Criminal Procedure
Guyora Binder
Fall 2018
Table of Contents
Crime as a National Political Issue .......................................................................................... 3
Due process and Incorporation .............................................................................................. 4
Hurtado v. California .............................................................................................................................................................. 4
Duncan v. Louisiana................................................................................................................................................................ 5
The relationship between the 4th and 5th Amendments .......................................................... 6
Boyd v. U.S. ................................................................................................................................................................................. 7
Gould ............................................................................................................................................................................................. 7
US. v. Weakes ............................................................................................................................................................................. 8
Krauss ........................................................................................................................................................................................... 8
Shapiro ......................................................................................................................................................................................... 8
Marron ......................................................................................................................................................................................... 8
Olmstead ..................................................................................................................................................................................... 8
Schmerber v. California ......................................................................................................................................................... 8
Warden v. Hayden ................................................................................................................................................................... 9
Berger ........................................................................................................................................................................................... 9
FISHER ....................................................................................................................................................................................... 10
Andresen ................................................................................................................................................................................... 10
Braswell ..................................................................................................................................................................................... 10
Fourth Amendment ............................................................................................................. 11
Remedies: The Exclusionary Rule .................................................................................................................................. 11
Mapp v. Ohio ................................................................................................................................................................................. 11
Remedies Other than the Exclusionary Rule .............................................................................................................. 12
Damages ......................................................................................................................................................................................... 12
Injunctions ..................................................................................................................................................................................... 13
Criminal Actions.......................................................................................................................................................................... 13
Administrative and Political Remedies ............................................................................................................................ 13
Searches..................................................................................................................................................................................... 13
The Meaning of Searches ........................................................................................................................................................ 13
What is a Search ......................................................................................................................................................................... 14
Inspecting Baggage ................................................................................................................................................................... 15
Exposure to the Public ............................................................................................................................................................. 15
Technology .................................................................................................................................................................................... 16
Seizures...................................................................................................................................................................................... 18
U.S v. Drayton .............................................................................................................................................................................. 18
California v. Hodari D. .............................................................................................................................................................. 19
Warrants ................................................................................................................................................................................... 20
Bailey v. U.S. .................................................................................................................................................................................. 22
Probable cause ............................................................................................................................................................................ 22
Exceptions to the Warrant Requirement ........................................................................................................................ 23
Arrests.............................................................................................................................................................................................. 36
Searches Incident to an Arrest ............................................................................................................................................. 36
Reasonableness ...................................................................................................................................................................... 38
Stops & Frisks (Terry Stops) .................................................................................................................................................. 38
Pre-textual Stops/Profiling ................................................................................................................................................... 44
Roadblocks .................................................................................................................................................................................... 47
Searches by other officials...................................................................................................................................................... 56
Reasonableness and Police Use of Force.......................................................................................................................... 57
Consent Searches ................................................................................................................................................................... 58
Schneckloth v. Bustamonte ....................................................................... Ошибка! Закладка не определена.
ILL. v. Rodriguez ......................................................................................................................................................................... 58
Georgia v. Randolph ..................................................................................... Ошибка! Закладка не определена.
Jimeno ................................................................................................................. Ошибка! Закладка не определена.
Exclusionary Rule .................................................................................................................................................................. 63
Good faith exception to exclusionary rule....................................................................................................................... 63
Leon .................................................................................................................................................................................................. 63
Davis v. US ...................................................................................................................................................................................... 64
Standing.......................................................................................................................................................................................... 65
Fruit of the Tree .......................................................................................................................................................................... 65
Inevitable Discovery .................................................................................................................................................................. 67
Impeachment ............................................................................................................................................................................... 67
5th Amendment privilege against incrimination .................................................................... 68
Origins ........................................................................................................................................................................................ 68
Burr ................................................................................................................................................................................................... 68
Immunity................................................................................................................................................................................... 68
Coumselman v. Hitchcock ....................................................................................................................................................... 68
Brown v. Walker ......................................................................................................................................................................... 68
Ullman ............................................................................................................................................................................................. 69
Kastigar v. US........................................................................................................................................................................... 69
Helmseley ....................................................................................................................................................................................... 70
North ................................................................................................................................................................................................ 70
The Meaning of Compulsion ............................................................................................................................................. 70
McKune............................................................................................................................................................................................ 70
The Meaning of Incrimination .......................................................................................................................................... 71
Ward ................................................................................................................................................................................................. 71
Hiiael ................................................................................................................................................................................................ 71
The Meaning of Testimony ................................................................................................................................................ 71
Penn. v. Muniz .............................................................................................................................................................................. 71
Doe v. U.S. ....................................................................................................................................................................................... 72
Exceptions to the Fifth Amendment .............................................................................................................................. 72
Perjury ............................................................................................................................................................................................. 72
False Denial ................................................................................................................................................................................... 72
Regulatory Disclosure .............................................................................................................................................................. 72
Baltimore v. Bouknight............................................................................................................................................................ 73
Police Interrogation.............................................................................................................................................................. 74
Bram ................................................................................................................................................................................................. 74
Due Process ................................................................................................................................................................................... 74
6th Amendment........................................................................................................................................................................... 75
Miranda (5th Amendment).................................................................................................................................................... 76
JDB v. NC ......................................................................................................................................................................................... 76
Eligible Statements.................................................................................................................................................................... 76
Required Conditions .................................................................................................................................................................. 76
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Required Procedures................................................................................................................................................................. 77
Connely ............................................................................................................................................................................................ 77
Padilla.............................................................................................................................................................................................. 77
Interrogation................................................................................................................................................................................ 77
Warnings ........................................................................................................................................................................................ 78
Invocation ...................................................................................................................................................................................... 78
Waivers ........................................................................................................................................................................................... 80
Burguios.......................................................................................................................................................................................... 82
Remedies ................................................................................................................................................................................... 82
Quarles ............................................................................................................................................................................................ 82
Elstad ............................................................................................................................................................................................... 83
Dickerson........................................................................................................................................................................................ 83
Seibert.............................................................................................................................................................................................. 83
Patang ............................................................................................................................................................................................. 84
Interrogation and Right to Counsel (6th A)................................................................................................................... 85
Electronic Surveillance - Wire Tapping – Title III ................................................................... 86
Warrant application ............................................................................................................................................................. 86
Yanoitt ............................................................................................................................................................................................. 87
E-mails ....................................................................................................................................................................................... 87
Electronic Hardware ............................................................................................................................................................ 87
Remember Riley v. Cali ............................................................................................................................................................ 88
CDT.................................................................................................................................................................................................... 88
Entrapment .............................................................................................................................................................................. 88
Subjective/Objective Tests ..................................................................................................................................................... 88
Jacobson .......................................................................................................................................................................................... 89
Right to Counsel .................................................................................................................. 89
Special Circumstances (older test) ................................................................................................................................. 89
Powell .............................................................................................................................................................................................. 89
Johnson v. Zerbjt ......................................................................................................................................................................... 89
Bets v. Brady ................................................................................................................................................................................. 89
Gideon v. Wainwright ............................................................................................................................................................... 89
Scope ........................................................................................................................................................................................... 89
Argersinger ................................................................................................................................................................................... 89
Alabama v. Shelton .................................................................................................................................................................... 90
When the Right to Counsel Attaches ............................................................................................................................. 90
Rothgery ......................................................................................................................................................................................... 90
Line Ups/Photo ID’s.............................................................................................................................................................. 90
US v. Wade ..................................................................................................................................................................................... 90
U.S. v. Gilbert ................................................................................................................................................................................. 90
Stovall .............................................................................................................................................................................................. 91
Crime as a National Political Issue
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Due Process model
o a processing of persons
o the police decide who goes into this system
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o could be based on superficial characteristics
o most do not go to trial some are dropped by the prosecutor
o many are resolved by plea bargaining so D attorney and prosecutor work
together and determine results by bargaining and not be adjudication
Criticism
o the blame is on the individual offenders
o does not do much for the innocent and stifles the guilty
Due process and Incorporation
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due process only applied to the federal Gov. from the fed constitution originally
due process incorporates the BOR to the states and this was important even if the
states had similar provisions
Hurtado v. California
Cali
1884
Joseph Hurtado discovered that his wife, Susie, was having an affair with their friend, José
Antonio Estuardo. After measures Hurtado took to put an end to the adulterous affair, such as
temporarily sending his wife away to live with her parents, and later assaulting Estuardo in a
bar after his wife returned and the liaisons resumed, proved futile, Hurtado fatally shot
Estuardo. Hurtado was arrested for the crime but not indicted by a grand jury.
According to the California State Constitution at the time, the following applied: "Offenses
heretofore required to be prosecuted by indictment, shall be prosecuted by information, after
examination and commitment by a magistrate, or by indictment, with or without such
examination and commitment, as may be prescribed by law. A grand jury shall be drawn and
summoned at least once a year in each county." [1]
The judge examined the information and determined that Hurtado should be brought to trial.
Hurtado was tried, convicted of murder, and sentenced to death. At issue was whether or not
the 14th Amendment's Due Process Clause extended to the states the 5th Amendment's
Indictment Clause requiring indictment by grand jury.
Questions presented[edit]
Does a state criminal proceeding based on an information rather than a grand jury indictment
violate the 14th Amendment's due process clause? [2] Is a grand jury indictment required by
the 5th Amendment applicable to state criminal trials via the 14th Amendment?

the fifth amendment
The Supreme Court ruled 7-1 that Hurtado's due process right was not violated by denial of a
grand jury hearing and that the 14th Amendment was not intended to work retroactively to
apply the 5th Amendment to state criminal trials. Writing for the majority, Justice Matthews
stated that the states should be free to construct their own laws without infringement and that
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the 14th Amendment was not intended to guarantee the right of a grand jury because it would
have been specifically referenced. His opinion also concluded that Hurtado's due process right
was not violated because an information is "merely a preliminary proceeding and can result in
no final judgment." He further concluded that Hurtado still received a fair trial.
However Justice Harlan presented a lone dissent, a learned disquisition on the history and
meaning of "due process of law" that included quotes of many of the great jurists. "Blackstone
says: 'But to find a bill there must be at least twelve of the jury agree; for, so tender is the law
of England of the lives of the subjects, that no man can be convicted at the suit of the king of
any capital offense, unless by a unanimous voice of twenty-four of his equals and neighbors;
that is, by twelve at least of the grand jury, in the first place, assenting to the accusation, and
afterwards by the whole petit jury of twelve more finding him guilty upon his trial.' 4 Bl. Comm.
306." Further, "'But these informations (of every kind) are confined by the constitutional law to
mere misdemeanors only; for, wherever any capital offense is charged, the same law requires
that the accusation be warranted by the oath of twelve men before the party shall be put to
answer it.' Id. 309." He cited Edward Coke, who held that "in capital cases, informations are not
allowed by that law [of the land], and was not due process of law."
It has been on the basis of this decision that many states have abandoned the requirement for
grand juries, usually replacing them with informations and a preliminary hearing before a judge
or the discretion of the prosecutor. However, as Justice Harlan wrote, "one of the peculiar
benefits of the grand-jury system, as it exists in this country, is that it is composed, as a general
rule, of private persons who do not hold office at the will of the government, or at the will of
voters." Critics contend that by abandoning the grand jury as originally conceived, the rights of
the accused are less well-protected results in more miscarriages of justice.
Duncan v. Louisiana
In October, 1966, Gary Duncan, a 19-year old African-American, was driving down a Louisiana
highway when he noticed his two cousins with a group of white youths on the side of the road.
He became concerned because his cousins had reported occurrences of “racial incidents” at the
recently de-segregated school. He pulled over the car, stepped out, and asked his cousins to get
in the car. The white youths testified that Duncan slapped one of them at this point, while
Duncan and his cousins denied it. Duncan was arrested and ultimately charged with simple
battery. As it is punishable by no more than two years, simple battery is a misdemeanor under
Louisiana law and therefore not subject to trial by jury. Duncan was convicted and received a 60
day prison sentence and a fine of $150. He appealed on the grounds that the state had violated
the Sixth and Fourteenth Amendments guaranteeing his right to a jury trial. The Court accepted
the case under its appellate jurisdiction from the Louisiana State Supreme Court.
Issue[edit]
Do the Sixth and Fourteenth Amendments guarantee the right to jury trial in state prosecutions
where sentences as long as two years may be imposed?
Majority Opinion[edit]
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Justice White noted that the right to a jury trial for criminal offenses is a deeply enshrined value
in both the British and American legal traditions. Thus, right to a jury trial in criminal cases is
within the 14th Amendment, and therefore is applicable to the states.
The question for the court was whether an offense subject to two years imprisonment is a
“serious offense.” The majority noted that at the time of ratification, crimes punishable by
more than six months imprisonment were typically subject to jury trial. Furthermore, both
federal law and forty-nine states recognized that a crime carrying a sentence of over one year
necessitated a jury trial. The Court found that the Louisiana law was out of sync with both the
historical and current standards of the justice system and was therefore ruled unconstitutional.
Other Opinions[edit]
Justice Black, concurring: Black argues for total incorporation, holding that all amendments in
the Bill of Rights are made applicable to the states by the Fourteenth Amendment.[1] He cites
Congressional records from the ratification of the amendment to support his position. He holds
that anything less than total incorporation would leave the enforcement of these rights to the
whims of the judiciary.
Justice Fortas, concurring: Though it is obvious that the right to jury trial is fundamental for
serious offences, it is not the court’s role to dictate to the states what specific form such a jury
trial should take. The states should be free to develop their own rules regarding the exercise of
a jury trial and not be held accountable to some historical or federal standard.
Justice Harlan, dissenting:
The States have always borne primary responsibility for operating the machinery of criminal
justice within their borders, and adapting it to their particular circumstances. In exercising this
responsibility, each State is compelled to conform its procedures to the requirements of the
Federal Constitution. The Due Process Clause of the Fourteenth Amendment requires that
those procedures be fundamentally fair in all respects. It does not, in my view, impose or
encourage nationwide uniformity for its own sake; it does not command adherence to forms
that happen to be old; and it does not impose on the States the rules that may be in force in the
federal courts except where such rules are also found to be essential to basic fairness.
Summary of the Court's decision[edit]
By a 7-2 majority the Supreme Court ruled in favor of Duncan, arguing that the right to a jury
trial in criminal cases was fundamental and central to the American conception of justice. As
such the Due Process Clause of the Fourteenth Amendment requires states to honor requests
for jury trials. The Court maintained the common-law exception for "petty crimes", which are
defined as those punishable by a maximum of a $500 fine and six months in prison. In such
cases, states are not obligated to provide jury trials.
The relationship between the 4th and 5th Amendments
6
Boyd v. U.S.
SC
1886
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D impoted goods and were trying to circumvent the revenue laws
the Gov. wanted to enforce a ststaute that said they had to turn over things and if
they didn’t it could be use against them
this is against the 4th A because if using against them if not produced - like forcing a
party to produce evidence against himself
it is different if looking for stolen goods or making a man turn over his own papers –
in one case Gov. entitled to possession of property in the other he is not
Gov. has a right to look at stuff and keep an eye on that the duty has not been paid
yet but this is different here because the Gov. is trying to extort private papers form
the D’s to use against them
Held. There need not be a physical invasion of one’s home to constitute a
violation of the Fourth Amendment protection against unreasonable search and
seizure. The Fourth Amendment of the Constitution protects against the invasion
into a person’s private matters. This extends to the compulsory production of a
person’s papers. Concurrence. Justice Samuel F. Miller (”J. Miller”) would have
held that this was a violation of the Fifth Amendment of the Constitution rather
than the Fourth Amendment of the Constitution because, J. Miller argues, this is
a criminal proceeding according to the language of the Fifth Amendment of the
Constitution.
Discussion. This opinion stands for the proposition that the Fourth and Fifth
Amendments of the Constitution should be more liberally construed
start with personal property should not be subject to being gotten by the
state to be used in a criminal trial  this breaks down, first in the context of
business regulation and then breaks down all together and is substituted with a
notion of personal privacy that us
Q: could the Gov. search for and seize a bloody knife – would allow because is an
instrumentality of the crime and the accused would not have to present it the law
enforcement would have to do work to find the knife – after Weakes if had a proper
warrant you could search for something that could have been used in a crime
Q: bloody clothes – not an instrumentality of the crime
Q: Reporting income from criminal activities to the IRS, reqirug inspection of
licenses, installing devices in factories to monitor pollution – which are protected
under Boyd?
Gould
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search and seizure that produced docs used at trial
say no special sanctity in papers as distinguished from any other form of property
regarding searches
7
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if the Gov. does not have a propietary interest in it and if the Gov. wants it because of
its use in the crime – called the exclusionary rule
of crime” is not a reasonable search
US. v. Weakes
– has an exclusionary rule for federal law
Krauss
(and later cases)
 didn’t extend the Boyd rule to corporations (no 4th A rights)
 did not protect the individual
Shapiro
– there are records that you are required to keep by the government and they are treated
like the Gov.’s property and cannot claim 4th or 5th A right to not disclosing them to the
Gov.
Marron
– makes explicit that an instrumentality of a crime can be seized with a warrant an even
applies to papers
Olmstead
– allowed wire tapping without a warrant so long as there was no trespassing. Brandise
dissent argued wire tapping should not be permissible because it is a violation of privacy –
and said 4th A comes in – this position ultimately wins forty years later but loses then
because speech is not property so there was no property violation unless you go on
someone’s property – their focus was invasion of property not invasion of privacy.
Schmerber v. California
SC
1966
 man was involved in a DWI and was apprehended at a hospital where he was
seeking assistance for the injuries he got during the accident
 at the direction of police a blood sample was drawn and showed intoxication and
this was used against him in court
 he said this violated his due process rights, right against self incrimination and right
to counsel because took even after his refusal
 there was compulsion here
8
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5th Amendment: but there is a distinction between the compulsion of
communicative or testimonial evidence and that of real evidence where they would
ask a person to be finger printed or make a gesture or be measured – although this
line may blur for instance in a lie detector test where you communicate the answers
and people read the communications of your body – however, here this is the case of
the real evidence compulsion
counsel erroneously told him he could deny and so cannot assert right to counsel
claim
4th Amendment: Search and seizure claim: have to see if police were justified in
taking blood and if they use the correct procedures to do so
had enough probable cause to arrest because saw glassy eyes etc. so did he need a
warrant or not to do blood test?
but there is an exception if think this is an emergency and here it is an emergency
because the alcohol blood level drops when drinking stops and had to get it because
was taking time to investigate scene and take DUIer to the hospital – also the
methods of taking the blood were reasonable
dissent thinks that it is a communicative nature – it was taken to get someone to
testify that he had alcohol in blood
Notes:
 this is not consistent with Gouled because there was not a valid search if the
purpose was just to find the that a crime happened, can take Gov. property and
instrumentalities of crime but cannot search for and seize mere evidence – here you
can because is evidence of the crime – drunk driving
Warden v. Hayden
SC
1967
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man was convicted of armed robbery and partially by his clothes that were seized
by a search and admitted into evidence
ok to take clothes as evidence because not testimony by him and we have gotten rid
of the mere evidence rule:
there is not a distinction between stuff of evidential value and contraband and
fruits of the crime – either can be protected
the requirements for the fourth amendment can secure the same protection of
privacy whether the search is for mere evidence or for fruits, instrumentalities or
contraband
J. Douglas dissent: the Gov. can’t take without your consent any personal property –
cannot take your papers or laundry either – adhering to a strong reading of Boyd
Berger

overturns ny states that authorizes wire taps because of the procedural defect in
that way the wire taps are authorized
9
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are authorized by law enforcement affirming reasonableness that wire tap will
yield evidence of a crime, id # and person
crt says even with these specifics it is not specific enough and violated 4the A
prohibitions on general warrants
Since Boyd there has been case law that does not want to adopt that personal papers are
protected
FISHER
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tax evasion case
holds up a summons for an attorney to turn over an accountant report he has about
client’s transactions
crt hold that while the attorney client priv does not cover this because applies if
clinet had 5th amendment protection
why accountant records prepare with information from client – why does not this
count as compelled incriminating information
because he was not compelled at the time he made the statements
the handing over of the report is not itself incriminating testimony b/c Gov. already
knows it exists and the Gov. knows the defendant has it so no big revalation either
unlike the 4th A that protects privacy the 5th A is not a protector of privacy
protection against compulsory self incrimination disappears as soon as the Gov.
gives you immunity from prosecution – info is no longer for purposes of self
incriminating
Andresen
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the documentary evidence (memos) was written by D himself
seized during a search of his offices
presuming the search is good the memos can be used against him without violating
the 5th A
he already wrote it so he was not compelled to
 only limitation if the production itself constitutes testimony ex) turn over all evidence
you have of your own crime
 if don’t say specifically what it is then they do not know and you are saying yes I did
this
 when the subpoena is vague you are essentially investigating yourself
Braswell
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curios opinion in contrast
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issue: whether the custodian of corporate records may resist a subpoena for such
records on the ground that the act of production would incriminate him in violation
of 5th A
cannot resist subpoena
the records are not privileged
corporations are not protected by the 5th A
would be different if was a sole proprietor
does not matter is addressed to corporation or the person as the custodian cannot
resist the subpoena
act of production is deemed one of the corporation and not the individual so cannot
use this act against the person
Fourth Amendment
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Unreasonable searched and seizures probable cause and a search warrant
on its face the only requirement is that search be reasonable and if on warrant have
to be specific and based on probable cause
framers wanted to prevent general warrants
Remedies: The Exclusionary Rule
Mapp v. Ohio
SC
1961
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Don King – boxing promoter, ran a gambling business in Cleveland, had a rival in
business who bomb his home. King tipped off police that one of his rival’s gang
member could be found at the home of Mapp
Mapp had her own business as a boarding house
police claimed that they had information that there were records of a gambling
operation that could be found at Mapp’s home – this was false made it up just going
on tip
the police broke into her house with out a warrant, said they had a warrant which
she grabbed and put in her dress which they retrieved, handcuffed her some
physical assault and searched basically her whole house – did find the rival gang
member and found in the attic in a trunk some porn that was left there by a former
tenant
she was convicted of possessing obscenities
SC held the fruits of an illegal search should not be permitted
Wolf – held that the fourth amendment applied to the states. Did not do the
exclusionary rule because the majority of states have decided not to include the
exclusionary rule in their constitutions and found it unnecessary because not used
11
as a deterrent because the police were good and there was no problem or need for
it, and there were other remedies available (brainstorm: like private law suits or
trespass or civil rights violation law suits, criminal prosecutions, fire police that do
this, training for police etc.)
o silver platter doctrine: exclusionary rule did not work because if federal
agents could not do unreasonable searches so what the FBI would do is
collect evidence illegally and turn over to state prosecutions or tip of state to
search illegally and have them turn over to them and they would not have
committed any violations. But Elkins ans Reed precluded these misuses
 This case also adopts the exclusionary rule
 the SC held that like the federal courts – the state courts cannot use evidence
in court that was obtained through an illegal search and seizure
 the SC had found the right to privacy was to the states under due process and the
fourth amendment
 now they are also adopting federal precedent onto the states because want
constituency in state and federal law
 and more and more states have begun to adopt the exclusionary rule
 the other remedies that the other case can be used are not really practical/ever
employed
 need to do this for judicial integrity cannot let crts be party to violations of the 4th
amendment
Critiques of the exclusionary rule
 it is not in text of the due process clause or the 4th amendment
o response – ok but there is no other remedy that is in the text and SC has to
fashion some sort of remedy if it is going to enforce the 4th amendment. This
applies to any remedy you are going to adopt
o exclusionary rule is validated by the 5th Amendment
 Only protects the guilty and not the innocent and does not give any compensation
o that is a reason to have other remedies too like damages remedies
 It benefits the guilty
o doesn’t seem to be benefiting the guilty very much (1-2%)
Policy arguments for the exclusionary rule
 judicial integrity argument: when the police violate 4th amendment right it would
be even worse if the court were to then use that evidence, the court would be
condoning those actions
 Deterrence – does nothing to deter searches and seizures simply to harass i.e. not to
get evidence
Remedies Other than the Exclusionary Rule
Damages
 1983 cases
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tort – unlawful arrest state and federal (Bivens)
federal actions can be good because can do class action but also usually will not get a
lot of mone if are not significantly injured and not sympathetic, also there are
protections against suing Gov. and officials
if sue the police dept. then have to show that this was a training or something etc. to
hold them liable
individual police officers are only liable if grossly negligent
damages can also deter good things like police doing their jobs
officers will probably have immunity in state court
Injunctions
 injunctions ex) from using chokeholds
 prohibiting practice or making them have procedures like training to put in place to
make something more likely not to happen again
 problem though because they may be moot
Criminal Actions
 not common
Administrative and Political Remedies
 police officials at the top are elected
Searches
The Meaning of Searches
Katz v. U.S.
SC
1967
 man in a telephone booth
 and the FBI bugged the phone so they could listen to him because thought he was
running an illegal betting scheme
 they used portions of the conversations in evidence
 this was not permissible because although the phone booth was glass as Gov.
says it does not matter if someone could have seen D was about no one
hearing him
 he reasonably thought that no one was hearing him
 does not matter if the FBI did not physically go in to constitute a “search”
tapping the phone was good enough
 the fourth amendment protects people not places
13
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anything that an individual conceals even in a publically accessible area may
be private and thus a search of it would require a warrant
 subjective and objective sense of privacy do you expect privacy and is that
expectation reasonable
 and they should have gotten a warrant to do so because if do not then is just
reasonableness as weighed by the police department
Douglass concur
 do not agree with White that the executive branch can just do whatever id it is
deemed an national threat – the President and AG are not magistrates
Harlan
 person has to have an expectation of privacy – what the person reasonably deems as
a private place
 a subjective standard, agrees the effort to conceal behavior is relevant
Oliver case
 trying to conceal drugs
 used an objective standard here societal norms
 almost seem to be saying that society places no value on criminal activity so society
will not have an objective expectation of privacy of doing illegal activities
 so have to apply personal feel of privacy and objective sense
What is a Search
Riley v. Florida
 Police conduct a helicopter flight and look through a greenhouse and say they see mj
and then get a warrant
 court says the aerial inspection is not a search although the greenhouse is
within the curtilage and there is a subjective thing of privacy here BUT
 anyone who flies a helicopter over the house could see the mj and the
helicopter had a right to fly over there
 so there was no reasonable expectation of privacy in those circumstances
O’connor concur
 not everyone would expect that police would be in helicopters looking into our
yards for mj
 she thinks the burden of proof put on D to show it is unusual for people to be flying
400ft over their homes
 this does not help if want to prevent the search at the warrant stage
Florida v. Jardines
 drug dog brought to D home and marched up to the front porch
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not a good warrant/search
went on the property theory instead of reasonable expectation of privacy:
physical invasion of con. protect area (the home)
invasion of property was the home of D – the porch of the house
this is different from place in Cabbias where there was no interference by protected
property in the airport but was on the porch which is attached to the house so it is
curtilage
if you are taking the dog hoping to find something and are on the porch that is
where the infringement occurs - yes there is an invitation to come to door to
seek conversation etc. but not to take a dog and walk it back and forth looking
for drugs – went too far
Inspecting Baggage
Bond
 PO go on bus and squeeze baggage and find what they thought was a brick of drugs
in D’s bag they look at it and indeed it is
 squeezing the bag is a search
Place&Cabailles
 police dogs sniffing luggage at an airport and exterior of a car
 found that this was not a search
How distinguish?
 physical or special
 more discussion
- The subjective expectation is one part of the test and it is on the theory that if you
do not have an expectation and have exposed your wrongs to the public you have
effectively waived your rights
Exposure to the Public
 sometimes defenders expose knowledge of their criminal activity to people – like
customers
White
 conversation was taped of D in an informant’s home
 new about this because held that there is no reasonable expectation of privacy
 as a criminal you cannot expect that the other coconspirator is going to keep
quiet or keep your secrets – you were telling people about what you were
doing, you may have wanted it to be kept quiet but there is a risk that he
wouldn’t
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crt said would not be a violation of privacy for informant to go and tell police
so no different if it is recorded and may even be better than human faulty
memory
Seems to be three prongs:
o Subjective desire for privacy
o effectiveness of that desire (objective expectation of privacy – is it likely
this would be kept private
o whether society thinks that this kind of conversation should be kept
quiet
court says no to latter 2 questions
Harlan
o objects to what has become a three part test – thinks that the likeliness of
concealed evidence is irrelevant
o also disagree with the courts answer to the last question
o bothered by recording
o accepts undercover investigation in principle
California v. Greenwood
 no expectation of privacy in garbage – leaving out on street
 looked through the garbage of a man – had the garbage man give it to the PO and
they found narcotic stuff in this and executed a search warrant and found drugs
 question was whether there was an expectation of privacy
 crt said no because leaving it out on the street so someone could take it and
objectively people would not think that no on would look at it or a dog would get at
it etc.
Technological Surveillance
Karo
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beeper in a can of ether that is delivered to defendants and they use the beeper to
follow them and ultimately search and arrest
says this was not ok – because would not have been able to track the can if
they did not have the beeper on it and it is different then the Knox case when
they were tracking a car that was drining in public this can was not always in
public and was in peoples houses at some point where you have a reasonable
expectation of privacy
Kyllo v. US
 used a thermak imagining device that showed use of sun lamps to grow mj in the
house
 this was a search because
o using equipment that the naked eye or any of the other five senses
could not detect
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o Was thermal imaging of the surface of the house: not significant
whether what you are doing to gain evidence of what is happening
inside the house is evidence of what is happening outside the house
matter that you have invaded the privacy
Jones
– next time
 involving a gps
 whether putting a gps on a car to track the movements on public streets was a
search or seizure
 a property violation – putting the gps in the car and the beeper was different
because there was no property violation when put beeper into the can just when the
can gets into the house that it is not ok
 putting the gps there does constitute a search
 holding: long term gps surveillance is an invasion of privacy & on the property
theory – mostly talked about on the basis of the property theory
Dissent
 thinks using 18th century tort law
 had to do with the duration of the stop
 they do not accept the property idea only the Katz reasonable expectation of privacy
framework
 would not have been a violation if would have been a short term surveillance
Carpenter*
Stored Communications Act- Allows govt access to electronic communications stored by a
third party for more than 6 months.
-Can be accessed pursuant to a court order
-showing there is a reasonable and articulable grounds that the information is relevant to a
case(Less than the probable cause warrant)
Why isn’t it a search? Assumption is that even if we regard the stored communications as
the equivalent of papers(protected by 4th Amm), they are in the hands of a third party
similar to the expectation of privacy in relation to garbage. Same applies to phone numbers
called, banking information, etc. (any time shared with third party)
Asked cellphone company D location during several phone calls over 6 months, used to
place D at scene of a bank robbery.
6th cir. Says SCA says this is not a search and does not require more than what SCA calls for
Overturned
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Roberts says this is a search because this is information about the D’s movements over a
long period of time are protected by 4th Amm. reasonable expectation as cited in Jones.
(similar to long term use of a gps).
Seizures
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PO have discretion to initiate criminal charges against you for obstructing their
work and for using force against them
PO testimony is likely to be believed if they make allegation
so even a temporary detention by police can be a scary proposition and thus can
interfere with your liberty
seizures are comparable to theft, kidnapping, or robbery
FL v. Bostick (Warning)
U.S v.
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Drayton (No Warning)
there was no seizure, had not been detained
2 passengers on a bus
3 police officers come on bus to do a drug and weapon check
pat down 2 D’s with their permission and find drugs on them and arrest them
this was not a seizure
D argued was a seizure because should have been told could have refused to talk to
police
do not have to tell the passengers of their right to refuse – reasonable person
should know
Test: if a reasonable person would understand that they were free to leave or
free to refuse answering questions etc.
they were not seized at that time although the officers showed the badge they were
free to leave at any time and none of the police officers were blocking the way and
people have left and refused on other occasions
test about what is publically available to the defendant – does not matter what is in
the defendant’s or officer’s head is a strictly objective reasonable person standard
Whether officers must advise bus passengers of their right not to cooperate (during
random questioning/searches)
Held: No. Here, respondents were not seized and they voluntarily consented to the search.
Facts: 3 police officers boarded a Greyhound bus to do a routine drug and weapons search.
Passengers were free to exit the bus or decline to cooperate. They did not inform
passengers of their right to refuse to cooperate, as they usually do. Officer Lang
searched Drayton and Brown, both of whom consented to being searched by Lang. Officer
Lang found drugs on both Drayton and Brown and arrested them. PP: 11th Cir = evidence
should’ve been suppressed b/c “bus passengers do not feel free to disregard officers’
requests to search absent ‘some positive indication that consent could’ve been refused”
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Reasoning: Bostick court  Reasonable person test (objective) “presupposed an innocent
person”; Factors in determining whether seizure occurred: (1) officer didn’t remove gun or
use it in threatening way; and (2) officer advised passenger that he could refuse to consent
to search. Here, using Bostick, court holds that police did NOT seize respondents (b/c
officers gave no reason to believe they were required to answer their questions)
FACTORS:
- Nothing coercive or confrontational
- No application of force
- No intimidating movement
- No overwhelming show of force
- No brandishing of weapons
- No blocking exits
- No threat or comment (not even authoritative tone of voice)
Dissent:
Brower v. Inyo County
Police stop suspect fleeing in a stolen car, by stopping a semi-truck across the road and a
squad car with its lights on facing the suspect. Create circumstances making a fatal collision
very likely. Suspect collided with the vehicles and died.
Gov’t intentionally restricted the suspects movement which made it a seizure (intentional
termination of freedom of movement)
California v. Hodari D.
SC
Whether a seizure occurs even though the subject does not yield
Held: No.
Facts: 2 undercover police officers (Pertoso & McColgin) saw 4-5 youths huddled around
car, who ran away upon seeing the officers. Respondent, Hodari, ran through alley with
friend while others fled in different direction. Hodari threw away a small rock (CRACK);
Pertoso then attacked/handcuffed him – H had crack and $130 on him. Respondent argues:
“Seizure occurs when the officer, by means of physical force or show of authority has in
some way restrained the liberty of a citizen” PP: Cali ct of appeal held that Hodari had been
“seized” which is unreasonable under 4th am; therefore, evidence of cocaine must be
suppressed b/c seizure was illegal
Reasoning: **Seizure = application of physical force to restrain movement, even when it is
ultimately unsuccessful (aka, police yelling: “STOP!” is not seizure). Arrest requires: (1)
physical force; OR (2) submission to assertion of authority. Hodari was not seized until he
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was tackled; therefore, the abandoned cocaine was NOT the fruit of a seizure, and motion
to exclude evidence of it was properly denied (aka, evidence SHOULD be admitted b/c
Hodari abandoned the drugs and lawfully recovered by police)
RULES: 4th am is inapplicable (w/ respect to persons) unless/until a seizure of the
person occurs, either by virtue of the acquiescence of the individual, or b/c of
physical force – then, if seizure occurs, question is whether the official conduct was
reasonable for purposes of the amendment
 kid was running and being chased by cop as he was running he threw crack and then
was tackled and arrested
 claimed that when he threw the crack he was seized by the police because they were
showing their authority and thus was the fruit of an illegal search and should not be
let in as evidence
 however this is not the case he was not seized until he was physically contacted
with the officer and tackled to the ground
 even though the PO interfered with his liberty and are chasing him and a reasonable
person might think they could not leave because he did then
 he has not been seized when he is running
 Dissent: Cites Terry, which says “whenever a police officer accosts an individual
and restrains his freedom to walk away, he has “seized” that person.” Terry court
abandoned the traditional view that seizure under 4th am required probable cause
Probable Cause and Warrants
Justifying Search and Seizure Warrants
Probable Cause
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reasons to base searches on probable cause and warrants
o to narrow invasion of privacy down, do not want very many because invade
privacy and liberty and want limited to some suspicion that an individual has
committed a crime
o we want warrants on top of probable cause and the exclusionary rule
because we want an impartial third party (judge) determining if it is
reasonable and there is probable cause. And concern with hindsight biased –
once the judge knows that there was evidence there the more likely the judge
will find it was reasonable. Also police can lie in a suppression hearing
rather than a warrant hearing - can construct a back story and warrants are
good because police have to go through trouble, it is costly, does not make it
too easy
Particularity
Cost is greater if can search indiscriminately
Requires more evidence, forces better police investigation of a particular crime
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Can’t engage in a fishing expedition
In Advance
Danger of hindsight bias
Police could testify falsely afterwards as tp how they came to believe the evidence would be
there
Danger of credibility issues with the officer or informants
Oath and Affirmation
Application for a warrant must be made under oath or affirmation that the facts
substantiating probable cause are true
But if discovered officer has lied intentionally can invalidate warrant, unless when the
falsehoods are removed there were still enough to support contention of probable cause
Negligent or unintentional falsehoods do not invalidate warrant
Neutral = Detached Magistrate
Execution: (Knock and announce 3rd Parties)
Warrants
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need probable cause (substantive)
warrant (procedural)
need both unless exception
decided by an independent magistrate if get warrant or not before go and do the
search or seizure
neutral and detached magistrate requirement
-Coolidge v. New Hampshire: cannot be someone prosecuting the case, cannot be
police chief of investigating police department, can’t have an arrangement where
the court or magistrate is paid by the warrant.
particularity requirement
o placed to be searched or persons or things to be seized
o officer with reasonable effort can ascertain the place to be searched
o limits searches spatially and in time
Execution
-Knock and Announce
-Detention: can detain individuals during a search, but not afterwards
4th A also regulates the execution of the warranted searches
o did PO carry out the search or seizure in a unreasonably intrusive manner
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Sneak and Peak Warrant: an adverse result is likely to occur if were to give
notice.
Third Parties attending in execution of a warrant
Bailey v. U.S.
 walking away from an apartment
 categorical rule permitting the detention of those on the premise at which a proper
search is being conducted but it does not extend further, no matter how reasonable
a detention might be
Probable cause
Nathanson- there must be probable cause from the facts presented to you, officer
affirmation is not enough
Draper- normally reliable informant told police draper would be taking a train on a certain
day and a description of what he would be wearing and that he would be in possession of
heroin. The police found draper as and where described by the informant. Stopped draper,
searched him, found heroin and placed him under arrest.
Note: the informant did not provide basis of his knowledge (Goddamn rules of evidence
poppin up in crim pro and shit)
Officers investigation didn’t provide any other evidence of criminality
Spinelli
 FBI had a warrant and the affidavit for the probable cause was not enough
 it detailed some seemingly innocent activity of going to an apt with 2 phones
 and then that there was a reliable source that said he used the phones for
bookkeeping and gambling
 the source is corroborated by the evidence the PO say but also rely on the source to
buff up the evidence which is circular
 informant testimony needs to be specific and particular enough and know where it
is coming from so could not just be a rumor on the street
Spinelli Test
1: show basis for informant’s knowledge
2: proof of the informant as being reliable
Illinois v. Gates*
 husband and wife selling drugs
 the PO were tipped off by an anonymous letter sent to them that said the Gates live
in the condominiums and sell drugs and go down to FL to pick up the drugs and then
drive back
 PO looked into it and saw that husband was going on a flight to FL soon they
followed him and saw go to hotel with woman and then leave in a car
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Got a warrant and were able to search the car and house when Gates arrived back
home and found mj
ISSUE: was there enough probable cause to support the warrant
YES
the anonymous letter on its own does not have enough probable cause, it could have
been made up and the writer does not state from what basis he or she knows this
information
probable cause is a fluid concept of probabilities in particular factual contexts not
easily reduced to a neat set of legal rules
a totality test looking at the tippers veracity, reliability and basis of knowledge
abandon 2 prong Spinelli test
magistrate is to make a piratical commonsense decision whether, given all the
circumstances in affidavit the veracity and basis of knowledge of persons
supplying hearsay information there is a fair probability that contraband or
evidence of a crime will be found in a particular place – reviewing court
ensures magistrate had a substantial basis for concluding that probable cause
existed
mere conclusory statements are not ok
independent PO work corroborating a tip helps
the letter in this case was corroborated by independent PO work and could be relied
upon when look at the totality of the circumstances – like in Draper, when an
informant is right about some things he is more likely right about others
there was enough probable cause here for the warrant when making a
commonsense determination
also would have helped if the informant had been a reliable source in the past
letter also contained information about the future and other details that could not
easily be obtained so looks like they could have gotten it right from the Gates
themselves or someone they trusted and thus can also assume that they would have
similar reliable sources to know about the illegal activity – probability, do not need
for sure
Exceptions to the Warrant Requirement
 exigent circumstances
-Search incident to an arrest
-Hot Pursuit
-Destruction of Evidence
-Community Caretaking: going into a home in order to check on the welfare of
someone
 plain view
 automobiles
 arrests
 searches incident to arrest
Exigent Circumstances
 searches relating to arrest
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pursuit
evidence preservation
community caretaking
public safety
Mincey v. Arizona
AR
1978
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police go into a man’s house because are coming back as undercover to buy heroine
from and he is accompanied by other officers
friend of D lets him into the house where the officer is shot by D in bedroom and
later died
Charges are brought against D and he is convicted but appeals because most of
evidence is from warrantless search of his house after the murder
the AR court said that there is an exception to getting a warrant when investigating
the scene of a homicide
the SC says no, this is not an exception and what happened does not fit within any of
our other already delineated exceptions
the police who were involved in the scene did not investigated but waited until
other cops came and began a 4 day investigation into the house and looked under
rug everything etc.
there was not a danger that stuff was going to be lost if went and got a warrant
also he did not give up his privacy when shot an officer because like convicting him
of the crime before even gathering the evidence
Welsh v. Wisconsin
SC
1984
 witness see car driving erratically and positions his car so the driver cannot drive
away
 the driver (D) gets out and asks the witness for a ride home he says no and then the
D leaves the scene
 Police come to the scene and find out who the car is registered to and that it is not
too far from his house and he could have walked home
 Police go to house and gain entry to find D asleep on bed naked, they arrest him
(had probable cause)
 No hot pursuit because it wasn’t an immediate or continuous pursuit(No Warden v.
Hayden exception)
 Not invading the home without a warrant is one of the most important rights a
person has
 Want exigent circumstances to be finely tailored
 also matters if the offense is minor like this one or major
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there was not immediate need to gain entry to the house without a warrant.(not a
danger to public safety, not in any grave danger, no threat of destruction of evidence
in relation to the offense
Birchfield v. ND
Its okay to compel to taking a breathalyzer because it is not very invasive, but drawing of
blood is more invasive and would be unreasonable unless there is some exigent
circumstance. It was okay because the police were able to enter because the loud music
was a “public nuisance” no warrant needed to abbate a nuisance. Also, when there is no
response there is a need for a welfare check due to a concern for safety.
Rohrig
-complaint of loud music
-Knock, no answer so police enter and find the suspect passed out on the floor and drugs
Compare with Rory case – where the police went into a house because of complaint of loud
music and found the homeowner asleep and oblivious to the loud music and found the mj
plants. Crt upheld this search and allowed evidence in. How can we square with above
case?
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Brigham City v. Stuart
SC
2006
Rule of Law
Police may enter a home without a warrant if there is an objectively reasonable basis for
believing an occupant is injured or in immediate danger.
Facts
At 3:00 a.m. on July 23, 2000, police in Brigham City, Utah were called to a home for a loud
party. The officers saw teens drinking alcohol in the backyard and a fight taking place
inside the home. Several people were involved in the fight, and at least one person was
injured. An officer opened the door and announced himself, but no one heard. The officer
then entered the home and yelled, at which point the fight stopped. Stuart and other
partygoers (defendants) were arrested on charges of disorderly conduct, intoxication, and
contributing to the delinquency of a minor. The defendants argued that the officers’ entry
into the home without a warrant violated the Fourth Amendment and moved to suppress
evidence gathered after entry. The trial court granted the motion. The Utah Court of
Appeals then affirmed.
Issue
Under the Fourth Amendment, may police enter a home without a warrant if an occupant is
injured or in immediate danger?
Holding and Reasoning (Roberts, C.J.)
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Yes. The Fourth Amendment does not forbid warrantless entry into a home if there is an
objectively reasonable basis for believing an occupant is injured or in immediate danger.
Generally, warrantless entry into a home for a search or seizure is considered
unreasonable and forbidden by the Fourth Amendment. Nevertheless, warrantless entry
into a home may be reasonable if there are exigent circumstances. Thus, police may enter
into a home without a warrant to help an occupant who is seriously injured or in
immediate danger of injury. This is an objective standard, and the subjective intentions of
the police do not render such entry unreasonable. In this case, the officer’s entry was
objectively reasonable. The officers observed an altercation involving several people and at
least one injury. There was an objectively reasonable basis for believing that the injured
person needed assistance and that there was an ongoing risk of injury to others in the
home. Contrary to the defendants’ claims, the ruling in Welsh v. Wisconsin, 466 U.S. 740
(1984), does not control this case. In addition, the officer’s efforts to announce police
presence were reasonable in this situation. Therefore, the warrantless entry into the home
was reasonable and did not violate the Fourth Amendment. The ruling of the lower court is
reversed.
 police can enter a home without a warrant if have an objectively reasonable basis
for believing that an occupant is seriously injured or imminently threated with such
injury
 police came to house because of complaint of aloud party
 they heard yelling and could not see what was happening through front window so
went around to back
 looked through back door and saw fight happening between adults and a juvenile –
the juvenile hit the adult and he went to the sink spitting blood, the fight continued
so the officer went into the house and announced his presence and the fight
subsided
 did not matter if the officer’s actual purpose was to prevent further fighting or make
an arrest because the reasonableness of searches is an objective standard and a
reasonable police officer would have gone in there to stop the fighting
 individuals were charged and said the search was improper because it was
warrantless
 police say that there was an exigent circumstance because thought people were in
danger form the fight
 the D says that PO were more concerned about arresting people then helping people
and the fight was not serious enough
 this is an object able standard about if reasonable to think someone was going ot be
injured and cannot compare this to Welsh where the underlying crime was not
major enough because this was different set of facts and an ongoing fight
 the police did not have to wait for the next blow or someone to be made
unconscious before went in
 and they went in the right way
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Kentucky v. King
2011
 exigent circumstance = need to stop destruction of evidence, in this case will answer
if this applies when police knock on door causing occupants to attempt to destroy
evidence
 under cover cop bought cocaine from person and told other cops to go get him
 they followed him and could not tell what door he entered there were two
 PO smelled mj from door on right so knocked on it and said this is PO open and they
heard noise inside that sounded like detruction of evidence so PO broke in and saw
3 people with mj and cocaine
 found original suspect in door on the left
 there is an exigent cirustance when do not want destruction of evidence but do not
want PO creating this exigent circumstance
 so are going to weigh them depending on how how reasonable they are and if they
did not break any fourth amendment concerns before
o cannot be deceptive like say they have a search warrant and don’t
o or if say we are going to come in but don’t and wait until they here stuff
moving this is not ok because creating exigency
 NOT
o if police acted in bad faith etc – other non objective stuff
 here did not believe that they did – acted reasonably
Ryburn v. Huff
Police get a tip that a student is going to shoot up a school. Knock on door, no answer. Call
the home, no answer. Call mother, get rapid hangup. Then the student and mother come
outside and the police begin to inquire about the threat. They ask to enter the house,
mother refuses. They then ask if there are any guns in the house and the mother rushes
back inside the house. Ryburn follows and the other officers follow out of concern for
officer Ryburn. Ct. concludes Ryburn violated 4th amendment rights but the other officers
did not. S.C. overturns the decision, and give Ryburn qualifying immunity. Huffs running
back into the house gave rise to a reasonable suspicion and belief that there was a
dangerous situation. Officer gets qualified immunity even though 4th Amm violation if there
were a reasonable mistake as to the legality of the entry. But here the court determines
there wasn’t even a 4th Amm violation. Compared to Brigham City where there was
observation of unlawful activity and injury, here there was no unlawful activity by Huff.
Plain View
 not really a warrant requirement exception
 more has to do with seizures and if what you plainly see is it a search?
 About what you can seize whether you are searching pursuant to a warrant or not
 police can seize what they believe is probable evidence of a crime that is in plain
view when in a place they have a right to be
 so if in olain view does not have to be the object of a warrant search – so could be
looking for drugs and find drugs in plain view
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Arizona v. Hicks
(1987)
Whether the plain view doctrine (as articulated 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 + whether the search was reasonable under 4th am
Held: (1) No, police may not invoke plain view doctrine under these circumstances; (2) no,
because probable cause is required in order to invoke the plain view doctrine (**first time
deciding this**)
Facts: Officers entered respondent’s apartment when a bullet was fired through that same
floor, striking/injuring a man in the apartment below. When officers entered apartment,
they found and seized 3 weapons. Then officer nelson noticed two sets of expensive stereos
and suspected it was stolen; ran serial number and confirmed it was stolen. Obtained
warrant to seize equipment as well.
Reasoning: Mere recording serial numbers was not a seizure, but moving the equipment
DID constitute a search separate from the weapons. Further, this search was unreasonable
because court holds that probable cause is required when invoking plain view doctrine. –
the police did not have real reason to believe it was evidence of a crime until turned over
and saw the serial numbers **remember: there is a preference for WARRANTS.
- We are not talking about reasonableness b/c that is when something is search trying to
figure out if it was a reasonable search – this was not a search
Terry stop for things
Can temporarily detain a personal affect
Horton v. Cali
1990
Rule of Law
When the police have a legal right to be where they are and they find incriminating
evidence and the incriminating character is immediately apparent, the police may seize the
evidence without a warrant under the plain view doctrine.
Facts
The police obtained probable cause that Horton (defendant) was the one responsible for an
armed robbery. The police obtained a warrant to search Horton’s home only for the
proceeds of the robbery, though the affidavit for the warrant also described the weapons
used in the robbery and not just the proceeds. Pursuant to the warrant, the police searched
Horton’s home where they did not find the proceeds of the robbery but they did find the
weapons used in the robbery lying in plain view. At trial, a police officer testified that he
was interested in finding the weapons while he searched Horton’s home, so the weapons
were not found “inadvertently.” The trial court allowed the evidence of the weapons to be
admitted at trial and Horton was convicted.
Issue
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Under the plain view doctrine, must the discovery of an item be inadvertent for police to
make a warrantless seizure of the item?
Holding and Reasoning (Stevens, J.)
No. Under the Fourth Amendment the police can seize an item that is in plain view without
a warrant, even if finding the item was not inadvertent, so long as the police have the legal
right to be where the item is found. Coolidge v. New Hampshire, 403 U.S. 443 (1971), held
that an item must be found inadvertently for the plain view doctrine to apply. However,
this requirement is not crucial to the plain view doctrine because a person’s Fourth
Amendment rights are fully protected without it. First, including an additional item in the
affidavit expands the scope of a search, creating a greater intrusion on an individual’s
privacy. Second, when the police keep their search within the scope of the warrant, no
significant invasion of privacy occurs when an item not mentioned in the warrant is found.
Also, if the officer suspects to find an item but his suspicions do not rise to probable cause,
there is no reason that his suspicion should prevent the item from being seized if it is in fact
found. Furthermore, the Fourth Amendment already requires that a warrant specifically
state the things to be searched and seized. This insures that the police will not turn a
specific warrant into a general warrant under the guise of the plain view doctrine because
their search must be confined to the specifications of the warrant. Finally, an item need not
be found inadvertently because this would require knowing the subjective state of mind of
the officer who comes across incriminating evidence. In this case, while the police did hope
to find evidence of the weapons used in the robbery, their search was confined to looking
for the proceeds of the robbery when they came across the weapons and the seizure of the
weapons is therefore constitutional. The judgment is affirmed.
Dissent (Brennan, J.)
The plain view doctrine must only apply to items discovered inadvertently. While requiring
a search warrant before a person’s privacy may be intruded upon by the police, the Fourth
Amendment also requires that a valid warrant specifically list the items to be seized. Thus,
under the Constitution, people’s privacy interests and possessory interests are valued
equally. As a result, the unwarranted intrusion on one’s possessory interest is per se
unreasonable absent exigent circumstances.
 ISSUE: whether warrantless seizures of evidence of crime in plain view is
prohinited by the fourth amendment if the discovery of evidence was not
inadvertent
 HOLDING: even though inadvertence is a characteristic of most legitamete “plainview” seizures, it is not a necessary condition
 the police got a warrant for the booty of a robbery and ended up finding the
weapons (asked to look for weapns and court said that they could not) too which
was out of the scope of the warrant but they were in plain view and police expected
to find the weapons and they were there and they did not even have to be out on the
mantel – could have been anywhere where you would look where you would look
for something that the search warrant says you can look for that stuff
 the police were legally there on the premises and they came across these weapons
and could bring back the evidence of crime that they found
29

if they would have found what they were looking for right when they got there then
there does not seem to be grounds for the search – can look places where the loot
can plausibly be concealed – if warrant is very specific have to stick with it
Automobile Exception/Searching Containers
 4th A protects person’s effects and home but cars figure into this because arguably
they are personal effects if look at the property way
 if look at expectation of privacy:
o could be lower because car is more regulated, licensed, subject to inspections
of various kinds. Used out in public and subject to viewing, windows
o but you can lock it, people spend a lot of time in cars, need their cars
 has to be a reasonable search and if reasonable without a warrant
 mobile homes treated as cars and not home
Carrill
 bootlegger during prohibition
 a warrant was not needed
Chambers v. Marroney
Rule of Law
A warrantless search of a car is constitutional so long as the police have probable cause
that the car contains items that they are entitled to seize.
Facts
Two men robbed a gas station. The police obtained reliable information concerning the
suspects and when a blue station wagon was pulled over the police had probable cause to
believe that the men in the car were responsible for the robbery. The men in the car were
arrested and the car was brought back to the police station where it was searched. In the
car the police found a gun, money and other evidence linking one of the car’s occupants,
Chambers (defendant), with both the robbery of the gas station and also another robbery
that had occurred a few days earlier. The evidence found in the car was introduced at trial
and Chambers was convicted of both robberies.
Issue
Is the warrantless search of a car made at a police station constitutional if the officers have
probable cause that the car contains evidence of a crime just committed?
Holding and Reasoning (White, J.)
Yes. The police may search a car at the police station without a warrant if they have
probable cause. A warrantless seizure is as intrusive as a warrantless search. Therefore,
both must be treated alike under the Constitution. Under Carroll v. United States, 267
U.S.132 (1925), because a car can be so easily moved, it may be searched on the highway
without a warrant provided the police have probable cause that the car contains something
30
they are entitled to seize. To be effective, such a search must occur immediately or the
police at the very least must secure the car until they obtain a warrant to search it.
Therefore, a warrantless seizure of the car is also permissible under the Fourth
Amendment. Now, with these warrantless seizures based on probable cause, there is no
practical difference between waiting for a warrant and simply searching the car absent a
warrant because a judge will likely issue the warrant based on the probable cause.
Therefore no warrant is needed for the police to search a car that has been seized and
brought to the police station based on probable cause.
Concurrence/Dissent (Harlan, J.)
A warrantless search is generally a far greater intrusion than a warrantless seizure. Hence,
the Court goes too far when it holds that because a car may be seized without a warrant
when probable cause exists, the car may then be searched without a warrant at the police
station. The Fourth Amendment requires that people be given the added protection of a
review by a magistrate. Such a review ensures that probable cause does in fact exist for the
search, even when circumstances justify a warrantless temporary seizure.
police seized a car and moved it to police station and searched it there
 the court decided that was ok because the police could have searched the car where
it was but it was more convenient and nicer to D to move it so he didn’t have to sit
on the side of the road
Searching Containers
 Early case said warrants were needed to search containers in cars
o Chadwick –
United States Supreme Court
433 U.S. 1 (1977)
Rule of Law
The Fourth Amendment protects a person’s reasonable expectations of
privacy and requires that the police obtain a warrant before executing a
search unless a relevant exception applies.
Facts
Amtrak officials reasonably suspected that a man and a woman were traveling from
California to Massachusetts with a trunk full of marijuana and notified the police, who in
turn notified the officials in Boston. Federal officials greeted the train upon its arrival in
Boston and released a police dog who indicated that there were in fact drugs in the trunk.
Chadwick (defendant) arrived at the train station to pick up the trunk, and he and the two
traveling with the trunk were arrested as they were placing the trunk in the back of
Chadwick’s car. The trunk was brought back to the federal building where it was searched
without a warrant one hour and a half after the arrests had been made. The trial court
granted Chadwick’s motion to suppress the marijuana that was found in the trunk on the
grounds that the search was unreasonable, as it did not qualify as a search incident to
arrest or a valid search under the automobile exception.
o Issue
31
Is a warrantless search of a locked trunk unreasonable where probable cause exists that
the trunk contains drugs and the trunk was seized during a lawful arrest, but the police
have the trunk in their control for over an hour before they search it?
o Holding and Reasoning (Burger, C.J.)
Yes. A warrantless search of a locked trunk that is not searched until the police have exclusive
control of the container is unconstitutional. The Fourth Amendment protects people, not
places (Katz v. United States, 389 U.S. 347 (1967)), and was not drafted solely to protect
people from warrantless searches of their homes as the government here argues. Instead,
the Fourth Amendment requires the authorities to obtain a search warrant before they
conduct a search of an area or item in which a person has a reasonable expectation of privacy.
While the government does not argue that the search is reasonable as an automobile search,
the government does argue that because containers in a lawfully stopped car are subject to
search where probable cause exists, the search of the trunk is reasonable. This is not so.
Unlike an automobile, and containers inside an automobile, where there is a diminished
expectation of privacy, by locking the trunk Chadwick not only had the expectation that the
contents would remain private but this expectation was reasonable because the contents of
personal luggage typically stay private. Finally, the government argues that the search is
reasonable as a search incident to arrest. This argument also fails. No exigency existed to
immediately search the trunk, and the actual search took place over an hour after the trunk
had been seized and after the trunk was under the exclusive authority of the police.
Therefore, the police should have obtained a warrant before they searched the trunk because
there was no threat that the evidence would be destroyed and Chadwick had a reasonable
expectation of privacy in the contents of the trunk. The search was unconstitutional.
o Concurrence (Brennan, J.)
It is unclear whether the trunk could have been lawfully searched under the automobile
exception had the police permitted Chadwick to drive off and then pull him over. It is also
unclear whether the trunk could have been lawfully searched at the time Chadwick was
arrested because the trunk would not have been under Chadwick’s immediate control. It is
unlikely Chadwick could have accessed the contents to obtain a weapon or destroy
evidence saw suspects put a footlocker they thought had mj in it was place in car and seized
and searched it without a warrant – the search was suppressed because there was an
expectation of privacy in the footlocker because it was a personal effect.
o Sanders – PO wait until suitcase suspecting of having mj in it was put in a
moving cab and then they moved and stopped the cab and looked in the
suitcase without a warrant and found mj. The crt suppressed the search
reasoning that once you have seized the suitcase it is no longer mobile, you
can secure it and you can get a search warrant – it is no longer mobile
o Robbins – PO stop a guy driving erratically and smell mj and search car and
open plastic packaging that contains mj. This is a warrantless search of the
car. The search of the car was ok but opening the containers was not ok. Diff
then above cases because PO did not see a container go into the car that they
thought mj just generally searching the car after smelling mj
o Ross – police search car of suspect the have been told dealing drugs out of his
car. Search car and find paper bag in back open up and find drugs inside. The
search was permitted because they had a right to search entire car and can
search container because could potentially contain what they were looking
32
for. Similar to a warrant to search a house can look for places where for
example the gun might be hidden
o Robbins v. Ross – they are not consistent with each other – Ross overturns
Robbins
o Chatwick and Sanders were different because PO did not have probable
cause to believe there was crime within the whole car – just had probable
cause for the specific item, not to the whole car
California v. Acevedo
1991
Rule of Law
The Fourth Amendment permits warrantless searches of containers found in automobiles
provided the police have probable cause that the container contains contraband.
Facts
The police watched as a man entered his home carrying a package they had probable cause
to believe contained marijuana. Before a search warrant could be obtained, Acevedo
(defendant) arrived at the house and left after about ten minutes carrying a bag that was
the same size as the package. Acevedo put the bag in the trunk of his car and drove away.
Fearful of losing the evidence, the police followed him, pulled him over, opened the trunk
and looked inside the bag, finding marijuana. The California Court of Appeals held that the
marijuana found in the bag should have been suppressed at trial because the police needed
a warrant to search the bag. The court of appeals also found that the bag did not fall under
the automobile exception since the police had probable cause that the bag, not the car,
contained drugs. The United States Supreme Court granted certiorari.
Issue
Under the Fourth Amendment, must the police obtain a warrant to open a container in a
moving vehicle where they have probable cause that the container, but not the car, contains
contraband?
Holding and Reasoning (Blackmun, J.)
No. Just as the Fourth Amendment allows a warrantless search of a car when the police
have probable cause that the car contains contraband, the Fourth Amendment allows the
warrantless search of a container in the car when the police have probable cause that the
container contains contraband. First, a container found after a general search and one
found after a specific search, as is the case here, can both be easily hidden and destroyed.
Furthermore, the privacy expectations and the exigent circumstances upon finding a
container in either situation are the same and warrant the same treatment. Second, having
two separate rules, one for when probable cause exists as to a car and one for when it
exists as to a container in the car, will lead to confusion and possibly more extensive
searches of the entire car than police would otherwise undertake. Therefore, when the
police have probable cause that a container in a moveable car contains contraband, they
may search the container without a warrant. However, their search must be limited to that
specific container, unless they have probable cause that the car itself contains contraband
33
too. Accordingly, the search of the bag found in the trunk of the car was constitutional
because the police had probable cause that the bag contained contraband.
Concurrence (Scalia, J.)
The search was constitutional because a warrantless search of a closed container, when it
is not inside a private building and when probable cause exists that the container contains
contraband, is reasonable under the Fourth Amendment.
Dissent (White, J.)
Concurring with Justice Steven’s dissent.
Dissent (Stevens, J.)
Under the Fourth Amendment warrantless searches are per se unreasonable. The Court’s
opinion fails to identify exigent circumstances that merit creating a new rule. The Court
wrongly relies on unsupported presumptions to rationalize its decision when it assumes
that prior jurisprudence is confusing, that the current rules do not protect significant
privacy interest, and that the current rules impede law enforcement.
 Police got a tip that a package of mj was being shipped
 they saw the person who came to pick it up and followed him to his house
 saw D bring out a bag that looked to be same size as a mj bag and put it in the trunk
of his car
 the police stopped the car and looked in his trunk and found bag
 different rules that govern if police have probable cause to search the whole car or
just a container in the car
 found that this was the case that had probable cause to look at just container
 ISSUE: whether the fourth amendment requires the police to obtain a warrant to
open the sack in a movable vehicle simply because they lack probable cause to
search the entire car ---- NO
 there is no real distinction from a container found from general search of car or one
specifically searching for
 HOLDING: The police my search without a warrant if their search is supported
by probable cause – but probable cause to believe there is contraband in trunk
does not warrant a search of the entire vehicle
 this overrules Sanders
Wyoming v. Houghton
1999
 ISSUE: whether PO violate the 4th Amendment when they search a passenger’s
personal belongings inside an automobile that they have probable cause to believe
contains contraband
 car pulled over with man, gf and respondent
 PO saw syringe in mans pocket that he said he used to take drugs with
 they made everyone get out and search the vehicle
 found respondent’s purse and there was meth and drug stuff in it
 she claims they should not have looked in her purse
 there is not a distinction of packages or containers based on ownership
34


“law enforcement would be impaired without the ability to search a passenger’s
personal belongings when there is a reason to believe contraband or evidence of
criminal wrongdoing is hidden in the car
HOLDING: PO with probable cause to search a car may inspect passenger’s
belongings found in the car that are capable of concealing the object of the search
Whren v. U.S
Rule of Law
Except with inventory searches and administrative inspections, when probable cause of
illegal conduct exists, an officer’s true motive for searching or detaining a person does not
negate the constitutionality of the search or seizure.
Facts
Plainclothes police officers pulled over a car for traffic violations after witnessing the driver
make a turn without signaling and then speed down the road. Prior to observing these
traffic violations, the police observed the two men in the car from a distance and became
suspicious that a drug deal was taking place. Whren (defendant) was a passenger in the car
and when the police approached the car they observed plastic bags of cocaine in Whren’s
hands. Whren and the driver were arrested for illegal drug possession and convicted in
federal court after the trial judge, over Whren’s objections, permitted the cocaine to be
introduced into evidence. The court of appeals affirmed the convictions.
Issue
When an officer has probable cause to believe a traffic violation has occurred, is the Fourth
Amendment violated if his primary reason for pulling over and detaining the motorist is
not to enforce the traffic laws?
Holding and Reasoning (Scalia, J.)
No. When there is probable cause that a traffic offense has occurred, the officer’s subjective
motives for detaining the motorist do not invalidate the officer’s actions under the Fourth
Amendment. If the defendant believes he has been targeted by the police because of his
race, as Whren suggests, his remedy lies in the Equal Protection Clause, not the Fourth
Amendment. Here, the driver of the car committed a traffic offense and the officers were
entitled to pull the car over regardless of whether or not a reasonable officer who had not
observed the suspicious activity would have taken the time or chosen to do so based solely
on the traffic offenses. Such a “reasonable officer” standard is ineffective because it will
differ from jurisdiction to jurisdiction depending on the specific policies in place. Whren
further argues that a balancing test should be applied and that the confusion and anxiety to
motorists caused by traffic enforcement by plainclothes police officers for minor
infractions outweighs the minimal traffic safety interest of the state, and as such, it was
unreasonable and unconstitutional for the officers to pull over the car. However, a
balancing test need only be applied where a search or seizure is conducted in an
extraordinary manner and this was not the case here. Therefore, the detention of the car
was reasonable under the Fourth Amendment and the judgment is affirmed.
People v. Kaill
35
Arrests
 there is a real exigency when arresting someone – could have a dangerous offender
who could flee
 probable cause hearing has to take place if an arrest was made without a warrant
 you need a warrant to go inside a person’s house and arrest him – an arrest warrant
 do not need an arrest warrant when you are in hot pursuit

Atwater v. Lago Vista
2001
 ISSUE: whether the fourth amendment forbids a warrantless arrest for a minor
criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine
---It does not
 Riding in car with 2 kids and no one was buckled and she did not have license or
insurance
 PO yelled at her and arrested her and brought her to jail
 history shows that there have been warrantless misdemeanor arrests
 here it is clear that she should not have been arrested and the police did so to
embarrass her
 however, there is not a clear line of what minor offenses can be arrested for without
warrant and ones you cannot – this would be a problem for police
 also there are not that many out there that are happening – Atwater could not give
another example of this happening
 city said this was a reasonable arrest
o advanced enforcement of child safety laws
o encouraged her to appear at trial
 HOLDING: the standard of probable cause applies to all arrests without the need to
balance the interest and circumstances involved in particular situations – if a PO has
probable cause to believe that an individual has committed even a very minor crime
in his presence he may, without violating the 4th Amendment, arrest the offender
 so this was a good arrest
Vagueness, Vagrancy and Discretion to Arrest
Chicago v. Morales
Searches Incident to an Arrest
Chimel v. California
1969
 PO came to C’s house and had an arrest warrant for him
 they asked if they could search he said no
 PO said they could anyways because arresting him and for 45 min to 1hr looked
through the house with his wife and had her open drawers and move things around
 found stolen coins and used them in evidence to prove he robbed a coin store
36



ISSUE: Whether a warrantless search of the petitioner’s entire house can be
constitutionally justified as incident to that arrest
HOLDING: can search the arrestee’s person for any weapons or contraband that he
might later try to get rid of and also the nearby areas that an arrestee could reach to
and get a gun something etc. – want to keep police safe
there is not a similar justification for searching other rooms etc.
Florence v. Burlington Cty.
 warrant issued for not paying fines but he did the records were just incorrect
 ended up spending a week in jail before it was resolved
 was strip searched twice
 issue: whether the strip searches were a civil rights violation
 crt said no if someone is in jail there is a reason to strip search good to have a
uniform policy even if someone was arrested on a trivial offense
Arizona v. Gant
2009
Whether searches and seizures performed by police officers after handcuffing a defendant
and securing the crime scene violate an individual’s 4th am protection
Held: (1) Belton does not authorize a vehicle search incident to a recent occupant’s arrest
after the arrestee has been secured and cannot access the interior of the vehicle + (2)
circumstances unique to the automobile context justify a search incident to arrest when it
is reasonable to believe that evidence of the offense of arrest might be found in the vehicle
Facts: Gant arrested for driving with suspended license, handcuffed, and locked in back of
patrol car. Officers searched his car and discovered cocaine in the pocket of a jacket in the
backseat. Cops got an anonymous tip that he was selling drugs out of his house. He says this
isn’t my house, so leave. They run a search and find out there is an outstanding warrant for
Gant’s arrest for driving with suspended license. Officers returned to his house, saw Gant
pull up in driveway, parks and gets out of car, shuts door. Officers immediately arrest and
handcuff him. Locked him in backseat of car, searched his car and found a gun + bag of
cocaine. PP: Arizona Supreme Court held that the search-incident-to-arrest exception to
4th am’s warrant requirement (as defined in Chimel and as applied in Belton) did NOT
justify the search here – SCOTUS agrees
Reasoning: Court rejects the broad reading of Belton (that would allow a vehicle search
incident to every arrest, notwithstanding that in most cases, passenger compartment will
not be within arrestee’s reach at the time of the search) and holds that Chimel rationale
authorizes police to search a vehicle incident to a recent occupant’s arrest ONLY when the
arrestee is unsecure and within reaching distance of the passenger compartment at the
time of the search.
Rule: police must demonstrate an actual and continuing threat to their safety posed by an
arrestee, or a need to preserve evidence related to the crime of arrest from tampering by
37
the arrestee, in order to justify a warrantless vehicular search incident to arrest conducted
after the vehicle’s recent occupants have been arrested
Reasonableness
Stops & Frisks (Terry Stops)
 Terry stop and when it becomes more and then would need probable cause and not
just probable suspicion
 What justifies the stop and the search
o there is a concern for PO and their safety – justifies the search – can search
for weapons – have to have reasonable suspicion of a weapon
o more concern about the search in Terry opinion
 Standard: Reasonable Suspicion
 the search has to be limited – just for weapons, not evidence
o has to be a brief search a search by feel and outside the clothes it seems like
o if find something that could be a weapon then you can go looking for it
 Ex) if think someone has drugs
o can stop b/c reasonable suspicion of a crime
o can search for a weapon (if has reasonable suspicion that the suspect has
one) but not for the drugs
o this is weird b/c reason can stop is to prevent crime but cannot prevent the
crime because cannot obtain the drugs
Terry v. Ohio
1968
Terry v. Ohio (1968)
Whether it is always unreasonable for a policeman to seize a person and subject him to a
limited search for weapons unless there is probably cause for an arrest  [narrow
question; thus, cannot detail constitutional limitations upon scope of a cop’s power when
he confronts a citizen without probable cause to arrest him]
Facts: Officer McFadden observed 2 men in an area where he patrolled for 30 years (aka,
officer had routine habits of observation). 2 men walked back and forth 5-6 times in the
same series of motions. 3rd man eventually joined in – 10-12 mins later, they walked down
Euclid ave. McFadden became suspicious that they were carrying weapons, so he
approached them, introduced himself as an officer, and asked for their names. The men
“mumbled” so McFadden grabbed Terry, spun him around so that he was facing the other 2,
and then patted him down outside his clothing. He felt a pistol inside the overcoat pocket
but was unable to remove the gun. McFadden then ordered all men into Zucker’s store…
THEN he removed Terry’s coat and found the gun. McFadden then pat down the 2 other
men, discovering more weapons He did not put his hands beneath outer garments UNTIL
HE FELT THEIR GUNS. “Stop and frisk” conflicting beliefs  Yes: it amounts to a mere
“minor inconvenience and petty indignity; which can properly be imposed upon the citizen
in the interest of effective law enforcement on the basis of a police officer’s suspicion” (p.
38
50); No: Fourth amendment argument; “there cannot be a variety of police activity which
does not depend solely upon the voluntary cooperation of the citizen and yet which stops
short of an arrest based upon probable cause to make such an arrest” (p. 51)
- ISSUE
- 1) At what point in encounter does the Fourth amendment become relevant?
o Aka… when did McFadden “seize” Terry and whether or not he conducted a
“search”
o Whenever a police officer accosts an individual and restrains his
freedom to walk away, he has “seized” that person
o “Search” = occurred when McFadden patted down Terry and others
searching for weapons
- 2) Was the search and seizure of Terry reasonable? At inception AND as conducted?
o “a reasonably prudent man would’ve been warranted in believing petitioner
was armed and thus presented a threat to the officer’s safety while he was
investigating his suspicious behavior”
o The Search = McFadden confined search to strictly what was minimally
necessary to learn whether the men were armed, and to disarm them once he
discovered the weapons
Held: McFadden had reasonable grounds to believe that petitioner was armed and
dangerous, and it was necessary for the protection of himself and others to take swift
measures to discover the true facts and neutralize the threat of harm if it materialized”
[So… revolver seized from Terry was properly admitted in evidence]
RULE: an officer is justified in conducting a carefully limited search of persons whom he
reasonably suspects to be dangerous in order to discover any weapons which might be
used to assault him or others nearby, even in the absence of probable cause for arrest. And,
any weapons seized may be introduced into evidence.
- Purpose: to neutralize the threat of physical harm to police officers
- **Favorable decision to police officers**
Cant search for evidence of a crime it is limited to search for weapon. However, must be
limited to the outside of the clothes
Duration of Stop
 When there is a standoff and the Terry Stop seems to go on indefinitely – when is it
not just a Terry stop – thinking about duration
Dunaway case
Rule of Law
Except in the case of temporary stops on the street where the police need only have
reasonable suspicion of criminal activity, the police may only seize a citizen based upon
probable cause.
Facts
39
A police detective received information that Dunaway (defendant) was responsible for an
armed robbery that resulted in the death of one person. The information was insufficient to
get a warrant but the detective found Dunaway at a friend’s apartment and requested that
he come to the police station for questioning. Dunaway complied. Dunaway was not under
arrest but he was read his Miranda warnings and would have been restrained had he tried
to leave. Eventually, Dunaway made incriminating statements and drew incriminating
sketches.
Issue
Can the police seize a suspect and bring him to the police station based only on reasonable
suspicion?
Holding and Reasoning (Brennan, J.)
No. In order to lawfully bring a suspect into formal police custody and interrogate him at
the police station, the police must have probable cause. The rule in Terry v. Ohio, 392 U.S. 1
(1969), that the police may stop and search a citizen on the street based on reasonable
suspicion, does not extend to situations where the suspect is brought into the police
station. In Terry, because the intrusion into a citizen’s privacy is limited in terms of scope
and timing, a balancing of the government’s interest and a citizen’s interests was
appropriate. However, bringing someone to a police station where they are not free to
leave, and subjecting them to formal interrogation, is a far greater intrusion and demands
probable cause to be reasonable under the Fourth Amendment. To hold otherwise would
all but make the Fourth Amendment’s warrant and probable cause requirements obsolete.
Therefore, the police conduct in this case constitutes a violation of the Fourth and
Fourteenth Amendments.
Concurrence (White, J.)
The Fourth Amendment is grounded in reasonableness and the balancing of interests. It is
impractical to do such a weighing of interests on a case-by-case basis and a categorical
approach is better. Therefore, because the police conduct in this case is so similar to an
arrest, the two should be treated alike and probable cause is necessary to bring a suspect
into the police station.
 this was an arrest and not just a Terry stop because crossed the line
 was not free to leave the interrogation room where he was brought by the police in
the PO station
Royer case
Rule of Law
(1) Under the Fourth Amendment, police officers cannot move a suspect to another
location during a Terry stop without a legitimate law enforcement purpose, such as
ensuring the safety and security of the officers and the suspect.
(2) Under the Fourth Amendment, a suspect's consent to a warrantless search is invalid if
the suspect was illegally detained at the time it was given.
40
Facts
Royer (defendant) bought a one-way plane ticket and checked luggage under a fake name.
In the airport concourse, law enforcement agents stopped Royer because they suspected he
was a drug courier. Without verbally consenting, Royer gave the officers his ticket and
identification. The officers kept the documents and asked Royer to come to a small room
forty feet away. Royer followed. The officers then, without Royer’s consent, retrieved his
luggage from the airline. Royer did not answer the officers when they asked to search the
luggage; he did, however, unlock one of the suitcases. Royer permitted the officers to pry
open the other. Drugs were found in both bags. Royer was charged with felony drug
possession. Royer moved to suppress the evidence found in the luggage. The trial court
denied the motion on the ground that Royer consented to search. The court concluded the
search would have been reasonable without consent or a warrant, because the plane was
about to depart. Royer was convicted, and he appealed the denial of his motion. The Florida
District Court of Appeal, en banc, reversed, concluding Royer’s involuntary detention
without probable cause violated Terry v. Ohio, 392 U. S. 1 (1968). Florida petitioned the
United States Supreme Court for certiorari, which was granted.
Issue
(1) Are police offers permitted under the Fourth Amendment to move a suspect to another
location during a Terry stop without a legitimate law enforcement purpose?
(2) Will a suspect's consent to a warrantless search be valid under the Fourth Amendment
if the consent was given while the suspect was illegally detained?
Holding and Reasoning (White, J.)
(1) No. During a Terry stop, moving a suspect to another location is improper if the officer’s
interests in doing so are not legitimate law enforcement purposes. Ensuring the safety and
security of officers and bystanders might be a legitimate reason to move a suspect. Officers
are not barred from approaching a person and asking questions, so long as the person is
free to leave. The Fourth Amendment is only implicated if there has been a detention.
Under Terry, officers may stop and frisk a suspect if they have an “articulable suspicion that
the person has committed or is about to commit a crime.” Terry stops are limited. An
“investigative detention must be temporary and last no longer than is necessary to
effectuate the purpose of the stop.” Here, the officers had an articulable suspicion sufficient
to justify a Terry stop of Royer. However, there is no evidence of any legitimate purpose for
moving him to the small room. The Terry stop turned into an investigatory procedure in an
interrogation room, and Royer effectively was under arrest. Accordingly, Royer’s detention
was unconstitutional.
(2) No. When police officers conduct a search without a warrant, probable cause, or exigent
circumstances, the search will only be valid under the Fourth Amendment if the suspect
consented. The government bears the burden of proving that consent was voluntary. The
suspect’s submission is not enough. Voluntary statements made during an illegal detention
are inadmissible in court. Here, before Royer consented to the search of his luggage, the
detention was already more intrusive than the Fourth Amendment allows on a mere
41
suspicion of criminal activity. Because Royer’s detention was unlawful, his consent to the
search was invalid. The ruling of the Florida District Court of Appeal is affirmed.
 search of luggage was suppressed only had reasonable suspicion and that was not
enough for what they did
 the seizure was improper
o moved into a different room, a confined room
o do not hold for very long (20 mins)
o
Sharpe case
 detain a truck/camper and think there is drugs in it (reasonable suspicion not
probable cause)
 truck is detained for 20 minutes
 once they detect odor of mj they have probable cause but in the meantime they held
them there
 issue: whether the 20 mins that the police were communicating with each other was
too long
 crt says no not too long
 crts says duration of stop cannot be indefinite – so long as time goes on PO have to
be busy investigating
Auto Stops
Mimms case
 stopped and found driving with an expired license
 ordered out of the car
 PO notices a bulge and then frisks the suspect
 could tell the person to get out of the car even though would not have noticed bulge
inside car – b/c of officer safety, hard to see inside the car could be grabbing for a
weapon
 so could make get out of car without reasonable suspicion of a weapon but need this
suspicion to frisk for a weapon
 court says the intrusion is minimal, compare with PO safety
Johnson case
 car stopped
 have the driver and passengers get out of the car
 no reasonable suspicion that they committed any crime – can frisk them if PO has
reasonable suspicion that they could have a crime
42
Michigan v. Long
 car in ditch
 person been observed doing erratic driving
 see knife in car from outside
 hold suspect outside of the car and search the car incident to a Terry Stop
 have not yet arrested him
 if they had arrested him then they could have searched inside the car but they
haven’t
 uphold the search
o because he was likely to go back in the car and then the PO would then likely
be in danger because the weapon was in there
Plain Feel
Dickerson
 officer during a Terry frisk feels something that he concludes is not a weapon (it is
soft)
 PO manipulates it and determines that it is likely to be drugs
 now PO thinks has probable cause and pulls out seizes it – this seizure is suppressed
 once he determined it was not a weapon then he had to stop searching
Reasonable Suspicion
Florida v. JL
2000
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
Held: No; 1) Tip in this case lacked moderate indicia of reliability present in White – there
was NO predictive information in the tip (*Fact that JL did possess a gun was
INSUFFICIENT basis. Reasonableness of suspicion must be measured by what officers knew
before they conducted the search); 2) “firearm exception” argument by state is rejected by
court – a tip alleging illegal gun will NOT justify a Terry stop and frisk; it would go TOO FAR
(**EXCEPTIONS: report of person carrying a bomb; places with diminished reasonable
expectation of 4th am privacy (i.e., AIRPORTS) – so sometimes it does matter what the
crime is and where the person is can make the evidentiary standard go down like in an
airport or school, it doesn’t matter what the crime is but the degree of danger when
considering the totality of the circumstances.
Facts: On Oct. 13, 1995 – anonymous caller reported to Miami-Dade Police that a young
black man standing at a particular bus stop and wearing a plaid shirt was carrying a gun.
No audio recording of the trip, nothing known of informant… 6 mins later, officers arrived
43
to bus stop, and saw 3 black men “just standing there” – one was wearing plaid. **No
firearm in sight and no threatening movements whatsoever**. Officer approached JL and
told him to put his hands up on bus, frisked him, and seized a gun from his pocket. JL wasn’t
even 16 at time of the incident. Charged under state law with carrying a concealed firearm
without a license + possession of firearm under 18
RULE: anonymous tips can only form the basis of reasonable suspicion if accompanied by
specific indicia of reliability (e.g., the correct forecast of a subject’s “not easily predicted”
movements) – look at TOTALITY of the circumstances
STANDARD: tip must be reliable in its assertion of illegality, not just in its tendency to
identify a determinate person
Navarrete
 911 callers with the make model and plate number of a car that ran her off road
 PO find car and stop smell MJ and search car and find MJ
 Court upholds
o this had specific information
o he ran me off the road
o car was found where reasonably would expect it to be
 Do not need a particular crime for there to be enough reasonable suspicion for a
stop – but do for probable cause (evidence for each element of the crime)
Illinois v. Wardlow
2000
 PO were in a last car caravan in a drug heavy neighborhood
 they saw W and he fled
 they were suspicious and chased him and did a protective pat down
 felt what thought was a gun and looked and it was
 arrested W
 PO can search suspects that they have a reasonable suspicion of but them being in a
shady neighborhood is not enough
 however, fleeing for no reason and nervousness can help
 failure to cooperate is not enough when PO approach without reasonable suspicion
(less than probable cause)
 PO can have reasonable suspicion from innocent activity that may look to them
suspicious but this is ok b/c in a Terry stop it is used for further investigation and if
nothing from that stop rises to level pf probable cause then they must let the suspect
go on his way
Pre-textual Stops/Profiling
Racial Profiling Articles
44


targeting a certain race as being more likely than the population at large to commit
crimes
distinguish between identification of a person’s race who is a suspect and looking
for that individual as oppose to a systematic practice of picking out people for
investigation using race as a factor
Whren v. United States
(1996)
Is the temporary detention of a motorist who the police have probable cause to believe has
committed civil traffic violations is inconsistent with the Fourth Amendment’s prohibition
against unreasonable seizures unless a reasonable officer would have been motivated to
stop the car by a desire to enforce the traffic law?
Held: No
Facts: Evening of June 10, 1993, plainclothes officers in DC police dept were patrolling a
high drug area of the city in an unmarked car (PRETEXT! Officer didn’t even HAVE tickets
to give!). Officers saw suspicious pathfinder truck w/ temp license plates and “youthful
occupants” (black…) waiting at stop. Car stopped more than 20 secs. Officers made U turn
to head back to truck, and then truck suddenly – without signaling – sped off
(“unreasonable speed” = probable cause). Pulled over truck; officer stepped out and
approached truck… at driver’s window, he immediately observed two large plastic bags of
crack cocaine in his hands! Petitioners were arrested + charged with 4 count indictment
(federal law). Petitioners argue: Stop was pretextual; Context of traffic violations is
“unique” because it creates a TEMPTATION to use traffic stops as a means of investigating
other law violations, as to which no probable cause or suspicion exists”; Claims
discrimination based upon race; COURT REJECTS THIS
Reasoning: Defendants violated a traffic rule + officers had probable cause to believe the
violation took place – THAT is why they pulled defendants over (it was not just a routine
“license and registration” check) - Court cites its opinion in Prouse (distinguishing facts of
Prouse – a routine traffic stop – with present case, where police had probable cause to
believe that drivers were violating one of the multitude of applicable traffic regulations).
“Balancing factors” used in Fourth amendment cases need not be applied here because
officers did not conduct stop and search in an “extraordinary manner, unusually harmful to
an individual’s privacy interests.” Discrimination argument rejected, saying that should be
considered under EPC and not 4th amendment – “subjective intentions play no role in
ordinary, probable-cause Fourth amendment analysis” (Conviction affirmed)
 are not concerned about pretext here as oppose to other cases where they have
been because there are different standards – roadblock cases = free floating interest
balancing standard…is the stop reasonable and in order to determine if it is or not
look at Gov. interest and cost in terms of invasion of privacy to the individual – so
need to know what the gov. interest really is so the actual motive matters. The test
for an arrest is whether you have probable cause that the crime took place so its not
45


this free floating reasonableness test, have already decided it is probable cause that
the crime took place and there is enough in this case
allowed to engage in pretextual stops and say doing that under the 4th amendment
– cannot that are racially motivated under the equal protection clause (need that
language)
arrest for one offense even though you suspect but don’t have evidence for the other
People v. Kaill- Case about prostitute being arrested for not having a bell on a bike and the
court found this was pretexual in a way that was discriminatory b/c this no bell on a bike
thing was not even really a crime—failed rational basis review because prostitutes are not
a suspect class.
City of Chicago v. Morales
SC of US
1999
FACTS: Ordinance in Chicago that prohibited “criminal street gang members” from loitering w/
one another or any other persons in a public place. The city had created a council that addressed
what problems were and used that evidence etc. to come up with the mentioned statute. Found
that gang members made murder rate go up, member loitered around places to make it their
territory. Ordinance makes it a criminal offense punishable by a fine or imprisonment for not
more than 6 months. and 12 hrs. of community service. Need 4 predicates:
 Police reasonably believes that at least one of the 2 or more persons in a pub place is a
gang member
 must be loitering: remaining in one place with no apparent purpose
 police must order all persons to disperse
 suspects then disobey the order to be held violating the ordinance
ISSUE: Does the ordinance violate the due process clause? Does it provide fair notice or provide
for arbitrary enforcement?
HOLDING: Yes to both
REASONING:
 Word loitering is not defined well, how could anyone that is standing in pub know if they
are there for an apparent purpose
 Although not charged until disobey order to disperse if the loitering isn’t unlawful in the
1st place then this is a problem, b/c order only after prohibited conduct has occurred
 Also vague as to how the order works, where do they go, how long can the take
 No standard of conduct is specified at all – too vague
 No minimum guidelines to govern law enforcement discretion (in Atwater v. Lago vista,
the conduct wasn’t vague but police discretion of enforcement was to vague).
46






Police can decide who they want to order to disperse
NO apparent purpose or standard for the police to really follow
Applies to non-gang members as well
Has an inapplicability to loitering that has an obviously threatening or illicit purpose
Does not provide sufficiently specific limits to law enforcement
more about fair notice because the statute was not clear enough to give notice
J. Breyer and J. O’Connor concurring in judgment and in part
 this law could be ok if it was construed more narrowly
J. Scalia dissenting
 Loitering use to be ok but now the city is inflicted w/ gang violence
 this is a minor limitation on the free state of nature
 is a small price to pay for liberation of their streets (Chicagoans thought so too)
 is clear and cannot be violated w/o full knowledge or intent
 judiciary should not make a judgment unless Con guaranteed rights are being affected
 further on a rational basis all sorts of perfectly harmless activity by millions of innocent
people can be forbidden – like riding a motorcycle w/o a helmet
====Different holdings in the case
Problems with ordinance
 public did not have notice of what they had to do to violate the law do not know when
you are going to be subject to a dispersal order
 overbreadth – have a category of conduct that includes protective liberties (the freedom
to move around) because the conduct is harmless know not going to arrest everyone that
does this conduct just going to people they suspect of other crimes and thus have too
much discretion and can be used discretionarily.
 the justices disagree on vagueness (majority) v. overbreadth (plurality)
Roadblocks
Martinez-Fuerte
Checkpoint on road from border to inspect all vehicles for illegal immigrants
Prouse
Random stop to check for drivers license and registrations
Sitz
Temporary road blocks set up for period of time checking all vehicles for evidence of drunk
driving
47
Rule of Law
Under the Fourth and Fourteenth Amendments, the police can establish checkpoints
if the state interest outweighs the intrusion into people’s privacy interests and the
checkpoint is proven to be an effective means of achieving the state’s goal.
Facts
The Michigan Department of State Police (defendant) established a drunk driving
checkpoint system. All vehicles passing through the checkpoint would be stopped and
officers would briefly examine the drivers of the vehicles to determine if they were
intoxicated. Where the officer believed the driver to be intoxicated, the driver would need
to show his license and registration, further sobriety tests would be conducted, and arrest
would be made if the tests so warranted. All other drivers would be immediately sent on
their way and the average duration of each stop was twenty-five seconds. During seventyfive minutes of operation, 126 vehicles passed through one checkpoint, two drivers were
detained for further sobriety testing and two drivers were arrested for drunk driving. Sitz
(plaintiff) filed a complaint the day before the checkpoint went into effect, seeking
declaratory and injunctive relief. The trial court held that the checkpoint violated the Fourth
Amendment and the state appeals court affirmed.
Issue
Are temporary sobriety checkpoints reasonable under the Fourth Amendment?
Holding and Reasoning (Rehnquist, C.J.)
Yes. The police may establish temporary sobriety checkpoints along state roads because
the system advances the state’s interest in preventing drunk driving accidents and this state
interest outweighs the intrusion upon motorists imposed by the checkpoints. In Brown v.
Texas (1979), the Court established a three prong test that should be applied here to
determine the constitutionality of this checkpoint. The first factor to consider is the state’s
interest in preventing drunk driving accidents. Drunk driving is a huge problem in the
United States and the states have a strong interest in preventing them. The second factor to
consider is the effectiveness of such checkpoints in achieving this goal. During the time
48
the checkpoint was in operation, 1.6 percent of drivers were arrested for drunk driving. The
national average is one percent of motorists stopped at checkpoints are arrested for driving
drunk. Therefore, while another method may be proven more effective, law enforcement
techniques are left to the police and not the courts. The checkpoint at issue is sufficiently
effective and reasonable under the Fourth Amendment. The third and final factor to
consider is the level of intrusion on an individual’s privacy caused by the checkpoint. The
objective intrusion on a motorist is minimal since the length of the average stop was merely
25 seconds. The subjective intrusion is also slight because it is determined based on the
fear and surprise that a reasonable, law-abiding driver would experience. Therefore,
Michigan’s drunk driving checkpoint system is constitutional, and the judgment of the state
appeals court is reversed.
City of Indianapolis v. Edmond
(2000)
Whether a high checkpoint program whose primary purpose is the discovery and
interdiction of illegal narcotics violates the 4th amendment
Held: yes; program violated the 4th am because its purpose was to advance the “general
interest in crime control”
Facts: In Sitz and Martinez-Fuerte, the Court held that “brief, suspicionless seizures at
highway checkpoints for the purposes of combating drunk driving and intercepting illegal
immigrants WERE constitutional.” Indianapolis in 1998 began to operate vehicle
checkpoints to stop the flow of illegal drugs.
REASONING: “We have never approved a checkpoint program whose primary purpose was
to detect evidence of ordinary criminal wrongdoing.” Must have some measure of
individualized suspicion (e.g., in Prouse, a “general interest in crime control” was not
sufficient). Must serve purposes closely related to the problems of policing the border
or the necessity of ensuring roadway safety. Here, primary purpose of program was to
“uncover evidence of ordinary criminal wrongdoing” and thus contravenes the 4th am
DISSENT: “Because these seizures serve the State’s accepted and significant interests of
preventing drunken driving and checking for driver’s licenses and vehicle registrations,
and because there is nothing in the record to indicate that the addition of the dog sniff
lengthens these otherwise legitimate seizures, I dissent.” Validity of conducting roadblock
seizures was recognized as constitutional in Sitz and Prouse – thus, it’s speculative to say
that petitioners wouldn’t have operated the roadblocks but for the State’s interest in
interdicting drugs
49
Montoya
Rule of Law
A person entering the country may be subjected to more intrusive searches than
routine border searches, if there is reasonable suspicion that drugs are being
smuggled in that person’s alimentary canal.
Facts
On March 5, 1983, Rosa Elvira Montoya de Hernandez (defendant) flew into Los Angeles
from Bogota, Columbia. Customs officials noted the number of trips Montoya de
Hernandez had made into the country and questioned her. The officials did not believe
Montoya de Hernandez’s story that she had come into the country with no hotel reservation,
appointments, checks, or credit cards in order to buy items for sale in Columbia. Officials
believed Montoya de Hernandez was smuggling drugs. A patdown and strip search
revealed that Montoya de Hernandez was wearing two pairs of underwear and her stomach
was firm. Officials believed Montoya de Hernandez was smuggling drugs in her alimentary
canal. After the inspector was unable to book a return flight to Columbia, Montoya de
Hernandez was held for observation for over 16 hours until a court order authorizing an xray and rectal exam was obtained. Drugs were found, and Montoya de Hernandez was
arrested. Montoya de Hernandez was convicted by bench trial for federal drug crimes. The
United States Court of Appeals for the Ninth Circuit reversed because there was no “clear
indication” Montoya de Hernandez was smuggling drugs in her alimentary canal. The
United States Supreme Court granted certiorari.
Issue
Under the Fourth Amendment, may a person entering the country be subjected to more
intrusive searches than routine border searches?
Holding and Reasoning (Rehnquist, J.)
Yes. Customs officials’ with reasonable suspicion that drugs are being smuggled into the
country in a traveler’s alimentary canal may subject that traveler to detention and search
procedures beyond the traditional border search. The Fourth Amendment prohibits
50
unreasonable searches and seizures. Reasonableness is determined by considering all of
the facts and circumstances surrounding a search and balancing the individual’s privacy
interests against the legitimate goals of the government. There is no question that those
governmental interests are greater at the border. Thus, people and property entering the
country may be searched without probable cause or a warrant. In addition, if there is
reasonable suspicion that drugs are being smuggled inside a person’s alimentary canal, that
person may be subjected to additional detention and search. Reasonable suspicion is a
“particularized and objective basis for suspecting the particular person” of the criminal
activity. Indeed, the nature of this type of smuggling makes it unlikely that officials would
ever have probable cause. The customs officials in this case had reasonable suspicion the
Montoya de Hernandez was smuggling drugs in her alimentary canal based on the
surrounding circumstances, experience and training, and common sense. Montoya de
Hernandez’s lengthy detention was reasonable in light of the manner of smuggling she
chose. There was no violation of the Fourth Amendment, and the ruling of the lower court
is reversed.
Dissent (Brennan, J.)
Customs officials with no more than reasonable suspicion detained Montoya de Hernandez
for nearly 27 hours, subjected her to discomfort and humiliation, and refused to allow her
to make a phone call or contact an attorney simply because she fit the profile of a drug
smuggler. Innocent people could be subjected to the same treatment as the guilty. The
Court’s ruling runs afoul of the protections of a free society guaranteed by the Fourth
Amendment, which does not distinguish between the border and the interior.
Flores-Montano
Rule of Law
Reasonable suspicion is not required for the routine search of the gas tank of a vehicle
attempting to enter the United States.
51
Facts
Manuel Flores-Montano (defendant) was attempting to cross the United States border
through the Otay Mesa Port of Entry in California when a customs official inspected his
vehicle. The inspector took Flores-Montano’s car to a secondary inspection station. The
gas tank sounded solid when tapped, so the inspector called a mechanic to remove the tank.
The inspector found 37 kilograms of marijuana in the tank. The entire process took
approximately one hour. Flores-Montano was indicted by a grand jury for the Southern
District of California for importing and possessing marijuana with intent to distribute in
violation of 21 U.S.C. §§ 952, 841(a)(1). Flores-Montano moved to suppress the evidence
found in the gas tank. The district court granted the motion because the government did
not have reasonable suspicion for the search. The Court of Appeals for the Ninth Circuit
Affirmed. The United States Supreme Court granted certiorari.
Issue
Under the Fourth Amendment, is reasonable suspicion required to search the gas tank of a
vehicle entering the United States?
Holding and Reasoning (Rehnquist, C.J.)
No. The government may search people or property entering the United States without
probable cause, a warrant, or even reasonable suspicion. Under United States v. Ramsay,
431 U.S. 606 (1977), this type of search is reasonable simply because it is performed at the
border. This authority is derived from the United States’ sovereign right to territorial
integrity. Congress granted this authority to the Executive to ensure duties are collected
and contraband is not brought into the country. Drug seizure data for the California ports
of entry indicates that smugglers often attempt to smuggle drugs and people in and around
fuel tanks. Flores-Montano’s arguments that his rights to privacy and property in the fuel
tank were violated fail. First, cars entering at the border are subject to search, and there is
certainly less of a privacy interest in the fuel tank than the passenger area. Second, gas
tanks can be removed, inspected, and replaced without damaging the car, and the
infringement of property rights is outweighed by the government’s interests in controlling
its borders. In addition, the one to two hour delay associated with a gas tank inspection is
not unreasonable. Thus, the search of Flores-Montano’s fuel tank was valid, and the ruling
of the Court of Appeals for the Ninth Circuit is reversed.
52
Special needs (administrative searches)
Pottowatomie v Earls
Rule of Law
Students who participate in extracurricular activities may be subjected to drug
testing without a warrant or individualized suspicion.
Facts
The Board of Education of Independent School District No. 92 of Pottawatomie County
(District) (defendant) instituted a drug testing policy for all students participating in
extracurricular activities. The policy requires students to be tested before participating in
an extracurricular activity, at random as long as they participate, and any time the school
has reasonable suspicion. The test requires the student to produce a urine sample while
being monitored from outside the stall. Test results are kept confidential and never turned
over to police. Students that test positive may not be permitted to participate in
extracurricular activities. Lindsay Earls, Daniel James, and their parents (plaintiffs) filed
suit under 42 U.S.C. § 1983 claiming the policy violates the United States Constitution and
seeking injunctive and declaratory relief. The United States Supreme Court granted
certiorari.
Issue
Under the Fourth Amendment, may students who participate in extracurricular activities
be subjected to drug testing without a warrant or individualized suspicion?
Holding and Reasoning (Thomas, J.)
Yes. Public schools may require students participating in extracurricular activities to
submit to drug testing without a warrant or individualized suspicion. The special needs of
public schools to manage and discipline students justify relaxing the requirements of the
Fourth Amendment. The amendment does not always require individualized suspicion or
use of the least intrusive means of accomplishing a governmental goal. Reasonableness
must be assessed by balancing students’ privacy rights against the achievement of the
school’s legitimate goals. As discussed in Vernonia School Dist. 47J v. Acton, 515 U.S.
53
646 (1995), students have a reduced expectation of privacy and are often required to
undergo medical exams or vaccinations for the good of all. Students that participate in
extracurricular activities, like athletes, voluntarily submit themselves to additional
regulation. In this case, the policy intrudes even less upon privacy than the policy at issue
in Vernonia. Students are monitored from outside the stall while producing a urine sample,
records are confidential, and results are not given to police. Any school’s interest in
protecting students from the nationwide drug epidemic is compelling. Nevertheless, the
District proved that students at Tecumseh schools are using drugs. Drug use poses
significant health risks to all children, not just athletes. Requiring individualized suspicion
for drug testing would be impracticable and likely lead to significant litigation. The
District’s policy is reasonable and does not violate the Fourth Amendment.
Concurrence (Breyer, J.)
Public schools are charged with protecting students from the dangers of drugs, and this
policy is aimed at combating the peer pressure students may feel to use drugs. While many
would argue that the testing procedures are very intrusive, students may avoid the testing
by foregoing extracurricular activities. Also, requiring individualized suspicion might
encourage schools to arbitrarily or unfairly target certain groups. Therefore, the policy is
not unreasonable under the Fourth Amendment.
Dissent (Ginsburg, J.)
Vernonia approved of drug testing student athletes who are more likely to sustain drugrelated injuries if they use drugs at a school with a pervasive drug problem. The ruling
today allows testing of students least likely to use drugs at a school with only a minor drug
problem. The District’s policy is not reasonable under the Fourth Amendment.
School Dist. V Redding
Rule of Law
A school-related strip search of an adolescent, conducted without probable cause, is
unlawful under the Fourth Amendment.
54
Facts
In October 2003, the assistant principal of the middle school that Redding (plaintiff) was
attending confronted Redding with certain items supposedly belonging to her. Some of the
items were painkillers, which were generally banned under school rules without advance
permission. Redding denied any knowledge of the pills. The principal told Redding that he
had heard she was distributing the drugs to classmates. She denied this and allowed a search
of her belongings, which revealed no proscribed items. The principal then asked a female
administrative helper to take Redding to the school nurse’s office to search her clothes. The
helper and the nurse asked Redding to remove her jacket, socks, and shoes. Finding
nothing, they then asked her to remove her stretch pants and T-shirt. Still finding nothing,
they told her to remove her bra and to shake it, as well as to pull out the elastic on her
underwear. When Redding did so, she exposed her breasts and pelvic area. No contraband
items were found. Redding’s mother filed suit against the school and the officials, claiming
that they conducted an illegal strip search under the Fourth Amendment. The officials
moved for summary judgment, raising the defense of qualified immunity. The United
States Court of Appeals for the Ninth Circuit found that the search violated Redding’s
rights and denied the officials’ defense of qualified immunity. The United States Supreme
Court granted certiorari.
Issue
Is a school-related strip search of an adolescent, conducted without probable cause,
unlawful under the Fourth Amendment?
Holding and Reasoning (Souter, J.)
Yes. In New Jersey v. T.L.O., 469 U.S. 325 (1985), we held that since the school
environment was different from normal society, it was necessary to make a separate
determination as to when the level of illicit activity would justify a search. In that case, the
balancing of governmental and private interests suggests that public interest is best served
by a standard of reasonableness that is something less than probable cause. The search must
be “reasonably related to the objectives of the search and not excessively intrusive in light
of the age and sex of the student and the nature of the infraction.” Reasonable suspicion is
the standard for school-related searches. That said, we proceed to the facts of this case. The
school officials, having received a reliable tip from one of Redding’s friends, first searched
55
Redding’s backpack and outer jacket. Finding nothing, they proceeded to conduct a far
more intrusive search, in the course of which Redding’s breasts and pelvic area were
exposed. Applying the standard articulated in T.L.C., we believe that the intimate search
was not “reasonably related to the objectives of the search.” After all, the school principal
knew that the drugs he was looking for were only painkillers and thus that the potential
threat they posed was minimal. Moreover, he knew from reliable sources that these drugs
were not being passed around in large quantities. Furthermore, while it was certainly
possible that such drugs could have been hidden on someone’s body, it was not reasonable
for him to suspect that these drugs would be found in intimate places, where the search was
actually conducted. Therefore, an invasive search for nondangerous drugs in Redding’s
intimate places is not a reasonable search under the Fourth Amendment. Redding’s privacy
interests surely were violated by this search, and there are no countervailing governmental
interests that could justify the extreme type of intrusion that it posed. There was simply no
reasonable suspicion to suspect that Redding was hiding the painkillers in her bra or
underwear. On the other hand, we hold that the officials who authorized the strip search
are entitled to qualified immunity from prosecution because of lower court confusion on
how to interpret our decision in T.L.O. For the foregoing reasons, we affirm the Ninth
Circuit’s decision regarding the violation of Redding’s Fourth Amendment rights, but
reverse its denial of the officials’ defense of qualified immunity.
Concurrence/Dissent (Stevens, J.)
The Court’s decision to extend qualified immunity to Wilson was wrong. The nude search
of a thirteen-year-old child is clearly a significant invasion of constitutional rights.
Concurrence/Dissent (Ginsburg, J.)
The Court was correct in concluding that Wilson’s subjection of Redding to a humiliating
strip search violated her Fourth Amendment rights. The Court was incorrect in concluding
that Wilson was entitled to qualified immunity.
Searches by other officials
Ferguson v. City of Charleston
Brief Fact Summary. A hospital developed a policy in conjunction with law enforcement
officials for dealing with pregnant drug addicts.
Synopsis of Rule of Law. A policy that
permits searches where the purpose served is “ultimately indistinguishable form the general
56
interest in crime control” does not comport with the Fourth Amendment.
Facts. In response to an apparent increase use of cocaine among prenatal patients, the Medical
University of South Carolina (MUSC) began to order drugs screens. Those testing positive were
referred for treatment. Subsequently, MUSC began a relationship with Solicitor of Charleston,
which led to a policy outlining legal action to be taken against pregnant addicts, including
protocols for arrest, with the hope that the threat of the law would get women into treatment. No
consent was given by the women for the drug screening.
Issue. “[W]hether a state hospital’s performance of a diagnostic test to obtain evidence of a
patient’s criminal conduct for law enforcement purposes is an unreasonable search if the patient
had not consented to the procedure.”
Held. Yes. Using the “special needs” test, the court noted that “in this case . . . the central and
indispensable feature of the policy from its inception was the use of law enforcement to coerce
the patients into substance abuse treatment.” Further, there policy did not “discuss different
courses of medical treatment for either mother or infant.” The involvement of law-enforcement
officials throughout the development of the policy showed that the ultimate interest was “crime
control.”
Dissent. The dissenting justices felt that the Court was incorrect to focus on the reporting of test
results by the hospital to the authorities as the “search.” Rather, the search was the taking of
urine, which is not an “effect” for Fourth Amendment purposes. Concurrence. J. Kennedy
concurred in the result, noting the greater penal quality of the policy. However, he was
concerned that the law enforcement aspect might negatively impact the legitimate medical
purposes of drug testing.
Discussion. A benign motive “cannot justify a departure from Fourth Amendment protections,
given the pervasive involvement of law enforcement with the development and application of the
MUSC policy.”
Reasonableness and Police Use of Force
Scott v. Harris
 PO chasing a fleeing motorist who was driving recklessly
 eventually they rammed his car which brought him to a stop and left him paraplegic
 D said unlawfully subjected him to deadly force
 Apply Garner – test: whether it is reasonable to let a fleeing felon go who is a risk to
society or act with deadly force and necessary to use force to apprehend
 Is this deadly force?
o there is a difficulty in cases because could say he was just driving a car but that is
circular because then D is not using deadly force either and not posing a deadly
force to others
57

o D argue use of deadly force not justified by saying him driving recklessly in a car
is not deadly force then hard to say the PO ramming him in car was deadly force 0
would have to make a distinction between intentionally ramming someone (PO)
and just driving fast (D)
seems to modify the Garner test
o relies on test of whether acts were reasonable
o evaluates particular force used as reasonable or not (weighs with interest) rather
than categorizing it as a deadly force or not
Consent Searches

a defendant does not need to know he has a right to refuse consent in order to
validly consent to a search – is a factor to be taken into consideration
ILL. v. Rodriguez
1990
 Non resident gf of D had a key to his apartment (had dv calim against him) she led
PO into the apartment so he could be arrested for the dv charge a (he was asleep)
they then found drugs and charged with drugs too
 could she consent – yes SC says and upholds the charge
Search Incident to Arrest
Origins:
Officer Safety Concerns, Destruction of Evidence, Flight Risks of Suspects, Effecting Arrest,
Preventing Further Crime
Can think of the arrest itself as an exigent circumstance
Weeks
Rule: Arrested persons that have been lawfully arrested may be searched for contraband
Carroll
Rule: Can search for evidence within the suspects immediate control
Marron
Agnello
Rule:
Limited by Exigency:
58
Go-Bart
Rule:
Lefkowitz
All Premises:
Harris
Rabinowitz
Chimel
Rule of Law
Incident to a lawful arrest, a warrantless search of the area in possession and control of the
person under arrest is permissible under the Fourth Amendment.
Facts
Pursuant to a valid arrest warrant, the police went to Chimel’s (defendant) home to arrest
him for the burglary of a coin shop. Chimel’s wife let the police inside and when Chimel
returned home they arrested him. Without a search warrant and without permission, the
police then conducted a complete search of Chimel’s home. The police instructed Chimel’s
wife to remove items from drawers and eventually the police found and seized a number of
coins, medals and tokens. Over Chimel’s objection, these items were introduced at trial. The
appellate courts affirmed the decision holding that the search of Chimel’s home was valid
as a search incident to a lawful arrest.
Issue
Is a warrantless search of an entire home permissible when the search is incident to a
lawful arrest that takes place in the home?
Holding and Reasoning (Stewart, J.)
No. A warrantless search incident to a lawful arrest can only cover the area in possession or
control of the person being arrested. When an arrest occurs, it is reasonable for the police
to search the person being arrested to insure he is not armed and to ensure no evidence is
destroyed. This rule is easily extended to include a search of the area that the person under
arrest may access. However, a search of the area outside of the suspect’s immediate control
cannot be similarly justified and is therefore not reasonable. The warrantless search of
private homes was what the Fourth Amendment requirements of warrants and probable
cause were intended to prevent. Furthermore, allowing warrantless searches of an entire
home would encourage the police to make all arrests in suspects’ homes since they could
then legally undertake a search even where probable cause is lacking. Because the coins
introduced at trial were not found in an area under Chimel’s immediate control, the search
and seizure was unconstitutional and the conviction is overturned.
Dissent (White, J.)
59
There is no need to overrule earlier precedent and hold that searches of entire homes
incident to arrest are per-se unreasonable. Rather, an arrest creates exigent circumstances
allowing for a warrantless search when there is probable cause to believe that delay would
result in the destruction of evidence. In this case, if the police had not immediately
searched the home for the coins, Chimel’s wife would have likely removed the coins from
the home in the time it took the police to secure a search warrant. Therefore, the search
was reasonable.
Robinson
Rule of Law:
Can search within anything on the suspects immediate person subject to arrest. Expands to
include contraband.
Facts: arrest driver for driving without a license, find a cigarette pack and search inside it,
find evidence of drugs.
Reasoning: Cigarette pack was on the suspect and have ability to search the person subject
to arrest, therefore can search the pack. Court says police don’t need a reason when it is on
the person. Can search for contraband, not necessarily evidence of the crime or weapons,
etc.
Belton
Rule of Law
Incident to a lawful arrest, the police may search the area within the arrestee’s immediate
control.
Facts
Belton (defendant) was in a car that was pulled over for speeding. When the officer smelled
marijuana, he ordered Belton and the three other occupants out of the car and placed them
under arrest. The officer then searched the passenger area of the car and, upon finding
Belton’s jacket, searched the pocket and found cocaine. At trial, and over Belton’s
objections, the cocaine was entered into evidence and Belton was convicted of possession
of controlled substances. On appeal, the court disagreed with the trial judge and
suppressed the evidence of the cocaine.
Issue
Where an officer has instructed the occupant of a car to step out of the automobile and has
placed the occupant under arrest, is the passenger compartment of the car part of the area
in the arrestee’s immediate control and therefore subject to search?
Holding and Reasoning (Stewart, J.)
Yes. The passenger area of the car is under the immediate control of a recent occupant now
under arrest, and is subject to lawful search by the arresting officer. Furthermore, if the
passenger area can be reached by the arrestee then so can those containers in the area and
therefore, containers in the passenger area are subject to search as well. The Court comes
to this bright-line rule because it recognizes the inconsistency of recent lower court
decisions regarding this issue, and it emphasizes the importance of the police knowing the
extent of their authority and of people knowing the extent of their rights. The officer’s
60
search of Belton’s jacket was lawful and the cocaine evidence was properly admitted at
trial. Accordingly, the judgment is reversed.
Dissent (White, J.)
The Court holds that luggage, briefcases and other containers in a car may be searched
without probable cause or any sort of suspicion. Such a holding is dangerous and far too
sweeping.
Dissent (Brennan, J.)
The Court here claims to follow Chimel v. California, 395 U.S. 752 (1969), where it held that
officers may search the area in the immediate control of the person being arrested.
However, the Court’s desire to create a bright-line rule is not at all consistent with the
Fourth Amendment or with Chimel. The Court’s holding that the passenger area of a car
will always be within the immediate control of the arrestee, ignores the case-by-case
determination of what is in an arrestee’s area of control that was central to the Chimel
holding. As a result, the Court’s holding is not consistent with the Fourth Amendment or
the Court’s own jurisprudence
Gant
Rule of Law
Police may search a vehicle after 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 that crime-related evidence is located in the vehicle.
Facts
Gant (defendant) was arrested for driving with a suspended license shortly after getting
out of his car. He was handcuffed and then put in the back of a police car. With Gant secured
in the police car, officers proceeded to search the passenger compartment of his vehicle
and found a gun and cocaine. Gant was charged with possession of a narcotic drug and drug
paraphernalia. At a preliminary hearing, Gant moved to suppress the drug evidence
because he felt that the decision in New York v. Belton, 453 U.S. 454 (1981), did not allow
police to search his vehicle after he was secured in the police car, since he posed no threat
to the officers and he was arrested for an offense for which no evidence could be found in
his car. At trial, his motion to suppress was denied and he was convicted. The Supreme
Court of Arizona, however, upheld the motion, claiming the search violated the Fourth
Amendment. The United States Supreme Court granted certiorari.
Issue
May police undertake a search of an individual’s vehicle when the arrestee is not within
reaching distance of the passenger compartment at the time of the search?
Holding and Reasoning (Stevens, J.)
No. Police may search a vehicle after 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 that crime-related evidence is located in the vehicle. In Chimel v.
California, 395 U.S. 752 (1969), we stated the basic rule that applies in these cases: the
search incident to an arrest includes the areas of the arrestee’s person and the area within
his immediate control. In New York v. Belton, 453 U.S. 454 (1981), we considered the case
of an arrestee in his automobile and held that after a lawful arrest the police can search the
arrestee’s person and conduct a contemporaneous search of the passenger compartment of
61
the car, including containers in it. Despite others’ interpretation of Belton, our decision in
Belton does not authorize a vehicle search after a recent arrest, for to do so would
undermine the logic of Chimel. Considering Chimel and Belton together, we hold that police
can search a vehicle after the occupant’s recent arrest only when arrestee is unrestrained
and within reach of the passenger compartment, and objects within it. Following Thornton
v. United States, 541 U.S. 615 (2004), we also affirm that police, having stopped a vehicle,
can search for evidence only when it is “reasonable to believe evidence relevant to the
crime of arrest might be found in the vehicle.” In this case, Gant was arrested for driving
with a suspended license, and he was securely handcuffed and placed in a squad car before
officers undertook a search of his car. Thus the arrestee was securely restrained, deprived
of the ability to reach for a weapon, and police could not reasonably believe that it was
possible to find evidence related to the crime of arrest in his car. Both reasons make the
subsequent search of Gant’s car unreasonable. Reading Belton broadly, the state wants a
bright-line rule that would allow automobile searches regardless of whether the arrestee is
restrained or not. We feel, however, that the state in so doing seriously undermines the
privacy interests that the Fourth Amendment is designed to protect. Although our
jurisprudence recognizes a lesser privacy interest in one’s vehicle, as opposed to one’s
residence, we do not think it is reasonable to give the police unbridled discretion to search
a car in all circumstances. Despite the fact that the state’s reading of Belton, allowing
expansive vehicle searches for offenses as minor as a traffic infraction, has been relied on
by police for 28 years, we do not believe that such a reliance interest, even if it exists,
trumps the constitutional rights that all individuals possess. Nor does stare decisis require
us to read Belton as broadly as the state would suggest.
Concurrence (Scalia, J.)
History obviously cannot tell us what the Framers thought of reasonableness in the vehiclestop context, so we must apply traditional notions of reasonableness. Belton and Thornton
do not adequately protect police officers, since searching a vehicle is not the best way to
prevent an occupant from injuring an officer. Despite today’s holding, Chimel provides little
guidance and can be manipulated by officers. It would be better to overrule Belton and
Thornton and adopt the rule that it is reasonable to search a vehicle only when the object of
the search is evidence of the crime for which the arrest was made, or another crime for
which there is probable cause.
Dissent (Breyer, J.)
I agree with Justice Alito that we should read Belton as recommending a bright-line rule
that would allow a warrantless search of the passenger compartment of a vehicle
regardless of the threat that the individual poses. But I also agree with Justice Stevens that
such a rule potentially runs afoul of the Fourth Amendment. Stare decisis requires that we
follow the traditional interpretation of Belton, which has been relied on by other courts.
Dissent (Alito, J.)
Although the majority might deny it, the Court today is overruling its decision in Belton,
which has proved a workable and clear-cut solution to vehicle searches at the same time
that it has protected law enforcement officers. Belton provides a test that is easier to apply
than that provided by today’s decision. The police can search the passenger compartment
of a vehicle after a lawful custodial arrest, whether or not the arrestee is within reaching
distance of the compartment. Belton represents a small extension of Chimel, and if we
overrule the former, as it seems we are doing today, we should also reexamine the latter.
62
The problem is that Chimel does not say whether the rule applies at the time of the arrest
or the time of the search. The Court today reads Chimel as applying at the time of the
search, but it makes more sense to think that the Chimel ruling was intended to use the
time of arrest. The majority prefers its confused reading of Chimel and an unworkable twopart test. Also, in the second part of the test the Court inexplicably uses “reason to believe”
instead of probable cause as the standard for this type of evidence-gathering search.
Inventory Searches:
Bertine
Rule of Law
Reasonable police regulations relating to inventory procedures administered in good faith
satisfy the Fourth Amendment.
Facts
Bertine (defendant) was arrested for driving under the influence. The arresting officer
conducted an inventory search of Bertine’s van and found drugs. At trial, Bertine
challenged the search based on the Fourth Amendment. The United States Supreme Court
granted certiorari.
Issue
Do reasonable police regulations relating to inventory procedures administered in good
faith satisfy the Fourth Amendment?
Holding and Reasoning
Yes. Reasonable police regulations relating to inventory procedures administered in good
faith satisfy the Fourth Amendment. This is true even if a court later comes up with its own,
different rules ordering different procedure. Inventory searches and other procedures
serve the interest of protecting seized property—including that of an arrestee—while the
property is in police custody. Such procedures also help to keep police officers safe. These
interests outweigh the property owner’s Fourth Amendment interests. Reasonable
procedures include, as is the case here, a warrantless inventory search of a vehicle
subsequent to arrest. The search of Bertine’s van was conducted pursuant to standard
procedure and there is nothing in the record that would indicate that the search was not
conducted in good faith or that it was conducted solely for investigative purposes. It was
reasonable for the officer arresting Bertine to inventory the van before it was taken to the
impound lot. The search did not violate Bertine’s Fourth Amendment rights.
Exclusionary Rule
Good faith exception to exclusionary rule
Leon
(1984) – officer’s good-faith reliance on warrant
Whether the 4th amendment exclusionary rule should bar the prosecution’s use of evidence
obtained by officers acting in a reasonable reliance on a search warrant issued by a
63
detached and neutral magistrate judge, but ultimately found to be unsupported by
probable cause
Held: no, it cannot justify the substantial costs of exclusion when there is no deterrent
effect
Reasoning: when officers act pursuant to a warrant, prosecution should ordinarily be able
to establish objective good faith without a substantial expenditure of judicial time. “once
the warrant issues, there is literally nothing more the policeman can do in seeking to
comply with this law”
Herring
(2009)
Held: arresting officers were entirely innocent of any wrongdoing or carelessness. The
conduct in question was a negligent failure to act, not a deliberate or tactical choice to act.
Benefit of suppressing evidence would be marginal or nonexistent and the evidence was
therefore admissible under the Leon good-faith rule.
Facts:
Reasoning: Here, the conduct was not so objectively culpable as to require exclusion. there
was no reckless or deliberate disregard for the truth and good faith reliance on false
warrant, exclusionary rule does not apply. However, if they were reckless in maintaining
the system, the outcome might have been different.
Davis v. US
2010
– relying on old precedent does not enact the exclusionary rule
Facts of the Case
Police arrested Willie Gene Davis after a traffic stop. He subsequently gave a false name to the
officers. After discovering his real name, the officers arrested him, handcuffed him and put him
in the police car for giving false information to a police officer. Then they searched the vehicle
and found a gun in his jacket. He was charged and convicted for possession of an illegal weapon.
Following a jury trial, Davis was convicted and sentenced to 220 months in prison. But the U.S.
Court of Appeals for the Eleventh Circuit found that while the search was illegal the evidence
found in the vehicle was still admissible.
Question
Does the good-faith exception to the exclusionary rule apply to a search that was authorized by
precedent at the time of the search but is subsequently ruled unconstitutional?
Decision: 6 votes for United States, 2 vote(s) against
Legal provision: 4th Amendment, Exclusionary Rule
Yes. The Supreme Court affirmed the lower court order in an opinion by Justice Samuel Alito.
"Searches conducted in objectively reasonable reliance on binding appellate precedent are not
subject to the exclusionary rule," Alito wrote. Justice Sonia Sotomayor joined in the judgment
only. Meanwhile, Justice Stephen Breyer dissented, joined by Justice Ruth Bader Ginsburg. "The
Court finds a new 'good faith' exception which prevents application of the normal remedy for a
Fourth Amendment violation, namely, suppression of the illegally seized evidence," Breyer
64
notes, adding: "At this point I can no longer agree with the Court. A new 'good faith' exception
and this Court's retroactivity decisions are incompatible."
Standing
Carter
1998
 PO got a tip that persons were packing cocaine and you could see it through a
window in apartment
 PO went to apartment and observed 3 people packing cocaine through hole in the
blinds
 PO called headquarters to start preparing documents for a search warrant
 in the meantime 2 individuals had left the house in a car
 PO pulled them over and after seeing handgun on the floor arrested them and
search also found cocaine
 got warrant for the house and found cocaine residue and bags
 D’s argue that the evidence should be suppressed under FOPT because it was an
illegal search of the apt.
 P’s say that the D’s do not have standing because did not have an expectation of
privacy in the apt. that they had gone to for the first time to package cocaine
 is a personal right and depends on if the person who claims 4th A protection has a
legit expectation of privacy in the invaded place
 may have expectation of privacy when not your home Ex) overnight guest but not
one that is merely present with the consent of the homeowner
 overnight guest ------this case-------just legitimately being at house
 but the fact that the visit was only a couple hours, they had no previous relationship
with homeowner and the presence at house was business transaction weigh in favor
of no 4th A violation b/c no expectation of privacy to be violated
Scalia/Thomas concur
 the constitution and past case law make it clear that people have a right of privacy in
their own homes and could be your home when renting, or staying overnight but
here it is not the case
Kennedy concur
 expectation of privacy to social guests
 here is just a fleeting unsubstantial connection to the home
Beyer concur in judgment
 talking more about if the PO observation from a public area outside curtilage
violated D’s 4th A rights and found it did not
Fruit of the Tree
Wong Sun
1963
65







caught a man with heroine and he said he got it from Blackie Toy who owns a
laundry mat
went to laundry mat and foundToy who they arrested when he fled to the back
rokom but did not find any drugs and said he was not selling them but know who
was Johnny
Went and found Johnny Yee who handed over heroine and said got it from toy and
Sea Dog and show were he lived
PO went and found Wong aka Sea Dog and arrested him in his bedroom but found
no drugs
Toy and Wong contest the evidence against them (statements they made to PO and
in statements and heroine) because was FOPT b/c unlawful arrests not based on
probable cause
TOY
o ask if the PO with the information they had could have obtained an arrest
warrant – NO
o got information of someone known as blakk toy who owned a laundry mat
from an informat they had never used before
o informat could be used when the information is sufficiebtly accurate to lead
PO to suspect (like Draper) but did not happen here
o did not give an address but street and had to wander street to find this
blackie toy
o there is not evidence how knew to equate the Oye’s laundry with Blackie toy
and Toy’s fleeing from cops is treated as ambiguous b/c is in cases, like here,
that PO misstate who they are (1st said wanted laundry the said I am PO)
o are going to exclude his statements b/c exclusionary rule protects direct and
indirect evidence and physical as well as not physical
o and statements were not an effect of free will and thus admissible b/c of
facts, 7 officers break into home and arrest you etc.
o also cannot use heroine at Yee’s against Toy because they have come form
the explotation of of that illegality (the arrest)
o not going to let his admissions in statement wrote to PO count because need
corroborating evidence and cannot use Wong’s to corroborate so there is
none
Wong
o was an unlawful arrest but can still use the statement he gave days later to
PO after being arraigned and left free on own recognizance because here the
arrest and giving the statement were so attenuated that it is not FOPT
o exclusion of narcotics to Toy was b/c they were tainted relationship to
information unlawfully obtained from Toy
o not sure if the Wong’s statements can be sufficiently corroborated by the
heroine alone and thus let in – not going to let Toy’s statement corroborate
Maurray v. US
 Feds stop truck coming out of a warehouse – lawfully seize and discover mj inside
 this gave them probable cause that there was mj in warehouse
66









didi not get warrant
went in warehouse and find mj
went and then got search warrant without saying already went in
based on probable cause evidence they already had got the warrant
ISSUE: whether the non-warrant search tainted the warranted search
stopping truck and finding mj etc. is probable cause and already have enough to egt
the warrant (independent source) and this is what warrant was based on
was there a causal relationship between going into the warehouse and then getting
the warrant
case is remanded to see if PO would have sought a warrant if had not gone into the
warehouse – have to show would have gotten evidence anyway
was the 4th amendment violation necessary to getting the evidence
Inevitable Discovery
Hudson
 warranted search
 “knock and announce” but wait 3 to 5 seconds
 evidence is not suppressed
o was a warranted search
o find inside what they expected to
o this was a minor violation of breaking down the door
o if they had waited they may not have found the same evidence
o Would have found the evidence if waited or didn’t wait so does not matter
 since discovery was inevitable if they abided by the rule so the
evidence is not fruit of the poisonous tree
 PO didn’t violate the KAA rule for purpose of discovering evidence –
KAA did not cause discovery of evidence because would have found it
anyway
 Even if scared they are going to flush and that’s why went in early
then the have an exigency and have the right to go in early
 purposes of KAA rule
o protection of human life (PO)
o property – damaging property, don’t want to break the door down
o privacy and dignity of inhabitants
Impeachment
Havens
 D convicted of drug importation
 a warrantless search of luggage revealed shirt where patches were cut to conceal
the drugs in his clothes
 because the search was illegal (warrantless) and patches not into evidence
 D took stand and said no involvement with drug importation
 P take out search and ask about it even though suppressed
67


Crt of App suppressed the testimony
o used suppressed evidence to impeach him
But did he open the door for this in his direct testimony – crt of app said no -
5th Amendment privilege against incrimination
Origins
Burr





grand jury witness refused to answer questions whether he had copied a document
asserting the 5th A
scope of the privilege not to testify went to witnesses who were not the main D and
if give testimony would incriminate themselves
Do not have to tell the judge an explanation of how will incriminate him – basically
incriminating himself there
not likely to be discovered if they are lying
The P if they want them to testify they can offer immunity to the witness to testify
Immunity

immunity statutes let the Gov. compel you to testify
Coumselman v. Hitchcock
 Use Immunity Statute: witness was immunized – use immunity – cannot use his
testimony in a prosecution against him
 The SC overturned the crt of app – says not only did the witness not have to testify
but the use immunity statute was unconstitutional
 SC considers to be testimony in a criminal case: does not have to be a criminal
prosecution against you – more broad – a criminal prosecution doe not have to be
started yet, about the consequences of statements not the setting you produce them,
matters if could be used in a criminal case later, does not have to be said in a
criminal prosecution
 The statute is uncon
o was not adequate enough protection
o could be derivative uses, give them a lead to different evidence, like fruit of
the poisonous tree
 Congress passes a new transactional immunity statute for immunization from any
transaction, matter or thing he talks about – which is upheld in next case
Brown v. Walker
 upholds transactional immunity statute
 if the individual can’t be prosecuted then his testimony does not count as testimony
in a criminal case because there can’t be any criminal case
 can compel testimony in turn for immunization
Dissent
68


think transactional immunity is not good enough
personal dignity – there is something wrong about making someone speak about
their own wrongdoings
Ullman
 McCarthy era case
 communism – were repercussions
 crt required to testify
o risk of conviction is the only bad thing the 5th amendment protects you
against – and not other problems or bad things that may happen
o only immunized against criminal prosecution
 Dissent is worried that the mere prosecution itself is very burdensome
Kastigar v. US
Sets up a derivative use (fruit of poisonous tree) burden on P and less than transactional in
Brown
Brief Fact Summary. Petitioners refuse to testify at a grand jury hearing on Fifth Amendment
grounds despite their having been granted immunity.
Synopsis of Rule of Law. The government may compel testimony even though subpoenaed
persons have invoked their privilege versus self-incrimination if they have conferred immunity
from use on their compelled testimony.
Facts. Doctors were conspiring to make fake medical records to have people not join the war
effort. Witnesses were subpoenaed to appear before a federal grand jury, the petitioners refused
to answer questions in asserting the Fifth Amendment, despite the government having granted
them immunity. The immunity was based on a part of the Organized Crime Control Act of 1970
stating that neither the testimony nor any other information from the testimony could be used
against the witnesses. Petitioners argued that the scope of the immunity they were given was not
as broad as the scope of the privilege against self-incrimination, and were unsuccessful in the
District Court. The Ninth Circuit Court of Appeals affirmed the order, and the petitioners were
granted certiorari.
Issue. Can the government compel immunized testimony even if the subpoenaed persons have
invoked the privilege versus self-incrimination?
Held. Yes. Affirm the lower court’s decision allowing the compulsion of testimony. The total
proscription on use found in this federal statute, that is, from both use and derivative use,
provides enough of a safeguard against Fifth Amendment rights being infringed on by barring
the testimony from even being used as an investigatory lead.
The petitioners’ concern that the bar against derivative use could not be enforced effectively is
overcome by subsequent prosecuting authorities having the burden of showing that their
evidence comes from an independent source.
69
Discussion. The majority in this case foresees enforcement of the grants of immunity through
“taint hearings” in which the prosecution has an affirmative duty to show an independent source.
Since this case and Zicarelli v. New Jersey State Comm. Of Investigation, 406 U.S. 472 (1972)
were decided, many states have moved to use/derivative use immunity from transactional
immunity.
 if D is prosecuted for a crime related to immunized testimony burden is on P to prove that
they did not derive any evidence from the immunized testimony
Dissent. Thinks prosecutors will derive evidence from testimony and they will lie about it. Want
transactional
Helmseley
 Reporter was investigating D to see if she was guilty of fed income tax invasion
 Reporter gave up on story until H gave immunized testimony that she had invaded state
income tax
 reporter looks into it more
 prosecuted for fed income tax
 crt found was not derivative use
 focusing harder on someone for a different crime is not fruit of poisonous tree
North
 trying to charge for facts he gave in immunized testimony
 crt remanded and made the P go line by line from immunized testimony and show
how it was not related to the charges and P gave up at that point
The Meaning of Compulsion
Pressures that count as corrosion that trigger the 5th amendment
 Judge threatens to jail you if you refuse to testify
 P mention to jury that D declined to testify – jury not allowed to infer anything from
D’s silence and P not allowed to talk about it
 say going to lose your job or loss of a professional license if do not testify
 loss of Gov. contract
 one case found it was not ok to condition on probation
McKune
 rape convict serving time in a low security prison
 in sex offender rehabilitation program
 program makes him take responsibility of offense and any others did without any
promise of immunity
 if any of sex offenses involve minor victims then people in program have a
responsibility to report
 if prisoner refused to answer he would be moved to max security and lose privileges
like tv and visitation and job
70
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court found this was not compelled b/c he was just losing comfort level – he
was to entitled to these nicer conditions
The Meaning of Incrimination
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Depends on
o whether a called a criminal or civil penalty in statute
o whether the purpose is punitive (or purely preventive)
o look at the effect – whether the penalty is particularly harsh
o others: did it infringe liberty, it is something that has historically been a
penalty, when the sanction oppressive, was the conduct already criminalized
free form balancing case
When can the privilege be invoked 2 Rules - Hoffman: fact that is any link in a chain
incriminating you – so under 5th Brown: risk of prosecution has to be reasonable
foreseeable
Ward
 civil penalty for oil spillage where there were also criminal penalties
 ISSUE: if D’s were required to disclose about oil spillage did they have to be
immunized against civil
 HELD: no b/c civil penalty called civil, was a separate statute, and the civil penalty
was non-punitive and more compensatory – correlated to the damage to society
 no danger used in criminal prosecution because immunized against that
Hiibel
 ISSUE: can the state criminalized a refusal to ID yourself during a Terry stop (think
no because who you are could be a link to convicting you – but not what crt thought)
 HELD: crt said yes b/c purpose is to facilitate the court, people are summond to
testify by name and need to know who people are and what their names are.
Treated this administrative in function
 Made identity an exception to the fifth amendment basically b/c could be evidence
of crime
The Meaning of Testimony
Penn. v. Muniz
 asked a drunk driver a bunch of questions (name dob etc.) including what was your
sixth birthday
 crt found this was considered to be testimony rather than physical evidence and the
answer to the sixth birthday question was suppressed
o focus on the difference between a physical display of drunkenness and a
mental display of drunkenness by showing the aspects of his own mind and
this is revealing his drunkenness through testimony so this was testimony
o
 dissent – this was part of a sobriety test
71
Doe v. U.S.
 turn over records of his accounts for a bank
 already admitted that he had accounts in these banks
 asking him to order the banks to provide the account information
 the court allows this
o directing someone else to do it – to consent or order is conduct and not
making a testimony
o does not have to provide any more information other than this
 Dissent (view later prevails)
o thinks is testimony
o it is a communication (forced) to say I consent to provide this evidence
against me – this is not physical evidence
Problems with this case
 implying information by giving over the bank records that will incriminate him and
the guy is saying yep these are the records of my account
 the bank is his agent directing someone else to do what if he did would be a
statement
 compelling him to say he consents when he really isn’t
Exceptions to the Fifth Amendment
Perjury
 if lie when give immunize testimony then you can be prosecuted for perjury even
though cannot be prosecuted for underlying crime
 if tell truth about crime and are prosecuted later for crime and you deny having
done it then cannot use immunized testimony – in other words truthful immunized
testimony cannot be later used to contradict untruthful testimony like saying no I
didn’t do it
False Denial
 can be prosecuted for falsely denying your guilt
 have a right not to talk to investigators but does not violate the 5th A to incriminate
lying
Regulatory Disclosure
 Have to have a regulatory purpose and then incidental self-incrimination
Shapiro
 seems broad
 fruit seller and looking into prices
 said could not claim exception because was mandated by regulatory agency to keep
the information and records were not used just for criminal law enforcement
72
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has to be a relationship between activity sought to be regulated and public concern
so Gov. can regulate
Marchetti
 statute requiring illegal gamblers to register
 crt says this has no ulterior regulatory purpose is just about making people report
their criminal activities and this goes against the 5th A – just making people
incriminate themselves
Cali v. Beyers
 regulation of auto accidents
 upholds a hit and run statute that requires participants to remain on scene and id
themselves even though this is incriminating themselves
 PO can add that to the other info that can incriminate you – breathalyzer etc.
 there is this other civil purpose for this regulatory scheme and not the case that
everyone is self-incrimination for criminal charges although some do
 interest of society – preventing dangers driving – to prosecute people for dangerous
driving - but what about murder?...
Balt. v. Bouknight
 child welfare system
 mother suspected of abusing child
 would not produce him during proceedings and was being evasive of where he was
 family court compels the parent to produce child and mother refuses and argues
that being forced to do so violates the 5th A b/c compelling incriminating testimony
 parent serves 7 years for contempt – child not service till this day
 mother says this is testimony rather than producing physical evidence
o if produce child like saying yes I know where the child is because I have
control and custody of the child and then examine child and shows signs of
physical abuse or dead
 court weighs the interest of state over the mother’s 5th A privilege
o state interest to keep children safe and have responsibility to keep these
children safe
o has a civil regulatory regime with a goal
 Dissent
o the stakes are high for the parent here because she could ultimately be
charged for a homicide
o does not agree that this is a civil system but more of a criminal by selecting
people who cannot take care of children and use evidence of abuse or neglect
which is suspicion of crime and can be a basis to see if it is a crime and then
charge
Baltimore v. Bouknight
1990
73
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abused child that was going through proceedings with mother to see if she could
keep or not
was still in her custody and juvenile court ordered her to bring him in
she said no based on self-incrimination because would see the bruises that he was
abused or that she eventually could not bring him in because he died
found her in contempt for not producing the child
can have 5th A protection because the act of producing signals the existence of
possession of and authenticity of the thing produced but cannot claim the right
based on the incrimination that may result from the contents or nature of the thing
demanded
so could not claim right based on what examination of child might reveal
she is claiming incrimination based on fact that producing = she has control over
child
cannot claim because she has custodial duties of production and they are related to
a noncriminal regulatory regime
she agreed when got the child back from foster care to the state’s civil regulatory
custodial requirements and could inspect
this is different than Manchetti because not where requirements are directed at a
selective group inherently suspect of criminal activities
there is a limit to use the testimony that has been compelled for regulatory purposes
– when significant portion was to aid law enforcement
Police Interrogation
Bram
 Canadian police interview and American sailor and held for American consulate
 stripped the sailor naked and told him falsely that another sailor accused him and
saw him do the killing and he said “he couldn’t have seen me he wasn’t; in the room”
– incriminating himself PO also told him to name an accomplice
 the crt suppressed the sailor’s statements
o it was not free and voluntary given because result of hope or fear or both
(things will go easier if say someone did this with you, felt vulnerable when
stripped etc.) inducements are also fraudulent (not better for him if he
confesses – almost like legal counseling by PO = not okay)
 Crt holds any threat or promise even indirect that is used to induce confession is
against the 5th A – very broad
 Did not become the law of the land b/c not applicable to the states
Due Process
Twinning v. NJ
1908
 held inapplicable to the states
74
Brown v. Miss.
1936
 limits PO interrogation
 thought the confession was coerced
 took the suspects and whipped and beat them until they confessed in the exactly
right way with all the right details
 totality of circumstances standard that excludes physical torture
 was not a 5th A standard – not designed to preclude compelled self incrimination
because this was allowed so the states could still compel testimony by using the
contempt power – just not with physical torture
Ashcraft
 locked in room for 36 hrs and kept getting interrogated for 36 straight hrs
 due process also precludes confessions under these circumstances – such a
confession was not voluntary
 totality of circumstances test still
 not going as far as Bram saying any pressure any coercion
Watts
 kept him in the hole and questioned him for a series of days all night, every night for
a week
 did not have any contact with the outside world including an attorney (Right to an
attorney?)
 had an attorney been there, he could have informed the defendant of his rights to
not speak, and could have advised he utilize that right
Dissent
 brutal murders and PO had a duty to solve them and there was other reason to
believe that they were guilty – the confessions were confirmed by subsequent
physical evidence
6th Amendment
Massiah
 first solution was a 6th A solution
 indicted for federal drug defenses
 out on bail and recorded by a federal agent talking about offenses to his coconspirator who flipped to the PO
 crt hold that this is the same as if he was being interrogated by the PO w/o the
presence or advice of counsel
 so violates the 6th A right to counsel
 there are critical stages before trial where the 6th A is necessary
 so after charging becomes a critical place where right to counsel attaches – after
indictment - even when was not in custody and attorney already told him not to talk
 does not include PO stings and over cover work so long as there is not already an
indictment/up until charging, once he is charged you cannot talk to him without the
presence of counsel or getting him to knowingly waive the presence
75
Escobedo
 PO did not allow D to see his lawyer even though asked for one and lawyer was in
PO also asking for him
 extends beyond Messiah holding b/c he had not yet been charged, was just arrested
and in custody
Miranda (5th Amendment)
 rule is designed to protect people from being coerced into confessing
 informing of rights
 also concerned with PO deception
 also the psychological things inherent in being held in custody
RULE: in-custody interrogation is admissible only if informed of right to remain silent, that
anything that is said can and will be used against a person in court, and the right to an
attorney and right to have attorney with him during proceedings. This is an absolute
prerequisite to interrogation, unless the defendant waives these rights voluntarily,
knowingly, and intelligently. The mere fact that he may have answered some questions
or volunteered some statements on his own does not deprive him of the right to refrain
from answering any further inquiries until he has consulted with an attorney and
thereafter consents to be questioned.
Miranda: the mere fact that he signed a statement which contained a typed-in clause
stating that he had “full knowledge” of his “legal rights” does not approach the knowing
intelligent waiver required to relinquish constitutional rights. **He did not request a
lawyer**
JDB v. NC
Eligible Statements
 any incriminating statement
Required Conditions
 Custodial Interrogation
o arrest
o not when in public and know that free to leave (whether a reasonable D
knew he was free to leave)
o not when D’s come to the station voluntarily and confess, not arrested and
free to go
o PO come and question you in your own home – question is not do you feel
free to leave but maybe do you feel free to get rid of them (can be fact specific
– was custodial when at night 4 PO questioning in bedroom)
o Terry Stop (you are not free to leave) but do not need to mirandize during a
Terry Stop
o What if the person in question is a juvenile
76
that is just one of the factors that play into if a reasonable person of
that age would think they are free to leave
o grand jury witness
 not considered a custodial interrogation situation even if you are
subpoenaed to show up
o Questioning by probation officer
 not a custodial interrogation – he was free to leave at anytime – did
not have to be marandized
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Required Procedures
 admissible only if informed of:
o right to remain silent
o that anything that is said can and will be used against a person in court
o the right to an attorney
o if do not have an attorney then the court will provide you with one
 NOTE: if you ask for an attorney, you don’t get an attorney, they stop interrogation
and cannot restart it. IF ask to remain silent then they stop but can come back after
a little while and start asking again– so ask for a lawyer
 NOTE: Waiver – if waive rights then can proceed and you have to have not indicated
in any manner that you do not wish to be questioned
Connelly
 paranoid schizophrenic confesses to murder
 his attorney said was not voluntary confession he confessed because god told him to
 the crt say that PO did not play a role in the confession was not about if his mental
role made his confession voluntary or involuntary
Padilla
 suspected terrorist who law enforcement wanted to question in order to prevent
crimes in the future
 ISSUE: whether the Miranda warning system impedes gathering information to
prevent terrorism
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Interrogation
RI v. Innis
 armed robber killed a cab driver using shot gun
 PO arrested suspect and mirandized him
 said he wanted a lawyer
77
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on way to station PO started talking about how crime scene was close to the school
with handicapped children and concerned about getting their hands on murder
weapon
suspect interrupts and says why don’t you turn around and I will show you murder
weapon
ISSUE: was this interrogation
HELD: Said no because convo between 2 PO’s and it was not directed at the suspect.
They were not inviting him to participate in the conversation
Would the language be reasonably likely to illicit a criminal response – an objective
test - that the PO are either asking questions or is reasonably likely to succeed in
making him respond
ILL v, Perkins
 Incriminating statements by D who is a murder suspect
 in jail under another charge
 makes statements to undercover PO who is posing as a cellmate
 statements are admitted
Warnings
 PO have to give the warning in the precise language and requirements in Miranda –
but in cases where they don’t the court has been flexible
 if they do not then presumption of PO coercion is irrebuttable
 see page 812
Invocation
(what counts as a sufficient invocation and what the police have to do if there is one)
Mich. v. Mosely
 D is mirandized and invokes right to silence
 2 hrs later PO come and mirandizes him, asks about a different crime and D answers
 crt found this was not a violation of the Miranda procedures
 was ok to ignore his first invocation – he was not exhausted or questioned after the
first time and was ok to come back to him
 Did not want the suspect to remain silent for an indefinite amount of time PO could
reproach, his rights were not ignored he could have said I want a lawyer again
Edwards v. AZ
 after being M D answers questions but at a certain point he requests an attorney PO
stop questioning
 the next day different PO come to question him in custody
 says he does not want to talk but guard tells him he has to
 he talks to them is again M and then confesses
 SC says this is not ok
 issue is not the voluntariness of the confession but the voluntariness of the waiver
of the right to the attorney – the guard told him he had to go and talk to them
78
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TES: what there a voluntary and intelligent waiver of the right to counsel that he had
previously invoked
requiring much stronger evidence of waiver of right to an attorney then right to
silence
HYPO:
- ask for an attorney but then say nvm I want to talk – once say want an attorney then
nothing he says after that matter
- what if says not want to talk to attorney but won’t sign statement w/o one – no good need
attorney (this might be wrong see. CT v Barrett.
- says attorney, but then days later says to guard want to talk – this is a valid waiver b/c he
initiated it the D PO cannot initiate – would have to M again (Oregon v Bradshaw)
MD v. Shatzer if D is arrested, Md, invokes, speaks to attny, released from custody, cannot
question the D until 14 days after out of custody even if remirandize however, in Shatzer
they were able to question the D while he was in prison for 2.5 years, Ct says the D was not
in custody anymore bc not in custody of officers doing the questioning. Ok bc any lingering
effects of coercion are at that point diminished
Salinas v. TX
2013
 D was freely talking to PO w/o being in custody or give Miranda warnings
 when PO asked if test would show shell casings matched his handgun he balked and
PO want to use this to show evidence of guilt
 cannot say violates self-incrimination because the privilege is not self-executing and
must be claimed by the person – have to assert privilege at that time to benefit from
it
 there are 2 exceptions (1) do not have to actively invoke at your own trial when do
not want to testify (2) where Gov. coercion make forfeiture of the right involuntary
ex) like the coercive nature of custodial interrogation – suspect in custody cannot be
said to voluntarily forgone privilege unless he fails to claim it after suitably warned,
also if invocation itself would incriminate or there was threats of taking away a Gov.
privilege all in all = witness need not expressly invoke the privilege where some
form of official compulsion denies him a free choice to admit, to deny or refuse
the answer
 here the interview was voluntary so outside of Miranda
 question is whether under the circumstances of the case D was deprived of the
ability to voluntarily invoke the 5th A
 does not matter that he was just silent when asked the question or that was under
official suspicion
 right to not be witness against self not remain silent
79
Waivers
1. No Q until Waiver
2. Q if Waiver, No Q if invocation, every response is either a waiver or invocation
3. Q if waiver, No Q if invocation, response is neither waiver nor invocation
No rule for ambiguous response
4. PO can question the suspect until suspect invokes
If suspect answers before invoking, then the suspect waives
Three forms of involuntariness:
Coercion: threat of force or consequences, duress
Deception:
Lack of competence:
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if suspect does not invoke Miranda rights PO must obtain a waiver for the rights
before they proceed
Police can keep doing it until you invoke and if you answer any questions that is
waiver can invoke again after start talking
would be a waiver if say do not want and attorney then make a statement soon after
but is not a waiver to just remain silent
problems of validity of waiver when say want to waive then this is later called into
question and is an ambiguous statement of waiver or invocation
Moran v. Burbine
1986
 D waived in writing
 D’s sister gets him an attorney who calls the PO to make sure no one us going to
question him, PO say will not until the next day but do that night and get the
confession
 ISSUE: whether either the conduct of the police or respondent’s ignorance of the
attorney’s efforts to reach him taints the validity of the waivers and therefore
requires exclusion of the confession
 P is saying that he was deprived of info (that his attorney called) that deprived him
of information essential to his ability to knowingly waive his 5th A rights
 can waive if the waiver is made intelligently, knowingly and voluntarily
o without coercive forces
o with knowledge of consequences of waiving and nature of right they are
waiving need requisite level of comprehension
 going to look at totality of circumstances
 here there is no question that it was voluntary and knowingly but the D argues that
should not be ok b/c of reckless conduct of PO by not telling him about his attorney
– court not buying this
80
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although may have made a different decision if knew the information the PO do not
have a duty to supply suspects with a stream of information on which to base
their decisions
conduct is only relevant to the constitutional validity of a waiver if it deprives a
defendant of knowledge essential to his ability to understand the nature of his
rights and the consequences of abandoning them
not going to read Miranda to make PO be truthful to attorney when has no impact on
waiver
had there been an outright lie to the attorney then the decision might have been
different
what if said “when can I see an attorney”? (ambiguous request, not invocation) PO
says court will assign one after charged with a crime, then signs a waiver an talks: in
this instance it is likely the deception is hindering ability to understand the rights
review Escobedo
look at p 904 note 6 to see different potential outcomes depending on state
i.e. in Illinois if attorney comes to station and the PO doesn’t inform the suspect then
the suspect cannot voluntarily waive
in NY
People v. McCauley
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People v. Arthur
Miller v. Fenton
Col. V. Spring
Berghuis v. Thompkins
2010
 suspect who is read Miranda rights and has not invoked waives when he makes an
un-coerced statement to PO
 shooting
 suspect was given MR and then questioned where he did not really answer until the
PO asked if he believed in god and if he prayed for forgiveness for shooting the boy
and he said yes to both
 interrogation was about 3 hrs long
81
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D saying that he invoked by being silent for a period of time – does not work with
right to counsel if silent or ambiguous the PO do not have to ask to clarify if want to
invoke or end the questioning, but not something similar for right to silence yet now there is adopting this standard
can have an implicit waiver – silence + an understanding of his rights and a course
of conduct indicating waiver
can waive by talking so long as clear that understands MR
or acts in a way that is clear waiving
he understood his rights here – was given copy, read them understood and then he
waived when he spoke because this is conduct indicating a waiver, knew he could
have remained silent if wanted to
and there is no evidence that the statement was coerced – did not say fearful or hurt
and was conducted in a standard size room at a reasonable time during the day and
no evidence that a 3 hr interrogation is inherently coercive
do not have to get a waiver before commencing interrogation
Burguios
 D sits there for 2h 45m and sys very little maybe nothing until there are 3 questions
if he believes in god prays to him and asks for forgiveness for murder he says yes to
all
 find that in a right to silence context that would be enough for waiver despite the
fact that in original Miranda opinion said that merely speaking was not by itself
waiver and silence was not waiver either – puzzling
 but crt treated as waiver
 Dissent
o ambiguous waiver – statements that crts deem ambiguous (not effective
waivers ex) – think too conditional treats any ambiguity or equivocation as
not being effective
 Im not going to talk about nothing
 I don’t think I should say anything
 I don’t even want to talk about it man, talk about it man or discuss no
more about it
 ok if you imply I done it but don’t want to
o instead of saying “I invoke my right to silence” more complicated
Remedies
Quarles
 PO did not mirandize during arrest ask where gun was he showed them and could
use the gun as evidence
 this was ok
 fell under public safety exception to Miranda – exigency, needed to find the gun to
make sure no one was hurt by it
 more important to get this information
82
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Elstad
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thought: but why not let PO ask questions, get the gun then just don’t use as
evidence????
D who is a teenager is suspected in burglary
go to house and arrest him
do not mirandize him immediately because do not want to frighten mother
talk to mother in living room and tell her what is up
also sitting with suspect and PO start asking him some questions about the if he
knew about what happened he said ya
then PO makes statement to D “I think you were involved” D says “Yes I was there”
take to station and Mirandize him
crt permitted statement that followed after an unwarranted statement. Because of
the separate timing there was a lot of time when the officer asked about it again
from time in the living room
there was not a compelling justification for them to ask without mirandize so look at
the causal relationship between original unwarranted statement and the
mirandized questioning and decide the 2nd stmnt was not caused (time-lapse,
setting etc) by 1st and thus not tainted
Dickerson
 fed statute sitting around since 1968 passed during election campaign as a law and
order platform for republicans
 passes statute that overrules Miranda
 says federal crts should determine the voluntariness of confessions taking into
account of all circumstances, not just Miranda warnings
 fed crts ignore this
 finally case comes up where fed crt applies and its constitutionality comes up
 crt strikes down the statute
 ISSUE: why does the court have the power to exclude evidence in fed and state cases
where the Miranda procedure is not followed?
 crts have supervisory powers over federal courts to set standards of proof for
example when congress does not speak on them – but Congress can overrule it (and
did here so…)
 Found totality of circumstances test that Congress set up is not enough to determine
if a confession was coerced or not
 Congress could pass a statute saying Miranda warnings should be clarified or beefed
up or clearer this would be ok b/c higher than base line rule of Miranda – or could
require an attorney to be present – can offer a different or better procedure so long
as the protection of right to silence and counsel stays in place
Seibert
 D conspired with other fam members to burn trailer of dead body of disabled son to
burn evidence of neglect b/c he died with bedsores and thought could be negligent
homicide
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So decided to burn trailer with another teenager in it who was living with them to
look more like and accident
this was a homicide
did not give her a Miranda warning at first – this was by design – then would
Mirandize her and get the confession again, referencing the first
interrogation/confession (interrogation tactic)
This was based on the decision in Elstad when crt said ok
but this time crt did suppress the confession
Souter opinion (4 votes)
o The continuous nature of the 1st and 2nd confession confuses the suspect
and there is no reason they would not repeat the 1st confession when asked
about it
o not really overruling Elstad but just giving more factors to look at (same
location, police officer, how detailed 1st interrogation was, gap of time,
content was similar, went back over same material, referencing first
interrogation prodding her to make same statements again) was it just a
continuation of 1st interrogation – showing the causal link
o also important that they didn’t tell her that they could not use the first
confession (matters because she prlly thought she already confessed so not
like it matters if she does it again)
o Said the Elstad was different because it was a good faith screw up where as
this was deliberate (bad faith) – one of many factors
o Standard: Did the 2nd warning function effectively as a Miranda warning to
communicate to D that they have a right to not speak and they can make that
right effective by not speaking – found the warning was undermined by this
strategy looking at the factors discussed above
Breyer opinion (he is one of the 4 vote)
o Standard: good faith rule
o 1st determine weather the warrant statement was cause by an unwarranted
statement and if it is you exclude it unless you have an exception of good
faith
o prosecution bears the burden
Kennedy opinion – this is the controlling opinion because it is the narrowest for the
D who ends up winning (subjective test)
o so long as does not violate concerns in Miranda it should be omitted should
be suppress when violated concerns in Miranda
o his rule is like Breyer’s but different
o presumes warned statement that is fruits on unwaraned statement can be
used unless it was obtained in bad faith
o now the D bears the burden to show bad faith
Patang
Companion case to Seibert
 start to give Miranda warning he stops them and says I know my rights
 ask about gun says does not want to tell about it but then does
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gun found after a voluntary but unwarned search
crt holds the gun can come in
1st opinion (dissenters in Seibert)
o says gun can come in because was non-testimonial fruit of a unwarned
statement and did not invoke self incrimination clause – the 5th amendment
protects speech so it is irrelevant this is physical evidence not testimony and
due process does not come in because the statement was voluntary (no
coercion)
2nd opinion – controlling (Kennedy)
o does not suppress the fruit allows it in
o this is about physical evidence and the 5th A does not apply
o there are good reasons to ask unwarned questions and these guys here tried
to warn him so there is no wrongdoing in need of deterrence
Based on these cases we do not know which of these standards is controlling between the
2……
Interrogation and Right to Counsel (6th A)
Brewer v. Williams
 escaped mental patient after engaging an attorney is being driven from one city to
another by 2 PO – do not allow attorney to ride with him even though he asked
 attorney told D not to tell PO anything – PO heard this and say not going to question
 PO do question – offer speech about would be great if showed body of victim so she
could have a Christian burial – D tells where body is
 crt says this violated his 6th A rights
o this is governed by Messiah case – right to counsel during questioning and
before questioning rather than a right against coercive interrogation and
kicks in as soon as D was charged
o Here he knows he is being questioned and knows he has an attorney and that
he is being questioned but – the PO were aware he was not to speak w/o
attorney and here it seems like the crt is saying the lawyers can invoke the
right on his behalf (unlike 5th)
o the 6th A waiver bar is high (voluntary, knowing and intelligent) and burden
is on the Gov. to show that he waived, have considerable evidence of
invocation
o suppress statements
o say the body if would have been inevitably discovered can be used and
remanded to determine (ultimately decided would)
 How would this come out today as a 5th A case - Miranda framework
o Was he in custody? – yes
o Is he being interrogated? – meant to induce him to talk Look to the Inis
case (handicap child speech about finding the gun) – diff then Inis case were
talking to one another th PO’s but here they are directly addressing him so
may be closer to an interrogation/overt questioning – PO did admit it was
their intention of him to answer in Inis said there was important that PO did
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o
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not intend to answer. Inis standard: would you expect the D to make a
statement as a result of this. Apply this test: depends could say reasonable
person wants to relieve guilt and have burial and this seems more like
interrogation than Inis case
Was he given a Miranda warning? – Yes
Did he invoke either of his rights (silence or attorney) by the time they
already give him the Christian burial speech? He invoked by getting an
attorney and says will tell story later when I see my attorney. So under
Edwards that should have cut off any further questioning
 NOTE: cannot invoke 5th A right through an attorney, has to be
directly through the suspect
 NOTE: ambiguous invocations of a right are not good enough
But did he waive? – NO he already invoked his right above
Was the Christian burial speech a legal violation of Miranda?
 could be an exigency or public safety reason: try and find location of
victim if she is not yet dead, not withstanding it is a Miranda violation
 so it looks like we have a Miranda violation but we have a public
safety justification for violating Miranda so then the question is can
they then use the physical evidence that they discover (Quarrels):
 Yes, the 5th A unlike 4th, there is no fruits of the poisonous
tree and it does not apply to physical evidence. But here the
PO were deliberately violating Miranda so this may make it a
little more like Seibert (but Seibert was a statement) so looks
like they can probably use the body
Electronic Surveillance - Wire Tapping – Title III
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people are monitoring all the time – labor intensive to decide what to record – to
minimize the invasion of privacy – used to mimic the effects of a specific warrant,
looking for specific conversations and not other ones (that may implicate in other
crimes)
Federal statute
regulates use of wire tapping by federal agents to not violate the 4th A
requires a warrant for wire taps and that the warrant be very specific
other jurisdictions have passed statutes modeled after this with some variations
after some reasonable interval the subject of the investigation has to be told of the
wire tap (and others if they were substantially affected)
Warrant application
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under oath
specify offense under investigation
explain why wire tap necessary
o they can’t get this evidence in some other way (sometimes have to show that
they tried)
what is the period? no more than 30 days
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kinds the communications that are going to be monitored, the phone, # etc.
need an additional application for any extension with everything from first + report
of past findings
standard: probable cause with respect to
o believe a particular person is committing or has committed a crime
o believe that person is going to use that phone #, phone etc.
o believe that evidence of the crime is going to be found as a result of the wire
tap
Yanoitt
 Subject of investigation is C who is member of Gambino crime fam with Y
 warrant referred to C and other persons unknown who use cell phone
 day wire tap goes into affect C leaves cell in FL to go to NY and Y uses to make
incriminating conversations and prosecute him using them
 No specific warrant mentioning Y, never reapplied to change warrant or extend
 Crt. said was ok b/c warrant did say persons unknown and it talked about the fact
that it was a large organization and Y was known to be involved and it was
foreseeable that he might be one of these persons unknown
E-mails
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emails are covered by Title III when they are in transit – once stored they are no
longer covered (this is hard b/c in transit for a millisecond)
Gov. can get access to emails after a certain time period of them being stored (6
moths) through a subpoena or administrative order
can get existence information about email account with subpoena
if want contents then need a court order but need reasonable belief this information
is relevant
not constitutionaly protected so if Gov. breaks this then only can be civilly sued (not
exclusion of evidence
some lower crts have applied 4th A to stored emails no matter how old they are –
need warrant and probable cause and the sanction is exclusion of the evidence
Electronic Hardware
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treated like containers, personal effects, like boxes
o so ordinarly need a search warrant justified by probale cause to look inside
them
o if have a warrant to area where container is located ordinarily you can look
inside the container
o if seaize container incident to arrest usually need a search warrant
difficulty
o if executing search warrant you can’t tell what is in a file without opening so
PO can look at everything if they can look at anything so a lot of opportunity
for plain view observation
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Remember Riley v. Cali
 cell phone case
 crt decides that cell phones have a greater privacy interest then other containers
 crt says property plus protection – more privacy in a cell phone than get in other
kinds of containers
o remember this is less than privacy interest in person, home, effect
 crt held that you could not open up and inspect cell phone without probable cause
and a search warrant
No SC case about computers – probably need search warrant and probable cause b/c
container, but with Reilley seems to be a heightened privacy feeling so would want a more
specific search warrant and make sure don’t see things they shouldn’t
CDT
9th Cir
2009
 FBI was trying to get records of drug test from 5 MLB players
 the test results were not used against them to expel them from MLB – was used for
social science reasons, used to determine prevelance of drug use by MLB players
 was suppose to be kept confidential
 FBI had individually gotten evidence of illegal drug use of 10 MLB players and
gotten warrant to get electronic files of these records
 crt adopted a minimization procedure
o FBI – have someone else, not one of investigators on case look through to ID
the 10 that are relevant to the case and FBI is only allowed to take files or
equipment containing the relevant records
o could not say oh saw these and now in plain view so we can take
 Not sure if SC would make this minimization procedure as part of the warrant
Entrapment
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Not constitutional doctrine, may be criminal procedure doctrine or one of
substantive criminal law
governs undercover investigations
o voluntary transactions
 possession/distribution of drugs
 gangs/gambling/prostitution rings etc.
 bribery
o vs. law enforcement purposing crimes (doesn’t happen as often…) or would
not be completed crimes that do harm would arrest them for attempt
burden of proof on prosecution – that it was not proven beyond a reasonable doubt
that there was not a preventive justification
Subjective/Objective Tests
 Subjective – applied in Jacobson
o D has to get a jury instruction on defense by showing law enforcement
inducement, I would not have done the offense but for the law enforcement
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o if establish that then get a jury instruction that places burden on P to show
that they would have committed a crime like this
Objective
o minority rule
o burden on D by preponderance of evidence that PO induced conduct and
reasonable person would have succumb to the same inducement
Jacobson
Moves point of predisposition back in time to the point before Gov. came in contact with
him
 crt treats entrapment as a viable defense
 it took convincing by the government to make him commit the crime
 crt expands the burden a little bit by making the P show that before there was
contact by the Gov. at all that is when he was predisposed to it
Right to Counsel
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5th v 6th A right to counsel during interrogations: as it applies to interrogation
(clarification) there is a difference between that 5th A right and 6th A right both in
the interrogation context
o for 6 A (after charging) can PO reapproach the suspect an initiate
interrogation – for 5th once invoke PO canno reapproach – under 6 A the PO
can reapproach
Special Circumstances (older test)
Powell
 recognized a right to appointed counsel in state cases but only in special
circumstances (capital case)
Johnson v. Zerbjt
 recognizes right to indigent in federal cases unless this right was waived
Bets v. Brady
 overruled by Gideon – this case found no 6th A right in the states
Gideon v. Wainwright
 D was denied right to counsel in burglary
 convicted for 5 yrs
 SC said this is not ok and remanded for new trial where he was acquitted
 Said Betts broke precedent
Scope
Argersinger
actual imprisonment rule not potential imprisonment rule
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does not matter if just a petty defense or felony – state cannot send someone to
prison w/o defense – potential punishment does not matter it is the actual
punishment
Alabama v. Shelton
 ISSUE: can you be sentenced to a suspended jail sentence w/o counsel
 HOLDING: no you can’t a suspended sentence still counts
 even though would not serve 30 day sentence unless violate your probation
Other case
 Don’t get right to counsel for probation and parole revocation you get it at the initial
conviction that imposes a sentence of imprisonment
When the Right to Counsel Attaches
Rothgery
 D arrested for being a felon in possession of weapon
 indigent – requested appointment counsel at first hearing and did not get it
 released on bail
 indicted and once indicted bail set much higher and he cannot afford and spends 3
weeks in jail
 turns out he is not actually a felon the records were wrong
 6 months later his attorney discovers this and gets the charges dismissed
 said he was jailed due to denial of right to counsel
 crt holds that the right to counsel attaches at the first appearance
 first appearance is
o rep on bail
o lawyer to counsel you not to talk
o 1st appearance
Line Ups/Photo ID’s
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want the attorney to be there to contest it or monitor the conditions of it
don’t want prejudicial circumstances for an out of crt id
attorney at trial to probe the procedures and test the credibility
US v. Wade
 held the D had a right to counsel at a post charging line-up or show-up
U.S. v. Gilbert
 adopted an exclusionary rule for uncounseled post indictment line-up
 line-up is a critical stage and attorney needs to be present
 worried about not having attorney present
o there is a high risk of PO shaping testimony
o witnesses are suggestable
o want witness and record of procedure and not taken place in private
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Stovall
When there is an exigency
 witness was going into surgery and their credibility would be better now than days
later after surgery and so this did not violate due process b/c there was a good
reason to have an uncounseled show-up
What about lineups before charges
 Kirby v. Illinois
o no because the 6th A is not triggered until there are charges
Is there a right to counsel during a photo line up
 No – US v. Ash
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