Constitutional Criminal Procedure
Grade: A
Prof. Irwin Stotzky
I. HISTORY & PERSPECTIVE: CRIMINAL LAW & PROCEDURE ................................................................................................................................................................ 1
1. THE JUSTICE SYSTEM & POLICE STATE .............................................................................................................................................................................................................. 1
General Themes of Criminal Procedure................................................................................................................................................................................................... 1
Three Broad Questions in Criminal Procedure ........................................................................................................................................................................................ 1
Our 5 Major Concerns & Lines of Thinking .............................................................................................................................................................................................. 2
2. PERSPECTIVES ON MODELS OF JUSTICE .............................................................................................................................................................................................................. 3
Crime Control Model ............................................................................................................................................................................................................................... 3
Due Process Model.................................................................................................................................................................................................................................. 3
Policy Considerations ......................................................................................................................................................................................................................................................3
3. HISTORY OF CRIMINAL PROCEDURE .................................................................................................................................................................................................................. 4
Evolution of Procedural Aspects of Law .................................................................................................................................................................................................. 4
Maitland’s Criminal History .............................................................................................................................................................................................................................................4
Hale’s Criminal History ....................................................................................................................................................................................................................................................4
Historical Foundation of the Exclusionary Rule ....................................................................................................................................................................................... 6
II. FOURTEENTH AMENDMENT: STATE AUTONOMY & THE INCORPORATION DOCTRINE ..................................................................................................................... 8
4. STATE AUTONOMY ....................................................................................................................................................................................................................................... 8
5. MODELS OF CONSTITUTIONAL ADJUDICATION .................................................................................................................................................................................................. 11
6. INCORPORATION DOCTRINE .......................................................................................................................................................................................................................... 12
Maybe . . . Maybe Not?......................................................................................................................................................................................................................... 13
(1) Fundamental Fairness ..............................................................................................................................................................................................................................................13
(2) Selective Incorporation ............................................................................................................................................................................................................................................14
Bill of Rights Applies to States............................................................................................................................................................................................................... 15
(3) Total Incorporation & Total Incorporation Plus .......................................................................................................................................................................................................15
III. FOURTH AMENDMENT: SEARCHES & SEIZURES ............................................................................................................................................................................ 16
7. MODERN EXCLUSIONARY RULE ..................................................................................................................................................................................................................... 16
The Exclusionary Rule as Remedy ......................................................................................................................................................................................................... 16
Alternative Remedies ............................................................................................................................................................................................................................ 17
‘The Big Four’: Creation of the Rule ...................................................................................................................................................................................................... 18
1989 Noriega .................................................................................................................................................................................................................................................................19
Problems administering Mapp rule: ..............................................................................................................................................................................................................................21
8. DIMENSIONS OF THE EXCLUSIONARY RULE & EXCEPTIONS .................................................................................................................................................................................. 23
Dimensions of the Rule ......................................................................................................................................................................................................................... 23
Good-Faith Exception ............................................................................................................................................................................................................................ 24
Rationales ......................................................................................................................................................................................................................................................................24
(1) Reliance on Search Warrant.....................................................................................................................................................................................................................................24
Exceptions to the Exception: .........................................................................................................................................................................................................................................25
(2) Reliance on Arrest Warrant .....................................................................................................................................................................................................................................26
Knock-and-Announce (KNA) Exception ................................................................................................................................................................................................. 27
9. PROTECTED AREAS & INTERESTS ................................................................................................................................................................................................................... 29
Reasonable Expectation of Privacy ....................................................................................................................................................................................................... 29
Introduction to Doctrine........................................................................................................................................................................................................................ 29
Detention Facilities........................................................................................................................................................................................................................................................31
Open Fields vs. Curtilage ....................................................................................................................................................................................................................... 32
Open Fields vs. Curtilage, Re: airplanes and Helicopters ..............................................................................................................................................................................................32
Vehicles .........................................................................................................................................................................................................................................................................33
The ‘Canine Sniff’ .................................................................................................................................................................................................................................. 33
10. MOVEMENTS & LOCATIONS ....................................................................................................................................................................................................................... 35
GPS Tracking ......................................................................................................................................................................................................................................... 35
Effects ................................................................................................................................................................................................................................................... 36
Luggage .........................................................................................................................................................................................................................................................................36
Thermal Imaging ................................................................................................................................................................................................................................... 37
IV. FOURTH AMENDMENT PROBABLE CAUSE .................................................................................................................................................................................... 38
11. AGUILAR-SPINELLI .................................................................................................................................................................................................................................... 38
Basis of Knowledge – Eyewitness identification.................................................................................................................................................................................... 38
Definition of Probable Cause? ............................................................................................................................................................................................................... 38
Probable Cause History Determination .........................................................................................................................................................................................................................39
2 Prong Test: Aguilar-Spinelli Test ........................................................................................................................................................................................................ 40
Problems with the A-S test ............................................................................................................................................................................................................................................40
12. TOTALITY OF THE CIRCUMSTANCES ............................................................................................................................................................................................................... 41
Joint Possession & Common Enterprise Theory ............................................................................................................................................................................................................44
Other Sources of Probable Cause .......................................................................................................................................................................................................... 45
V. FOURTH AMENDMENT: WARRANTS ............................................................................................................................................................................................. 47
13. ISSUANCE OF WARRANT ............................................................................................................................................................................................................................ 48
Neutral & Detached Magistrate Requirement ...................................................................................................................................................................................... 48
Particular description of Place to be searched ...................................................................................................................................................................................... 48
Particular Description of Things to be Seized ........................................................................................................................................................................................ 49
14. EXECUTION OF THE WARRANT .................................................................................................................................................................................................................... 50
Procedures to Employ in Executing Warrant ................................................................................................................................................................................................................50
Detention and Search of persons on the premises .......................................................................................................................................................................................................51
Intensity of detention....................................................................................................................................................................................................................................................52
Seizure of Items not named in the Search Warrant ......................................................................................................................................................................................................52
VI. WARRANTLESS ARRESTS & SEARCHES OF PERSONS ..................................................................................................................................................................... 54
General Rule.......................................................................................................................................................................................................................................... 54
Use of Deadly Force / Reasonableness Standard .................................................................................................................................................................................. 56
What occurs once arrested? Rt to hearing? Length of lock up? .......................................................................................................................................................... 57
Length of Lockup ...........................................................................................................................................................................................................................................................57
Extradition .....................................................................................................................................................................................................................................................................57
Categorical vs. Case-by-case approach ................................................................................................................................................................................................. 57
Discretion ......................................................................................................................................................................................................................................................................57
Limiting Police Discretion ...................................................................................................................................................................................................................... 59
15. UNLAWFUL, PRETEXT, AND ARBITRARY ARRESTS ............................................................................................................................................................................................ 61
Other Searches of the Person ................................................................................................................................................................................................................ 61
Warrantless search of Effects ........................................................................................................................................................................................................................................61
Warrantless search of the Body ....................................................................................................................................................................................................................................62
VII. INTERPLAY IN THE 1ST, 4TH, 5TH, & 6TH AMENDMENTS............................................................................................................................................................. 64
Mere Evidence Rule ............................................................................................................................................................................................................................... 64
16. SEIZURE OF DOCUMENTS ........................................................................................................................................................................................................................... 66
Taxpayer and Client .......................................................................................................................................................................................................................................................66
Law Office and Client ....................................................................................................................................................................................................................................................67
Warrant to search Attorney’s office..............................................................................................................................................................................................................................68
Subpoena vs. Search Warrant .......................................................................................................................................................................................................................................68
17. FOREGONE CONCLUSION & ACT OF PRODUCTION ........................................................................................................................................................................................... 69
Attorney / Tax papers....................................................................................................................................................................................................................................................69
Producing Evidence from 3rd Parties ............................................................................................................................................................................................................................70
Authentication and the foregone conclusion doctrine .......................................................................................................................................................................... 72
Rationale of the foregone conclusion doctrine .............................................................................................................................................................................................................72
Potential incrimination ..................................................................................................................................................................................................................................................72
Establishing a foregone conclusion ...............................................................................................................................................................................................................................72
Act of Production Doctrine .................................................................................................................................................................................................................... 73
Production by an entity agent. ......................................................................................................................................................................................................................................73
Others............................................................................................................................................................................................................................................................................74
Act of production immunity ..........................................................................................................................................................................................................................................75
TABLE OF CASES
A
Adamson v. California (1947) ............................................................... 15
Aguilar v. Texas (1964) ......................................................................... 39
Andresen v. Maryland (1976)................................................................ 67
Arizona v. Evans (1995) ........................................................................ 26
B
Baltimore City Department of Social Services v. Bouknight (1990) .... 74
Barron v. Baltimore (1833) ..................................................................... 8
Bennet, United States v. (Ca. 1969) ...................................................... 68
Bivens v. Six Unknown Named Agents (1971) .................................... 17
Bond v. United States (2000) ................................................................ 36
Boyd v. United States (1886) .................................................................. 7
Braswell v. United States (1988) ........................................................... 73
Brooks v. United States (DC 1960) ....................................................... 45
Burdeau v. McDowell (1921) ................................................................ 17
Florida v. Jardines (2013) ...................................................................... 33
Florida v. Riley (1989)........................................................................... 32
Franks v. Delaware (1978) ..................................................................... 43
G
Gouled v. United States (1921).............................................................. 64
Gustafson v. Florida (1973) ................................................................... 61
H
Harlow v. Fitzgerald (1982)................................................................... 17
Herring v. United States (2009) ............................................................. 26
Horton v. California (1990) ................................................................... 52
Hubbel, United States v. (2000)............................................................. 74
Hudson v. Michigan (2006) ................................................................... 27
Hudson v. Palmer (1984) ....................................................................... 31
I
Calder v. Bull (1798) ............................................................................... 9
California v. Greenwood (1988)............................................................ 31
Coolidge v. New Hampshire (1971) ...................................................... 48
Couch v. United States (1973)............................................................... 66
Illinois v. Caballes (2005) ...................................................................... 33
Illinois v. Gates (1983) .......................................................................... 41
Illinois v. Krull (1987) ........................................................................... 28
Illinois v. Lafayette (1983) .................................................................... 61
In Re Boucher (2007)............................................................................. 72
INS v. Lopez-Mendoza (1984) .............................................................. 23
D
J
Doe I (1984) .......................................................................................... 71
Doe II (1988) ......................................................................................... 73
Dow Chemical Co. v. United States (1986) .......................................... 37
Duncan v. Louisiana (1967) .................................................................. 14
Dunn, United States v. (1987) ............................................................... 32
Jacobsen, United States v. (1984) .................................................... 18, 34
Janis, United States v. (1976) ................................................................ 23
Jones, United States v. (2012)................................................................ 35
C
E
Edwards, United States v. (1974) .......................................................... 62
Entick v. Carrington (1765) ..................................................................... 6
F
Fisher v United States (1976) ................................................................ 69
K
Karo, United States v. (1984) ................................................................ 35
Katz v. United States (1967) .................................................................. 29
Knotts, United States v. (1983) .............................................................. 35
Knowles v. Iowa (1998)......................................................................... 62
Kyllo, United States v. (2001) ............................................................... 37
TABLES OF CASES
L
Robinson, United States v. (1973) ......................................................... 57
Leon, United States v. (1984) ................................................................ 24
Loan Association v. Topeka (1810) ...................................................... 10
S
M
Mapp v. Ohio (1961) ............................................................................. 20
Maryland v. Garrison (1987) ................................................................. 49
Maryland v. King................................................................................... 62
Maryland v. Pringle (2003) ................................................................... 44
Massachusetts v. Upton (1984) ............................................................. 43
Michigan v. DeFillippo (1979) .............................................................. 28
Michigan v. Summers (1981) ................................................................ 52
Monroe v. Pape (1961) .......................................................................... 17
Muehler v. Mena (2005) ........................................................................ 52
Schmerber & McNeely (1966)............................................................... 62
Silverthorne Lumber Co. v. United States (1929) ................................. 19
Smith v. Maryland (1979) ...................................................................... 74
Spinelli v. United States (1969) ............................................................. 39
State v. Blackburn (Or.1973) ................................................................. 49
U
US v. Caladra (1974) ............................................................................. 23
V
Verdugo v. US (9th Cir. 1968)............................................................... 23
Virginia v. Moore ................................................................................... 59
O
W
O’Connor v. Johnson (Min.1979) ......................................................... 68
Oliver v. United States (1984) ............................................................... 32
One 1958 Plymouth Sedan v. Pennsylvania (1965) .............................. 23
Owen v. City of Independence (1980) .................................................. 17
Warden v. Hayden (1967) ...................................................................... 65
Watson, United States v. (1976) ............................................................ 54
Weeks v. United States (1914)............................................................... 18
Whren v. United States (1996)............................................................... 60
Winston v. Lee (1985) ........................................................................... 63
Wolf v. Colorado (1939) ........................................................................ 19
P
Palko v. Connecticut (1937) ............................................................ 13, 18
Pennsylvania Bd. of Probation and Parole v. Scott (1998) ................... 23
Pierson v. Ray (1967) ............................................................................ 17
Place, United States v. (1983) ............................................................... 33
Ponds, United States v. (2006 D.C. Cir.)............................................... 72
R
Riley v. California (2009)...................................................................... 59
Y
Ybarra v. Illinois (1979) ........................................................................ 51
Z
Zurcher v. Stanford Daily (1978)........................................................... 70
I. History & Perspective: Criminal Law & Procedure
1. THE JUSTICE SYSTEM & POLICE STATE
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General Themes of Criminal Procedure
(1) Discretion
o How much discretion should we give the cops?
o What is the GOAL of police power?
o Ex post: ends justify the means; after the fact
o Ex ante: ends can never justify the means; before the event
(2) Interpretation
o How should we read the Constitution?
o Originalist: Scalia; fixed meaning
o Dynamic: Brennan; evolving meaning
o Pragmatic: depends on social values/people’s value systems
Three Broad Questions in Criminal Procedure
(1) What conduct should be identified and defined as criminal?
o “Criminal” activity changes as times change:
§ Early 20th Century: Eugene Debbs arrested for 10 yrs for speaking out against the Great War
§ Mid 20th Century: Civil Rights abused; McCarthyism; Racial discrimination, though notion of ‘separate but equal’; people
coerced, arrested, even executed, though innocent; No class action lawsuits.
§ Recent (After 9-11): Balance of security vs. Liberty – Military Tribunal vs. Fed. cts.; Violation of Individual rights – can record
anyone.
o Punishments differ in history and states (ex. Different evidence required)
(2) What purpose are we attempting to achieve through punishment?
o Rehabilitation
o Deterrence:
§ General – Deter others from doing it
Specific – Individual will not do it again
o Retribution / Justice “an eye for an eye” (Kant – Lock up for victim’s dignity)
(3) What are the procedures involved in working and applying criminal law?
o US Constitution, Fed + State Stat., State Constitution
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Our 5 Major Concerns & Lines of Thinking
(1) Function of the words of the Constitution in court opinions
Ex. 4th Am: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.”
2 Clauses, but can infer several meanings: ARE THE TWO CLAUSES READ TOGETHER OR SEPERATELY; TWO DIFFERENT
MEANINGS.
(2) Language of values other than those used in Constitution:
“Right to Privacy” not mentioned in Constitution
“Dignity of individual” – mentioned often by Court
Calder v. Bull – natural rights theory
(3) What force should the past have in a present opinion, and why?
Stare Decisis. Framer’s Intent
Ex. “Natural born citizen” (Art II)
Problems in rooting out Framer’s Intent:
Conflicting intents of voters – looking at same provision differently
No intent (except to leave hot chambers)
Whether they wished to have their intent used in the future
Personal vision of another’s intent – never a true, definitive intent
Why listen to what men said 200 yrs ago?
(4) Judicial Restraint (Judges apply law, while legislatures create it) vs. Judicial activism (Judges act in accordance with own values and beliefs).
What is the role of courts as lawmakers?
What makes a great judge?
Intellectual ability / ability to argue morally.
Various perspectives
Restraint on judicial ego
No other power in the country can force compliance like the Judiciary
(5) Function of the Cases
Provide directions in the future – how to behave as police, judges, citizens, etc. Predictability vs. Flexibility in judicial decisions
Broad Holding (simplicity) vs. Narrow Holding (Complexity)
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2. PERSPECTIVES ON MODELS OF JUSTICE
•
•
•
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Crime Control Model
Based on a presumption of guilt.
Premium on speed and finality and see the due process as a waste that only aids the guilty.
De-emphasizes adversary trials. (Assembly Line) à Efficiency over reliability.
o Due process violates this theory
o Fact finding process that either leads to guilty plea or acquittal
o Stresses actual/factual guilt over inefficient due process protections (Legal guilt)
o Presumption of guilt—not presumption of innocence Stresses actual/factual guilt over inefficient due process protections (Legal guilt)
o Failure to control criminal conduct = break down of public order & freedom
o Ends vs. Means problem
o No such thing as freedom unless there is order, so premium on speed and efficiency (“resembles assembly line” [S])
o Two choices for an administrative fact-finding procedure to decide: Acquittal or plea-bargain
Due Process Model
Stresses reliability and individual privacy over efficiency based on possibility of human error and suggests that people are poor at identifying
criminals and so we must be careful à Reliability over efficiency. (Obstacle Course)
o The role of the lawyer is more important in this model
o Confessions can be gotten by force so they are not reliable
o Must have unbiased fact finding not geared towards a guilty verdict
o Looking more for the TRUTH rather than a guilty verdict. Idea of equality in all ways, though not absolute
o Stresses individual privacy over efficiency
o Stresses possibility of human error
o Formal fact-finding process preferred over informal fact-finding
o Privacy of individual & limitations on official power
§ Privacy more important than power of the state
o Two Levels of guilt:
§ Legal Guilt – Guilty in court’s eyes: “Beyond Reasonable Doubt”
§ Factual Guilt – May have committed act
Policy Considerations
•
Due Process is biased to those who can afford to provide a better defense.
•
Is it worse that people have to sit in prison longer, but we are more confident that a reliable system is giving us the correct result (aligning with
the DPM) Or should we value efficiency more and say if a couple mistakes are made, at least our holding cells aren’t overcrowded (CCM)?
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3. HISTORY OF CRIMINAL PROCEDURE
Evolution of Procedural Aspects of Law
Maitland’s Criminal History
• 11th Century:
o Outlawry
§ Hue and cry process – ring the bell and calling to citizens to respond (car alarm today)
§ Some humiliation aspect to it
§ Problem – often catch wrong person, no identity check. Was not effective. Subjective, could become a “witch” crime.
• Blood Feud
o Eye for an eye (you kill my brother, I kill you/your brother, etc.)
o Think of death penalty today
• Tariffs
o Could fix crimes by $
o Pay both to the injured and the king/the Church, etc.—trend of the time to pay $ to get out of punishment
o Corrupt taxing system: every wrong had its price
o Clearly problematic that more $ = get off more often
• Punishment of Life and Limb
o Physical punishment (cut off your hand)
Advantages: Quick, Efficient, deterrent value, community involvement.
Disadvantages: People who are innocent would be convicted w/ no defense
Takeaway: Focus here was on substance of what was done, very little attention to procedure. Unchecked blend of community justice and a formal legal
system. The severity of the punishment doesn’t necessarily comport w/ the severity of the act
• 13th Century:
o Hue & cry continues; crime control more civilized and strict.
o No law of search and arrest yet; no guarantee of a trial
o Shift in substantive criminal procedure in the sense that now, bring suspect before judge (magistrate)
o Still community involvement but now more of a move toward rule of law in crim pro
o NOTE: Stotzky says idea of victim compensation and community involvement to some extent is helpful
o Minimum standards of due process develops
Hale’s Criminal History
• 17th Century – Sir Matthew Hale –
o Hale ahead of his time in crim pro philosophy: much authority relied on Hale (Blackstone in particular); foundation for Framers of
Constitution when drafting 4A
o Shift from Middle Ages law to modern law
o Shift toward official involvement in search & seizure
o Greater role of state regulation/official participation; less community involvement
4
o Function of the warrant: prevent state/government officials from violating individual rights
Takeaways: 1) begins to tell us what PC is; 2) begins to tell us process for search and seizure of stolen goods
Past elements of PC
1) Common fame (reputation)
2) Hue & cry
3) Indictment
Superior Property interest: Stolen goods seized.
To each a duty:
Constable: Official charged with upholding the law. Could initiate “Hue and Cry”; required citizens help stop criminals/ protect peace
More able to break into homes. People who didn’t help could get in trouble. When someone knew that a felony has been committed and
he knew who did it, he was required to inform the constable or catch him himself. Nowadays they won’t ask you. Hired by the
community. He could initiate the hue in cry. Could break into people’s houses, could require people to help.
Justice of the Peace: had power over constables. Lay Magistrate w/ tremendous powers. Charges crimes and tries cases. Issues
warrants. For serious cases he would get other people to prosecute. Could supervise the constable.
Questions: What is the function of the warrant? To give the constable and justice of the peace the power to do something and if he does it within that he
is protected. Arrests will be valid even if the procedures were not valid as long as the individual was in fact guilty. They had no concept of the
exclusionary rule. Today there is false inprisonment if you break into someone’s house and hold them while they are searching.
Are constables the precursers of police? Are Justice of the Peace precursers to justices?
What is probable cause in this context?
“Common Fame”-means anyone who is known to be bad. Would mean the cops could arrest a drug dealer.
“Hue and Cry Levied”-Someone runs out of a jewelry store and with jewelry then that would be sufficient.
What about association? Maybe not sufficient for indictment. They used to be able to stop strangers and arrest them.
Look at the requirements of searching for stolen goods on
1. To express that the searches be made in the day-time
2. That the party suspecting be present to give the officer information of his goods.
3. There can be no breaking open of doors to make the search, bu the must enter pas astia aperta, or upon the voluntary opening by the door by the
house-keeper or his servants; and the reason is, because the bare having of stolen goods in his house doth necessarily make a man either a felon
or accessory
4. But because the having of stolen goods in his custody is prima facie an evidence of custody where they are found, to come before the justice
5. The goods being found ought not to be delivered to the party complaining, but to remain either by a writ or restitution upon the conviction of the
felony, or by due order of the court they delivered.
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Function of a Warrant:
Past Elements of P/C:
1. Protect individual by checking executive authority (have to establish probably cause, etc.)
2. To establish legitimacy
3. Gives power to crown / executive
4. Warrant gave obligation to act
5. Gave a qualified immunity to act.
6. An independent party must be sought to issue the writ
Avoids fishing by police for info
Must show probable cause
(1) Common Fame (reputation)
(2) Hue and Cry
(3) Indictment
Requirements of Search & Seizure of Stolen Goods:
(1) Search made in daytime
(2) Suspect parties are present
(3) No breaking open of doors
(4) Can arrest if goods found
(5) Goods stay with court until there is a write of Restitution
(6) Could arrest if goods were found and of course, the evidence was always admissible at trial
without regard to how it was obtained.
Historical Foundation of the Exclusionary Rule
Entick v. Carrington (1765)
SEARCHES, SEIZURES, AND “SUPERIOR PROPERTY INTERESTS”
Facts
Entick found guilty of seditious libel, when he printed seditious newspaper and was turned in by an informant. Government sent
messengers, which searched his home and took objects – examined all books and broke all locks for several hours. Power issued by
Warrant from Executive Branch (Sec. of State). They took everything. The idea was whether he could actually complain about trespass.
Issue
Is there actually trespass here / can Entick actually bring about a suit for trespass based on this idea of superior property interests?
Holding
He sued the agent of the Secretary of State in trespass and won. The ruling was affirmed on appeal by Lord Camden because:
(1) There was no constable present as is required.
(2) Warrant was unlimited in scope - allowed them to search anywhere for anything.
(3) Was an Executive Warrant that was not issued by a Justice of the Peace.
(4) Search was offensive because it involved speech and the gov. did not have a superior property interest in those things to be seized.
RULE
No general power in England for gov’t to search and seize evidence; could only do so if there’s a superior property interest
POLICY
Can later be extended to <the government cannot have any superior interest in my speech; currently in U.S., the state does].
STOTZKY He is concerned (1) with the property rights being intertwined in this [admits that temporally it makes sense]; and (2) with the scope of
the warrant [how many of us don’t have something illegal if someone searched every inch of our apartment for anything?!].
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Boyd v. United States (1886)
THE U.S. COURT CONNECTS PROPERTY INTERESTS & PRIVACY (4A & 5A)1
Facts
Judge ordered defendants to turn over private papers to the gov’t; refusal would render them guilty.
Holding
The gov. may obtain a W and search for stolen goods or hidden goods by those who wish to avoid paying duties, but it has no interest in
the private papers of the defendant here and to make him produce them in order to convict him is tantamount to a violation of both the 4th
and 5th Amendments. Gov wants to look at Boyd’s papers of past transactions to see if he was defrauding the gov in previous transactions.
They asked Boyd to produce them for them.
RULE
Unreasonable search & seizure not limited to physical trespass; relationship b/w 4A AND 5A required exclusion of the evidence at trial
Ct says that compulsory production is a search and seizure.
Cannot search and seize mere evidence- the gov has no superior prop interest (Entick).
POLICY
With the 4A and 5A connected, we can now move on to every other case in criminal procedure because this interplay gives rise to the
idea that our rights are connected and thus a 5A concern may generally invoke a 4A analysis as well.
STOTZKY Does this violate a person’s 4th or 5th A right of protection from illegal search and seizure and self incrimination?
à Ct says compulsory production is a search and seizure (obtains evidence of a crime) No compulsory production of private papers w/o
gov’t’s superior property interest
*Entick + Boyd- Gov cannot use your own prop against you to get a conviction no matter what kind of W they had.
Rule: 4A protects against invasion into a person’s private matters; won’t allow gov’t to compel a person to produce private papers through
subpoena (5A intersection here)
•
SCOTUS “unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially
different from compelling him to be a witness against himself.”
• NOTE: No mention of exclusionary rule here yet
Concurrence: Waite: “The things here forbidden are two – search and seizure. And not all searches nor all seizures are forbidden, but only those that
are unreasonable. Reasonable searches, therefore, may be allowed, and if the thing sought be found, it may be seized.”
Stotzky: There is nothing in the 4th Amendment that is immune to search and seizure. The process is important. Nothing is protected, diaries
included.
1
Literally when the origins of the exclusionary rule ideas are being flushed out in Boyd, the analysis is already connecting the strings between the 4th and 5th
amendments. See also Section VII. Interplay Between Amendments.
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II. Fourteenth Amendment: State Autonomy & The Incorporation Doctrine
4. STATE AUTONOMY
Barron v. Baltimore (1833)
5A DOES NOT APPLY TO STATES
A harbor owner is suing the city if Baltimore for deprivation of due process under the 5th amendment when the city of Baltimore’s construction project
led to loss of business…
FACTS: P sued Baltimore after the city diverted the flow of streams in course of construction, which ruined P’s wharf. P argues that this violates his 5th
Amendment guarantee that private property will not be taken without just compensation.
HOLDING, Marshall: 5th Amendment only applies to federal government, not to the states. Unless fed gov is involved, there is no jurisdiction. If
framers meant to apply BOR to the states, they would have. Framers’ intent was that only fed gov is limited by the Bill of Rights and fed gov should not
interfere w daily lives.
Slaughterhouse Cases (1873)
13A & 14A FORMER SLAVES; P&I CLAUSE DOES NOT PROTECT INDIV. FROM STATE
Facts
City grants Corp. a 25-yr monopoly to maintain slaughterhouses under Health Power (odor problem when people slaughter animals
everywhere). Corp. required to allow independent butchers to slaughter at fixed prices under penalty of a fine. Butchers not included in
the monopoly challenged the law under the 13th (involuntary servitude) and 14th (P + I denied, and Equal Protection / Due Process) Am.
Issue
Whether the civil war amendments only apply to newly freed slaves or if they apply to all individuals as a source of protection from the
state.
Holding
Purpose of Amendment was to protect newly freed slaves:
A majority of the court determined that the 13th –15th Amend. Were primarily concerned with African-Amer. Freedoms and were not
meant to apply to all citizens or to abridge the right of the states to govern their citizens. Only protects citizens of the US from actions by
the US and does not protect citizens of a state from actions by that State’s Legislature. The state was within its right to use the Police
Power to protect the health of its citizens by moving the slaughterhouses.
o Privileges and Immunities Clause – Clause is always read narrowly. Only twice has a state statute been struck down because of
this clause. In SH cases, Miller interpreted this as only applying to the P& I of a US citizen.
Defines 2 types of citizens
(1) Citizen of a State: Domicile (State law Protects State citizen)
(2) Citizen of United States: Born or Naturalized (Protected by Fed)
o Monopoly power belongs to state through police power
o Barriers between Fed + State + Individual Rights easily defined and viewed: Court can interfere if state violates any sphere – can
use Constitution as a shield not a sword.
It is now illegal for a state to deny any privileges or immunities to a citizen but a state does not have to follow the BOR to the letter yet, it
just cannot take away or infringe upon a right granted by the Fed gov.
*J Miller* à States protect citizens’ rights. Fed gov is not allowed to interfere (13th-15th A just strengthened the state power to protect
the individual)
8
2 Years Later in 1875 J Miller→ Fed gov does have a right to interfere w/ states to protect the citizen (Natural Law Notions)
J Miller→ the entire reason for the 13-15 A was to free slaves and make them citizens (passed to strengthen state power to protect
citizens). States are still supposed to protect individual rights, not the fed gov.
o Const gives rights to the states, citizen rights protected by state common law, BOR protects the individual from the fed gov.
RULE
(1) SCOTUS held that 13A and 14A were meant ONLY to protect former slaves.
(2) P&I clause NOT meant to protect individuals from state gov’t actions.
POLICY
Stotzky’s point is that there really is no policy behind it. It seems justified because the amendments were for the freedmen. But if they
cannot apply to all individuals for protection against state action à then what’s the fucking point?
STOTZKY Why did we fight a Civil War if not to protect individuals (slaves) from State tyranny? Why did the fed gov pass the 14th-15th A if not to
give power to the individual (if the state was already giving them power why was it necessary to pass the A’s)?
Stotzky says Miller’s reading of the P+I clause renders the 14th Amendment superfluous- why did we fight a Civil War to
not protect individuals (slaves) from state tyranny? Why did the gov pass the 14th and 15th Amendment if not to give power to the
individual— if the state was already giving them power why was their passage necessary?
o
o
Calder v. Bull (1798)
FED. CONST. EX POST FACTO RULE DOES NOT APPLY TO STATE CIVIL CASES
Facts
A Conn. ex post facto Law set aside a probate court decree that had refused to approve a will. The legislation required a new hearing, and
at that second hearing, the will was approved.
Issue
Does the United States Constitution’s ban on ex post facto laws apply to civil cases?
Holding
No. The U.S. Constitution’s ban on ex post facto laws does not apply to civil cases; it only applies to criminal cases. In this case, the law
in question involved the validity of a will, which is a civil matter. Accordingly, the law is not an ex post facto law. The decree of the
Supreme Court of Connecticut should be affirmed.
Natural Law à does the violation affect the fairness of society?
The Claim: it was an ex post facto law (retroactive justice- if you do something legal and then a law is passed making it illegal you can be
charged w/ the crime even though you did it when it was legal)
§ Cannot be ex post facto because this is a civil case and ex post facto applies to crimes.
§ The claim of natural justice is not enough to invalidate a leg act.
§ Rights were not yet vested in the willed parties
Dissent: cannot rely on Natural Justice
§ Iredell: “If the legislature of the Union, or the legislature of any member of the Union, shall pass a law, within the general scope of
their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles
of natural justice.”
RULE
The United States Constitution’s ban on ex post facto laws does not apply to civil cases.
POLICY
If the ban included civil matters, it would severely restrict the authority of legislatures to enact laws.
STOTZKY Agrees with the finding that a civil matter dealing with a probate will decree should not fall into the realm of ex post facto ban in the
Constitution. However, he agrees with Iredell that this is tricky waters because we’re already (IN 1798!!) seeing the beginnings of how
judges find it easier to write about crim pro in policy terms instead of legal terms. Why should natural law theory, that not all ascribe to,
but the only rationale for making a S. Ct. decision?
9
Loan Association v. Topeka (1810)
CANNOT SUE STATES; CAN SUE CITIES (11A)
Facts
Citizens of one state sue a city in another state (Topeka City) for interest owed. Sued City (may not sue State under 11th Am) using
Federal C/L (like Natural Law).
Holding
Echoes Chase’s Argument, that there are “rights in every free gov’t beyond the control of the state. [There] are limitations on such power
which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social
compact could not exist, and which are respected by all governments entitled to the name.”
Outsider loses! à Miller may not be applying same standard as he used in Slaughterhouse Cases. Seemed can basically treat a state
citizen worse than an interstate citizen (taking Slaughterhouse analogy under Miller’s approach).
§ Was the 11th amendment a ban to this suit? No, doesn’t apply to a City
§ Why did the lower federal court have jurisdiction? Diversity, and Article IV Section 2
§ What law was being applied, state, federal, common/general law? General common law?
RULE
Explicit constitutional limits on state legislative power were judicially enforceable!
STOTZKY He is really concerned with the fact that the 11th amendment is going to be incorporated and enforced sometimes because we’re worried
about state’s being sued, but the 14th amendment can’t be. Alternatively, Stotzky questions the logic of how people are supposed to hold
their state accountable for 14EPC violations when the 11A prevents them from filing suit against that state!!
à Stotzky asks how it makes sense to protect the outsider if it is the state’s job to protect its citizens?
10
5. MODELS OF CONSTITUTIONAL ADJUDICATION
1) Dispersing power (1803 – Civil War / Slaughterhouse Cases)
§ Rejects individual challenges to state under the Fed. Constitution - State a shield for individual from Federal government
§ Weakness: Link between state and citizenry vanished after Civil War. (Black Codes infringed on rights of newly freed slaves)
§ Slaughterhouse cases
§ Court Narrowly interprets 13th, 14th, 15th Am
§ Notion of common law rights beyond state police power
§ Led to Model #2
2) Defining Spheres of Power (Civil War – 1937)
§ Unconstitutional to infringe on court created categories of rights (Life, liberty, and property)
§ Weakness: No method of judicial action
Great Depression and New Deal – since then, Court working with 2 models
3) Excluding Power: Inherited #2’s belief in politics
§ Excluded certain types of rights from reach of all control under Court’s Strict Scrutiny.
4) Regularizing Power: Accepted #1’s acceptance of the dominance of politics
§ Imposed idea of regularity and equality.
§ Procedure: Like cases must be treated alike – appeal of neutrality
§ Caroline Products FN 4 – No deference to political system (Strict Scrutiny):
Rigged Game (Rights invaded, such as right to vote)
Discrimination of minorities
11
6. INCORPORATION DOCTRINE
Incorporation: Means by which provisions of the Bill of Rights are applied to the states through 14th Amendment’s due process clause which has been
held to encompass those provisions.
Fundamental
Fairness
Selective
Incorporation
JUSTICES
Chase
(Calder)
Cardozo
(Palko)
Frankfurter
(dissent in
Adamson)
Harlan
(Duncan)
White
Iredell
(challenged
Chase’s
natural law
approach in
Calder)
Rehnquist
PROCEDURE
§ Case by Case method (specific case before
them raises issue of Fundamental fairness)
§ If Case raises issue of Fundamental right
(essential to concept of liberty) incorporate
only specific aspect of Am
§ If you can’t conceive of a system without
THE right then it is Fundamental.
§ Interpreting the term “liberty” in the
clause of the 14A without regard to text of
BoR
§ Frankfurter: Disinterested observer? What
could he draw from? Other country’s laws,
our history. Look at it less as a value
judgment than as a scientific view.
§ How do we apply “ordered liberty” in the
14A.
§ 1) Fact specific (case by case).
§ 2) Is the right in question necessary to
ordered liberty (fundamental right)?
§ 3) If yes, we incorporate that one aspect
of fundamental right. (ex. Miranda may
be fundamental right, but search and
seizure right in question not).
§ 1) Look at the facts to see if issue falls within
BoR.
§ 2) Does right fall within ordered liberty in US
scheme?
§ 3) If yes, disregard facts and see overall
aspect of fundamental right. (we have
basically incorporated every element of the
bill of rights today)
§ Save scarce judicial resources
12
CRITICISM
§ No support in History or Review
§ Too subjective: can be expanded or restricted based on your own
values.
§ Black Criticism:
§ Subjective (while TI Black + White
§ FF making up things Framers never spoke of.
§ Too much deference to the courts, “natural law”. No bright line rules.
Judges can make up own law. Each case will have different result. Not
setting precedent. When does a right apply?
§
§
§
§
§
§
Arbitrary – why one right over the other
Same as above, hard to get past threshold of US scheme because moving
target. BUT once threshold met, applies whole right universally.
‘Constitutional Straight-Jacket’ – State Restricted to follow Bill of
Rights.
This is different than fundamental fairness.
“Watering down” of federal laws by equating state & federal procedure
Problem with federal tyranny and/or state autonomy? Original rationale
against incorporation in the first place
Total
Incorporation
Total
Incorporation
Plus
(Most other
Justices)
-Black
(Adamson)
-Douglas
(Adamson)
-Murphy
(dissent in
Adamson)
-Rutledge
(dissent in
Adamson)
Not really in use today (ex. 6th Am requiring
Indictment not held to st.s)
§ 14th Am applies entire Bill of Rights to states
– only way to leave subjectiveness of courts
out
§ Nothing beyond Bill of Rights (Illegitimate)
§ This is what the framers intended
§ Nothing beyond BoR text
§ Bright lines rules
§ Black: May leave rights up to interpretation of
Constitution, but does not make up policy.
Interpretation judge’s job
Both Black and Frankfurter correct, but not far
enough.
Total Incorporation of the Bill of Rights, plus
Fundamentally Fair Liberties.
§
§
§
§
§
No Support in History
Restrictive and confining, cannot go outside it
Sets the outer boundaries of rights. He says that the 14th makes the first
8 applicable to the states.
The letter of the law binds the states, not fluid enough to change with
societal values.
Other rights not in the Constitution that should be included. He said look
this guy up for a paper topic. Black would be totally against the extension
of rights.
§ Have your cake and eat it too
§ Doesn’t avoid subjectivity
§ Warped construction, no bright line rules. Trying to have objectivity and
subjectivity creates no limit to what could be a right.
EXAM TIP: Use on an exam to show that natural law is sometimes used in decisions, but Stotzky would not take any of these approaches.
Maybe . . . Maybe Not?
(1) Fundamental Fairness
Palko v. Connecticut (1937)
CARDOZO GIVES US F.F. APPROACH
Facts: Palko 2nd degree murder charge set aside by Conn. S. Ct after appeal by the State. On retrial, convicted of 1st degree murder. Claimed retrial a
violation of the 5th Am double jeopardy guarantee.
Court Per Cardozo:
H- Cardozo says that not all of the BOR apply to the states as long as justice is done. Due Process can still exist even without a jury trial by indictment.
4th Amendment rights are so fundamental that they could not be abolished by state. This is not at the essence of a scheme of ordered liberty.
Cardozo→ uses a test to determine if the 5th A applies: “Is the right implicit in natural law? Is it a fundamental principal of liberty and justice which lie at
the base of all our civil and political institutions?” He claims it could not hurt society if a criminal is tried again to get a harsher sentence.
FF- some BOR guarantees are required, others are not. SCt could create policy rather than interpret what is written in the const and decide based on that.
13
“The right to trial by jury and the immunity from prosecution except as a result of an indictment may have value and importance. Even so, they are not
of the very essence of a scheme of ordered liberty.” Can imagine a fair system of justice without this certain right. Court has
already refused to extend everything (grand jury indictment) to states.
•
FF à Some BOR guarantees are required, others are not. S. Ct. could create policy rather than interpret what is written in the const and decide
based on that.
o Cardozo in Palko à “The right to trial by jury and the immunity from prosecution except as a result of an indictment may have value
and importance. Even so, they are not of the very essence of a scheme of ordered liberty.”
o Can imagine a fair system of justice without this certain right.
§ Court has already refused to extend everything (grand jury indictment) to states.
(2) Selective Incorporation
Duncan v. Louisiana (1967)
6TH AMEND. APPLIES TO STATES
Facts
Duncan convicted of simple battery (could be pushing someone). A lot of these cases rose when police tried to arrest people. Sought jury
trial but refused due to State law. Challenged the State Constitution under 6th Am. 6th=Right to counsel, speedy and public trial, to
confrontation of opposing witnesses, and to compulsory process for obtaining witnesses. He argues that he has a right to a jury trial.
Louisiana only allowed jury trials for crimes that were capital punishment or hard labor. Louisiana didn’t require jury trials for any case
for any reason. Most cases are settled without jury trials. He was only punished for 60 days so they argued that it wasn’t sufficient.
Holding
*Majority (White) à Apply all aspects of 6th Am to State. If not, a flood of cases may arise, therefore treat everyone the same. “Crimes
carrying possible penalties up to six months do not require a jury trial, but more than that do.”
The right to a jury trial guarantees protection from oppression by the government. It is ok to be waived for less serious crimes
though because they could still get a “fair trial”.
*Concurrence à Black (Douglas): Willing to support Selective Incorporation – better than nothing. It is very important to have a juryt
trial. Thinks it is weird to read the BOR different than he does. The privileges and immunities.
*Dissent à Harlan: Supports Fundamental Fairness with judicial discretion. Bill of Rights elastic and can be changed to fit
circumstances of the day. More about fairness than specific guarantees, up to judges to decide. He said that the 12 person juries and
unanimous verdicts is not in the constitution. He thinks that states can decide issues. The justices assume a hierarchy of rights and decide
which ones are most important. “They know it when they see it.”
RULE
The right to a jury trial is a constitutional guarantee that the states must incorporate (in most cases).
POLICY
Can you conceive of a civilized society that wouldn’t have this right (borrowing from the F.F. test)? If not, then it should apply to it all
state cases. Before it was hypothetical not it is real. It is because our structure is towards a jury trial. It seems to complement it.
Why would you take a plea bargain? The judge might suggest it.
14
Bill of Rights Applies to States
(3) Total Incorporation & Total Incorporation Plus
Adamson v. California (1947)
DISSENTS CREATE T.I. & T.I.+
Facts
Adamson challenged his murder conviction, because the prosecution was allowed to comment on his not taking the stand. He argued that
this violated his 5th right against self-incrimination and that this should be applied to the states through the 14th.
Issue
Whether the prosecutor was able to mention that the defendant did not want to take the stand in his own trial.
Holding
Court per Reed:
Not all Bill of Rights guarantees were extended to state under 14th Am, and found no grounds to make the selfincrimination privilege applicable. Upholds murder conviction – 5th Am only applicable to federal gov’t.
Concurrence: Frankfurter (FF):
Rejects the view that the 14th Am is “ a shorthand summary of the first 8 amendments”. Would
have explicitly held so, if intended. Natural Law is the way to know what is in and what is out.
He argues that it is not subjective because it is rooted in history. “Says that the 14th Amendment
has independent function.” “An important safeguard against such merely individual judgment is
an alert deference to the judgment of the State Court under review. He thinks that Due Process
changes over time “reconciling the needs of both of continuity and change in a progressive
society.”
Dissent:
(1) Black (Douglas) (TI):
Total incorporation of all Bill of Rights guarantees was the
“original purpose” of the 14th Am. Thinks that using “natural law” is too subjective is more like making
law which is the responsibility of the Legislature.
(2) Murphy (TI +):
Everything in the Bill of Rights plus anything that may arise later.
If it sounds like a right, it is a right.
RULE
The Due Process Clause of the Fourteenth Amendment does not prevent a jury from drawing inferences regarding a defendant invoking
the Fifth Amendment to refuse to testify at trial.
STOTZKY I get the vibe that Irwin appreciates the nuances and advantages of federalism but is also very concerned that in this day and age, there are
/POLICY
two citizenships being created. Why are ALL parts of the Bill of Rights applicable to ALL citizens for protection against ALL state
governments?
15
III. Fourth Amendment: Searches & Seizures
7. MODERN EXCLUSIONARY RULE
Exclusionary Rule: The general rule in criminal procedure that evidence obtained in violation of the Fourth Amendment may not be used against the
individual whose rights were violated in obtaining the evidence.
The Exclusionary Rule as Remedy
Exclusionary Rule not required by Constitution nor created by Congress, but by the Judiciary: Not Fundamental requirement – most English
speaking countries and most states have no exclusionary rule.
Three main reasons:
1) Deterrence of Police Dept. – Normative View.
§ What does Unreasonable Search and Seizure Mean?
2) Integrity of Courts (Silverthorne, Holmes).
§ Crime Control vs. Due Process
3) Gov’t should not benefit from its Lawlessness
What can be done other than Exclusionary Rule?
1) Criminal prosecution for violating 4th AM or a trespass action.
Problem: DA may not prosecute; Deter others from becoming officers; Deter police from doing their job.
2) Tort Remedy:
a. Bivens Suit – Created by Courts. Sue federal officials under 4th Am
b. §1983 Action – Federal statute allowing a suit against state officials
c. FTCA – Federal Tort Claims Act.
Problem: Sovereign Immunity may apply; Officer may have no money. What about incentives? $ for officers whose searches survive a
4th Amend. Attack or fines for officers who violate the 4th.
3) Official Discipline of Polcie Department by prosecutor
4) Civilian Review Board to go over violation. Some Police Depts hire lawyers to file in-house suit, rare.
5) Injunction to force gov’t to live up to Constitutional requirement and prohibit specific action by officers.
6) [S] Positive Incentive: Pay officer for every search and seizure that gets by motion to suppress. (Can push further – every officer who does
not fire a weapon gets a bonus).
7) Negative Incentive: Fines for Unreasonable Searches and Seizures.
May not want the Rule:
1) When involved in serious cases, such as treason, espionage, murder, armed robbery, and kidnapping by organized groups.
2) To apply to cases where the police department in question has taken seriously its responsibility to adhere to the 4th Am.
16
Alternative Remedies
Monroe v. Pape (1961)
Facts: Alleged 13 Chicago officers broke into petitioner’s home in the early morning, routed them from bed, made them stand naked in the living room,
and ransacked every room in the house – after which Mr. Monroe was taken downtown and interrogated incommunicado about a murder. Ct
rejects State argument that action barred from suit, b/c under §1983, no ‘statute, ordinance, regulation, custom or usage” made a state remedy
available
Court: “The fact that Illinois by its constitution and laws outlaws unreasonable searches and seizures is no barrier to the present suit in the federal
court.”
Pierson v. Ray (1967)
Facts: Involved arrests under breach of the peace statute (which is found unconstitutional).
Court: “if the jury found that the officers reasonable believed in good faith that the arrest was constitutional, then a verdict for the officers would follow
even though the arrest was in fact unconstitutional.
Harlow v. Fitzgerald (1982)
REFORMULATES PIERSON STANDARD TO BE PURELY OBJECTIVE.
Court: New question to be asked in interpretation: “whether a reasonably well-trained officer in petitioner’s position would have known that his
affidavit failed to establish p/c and that he should not have applied for the warrant.”
Owen v. City of Independence (1980)
Court (5/4): A statute did not confer upon municipalities the tort law immunities for ‘governmental’ functions and ‘discretionary’ activities, and also that
a municipality may not assert as a defense the good faith of its officers.
Bivens v. Six Unknown Named Agents (1971)
Court: Though Congress had not provided a tort remedy under such circumstances, a complaint alleging that the 4th Am had been violated by fed agents
acting under color of their authority gives rise to a federal cause of action for damages.
Burdeau v. McDowell (1921)
Exclusionary rule not in effect when evidence is obtained by private persons, unless person acting as an agent or instrument of the gov’t.
Totality of Circumstances Test:
(1) Motive of private actor
(2) Compensation / benefit to private actor from gov’t
(3) Advice, direction, and level of participation given by gov’t.
17
United States v. Jacobsen (1984)
A Federal Express agent called Federal agents when a package was suspected of containing drugs because the box was opened as it was damaged. The
agents who arrived opened the box again (it had been resealed) and tested the contents to discover that it was cocaine. The court held that this was not a
violation of the 4th because the sender could have no legitimate privacy interest in the contents of a package that had already been opened by a private
party who invited agents to view it of his own accord.
‘The Big Four’: Creation of the Rule
Weeks v. United States (1914)
SILVER PLATTER; CREATES FED. EXCLUSIONARY RULE
Facts
State officials and a US Marshall searched the home of the plaintiff without a W and seized papers, letters, and lottery tickets for the
purpose of prosecution. State officials searched Weeks’ premises w/o a warrant. Papers and letters taken, including lottery tickets. Police
returned with a Federal Marshall for 2nd search, still w/o warrant, & took more papers.
Issue
Holding
Created Exclusionary Rule, that a Federal official cannot use evidence in a federal trial of illegally seized documents. Inadmissible and
returned if not contraband.
Any US officer must have a W made by affidavit and describing what is to be searched for, any lack of such is a direct violation
of the 4th. This case created the Exclusionary rule in order to protect the integrity of the courts and not have them contribute to
the illegal process. Fed Marshall’s search unconstitutional; SCOTUS ordered illegally gained evidence excluded from
federal court
RULE
A Fed’s W-less search is not admissible in a Fed suit because it violates the 4th A, but a State’s W-less search isn’t a violation of
the 4th A and couldn’t be excluded.
§ Silver Platter Doctrine – This case only established that a Fed. Official could not use illegally obtained materials in a Fed.
Prosecution. If state officials obtain the materials and give them to the Feds, then everything is legal.
POLICY
Why can the federal prosecutor at the federal courthouse be expected to follow the exclusionary rule and the fourth amendment, and the
state’s attorney across the street does not have to?!
STOTZKY Silver Platter Doctrine: State officials serving up evidence they seized unlawfully to federal officials on a “silver platter” for use in federal
trial
Reverse Silver Platter also used: fed officials illegally seizing evidence then giving it to state officials for state trials
§
Look at process – not what was taken, but how it was taken. Must exclude evidence to preserve judicial integrity. Courts cannot contribute to
illegal process
§ Judge-made remedy à Not constitutionally required
§ Purpose:
§ 1) Deterrence
§ 2) Judicial integrity
§ First application of the exclusionary rule
§ Only applies to federal officials in federal trials
§ “4A is not directed to individual misconduct of [state] officials. Its limitations reach the Federal Government and its agencies.”
18
Hypo! What if a DC law requires the police to knock and announce their presence and intent to search. Would it be excluded? The question is whether
it is constitutional, common law, or statutory.
There is a debate about whether the exclusionary rule is constitutional or not. If it isn’t then the states don’t have to adhere to it.
The Constitutional standard is the bottom line. Statutory rules would establish higher standards. Under the federal court’s supervisory powers they can
exclude evidence that violates the higher standard. State courts don’t have to follow the Supervisory standards but it can’t fall below the Constitutional
standards.
Kerr-Frisbee Rule: Deals with extradition.
1989 Noriega
President Bush invaded Panama to arrest him. He was tried in Miami. Noriega’s defense said that the seizure was illegal. The world was shocked by
this. “Shocking the conscience” is the wrong test Stotzky says. The better standard is to find norms of international law such as norms against
torture. International law allows the use of force only when it is defensive in nature. Why did they go after Noriega? He had been allowed to import
drugs in the U.S. because he helped us out in Latin America. He holed up in a monastery. Noriega lost his trial but was treated as a war criminal.
Hypo: What if the Soviet Union declared Obama a criminal and wanted to arrest him? We wouldn’t allow it. He says that it is also illegal to invade
another country to “restore democracy.”
Silverthorne Lumber Co. v. United States (1929)
PHOTOS OF ORIGINALS
Facts: Fed. Officials made an illegal search, but before returning the materials, they copied them and used the information to issue a new indictment.
Court per Holmes:
Independent Source Rule: If knowledge of the facts are gained from an independent source, admissible.
The 4th prohibits the use of evidence obtained through an illegal search and seizure. For information to be used, it must be
corroborated through an independent source because the gov. may not benefit from its own wrong. Without the
exclusionary rule, the 4th is reduced to a “mere form of words”.
*Gov should not be able to benefit from an illegal search*
‘Fruit of the Poisonous Tree’ Doctrine: Cannot use illegally obtained evidence. Allowable if individual source verifies evidence, independent
from gov’t action.
Wolf v. Colorado (1939)
EXCLUSIONARY RULE NOT INCORPORATED
Facts: Wolf is a doctor charged with conspiracy to commit abortions. This would be at least two steps away from abortion.
Court per Frankfurter:
Odd decision for Frankfurter, a Fundamental Fairness Freak
Rule: 4A protection against unreasonable searches does apply to states BUT exclusionary rule remedy DOES NOT apply to the states
The idea was that the public would rise up and correct abuses of power but this would mean that criminals and those without means to do so would have
to organize. It probably isn’t a realistic view why this rule should not apply to the states. Stotzky says that it seems against his view of incorporation.
• States are sovereign and have own remedies. He said that trespass and false imprisonment are the remedies.
19
Other reason, most of the English speaking world does not exclude evidence.
Other reason, do any states have the rule of exclusion? He said only 19 have an exclusionary rule.
States should be allowed to experiment on their own. His conclusion is based on one major assumption in that it is a judicially created rule. Thinks
purpose is to deter officers from violating rights.
He said that the Exclusionary Rule is not constitutionally required, it was a judicially created remedy.
Frankfurter’s theory is that the exclusionary rule is a deterrence against police officers.
Dissent: Murphy thought that Trespass is not a sufficient remedy for a 4th A violation. Police will not discipline themselves and state prosecutor will
not prosecute police for 4th A violations because it benefits the prosecutor
After Wolf the main reason for the exclusionary rule is deterrence. What would deter people though?
We don’t know who all it applies to though. Some lower courts had decided that they shouldn’t adopt the exclusionary rule, this was at least the situation
during Wolf, the concepts changed though leading up to Mapp. The states had adopted Weeks and the theories had changed.
There was another case where cops busted into someone’s house and saw some drugs that the guy ingested. They made him throw it up but Frankfurter
said that “shocked the conscience”.
Mapp v. Ohio (1961)
14A FULLY INCORPORATES 4A, INCLUDING EXCL. RULE à OVERRULES WOLF
Facts
3 police officers arrive at a suspected bomber’s residence pursuant to information that he may be there. Officers knocked on door and
demanded entrance. Appellant denied w/o search warrant. 3 hrs later again demanded entry. Miss Mapp did not get to a door fast
enough, and at least one door was knocked down. They presented a paper, claiming it to be a warrant, which she grabbed and put down
her shirt. Officers retrieved the paper, and handcuffed woman. Taken forcibly upstairs to bedroom, where the officers searched a dresser,
a chest of drawers, a closet, some suitcases, and a trunk. Found obscene literature in course of search. Obscene had to be patently
offensive to social values. At trial, no search warrant supplied to Court. Stotzky thinks that the cops made up the evidence. They
claimed that they showed the warrant, but it was never produced in court.
Issue
Holding
The evidence is excluded as the court states that the considerations relied upon in Wolf are no longer controlling because most
states have adopted some version of the exclusionary rule since the opinion. A state prosecutor across the street should not be
permitted to do what a Fed. Prosecutor could not. Nothing will destroy a government faster than its refusal to obey its own laws.
Applies Exclusionary rule to entire federal government. The dissent by Harlan and Frankfurter presents a FF argument that if it is not
Const. required, then the states should be free to do whatever they like so long as liberty is not infringed upon.
*14A fully incorporates all aspects of 4A, including exclusionary rule*
4th and 5th Am protect the same interest – protects from invasion of privacy. “Right to be left alone.” This overruled Wolf, it is unusual
for the court to do that. How can they change this since states are sovereign. They questioned the factual bounds upon which Wolf was
decided. Other remedies had been proved ineffective since Weeks. How could you determine if deterrence works? It depends upon what
you mean by deterrence. The Fourth Amendment doesn’t mention deterrence or who should be deterred so the court just has to determine
this stuff on its own. The exclusionary rule protects judicial integrity.
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§
RULE
What about standing? The standing rules of the Fourth amendment had been expanded. There had been a method created to
prevent the “reverse silver platter doctrine.”
§ Clark thought that nothing could destroy the government faster than the government not following its own rules.
Government should not be able to profit from its own law breaking. He cited Olmstead v. U.S.
§ Silver platter doctrine is no longer valid, we have ways to go after federal people who violate laws.
§ Why is the Exclusionary Rule the only way to protect the process? There is an idea that it is a substantive right.
§ Falls in the middle of the crime control model in due process model.
Exclusionary Rule applied to states, protecting both judicial integrity and giving citizens a remedy when their right to be left alone is
violated.
Problems administering Mapp rule:
§ How to define when a search and seizure occurs? Federal or State Standards?
§ Whether or not private parties can submit evidence into court?
Dissent: Harlan, Frankfurter, Whittaker: Harlan says that this infringes upon states rights. Based on Federalism that states can experiment with
different ideas that could be adopted nationwide.
Doesn’t think that the 4th and 5th Amendments work together.
The fourth he believes deals with police officials, and he 5th deals with the right against self incrimination. Stotzky says that both arguments work
together.
Analysis: The civil suits and criminal prosecution of police that was suggested in Wolf did not work so that is why Wolf was overruled.
What about other ways of deterrence as opposed to the Exclusionary Rule? Frankfurter would say that is the best, to let states come up with another way.
Compensationg victims, punishing police officers, etc. He says that is up to the states to decide how to implement it. Frankfurter would say that the
Exclusionary Rule is not in the Constitution.
Wolf is overruled- state remedies are not sufficient.
Judicial Integrity must prevail- if some guilty people have to be let off to protect the integrity of the system so be it.
Hypo! What if there is a state statute that says that in order to search as safe deposit box there has to be a hearing, etc. What if that was violated and the
evidence was to be introduced in a Federal trial?
The question to ask is whether the state law created a constitutional right. Would have to be a federal standard. State standards have to be at least as
high as the Constitutional standards but they can’t be lower.
Has what has happened met the constitutional standard? If so does the state have their own constititional standard, if so then have to see if that was met?
Federal stuff is mostly criminal.
Hypo! What about a privacy issue? What if the airlines require you to do something? What if someone wants his bag back on a plane and they open it
up to see that it is his and find drugs? Would that be admissible?
Yes, because it is private action. Think of airports, there are state, and federal police in airports. This is a good question.
What if he was searched by police to prove the bag was his? Who knows
What about when the dogs walk around and smell something, is that a search? Not according to the cases.
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Hypo! There are three people who are involved in a tax scam. One of them steals the records and goes to the police with an offer to cut a deal in return
for the evidence. Is that admissible? The act of taking the evidence is not violating law, but the act of admitting it could be illegal.
Hypo! let’s say that the Godfather is testifying in front of Congress and they hold him in contempt and search him where they find evidence of a crime?
Should that be admissible?
Hypo! He had a friend who hadn’t filed or paid taxes in 15 years. He came to him asking what to do. The guy owed millions of dollars in taxes. The
officials had broken into his office without a warrant and seized his records. He didn’t know if they could use the records.
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8. DIMENSIONS OF THE EXCLUSIONARY RULE & EXCEPTIONS
Dimensions of the Rule
United States v. Caladra (1974)
No application of Exclusionary Rule to Grand jury testimony. Witness may not refuse to answer questions on the grounds that they are based on
evidence obtained from him in an earlier unlawful search. Any use of the evidence at a grand jury hearing would be negated by the fact that the evidence
would not be admissible at a subsequent criminal trial.
Verdugo v. US (9th Cir. 1968)
The Exclusion Rule does not apply to const. violations overseas because people overseas are not protected by the const.
à Later case, US v. Schipani (2nd Cir 1970) confined Verdugo to its facts.
Pennsylvania Bd. of Probation and Parole v. Scott (1998)
Facts
Parole officers made an illegal search of parolee Scott’s residence and found weapons there, which were later admitted at his parole
revocation hearing, resulting in Scott being recommitted to serve 36 months. Parole officers are not know to violate the law is the rationale
and if they do they can be fired.
Issue
Holding *Majority per Thomas* à Exclusionary rule not applied to parole meetings. The court ruled that the evidence was admissible and that the
exclusionary rule does not apply to parole meetings because a parole officer is more of a civil operator. Ct. declines to extend the rule beyond
the criminal trial context.
*Dissent* (Souter) à He thought evidence should be excluded because the standard for recommitting people is easier than getting a new
trial. Thinks it should apply to parole officers because of the close nexus between parole officers and police officers.
RULE Parole hearings are exempt from the 4A exclusionary rule!!
One 1958 Plymouth Sedan v. Pennsylvania (1965)
Unanimous court applied the exclusionary rule to forfeiture proceedings.
United States v. Janis (1976)
LA police seized wagering records and cash pursuant to a warrant, then notified IRS, which made an assessment for wagering taxes and levied it on
seized cash.
Court per Blackmun: Allowable. The court refused to apply the exclusionary rule to cash and wagering records seized and reported to the IRS, and
used in prosecution for tax evasion. The court said that interest in a civil matter falls outside of the offending officers primary zone of interest and that
the deterrent effect of exclusion in this case would be minimal.
INS v. Lopez-Mendoza (1984)
O’Connor held the Exclusionary rule inapplicable in a civil deportation hearing through a cost/benefit(deterrence) analysis, the rule is unlikely to serve
any real benefit and may actually harm the proceedings because most hearing officers and immigration lawyers are not well versed in 4th Amendment
23
jurisprudence. Dissent states that this case is distinguishable from Janis above because here the action does fall within the officer’s primary zone of
interest.
Good-Faith Exception
Rationales
1) The Exclusionary Rule is not required by the Fourth Amendment.
2) The sole function of the Exclusionary Rule is to protect Fourth Amendment rights by deterring police misconduct.
*there are two major reliance types: (1) search warrant, and (2) arrest warrant à handled with different case lines*
(1) Reliance on Search Warrant
United States v. Leon (1984)
CREATES GOOD-FAITH EXCEPTION
Facts
Officer obtained a warrant later found to not have P/C, though acted in reasonable reliance to a search warrant by a detached and neutral
magistrate. Not applicable to judges. The reason there was no probable cause was because the informant didn’t meet the “credible and
reliable” standard that was applicable at the time. To be credible he has to have seen the crime himself. To be reliable he had to have
provided accurate information in the past. Hearsay is no good, this was hearsay upon hearsay. The cops had found a bunch of drugs on
the basis of this warrant that was not based on proper probable cause. Cops had done what they were supposed to have done by going to
a magistrate to get a warrant. The Justice said that the Exclusionary Rule is not a constitutional requirement.
Holding
Evidence is admissible.
Cost/Benefit Analysis:
• Substantial Social Costs: Some guilty defendants could go free or get lesser sentences
• Minor Benefits:
1) Magistrate misconduct: not deterred because neutral; “not adjuncts to the law enforcement team”; no stake in the outcome of
criminal prosecutions
2) Cop misconduct: not deterred because acting on “objectively reasonable belief” that conduct didn’t violate Fourth
Amendment; in the case of a defective warrant, it’s the magistrate’s fault, not the cop’s
RULE
Is that a cost created by the rule or by the 4th Amendment. White says it isn’t as valuable, he says it is more important to make
sure that people are convicted not that their rights are protect. Brennan says that rights are more important. Footnote on page
226. The exclusionary rule was not intended have a deterrent effect on judges, so if the police act in good faith the evidence
should be admitted. A total exclusion rule would be too severe.
“Suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an
objectively reasonable belief in the existence of probable cause.”
POLICY
STOTZKY
Deterrence: They never really defined what it is. So we don’t know if it works. What about for judges and magistrates. Justice White says that the 4th
Amendment isn’t to protect against judge abuse. White thinks that excluding evidence will breed disrespect for the law.
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Magistrates: Sometimes are rubber-stampers. White says that we should trust the magistrates and that is why we should have a “good faith exception”
to the exclusionary clause. What is the remedy of a magistrate abusing power? They can be removed from their position.
“In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest
or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.”
When White says it can excluded: When affidavit is false, when judge is not impartial, when officers could not act in an objectively reasonably
manner
Dissent: Brennan: Police will only fill out “barebones” requests because they will get a warrant unless it is “entirely unreasonable”. He thinks that to
protect rights is more important. If you want to get rid of the exclusionary rule, what other remedy can you get. Brennan says that cops will be educated
better if they know that screw ups will mean evidence will be excluded.
The empirical evidence is lacking about the cost of the rule.
What does deterrence mean? If it stops people from doing something then is that good? Brennan would say yes, but White would say no.
Balancing test: In this case they have a warrant. Judges are detached parties who can look at the evidence objectively. It isn’t up to the cops, it
presumes that the magistrates are competent and will take the time necessary to weigh the evidence. What are the standards of affidavits? They aren’t
too high and sometimes the judges will be rubber stamping. The court says that there aren’t rubber stampers. The court only looks at the evidence.
Sometimes prosecutors help the cops make up evidence.
Exceptions to the Exception:
1) False or reckless affidavit/ facially defective warrant: (Facially deficient warrant that the executing officers cannot assume to be valid.)
• Groh v. Ramirez (On warrant, agent Groh mistakenly omitted the exact items sought/location of items (though he correctly listed the items
on the application itself). Search was "unreasonable" under the Fourth Amendment even though magistrate approved the warrant; warrant
was invalid because it did not meet the Fourth Amendment requirement that a warrant “particularly” describe the persons or things to be
seized).
o Clerical Error but evidence not allowed to be admitted because “good faith” not present. Warrant was so facially deficient. The
items to be seized were placed under the line “place to be searched”. Could make officers be more careful.
o Stevens takes the rule and limits the Leon decision.
• But see Massachusetts v. Sheppard: (Cops prepared adequate affidavit w/ probable cause to get evidence in connection w/ a murder but
application was made on Sunday so couldn’t find the right type of warrant—only one for drug search. Magistrate said it’s fine I’ll fix it
later/amend the warrant later. Warrant therefore didn’t list w/ particularity things to be seized but Court said cops’ reliance on warrant was
objectively reasonable and within the good faith exception b/c mag told them he’d fix it to reflect murder evidence not narcotics) Plain view
doctrine: If you have a right to be there, then you can seize evidence.
o NOTE: Stotzky doesn’t like this; he’d take a judicial integrity approach that 4A applies to whole gov’t (congress, judiciary, etc.);
Deterrence shouldn’t be applied only to cops, but to everyone involved in criminal system; gov’t shouldn’t profit from its own
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lawless behavior; Stotzky would make rule much more applicable for deterrence purposes than not; if we exclude magistrates from
the rule, we’re telling them that whatever they do doesn’t matter so they won’t do their job or take it seriously
o Extends Good Faith Exception of Leon, for there was a reasonable mistaken belief that the warrant authorized the search they
conducted.
2) Brennan and Marshall’s Dissent: 4th Amendment extends to all government actors. He says it is in the Constitution. “Rubber- stamping”
magistrate: magistrate “wholly abandon[s] his judicial role”; fails to take “neutral and detached” stance; instead becomes part of the
investigation; can’t help cops execute the search warrant; can’t be non-neutral. Evidence that judge never denies warrants. (“not a problem of
major proportions”) / when judge abandons his judicial role as a neutral and detached magistrate [Citing Lo-Ji Sales, Inc v. NY (1979)(where
magistrate accompanied police and told them on the scene what evidence to take)]
3) Lacking probable cause: underlying affidavit or warrant obviously lacks PC; “so lacking in indicia of PC as to render official belief in its
existence entirely unreasonable”; unreasonable for an officer to rely on the resulting warrant (Stotzky’s point that the executing officer should
read the warrant and know it’s unreasonable) 1) No substantial basis to issue warrant, no Probable Cause “as to render official belief in its
existence entirely unreasonable”
EX: merely states in a conclusory fashion that police have PC to believe there’s evidence of a particular crime at a particular place and does not
supply any of the facts on which that belief is based
(2) Reliance on Arrest Warrant
Arizona v. Evans (1995)
ADMIN. FUNCTIONS NOT PART OF EX. RULE
Background: clerical court/judicial error with arrest warrant. Evans stopped for traffic violation. Patrol car computer indicated that he had an
outstanding arrest warrant, so Evans arrested. Incident to arrest, officer found marijuana. Later, learned that warrant had been quashed a few weeks
earlier, but the court clerk had not followed procedure of notifying the sheriff’s dept. to remove warrant from the computer.
Outcome: Good faith exception extended; evidence admitted. Administrative functions not part of the Exclusionary Rule, just officers. Would not alter
behavior of officer in situation.
Rationale: Judicial error here, so unlikely deterrence
Concurrence: O’Connor (Souter & Breyer): Unreasonable for police to rely on a recording system that is unreliable.
Dissent: Ginsburg (Stevens): Respondeat Superior – make managers monitor performance. Thinks that exclusionary rule should be applicable to civil
as well as criminal authorities.
Herring v. United States (2009)
DOES NOT APPLY TO ERRORS ARISING FROM “NONRECURRING AND ATTENUATED NEGLIGENCE”
Facts
Police department error with arrest warrant. Upon searching Herring's vehicle, officers discovered methamphetamine in Herring's pocket
and a gun under the seat of his truck. However, the situation was complicated by the fact that the initial search had been made on a faulty
arrest warrant. The warrant, still active in the neighboring Dale County Sheriff's Office, was supposed to have been recalled five months
prior, however someone had accidentally failed to remove it from the computer system. Herring filed a motion to suppress the allegedly
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Issue
Holding
RULE
"illegally obtained" evidence, however the U.S. District Court for the Middle District of Alabama denied Herring's motion and sentenced
him to 27 months in prison.
Does a court violate the Fourth Amendment rights of a criminal defendant by introducing evidence obtained through a police search
based on an arrest warrant that should have been recalled, but was negligently allowed to remain active, at the time of the search?
No. In a 5-4 decision with Chief Justice John G. Roberts writing for the majority and joined by Justice Antonin G. Scalia, Justice Anthony
M. Kennedy, Justice Clarence Thomas and Justice Samuel A. Alito Jr., the Supreme Court affirmed the U.S. Court of Appeals for the
Eleventh Circuit. It held that a criminal defendant's Fourth Amendment rights are not violated when police mistakes that lead to unlawful
searches are merely the result of isolated negligence and "not systematic error or reckless disregard of constitutional requirements."
Evidence obtained under these circumstances is admissible and not subject to the exclusionary rule.
Justice Ruth Bader Ginsburg dissented and was joined by Justice John Paul Stevens, Justice David H. Souter, and Justice Stephen G.
Breyer. Justice Ginsburg argued that an intact exclusionary rule provides a strong incentive for police compliance with respect to
the Fourth Amendment and its erosion in this case was not warranted. Justice Breyer also filed a separate dissenting opinion and
was joined by Justice Souter. He argued that the Court should move away from its reliance on analyzing the degree of police
culpability when determining whether the exclusionary rule applies, but rather draw a bright line between errors made by record
keepers and those made by police officers.
Exclusionary Rule is meant to deter “deliberate, reckless, or grossly negligent conduct, or in some instances, recurring or systemic
negligence.”
Knock-and-Announce (KNA) Exception
Knock and Announce Rule command of the 4th. Exception = need only a “reasonable suspicion under the circumstances.” Exceptions when:
o Circumstances present a threat of physical violence
• Reason to believe that evidence would likely be destroyed if advance notice were given.
Reasonable test to open door: How long it would take to destroy the evidence
§ Futile- the person wont go to the door
Fourth Amendment violation, the question is whether the evidence can be introduced. Historically the home is you private place so you should be able to
have the opportunity to get dressed, etc.
Hudson v. Michigan (2006)
RULE DOES NOT APPLY TO KNA VIOLATIONS
Background: Officers usually required by Fourth Amendment to “knock and announce” before entering home to execute warrant and wait a reasonable
amount of time for occupant to answer. See Wilson v. Arkansas (follows Fourth Amendment’s protection of “unreasonable” searches and seizures).
Facts: Cops came to D’s house with search warrant. They knocked and announced but didn’t wait long enough for occupant to answer before forcing
entry. Inside they found contraband. D argued fruits should be excluded due to cop’s violation of knock & announce rule. Police entered Hudson’s (D)
home just seconds after knocking and announcing their presence, and Hudson (D) moved to suppress the evidence discovered in the resulting search.
Rule: Exclusionary Rule does not apply to knock & announce violations. “Suppression of evidence has always been our last resort, not our first impulse.
The exclusionary rule generates ‘substantial social costs, which sometimes include setting the guilty free and the dangerous at large.
It hasn’t been applied except where its deterrence benefits outweigh its substantial social costs.
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Rationale: Exclusionary Rule applies only “where its deterrence benefits outweigh its "substantial social costs.’” “The social costs of applying the
exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrence
against them are substantial.”
• High costs: constant flood of litigation to contest whether officers violated K&A rule
• Small benefits:
o low deterrence to cops: Scalia mentions the fact that professionalism and accountability within police forces is getting better/we can
expect them to be trained not to violate K&A within their own departments’ disciplinary scheme
o other remedies available: § 1983 civil suit (you can bring civil damage suit against cops for violating rights under color of state law;
Scalia thinks this suit possibility would deter cops enough that we don’t need ER here)
§ NOTE that Stotzky says this is a really tough suit to bring and can’t really get a lot of attorney’s fees—hard to find a lawyer
willing to even go for this so unlikely that this action is really “available”
• Dissent: Excluding evidence would be a good deterrent for knock and announce violations. Breyer says that in no state have civil suits been
proven to protect rights. He tries to counter every argument that Scalia makes, Stotzky thinks that is good.
§ What do we think about this? The Constitution doesn’t speak to all of this so the judges interpret the broad elements to see that
it covers modern issues.
Michigan v. DeFillippo (1979)
Court: affirmed earlier decisions that “the exclusionary rule required suppression of evidence obtained in searches carried out pursuant to statutes”
subsequently held to be unconstitutional because the stat “by their own terms, authorized searches under circumstances which did not satisfy the
traditional warrant and p/c req of the 4th Am.”
Illinois v. Krull (1987)
CONTRARY (5/4) DECISION TO DEFILLIPPO, AFTER LEON.
Facts: Unconstitutional search made pursuant to a statute authorizing warrantless inspection of the records of licensed motor vehicle and vehicular
parts. There was legislation that said records of licensed auto parts shops could be searched without a warrant. Some of these were chop shops.
Court per Blackmun:Applying exclusionary rule here will not act as a deterrent to legislature (just as applying exclusionary rule in Leon would not
deter judicial action). Does not apply to legislature. Only to apply to police officer apparently. The only remedy to legislators
is to vote them out of office.
Dissent: O’Connor: Should be excluded because legislators are affected by politics. “Legislators by virtue of their political role are more often
subjected to the political pressures that may threaten Fourth Amendment values than are judicial officers.”
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9. PROTECTED AREAS & INTERESTS
Reasonable Expectation of Privacy
Justice Harlan: Two part. He later regretted this. It is a subjective expectation of privacy. This can change with whoever is on the court at the time.
What is important about the area? It matters. Think of an enclosed telephone booth versus a park bench? What about a flashlight versus a parabolic
microphone.
What about the type of information is protected as opposed to the places that are protected? This is tough. He asked if imminations from a wristwatch
are protected.
Should you look at the amount of precautions that an individual takes to protect his privacy?
Hypo! What if a cop followed a drug dealer to a hotel and booked the room next to him. If he put a cup next to it and listened in, is this too much?
How would you determine a societal reasonable expectation of privacy? It is tough to figure out. What about the concept that police have a right to be
there if the general public has a right to be there.
Issue in Almost Every Case:
Fear of drugs
What kind of society do we want, and how to use the constitution to get it
Look at life as having a matter of privacy.
4th Am method of jurisprudence:
1) Examine what happened historically under C/L
2) If no answer, then balance the degree to which it intrudes upon an individual’s privacy and the degree to which it is needed for the promotion
of legitimate governmental interests.
Introduction to Doctrine
Katz v. United States (1967)
TELEPHONE BOOTH CASE à REASONABLE EXPECTATION OF PRIVACY
Facts: Katz conversations recorded in a public telephone booth placing bets from CA to Miami and Boston, against fed stat.
Court Per Stewart:
4th Am protects privacy if there is a reasonable expectation of privacy, regardless of whether a physical trespass occurs. Here, an
illegal search and seizure due to gov’t violation of Katz expectation of privacy. The question is whether there can be illegal
search and seizure when there is no physical invasion. People are protected, not places so there does not have to be a physical
invasion of privacy. Electronic wiretapping is a “search and seizure” that requires a warrant. If someone doesn’t try to protected
it then it isn’t protected.
Issues on Cert: Whether a telephone booth is constitutionally protected as a private place. Two, whether physical penetration of a constitutionally
protected area is necessary before a search and seizure can be said to be violative of the Fourth Amendment to the U.S.
Constitution. The court then didn’t address this. It said that the test is privacy.
Concurrence: Harlan: Creates test, which he later repudiates, wishing he never said it:
§ “There is a twofold requirement”
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1) Subjective expectation of Privacy. He didn’t want it to be so subjective. Nature of area. He said that he wished he didn’t create it. This
doesn’t protect 4th Amendment rights.
2) [Objective] The expectation be one that society is prepared to recognize as ‘reasonable’. The justices decide what “society” would think
is reasonable.
Dissent: Black:
Eavesdropping not a search. Known by Framers, if intended, would have placed those words into Am. “They certainly would
not have left such a task to the ingenuity f language stretching judges.”
Katz was meant to protect people but it has been used to limit your expectation of privacy
Katz Rule:
• That a person have exhibited an actual subjective expectation of privacy & that the expectation be one that society is prepared to recognize
as “reasonable”
Stotzky TEST: What do you have to show in Katz that help you make arguments about future cases.
Physically enclosed places
Exclusive Use of the area/activity
Degree to which society honors the act that takes place there.
Hypo! Think of two druggies exchanging drugs in Central Park at 3am under a tree. A cop walks by and shines a flashlight on them. A flashlight
enhances his senses but it isn’t reasonable that they would expect privacy.
Hypo! Say police impersonated Katz’s bookie? Can they use incriminating information?
Questions: Is it a search? Is it a seizure? Is it reasonable?
What is to be protected? Information or places?
Fourth Amendment interests: Privacy not only thing protected, unreasonable seizure also protected because property rights are protected.
What if some guys stayed at the Biltmore and then robbed a bank? The police went and searched the room, can they used the info? Stotzky says the info
would be suppressed because it is an intentional violation of evidence. What is the test for this?
§
How might we know if society finds the expectation of privacy reasonable?
§ Physical Enclosures.
§ Degree to which society honors action taking place? Nature of Activity – Society honors if it is intimate
§ Type and degree of intrusion: How to distinguish activities? How far to take technological advances (the more technological, the more privacy
expected)?
§ Highly regulated activity? (Driving)
§ Mobility (“unsure why, but mobility makes car less private” [S])
§ What if Fed on the phone with Katz?
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§
§
What not to be alert for?
Person’s right of exclusive use.
California v. Greenwood (1988)
PRIVACY IN GARBAGE/ PUBLIC EXPOSURE
Based this decision on Katz, “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment
protection.”
Facts: Detective received info that Respondent might be engaged in drug trafficking. Asked trash-collector to pick up Respondent’s Bags and turn
them over to her without mixing it with any other garbage – which was done. The bags contained trash indicative of narcotic use. The detective
used the info to get a search warrant for the Respondent’s home. Cocaine and hashish discovered. Respondents arrested, and posted bail. Later,
another detective followed the same procedure as the first, with the same results. A local ordinance required Greenwood to put it out by the
street.
Court Per White:
The warrantless search and seizure of the garbage bags left at the curb outside the Greenwood house would violate the 4th Am
only if respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable.
No reasonable expectation of privacy in garbage when placed outside. Because other people could get into it then it isn’t
protected.
Dissent: Brennan (Marshall): Stat. allows only city officials to touch garbage, ensuring an exp of privacy. Following County ordinance, and
prohibited from disposing of trash any other way. Trash “a common repository for one’s personal effects.” A lot can be
learned from someone’s trash.
It is supposed to be people not places that are protected but we are saying that in certain places people are not protected.
Soldal v. Cook County
Police disconnected a mobile home from utilities at landlord’s request. That was a seizure.
US v. Scott (1st Cir. 1992):
Facts: IRS agents reassembled shredded (5/32-inch) documents, which was placed in the garbage.
Court: Applies Greenwood even if defendant resorted to extraordinary means to hide info in garbage. Not protected.
Detention Facilities
Hudson v. Palmer (1984)
Facts: Prison inmate brings a §1983 action, claiming a guard conducted a ‘shakedown’ search of his cell and had destroyed non-contraband items for
purposes of harassment.
Court per Burger, CJ (5/4): The 4th Am has no applicability to a prison cell. Balance interests of society in the security of its penal institutions
outweighs the right to privacy in a prisoner.
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Open Fields vs. Curtilage
Hester v. US (1924)
Facts: Police entry and examination of a field is free of any 4th Am restraints
Court per Holmes:
Strict reading of the 4th Am: “The special protection accorded by the 4th Am to the people in their “persons, houses, papers, and
effect,” is not extended to the open fields. The distinction between the latter and the house is as old as the common law.”
Oliver v. US (1984)
Facts: Police searching field for marijuana. Petitioners erected fences and placed no trespassing signs.
Court per Powell:
Hester had not been implicitly overruled by Katz. (CL = no privacy in an open field. Katz = privacy everywhere you go.
Reconciled here). No reasonable expectation of privacy that society will accept in open fields.
Open fields: “police entry and examination of a field is free from any Fourth Amendment restraints, had not been implicitly overruled by Katz.” “The
asserted expectation of privacy in open fields is not an expectation that “society recognizes as reasonable.” This is pretty subjective. Test of
legitimate privacy is not what someone chooses to conceal but whether intrusion infringes upon the personal and societal values protected by the
Fourth Amendment.”
Curtilage is protected, not open fields.: “curtilage is the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the
privacies of life, and therefore has been considered part of the home itself for Fourth Amendment purposes.” There are four factors. Look at
footnote e on 260.
Dissent: Marshall: Private land that is fenced (marked in a fashion sufficient to render entry thereon criminal trespass is protected by the Fourth
Amendment.”
US v. Dunn (1987)
BARN NOT PART OF CURTILAGE.
§ Lists 4 factors for curtilage questions:
1) The proximity of the area claimed to be curtilage to the home
2) Whether the area is included within an enclosure surrounding the home
3) The nature of the uses to which the area is put
4) The steps taken by the resident to protect the area from observation by people passing by
Open Fields vs. Curtilage, Re: airplanes and Helicopters
California v. Ciraolo (1986)
Held that the police were not required by the 4th Am to obtain a warrant before conducting surveillance of the respondent’s fenced backyard from a
private plane flying 1000 ft above ground.
Think of intimate activities as being the test for a search.
Florida v. Riley (1989)
Facts: Surveillance of the interior of a partially covered greenhouse in a residential backyard from the vantage point of a helicopter located 400 ft above
the greenhouse.
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400 ft is an FAA standard. Anyone can do the same, therefore cannot have an expectation of privacy. No violation of 4th
amendment.
Concurrence: O’Connor:
Lower than 400 ft may be rare enough that police surveillance form such altitudes would violate reasonable expectations
of privacy.
Dissent:
Brennan (Marshall, Stevens): Officer’s view not one which any person can take:
done with sophisticated and expensive piece of machinery.
Blackmun:
Majority uses wrong test: not if allowed to fly 400 ft but how many times helicopters fly that low.
Court per White:
Vehicles
•
Cardwell v. Lewis: paint scraping off of a car in a public parking lot not an illegal search and tire tread sample not either.
•
New York v. Class
o Officer reached inside car to move papers obstructing VIN was a search
The ‘Canine Sniff’
US v. Place (1983)
Facts: Dog Sniffs luggage
Court: A ‘canine sniff’ by a narcotics detection dog does not require opening the luggage. The sniff discloses only the presence or absence of narcotics,
a contraband item, therefore less intrusive. Less intrusive and info received extremely limited, therefore no search. There is an argument that the
4th Amendment is intended to protect the innocent. Sui Generis means one of a kind. But in reality there are machines that can do this.
Illinois v. Caballes (2005)
Place reaffirmed and applied to a dog sniff of a vehicle during a traffic stop. Guy going 71 in a 65. Drug people heard it on the scanner and came. Dogs
reaction could provide probable cause to justify a search. Dogs sniffs are not searches. It was ok because it did not infringe respondent’s
constitionally protected interest in privacy. It did not in this case.
Justice Souter dissented and said that sniffs tests should not be allowed because they reveal information about the contents of private spaces as did
thermal imaging in Kyllo.
What can you do? They can stop the car, run the plates, question you, ask all kinds of stuff, and according to this they can also bring a dog which is not a
search.
Stotzky: why should cops have the power to stop you for a traffic offense and extend that to a search for other things.
Stotzky: People with real power tend to abuse it.
Holmes: The Constitution is not a suicide pact. That means that sometimes it doesn’t have to be enforced.
Florida v. Jardines (2013)
•
Facts: Received anonymous tip that he was growing marijuana so a month later they brought a drug sniffing dog. Walked to front door (in the
curtilage of the house) and dog sat down.
•
Held: Court said dog sniff in this instance is a search
33
•
•
•
What test does Scalia use to determine if a dog sniff is a search?
Is it a trespass/ does it invade a constitutionally protected area without cause?
Police conducted search when police entered walkway with a dog.
Kagan- says reasonable expectation test of privacy would be good here
Sliding scale test and a slippery slope test
Aka do you have a reasonable expectation of privacy to not have a drug sniffing dog show up on your porch?
Basic issues: What is a search and what is a seizure.
US v. Jacobsen (1984)
Facts: FedEx employees opened a damaged box and found a tube, which, was found to contain plastic bags of white powder. Fed drug agents were
summoned. The FedEx employees placed the bags back into the box, but left the box open. A Fed agent reopened the package to expose the
white powder, which he fielded tested and found to be cocaine.
Court per Stevens:
Where police lawfully came upon a white powder in a package originally opened by private parties, no expectation of privacy.
Dissent: Brennan (Marshall): Extending Exclusionary rule too far. The rationale is bad because if taken to the extreme it supports idea that police
could have cocaine dogs roaming the streets or use equipment that could detect cocaine inside buildings.
Stotzky: Should the contents affect you expectation of privacy? Seems like it does.
The court says that testing these drugs is sui generis: one of a kind, so it is ok to do, like the dogs.
34
10. MOVEMENTS & LOCATIONS
GPS Tracking
US v. Knotts (1983)
Facts: Police installed a radio transmitter into a container of chloroform – a chemical used to make illicit drugs – prior to its purchase by the suspect.
Combination visual surveillance and monitoring of the beeper signal led police to a cabin in a rural area. On that evidence, and other
information obtained during surveillance of those premises, a search warrant for the cabin was issued, and an illicit drug lab was discovered
within.
Ct per Rehnquist:
Use of the beeper as precaution, and not reliance, not constitute a 4th Am search. Reason it wasn’t a violation was because info
could have been found from other sources.
US v. Karo (1984)
Facts: Detection of a can of ether in the home
Ct per White: Ct called upon to address 2 unresolved issues in Knotts:
1) The transfer of the can containing an unmonitored beeper infringed no privacy interest because it conveyed no information that the
recipient wished to keep private, for it conveyed no information at all therefore no search, nor a seizure.
2) Violation of 4th Am for gov’t to monitor information through beeper that it could not have been obtained through visual surveillance
Need Warrant, describing: the object into which the beeper is placed, the circumstances leading agents to wish to install the beeper, and
the length of time for which beeper surveillance is requested.
Dissent: Stevens (Brennan, Marshall):
Objecting to the answer to issue 1: by attaching the beeper and using the container to conceal it, the
Gov’t asserted ‘dominion and control’ over the property which is a ‘seizure’.
US v. Jones (2012)
Facts: owner of club was the one with gps on jeep. The warrant given to do in 10 days in D.C. BUT did in on the 11th day in Maryland.
Court:
• Scalia- example of his originalist interpretive views:
o Gov has to physically occupy property to obtain info
o When 4A was adopted we would have no doubt they would find this a search
o Text of 4A is directly related to property, persons, places, effects.
o Asks what the founders would have thought in that instance and give as much protection as they would’ve done when the constitution
was filed
o Has to be property interest that gov intruded on
§ Katz changed this- privacy interest on which you justifiably rely and that society accepts.
• Alito Concurrence- completely disagrees with Scalia’s property-based theory
o Says Scalia’s opinion is unwise and strains language of 4A and is highly artificial
o Trespass is the wrong test
o Saying originalist stuff cant apply when we have a completely diff society.
35
Argues that trespass is neither necessary nor sufficient for 4A violation
Admits that property approach can be PART of the test as to whether one has reasonable expectations of privacy
Says Scalia’s approach disregards most imp issue -use of GPS device for long-term tracking purposes
Says Not a search if just attached to bottom of car. Short term monitoring not a search either
If follow Scalia’s view:
§ Trespass laws are diff in every state so some states constitutional while others not constitutional—varying views.
Sotomayor concurring- mixture of the two:
o Scalia’s test would violate 4A but would also violate 4A under reasonable expectation of privacy test
o Qs about Scalia’s theory
§ Physical intrusion is not necessary bc doesn’t apply to many forms of surveillance today. Gov can monitor without any physical
invasion now.
§ Scalia’s test doesn’t protect us in these circumstances
o Agrees with Alito that longer term GPS tracking violates 4A
o Shorter term monitoring
o List of 4A being able to prevail:
§ Trips to plastic surgeon, psychiatrist, strip club, union meeting, church, etc. can store these records for long periods of time and
aggregate and then mine them for info.
§ Not helpful for democratic society
o Attacks the issue of whether voluntarily turning over info to a 3rd party waives your right to the protection of that info.
§ Individual has no expectation of privacy in info voluntarily exposed to 3rd parties
The government’s installation of a GPS tracking device on a vehicle, and the use of the device to monitor the vehicle’s movements, constituted a
physical intrusion into a constitutionally protected area (i.e., it was a trespass as to the vehicle) and, as such, was a search governed by the Fourth
Amendment.
o
o
o
o
o
•
•
Effects
Luggage
Bond v. US (2000)
Facts: During lawful stop, fed agents walked onto bus and squeezed soft bags placed in overhead compartment. Agent noticed one bag contained a
brick-like object. Passanger admitted bag was his and allowed agent to open it, revealing a brick of methamphetamine.
Ct. per Rehnquist:
Physical manipulation of the bag violated 4th Am, due to higher expectation of privacy in carry-on luggage.
Dissent: Breyer (Scalia):
Agents actions may be done by anyone and this decision will complicate already complex 4th Am jurisprudence.
Bond v. United States
Carryon bags somewhat protected. Officer felt a soft bag and noticed a brick like shape and it was methanphetamine, this was a search even though on a
Greyhound bus. “Agent’s physical manipulation of petitioner’s bag violated the Fourth Amendment.
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Dow Chemical Co. v. US (1986)
Facts: EPA wished to inspect premises, but Co. refused. EPA could not see from the ground, so took to the air, without getting a warrant to do so. Co.
files motion to suppress: violation of privacy; security from protestors and espionage (Violates Trade Secret Laws) would be protected. Factory
is more comparable to an open field than it is to curtilage.
Court per Burger, CJ:
Aerial Photography not an invasion of privacy b/c cameras are available to anyone. Not superspecialized equipment.
If it had been satellite photography or something like that it is possible that it would be unconstitutional.
Dissent: Powell:
Dow had a reasonable expectation of privacy in its commercial facility in the sense required by the 4th Am. Said that camera
was in fact highly specialized. Members of the public not likely to purchase $22,000 cameras.
Other types of detection:
Enclosed space detection. Heartbeat detectors: Doesn’t say if it is a “search”
Facial character recognition: Was used at the Super Bowl. Is this different than a cop walking around with a mug-shot?
Gas chromatography: This is like an electronic canine.
Passive Alcohol sensor: Used to analyze a driver’s breath without their consent. Is this like the dog sniffer?
th
Thermal Imaging
US v. Cusumano (10 Cir 1995)
Court: Device translates thermal records into intelligible information about the activities that generate the observed heat
§ Analogized to Katz: “Alternatively, it might be said that the bug passively recorded the propagation of waste vibrational energy into the public
sphere.”
US v. Kyllo (2001)
Facts: Agent tracking indoor marijuana growth. Used thermal imager at 3:20AM to scan triplex. Results of scan let to conclusion that petitioner was
using halide lights to grow marijuana. Based on informants, utility bills, and the image, judge issued a warrant.
Ct per Scalia: Obtaining any information by sense-enhancing technology regarding the interior of the home that could not otherwise be obtained
without physical intrusion into a ‘constitutionally protected area’ constitutes a search, at least when the technology is not in general use.
§ Firm and bright line at the entrance to the house.
Dissent: Stevens (Rehnquist, O’Connor, Kennedy):
‘Through the wall’ (Active) / ‘off the wall’ (passive) categories employed. Says that any
passerby could notice heat differences. Dissent says that threat of privacy will grow as relevant
technology is in “general public use.” This decision is not one of judicial restraint as viewed by
dissent.
Cites Place: “follows that sense-enhancing equipment that identifies nothing but illegal activity is not a search either.
What limits are there on guarantees of privacy? This has to do with common equipment. It is a lessening standard for 4th Amendment rights because it
would allow things to be searched more easily by things in general public use.
New test is intimate activities and “general public use.” This sets up a house as a protected place not people. Katz stood for the proposition that people
were protected in a variety of places.
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IV. Fourth Amendment Probable Cause
11. AGUILAR-SPINELLI
P/C = a quantum of evidence necessary for a search and arrest.*Generally required for searches & seizures to be reasonable even if a warrant is not.
Search: must be a substantial probability that certain items are the fruits, instrumentalities or evidence of crime and that these items are presently
to be found at a certain place. Limited in duration.
Arrest: must be substantial probability that a crime has been committed and that the person to be arrested committed it. Once formed, will
continue to exist for the indefinite future
Hearsay: Can use it. What is it?
Concern with police making up information / informants
Concern between allocation of power of Executive to Judiciary (magistrate) and leaving freedom “no natural stopping point for police” [S]
Allegations of reliability of informant too conclusory
§ Ask how many times been wrong? What happened when wrong?
§ How can reliability be determined without history of good information? (Corroboration, from independent sources, to establish P/C)
§ Measure information now by integrity of info given in the past (inference of credibility)
§ Is informant paid if information correct/incorrect?
Basis of Knowledge – Eyewitness identification
White Hypo in Draper concerning Basis of Knowledge: “a reliable informant states there is gambling equipment in apartment 607 and then proceeds to
describe apartment 201 – a description that is verified before applying for the warrant. He is correct about 201, but that hardly makes him more
believable about the equipment in 607. But what if he states that there are narcotics locked in a safe in Apartment 300, which is described in detail, and
the apartment manager verifies everything but the contents of the safe? I doubt that the report about the narcotics is made appreciable more believable by
the verification. The informant could still have gotten his information concerning the safe from others about whom nothing is known or could have
inferred the presence of narcotics from circumstances which a magistrate would find unacceptable”
Definition of Probable Cause?
Facts or circumstances that a law enforcement official has such that a reasonable person would think it likely (majority rule is usually more likely than
not 51%) that the arrested person has committed a crime or the search items are connected to a crime and will be found at a particular place
-more than a hint or suspicion but less than a degree of certainty
Carroll v. US (1925)
Brinegar v US (1949)
The facts and circumstances within police knowledge, and of which they had reasonably trustworthy information, were sufficient
to warrant a man of reasonable caution in their belief that items sought were located in the car stopped and searched.
The rule of P/C is a practical, nontechnical conception affording the best compromise found for accommodating the often
opposing interests [in privacy and law enforcement]. More would unduly hamper law enforcement. Less would leave lawabiding citizens at the mercy of the officer’s whim.
38
How do we find it?
-informants' info/ hearsay (out of ct stmt): lots of PC evaluated info comes from criminal informants. How doe we establish PC based on this info?
Probable Cause History Determination
Aguilar v. Texas (1964)
TWO PRONG TEST
Facts: A search warrant had issued upon an affidavit of police officers who swore only that they had “received reliable information from a credible
person and do believe” that narcotics were being illegally stored on the described premises.
Court: Affidavit inadequate. 2 reasons (later 2 prong test)
1. Basis of Knowledge unclear. Failed to set forth any of the “underlying circumstances” necessary to enable the magistrate independently to
judge of the validity of the informant’s conclusion.
2. Credibility of informant / Reliability of the information. Officers did not attempt to support their claim that the informant was credible and
reliable.
a. honest information that led to past prosecutions
b. underlying circumstances for basis of conclusion
c. Reasons officer believes credibility.
Have to know that there really is an informant? Police have made up informants.
Spinelli v. US (1969)
Facts: Spinelli convicted of interstate traveling with intent to conduct gambling activities. Had two telephone lines. He went into an apartment in a
different state, he was a “known” gambler. He
Ct per Harlan:
FBI affidavit more ample than in Aguilar. FBI tracked Spinelli for 5 days, followed to motel. Phone co. revealed motel room
had 2 telephones listed under ‘Hagen’. Affidavit stated Spinelli known as a bookie. FBI stated they have “been informed by a
confidential reliable informant that William Spinelli is operating a handbook and accepting wagers and disseminating wagering
information by means of” the 2 numbers listed earlier.
Self verifying detail can only substitute for basis of knowledge but not for his honesty. Cooberation can substituted for honesty. This weakens the test.
1. If weighing informant and information by Aguilar Test, Basis of Knowledge and veracity (Credibility + reliability) in jeopardy. 2 Prong
test: Underlying circumstnaces of knowledge to allow magistrate to judge validity of informant’s conclusion and second, reliability and
credibility of informant.
Concurrence: White: While seemingly upholding Draper, Ct. instead limited it to its facts
Dissent: Black, Fortas, Stewart
How much info leads to honesty and credibility of informant?
Good question. It seems that a lot of info means more reliability, past correct information also shows some credibility.
39
How do you determine reliability if there is no past history of information?
You would want to know how the person would know the information, it is the level of detail and knowledge that could show reliability.
Is it sufficient for someone to make a declaration against his own penal interests? Ex. I bought drugs from X. He didn’t say but this is an important
question.
2 Prong Test: Aguilar-Spinelli Test
1. Credibility of informant
a. is informant reliable/ trustworthy?
b. look to whether informant has been reliable in the past
c. look to whether there are circumstances indicating informants info is reliable in this particular instance (motives- upton)
2. Basis of informant's knowledge
a. how did the informant know this info? -reputation
b. what are the underlying circumstances that show his basis for conclusion?
i. did he see it himself?
ii. did someone tell him?
iii. does he know that defendant's reputation?
Problems with the A-S test
§ need to satisfy both prongs to get pC
§ Questions of corroboration left unanswered:
o corroboration might be a sufficient substitute (BIG FOR STOTZ)
§ but for which prong?
§ how much corrobating info is sufficient?
§ Just cause in format got a lot of facts correct about appearance doesn't mean that for sure he will have the drug on the person. is
that okay? this is seen in Draper what 9 out of 10 fast were right
Draper v. US (1959) - Paradigm case
Facts: Informant said D would be getting off train on a certain day, giving a physical description of the person, clothes he would be wearing, how fast
he will be walking, color of the bag he would be carrying. what he will be wearing, and that he will be carrying heroin. Police waited for D at
the Denver's union station on D's expected date of return. were able to get a warrant after seeing the man.
Court: A magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.
Additionally, independent police work corroborated much more than one detail. Corroboration of facts may substitute the basis of knowledge
test to satisfy p/c. The informant died, so his testimony was hearsay but allowed.
Outcome: surroundings facts and circumstances amounted to PC to believe that D had committed a crime; PC may be based on hearsay
40
Rule: any trustworthy info may be considered in determining whether PC to search or arrest exits even if the info would not be admissible at trial; police
may use hearsay as part of showing PC
Why do informants inform?
Sometimes they are paid. Other times they will do it to get someone in trouble. They will often not get in trouble for false info unless the cop has
something on him. The cops will often say they won’t put them in jail if they will inform.
Two-Prong Test
Basis of Knowledge: 1. Seen activity 2. Heard rumors of activity or 3. Surmised activities took place.
Reliability/Credible: provided true information related to specific crimes in the past or other truthfulness.
Stotzky Notes:
he says that this is the paradigm case for allowing corroboration for PC
but how far should corroboration go?
corroborates honesty as to everything except the ultimate fact (^d has heroin)
for exam: ask yourself- is it weird that D would do that (the behavior)?
12. TOTALITY OF THE CIRCUMSTANCES
Illinois v. Gates (1983)
TOTALITY OF THE CIRCUMSTANCES OR SUBSTANTIAL BASIS
The specificity of the information is important.
Reversed Illinois Supreme to allow evidence. Satisfied new/old common sense judgment for p/c that replaces 2-prong test (independent veracity and
basis of knowledge).
Facts: Police receive an anonymous letter, detailing the method in which a couple allegedly transports drugs. D1 would drive car to Fl and D2 would
fly down shortly after then drive car back with 100k worth of drugs.
Detective verifies place of living; verifies that a ‘Gates’ plans to fly to Florida on the given date and has flight surveillance. Gates went to a
hotel for night, to a room registered under wife’s name. Next morning, he and unidentified woman began to drive up to Illinois in a car bearing
that state’s license plate (license plate registered to a car for Gates, but not the car in use).
In reliance on the letter and the police affidavit, a search warrant is issued for D's home and car. When they arrived home, car searched – 350
lbs. of marijuana found.
Procedural history: Illinois SC said that anonymous letter standing alone was insufficient; court said you have to meet BOTH prongs- reliability prong
and basis of info/ knowledge prong
*STOTZKY THINKS THIS IS RIGHT^*
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Ct per Rehnquist:
‘Veracity’ and ‘Knowledge’ “are better understood as relevant considerations in the totality of circumstances analysis that
traditionally has guided p/c determinations: a deficiency in one may be compensated for, in determining the overall reliability of
a tip, but a strong showing as to the other, or by some other indicia of reliability. Strict two prong test too rigid. “Probable
Cause is a fluid concept.” Substantial basis for concluding that a search would uncover wrongdoing is better test, the Fourth
Amendment requires no more. Anonymous tips could not survive the veracity test so it shouldn’t be used. Conclusory
statements no good, magistrates action cannot be a mere ratification of the bare conclusions of others. No prongs have to be met
if the details were corroborated. The issue here is that the only stuff that can’t be checked before serving warrant is the illegal
portion.
Outcome: A-S test overruled (but still considered) test is now TOTALITY OF THE CIRCUMSTANCES look at everything to determine if there is
PC.
• creates a balance test as opposed to a two pronged isolated test
• still evaluate both informant's credibility and basis of knowledge
o prongs are still "relevant consideration in the totality of the circumstances analysis that is traditionally has guided probably cause
determination"
• but no longer need BOTH prongs; used as guides, not exclusive requirements.
Concurrence: White: Upheld warrant by use of 2 Prong Aguilar-Spinelli test. Thinks that the court is affirming conclusory statements just better than
“bare bones” affidavits since one part of the test can make up for another part that is lacking. Wants there to be more than common sense. Wants the
affidavit to disclose supporting facts and circumstances.
Dissent:
Brennan (Marshall):
power:
Stevens (Brennan):
Warrant invalid even under “totality of circumstances test.” Normative Vision – codes for overly bearing police
‘practical’, ‘nontechnical’, ‘commonsense’ are “code words for an overly permissive attitude towards police
practices in derogation of the rights secured by the 4th Am.”
Factually, letter not completely true: Inconsistencies present which cast doubt on all information. B/c of
mistakes, undermines reasonableness in letter use. Mistake: husband and wife were together in Florida.
Rationale Majority: A-S test too rigid; would prevent cops from using anon tips: "such tips, particularly when supplemented by independent police
investigation, frequently contribute to the solution of otherwise perfect crimes."
• PC determinations are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not
legal technicians, act."
• PC is a fluid concept turning on the assessment of probabilities in particular factual contexts
Stotzky notes:
• SCOTUS says its now up to the magistrate; free to determine PC by requiring both or not as they wish
• courts says affidavits and warranted are drafted/ issued by non-lawyers
o not true: prosecutors help draft affidavits; magistrate issue warrants and are/were lawyers
42
•
•
•
•
magistrates' determinations of PC won’t be reviewed in appellate court
o why? according to Rehnquist cops will then have disincentive to obtain warrants- rubber stamp judges
Rehn v Brennan: "Neutral and detached magistrate" role down graded or upgraded
o rehn: mag has MORE power of review
o brennan: mag has LESS power of review
§ mag's role was to hold government's "feet to the fire"; role is now less important to hold govt accountable because less rigid
standard for PC
goes back to individual rights vs. crime control model tensions
judges find the law and make law.
Massachusetts v. Upton (1984)
Facts: Officer received a call from a woman stating stolen goods located in a motor home. Woman identified as Upton’s ex girlfriend, who wanted to
burn him. Police verified that motor home was there, and applied for a search warrant – placing the police reports on the 2 other burglaries, a list
of stolen property, and an affidavit concerning the phone call.
Per Curium: Why did they do this? They wanted to hide who wrote it and show the authority of the court was behind it. It is strong. They are trying
to show that Illinois v. Gates should be the test: Totality. The pieces of evidence fit neatly together and support the magistrate’s
determination that there was ‘a fair probability that contraband or evidence of crime’ would be found in the motor home.
What substitutes for her honesty? If she had a motive that could be ok, or if she had known of other activities.
Franks v Delaware (1978)
Blackmun: A defendant may challenge an affidavit and validity of warrant: Much of the information was made up or false.
1) Must allege deliberate falsehood and reckless disregard for the truth (NY Times v Sullivan)
2) Must specifically say what was false or recklessly disregarded
3) Cut out “lies” and look at affidavit – if without it there is no P/C, then the warrant is no good.
No Class Time
US v Steeves (8th Cir 1975):
US v. Lalor (4th Cir 1993):
State v Thomas (W.Va.1992):
US v. Clyburn (4th Cir.1994):
When the time of the facts is given, p/c will sometimes be lacking because that information had become ‘stale’.
No P/c to search a defendant’s residence elsewhere, where affidavit does not ‘explain the geographic relationship
between the area where the drug sales occurred’ and defendant’s residence.
Court upheld search warrant, relying on Gates assertion that no ‘numerically precise degree of certainty’ is required to
show p/c, here if the same facts can be used to implicate more than one person in a crime that could have been
committed by one of them.
No requirement that basis for p/c be established in writng. Magistrates may rely on unrecorded oral testimony to make
p/c determination.
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Informer’s Privilege
McCray v. Illinois (1967)
Facts: At a suppression hearing, arresting officers testified that an informant who had supplied reliable info in 20 previous cases, informed him of
McCray selling narcotics at a certain time, then pointed out the person. Officer objected to supplying informant’s name. Even so, Petitioner
convicted.
Defendants have a 6th amendment right to see the witness and cross-examine them. Court said not necessary to produce informant. If evidence is
introduced more often than not the defendant goes to jail. It is hard to suppress evidence if based on informant drugs are found on someone.
Treats motions to suppress differently than the trial. At trial the defendant can see the witness.
Ct per Stewart:
Affirmed decision, stating that a defendant has nothing to lose and everything to gain for asking for an informant. Also, if a
magistrate doubts the credibility of the affiant, he may require the informant be identified or even produced.”
Dissent: Douglas (CJ, Brennan, Fortas):
No way to determine the reliability of informer unless he is produced and cross-examined. Fear police
making ‘Informer’ up
State Court Informer’s Privilege
People v Darden (NY 1974): It is allowable for the suppression judge to conduct an in cemera inquiry, if insufficient evidence to establish p/c.
State v. Richardson (Conn.1987):
Requiring an informant to attend an in camera hearing involves a substantial risk that his identity will be
discovered.
Joint Possession & Common Enterprise Theory
Maryland v. Pringle (2003)
Car pulled over for speeding. When officer ran driver’s (Partlow’s) info nothing came up but he did notice a large amount of rolled up money in the
glove compartment. He then asked the driver if he had any weapons or narcotics in the car and he replied that he did not. He consented to a search and
they found $763 cash and 5 baggies of cocaine. All three men denied ownership of the drugs and money and all were arrested.
Pringle later confessed to ownership of the drugs in oral and written confession. He was convicted for 10 years without possibility of parole. The
jurisdiction usually determines how much time you spend. (less in Miami than a small city probably).
Court found probable cause because Pringle was in a small automobile and passengers “will usually be engaged in a common enterprise with the driver.”
What does this mean? It means that the court decides that in a car all passengers could have probable cause of ownership. “Joint possession”
This is the “common enterprise” theory. There still has to be probable cause as to one person.
In a lot of jurisdictions cops can either arrest or issue a ticket for minor offenses.
Anticipatory Warrants
Are ok. Scalia says that they are no different than ordinary warrants.
Probable Cause
Victim-Witness: Doesn’t have to be entirely accurate
44
Direct Observations by police: “the probabilities must be measured by the standards of the reasonable, cautious and prudent peace officer as he sees
them, and not those of the casual passerby.”
Information and orders from official channels: Radio bulletin describing criminal insufficient.
Other Sources of Probable Cause
Information from witness or victim of crime
State v. Paszek (Wis.1971):
An ordinary citizen stands as a witness to criminal activity who acts with intent to aid the police in law enforcement
because of his concern for society or for his own safety.
Direct Observations by Police
Brooks v. US (DC 1960):
Facts: Officer approached 2 men (previous convicts for larceny) carrying a record player. When asked a question, the men changed their story from the
initial tale to a second. The officer arrested them.
Court: Action allowable, for the probabilities must be measured by the standards of the reasonable, cautious, and prudent peace officer as he sees them,
and not those of the casual passerby.
§ Compare
US v. 1964 Ford Thunderbird (3rd Cir 1971):
The standard is not what a police officer trained in a particular field would conclude, but rather
it is what a reasonable prudent man would conclude.
US v. Hoyos (9th Cir 1989):
The experience and expertise of the officers involved in the investigation and arrest are considered in
determining p/c.
Orders from Official Channels
Whiteley v. Warden (1971):
Facts: 2 men arrested who fit description of police bulletin, which stated warrant existed. Warrant not based on p/c.
Ct per Harlan:
An otherwise illegal arrest cannot be made legal by the decision of the investigating officer to rely on fellow officers to make the
arrest.
FL v. Harris
• Dog sniffing case
• How do you test the probability?
o 1. Ask for the field test (how many times in past week has he been accurate/inaccurate)
• D brings up the issue and wants to see all the info of the dog actually working but court says that’s not the test and the test is the training
program (dog been certified).
o Q the training program/testing
• Should we depend on a dog sniff?
• O’Connor said it was a “one of a kind” thing.
• Dogs are not as accurate as they claim
• Courts always uphold the dog sniff—in terms of the SCOTUS
45
Handout: is there PC in each of the scenarios?
• 1. Hearsay- no PC
• 2. NO PC. Not explaining the basis for finding this out and we don’t know how reliable the officer is.
• 3. NO PC. Statement is conclusory and doubtful. One does not exactly “see” heroin.
• 4. This is hearsay on hearsay. Again, you don’t exactly “see” heroin. Is an FBI agent sufficient alone to establish honesty? It may be.
• 5. Describes the kind of investigation official is involved in, none of the inferential steps were made available to the magistrate.
• 2 standards:
o 1. Fixed standard
o 2. Standard that changes
• A demonstration of expertise perhaps should permit the court to dispense the statement for basis
o As a problematic matter look at past conflicts to make a decision about present conflicts
• Expertise and past competency are both important
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V. Fourth Amendment: Warrants
WARRANTLESS ARRESTS AND SEARCHES
Themes: (think about these for potential policy-based exam questions)
• The warrant requirement clause: how do we read the 4A? (Stotzky likes them to be read together; Courts read them separately)
• categorical v. case-by-case approach: should we apply bright line/ automatic criminal procedure rules or should we analyze the facts and
circumstances of each case?
• limiting police discretion: how do we balance the efficacy of policy work and individual private rights?
WARRANT REQUIREMENT CLAUSE
Clause 1: the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches (never ok) and seizures, shall not
be violated,
AND
Clause 2: no warrants shall issue (only sometimes required), but upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
Stotz Notes:
• Question: do we read the clauses together or separate?
• does 4a require warrants for all reasonably searches and seizure?
• always think about the balance between police efficiency and individual rights theory
• The Stotz Rule: police should have the automatic right to search people but evidence found incident to search must be destroyed or not used at
trial.
o a way to balance out police safety with a person's rights
• EXAM: think about rules and whether they make sense in certain contexts; think about policies behind rules
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13. ISSUANCE OF WARRANT
Purpose of Warrant
Neutral and detached person made decision
Legitimizes system of law enforcement
Limits executive authority of power over individual freedom.
Neutral & Detached Magistrate Requirement
Coolidge v. New Hampshire (1971)
Facts: St. attorney General (under st. law) issued a search warrant for defendant’s car, for murder investigation for which he had taken personal charge
for and which he later prosecuted at trial.
Ct per Stewart:
Violates procedure, b/c the state official who was the chief investigator and prosecutor in this case was not the neutral and
detached magistrate required by the Constitution.
Plain View Doctrine:
§
the items found in plain view may be seized “where it is immediately apparent to the police that they have evidence
before them,” because Stewart also required “that the discovery of evidence in plain view be inadvertent
[unanticipated].”
§ If police have a right to be where they are and see something in plain view, then the objects they so find are
admissible.
Compare:
Shadwick v. City of Tampa (1972):
Unanimous court upheld a city charter provision authorizing municipal court clerks to issue arrest
warrants for municipal ordinance violations, for an issuing magistrate must be neutral and detached, and
he must be capable of determining whether p/c exists for the requested arrest or search.
Connolly v. Georgia (1977):
No monetary incentive for warrant action allowed. A unanimous court held the search warrant had not been
issued by a ‘neutral and detached magistrate’ where the issuing justice of the peace was unsalaried and was paid
a fee if warrant issued
Rooker v. Commonwealth (Ky.1974):
Rubber stamping of warrant form improper, even if probable cause exists, for the “Appearance of
impropriety not allowed”
US v. Davis (S.D. Ill.1972):
Magistrate Shopping not allowed. The first magistrate’s decision was final and binding, and his denial of the
application stopped the second magistrate from issuing a search warrant on the exact same showing.
§ After Gates, once magistrate finds no p/c, must honor his decision.
Particular description of Place to be searched
Steele v. US (1925):
Description must be sufficient for an officer with a search warrant, with reasonable effort, ascertain and identify the place
intended. Some error allowed.
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State v. Blackburn (Or.1973)
Problem when all facts do not fit same place
Facts: Search warrant for apartment 2 with “the letters ECURB on the door”, but the officer found one apt with the numeral 2 on the door & another w/
no # but the letters ECURB.
Court: Upheld search of the latter apartment, b/c there could be no doubt as to which of the premises was intended b/c no one could have mistaken a
word like ECURB, but anyone could have easily have made a mistake about a numeral.
MD v. Garrison (1987)
Facts: Police acted upon search warrant of McWebb, and his 3rd floor apartment on Park Ave. Only after contraband discovered did police realize they
were in the wrong apartment.
Ct per Stevens: 1) warrant authorized search of the entire floor
2) Execution valid b/c a failure to realize the overbreadth of the warrant was objectively understandable and reasonable.
Dissent (Blackmun): 1) warrant only for McWebb apartment on that floor
2) Police should have known that there were 7 apartments in the building, and unreasonably assumed the 3 rd floor was one
apartment.
Particular Description of Things to be Seized
Intended to prevent: general searches; the seizure of objects on the mistaken assumption that they fall within the magistrate’s authorization; the
issuing of warrants on loose, vague or doubtful bases of fact.
LaFave, §4.6 adds to 3 principles:
1) Greater ambiguity tolerated if police did the best that can be expected under the circumstances
US v. Blakeney (6th Cir.1991):
finding ‘jewelry’ insufficient where inventory available of what was taken from a jewelry store.
2) General description sufficient when nature of items are such that they cannot be expected to have more specific characteristics
State v. Salman (NH.1972):
finding description of 42 sheets of plywood sufficient considering the nature of the items.
3) A less precise description is required of property which is, because of its particular character, contraband
4) Failure to provide all available descriptive facts not a basis for questioning the adequacy of the description, where the omitted facts
could not assist executing officer
US v Scharfman (2dCir.1971)
finding any effort to describe more particularly which furs in fur stores were stolen would have
required a legion of fur experts to execute warrant.
5) An error in the statement of certain descriptive facts not a basis for questioning adequacy of the description if the executing officer
was nonetheless able to determine that the object seized was intended.
US v. Rytman (5th Cir1973):
finding compressor of described band and with serial number approximating that stated in the
warrant could be seized.
6) Greater care called for when the type of property sought is generally lawful use in substantial quantities
People v. Prall (Ill.1924): holding the description of ‘certain automobile tires and tubes’ insufficient.
7) More particular description required when other objects in same general classification are likely to be found in area
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US v. Cook (5th Cir 1981)
cassettes onto which copyrighted films have been electronically transferred are insufficient in a place
with many other cassettes.
8) Greatest care of description required when consequences of seizure of innocent articles be mistake is most substantial: books, films,
indicia of membership in an association, or a law office)
9) B/c items were admittedly improperly seized in execution of the warrant does not mean that the warrant was not sufficiently
particular.
Particular Description, reliance on affidavit
Groh v. Ramiez
“The fact that the application adequately described the ‘things to be seized’ does not save the warrant from its invalidity.”
The mere fact that the Magistrate issued a warrant does nt necessarily establish that he agreed that the scope of the search should be as broad as the
affiant’s request.”
14. EXECUTION OF THE WARRANT
Time of Execution: Answers depend on the type of crime, place, and item of issue.
US v. Nepstead (9th Cir1970): Execution is proper if the p/c in the affidavit continues until the time of execution, giving consideration to the
intervening knowledge of the officers and the passage of time.”
State v. Neely (Mont.1993):
warrant must be executed within statutory period
State v. Miller (S.D.1988):
Violation of 10-day stat period when p/c has not dissipated allowed (suppression not necessary).
Gooding v. US (1974):
Held fed stat for searches for controlled substances requires no special showing for nighttime searches other than the
contraband is likely to be on the property at that time.
Nighttime searches involve a greater intrusion than ordinary searches and therefore require greater justification.
“increasingly severe standards of probable cause are necessary to justify increasingly intrusive searches.”
Most warrants are required to be served only in the day time.
Sneak and peak searches: allow police to search without anyone around and not leave any indication that a search has been conducted.
1. Have to have a necessity for not telling of search before conducted. 2. Should notify person within reasonable time.
Procedures to Employ in Executing Warrant
“Knock and Announce Rule” – PART OF 4th Amendment
Wilson v. Arkansas (1995)
Unanimous Court: Law enforcement officer should generally announce his presence and authority before exercising
authority to break open a door. Not a rigid rule, but flexible to law enforcement interest.
Richards v. Wisconsin (1997) Unanimous Court rejected notion that police officers are never required to knock and announce their presence when
executing a search warrant in a felony drug investigation. Officers can exercise independent judgment about no-knock
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entry. Ex. If they identify themselves as a janitor and upon noticing they are cops the defendant shuts the door, they
have “announced” their presence.
§ Exigent circumstances: test says officers must point to particular facts that knock would be ineffective.
1) Someone may be harmed or they wouldn’t open anyway.
2) Evidence may be destroyed
United States v. Banks
How long to wait? “Has the occupant had time to get to the door?” Less in a hotel room than a house.
Shorter time will suffice when: exigent circumstances.
Time is dependent on particular situation (exigent). EX: if cops thought that occupant would have time to flush drugs then they wouldn’t have to wait
for that to happen to enter.
Knock and announce is a requirement of the Constitution 4th Amendment. It is also good common sense so that cops don’t get shot.
Detention and Search of persons on the premises
Ybarra v. Illinois (1979)
Facts: warrant authorizing a search of a tavern and bar issued upon informant info. Warrant executed by 7-8 officers, who proceeded to pat down 9-13
customers. Cigarette package located on customer Ybarra contained heroin. Ybarra did not make any furtive gestures and said nothing
suspicious, or attempt to conceal contraband.
Ct per Stewart (6/3): Officers had no reason to suppose any person found on the premises aside from the bartender would be violating the law. No p/c
to search Ybarra. Not a Terry Stop. Terry: pat down for weapons allowed if suspected of having weapons b/c of criminal past,
etc.
Probable Cause: embodies “the best compromise that has been found for accommodating the often opposing interests in
safeguarding citizens from rash and unreasonable interferences with privacy and in seeking to give fair leeway for enforcing the
law in the community’s protection.”
“A person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to
probable cause to search that person.”
Dissent: Rehnquist: Terry individualized suspicion standard not important here because this isn’t like searching someone on the street. In this case
there was a warrant for the place and 2, the officers were in more peril than they would be on the street. Nothing in the 4th
Amendment requires an individualized suspicion (In Rehnquist’s dissent).
Stozky suggests allowing everyone to be searched for weapons but not allowing any evidence to be used.
All of this relates to the 4th Amendment. Do you read the clauses together? Reasonableness? It depends on how you think of it. Look this up.
Las Angeles County v. Rettele (2007)
Police obtained two search warrants for four black suspects connected with a crime ring.
When they served on of the warrants it was on a white person. They were ordered to stand naked.
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Court: Ok for them to stand naked and didn’t matter that they were white because people of different races could live together. Naked: Ok because was
for safety of officers.
Michigan v. Summers (1981)
Facts: About to execute warrant, encountered suspect walking down the front steps. Police requested his assistance in gaining entry, and detained him
while they searched the premises. Found narcotics in basement. Verified suspect as owner, and searched him, and found narcotics on his
person. Found 8.5 grams of heroin on guy.
Ct per Stevens:
Upheld seizure based on Terry principle. Obvious legitimate law enforcement interest in preventing flight in event incriminating
evidence found. Less intrusive due to existence of a warrant. Less obvious interest in minimizing risk of harm to the officers. It
is good for officers to have unquestioned command of the situation. Terry only was about frisking, not detaining.
Dissent: Terry application (limited unintrusive detention ok) improper because “a detention while a proper search is conducted can mean detention of
several hours.”
Intensity of detention
Muehler v. Mena (2005)
Occupants of house detained in handcuffs for 2-3 hours. Such action was reasonable because the governmental interests outweighed the marginal
intrusion for in such inherently dangerous situations, the use of handcuffs minimizeds the risk of harm to both officers and occupants and was more
reasonable because of the need to detain multiple occupants.
Kennedy: Concurrence: Two cautions: 1. If the handcuffs cause pain or discomfort they should be removed or altered. 2. They should be removed as
soon as they are no longer needed.
Reitel case
break in in the morning and find 2 white people in bed and make them get out of bed and make them stand there naked while they search through—
VALID bc they could have had weapons or other kinds of stuff---but very offensive to the people it happened to. Filed a §1983 action as well and they
lost.
Seizure of Items not named in the Search Warrant
Horton v. California (1990)
Facts: Officer affidavit established p/c to search defendant’s home for the proceeds of a robbery and for weapons used in that robbery – but magistrate
only issued warrant for proceeds. Proceeds not found, but guns were – which were seized. Defendant claimed that the guns couldn’t be used as
evidence.
Ct per Stevens (7-2): No reason to belief suspicion of existence of evidence would mean it would be inadmissible if not on warrant. “The fact that an
officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if
the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement.” “No
additional Fourth Amendment interest is furthered by requiring that the discovery of evidence be inadvertent.”
Plain view: cops can get stuff in plain view even if they expect to find it. The court previously had said that discovery of
evidence in
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Intensity and duration of the search
Can’t look everywhere. Ex: if the warrant calls for search to find stolen TVs the cops can’t search through drawers of places too small to hold TVs.
Presence of Third Parties
Wilson v. Layne (1999)
Facts: Police accompanied by newspaper reporter and photographer
Court: Unanimous. Presence of 3rd parties to identify stolen goods ok. However, presence of the media unconstitutional b/c it was not in the aid of
executing the warrant.
Delivery of warrant
Some jurisdictions have statutes requiring warrant to be delivered to place being searched. Groh v. Ramirez said it was a Fourth Amendment
requirement.
Computer Searches
May not have to get an extra warrant to remove computer.
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VI. Warrantless Arrests & Searches of Persons
General Rule
What is the purpose of the warrant requirement?
That a neutral and detached party make a decision about probable cause before the arrest. It is difficult for judges to say there was no probable
cause after drugs were actually found. Prior review prevents hindsight judgment. 4th Amendment makes no distinction between searches and
seizures.
*General Rule: Warrantless entries into private homes are presumed unreasonable unless exignet circumstances (hot pursuit/ search incident to arrest/
etc) are present.
US v. Watson (1976)
Facts: Informant info: Watson sold him stolen credit cards, and will do so again. Could have gotten warrant, but did not – arrested Watson, under
authority of 18 USC §3061 (allows postal inspectors to arrest without a warrant provided they have p/c to do so). A.Ct found arrest unconstitutional
Ct per White: Arrest valid. Congress granted authority to arrest under §3061 without a warrant. Also, C/L rule that police can arrest for felony or
misdemeanor performed near an officer remains intact. B/c Congress allows it, C/L (common law) allows it, and police need it – act
permissible. “there is a strong presumption of constitutionality due to an Act of Congress, especially when it turns on what is
‘reasonable’, obviously the Court should be reluctant to decide that a search thus authorized by Congress was unreasonable and that the
Act was therefore unconstitutional.”
Officer has authority to arrest w/ a warrant for felonies done in officer’s presence or if p/c. Doesn’t matter if officer had time to get a
warrant.
Concurrence: Powell: Arrest is more serious than a search but this gives way to history and experience. The history is that law enforcement can arrest
without warrants to do otherwise could hamper law enforcement.
Dissent: Marshall (Brennan): Privacy of citizens will be better protected by a warrant requirement, which will not unduly burden legitimate government
interests. Can still arrest without warrant for exigent circumstances if they were unanticipated.
Why is there a difference in C/L of felony and misdemeanor?
In ancient times most felonies were punishable by death so it was ok to arrest on site even if crime not witness. If you killed someone who committed a
misdemeanor that would be murder. Today felonies are crimes that can be punished by over one year.
Watson confirms an anomaly: Warrants are required for most searches but not all arrests.
What is the history? Is to require warrants or prevent general warrants? If we were to be more true to history should we allow more warrantless
searches? Was the warrant requirement to stop petty tyranny?
Maybe. Stotzky thinks that the executive (police) can act in a tyrannical way.
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4 versions of warrant requirement: Watson rejects all that because of the presumption of Constitutionality in congressional acts.
1. Should be required for both searches and seizures unless exigent
2. Not required for either
3. Required for searches but not arrests
4. Required for searches and arrests of misdemeanors not in presence of officer.
Holding: law enforcement can make warrantless arrest for felony and/or misdemeanor committed in their presence
Rule: arrests warrants are not constitutionally required even when possible for law enforcement to obtain
"there is nothing in the court's prior cases indicating that under the 4A a warrant is
required to make a valid arrest for a felony"
Stotz Notes:
how do we make a distinction between warrant requirement for searches and seizures?
does the warrant clause of 4A make this distinction?
Note:
Common law is the background upon which the framers created the constitution!
Common law felony/misdemeanor distinction:
• felony: crimes for which you can receive at least 1year in jail; do not need a warrant for arrest whether committed in law enforcement
presence or not
o policy: protest society from serious crimes being committed
§ j. white's opinion highlights common law policy against outlawry- community obligations in 11th and 13th century to join in
catching in criminal
• misdemeanor: crimes for whihc you can receive less than one year in jail; do need a warrant even when committed in presence of law
enforcement
Problem today with the felony/ misd. distinction:
• many crimes that were classified as misdemeanors under common law requiring warrants are now are seen as felonies and don't need a
warrant.
• we define crimes differently; substance of how we define crimes and criminals change
C/L ‘in presence” requirement for a warrantless misdemeanor arrest:
People v. Burdo (Mich.1974):
Officer could not arrest for misdemeanor of DUI when he came upon a scene of auto accident and found an
obviously drunk defendant there, who admitted he had been driving.
People v. Dixon (Mich.1974):
After stopping noisy vehicle, officer could arrest driver for misdemeanor of driving w/o a license after being
advised via radio that Defendant’s license had been suspended.
Atwater v. City of Lago Vista (2001)- full custodial warrantless arrest okay for minor crimes (stotz spent a lot of time on this)
Facts: Petitioner driving car with 2 minors not in seatbelts. Officer approached her, and told her she is going to jail. When petitioner could not supply
ID required, officer handcuffed woman and drover her to the station, where she was booked and held for one hour before posting bond.
Petitioner claimed that even though statute allowed officers to decide whether to issue citation it violated her 4th Amendment rights. Court said
no there was a C/L history of allowing this.
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Ct per Souter:St and Fed practice of allowing warrantless arrests for misdemeanors not amounting to or involving a breach of the peace. Her arrest is
ok.
Case could be used to see if a pretextural stop was constitutional. Having a kid in the car without seatbelts is not a breach of the peace.
Holding: full-custodial arrest for crime punishable by a mere fine is not a violation of 4A
Bright line rule: "if an officer has PC to believe that individual has committed even a very minor criminal offence in his presence, he may, without
violating the 4A arrest the offender.
• case-by-case factual analysis rejected by j.souter
• court should follow less fact-specific, more categorical rule by drawing "standards sufficiently clear and simple to be applied with a fair
prospect of surviving judicial second-guessing months and year after an arrest or search is made.
Use of Deadly Force / Reasonableness Standard
Tennessee v. Garner (1985)
Facts: Stat gives right to use deadly force to stop felon, however here a 15 yr old kid is killed
Ct per White: The use of deadly force to arrest a fleeing felon is sometimes unreasonable under the 4th Am.
§ Facially Unconstitutional: Stat. not unconstitutional on its face. Cts reluctant to declare a democratic/legislative act unconstitutional,
so tailor statute to have Constitutional meaning.
§ Unconstitutional as applied – statute cannot be applied to a present case, but normally allowable.
Graham v. Connor (1989)
The reasonableness standard:
1) Applies to all claims that law enforcement officers have used excessive force – deadly or not in the course of an arrest, investigatory stop, or
other seizure of a free citizen
2) Requires careful attention to the facts and circumstances of each particular case. Includes: severity of crime, whether suspect poses an
immediate threat to police or others, whether suspect actively resisting arrest or attempting to evade arrest by flight
3) Must allow for officer’s split-second decision, in intense situations, about amount of force necessary
4) Asks whether the officer’s sanctions are objectively reasonable in light of the facts and circumstances confronting them, without regard to
their underlying intent or motive.
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What occurs once arrested? Rt to hearing? Length of lock up?
P/C determination to see if you can be locked up:
1) must be done by a judicial officer in reasonable time (Gerstein)
2) Time unclear
3) Generally no right to a full blown hearing, though some states allow it
4) Right to bail hearing
Harris v. Scott
Guy fled from cops and they hit him causing him to be a quadrapeligic.
Extradition
In the U.S. if someone has been charged and there is probable cause a governor of a state in which he was charged can petition the other state for
extradition.
Gerstein v. Pugh (1975) Stotzky worked on this case.
Court per Powell:
the 4th Am requires a judicial determination of p/c as a prerequisite to extended restraint on liberty following arrest
Length of Lockup
County of Riverside v. McLaughlin (1991)
Ct per O’Connor (5/4)
Jurisdictions that provide judicial determinations of p/c within 48 hrs of arrest will, as a general matter, comply with
the promptness requirement of Gerstein. Even if shorter than 48 hr period, can still be unconstitutional if unreasonable
Dissent: Scalia:
Only element bearing on reasonableness is the arresting officer’s ability to reach a magistrate who would issue the needed warrant
for further detention and that time should be only 24 hrs.
Extradition
Michigan v. Doran (1978)
Facts: Governor of Michigan issued an arrest warrant pursuant to a request for extradition from the governor of Arizona. The St.S.Ct. held no
extradition due to insufficient p/c
Ct per Burger, CJ:
one the governor of the asylum state has acted on a requisition for extradition based on the demanding state’s judicial
determination that p/c existed, no further judicial inquiry allowed on issue in the asylum state.
Categorical vs. Case-by-case approach
Discretion
US v. Robinson (1973)
FULL CUSTODIAL ARREST EXCEPTION
Facts: 15-yr police veteran saw (after prior investigation) respondent driving after his permit was revoked (punishment = minimum jail term, minimum
fine, or both). Stopped respondent, arrested him, the searched in accordance with police instructions. Felt something in pocket of coat, pulled
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out a crumpled up cigarette package – did not feel like cigarettes, according to testimony, so officer opened the package. Found 14 gelatin
capsules of white powder found to be heroine.
Outcome: full body search of defendant arrested for driving with revoked license was valid under search incident to arrest exception
Rule: full body search incident to custodial arrest doesn't violate 4A
• "a custodial arrest of a suspect based on PC is a reasonable intrusion under the 4A; that intrusion being lawful, a search incident to the arrest
requires no additional justification."
• "it is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full
search of the person is not only an exception to the warrant requirement of the 4A, but is also a 'reasonable' search under that amendment."
• Rehnquist writes for the majority (categorical approach)
o discusses "an adequate basis for treating all custodial arrests alike for purpose of search justification
o no need for cops to conduct "case-by-case adjudication"- stotz says we should be doing.
• Marshall dissents (case by case approach)
Ct per Rehnquist: In a lawful custodial arrest, a full search of the person is not only an exception to the warrant requirement of the 4th Am, but is also a
“reasonable” search under that Am.” (Search incident to arrest: Gives officer right to search automatically once arrested)
1) Search may be made of the person of the arrestee by virtue of a lawful arrest
2) A search may be made of the area within the control of the arrestee.
Stotzky doesn’t think this is a law determination. He says this is close to an authoritaraian state. What are the limits? Has to be custodial. Has to be
within established police department standards. Patently abusive searches are not allowed (body cavity search for running a redlight). How can you stop
pretextual arrests? It is tough. Stotzky thinks that there should be an automatic suppression of the evidence if the search was not legal. What about
taking the suspect downtown and having it inventoried? How is this different than searching a the time of the arrest? They reason they do this is to make
sure nothing is stolen and weapons introduced? What if you say I am going to put all my goods in this bag and not allow it to be inventoried?
Dissent: Marshall (Douglas, Brennan):
Case-by-case adjudication always necessary - Possibility of a pretext traffic arrest to conduct a search
(racial profiling)
The search in this case divides into 3 distinct phases:
1) Right to frisk: the pat-down of the coat pocket
2) Right to take anything out: the removal of object from pocket
3) Right to open package: the opening of the cigarette package.
Stotz Notes:
• Robinson created a categorical rule
• majority is NOT reading the 2 clauses together
o instead saying that on facts & circumstances in every case where an arrest takes place, its ok to do a full search incident to arrest
• EXAM TIP: think of policies & reason for rule
o case here goes against constitutional decision making
§ meaning that we should ask what the values behind these circumstances are- what's the reason we want to make the rule? - and
then see if the constitution supports it.
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stotz rule: protect cops (even if cops don't think someone's dangerous, they might be hiding a weapon; let the cops conduct a full
custodial arrest to protect against that) BUT also don't allow it into evidence since it would be unreasonable under constitutional
decision- making ideals/ unreasonable (warrantless search)
Patently abusive and pretext searches invalid: (problem with categorical rules v case by case)- stotz critique is that rehn. just said when we it
gets here we will deal with it BUT that a case by case analysis unlike what Rehn/ preaches, which is categorical rules
o
•
Riley v. CA (2009)
categorical rule for searching cell phones
Outcome: lawful custodial arrests of two difference defendants did not allow police to conduct warrantless searches incident to arrest of contents of their
cell phones
Rule: search incident to arrest doctrine does not entitle police to warrantless search of digital content of cell phones.
• huge privacy implications here won out
o modern cell phones as a category implicate privacy concerns far beyond those implicated by the search of a cigarette pack, wallet, or
purse"
o modern cell phones "hold for many Americans the privacies of life"
o warrant generally required for searching cell phones
Limiting Police Discretion
Virginia v. MooreSTATE LAW WONT STOP SEARCH INCIDENT TO CUSTODIAL ARREST
Guy arrested and said that officer exceeded his discretion. There was a state law in place that said that the police had to give offenders of driving with
suspended licenses a summons, rather than arrest them. Instead, police arrested D inviolation of state law, and during the full body search incident to
custodial arrest, found drugs on D. Scalia said you have to look at the reasonableness of the circumstances. The arrest violated a provision of state law.
Said that guys Constitutional rights were not violated.
Outcome: search incident to custodial arrest was constitutionally valid despite the state law restrictions against arrest.
Rule: searches incident to custodial arrests do not violate 4A even if they violate state law.
Rationale: “warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the constitution, and... while State are
free to regulate such arrests how they desire state restrictions do not alter 4A protections.”
Stotz Notes:
• should there be limits on police discretion to arrest and why?
• Should police by required to arrest in some circumstances?
• Should police have the power to arrest someone for a misdemeanor in certain circumstances?
• Police must have some discretion
o The question is how to limit it and at the same time allow police to do their jobs
• What about varying state regulations as to custodial arrest? Should police have discretion in following state laws as to arrests? (VA v.
Moore)
o Stotz says not okay. How do we limit officers’ discretion as to whether they must/must not arrest?
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•
On the other hand, what if statute says you should arrest and the cop doesn’t think you should?
How do you square these cases?
Seems to give a lot of discretion to officer. Stotzky thinks that there should be some limits on executive authority.
Whren v. US (1996)
PRETEXTUAL STOP
Facts: Plainclothes vice-squad officers patrolling high drug area in unmarked car. Suspicious of dark Pathfinder, with Temporary plates and youthful
occupants at stop sign, the driver looking at lap of occupant, and there for 20 sec. Officers U-turned, and Pathfinder turned without signaling and
sped off. Police pursued, and caught them at a red light – when an officer got out of the car and identified himself to suspect Brown, saw 2 large
plastic bags of what appeared to be crack cocaine in petitioner Whren’s hands. Arrested. Plaintiff claimed a pretext.
Ct per Scalia: Unanimous. The decision to stop an automobile is reasonable where the police have p/c to believe that a traffic violation has occurred.
The making of a traffic stop out-of-uniform is governed by the usual rule that p/c to believe that law has been broken ‘outbalances’
private interest in avoiding police contact. Police intent (pretext) irrelevant. What is the remedy if there is racial profiling? Stotzky says
there is no remedy. Doesn’t matter what the intent of the officer was if there was p/c.
Outcome: officers had PC to believe that Ds had violated traffic code and that rendered the stop reasonable, and subsequent custodial arrest and incident
to arrest valid under 4a.
Rule: if a police officer has PC to believe that a law traffic, minor, or otherwise is broken, he may conduct to stop no matter his subjective intent for the
stop.
• We described robinson having established that the fact the officer does not have the state of mind which is hypothecated by the reasons which
provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify
that action.
• Officer’s subjective intent is irrelevant so long as PC exists to conduct a stop
• If you have PC you don’t look into reasons cops stopped some, period!
If you can prove pretext then you have to prove an equal protection claim? Very hard to prove.
How could we ever look into p/c? The defendants argued that anyone could be stopped because almost everyone will make a traffic violation at some
point while driving. There is also “Driving While Black”, a harassment of black people. Where do we draw the line over collective
control over individual freedom?
It is very tough to prove intentional discrimination. Have to prove both disparate impact and intent. He said on the exam it is ok to disagree with him.
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15. UNLAWFUL, PRETEXT, AND ARBITRARY ARRESTS
Gustafson v. Florida (1973)
Facts: Petitioner arrested for failure to have an operator’s license weaving across the centerline in car several times. Car then searched, resulting in the
discovery of a cigarette box with marijuana in it.
Ct per Rehnquist:
Upheld the search on the basis of Robinson, even though
a. no previous encounters with officer
b. no mandatory sentence with offence
c. no police regulations requiring taking petitioner into custody or full body search.
US v. Mota (9th Cir.1993)
Facts: State officers found counterfeit money in the search of 2 bothers incident to their custodial arrest for the municipal violation of operating a food
cart without a license.
Court: By stat, such violations receive only a citation, therefore the 4th Am required suppression of their money.
Other Searches of the Person
United States v. Edwards: paints chips taken from defendant’s clothing while he was in jail was ok because (WHITE) “the effects in his
possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched without a warrant
even though a substantial period of time has elapsed between the arrest and subsequent administrative processing on the one hand and the taking
of the property for use as evidence on the other.” Full searches of the person is usually made when that person has been delivered to the place of
his forthcoming detention. Upheld on 2 bases:
1) As a delayed Robinson search incident to arrest
2) As an inventory incident to booking to safeguard the property of the accused and to ensure that weapons and contraband are not
introduced into the jail.
Warrantless search of Effects
Illinois v. Lafayette (1983)
Facts: Amphetamines found in respondent’s shoulder bag during an at-the-station inventory of his effects following his arrest for disturbing the peace.
Ct per Burger:Examining all the items removed from the arrestee’s person or possession and listing or inventorying them is an entirely reasonable
administrative procedure
§ Inventory Process:
1) Sometimes employees at police stations steal held arrestee property.
2) Arrested persons have been known to make false claims of theft.
3) Arrested persons known to injure themselves and others with belts, knives, drugs or other items on their person while being
detained
4) Dangerous looking instrumentalities – razor blades, bombs, or weapons – can be concealed in innocent-looking articles
taken from the arrestee’s person.
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US v. Edwards (1974)
Facts: Paint chips obtained from defendant’s clothing, taken from him without a warrant while he was in jail about 10 hrs after his arrest for attempted
breaking and entering.
Ct per White: Once defendant lawfully arrested and in custody, his effects may lawfully be searched and seized w/o a warrant.
Dissent: Stewart (Douglas, Brennan, Marshall):
Police had plenty of time to get a warrant and no exigent circumstances were presented as an
excuse.
Warrantless search of the Body
Schmerber & McNeely (1966)
NO CATEGORICAL RULE FOR WARRANTLESS SEARCH OF "BLOOD ALCOHOL CONTENT"
Rule: body metabolism no longer per se exigency exception for taking warrantless blood samples
• Schmerber: earlier case; body metabolism held to create exigent circumstances to avoid search warrant requirement (no time to get a warrant
as the blood alcohol content dissipates).
• McNeely: later case; court refused categorical rule that risk of destruction of BAC evidence always allows police to take blood sample
without a warrant.
o court said that mere fact that someone may have elevated alcohol level is not an exigency which allows them to take BAC w/o a warrant
o doesn't present a per se exigency here- have to look at it case-by-case; different from robinson's categorical approach
Maryland v. King
NO SEARCH WARRANT NEEDED FOR DNA SAMPLE
Rule: DNA cheek swab sample for arrest of serious crime is reasonable search; does not require a warrant
• mere routine booking procedure (similar to fingerprinting & photographing)
o part of identification procedure
• “the application of traditional standard of reasonableness [in the context of 4a searches] require a court to weigh the promotion of legitmate
governmental interests’ against ‘the degree to which [the search] intrudes upon an individual’s privacy.”
• Dna is person’s genetic code; very personal
• Scalia’s dissent: BE AWARE. Scalia usually police guy & he was here. Argument that it is totally wrong cheek swab as opposed to getting
swabbed everywhere we go.
Knowles v. Iowa (1998)
Policeman stopped Knowles for speeding and then, pursuant to a statute authorizing (but not requiring him to issue a citation in lieu of arrest for most
bailable offenses, searched.
Search unconstitutional because no need to search since no actual arrest. The officer would not be in danger because he searched the car and not the
person and the guy wasn’t going to be arrested. 2. No need to preserve the evidence of excessive speed. The officer should
have arrested him and then he would have been able to search.
This changes the rule of Robinson. It is rare for Rehnquist to rule in favor of a defendant. The rationale is to prevent officer from harm and preserve
evidence but in Robinson they don’t look at the reasons. Is there a political reason for this decision? Could be some deal
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making. He can only search the car if there is probable cause for something else. Ex. What if you arrest some guy for a traffic
offense and you want to search the car for weapons? There would have to be probable cause for weapons too.
Very unusual case: Have to understand why it is different.
Lower courts said that the search would be upheld because “a citation in lieu of arrest does not affect an otherwise lawful arrest.” Rehnquest said that the
search was unlawful. Most of the rules are that you can search “incident to the arrest” this is the Robinson case. This is a way to
get around the warrant requirement.
Winston v. Lee (1985)
Facts: Court-ordered surgery on defendant for the purpose of removing a bullet expected to show that defendant was the robber hit by the victim’s
gunfire.
Ct per Brennan:
Unreasonable reach. Surgical intrusions beneath the skin depends on a case-by-case approach in which the individual’s interest
in privacy are weighed against society’s interest in conducting the procedure.
How do you intrude upon someone’s mind? Physical and phycological duress? They could threaten you saying that you couldn’t practice law.
US ex rel. Guy v. McCauley (E.D. Wis.1974)
Court: A stationhouse search of the vagina of an incarcerated female which resulted in the discovery of a packet of narcotics, violated due process
because it was not conducted ‘by skilled medical technicians.’
Cupp v. Murphy (1973)
Facts: Murphy voluntarily appeared at the station for questioning concerning the strangulation of his wife. There, police noticed what appeared to be
blood on his finger. Had p/c to arrest him, but did not formally do so.
Ct per Stewart:
The warrantless taking of scrapings from his fingernails was constitutionally permissible. Why is this reasonable? Needed to
preserve the evidence is what they say.
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VII. Interplay in the 1st, 4th, 5th, & 6th Amendments
4th Amendment – The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
5th Amendment - No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any
person be subject for the same offense twice to be put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property without the due process of law; nor shall private property be taken for public use.
Mere Evidence Rule
Gouled v. US (1921)
Court: Using Boyd as precedent, created Mere Evidence Rule. Warrants may be resorted to when the property is an instrumentality or fruit of crime or
contraband.
A former rule of criminal procedure prohibiting the seizure of objects of evidential value whether pursuant to a warrant, 255 U.S. 298, or incident to
arrest. 285 U.S. 452. The rule is no longer in effect and thus there is no distinction between "mere evidence" and instrumentalities, fruits of crime
and contraband, in terms of seizure under the reasonableness standards of the Fourth Amendment. 387 U.S. 294. Even private personal papers
may be seized as long as the privilege against self-incrimination is not violated by compelling a person to make a record or to authenticate the
papers by their production. 427 U.S. 463.
A SEARCH WARRANT must identify the place to be searched and the items to be seized. Such items may include fruits or instrumentalities of crime
(such as stolen money or burglar's tools) or contraband (such as illegal drugs). In Gouled v. United States (1921) the Supreme Court held that search
warrants could not issue to seize mere EVIDENCE of crime.
In WARDEN V. HAYDEN (1967), however, the Court held that warrants could issue for mere evidence so long as there was a "nexus" between the
evidence and the criminal behavior.
One commentator has summarized the "mere evidence rule" after Zurcher as follows: Zurcher represents a case in which none of the items searched for
by the police was a fruit or instrumentality of a crime, or contraband. Under the pre-Hayden rule, the warrant used in Zurcher could not have been issued.
Yet the present broad rule is so well established that the Supreme Court's majority opinion did not even discuss the issue.
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Warden v Hayden (1967)
Facts: Police reliably informed that an armed robbery had taken place and that the perpetrator had entered a certain house 5 minutes earlier.
Ct per Brennan:
Repudiates Mere Evidence Rule – Gov’t need not have a greater property interest. “The principle object of the 4th Am is the
protection of privacy rather than property." Must have P/C: If so, searchable, seizable, and useable.
§ Testimonial and communicative objects cannot be taken (Blood, hair, breath, fingerprint – not testimonial, therefore can be taken)
Hot Pursuit Exception: admitting into evidence objects taken in a hot pursuit search/seizure.
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16. SEIZURE OF DOCUMENTS
Taxpayer and Client
Couch v. United States (1973)
Facts: Documentary summons directed to taxpayer accountant, requiring production of the taxpayer’s own records in the possession of the accountant.
Court: Rights of taxpayer not violated by the enforcement: 5th AM protects against the compelled production of testimonial evidence only if the
individual resisting production had a reasonable expectation of privacy with respect to the evidence.
1) Accountant not object of the Summons
2) No reasonable expectation of privacy if given to another.
What types of evidence may be seized? It is important for us to know if we are going to do business law. Under Boyd the government could issue a
subpoena or summons when they had a superior property interest. If the goods were stolen then there would be a superior property interest. In Boyd the
government was owed taxes so they had a superior property interest but was illegal. The government could not search for mere evidence. If there was
not an instrumentality etc. they would be able to get it.
What about the idea that some things are more private than others? Think of diaries, they are someone protected but not according to O’Connor. Fruits
and instrumentalities is not the rule.
Hypo: What if during a search for a gun the cops see a book about cannibalism in plain view. They could seize it.
Look up Warden v. Hayden. No “Mere evidence” rule. So the scope of the search is increased. The idea of the 4th amendment was to prevent “general
searches”. In the colonies they used to be able to search anyone at anytime for anything.
§
BOYD : A REVIEW
§ Mere Evidence Rule: Gov’t can’t seize items unless it has a superior property interest.
§ Usually includes things like instrumentality of a crime (knife, gun), fruits of a crime (stolen watch), and contraband (drugs).
§ Can’t just look for general incriminating evidence
§ Property Protection Approach: Focused on nature of evidence/property, not process by which it was obtained
§ 4A & 5A interplay: “[W]e have been unable to perceive that the seizure of a man’s private books and papers to be used in evidence against
him is substantially different from compelling him to be a witness against himself.”
Warden v. Hayden: Mere Evidence Rule Overruled
§ Issue: Whether clothing should not have been admitted along with gun and ammunition found during search incident to hot pursuit because it
had “evidential value only.”
§ Outcome: Clothing properly admitted
§ Rule: 4A doesn’t create distinction b/w “mere evidence” and fruits/instrumentalities of crimes. Warrant may be issued to search/seize any
property that constitutes evidence of crime.
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§
Shift to Privacy Protection Approach: 4A meant to protect the privacy of citizens from being violated by the government; type of property that is
the subject of the search is irrelevant
§ “[T]he principal object of the 4A is the protection of privacy rather than property, and [we] have increasingly discarded fictional and
procedural barriers rested on property concepts.”
Law Office and Client
Andresen v. Maryland (1976)
Facts: St. authorities obtained search warrants to search petitioner’s law and corporate (Closed Corporation – owned by one person or small family)
offices for specified documents. Found memos concerning property scheme. Papers found admitted against the petitioner at his trial, and he was
convicted. Fisher doctrine: “an attorney’s production pursuant to a lawful summons, of his client’s tax records in his hands did not violate the
Fifth Amendment privilege of a taxpayer ‘because enforcement lawyer would not compel the taxpayer to do anything-and certainly would not
compel him to be a witness against himself.”
“A party is privileged from producing the evidence but not from its production.”
Ct per Blackmun:
Seizure of documents does not compel him to be a witness against himself (no Compelled Testimonial Self-Incrimination), for
the petitioner not asked to say or do anything:
1) Voluntarily Written
2) Search and Seizure an independent gov’t action, did not request anything of man. No compulsion to create or turn in.
3) Not asked to authenticate
Rationale: D voluntarily wrote the incriminating information on his files before the search took place and cops searched & seized the records
pursuant to valid warrant. D wasn’t forced to testify or produce them himself.
Rule: 5A protects against self-incrimination, not disclosure of private information.
Holmes: “A party is privileged from producing the evidence but not from its production.”
“[T]he protection afforded by the self-incrimination clause of 5A ‘adheres basically to the person, not to information that may incriminate him.’
Thus, although 5A may protect an individual from complying with a subpoena for the production of his personal records in his profession
because the very act of production may constitute a compulsory authentication of incriminating information . . . a seizure of the same materials
by law enforcement officers differs in a crucial respect—the individual against whom the search is directed is not required to aid in the
discovery, production, or authentication of incriminating evidence.”
Dissent: Brennan: Forth and Fifth amendments run into each other. Any forcible extortion of a man’s own testimony or his private papers to be used as
evidence to convict him of crime is within condemnation of the Amendment.
Notes: Nature of document seized: A diary, etc. would not be able to be seized …unless such things have served or are serving a substantial purpose in
furtherance of a criminal enterprise.”
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Warrant to search Attorney’s office
O’Connor v. Johnson (Min.1979)
Facts: Warrant issued for an attorney’s office to search for and seize a certain client’s business records
Court: It is unreasonable to permit law enforcement officers to peruse miscellaneous documents in an attorney’s office while attempting to locate
documents listed in a search warrant. Not an unreasonable burden to proceed through subpoenas in seeking documents held by attorneys.
California
The law calls for appointment of a special mast to spearhead the search. One side says it isn’t enough protection while the prosecutor’s side says it
impairs law enforcement.
Model Pre-Arraignment Code
If items to be searched call for the search of other items of a more personal nature then the “executing officer shall not examine the documents but shall
either impound them under appropriate protection where found….” If a return is not ordered then the search can procede.
Tattered Cover, Inc. v. City of Thornton
Bookseller sought to protect the purchase records of a particular customer. Patriot Act made it easier to search, then revised to make it more difficult.
Congressional offices
“Legislative materials” are protected. A 3-person filter team of executive agents not involved in the investigation was insufficient. Congressmen must
have an opportunity to assert privilege as to specific items.
Subpoena vs. Search Warrant
Which is more intrusive? ([S] – both have compulsive aspects)
§ Subpoena: No P/C necessary.
§ Bad: Can lead to evidence destruction
§ Good: Can be used if lacking necessary P/C for warrant, or to fish for evidence
§ May prove the 3 elements which the gov’t must prove:
1) Evidence Exists
2) Evidence in you possession
3) Authenticates Evidence
US v. Bennett (CA 1969)
Friendly:
Vice of Unlimited Search: “The reason why we shrink from allowing a personal diary to be the object of a search is that the entire diary
must be read to discover whether there are incriminating entries; most of use would feel rather differently with respect to a ‘dairy’ whose
cover page bore the title “Robberies I Have Performed””.
What is the difference between a civil summons, civil summons or subpoena “deuces tacum”?
If you refuse to show up then you will be held in contempt. You can file a motion to quash a subpoena. Think of Hubbel, they asked for everything.
Would you rather issue a warrant or a subpoena as a prosecutor? Maybe a warrant because it is sudden, but if you don’t have probable cause then a
subpoena.
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17. FOREGONE CONCLUSION & ACT OF PRODUCTION
Attorney / Tax papers
Fisher v US (1976)
Facts: IRS visited taxpayer first. Documents written by taxpayer, accountant worksheets, and accountant-firm-taxpayer correspondence. Summons
directed attorney to produce documents. Attorney claimed Attorney-Client privilege / immunity of client transferred to lawyer. Attorney had
represented that the property was free from encumbrances. Some of the documents seized were produced by the petitioner. Notes: Anything
already written is not protected. Subpoenas are not perfect substitutes for warrants because many agencies do not have subpoena power.
Privileges: Attorney-client, doctor patient, any more?
Issue: Did A/C privilege apply? Could attorneys be compelled to produce incriminating evidence in the tax business records/papers?
Outcome: A/C privilege didn’t apply b/c 5A privilege didn’t apply to D taxpayers. Attorneys could be compelled to produce the docs.
Rationale: Accountants voluntarily created docs prior to the summons for business purposes.
“[P]re-existing documents which could have been obtained by court process from the client when he was in possession may also be obtained
from the attorney by similar process . . . ”
“The papers belong to the accountant, were prepared by him, and are the kind usually prepared by an accountant working on the tax return of
his client . . . the Gov’t is in no way relying on the ‘truth telling’ of the taxpayer to prove the existence of or his access to the documents.”
Ct per White: Old cases said that the warrant was the thing that was compulsory. Does this erode to values of the 5th Amendment? No. Privilege may
transfer (“for the client will then be reluctant to transfer possession to the lawyer unless the documents are also privileged in the latter’s
hands” – Policy), but here client never had privilege, therefore could not transfer it. If gov’t could have gotten papers from taxpayer,
can get it from lawyer. Also, enforcement against a taxpayer’s lawyer would not compel the taxpayer to do anything. “Every invasion
of privacy is not a violation of the 5th.” “The court has never on any ground, personal privacy included, applied the 5th to prevent the
otherwise proper acquisition or use of evidence which, in the Court’s view, did not involve compelled testimonial self-incrimination of
some sort.” Attorney Client privilege: Still good for things that are incriminating? Seems that nothing is protected. Private nature of
documents is not protected. It is the authentication that is protected.
§ Forgone conclusion that documents exist, that they are in his possession, and no need to authenticate (can have accountant do that, though
there exists a loose accountant-client privilege)
§ The Fifth Amendment protects against compelled self-incrimination not the disclosure of private information. “The Fifth Amendment might
incriminate the taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial
communications.” The accountants work papers are not the taxpayers. Even if the taxpayer wrote the documents they wouldn’t be
protected. Because the could have gotten info from taxpayer. Only protected if the subpoena required the person to write it. Use immunity
is that they can’t use the information against you to convict you at trial. If they can find it somewhere else then they can get you.
§ Compulsion there but not testimony and incriminating.
§ Tax record are not “private papers” as envisioned by Boyd v. U.S.
Concurrence: Brennan:
Classification of papers: some may reflect an extension of the person, while others may fall outside the scope of such a
privilege. Some business records would be protected as well as canceled checks or tax records. When disclosed to other
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parties though the protection may be forfeited. Papers in a personal diary are protected. Is this more protective of the 5th
Amendment? Zone of privacy.
Concurrence: Marshall: “If there is a real danger of self incrimination then the documents should be protected.” Immunity will prevent contents of
documents from being introduced.
** A person served with a subpoena requiring the production of documents tending to incriminate him generally has no basis in the privilege to refuse to
comply, because the act of producing the documents does not involve testimonial self-incrimination. Thus, there is also no attorney-client privilege
violation by production of the documents by the attorney, because the documents were not privileged under the Fifth Amendment in the hands of the
client. However, if the document in the hands of the attorney is within the Fifth Amendment privilege, the attorney-client privilege would permit the
attorney to refuse to comply with the subpoena.
Fisher and Boyd
Boyd: Nature of evidence sought an issue. “Several of Boyd’s express or implicit
implications have not stood the test of time.”
Fisher: Compelled Testimonial Self-Incrimination (CTSI), compelling production but not the information placed in the letter.
-Application of the Fisher Rationale
A summons is not compulsory, you only have to show up. They don’t have to turn over documents if there is a good reason.
Producing Evidence from 3rd Parties
Zurcher v. Stanford Daily (1978)
Facts: Officers injured by protestors. 2 days later, the Stanford Daily published photos devoted to the attack and demonstration: belief photographer
might have pictures of assailants. A warrant was obtained to search the offices for negatives. A search was conducted of all photo labs, filing
cabinets, and desks. Next day, paper sought judgment in D.Ct: declaratory relief granted.
Ct per White: Government may seize information of 3rd party not related to crime: State interest in enforcing the criminal law and recovering evidence
remains the same, whether 3rd party suspect or not.
Dissent: Stevens: Fourth Amendment objection: If there is no fear that third party would destroy evidence then probable cause is not satisfied. “If
nothing said under oath in the warrant application demonstrates the need for an unannounced search by force, the probable cause requirement is not
satisfied.”
Dissent: Stewart (Marshall):
Subpoena more protective of newspaper rights, allowing it to produce only the specific documents requested.
I.
Rules:
a. 4A allows search/compulsion of evidence from people not suspected of a crime as long as PC that evidence of crime is there
b. Search ok even if subpoena would be just as effective
i. Somewhat more intrusive as to third parties to show up and search the premises but Court said it’s ok
c. No extra 4A protection for searching/seizing newspapers despite their 1A protection
II.
Notes:
a. Important constitutional purpose of newspaper/press: Give society info about the gov’t so our rights aren’t violated/protects us against
gov’t
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i. Newspaper reporters depend on sources for info
ii. Allowing search of press office (even w/ PC) can do exactly what we don’t want to happen: press become more secretive & hide
their sources; sources might not come forward if they know info won’t be confidential
iii. Impairment to flow of info to the public as a result
US v. Doe [Doe I] (1984)
Is this a fishing expidition? Why didn’t the government get to foregone conclusion? Maybe because they are so intertwined with personal records. No
because he never admitted that he had them.
Facts: Document from sole proprietor requested several times, but refused by person.
D.Ct – Sustained the subpoena’s 5th Am challenge – Production would incriminate.
A.Ct – Agrees. Adds notion of Privacy
S.Ct – Upholds D.Ct order, but overrules A.Ct determination that the contents of the documents are privileged under the 5th Am.
Ct per Powell:Contents of records sought not privileged, but unlike Fisher, finding in lower court here that the act of producing the documents would
involve testimonial self-incrimination. Only their production, not their creation was compelled. So they could be admitted. Cannot
compel creation of documents.
§ Use Immunity – Using information. Obtained to prosecute. Gov’t agrees not to use act of production against you (Existence, possession and
control, authentication – protected, but not contents). Immunity applies as far as 5th Am: Contents not protected because the 5th doesn’t
protect contents, just production. So the immunity was granted only for production. Contents are discoverable.
Concurrence: O’Connor:
“The 5th AM provides absolutely no protection for the contents of private papers of any kind.”
a. Rule: 5A doesn’t protect content of voluntarily created business records, even if created by the defendant/subpoenaed party
i. A record prepared by a subpoenaed party and is in his possession is “irrelevant to the determination of whether its creation was
compelled.”
b. Interesting outcome here: D still wins; able to assert 5A privilege under act-of-production doctrine and avoid forgone conclusion
doctrine
i. While the content of business records isn’t, privileged, the act of producing them may be privileged.
ii. Compliance w/ subpoena here would require sole proprietor to “admit that the records exist, that they are in his possession, and
that they are authentic”
iii. Hypo: court order says you must “hand over records of your tax fraud crimes from 2013 to the present.” Assume that if you
comply, you will go home and come back with a box of records. There is a lot of testimony implicit in that act. Your implicit
testimony includes the following:
1. You believe that you committed tax fraud in that time window.
2. Each of the records in the box exist and were in your possession.
3. You believe that each of the records you are handing over show that you committed tax fraud in the relevant time
window.
a. Of these, the third is the most important. When the government issues an order requiring you to hand over a
general category of records, you have to go back and decide which of your records fits within the general
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category and which does not. Handing over the records amounts to testimony that the records you are handing
over are within that general class of records sought by the order.
iv. Here: sole proprietorship personally liable for crimes & decisions of business; turning over docs that would incriminate himself
v. Also D didn’t concede that docs were in existence at all; gov’t didn’t know if they were (no PC) so couldn’t use forgone
conclusion
1. Constructive immunity v. transactional immunity (only insofar as 5A-protected though)
Dissent: Marshall (Brennan): Concurrence determination not an issue in the present case. Documents discussed at present were business documents not
diaries.
Authentication and the foregone conclusion doctrine
When it is a foregone conclusion that evidence existed and it was authentic production would not be new information so it wouldn’t be protected under
the Fifth Amendment.
Rationale of the foregone conclusion doctrine
“But if the government already knows the answer to that question and is truly uninterested in the implicit answer provided by production, the witness’
gratuitous communication of it should not violate the Fifth Amendment.” Not important, not substantially relevant to the prosecution’s case given its
other evidence.”
Potential incrimination
If threat of self-incrimination was substantial and real could be protected but court didn’t say this.
Establishing a foregone conclusion
U.S. v. Ponds (2006 D.C. Cir.)
“the reasonable particularity standard cannot demand that the subpoena name every scrap of paper that is produced.”
How do you prosecute? You have to make deals with other people to get them to turn over information.
McDougal was given immunity and refused to testify, she was given contempt.
In Re Boucher (2007)
Border agents lawfully seized a computer searched through titles suggesting the computer contained child pornography. The owner voluntarily entered
his password and then was arrested. Later he refused to enter his password.
Conclusion: “revealing the password would be testimonial.” A password, like a combination to a safe is in the suspect’s mind, and is therefore
testimonial.” Tried to say that foregone conclusion meant it could be used.
Is it voluntary if you don’t know you have a right to refuse? He says yes because the court said that we don’t have a right to be told.
“The foregone conclusion doctrine does not apply to the production of non-physical evidence, existing only in a suspect’s mind where the act of
production can be used against him.”
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Act of Production Doctrine
“A grant of immunity need be only as broad as the privilege against self-incrimination. So the privilege may only extend to the act of production.
Producing the document would not be used against the defendant.
Production by an entity agent.
Braswell v. US (1988)
Facts: Federal grand jury issued a subpoena for petitioner, who had authority over business affairs, to produce the books and records of the corporations
of which he was president and sole shareholder. Had wife and mother on the board.
Ct per Rehnquist:
May not resist subpoena due to nature of corporate form which courts have long recognized that for purposes of the 5th Am are
treated differently from individuals. Officer acts as representative of corporation and corporations don’t have protection. If
custodians could assert a privilege, authorities would be stymied not only in their enforcement efforts against those individuals
but also in their prosecutions or organizations. Wants to go after White Collar Crime.
Dissent: Kennedy (Brennan, Marshall, Scalia):
Detrimental impact on ferreting out white-collar crimes. Giving immunity to person producing
document goes too far. Often the act of the agent is what is at the heart of the matter, not the
corporation.
2. Compare Doe 1 to Braswell v. United States
i. Corporation, not sole proprietorship (no personal liability)
ii. Rule: No 5A privilege for a corporation, only for individuals/individual rights
iii. Collective Entity Rule: Custodian of corporate/entity records is an agent of the corporation; holds records in corporative
representative rather than personal capacity and may be compelled to produce them
‘Collective Entity Rule’: Custodian only acting in name of corporation, not as individual. Law treats corporation differently: 5th Am protects
person, not corp. Without Rule, detriment in prosecuting white-collar crime.
Doe v. US [Doe II] (1988)
Facts: Petitioner the target of a federal grand jury investigation of unreported income. Petitioner pleaded 5th on specific bank documents, and banks
refused to send information due to their own client secrecy laws. Prosecutor then filed motion requesting petitioner be ordered to sign forms
stating that he was “directing any bank… at which I may have a bank account of any kind or at which a corporation had a bank account upon
which I am authorized to draw” to deliver records of those accounts to the grand jury. Petitioner refused to sign the consent directive.
Ct per Blackmun:
Incriminating information to come from the banks, not petitioner
§ Definition of testimony: “a testimonial communication must itself, implicitly or explicitly, relate a factual assertion or disclose information”
to the government. Had to do it.
§ “It is the extortion of information from the accused, the attempt to force him to disclose the contents of his own mind, that implicates the
Self-Incrimination Clause.” This is tightening the noose on white collar crimes.
Dissent: Stevens:
Petitioner can be compelled to use his mind to assist the Government in developing its case, he will be forced ‘to be a witness
against himself.’
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Justice Goldberg’s systematic rationale of the self-discrimination privilege: [Murphy v. Waterfront Comm’n (1964)]
1) unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt
2) Accusatorial system, not inquisitorial (most support)
3) Fear self-incriminating statements ma arise out of inhumane treatments and abuses
4) Sense of fair play: a fair state-individual balance, which requires the gov’t to leave the individual alone until good cause is shown for disturbing
him & gov’t must bear entire load (Most support)
5) Respect for a “private enclave where an individual may lead a private life”
6) Distrust of self-deprecatory statements
7) The privilege is a shelter to the innocent.
Others
Smith v. Maryland (1979)
Courts: No violation for pen register installed at phone co., by request of police, to record the telephone numbers dialed by a criminal suspect, for an
individual has no expectation of privacy in the numbers dialed onto a telephone, because they are voluntarily conveyed to the telephone co.
Baltimore City Department of Social Services v. Bouknight (1990)
The non-documentary act of production. It is possible that there is a privilege but not in this case.
The Supreme Court directed respondent to produce her son.
“In receiving conditional custody from the juvenile court, the mother had ‘assumed custodial duties related to production” and had does so as part of a
noncriminal regulatory scheme with included a production component. “Imposition of such limitations was not foreclosed.”
United States v. Hubbel (2000)
Clinton appointed him Chief Justice of Arkansas Supreme Court. Clinton then appointed him a deputy attorney general. Day before he resigned
Clintons said they would be supportive of him. He got about $450,000 in consulting gigs from Clinton supporters. First case he was convicted and plead
guilty but entered into an immunity plea for other things. Then indicted on tax fraud on basis of documents that he produced. They thought that he was
covering for Clinton.
He had been billing clients for work he didn’t do. Over $500,000 and didn’t pay taxes.
Two questions for court: 1) whether the Fifth Amendment privilege protects a witness from being compelled to disclose the existence of incriminating
documents that the government is unable to describe with reasonable particularity. And 2) if the witness produces such documents pursuant to a grant of
immunity, whether 18 U.S.C. prevents the Government from using them to prepare criminal charges against him.” Offered him use immunity which
means that if they could find out info from other sources they could use it against him. Contents not protected just the act of production.
Webster Hubbell commenced by the Independent Counsel to investigate possible violations of federal law relating to the Whitewater Development
Corporation.
Defendant made a plea bargain and promised to help the Independent Counsel with “full, complete, accurate, and truthful information” about matters
relating to the Whitewater investigation.
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He later appeared before a grand jury and invoked his Fifth Amendment privilege against self-incrimination.
This case was described as the “quintessential fishing expedition.”
The defendant had to do a lot to produce the documents, it was more than just turning them over. It was not “the fruit of only a simple physical act-the
act of producing the documents.”
Because of the complexity of the documents they should have been protected.
There was no foregone conclusion in this case: “The government has not shown that it had any prior knowledge of either the existence or the
whereabouts of the 13,120 pages of documents ultimately produced by respondent.” This is the contents of his own mind.
Conclusion: “respondent could not be compelled to produce those documents without first receiving a grant of immunity.” Court of Appeals vacated
the judgment and remanded for further proceedings. Supreme Court affirmed. Didn’t think the guy should be convicted because he basically had to
testify against himself.
New test: Should the Independent Counsel prove capable of demonstrating with reasonable particularity a prior awareness that the exhaustive litany of
documents sought in the subpoena existed and were in Hubbell’s possession, then the wide distance evidently traveled from the subpoena to the
substantive allegations contained in the indictment would be based upon legitimate intermediate steps.
No foregone conclusion here because the scope of documents is way too broad.
Government has to prove that evidence they use is derived from an independent source wholly independent from testimony.
Dissent: Rehnquist:
Concurring: Thomas and Scalia: “In a future case, I would be willing to reconsider the scope and meaning of the Self-Incrimination Clause.” 5th
Amendment protects witnesses not just testimony. The protection is broader than recognized by the current case law. Witness is one who gives evidence
not just provides testimony.
The government can issue a subpoena if they don’t have probable cause to issue a warrant. If you turn over an item in response to a subpoena you can’t
say that you didn’t know you had it.
Act of production immunity
“since the act of production communicated the existence and location of documents previously unknown to the government, the contents of those
documents were fruits of that immunized testimony.”
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