserted right, but then the government changed the situation. He
was not interrogated by same officer about a different crime 2 hours later, so it’s okay. This was
something different the court emphasized.
Issue is, when a suspect/arrestee, actually invokes his right to remain silent, the 5 th Amendment
right is actually protected under Miranda, when can he be interrogated after he invokes?
The “interrogation must cease” language from Miranda does not mean that police may never
resume interrogation after a suspect asserts his right to silence, but neither does it mean that they
55


Edwards
v.
Arizona
(1981)
need only cease questioning momentarily.
Instead, the Court ruled, the suspect’s rights to cut off questioning is satisfied if the police
“scrupulously honor” his right to silence after he asserts the privilege.
Permits police to resume interrogation, even in the absence of counsel, if the suspect himself
initiates further communication with the police.
SC held that when someone in custody being subjected to interrogation, invokes his right to an
attorney, question must stop, and must stop until he has a lawyer present  fundamental
underlying rule of Edwards.
When an accused has invoked his right to have counsel present during custodial interrogation, a
valid waiver of that right cannot be established by showing only that he responded to further
police-initiated custodial interrogation even if he has been advised of his rights.
An accused, [such as Edwards], having expressed his desire to deal with the police only through
counsel, is not subject to further interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further communication, exchanges, or
conversations with the police.
o Caveat End of opinion UNLESS the accused himself initiates further communication,
exchanges, or conversations with the police.



6th amendment right to have a lawyer representing you when confronted by agents of the government, after some
from of indictment, when 6th amendment right attaches?
It attaches automatically, doesn’t have to be invoked, 6th amendment right to counsel is offense specific,
meaning the right to counsel and protections with it, only govern, and attaches, and only applies to the crimes
described/listed in the indictment.
Right to have a lawyer present is NOT offense specific.


Oregon v.
Bradshaw
(1983)






Davis v.
United
States
(1994)
What does it mean to initiate?
o Edwards opinion established exception: unless the suspect him/herself initiates, but what
does that mean?
Court establishes a rule (plurality adopts) is accepted by all the justices – the suspect has to
demonstrate/express a willingness or desire to a generalized discussion about the investigation
(court’s definition of initiation) do or say something which exhibits/evinces a willingness or desire
of a generalized discussion about the investigation
Plurality – we have to look at the particular facts of this case and when Bradshaw said “Well
what’s going to happen to me now?” he was exhibiting a generalized desire and willingness to talk
to the police about the investigation and crimes for which he had been arrested. (aka no violations
of the Edwards rule).
Edwards: after the right to counsel has been asserted by an accused, further interrogation of the
accused should not take place “unless the accused himself initiates further communication,
exchanges, or conversations with the police.” But even if a conversation taking place after the
accused has “expressed his desire to deal with the police only through counsel,” is initiated by the
accused, where re-interrogation follows, the burden remains upon the prosecution to show that
subsequent events indicated a waiver of the Fifth Amendment right to have counsel present
during the interrogation.
Majority opinion.
To invoke 5th Amendment right to counsel must be explicit so a reasonable officer would understand
this is a request for counsel.
A clear unequivocal statement.
The applicability of the “’rigid” prophylactic rule’ of [Edwards v. Arizona] requires courts to
“determine whether the accused actually invoked his right to counsel.”
o To avoid difficulties of proof and to provide guidance to officers conducting
interrogations, this is an objective inquiry  invocation of the Miranda right to counsel
“requires, at minimum, some statement that can reasonably be construed to be an
expression of a desire for the assistance of an attorney.”
56
But if a suspect makes a reference to an attorney that is ambiguous or equivocal
in that a reasonable officer in light of the circumstances would have understood
only that the suspect might be invoking the right to counsel, our precedents do
not require the cessation of question.
SC held that the Edwards rule does not apply unless a suspect unambiguously asserts his right to
counsel.
Suspect must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer
in the circumstances would understand the statement to be a request for an attorney --- unambiguously
request counsel.
SC held that the guy has a responsibility to invoke his right to counsel in clear and unambiguous terms
Suspect is not limited to asserting the rights only at the beginning, at any point during the
interrogation, the suspect can say I want a lawyer and it must stop, even if they have been talking
for 30 minutes.
Questioning must cease only in the face of an unambiguous request for counsel.






(4) COERCION AND WAIVER




Illinois
v.
Perkins
(1990)






Perkins is relevant on the 5th amendment side of the line.
Miranda warnings are not required when the suspect is unaware that he is speaking to a law
enforcement officer and gives a voluntary statement.
Whether an undercover law enforcement officer must give Miranda warnings to an incarcerated
suspect before asking him questions that may elicit an incriminating response.
Undercover agent was placed in a cell of respondent P, who was incarcerated on charges unrelated
to the subject of the agent’s investigation. P made statements that implicated him in the crime that
the agent sought to solve. THESE STATEMENTS ARE ADMISSIBLE.
o Conversations between suspects and government agents do not implicate the concerns
underlying Miranda.
o Although he was literally in custody, this is not the kind of custodial interrogation that
Miranda is about (aka the undercover agents did not need to advise him of his
constitutional right) (he was not subjected to the kind of pressure that Miranda was
designed to deal with – “overbearing tactics of police officers”) the court describes what
happened as a “conversation.”
Statements are admissible because 5th Amendment does not prohibit the use of secret agents to
investigate crimes and does not prohibit deception by the use of undercover informers even for
jailhouse inmates.
Note: Page 370; paragraph 3.
6th Amendment is not available (held in Massiah v. United States, United States v. Henry, and Maine v. Moulton
that the government may not use an undercover agent to circumvent the 6th Amendment right to counsel once
a suspect has been charged with the crime).
o
After charges have been filed, the Sixth Amendment prevents the government from interfering with
the accused’s right to counsel.

In the present case, no charges had been filed on the subject of the interrogation so 6th
Amendment is not applicable
Government is allowed to use trickery  here there was no violation of 5th Amendment and confession was
admissible because he wasn’t indicted for murder and therefore, formal adversarial proceedings had not yet
commenced/been initiated.
o Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of
compulsion or coercion to speak are not within Miranda’s concerns.
Addresses the question of whether a waiver is even needed in a particular case? Bradshaw
emphasized in applying Edwards, it is not enough that suspect initiates, the government, after that
must mirandize and get a waiver. Government has to prove after Miranda warnings, that there is a
knowing, intelligent, voluntary waiver.
Government has the burden of establishing the waiver.
(5) MENTAL CAPACITY TO WAIVE MIRANDA RIGHTS
57

5th A prohibits government coercion  mental illness is not government coercion.

Colorado
v.
Connelly
(1986)






C, suffering from schizophrenia, in a psychotic state, and responding to “command
hallucinations” (he heard the voice of God), ordered him to confess. He approached the police on
the street and confessed to a murder.
PO advised C of his constitutional rights; C said he understood his rights but still wanted to talk
about the murder.
Colorado SC affirmed the suppression order, holding that the statements were involuntary and the
Miranda waiver invalid.
Addresses the issue of waiver in regard to mental insanity.
Court held that the fact that he was not just schizophrenic but suffering an episode of vary active
schizophrenia at the time of his confessions, the fact that he confessed, as perhaps a result of his
schizophrenia, did not make his waiver of Miranda rights involuntary because they were not a
product of government coercion even if they were a product of his mental illness.
Absent coercion by government actors, Miranda doesn’t prohibit.
The Court concluded that the “involuntary confession” jurisprudence is entirely consistent with
the settled law requiring some sort of “state action” to support a Due Process Clause violation.
F. Miranda Under Attack
(1) THE ATTEMPT TO OVERRULE MIRANDA


Michigan
v. Tucker
(1974)



Procedural safeguards were not themselves rights protected by the Constitution but were
instead measures to ensure that the right against compulsory self-incrimination was
protected.
Third paragraph: distinguishing between genuine compulsion and a Miranda violation
(foundational idea that comes into play with the Fruits of the Poisonous Tree Doctrine and the 5 th
Amendment).
Actual coercion (Brown v. Mississippi -torture) and a simple Miranda violation.
Already looked at this case – Justice O’Connor’s majority opinion – to invoke 5th Amendment right
to counsel, must be explicit, so a reasonable officer would understand this is a request for counsel.
This is Justice Scalia’s concurring opinion  argues that Miranda is not good law because it was
overruled by the statute (test for admission of confessions is traditional voluntary approach), and
the factors announced was Miranda warnings, are only factors in the totality of the circumstances
analysis, and do not preclude automatic admission of confession if they are violated.


Dickerson
v. United
States
(2000)
Case decided same year that Rehnquist was appointed to the court. He mounted an effective doctrinal assault
on the foundation of Miranda; most Miranda advocates assumed it was a decision that it created warnings that
were part of the 5th Amendment rights.
Miranda Rights are procedural safeguards and not rights protected by the Constitution
o

Davis v.
United
States
(1994)
Majority opinion
Arrested for robberies and crimes, interrogated without warnings and made incriminating statements, he was
convicted.

Trial court suppressed his statements because they were made in violation of Miranda rules, even though there
was no evidence of compulsion – arguable that this is a voluntary confession under traditional pre-Miranda
TOC.

HOLD: Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of
Congress, and we decline to overrule Miranda ourselves.

Miranda and its progeny in this Court govern the admissibility of statements made during custodial
interrogation in both state and federal courts.

Majority held: Miranda may NOT be overruled by congress.

Is Miranda a constitutional rule? YES
We conclude that Miranda announced a constitutional rule that Congress may NOT supersede legislatively. Following the rule
of stare decisis, we decline to overrule Miranda ourselves.
58
(2) THE PUBLIC SAFETY EXCEPTION TO MIRANDA



New
York v.
Quarles
(1984)







Majority opinion creating a public safety exception to the Miranda rules.
PO was approached by a woman who said she had been raped and the man had just entered a
supermarket and had a gun. PO found the main in the supermarket – he ran away when he saw
the PO. One officer pursued him, frisked him, and saw he had an empty gun holder. The PO asked
him where the gun was, and the suspect said, “it was over there.” The PO then retrieved the gun
and gave him Miranda warnings.
Essentially holds, that when there is a danger to the public, and the officers are acting in the heat of
the moment, kaleidoscopic events that officers face in the fields, when the motivation could be an
attempt to get a confession but happens in a scenario where there is truly a legitimate concern
about public safety, Miranda will not prevent the admission of the gun, but will also not prevent
the admission of the statement of where the gun was.
Distinguishing between actual coercion/torture (Brown v. Mississippi) and assuming there can be
a Miranda violation where a statement can be obtained that is not the subject to coercion.
“We conclude that under the circumstances involved in this case, overriding considerations of
public safety justify the officer’s failure to provide Miranda warnings before he asked questions
devoted to locating the abandoned weapon.”
Supreme Court said that the custodial interrogation occurred in a situation posing a threat to the
public safety and, therefore, fit within this newly recognized exception to Miranda.
Justice Rehnquist stated that the police “were confronted with the immediate necessity” of finding
the weapon which its whereabouts were unknown.
Justice O’Connor’s concurring 
o Complained about the court messing up the certainty in Miranda, unlike the majority, we
should suppress the statement, but applying the FOPT conceptions, the gun is different.
The gun is not the kind of testimonial evidence governed by the 5 th amendment privilege,
so when there is related real, tangible evidence, not testimonial words (aka, a gun, knife,
pile of powder), if that evidence if obtained as a result of a Miranda violation, that
evidence should still be admissible even if the statement leading the police to it is not.
o “To be sure…” distinguishing between someone who is sitting in a room at the police
station who has been arrested, in custody and subjected to inherently coercive impact of
custodial interrogation, from informal custodial interrogation, like Rehnquist’s
distinguishing in majority opinion. Informal on the street is really different from taking
him to police station and interrogating him in a room
o Debate about whether there can be noncoercive Miranda violation (informal interrogation
setting, like a street, or in stores, in living room (elstad) as opposed to custodial
interrogation.
o Difference between real coercion or presumed coercion that Miranda relies upon?
AND O’Connor’s dissenting --The court establishes public safety exception, but we also see the foundation for what is now the
rule under the 5th amendment: a confession obtained in violation of Miranda has to be suppressed,
unless it falls under an exception (i.e., public safety exception), but a subsequent confession,
obtained after Miranda warnings are given, and after a waiver is obtained, may not be suppressed.
Miranda Exceptions
G. Miranda Violations and the Fruit of the Poisonous Tree Doctrine


Derivative evidence (fruit of the poisonous tree)– information the police obtained from statements or
information gathered from violating and not giving Miranda rights.
***In fourth amendment, for FOPT to apply, there must be an illegal search or seizure.
59




***For fifth amendment, for FOPT to apply, there must be a violation of the right against selfincrimination.
Similar thing between 5th amendment standing & 6th amendment standing
Issues arriving under the 5th Amendment are driven by the existence of Miranda and the hostility to Miranda
that survives among lawyers, judges and prosecutors.
If the FOTPT doctrine is going to be applied, to evidence obtained in the investigation, the poisonous tree
has to exist (there has to be a constitutional rights violation).
o If there is an illegal search or seizure = constitutional rights violation.
o If someone is interrogated after commencement of formal adversarial proceedings and is not given
the opportunity to have a lawyer present = constitutional rights violation
o Evidence the government obtains by exploiting those violations = fruit of that poisonous tree
o If the police obtain a confession by using physical force to coerce a confession, that is a rights
violation (of 5th amendment), and that would be a poisonous tree, and evidence obtained by
exploitation of that violation of a person’s constitutional rights, would be suppressible as fruits.
o BUT with Miranda, may have a difference status in the minds of certain judges.
o In Michigan v. Tucker, the first case in this post-Miranda analysis on the tax on Miranda, Justice R’s
opinion established that the Miranda warnings are not rights, but are prophylactic rules created to
help enforce and protect the 5th amendment right.
o In New York v. Quarles, Justice O’Connor and her concurring opinion argue “well you can’t get rid
of Miranda, and they should not weaken it by creating exceptions, like the public safety exception,
instead we should just recognize that violating Miranda does not trigger suppression of the fruits of
that violation in all cases. Her partial argument in this case becomes a full analysis, and the
plurality opinion (which we know over time, come to be treated as if they are majority opinions),

Her analysis and concurring opinion in Quarles, becomes a full-blown doctrine in Elstad.


Oregon
v.
Elstad
(1985)





Non-coercive, informal, Miranda violations do not trigger the FOTPT doctrine.
Robbery of a home. Police had an arrest warrant for D for the burglary of a neighbor’s residence.
D was led into the living room. An officer interrogated D without reciting the Miranda warnings
(Fifth Amendment violation). D made an incriminating statement. D was then transported to the
police station where he was apprised of his Miranda warnings. He then gives full statement—
claims his statement made prior to the Miranda warnings “let the cat out of the bag.”
Holding: “[A] suspect who has once responded to unwarned yet un-coercive questioning is not
thereby disabled from waiving his rights and confessing after he has been given the requisite
Miranda warnings.”
Statement must be suppressed.
Issue: What about confession number 2? Is the second confession, given after the Miranda
warnings were provided, must it be suppressed as the fruit of the Miranda violation in the living
room of Elstad’s home?
SC held – conclusion reached by plurality (Cloud says this can essentially be treated as a majority)
– because the Miranda warnings were but prophylactic devices, designed to protect the 5 th
Amendment right, and because Miranda presumed coercive impact from custodial interrogation, a
Miranda violation could occur without “actual coercion”.
o Plurality distinguishes between, what it sees as, the coercive effect of physical violence (or
other tactics designed to overcome the free will of the suspect), and the mere technical
noncoercive Miranda violation.
CLEAR LANGUAGE OF MIRANDA: IF THERE IS CUSTODY AND INTERROGATION,
WHETHER THE OFFICER MADE A MISTAKE OR NOT, THE SUBSEUQENT CONFESSION
HAS TO BE SUPPRESSED.
o And it was here.
o But what happens next? Almost all lower federal courts and almost all state supreme
courts’ ruling for this issue before Elstad had adopted a reasoning: once the suspect
confesses, the cat is out of the bag and the psychological pressure of having confessed
once means the idea “I’m going to pretend that I did not confess” when they ask me
questions again at the police station is ridiculous. The cat is out of the bag.
o SC Plurality here, reaches a very different conclusion: what the impact of a non-coercive,
unwarned confession will be is speculative (not quite sure what impact it will have on
future investigations).
60
A non-coercive Miranda violation, one they can achieve without physical violence or some other coercive tactics
deliberately used to overcome the free will of the suspect, is not itself a constitutional rights violation, and
therefore, it is not the poisonous tree, and therefore, if the fruit of the poisonous tree standings are met, in terms of
passage of time, confession number 2 is not the fruit of any poisonous tree and is admissible.
Suppression of the Fruits of a Statement Obtained in Violation of Miranda

Oregon v. Elstad (Summary)
o PO obtained oral admission from Elstad while he was in custody in his home, without advising him
of his rights. An hour later at the station house, Elstad received Miranda warnings, indicated he
understood them, and made a detailed statement describing his involvement in the crime.
o E argued that the second statement, although obtained in compliance with Miranda, was the tainted
fruit of the first statement, which was not in compliance with Miranda and thus should be
suppressed.
o Court confined suppression to the immediate product of the Miranda violation, not its indirect fruits.
 First unwarned statement was excluded from evidence, his second statement (even if
derived from the first) was admissible.

Missouri
v.
Seibert
(2004)
Tests a police protocol for custodial interrogation that calls for giving no warnings of the rights to
silence and counsel until interrogation has produced a confession.
o Although such a statement is generally inadmissible, since taken in violation of Miranda
v. Arizona, the interrogating officer follows it with Miranda warnings and then leads the
suspect to cover the same ground a second time.

The question here is the admissibility of the repeated statement.
o Because this midstream recitation of warnings after interrogation and unwarned
confession could not effectively comply with Miranda’s constitutional requirement, we
hold that a statement repeated after a warning in such circumstances in inadmissible.

The police protocol is shutdown, post-warning statements are inadmissible.

Could the warnings effectively advise the suspect that he had a real choice about giving up an
admissible statement at that juncture?

Could they reasonably convey that he could choose to stop talking even if he had talked earlier?

Court confronted a “question-first” tactic in which police deliberately withheld the warnings until
they obtained a confession, after which they finally administered them and got a second
confession that did comply with Miranda.

Under Oregon v. Elstad, the government argued, that what happened here is perfectly consistent
with Elstad.
o They are just sitting around here chatting, no physical violence, no tactic to deliberately
overcome her free will, and therefore, although the first unwarned confession must be
suppressed, the second confession, given after the Miranda warnings, after a waiver of the
Miranda rights, that one is admissible. (it was and she was convicted of second degree
murder).

A majority in the SC held that this tactic by the police was an illegal attempt to get around the
requirements of Miranda, and the illegal effort to circumvent Miranda.
o This was not some kind inadvertent, unintentional, some kind of mistake like (Officer
Burke made in the Elstad’s living room), this was part of an intentional practice of police
officers.
o This practice was taught all over with all police after the decision in Elstad (basically
taking advantage of Elstad).

Majority and judges agree that this kind of deliberate practice by police officers does not fit within
the rubric of Elstad (which rested on the idea of inadvertent unintentional). Here, it is
intentional/deliberate practice designed to make a run-around-Miranda.
This was a CLEAR ATTEMPT to get around Miranda  unlike Elstad
A NON-COERCIVE, MAYBE UNINTENTIONAL, MILD NON-COERCIVE MIRANDA VIOLATION
DOES NOT TRIGGER THE FRUIT OF THE POISONOUS TREE DOCTRINE, BUT AN
INTENTIONAL, PURPOSEFUL, POWERFUL, SET OF PRACTICES DESIGNED TO EVICERATE
MIRANDA, TO MAKE MIRANDA BE MEANINGLESS, THAT DOES VIOLATE THE 5TH
AMENDMENT (NOT UNDER THE FOTPT, BUT UNDER “WELL, YOU CAN TRY AND GET
61
AROUND OUR OPINIONS AND OVERRULE THEORY”). NOT BOUND TO ANY COHERENT
DOCTRINE WE’VE SEEN BEFORE.


United
States
v.
Patane
(2004)



Majority opinion
D was arrested for violating restraining order – police were told he might have a gun. PO begin to
Mirandize him and he cuts them off saying he knows his rights. He then gives them a confession
telling them where the gun in.
Whether a failure to give a suspect the warnings prescribed by Miranda v. Arizona, requires
suppression of the physical fruits of the suspect’s unwarned but voluntary statements. NO.
o A technical/noncoercive Miranda violation does not trigger FOTPT doctrine.
Non-coercive Miranda violation  FOTPT doctrine does NOT apply.
Actual coercive Miranda violation  FOTPT doctrine DOES apply.
Chapter 7  The Rise and Fall of Sixth Amendment Theories

REMEMBER: The 6th Amendment right to counsel guaranteed in the text of the Constitution, automatically
attaches after the commencement/with the initiation of formal adversarial proceedings.
o Massiah case (pre-Miranda case using 6th Amendment) held that once formal adversarial
proceedings have commenced by indictment or otherwise, a person automatically has the right to
have a lawyer.

Explanation for this is found in these new cases: the criminal justice system is just too
complicated for the lay person to represent themselves, people don’t understand or know
how to use the law, they don’t know what devices are available to them for discovery and
don’t know how to challenge government evidence.

“Medium” concept  the D needs the guiding hand of counsel to deal with the state
prosecuting them, in part because the state has a lawyer.
A. Massiah Redux


Brewer
v.
Williams
(1977)





This case in conjunction with Nix v. Williams
D, a mentally ill patient, killed girl. He had a lawyer, and knew he had the right to have a lawyer
present. He was advised to remain silent by lawyer. The officers promised the lawyer they would
not question in the drive in the police car. Before they got to the highway they were using
sympathy for the death of the girl (religious motives) and officers knew Williams was an escapee
from a mental hospital and knew that he believed himself to be a Christian preacher. He
surrendered to police and sent 160 miles away—knowing he was very religious, detective talked
about giving the little girl a nice Christian burial (her body hadn’t been found). D had talked
about telling the police the whole story when his lawyer was there. D then led police to the body.
Right to counsel had attached to him because adversarial criminal processes had started.
Court held that 6th Amendment RTC attached, and officers deliberately elicited inculpatory
information by violating his right to have a lawyer present by interrogating him after the 6th
Amendment right had attached automatically.
Under FOTPT, the statement and discovery of body would have to be suppressed as fruit of the
constitutional rights violation. So that’s why the court adopted the inevitable discovery exception,
so the photographs could still be admitted, but statement and how they found the body (him
directing the officers) could not be admitted, but tangible evidence could be under this exception.
Iowa SC found that Williams had waived his right to counsel on the automobile ride from
davenport to De Moines.
Under the Massiah doctrine (once adversary proceedings have commenced against an individual,
he has a right to legal representation when the government interrogates him), Williams was
entitled to the assistance of counsel guaranteed to him by the 6th and 14th Amendments.
The proper standard to be applied in determining the question of waiver as a matter of federal
62

constitutional law (makes it) incumbent upon the State to prove “an intentional relinquishment or
abandonment of a known right or privilege.”
“The right to counsel granted by the Sixth and Fourteenth Amendments means at least that a
person is entitled to the help of a lawyer at or after the time that judicial proceedings have been
initiated against him – “whether by way of formal charge, preliminary hearing, indictment,
information, or arraignment.”

Maine v.
Moulton
(1985)
Whether respondent’s Sixth Amendment right to the assistance of counsel was violated by the
admission at trial of incriminating statements made by him to his codefendant, a secret
government informant, after indictment and at a meeting of the two to plan defense strategy for
the upcoming trial.

The 6th Amendment guarantees the accused, at least after the initiation of formal charges, the right
to rely on counsel as a “medium” between him and the State. As noted above, this guarantee
includes the State’s affirmative obligation not to act in a manner that circumvents the protections
accorded the accused by invoking this right. The determination whether particular action by state
agents violates the accused’s right to the assistance of counsel must be made in light of this
obligation.
o The 6th Amendment is not violated whenever – by luck or happenstance – the State
obtains incriminating statements from the accused after the right to counsel has attached.
o However, knowing exploitation by the State of an opportunity to confront the accused
without counsel being present is as much a breach of the State’s obligation not to
circumvent the right to the assistance of counsel as is the intentional creation of such an
opportunity.
o The Sixth Amendment is violated when the State obtains incriminating statements by knowingly
circumventing the accused’s right to have counsel present in a confrontation between the accused
and a state agent.
“The Sixth Amendment “guarantees the accused . . . the right to rely on counsel as a ‘medium’ between
him and the State.”
NOTE:
 The 6th Amendment right to counsel can be violated even if the D is not explicitly questioned, as long as
incriminating information was actively secured from the D without the presence of counsel.
o The test is whether the government obtained incriminating statements by knowingly
circumventing the accused’s right to have counsel present in a confrontation between the accused
and a government agent (Maine v. Moulton).
o The key question is whether the government officers or agents “deliberately elicited” the
incriminating statement from the suspect (Fellers v. U.S.).
B. Are Fifth and Sixth Amendments Related?

Moran
v.
Burbine
(1986)



Facts: D arrested for local burglary and informed of his Miranda rights. Sister got him a lawyer—
lawyer called and was informed that D would not be questioned but he was. He was given
Miranda 3 times and said that he understood his right to have an attorney—said he did not want
one. He was unaware of sister and attorney’s efforts. He made several incriminating statements
during the interrogation and then sought to have them suppressed.
Two cities, two crimes. The police read him M rights and he refused to sign waiver. Other police
showed up to investigate murder, read the M rights, waived them, and made statements that led
to his conviction of murder.
Problem: when his sister found out he was arrested, she asked for a specific lawyer for Burbine.
Another lawyer ended up offering to held B, called the police station and was told they wouldn’t
question him tonight, they were done and stopped interrogating. It is unclear whether the officer
was being deceptive or not. LESSON: this PD never got the name of the person she spoke to at
police station and told her they wouldn’t interrogate B. No one disputes that the call occurred.
Under 6th amendment, the statements would have been inadmissible, but he had not yet been
indicted, or charged, formal adversarial proceedings had not begun yet, so B was on the 5 th
63
amendment side of the line.
After being informed of his rights pursuant to Miranda v. Arizona, and after executing a series of
written waivers, respondent confessed to the murder of a young woman.
Did the police conduct or respondent’s ignorance of the attorney’s efforts to reach him taint the
validity of the waivers and therefore require exclusion of the confessions?
Whether a prearrangement confession preceded by an otherwise valid waiver must be suppressed
either because the police misinformed an inquiring attorney about their plans concerning the
suspect or because they failed to inform the suspect of the attorney’s efforts to reach him.
“events occurring outside of the presence of the suspect and entirely unknown to him surely can
have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.”
o The fact that he did not know that he had a lawyer wanting to represent him, did not
make him confession involuntary, unknowing, or in violation of Miranda.
5th amendment right to counsel established in Miranda is designed to protect suspect from
inherent coercion.
Where the 6th amendment right to counsel is different, attaches automatically to D for a
mechanism to deal with the government, every confrontation between government and D,
interrogation or not, is a setting where the D is entitled to have a lawyer present.
The Dissent agues that police should not be allowed to trick people into not having a lawyer
whether we are on 5th or 6th amendment side (but notice how they recognize there is a difference
between 5th and 6th amendment).
The fact that the police failed to inform the suspect that an attorney retained by a relative to
represent him was trying to see him at the police station was held not to undercut the validity of
his written waiver.
Moran on 5th Amendment side of the line – the court relies upon the differences between 5 th and
6th Amendment rights in the context of having a lawyer present during interrogation.












Montejo
v.
Louisiana
(2009)





McNeil v.
Wisconsin
(1991)

Nature and scope and existence of 5th amendment and 6th amendment counsel rights.
Majority is trying construct a scenario in which there is less chance that confessions will be
suppressed.
Overrules Michigan v. Jackson and criticizes it for importing a 5th amendment set of rules onto the
6th amendment side of the line
Consider the scope and continued viability of the rule announced by this Court in Michigan v.
Jackson, forbidding police to initiate interrogation of a criminal defendant once he has requested
counsel at an arraignment or similar proceeding.
At trial, prosecution submitted as evidence a letter of apology D wrote to victim’s wife. D wrote
the letter at the suggestion of a detective who accompanied him in a search for the murder
weapon. Before the search, D was read his Miranda rights and wrote an explanation for his
participating in the search. However, no one in the search party knew, including D, that he had
been appointed an attorney that some morning. D contended that under these circumstances the
6th Amendment barred the introduction of this evidence since his attorney was not present when
he wrote and submitted the letter.
Whether an accused’s invocation of his Sixth Amendment right to counsel during a judicial
proceeding constitutes an invocation of his Miranda right to counsel.
Starts to make things messier, because justices get into confusing/strange agreements
M was charged in a warrant with an armed robbery in Wisconsin. Two deputies flew to Omaha to
bring him home when they got there, they wanted to question him. Advised Miranda rights and
he refused to answer questions (looks like Mosley); [he didn’t say “I want a lawyer” (Edwards).
o
If he did, at that moment, the Edwards rule would apply  he could not be questioned
about any crime going forward, unless his lawyer was present, or the suspect initiated a
general conversation with the police about the crimes for which he had been arrested.
[Edwards’ rule are adopted to strengthen Miranda rules that applies on the 5th
amendment side of the line].
6th amendment right to counsel attaches automatically with the commencement of adversarial
proceedings by indictment or “otherwise” including a first appearance before a judge where a
suspect is arraigned.
64









Court establishes that the 6th Amendment right to counsel is offense specific  “it cannot be
invoked once for all future prosecutions, for it does not attach until a prosecution is commenced,
that is, “at or after the initiation of adversary judicial criminal proceedings - - whether by way of
formal charge, preliminary hearing, indictment, information, or arraignment.”
o It only attaches for the crimes listed in the indictment
In Brewer, the court faced a situation in which Williams had not been indicted, he was charged by
the police with committing a murder a day or two earlier, he turned himself into the police at the
other end of the state. He had a law in Des Moines, and then on the other side of state had a lawyer
when he was before a judge. Court held 6th amendment RTC attached because he was brought
before a judge, charged with a crime, and he had lawyers representing him at that initial
proceeding. No doubt that McNeil’s 6th amendment RTC automatically attached when he was
brought before a judge, charged, and had a lawyer representing him, even though no indictment
or grand jury. REMEMBER: that right is offense specific – crimes for which he has been charged
and formal adversarial proceedings have commenced.
The new waiver is valid because not covered by 6th amendment, it is irrelevant, he is s suspect,
being interrogated, has not been indicted for the new attempted murder.
Situation we saw in Massiah AND a situation in Moulten, crimes not covered by 6th amendment,
the investigation can proceed (NOT the crimes for which he has been indicted or for which formal
adversarial proceedings have begun).
MESSY: the lawyers for M argue that having the lawyer present RTC attach, amounted to, and
invocation of 5th amendment kinds of rights under Edwards. (Michigan v. Jackson) – J made a first
appearance before a judge and requested a lawyer, when his case got to SC, it held that in effect,
because the 6th amendment RTC was even more protected than the 5th amendment RTC created by
Miranda, when someone invoked 6th amendment RTC, “I want a lawyer” even though not during
custodial interrogation, in front of judge, the rule from Edwards needs to be imported, cross over
from 5th amendment world to 6th amendment world because Edwards provides that extra layer of
protection
McNeil: Under Edwards  5th Amendment right to counsel is NOT offense specific, so it matters
whether the person is invoking the 6th Amendment right or the 5th Amendment right.
o Edwards rule is NOT offense specific: once a suspect invokes the Miranda right to counsel
for interrogation regarding one offense, he may not be reproached regarding ANY
offense unless counsel is present.
o In McNeil, when M showed up to court he had his 6th Amendment right to counsel. The
confessions obtained after warnings and a waiver about the attempted murder are
admissible because when he invoked his right to counsel, it only applied to the West
Wisconsin crimes.
In Patterson v. Illinois, P was indicted, as he was being taken from one jail to another, he engaged
in a conversation with the PO moving him; M warnings being given, confession obtained.
D argued that this subsequent interrogation (conversation between PO and P and subsequent
conversation) all violated 6th amendment, because his RTC attaches automatically and therefore he
shouldn’t be questioned until lawyer is present. SC held that in MvJ, J asked for lawyer. Here, P
had been indicted but hadn’t asked for a lawyer, so Edwards rule doesn’t apply but he didn’t get
the full protection because he didn’t request a lawyer).
Michigan v. Jackson (1986) 
o After the 6th Amendment right to counsel attaches and is invoked, any statements obtained from the
accused during subsequent police-initiated custodial questioning regarding the charge at issue (even if
the accused purports to waive his rights) are inadmissible.
C. The Sixth Amendment and the Fruit of the Poisonous Tree Doctrine

Fellers
Deliberate Elicitation, the 6th Amendment, and the Fruits of the Poisonous Tree Doctrine

After grand jury indicted D for conspiracy to distribute meth, PO come to his house to arrest him
and ask questions regarding his involvement in the drug ring.
65
v.
United
States
(2004)


After spending about 15 minutes in petitioner's home, the officers transported petitioner to the
Lancaster County jail; the officers advised him for the first time of his rights under Miranda and
Patterson v. Illinois. He signed a Miranda waiver form and reiterated the inculpatory statements
he had made earlier, admitted to having associated with other individuals implicated in the
charged conspiracy, and admitted to having loaned money to one of them even though he
suspected that she was involved in drug transactions.
Was this a violation of the 6th Amendment?
o YES