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
Stop & Frisk
o Investigatory Detentions:
 To make an investigative stop of a person, the Fourth Amendment requires
police to have reasonable suspicion supported by specific, articulable
facts of criminal activity or involvement.
 If the police also have reasonable suspicion that the suspect is
armed, they may also conduct a frisk to ensure detainee has no
weapons.
 Investigatory stops are valid only where the officers act in a diligent and
reasonable manner in confirming or dispelling their suspicions.
 Stops generally not subject to a time limit
 The fact that a search yields a weapon does not necessarily mean
the search was reasonable
o Reasonable Suspicion:
 “Reasonable suspicion” requires something more than vague suspicion,
and must be based on specific, articulable facts known to the officer at the
time.
 Whether the standard is met is judged under the totality of the
circumstances.
 The suspicion need not arise from officer’s personal knowledge;
can also be based on police dispatch or informants.
 An informant’s tips must be accompanied by sufficient
indicia of reliability to make suspicion reasonable

Searches
o What Constitutes a Search?
 A search is defined as a governmental intrusion into an area where a
person has a reasonable and justifiable expectation of privacy.
 The Fourth Amendment expressly prohibits and proscribes
unreasonable searches and seizures.
 A reviewing court must determine whether a search or a seizure
took place
 To determine the constitutionality of a search, we must ask:
 (1) Does the defendant have Fourth Amendment rights?
 (2) Was there a reasonable expectation of privacy?
 (2) Was there governmental conduct (i.e. not a private party)?
 (3) Did the police have a valid warrant?
 (4) If no warrant, was search within confines of the six warrant
exceptions?
o The Plain-View Doctrine:
 The plain view doctrine allows a police officer to seize objects not
described in a warrant when executing a lawful search or seizure if he:
 (1) observes the object in plain view, and
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
 (2) has probable cause to believe that it is connected with criminal
activities.
The incriminating character of the object should be immediately
identifiable.
 Evidence in a container cannot possibly be identified by plain
observation or touch and therefore should not be seized unless it is
listed in the warrant.
o The Third-Party Doctrine:
 Under this doctrine, an individual has no reasonable expectation of
privacy in information or items voluntarily conveyed to a third party.
 Ex.) phone records
o The “Open-Fields” Doctrine:
 Under this doctrine, law enforcement agents are permitted to enter and
search property deemed “open fields” without a warrant
 Applies even to private property, i.e. even where officers trespass
onto property, if it is considered “open fields,” no fourth
amendment violation has occurred.
 Curtilage
 The home and its curtilage, roughly described as the area in
immediate proximity to the home, e.g. the front porch, and enjoy
fourth amendment protections.
 When considering whether something is in a dwelling's curtilage,
courts consider four factors:
 (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, and
 (4) The steps taken by the resident to protect the area from
observation by people passing by.
 The Supreme Court considers apartments and hotel rooms “homes” under
the fourth amendment
 However, fourth amendment protections are not extended to the
interior hallways or common areas of apartment buildings
 Has led to the widespread use of canine sniffs and knock and talks
in these areas
 Open Fields
 “Open Fields” are beyond the curtilage, and enjoy no fourth
amendment protections.
 Governmental intrusion and information collection upon
open fields do not constitute searches or seizures under
the Fourth Amendment.
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o Knock and Talk/Dog Sniffs
 Courts have generally permitted knock-and-talks and dog sniff searches in
common areas based on the theory that individual tenants lack the ability
to exclude other occupants from them, i.e. no “reasonable” expectation of
privacy
o Electronic Surveillance:
 Wiretapping and any other form of electronic surveillance that violates a
reasonable expectation of privacy constitutes a search under the Fourth
Amendment.
 The speaker assumes the risk that a person they’re talking to might
be “unreliable,” i.e. wearing a wire or acting as an informant
 Evidence relayed to police in this manner enjoys no Fourth
Amendment protections

Seizures
o What Constitutes a Seizure?
 To constitute a seizure, the fourth amendment requires:
 (1) a physical application of force by the officer, or
 (2) a submission to the officer’s authority or show of force.
 It is not enough that the officer merely ordered the person
to stop.
 When it is not readily apparent whether a seizure has occurred, a court will
consider whether, under the totality of the circumstances, a reasonable
person would have felt free to leave and/or terminate the encounter.
o Automobile Stops:
 Generally, police officers may not stop a vehicle unless they have
probable cause to believe that a law has been violated.
 Stopping a car is a seizure for Fourth Amendment purposes.
 Typically traffic violations
 Only two instances where officers need only reasonable suspicion to stop
a vehicle:
 Drunk driving checkpoints, or
 Immigration enforcement
 Officers may search the interior of a stopped vehicle based on reasonable
suspicion that the suspect is armed and dangerous. Contributing factors
include;
 (1) Non-compliance/reluctance
 (2) Sudden movements
 (3) Dangerous objects in view
 (4) Closed bags/containers that could hold weapons
 The interior includes everywhere inside the passenger compartment
 Includes the glove compartment
 Includes any closed containers within the vehicle
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 Does NOT include the trunk, as the trunk is not “within reach” or
within the “dominion and control” of the occupants

Excessive Force
o Police Use of Force:
 In general, law enforcement officers pursuing a suspect may use deadly
force during an arrest only where:
 (1) The force was necessary to prevent escape, and
 (2) the officer has probable cause to believe that the suspect poses
a significant threat to officers or the public.
 When a police officer uses deadly force to apprehend a suspect, there is no
question that a “seizure” has taken place, but it must be reasonable
 Whether the force used to effect a particular seizure is reasonable
under the Fourth Amendment requires a balancing of “the nature
and quality of the intrusion on the individual’s Fourth Amendment
rights” against the “countervailing governmental interests at
stake.”
 The test for Fourth Amendment reasonableness includes;
 (1) Severity of the crime at issue
 (2) Whether the suspect poses an immediate threat to the safety of
officers or the public
 (3) Whether the suspect is actively resisting arrest or attempting
flight
o Qualified Immunity:
 The doctrine of qualified immunity shields officials from civil liability so
long as their conduct;
 (1) Does not violate a clearly established statutory or constitutional
rights of which a reasonable person would have known, and;
 (2) that the right was “clearly established” at the time of the
challenged conduct.
 A clearly established right is one that is sufficiently clear
that every reasonable official would have understood that
what he is doing violates that right.

Probable Cause
o Probable Cause to Arrest:
 Probable cause exists if a reasonable officer would infer from the
circumstances that a given suspect has committed or is committing a
crime. The standard is an objective one, and is based on the facts known to
the officer at the time.
 Probable cause to arrest is present when, at the time of the arrest,
the officer has within their knowledge reasonably trustworthy
facts and circumstances sufficient to warrant a reasonable, prudent
person to believe that the suspect has committed or is committing
a crime for which arrest is authorized by law. (Barbri Definition)
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o Qualified Immunity:
 Qualified immunity protects those officers who make a reasonable error in
determining whether there is probable cause to arrest an individual.

The Warrant Requirement
o To be valid, a warrant must:
 (1) Be issued by a neutral and detached magistrate;
 (2) Be based on probable cause established from facts submitted to the
magistrate from a government agent upon oath or affirmation; and
 (3) Particularly describe the place to be searched and/or items to be
seized.
o Showing of Probable Cause:
 A warrant will be issued only if there is probable cause to believe that
seizable evidence will be found on the premises or the person to be
searched.
 The officers requesting the warrant must submit to the magistrate
an affidavit containing sufficient facts and circumstances to enable
the magistrate to make an independent evaluation of probable
cause (i.e. the officers cannot just present their own conclusions)
o Use of Informants:
 If the officer’s affidavit of probable cause is based upon information
obtained from informers, its sufficiency is determined by the totality of the
circumstances.
 The affidavit need not contain particular facts about the informer,
as long as it allows the magistrate to make a common sense
determination of probable cause.
 Reliability and credibility of the informer are relevant factors, but
not prerequisites for determining probable cause.
o Evidence May Be Admissible Without Probable Cause:
 Evidence obtained by police in reasonable reliance on a facially valid
warrant may be used by the prosecution, despite an ultimate finding that
the warrant was not supported by probable cause.
o “No-Knock” Warrants:
 In order to justify a “no-knock” entry, police must:
 (1) Have a reasonable suspicion that knocking and announcing
their presence under the circumstances would be dangerous or
futile, or;
 (2) that it would inhibit the effective investigation of the crime by
allowing for the destruction of evidence.
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
Exceptions to the Warrant Requirement
o There are six exceptions to the warrant requirement, i.e. where a warrantless
search is reasonable and therefore valid under the Fourth Amendment; to be valid,
a warrantless search must meet all the requirements of at least one exception.
o The Automobile Exception:
 If the police have probable cause to believe that a vehicle such as an
automobile contains contraband or fruits, instrumentalities, or evidence of
a crime, they may search the vehicle without a warrant.
 Extends to a passenger’s belongings
 Applies to containers within the vehicle that might contain the
object for which police are searching
 If the police only have probable cause to search a container
(recently) placed in the vehicle, they may search only that
container.
 Police may open the trunk of a car to get to the container
 Applies to motorhomes
 Extends to any vehicle that has the attributes of mobility
and lesser expectations of privacy, similar to a car.
o Administrative Searches:
 Inventory Searches;
 The police may search an arrestee’s personal belongings (including
their vehicle and close containers within it) in order to inventory
them before incarcerating the arrestee.
 Roadblocks;
 If the police set up a roadblock for purposes other than to seek
incriminating information about the drivers stopped, the roadblock
will likely be constitutional, e.g. may not conduct roadblocks for
generalized law enforcement purposes or to detect ordinary
criminal wrongdoing.
 Roadblocks must have a specific, primary purpose, such as
DUI checkpoints for road safety, or enforcing border
security.
o Consent Searches:
 The police may conduct a valid warrantless search if they have a voluntary
consent to do so.
 Any person with an apparent or equal right to use or occupy the
property may consent to search, and any evidence found may be
used against other owners or occupants.
 Police need only reasonably believe that the consenting
person held authority to do so at the time of search.
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o Exigent Circumstances:
 Police officers may enter a home without a warrant to prevent the
destruction of evidence, even if the exigency arose because police
knocked on the door and asked for entry, as long as the officers have
reason to believe;
 (1) that evidence is being destroyed, and
 (2) the officers did not create the exigency through an actual or
threatened Fourth Amendment violation.
 The exigency that justifies the exception/warrantless action also restricts
the scope of the search.
 Ex.) Warrantless entry pursuant to the “clothing exception” means
that police may only enter and find clothing for arrestee
o Emergency Aid Exception
 Police may enter a home without a warrant when they have an objectively
reasonable basis for believing that an occupant is seriously injured or
imminently threatened with such injury.
 No probable cause necessary

Exceptions and Arrests
o An officer may effectuate a warrantless arrest if there is probable cause to believe
the arrestee has committed a crime.
 Police generally need not obtain a warrant before arresting a person in a
public place, even if they have time to get a warrant.
 Police are prohibited from making a warrantless entry into a
suspect’s home in order to make a routine felony arrest, even
where probable cause is present
 Home arrests need a warrant!

Searches Incident to Arrest
o Generally, the police may conduct a warrantless search incident to an arrest as
long as the arrest is constitutional and it was made on probable cause.
 If the arrest is unconstitutional, the subsequent search is also
unconstitutional.
 Police may search subsequent to any constitutionally valid arrest;
need not fear for their safety or believe they will find evidence
o Traffic Stops/Automobiles – Searches Incident to Arrest
 Issuance of a traffic violation is insufficient grounds for search incident to
arrest; if the suspect is not arrested, there can be no search incident to
arrest.
 After arresting the occupant of an automobile, police may search
the interior of the vehicle incident to arrest if, at the time of the
search;
 (1) the arrestee is unsecured and still may gain access to the
interior of the vehicle, and
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
 (2) police reasonably believe that evidence of the offense
for which the person was arrested may be found in the
vehicle.
Police may search passenger compartment/any containers within the
vehicle incident to a lawful arrest.
o Homes – Searches Incident to Arrest
 A search of a home incident to arrest can only be upheld if the arrest is
effectuated inside of the home; the police may search the person and areas
into which he might reach and obtain weapons or destroy evidence, i.e.
within suspect’s “wingspan”
 The arrestee’s wingspan follows him as he moves; thus, if arrestee
enters his home, police may follow and search areas within
arrestee’s wingspan inside his home.
 Police may also make a protective sweep of the area
beyond the suspect’s wingspan if they believe accomplices
may be present (for the safety of officers)
o Technological Searches Incident to Arrest
 To determine the constitutionality of a search incident to arrest involving
things that did not exist when the Fourth Amendment was adopted (i.e.
cell phones), the court will balance the degree to which the search intrudes
upon a person’s privacy, against the degree to which the search is needed
to promote legitimate government interests.
 Police generally may not without a warrant, search digital
information on a cellphone seized incident to arrest; however,
officers may inspect the physical attributes of a cell phone
 A search of the data would not would not further the goal
of a search incident to arrest, given the phone’s data cannot
itself be used as a weapon against police or to effectuate
arrestee’s escape.

Traffic Stops – Racial Profiling
o Traffic Stops;
 Any traffic offense committed by a driver is a legitimate legal basis for a
traffic stop
 If an officer has probable cause to believe that a traffic law has
been violated, the officer may stop the suspect’s automobile, even
if the officer’s ulterior motive is to investigate a crime for which
the officer lacks sufficient cause to make a stop (Whren v. United
States)
o Immigration Enforcement;
 Officers need only reasonable suspicion to stop a vehicle at the border and
its functional equivalents.
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 Border Patrol officers on roving patrols cannot stop a vehicle near
the border when the only ground for suspicion is that the occupants
appear to be of Mexican ancestry.

The Exclusionary Rule
o The exclusionary rule is a common law doctrine that prohibits the introduction, at
a criminal trial, of evidence obtained in violation of a defendant’s Fourth, Fifth, or
Sixth Amendment rights.
 Generally, not only must illegally obtained evidence be excluded, but also
all evidence obtained or derived from exploitation of that evidence (“Fruit
of the Poisonous Tree” doctrine)
o “Inevitable Discovery” Exception;
 If the prosecution can show that the police would have discovered the
evidence whether or not they had acted unconstitutionally, the evidence
will be admissible.
o Good Faith Exception;
 The exclusionary rule does not apply when the police arrest or search
someone erroneously, but in good faith, thinking that they are acting
pursuant to a valid arrest or search warrant.
o “Attenuation” Exception;
 If the connection between unconstitutional police conduct and the
evidence is remote or has been interrupted by some intervening
circumstance, so that the causal link between police misconduct and the
evidence is broken, the evidence will not be suppressed.
 Factors the court will consider include;
 (i) the temporal proximity between the unconstitutional
conduct and the discovery of evidence (i.e. whether the
misconduct took place before or after the discovery)
 (ii) the presence of intervening circumstances, and
 (iii) the purpose and flagrancy of the police misconduct
(most important!)

Sixth Amendment Right to Counsel
o The Sixth Amendment provides that in all criminal prosecutions, the defendant
has a right to the assistance of counsel; the Supreme Court has held that the
Fourteenth Amendment incorporates this right to the states.
 The right is violated when police deliberately elicit an incriminatory
statement from a defendant without first obtaining a waiver of the
defendant’s right to have counsel present.
 The right to counsel does not depend upon a request by the
defendant, and courts indulge in every reasonable presumption
against waiver.
 Only applies after adversary judicial proceedings have
begun, i.e. formal charges have been filed, and the right
does not attach during pre-charge custodial interrogations.
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 The line is drawn at actual imprisonment; there is no right
to counsel where a defendant will be merely fined (e.g.
where defendant has incurred a traffic ticket).

Interrogations
o Confessions resulting from police investigations may be challenged under three
constitutional provisions;
 The Due Process Clause (5th/14th Amendments)
 Sixth Amendment Right to Counsel
 Fifth Amendment Privilege Against Self-Incrimination
o The Due Process Voluntariness Test;
 For confessions to be admissible, the Due Process clause of the Fourteenth
Amendment requires that they be voluntary; voluntariness is assessed by
looking at the totality of the circumstances, including the suspect’s age,
education, and mental and physical condition, along with setting, duration,
and manner of police interrogation.
 Only official compulsion (e.g. police coercion such as physical
assault, being held incommunicado, or being kept awake for days
at a time) will render a confession involuntary for purposes of the
Fourteenth Amendment.
 Where the government can show that there was other,
overwhelming evidence of guilt, the erroneous admission
of an involuntary confession will be found to be harmless
error.
 Physical evidence (e.g. a murder weapon) obtained as a
result of un-mirandized statements are admissible as
evidence, even where the statement itself might not be, as
long as such statements aren’t the product of police
coercion.

The Miranda Rule
o The Miranda warnings and a valid waiver are prerequisites to the admissibility of
any statement made by the accused during a custodial interrogation. A person
must, prior to the interrogation, be clearly informed that;
 (i) He has the right to remain silent;
 (ii) anything he says can be used against him in court;
 (iii) he has the right to the presence of an attorney; and
 (iv) if he cannot afford an attorney, one will be appointed for him if he so
desires.
o Public Safety Exception;
 Where officers ask questions reasonably prompted by a concern for public
safety, a suspect need not be Mirandized.
o Police Deception of Detainee’s Lawyer;
 If Miranda warnings are given, a voluntary confession will be admissible
even if police lie to detainee’s lawyer about their intent to question
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detainee, or fail to inform detainee that his lawyer is attempting to see
him, as long as adversary judicial proceedings have begun
o Custodial Interrogations;
 In determining whether custody exists for the purposes of an interrogation,
the court considers
 (1) Whether a reasonable person would feel that he was free to
terminate the interrogation and leave, and;
 (2) whether the relevant environment presents the same inherently
coercive pressures as the type of questioning present in Miranda,
e.g. questioning or interrogation at a police station.
 The more a setting resembles a traditional arrest, the more
likely the court will consider the interrogation to be
custodial.
 A suspect’s youth makes a finding of coercion more likely
 The test is an objective one; the court considers things like location of
questioning, whether police had guns drawn, the length of the questioning,
the suspect’s youth (or lack thereof), whether the suspect was told they
could leave, etc.
 Traffic stops are generally not considered custodial, and Miranda
warnings generally need not be given.
 Miranda warnings are unnecessary where a suspect is
unaware that they are speaking to police, and they
voluntarily give an incriminating statement.
 “Interrogations” under Miranda are defined as any words or
actions on the part of the police that police should know are
reasonably likely to elicit an incriminating response.
o Waiver of Miranda Rights;
 After receiving Miranda warnings, a detainee has several options;
 Do nothing
 Waive their Miranda rights
 Assert the right to remain silent
 Assert their right to consult an attorney
 Do Nothing;
 If the detainee does nothing, the court will not presume a waiver,
nor will it presume that any rights have been asserted, and police
may continue questioning.
 Waiver of Rights;
 The detainee may waive their Miranda rights; to be valid, the
government must show by a preponderance of the evidence that the
waiver was knowing and voluntary.
 Typically, if the government can show that the detainee
received Miranda warnings and then chose to answer
questions, it is sufficient to prove a knowing and voluntary
waiver.
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 A detainee need not know what crime(s) they are being
questioned about for waiver to be voluntary
o Miranda – Right to Remain Silent (Fifth Amendment);
 At any time prior to or during interrogation, the detainee may indicate that
he wishes to remain silent; such an indication must be explicit,
unambiguous, and unequivocal (e.g. failure to answer does not constitute
an invocation of the right to remain silent)
 The police may reinitiate questioning after the detainee has
invoked their right to remain silent, as long as they “scrupulously
honor” the detainee’s request. This means at the very least that
police cannot badger the detainee into talking, and must wait a
significant period of time before additional questioning.
 The Supreme Court in Michigan v. Mosley allowed police
to reinitiate questioning where (i) the police immediately
ceased questioning upon detainee’s request to remain silent
and did not resume for several hours, (ii) the detainee was
re-warned of his Miranda rights, and (iii) questioning was
limited to a crime that was not the subject of earlier
questioning.
o Miranda – Right to Counsel (Fifth Amendment);
 At any time prior to or during interrogation, the detainee may invoke their
Fifth Amendment right to counsel; where the detainee invokes this right,
all questioning must cease until the detainee is provided with an attorney
or initiates further questioning themselves.
 Fifth Amendment request for counsel can be invoked only by an
unambiguous request for counsel in dealing with the custodial
interrogation; the request must be sufficiently clear that a
reasonable police officer would understand the request.
 Police may not resume questioning about any crime; once
the detainee invokes his right to counsel under Miranda, all
questioning must cease; the police cannot question detainee
even about unrelated crimes (whereas they can if only the
right to remain silent is invoked)
 Duration of Prohibition;
 The prohibition against questioning a detainee after they request an
attorney lasts the entire time that the detainee is in custody for
interrogation purposes, plus 14 more days afterward.
 After two weeks, the detainee can be questioned regarding
the same matter or crime upon receiving a fresh set of
Miranda warnings.
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o Effect of Miranda Violation;
 Generally, evidence obtained in violation of Miranda is inadmissible at
trial.
 “Question First, Warn Later”
 If the police obtain a confession after intentionally
withholding Miranda warnings, and then subsequently
Mirandize a detainee to re-obtain and legitimize the
confession afterward, the confession is inadmissible.
 However, a suspect who responds to unwarned questioning
is not precluded from later waiving their rights following
warnings (i.e. if suspect blurts out information prior to
warnings police can mirandize suspect to legitimize the
confession, since the admission was voluntary)
 Use of Confession for Impeachment;
 A confession obtained in violation of the defendant’s
Miranda rights, but otherwise voluntary, may be used to
impeach the defendant’s testimony if he takes the stand at
trial.
 Such a confession is inadmissible in the state’s case in chief
as evidence of guilt.

Pretrial Identification
o In general, the purpose of the rules concerning pretrial identification is to ensure
that when the witness identifies the person at trial, they are identifying the person
who committed the crime, and not merely the person they saw at the police
station.
o Sixth Amendment Right to Counsel;
 The Sixth Amendment guarantees an accused the right to counsel at pre-trial
identification procedures only after judicial criminal proceedings have begun
(i.e. after the filing of the indictment).
 A suspect has a right to the presence of an attorney at any post-charge
line-up or show-up.
 “Line-up” is when the victim picks the perpetrator from a
group for ID purposes
 “Show-up” is when victim is one-on-one with
perpetrator/suspect for ID purposes
 Role of Counsel at Lineup;
 The right is simply to have an attorney present during the lineup, so
that the lawyer can observe any suggestive or improper aspects of the
lineup, and bring them out on cross-examination of the witness.
 Photo Identification;
 The accused does not have the right to counsel at photo identifications.
 Physical Evidence;
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 The accused does not have the right to counsel when the police take
physical evidence such as fingerprints.
o Due Process Standard;
 A defendant can attack an identification as denying due process when (i)
the identification is unnecessarily suggestive, and (ii) there is a substantial
likelihood of misidentification.
 To meet this standard, identification must actually have been
extremely suggestive.
 The burden of proof is on the defendant to show an alleged due
process violation.
o The Remedy;
 The remedy for an unconstitutional pre-trial identification is exclusion of
the in-court identification, unless it has an independent source.
 A witness may make an in-court identification despite the
existence of an unconstitutional pre-trial identification if the incourt identification has an independent source, separate from the
pretrial identification.
 The government bears the burden of proof as to the presence of
counsel or a waiver by the accused, or as to independent source for
the in-court identification.
 Factors a court will weigh in determining whether there is a valid
independent source include;
 (i) The opportunity of the witness to observe the suspect at
the time of the crime;
 (ii) the witness’s degree of attention;
 (iii) the accuracy of the witness’s prior description of the
suspect;
 (iv) the level of certainty demonstrated at the confrontation,
and;
 (v) the time between the crime and the confrontation.
o Hearing;
 The admissibility of identification evidence should be determined at a
suppression hearing in the absence of the jury, but the exclusion of the
jury is not constitutionally required.
o No Right to Line-up;
 The defendant is not entitled to any particular identification procedure,
and may not demand a line-up.
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o No Self-Incrimination Issue;
 A suspect has no basis in the Fifth Amendment Right against selfincrimination to refuse to participate in a lineup, given a lineup does not
involve compulsion to give testimonial evidence.
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