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Crim Pro Outline

I. 4A Regulation of Searches
A. Defining a "search" triggering the 4A-4A as two key roles in the American Legal order:
Protecting privacy: Law's chief source of privacy protection
Regulating Police: Concerns not the interests being protected, but the actors being regulated --> applies to all
government actors, but almost always enforced against cops
o Legal regulation of police searches and arrests consists mostly of 4th amend regulation
For the 4A to apply, there must be:
Search or
By a government actor
Search: an intrusion on your reasonable expectation of privacy --> must have that reasonable expectation for the search
to be regulated
Reasonable: based on what the court thinks is reasonable
Seizure: meaningful interference in the possessory interest in your property
Skinner v. Railway (USSC, 1989): two part test to determine if acting at request of state actor?
If unclear, examine totality of circumstances: BOTH HAVE TO BE TRUE
o Did private person believe at time of search or seizure that action was implicitly or explicitly required or
requested by government?
o Did government actors have reason to know their actions might give rise to such belief or that such
belief existed?
Government conduct can constitute a search for two reasons today:
Because the government obtained information through an unlicensed physical intrusion on a constitutionally
protected area or
Because it intruded on an individual's reasonable expectation of privacy
The Reasonable Expectation of Privacy (REP) Test
Katz Reasonable Expectation of Privacy Test:
Where there is an intrusion on REP Standard: two prong test for determining whether a "search" has taken place-XI.
A person has exhibited an actual (subjective) expectation of privacy and
That the expectation be one that society is prepared to recognize as reasonable
Note--"knowing exposure": what a person knowingly exposes to the public, even in their own home or office, is not a
subject of 4A protection
The revival of the Trespass Standard (re Jones)
A search where someone intrudes/trespasses on your property to gather evidence/information against you,
without your permission
Physically occupying someone's property to gather information
Contexts where you don't have an REP:
Open Fields Doctrine--CAN'T constitute a search: police entry and search of open fields involves no 4thA intrusion even if
officers intrude on privately owned land
 An area outdoors that is not in your curtilage
 No REP, even under trespass test: because not a person, house, paper nor effect
Vs. Curtilage--CAN constitute a search: area immediately surrounding home, factors:
 The proximity of the area claimed to be curtilage to the home
 Whether the area is included within an enclosure surrounding the home
 The nature of the uses to which the area is put and
 The steps taken by the resident to protect the area from observations by the people passing
Aerial Overflights
Narcotics detector dog sniffs (unless the dog sniffs your curtilage)
 Don’t have any REP for illegal contraband
Katz v. US (USSC, 1967): specifically rejects the view that physical trespass is necessary to establish a search --> extends
4A protections to recordings of oral statements
Holding: the unwarranted wire-tapping of a public phone booth constitutes a search and seizure under the 4thA
The 4thA prohibition against unreasonable searches and seizures of physical items extends to recordings of oral
D justified in assuming that his phone conversation would remain private
Permits the obtaining of information outside of a traditional search in areas where an individual does not have a
reasonable expectation of privacy
FL v. Riley (USSC, 1989): re open fields --> aerial observation of an area within the curtilage of a home from a helicopter
at an altitude of 400 feet is not a search requiring a warrant under the terms of the 4thA
Holding: since sides and roof of greenhouse were partially uncovered, D didn't have a reasonable expectation that the
area could not be seen by aircraft
heli was in compliance with air traffic laws and didn't disturb the home or curtilage during the observation
Caveat: flying overhead in a helicopter at a level other persons could fly is not a search --> if other people can't,
cops can't
Third Party Doctrine: if in plain view, then no reasonable expectation of privacy
FL v. Jardines (USSC, 2013): re trespass standard --> using a drug-sniffing dog on a homeowner's porch to investigate the
contents of the home is a search within the meaning of the 4thA
Holding: a search occurs under the 4thA when the government obtains information by physically intruding on an
individual's person, house, or belongings
 Using a dog is within the meaning of the 4thA if the dog is on your curtilage --> violates because detecting
obtained information by physically intruding on D's property
 But knock and talks ok: they can knock on your door and try to get you to talk because it's with your consent
EXTENDS to apartment hallways!!  REP in your hallway even if not a traditional curtilage
 More like a porch
Takeaway: it is a 4A regulated search if government actors in by physically entering and occupying the curtilage of the
home to engage in conduct not explicitly or physically permitted by the homeowner
Aka trespass standard: when the government engages in a physical intrusion of a constitutionally protected area
US v. Place (USSC, 1983): Dog sniffs not a search --> no REP in illegal contraband, so not a 4A regulated search
 Note: apartment hallway more like a public walkway than porch (split)
Rodriguez v. US (USSC, 2015): Under the Fourth Amendment, a police officer may not prolong a routine traffic stop to
have a drug-sniffing dog walk around the vehicle.
Holding: If you're detained longer than you should have been that's reasonable for a court, then cop can't conduct a
drug sniff without reasonable suspicion or a search warrant
If held longer than reasonable, then you were seized
The authority for the seizure ends when the tasks tied to the traffic violation are completed or should have been
BUT because a narcotic detector dog's nose is sui generis, detecting only illegal contraband, the dog sniff around
a car/bag is not a 4A regulated search
An officer may conduct certain unrelated checks during a lawful traffic stop only if those checks do not prolong
the stop.
A drug sniff, unlike a routine check, is not relevant to roadway safety and cannot be described as part of the
mission of the stop
The Third Party Exposure Doctrine
Third Party Exposure Doctrine: If your information is exposed to a 3rd party, no REP
If others can hear, see, smell --> then police can do it too
Re Katz: what a person knowingly exposes to the public, even in their own home or office, is not a subject of 4A
Standard: police have to be in a legitimate place to see
Ie they see you snorting coke that's visible through the living room window
 Can they just go into your house? --> no, because they have to go put what they saw in the warrant
UNLESS by the time you get the warrant, there's nothing left (exigent circumstance)
Common Contexts:
Undercover agents and recordings
 Undercover agent or informant recording (wearing a wire): unregulated by 4A
 But WA state is more protective: law enforcement exception to the two-party consent rule for
recording by an officer BUT requires judicial approval based on PC of a felony by the
nonconsenting party
 So perverse incentive to use human wires
 Unmanned wire (wiretap): highly regulated by BOTH 4A and state/fed statutory laws
Trash searches: not 4A regulated search
 Re CA v. Greenwood:
 Not an abandonment rationale --> rather, a 3rd party exposure rationale
Bank and phone records: not a 4A search
 Re US v. Miller
 Obtaining financial records is not a 4A regulated search because info exposed to third party
 But note the Right to Financial Privacy Act: requires subpoena or court order for financial
records  only take into account if it comes up!! Otherwise just assumed not regulated
 Smith v. Maryland: re Pen Register Act
Obtaining records of phone numbers dialed from a person's phone via pen register is not a 4A
regulated search
 Analogous to IP addresses today (can't get content, but can see website addresses visited)
But Congress didn't like so they say you need a subpoena or warrant or something
 Subpoena/court orders are on even lower standard than warrant: mere relevance sufficient
 Re the the Right to Financial Privacy Act: requires subpoena or court order for financial records
 only take into account if it comes up!!
US v. White (USSC, 1971): no Fourth Amendment search and seizure when the person the defendant is speaking with is
secretly a government agent or an informant wearing a wire and recording what is being said.
Holding: The Fourth Amendment right against unreasonable searches and seizures does not protect people from their
misplaced expectations of trust
4A doesn't prohibit government agents from testifying to what they heard over a wire-tap worn by an informant
D assumed the risk when they chose to confide in others about their illegal activities
So electronic surveillance that allows agents to listen in real time is admissible provided the agent is not
otherwise violating the D's reasonable expectations of privacy
Takeaway: depends on whether one of the parties is consenting because third party exposure --> if no consent, then 4A
 But if they're sneaking a recording device and no one is in the know, then no third party exposure
CA v. Greenwood (USSC, 1988): The warrantless search of trash left outside on the curb does not violate the Fourth
Amendment, because a person has no reasonable expectation of privacy in trash left for collection in a publicly
accessible place.
Holding: People place their trash out for collection with knowledge that it will be taken into the possession of a third
 So society does not accept the expectation of privacy in one's trash, which has been left outside for pickup, as
objectively reasonable
US v. Miller: bank customers have no reasonable expectation of privacy in their bank records
Holding: A bank customer voluntarily gives any information contained in bank records to the bank and such records are
observable by the bank’s employees.
 An individual that volunteers information to a third party assumes the risk that the third party is not going to
hand over the information to the government.
US v. Jones (USSC, 2012): re tracker on car --> brought back standard for trespass test --> trespass to protect privacy
against new tech
Holding: The warrantless placement of a GPS tracking device on the undercarriage of an individual’s vehicle in order to
track the person’s movements on public streets constitutes an unlawful search in violation of the Fourth Amendment.
 Vehicle is an "effect" for 4A purposes --> so government's installation of a GPS decide constitutes a search
 Not a seizure because no meaningful interference, didn't affect the car itself
 But trespass: physically attaching something to his car without consent
 Physically occupied his property to gather information
 Revives the trespass standard: physical invasion/intrusion of property to gather information is a search -->
physically occupied his property to gather information
Technological Challenges and the Revival of Trespass
Kyllo and New Tech: 3rd Party Exposure Doctrine Under Strain
Kyllo v. US (USSC, 2001): re new technology not available to public use --> constitutes 4A search
Holding: law enforcement's use of sense-enhancing tech to see details of a private home that would not be discoverable
without physically entering the home constitutes a Fourth Amendment search.
 using a device that is not publicly available to see details of a private home that would be undiscoverable
without physically entering the hole constitutes a 4A search
 Caveats: Applies to tech not in general public use to detect intimate information in a home
Tech & 4A: two SCOTUS sentiments in tension
US v. Knotts: nothing in the 4A prohibited the police from augmenting the sensory faculties bestowed upon them at
birth with such enhancement as science and technology afforded them in this case
Jones v. US; Kyllo v. US: we must assure preservation of that degree privacy against government that existed when the
4A was adopted
Carpenter on Pervasive Data Searches: Revising the REP and 3rd Party Exposure
Monitoring addresses of the web sites that you visit: IP address vs. URL
 IP addresses okay
 URL not okay --> basically wiretapping
Carpenter v. US (USSC, 2018): have to get a 4A warrant, third party doctrine doesn't apply --> compelling wireless
carriers to turn over data that tracks users' movements for long periods of time requires a warrant, absent exigent
Holding: SC recognized that people have a reasonable expectation of privacy in their physical movements as a whole in
US v. Jones
 Society doesn't expect police to secretly monitor and track a person's every movement for long periods of time
 Can't continue a search indefinitely: even if the initial installation wasn't a search, becomes so if search is
 For location information: if person is tracked for 7 or more days then becomes a 4A search for which a
warrant based on probable cause is required
 We have an REP in the information on our phones (even though the phone companies technically own the
 Usually if the government wants data on you from another company, they need a subpoena
TAKEAWAY: cell phones have so much of our intimate data that they're special enough to not be subject to the
individual rules
US v. Warshak (6th Circuit, 2010): email is like mail --> the government may not compel a commercial ISP to turn over
the contents of a subscriber’s emails without a warrant.
Holding: A subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent
or received through, a commercial ISP
 4A must keep up with modern tech: protecting warrantless searches of a person's email is a perfect example of
where 4A jurisprudence must be updated, particularly given email's similarity to traditional forms of
communication such as letters or phone calls
 Stored Communications Act unconstitutional where it allows the government to obtain emails from a
commercial ISP without a warrant
Electronic Eavesdropping and Stored Communications Searches: Statutory
Approaches to Regulating Electronic Eavesdropping and Searches of Electronic
Outdated Statutory Law: Stored Email and the Stored Communications Act
 Ie court order to gain access your computer not sufficient --> container of data, so you need a warrant based on
probable cause
 If looking at your container of anything, then need warrant
Unopened over 180 days: probably not important/abandoned, so government has options
 Minimum: subpoena
 Subpoena standard--mere relevance: there is a likelihood that the information sought by the warrant may be
relevant to a pending investigation
Opened undeleted email: becomes remote storage, storage provider rules apply OR ECS? (but circuit split)
 At a minimum, need subpoena
 Statute unclear where opened but under 180 days --> does it become remote storage provider or ECS
Circuit split: unopened vs. opened (but less than 180 days) --> blurry
 But also more generally split over whether SCA's regime regarding access to emails is unconstitutional under 4A
Stored Email: Electronic Communications Privacy Act (ECPA) 18 USC 2701-2712 --> Regime for non-content
Bottom line: biggest cut is between content and non-content information
 Content--protected more strongly: substance of what you're saying
 ie emails themselves, content of the texts themselves
 Government usually wants your content
 Non-content--protected less strongly: name, personal information
 Analogous to pen register case
 Ie IP addresses
 Need court order
Account info: name, address, payment method, credit card number used to pay bill
 Subpoena: based on reasonable possibility (easier to get)
 Info is relevant to an investigation
 Or court order, or warrant
Other transactional info: email addresses of people with whom suspect corresponds
Court order: based on reasonable articulable grounds to believe info is relevant and material to ongoing criminal
investigation (or warrant)
 More protective, because at least it's a judge saying whether or not they're agreeing with the
--> standard between subpoena and court orders similar (relevance), but court orders more protective
--> where the law is not clear and you have PC, get the warrant
Statutory law: bugs, wiretaps, and title 3 wiretap law -- Title 3
Wiretaps (requires more than 4A because real time, but 4A can also apply)
Berger v. NY (USSC, 1967): 4A requires more before police can tap
Elements: before you can wiretap, must need- Probable cause: reasonable belief offense is being committed or will be committed +++++
 Particularization of:
 Things (ie kinds of conversations) to be seized
 Person to be wiretapped
 Phone number to be wiretapped
 Place of wiretap
Additional requisites
 Time limits (blanket grant of two months is too long)
 Any extensions must be based on "present probable cause"
 Notice or showing of exigency as to why notice impossible
 "return" that inventories conversations seized
Note: any real time interception is a title 3 violation
 Ie hacking into your smart devices to redirect the video/audio feeds to government investigators
Title 3 Key concepts:
 Intercept: acquisition of contents of any wire, electronic, or oral communication through technological means
 Wire communication: aural transfer using wire, cable, or similar means
 Oral communication: oral communication by someone with REP
 Electronic communication (added in 1986 amendments): transfer of signs, signals, writing, images, sounds, data,
or intelligence in whole or in part by wire, radio, electromagnetic, photoelectronic or photo optical system
 Exception:
 Can record if at least one party to the conversation consents
 That's why huge incentive to get an informant on the inside
 But in places like WA where it's two party consent, WA controls because more protective
 Title 3 also applies to only federal actors
Title 3 Requirements
Minimization requirement:
 Cops can't listen to the private part of conversations so have to turn off the wire tap during, but
sometimes words like "mom" are code words so they'll keep listening
Fourth Amendment Regulation of Seizures--"Consent" Searches:
No Need for a Warrant Nor Probable Cause
i. Of Property ("effects"): when there is some meaningful interference with an individual's
possessory interests in that property
US v. Jones: meaningful interference--interferes with your ability to meaningfully use your property
What gov does with your property has to meaningful affect your ability to use your property
ii. Of Persons: are you seized or are you just having a "consensual encounter"?
RULE: if a reasonable innocent person would not feel frere to decline the officers' requests or otherwise
terminate the encounter then a 4A seizure of a person has occurred.
Definition: intentional acquisition of physical control over someone
US v. Mendenhall: a seizure occurs when a reasonable person would feel they are not free to go
o Necessary element, but does not itself justify a finding of a 4A seizure
Squishy standards: when are you seized?
US v. Drayton (US 2002): Under the totality of circumstances, a reasonable innocent person would NOT
feel free to decline the officers' requests or otherwise terminate the encounter -o But this is just the judge's perception vs. reality
o Consensual police-citizen encounters: those that a reasonable person in the citizen's shoes
would feel free to terminate
o GENERAL RULE: The police may request consent to search a person, even if they have no basis
for suspecting that individual of illegal activity, and the citizen is not subject to a Fourth
Amendment seizure if a reasonable person would feel that he is free to leave.
Standards for two main types of seizures of a person:
o Arrests: probable cause the person has committed an offense
o Terry stops (brief, temporary on the scene detentions, which also are 4A-regulated seizures):
reasonable articulable suspicion the person has committed or is about to commit an offense
 More frequent--just short of an arrest
 Becomes unconstitutional where there is no reasonable suspicion
The mere exercise of your rights alone is not reasonable suspicion, but HOW you do it
can be
 Ie you have a right to walk away, but if you're running away, then reasonable
Seizures and Fleeing from the police: part 1
RULE: even if police order you to stop under their authority as officers, if you flee instead of stop you are not
Cal v. Hodari: Not a seizure during period of fugitivity if police order someone to stop ("show of authority") but
the person doesn't comply
o GENERAL RULE: A Fourth Amendment seizure occurs when a citizen submits to a show of police
authority or is physically restrained by an officer
Have to either comply or physical application of force (even if temporary)
Court: want to encourage compliance
o So if you don't comply and you run, then no seizure
Seizures and fleeing from the police: new case
Torres v. Madrid: It IS a seizure if police apply physical force with intent to restrain, even if suspect does not
comply and the physical force fails to stop the suspect (ie shooting at fleeing suspect)
o If shot: seized at the time they're shot
o Even if cops shooting at you, but the shooting fails to stop the suspect, the suspect IS seized during the
period of fugitivity??
B. Consent (very fictive)
Test--voluntariness: "Voluntary" in criminal procedure does NOT necessarily mean knowing the rights being waived
 Voluntary: a confession made absent police coercion
 Was your will overborn?
 No requirement that cops tell you that you can say no
 Re Schneckloth v. Bustamonte: SC wants to encourage consent
 Note: whether officers advised you of your right to decline a search is one factor that can help establish consent
is voluntary, but the advisal is not required
Relevant factors in assessing if situation is seizure--factors from US v. Medenhall (USSC 1980)
 Threatening presence of several officers
 Display of weapon by officer
 Physical touching
 Language/tone of voice suggesting compliance is compulsory
The Fiction of Consensual Encounters
 INS v. Delgado: INS (old Homeland Security) agents wearing badges and questioning workers in a factory didn't
constitute a seizure
o cited Drayton, not a seizure because factory workers were never actually told they couldn't leave --> but
it seemed like a raid, asking them hella questions and shit
 Muehler v. Mena: no additional seizure when Mena was questioned about her immigration status while
detained in cuffs for 2-3 hours during search warrant execution
In determining whether a person's will was overborne and the agreement to search was voluntary, the
education level and other potential vulnerabilities of the person are relevant factors to argue
As a matter of law, if you have a client and they have vulnerabilities, then as a matter of law, you
should also raise them in court
The 4A as construed by the SC currently leaves unregulated the decision by police as to who to approach to
attempt to initiate a "consensual encounter"
Schneckloth v. Bustamonte (USSC, 1973): totality of the circumstances test --> The court must look at the totality of the
circumstances in order to determine whether consent to a warrantless search absent probable cause was freely and
voluntarily given
C. Third Party Consent
Standard--Valid third-party consenters must have:
Common authority = mutual use and joint access or control for most purposes
 US v. Matlock (USSC 1974)
Three Categories of consenting third parties
Actual authority: actually have mutual use and joint access or control
 Ie Y has actual authority to give valid 3rd party consent for entry to the shared common spaces
Apparent authority: reasonably appear to have mutual use and joint access or control
 Ie cop must have been objectively reasonable or objectively known to the officer at the time
 Ie there are no indicia that X's bedroom is separate and private from rooms in the home, so Y has
apparent authority to consent to the officers entering X's room
Apparent authority dispelled: additional information dispels appearance of apparent authority
 Ie if there are deadbolts on X's bedroom door and other indicia of a separate private apartment
accessible only to X, these circumstances can dispel the appearance of apparent authority of thirdparties to enter X's room
Re Fernandez v. CA: One occupant’s consent to search a premises is effective under the Fourth Amendment as long as
no other occupant who objects to the search is physically present.
Note: Generally don't look into subjective law enforcement intent, so long as objectively reasonable/lawfully
based intention to remove the person
Re landlord-tenant relationships: can't enter/can't let cops enter
Once objecting party is no longer on the premise, then cops can go back and get valid 3rd party consent from
other co-occupant
 Standard for domestic violence situations
If cops have good cause to believe someone in the home is seriously injured they may enter over an occupant's
Cops can't threaten to do something they lawfully can't do:
 Ie can't threaten to arrest if someone doesn't consent, even if they don't have PC to arrest
GA v. Randolph (USSC, 2006): re co-occupants --> the police may not enter a home without a warrant to search for
evidence where they obtain consent from an occupant but a co-occupant is present and objects to the search.
Holding: When there are two occupants of a dwelling present and one is consenting to a search by the police and the
other is objecting to the search, the police may not enter the home and conduct a warrantless search for evidence.
One occupant has no authority over the other to demand a resolution in their own favor --> 4A right transfers to
co-inhabitants when they are present and expressly objecting to someone's entry
when one occupant who is present expressly objects to a police search, the consent of another occupant
actually provides no additional authority to the police to enter absent a warrant or exigent circumstances
III. The Warrant and Probable Cause Requirements
SCOPE FOR STANDARDS (from easiest to hardest to meet)
Mere relevance (subpoena)
Reasonable suspicion (terry stops)
Probable cause (warrants)
Proof beyond reasonable doubt
A. Warrants
Warrants based on probable cause: the default protection when the 4A applies (unless one of the numerous
exceptions applies)
The Warrant Requirement
Warrant safeguards:
 Probable cause: fair probability that evidence of a crime will be found or that person has committed an offense -> flexible common sense notion
 Magistrate judge (reviewing) must be "neutral and detached"
 Doesn't have to be a lawyer
 But cannot be employee of police or prosecution
 Nor paid only for warrants issued but not applications denied
 Judge's finding of PC gets great deference on appellate review
 Does not need be a lawyer
 Oath or affirmation
 Requirement often satisfied by specifying the facts giving rise to probable cause in a cop's affidavit that
is attached to the warrant app
 Important that the circumstances giving rise to probable cause be adequately presented to the
 Particularization of place to be searched and things or person to be seized
 The more particularized, anything that is in plain view can be seized
 Cannot be overbroad in specification
o Ie any and all photos or videos related to sexually explicit conduct
 Search must end when items particularized are found
and return
Practical Points: Challenging a search pursuant to a warrant
 Flexible standard for PC--fair probability; allows room for mistakes
 "negligent" or "innocent" falsehoods (lies) in the affidavit do not invalidate the warrant; rather affiant must have
made deliberately false statements (perjury) or statements in reckless disregard of truth
 But a D may challenge a facially sufficient affidavit after the fact, when it is shown to contain false
 Warrant sufficient is evaluated based on what's in the affidavit; not facts known to the government but not
 Always looking at 4 corners of affidavit
 Severability of defective portions of affidavits
 If after striking the bad shit, what's left is enough for PC, then warrant still stands
 If after severing portions of affidavit base on 4A violations, there is still PC, the search warrant still
Magistrate's PC finding reviewed with "great deference"
If there is an unlawful basis to establish PC in the warrant affidavit, that fact must be struck in reviewing the
sufficiency of the warrant
Evaluating Warrant Sufficiency: evaluating the sufficiency of the PC statements as a basis for the warrant
 Officers can't just bare bones assert --> must provide a basis for why, a backing to their "cause"
 Have to say what's sufficient to make it stand
 Whitely v. Warden (US 1971): facially insufficient affidavits cannot be rehabilitated by testimony concerning
information the affiant had but did not disclose to the magistrate
Warrant Execution
General Rule: Have to knock and announce before entering on search warrant
 Short interval: 15-20 seconds ok to enter for someone who hasn't opened the door (for drug cases--enough time
to flush the monies)
 2-3 seconds NOT enough time
Categorical automatic power to detain people on site during warrant execution: for safety
 Michigan v. Summers (US 1981): automatic power to detain occupants
 Muehler v. Mena (US 2005): automatic power to detain people on site (even if there is no reason to believe they
are involved in the alleged crime)
 Handcuffs subject to reasonableness
 Limit--Bailey v. US (US 2013): automatic power to detain is for occupants in IMMEDIATE VICINITY
 Ie .7 miles away too far
No-Knock Warrants: an exception made for drug cases
 US v. Banks (US 2003)--To get a no-knock warrant in advance, the police must: demonstrate in advance that
there is a reasonable suspicion that knocking and announcing their presence, under the particular
circumstances, would be dangerous or futile or would inhibit the effective investigation of the crime
o Ie by allowing destruction of evidence
 If there wasn't a no-knock warrant but they don't knock: must have been objectively reasonable
 Usually for drug cases cause they can go down the toilet --> drug cases get the double whammy of no-knock
and night time warrants
Night-Time Warrant Execution
 A warrant should command the officer to execute the warrant during daytime, unless the judge for good
cause expressly authorizes execution at another time
o Daytime = 6am to 10pm
 Special rule for narcotics offenses: night time searches are allowed if contraband is likely to be on the
property or person to be searched at the time
The remedial gap for no-knock tragedies
o Causation and knock and announce violations
o Re Hudson v. Michigan: purpose of knock and announce is to avoid tragedies and protect people,
not facilitate shit like flushing
o No exclusionary remedy --> if it's bad enough, then sue
 Even if police enter without knocking and announcing, the evidence will not be excluded
o Barriers to civil remedies
 LA County v. Rettelle: when officers execute a valid warrant and act in a reasonable manner to
protect themselves from harm, the 4A is not violated
 Even where innocent people get hurt
B. The Probable Cause Standard
Arrests: PC suspect committed crime
Searches: PC that evidence/contraband will be found in place searched
Defining PC: fair probability to believe that the person committed crime or there is evidence of crime in the place to be
Can be a quantum of certainty that is less than proof by a preponderance of the evidence
IL v. Gates (US 1983)--The Flexible Current PC standard re anon tips: back to "flexible" "common-sense" totality
of the circumstances
 Highly relevant factors:
 Basis of knowledge
 Indicia of informant reliability
 BUT can PC can be sufficient based on an anon tip even if a factor is missing, but there are:
 Corroboration of details by police
 Other indicia of reliability
 Holding: corroborated statements by an unknown informant can amount to PC --> but anon letter alone
isn't enough
 Must be coupled with affidavit corroboration to establish PC
 PC can be sufficient based on an anonymous tip even if the affidavit omits the anonymous
tipster's basis of knowledge and/or indicia of veracity if there are other compensating indicia of
reliability or corroboration
RULE: if the affidavit states the informant's basis of knowledge for figuring the defendant's and
indicia of the informant's reliability or veracity, then anon statements can support PC
Notes on anon tips:
 Warrants are not invalid due to an informant's subsequently discovered lies unless D shows the
government officer attesting to the warrant affidavit deliberately included falsehoods or recklessly
disregarded falsity
 Even if the affidavit doesn't state the informant's basis of knowledge or indicia of reliability/veracity,
other compensating indica of reliability and corroboration can still support PC
Note--FL v. Harris: narcotics dog alert constitutes PC if a bona fide organization has certified the dog's reliability
after testing in a controlled setting
 Otherwise them bitches all null
Standards of Review: PC Determinations
Did magistrate have "substantial basis" for finding PC?
 Magistrate's PC determinations get "great deference" during appellate review
If no warrant/magistrate review, then no magistrate to give deference to
 Review is de novo: factual findings reviewed for clear error
 BUT officers' inferences get "due weight"
 Ornelas v. US--consent case: if the officer doesn't get a warrant and instead relies on an exception to the
warrant requirement (ie auto exception), there's no magistrate judge finding to accord great deference -> but officers' inferences are given "due weight"
Magistrate/warrant: is there a "fair probability" that contraband or evidence of a crime will be found in a
particular place?
Warrantless search: based on officer's judgment call that exception to the warrant requirement exists
C. Geofence Warrants (aka reverse location search)
Requires google to disclose unique device identifiers and location information for all devices within designated
areas the limited time period when the offense was committed
Dragnet surveillance: sureveillance used to survey everyone
3 step protocol:
Google produces detailed and anonymized location data for devices that reported their location within
the geofences for the limited time frame
Government reviews that information and produces a list of devices for which it desires additional
Google is required to produce information identifying the google accounts for the requested devices
Geofence warrants as an entryway to an investigation: trying to figure out who to even question
Note: not enough precedent to know for sure if a 4A violation
Carpenter issue
IV. Exceptions to the Warrant Requirement
Circumstances in which PC is the governing standard, but warrants are not required
A. Exigent Circumstances
General Rule: a warrant is required to search a person or his home unless there are exigent circumstances
Basic idea of exigent circumstances: officers shouldn't be required to get a warrant when they can't feasibly
do so
o Most common kind: the fear that, if officers don't search immediately, evidence will be destroyed
"Objectively reasonable basis"
Brigham City v. Stuart (USSC, 2006)
RULE: Police may enter a home without a warrant if there is an objectively reasonable basis for believing an
occupant is injured or in immediate danger.
Holding: 4A does not forbid warrantless entry into a home if there is an objectively reasonable basis for believing an
occupant is injured or in immediate danger
 Objective standard --> subjective intentions of the cops don't render such entry unreasonable
o Court will not inquire into subjective intent  so police created exigencies don’t invalidate
Kentucky v. King (USSC, 2011)--Exigent circumstances doctrine: officers may enter a home without a warrant to
deliver emergency aid to an individual, pursue a fleeing suspect, or to prevent the imminent destruction of evidence.
 Prereq to gaining entry into a residence without a warrant under the doctrine: the officers must have PC to
believe that dangerous or suspicious activity is currently taking place
 Subjective intent doesn't matter: Police may enter a home without a warrant if there is an objectively
reasonable basis for believing an occupant is injured or in immediate danger
 So there's no police-created exigency rule: doesn't matter if the cops strategically created the
 Only limitation: cops can't threaten to do what they legally can't do as police
Averting destruction of evidence
Hot pursuit: needs to actually be hot --> you can't have had enough time to get a warrant
Helping seriously injured or averted imminent injury
No minor misdemeanor exception: too minor an offense for warrantless entry into a home absent exigent
Welsh v. Wisconsin: can't be busting into people's houses for civil offenses
IL v. McArthur: not gonna be in the business of minor vs. major misdemeanor --> line is only
between civil vs. criminal offenses
o Ie we don't know if it's a gram of weed or 20 pounds of weed
If the cops have probable cause in exigent circumstances and they’re trying to get a
warrant, then they can just alternatively secure the scene (less aggressive than going in)
 Still a search
Lange v. CA (USSC, 2021): Pursuit of a fleeing misdemeanor suspect does not always or categorically qualify as an
exigent circumstance justifying a warrantless entry into a home.
Holding: That a suspect is fleeing does not categorically create exigency
Government must show actual exigency on the facts
Emergency Aid
Ie when cops get a call that they haven't heard from someone who has drug addiction--> can they enter the home
without a warrant?
Yes: so long as calling it exigent circumstances and/or emergency aid
Lower courts used to refer to the "community caretaking" power of the police justifying warrantless home
NEW CASE--Caniglia v. Strom: SCOTUS clarified that there is NO stand-alone community caretaking
exception short of exigent circumstances and/or emergency aid justifying warrantless home entry
o Must call it exigent circumstances and/or emergency aid
o Affects Brigham holding: requires there be more than community care taking --> emergency aid
Exigent Circumstances & BAC Blood Draws
Rule: If the government shows on the facts of the case, BAC would have dissipated before a warrant for a blood
draw could be obtained, then a warrantless blood draw is permissible under the exigent circumstances exception
 Warrantless blood draws NOT categorically permissible  must show exigent circumstances
Mitchell v. Wis: warrantless blood draw permitted if suspect is unconscious and can't do a breathalyzer blow under
exigent circumstances exception because evidence is "literally disappearing by the minute"
Miss v. McNeely: rejecting per se rule of exigent circumstances for warrantless blood draw where suspect refuses to
Birchfield v. N.D.: warrantless breath tests permitted categorically as valid search incident to arrest (SIA) but not
warrantless blood draw absent showing of actual exigent circumstances
Need a warrant or exigent circumstances
o Can't actually force to blow --> so law will penalize the actual refusal to consent to a breathalyzer under
implied consent laws
o Categorical exigent circumstances:
 If person's passed out
B. Plain View
A doctrine of warrantless search and seizure
Plain View Doctrine: An exception to the warrant requirement allowing the warrantless seizure of items if
 (1) AZ v. Hicks: it is immediately apparent that there is probable cause to believe an item is evidence of a crime,
without additional warrantless search, and
 (2) law enforcement officers are lawfully in a position to see (feel, smell) and search and/or seize
What they saw must be exigent circumstances
Standard: Probable cause must be immediately apparent without additional unwarranted search
Plain View and the Computer Search Dilemma
 The warrant must particularize the digital evidence to be seized based on the crimes for which there is PC
 Under FRCP 41, a warrant for digital data can provide for the copying of the information to be searched later
 If investigators searching digital data see other incriminating evidence for which PC of a crime is immediately
readily apparent, that evidence may be seized too, even if not specified in the search warrant
 (US v. Comprehensive Drug Testing)
o Warrant: search of comprehensive drug testing's facilities to obtain the drug testing data for TEN MLB
o Seized: computerized data for HUNDREDS of players
o Trying to regulate computer searches: judge Kozinski's five Commandments --> before you get the
warrant you need-- (concurrence--not the controlling opinion)
 Plain view waiver
 Firewall
 Investigators can't be the one going through
 Show actual risk of destruction in case
 Protocol to avoid plain view
 Non-retention of data outside warrant authorization and report-back to magistrate
 Can't store it forever
 US v. Ganias: if the police copy your files, ask for them back under Fed R. Crim. P. 41(g)
AZ v. Hicks (USSC, 1987): For a warrantless search or seizure to be reasonable under the Fourth Amendment, the plain
view doctrine can only be invoked to search or seize evidence if the police have probable cause of the evidence’s
incriminating character.
Holding: The plain view doctrine demands that probable cause exist before an officer may search or seize a piece of
Horton v. Cal--No longer an inadvertence requirement: not inquiring about subjectivity of the police
C. The Automobile Exception
Automobile Exception--US v. Carroll: permissible to search an entire car without a warrant if there is probable cause
that the car contains contraband
 Grounded in and amplified by the inherent mobility of the car and risk that the evidence would disappear while
a warrant was obtained
CA v. Acevedo: if police have PC, officers may conduct warrantless searches of cars and containers within them
 Automobile exception: based on PC, can search "integral parts" of the automobile
o Includes glove compartment, if PC extends to compartment
o Includes trunk, if PC extends to trunk
 For destructive search: must have specific addition PC to justify destructive search
 When the police have probable cause that a container in a moveable car contains contraband, they may search
the container without a warrant
o their search must be limited to that specific container, unless they have probable cause that the car
itself contains contraband too
Cardwell v. Lewis: Lesser-Privacy rationale --> diminished expectation of privacy which surrounds the car
 Lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as
one's residence or as the repository of personal effects
 A car has little capacity for escaping public scrutiny --> it travels public thoroughfares
CA v. Carney (US 1985): motorhomes factors
 Readily mobile
 On public streets
 Subject to extensive regulation for autos (ie licensing)
 Situated where objective observer would conclude it is vehicle, not home
 --> does not consider motorhome situated in a way or place that objectively indicates that it is being used as a
Exception applies to a mobile home: lesser expectation of privacy resulting from its use as a readily mobile vehicle
 Lesser expectation derives from the pervasive regulation of vehicles capable of traveling on the public highways
Wyoming v. Houghton (USSC, 1999): can search any container, not just driver's
RULE: Where an officer has probable cause to search a car, he may search containers that belong to a passenger in the
car if the containers could possibly contain the object of the search.
Holding: As long as there is probable cause to search the car, any containers in the car may be searched, regardless of
 BUT NO INVASIVE SEARCHES: can't make you get out of the car and search your body
WA S.C. declines to recognize automobile exception (2012)
 We begin with the presumption that warrantless searches are per se unreasonable under our state constitution
 WA recognizes exceptions for consent, exigent circumstances, SIA, inventory searches, plain view and Terry
investigative stops
 WA SC identifies 5 circumstances from federal cases that could be termed "exigent" circumstances:
o Hot pursuit
o Fleeing suspect
o Danger to arresting officer or to the public
o Mobility of the vehicle
o Mobility or destruction of the evidence
Propinquity and PC to arrest in a car
 Propinquity: proximity
 General rule: mere propinquity is usually not enough to constitute PC
But Md. V. Pringle: proximity to an indicia of distribution quantities of drugs/large amounts of cash --> likely to
be in a common enterprise, so likely PC
D. Arrests
In Public
Warrantless arrest permitted when: US v. Watson
There's PC to believe a felony has been committed
Misdemeanor is committed in the officer's presence
Warrantless arrest: preliminary hearing--48 hours in County of riverside v. McLaughlin (US 1991)
Entitled to a timely hearing because you shouldn't be sitting in jail if cops were wrong about PC
48 hours presumptively timely hearing
o Common basis for not making an appearance: intoxication, mental incapacitation
If there wasn't PC but you were held for longer:
o Remedy: sue
If there actually was PC but you were held for longer:
o The actual case itself is not dismissed
o Remedy: not cutting the case --> would've been in jail anyways
o Even though you're not brought before a court within 48 hours, that does not mean your rights were
necessarily violated
o But if not brought before a court within 48 hours, the government bears the burden of proving
reasonable delay due to an emergency or other extraordinary circumstance
o If the government brings you before a court within 48 hours, you bear the burden of proving
unreasonable delay
In Suspect's home (suspect's vs. 3rd party's home)
Bench warrant: arrest warrant for failure to do X
General Rule--Payton v. NY: arrest warrant but not search warrant required to enter absent exigency or consent
Officer must have reason to believe the suspect is within to enter the suspect's home to enter even with arrest
In a third party's home
Search warrant--Steagalf v. US, Minn v. Carter: Required absent exigent circumstances or consent
Search warrant means magistrate has found PC to believe suspect is in the third party's home (rather than just a
finding that there is PC to arrest)
Protects third parties from roving searches
Third party has right to exclusionary remedy but suspect doesn't UNLESS suspect’s rights have been violated
o Ie suspect is an overnight guest with a REP in the third party's home and police lack even an arrest
 so if police enter third party’s house with the arrest warrant, any contraband seen and seized in plain view is
suppressible if used against third party
Need search warrant to go into a third party's home: Search warrant protects the other people present in that
particular place
because if arrest warrant alone, would be violating third party's rights by going into their house to find the
Ie if joe is hiding out at his mom's house
Elements of Search Warrant: to arrest person in a particular place
PC to believe that person has committed the crime (same as for arrest warrant)
Particularization of place to be searched for the person
PC to believe person will be in place searched
"Collateral arrests" of persons residing in home shared with a co-resident for whom ICE has an arrest warrant
ICE warrants don't have the protection of PC/particularization
ICE warrants almost like subpoena in the sense that they're not issued by a neutral third party judge --> ICE can
issue them themselves
Challenge because no 4A right to enter
o Argument: consent
What happens if police execute an arrest warrant for your roomie in your home?
 Gap between Payton v. NY (US 1980): arrest warrant suffices to arrestee in their home and
o Steagald v. US (1981): search warrant required where arrestee is a guest at a third party's home to
protect third party's rights
 (US v. Litteral) 9th circuit authority that police only need an arrest warrant if they have an arrest warrant for one
of the residents
E. Searches Incident to Arrest (SIA)
General Brightline Rule--Automatic Power: if a person is arrested, they can be searched periodt
 Can search through their shit (ie wallet, containers)
 Standard--Chimel v. CA: area within their immediate reach and control of suspect and suspect's person
("grab area")
Chimel v. CA: Incident to a lawful arrest, a warrantless search of the area in possession and control of the person
under arrest is permissible under the Fourth Amendment.
 Scope: can search for evidence and weapons
 Bright-line rule: automatically can search person of arrestee and containers/pockets on that person
 Standard: may search area within immediate control/grab area of arrestee
 But what if person is secured at the time of the search?
o Ie person is cuffed and can’t access the backpack?  circuit split: Chimel hasn’t caught up with
Still a question mark: ie whether or not officers may search the backpack if P is secured at the time of the
search so that P could not actually access the backpack P was wearing at the time of the arrest
Compared to the power to conduct Buie Sweeps (extends the search area for officer
Buie Sweep Standard--areas adjoining: can search (person-size) places immediately adjoining place of arrest
from where attack may be immediately launched without PC or RAS (bright-line automatic power)
Buie sweep standard--areas not adjoining: to search areas not immediately adjoining the place arrest, must
have RAS that area harbors individual posing a danger and limit search to areas capable of harboring a person
Applies to third party homes as long as cops are lawfully there
Inventory Searches--a second bite at the apple
Rule: can search the car after impounding it if there are standard procedures in the department for impounding and
inventorying vehicles
Note: Discretion to conduct inventory search must be "exercised according to standard criteria and on the basis of
something other than suspicion of evidence of criminal activity"
Ie need to protect property, insure against claims of lost property, appropriateness of impounding v. locking
F. Cutbacks on the power to SIA
SIA re cars
Must have arrest
PC NOT required
Arrestee is unsecured or can grab OR
There's reasonable basis to believe evidence of crime of arrest is in the car
AZ v. Gant (USSC, 2009): can only search a car after arrest if arrestee is within reaching distance of glove box AT THE
TIME OF THE SEARCH --> measuring grab area at the time of the search
RULE: Police may search a vehicle after a recent occupant’s arrest only if the arrestee is within reaching distance of the
passenger compartment at the time of the search or it is reasonable to believe that crime-related evidence is located in
the vehicle.
Holding: Police can search a vehicle after the occupant's recent arrest only when arrestee is unrestrained and within
reach of the passenger compartment and objects within
Note: Can ONLY search arrestee, not third party --> need more to search any passengers, not an automatic power
Rule shift (from Chimel): must be within reach at the time of the search
 Must have arrest, but DON'T need PC
 Re Belton: if arrest, then you can search
 But Gant shuts it down --> gov has to show that at the time of search, person was within reach
of the glove box
Knowles v. Iowa: cops have to go through an arrest in order to SIA
RULE: The “search incident to arrest” exception to the Fourth Amendment does not authorize the full search of a car
after the issuance of a citation instead of an arrest
SIA re phones
Riley v. CA (USSC, 2014): can't search your phone incident to arrest absent exigent circumstances
RULE: Under the Fourth Amendment, the government may not conduct a warrantless search of the contents of a cell
phone seized incident to an arrest absent exigent circumstances
Holding: the government may not conduct a warrantless search of a phone incident to arrest --> gov must secure a
warrant or demonstrate exigent circumstances
Cell phones differ in both a quantitative and qualitative sense from other objects that might be kept on an
arrestee's person
Many of the more than 90% of American adults who own a phone keep on their person a digital record of nearly
every aspect of the lives
Merging trend: 9th circuit's approach to cell searches at the border
Distinguishes between "routine" and "nonroutine" border searches of electronic devices
 A routine, manual search of files…a quick look and uninstrusive search…is reasonable even without
particularized suspicion
 But the government must have particularized objective suspicion before doing a forensic search that
amounted to a computer strip search
But what about at the border: where gov is at height of their power --> active litigation
Reasonableness Balancing: Exceptions to the Probable Cause
A. Terry Stops and Frisks (Terry v. OH)
Terry Stop: Temporary on the scene detention (a form of 4A seizure)
o Standard: reasonable articulable suspicion (RAS) of an offense
o Notes:
o On NOT a stop/seizure:
 BUT if no stop ordered and just engaging in conversation, no 4A scrutiny (“consensual
 An initial decision to watch D is not subject to 4A scrutiny
o You can decline to answer the officer’s questions
o You can decline to identify yourself, but may be punished under state law for refusal to identify
Terry Frisk: cursory patdown of outer clothing limited to weapons (4A search)
o Standard: RAS that person is armed; RAS of danger to officers or others
o Re plain view doctrine: if during a frisk, there is immediately readily apparent PC to believe items felt is illegal
contraband, then the items may be seized under the plain view exception
o Scope: for weapons/items that may pose a danger to officers or others
 NOT a roving search for evidence
 Ie if the officers don’t know what the items felt during the frisk are, but they’re clearly not weapons,
then they may NOT conduct additional searches beyond the patdown of the outer clothing such as
squeezing or removing the items
Factors considered for RAS:
 Area of the stop
 An area of gang acitivty
Arrest: taking person into custody; seizure exceeding the scope of a stop
o Standard: probable cause to believe person has committed a crime
Terry on the Streets:
 Standard: only need RAS (for stops)
o Don’t have the right to frisk unless you have the right to stop
 Also: may be a lawful stop, but not a lawful frisk --> frisk must be justified by RAS that the person is
armed (Terry v. Ohio) --> not automatic
 But frisk can't go into places where there couldn't be a weapon
Rationale: if there's already an ongoing offense, there needs to be cop power to stop it
Minnesota v. Dickerson (1993): the scope of a terry frisk is circumscribed by its rationale
If you stop someone and transport them, no longer a terry stop --> line between terry stop and arrest
Terry in Traffic: only need RAS
 Driver: automatic power to order out
 Passenger: automatic power to order out
 Frisk--AZ v. Johnson (USSC, 2009): during a lawful stop, police must have reasonable suspicion that the
person subjected to the frisk is armed and dangerous.
 Based on RAS that the passengers may be armed, a standard that considers the area of the stop/area of
active gang activity, officers may frisk all passengers
Michigan v. Long: In the course of lawful stop, if there's reasonable basis to believe there are weapons in the
car, they can conduct cursory search of the car for weapons ONLY
 But remember automobile exception: Can search the car and containers in it without arresting anyone if
cop has PC there is evidence of illegal activity in the car
 RAS does not justify search for evidence of ie drugs, only for weapons --> need PC to search for other
Terry v. OH (USSC, 1968): exception to the PC requirement --> allows police to stop and frisk a suspect for weapons with
only reasonable suspicion
Holding: a cop may detain a person on the street and conduct a limited search for weapons
 So a pat-down of someone’s outer clothes constitutes a Fourth Amendment search --> must be reasonable
 If unreasonable, the evidence obtained cannot be used at trial pursuant to the exclusionary rule
 Issue to be decided here is whether the police action was reasonable --> involves asking:
o whether the stop itself was reasonable
o whether the scope of the search is reasonable in light of the circumstances that warranted the
temporary seizure in the first place
 RAS: officer must be able to articulate those facts that led him to intrude on a person’s Fourth Amendment
Takeaway: Court requires individualized suspicion of criminal activity to justify an intrusion on 4A interests
FL v. JL (USSC, 2000): re anon tips generally
RULE: An anonymous tip that a person may be carrying a gun does not justify a stop and frisk under the Fourth
Amendment unless there is additional corroboration to ensure that the tip has "sufficient indicia of reliability" to create
reasonable suspicion justifying a stop.
Holding: Without corroboration, an anonymous tip that a person is carrying a gun does not justify a stop and frisk under
the Fourth Amendment.
 additional corroboration is needed to ensure that the tip has “sufficient indicia of reliability” to create
reasonable suspicion justifying a stop
 If only readily observable location and appearance  insufficient
o Note: if it’s a car, model and license suffice
 BUT if tip is NOT anonymous  sufficient and more reliable because you can be prosecuted for a false
Note: if the tip is anon but alleges a bomb or loaded firearm, SCOTUS has left open the possibility that police may stop
and frisk under a more relaxed standard for threats to public safety
IL v. Wardlow (USSC, 2000): The flight of a suspect in a high crime area can amount to reasonable suspicion and justify a
lawful stop and frisk by the police.
Holding: So if you in Bellevue and you run, not RAS and you good but if you in White Center and you run, there is RAS
and you getting copped
 But Difference between RAS and conduct: you can get stopped, but tbd on reasonableness of conduct
o while being in a high crime area is not by itself sufficient, previous cases have considered it as a relevant
factor when determining the reasonableness of police conduct
 In a stop, can police make you talk?
o Hibel: states can require suspects in a terry stop to identify themselves- but the stop must be based on RAS (Brown v. TX)
 States can/do criminalize the refusal to identify yourself in a lawful stop
 But there has to be lawful basis for the stop in order to punish you for failing to identify
 Rarely lead to reported cases  so very minimal data
The Line Between Stops and Arrests
The Reasonable Suspicion Standard
What is Reasonable Articulable suspicion?
 Articulable: government has to state the reasons for its suspicions
o Hunches aren't articulable
 You've been stopped and frisked without RAS --> what remedy?
 If just readily observant details (ie anon tips), not enough for RAS
o Could be using police to just harass
 Navarette v. CA (2014): court carves out traffic rules --> permits anon tips to be RAS
o Majority: indicia of reliability--detailed description of specific vehicle; contemporaneous description;
location confirmed
o WA courts more demanding with PC, but not RAS
Def: Reasonable suspecision is a less demanding standard than probable cause
 Can be established with information that is lesser in quantity or content
 Can arise from information that is less reliable that that required to show probable cause
Allegedly retaliatory stop, frisk, arrest for recording the police
1A right to record the police in public
But expressive activity is subject to reasonable time, place and manner restrictions
1A prohibits the government from retaliating for exercising 1A rights
BUT because of the causal complexity in determining whether retaliatory animus caused an arrest for which
there is PC, retaliatory arrest claims are precluded where there was PC for an arrest
Court looks to the objective basis for the police action, not subjective motives/intent
B. Profiling, Pretext, and Minor Offense Enforcement Power
The Dilemmas of Discretion
Police Discretion and Street Policing
 One way that police exercise their discretionary power: profiling--sets of characteristics that may/may not be
correlated to particular kinds of criminal activity
o One way to limit: use of pretexts
 Ie to require that, if the police target a suspect due to suspicion of drug crime, the police must
have sufficient cause to believe evidence of that same crime is present before stopping or
searching the suspect
Note: Perceived race, ethnicity, national origin and RAS in crimmigration enforcement
 Prohibitions on racial profiling sometimes have “weasel words”: ie except to the extent permitted by the
Constitution and the laws of the US
ie US v. Brignoni-Ponce
 Can’t be only factor, but it’s relevant and can be oopenly cited by cops
 Sweeps have gotten wider
The Power to Arrest for Minor Offenses: Opening the door
(wider) to pretextual stops and searches
Atwater v. City of Lago Vista (2001): Affirms power to arrest for minor offenses
o As long as there's an objectively reasonable basis for an arrest for misdemeanor (conducted in an officer's
presence), then its ok lol
o RULE: 4a is not violated even if the police arrest for a minor offense that state law says is a citation-only offense
for which arrests are not allowed
Pretextual Stops and Arrests
Whren v. US (1996): Judicial noninquiry into pretext
RULE: Except with inventory searches and administrative inspections, when probable cause of illegal conduct exists, an
officer’s true motive for searching or detaining a person does not negate the constitutionality of the search or seizure.
Holding: When there is probable cause that a traffic offense has occurred, the officer’s subjective motives for detaining
the motorist do not invalidate the officer’s actions under the Fourth Amendment
 Court said nah we're not gonna go there and inquire into pretext --> it's an intent to discriminate under EPC
 As a 4A matter, we're not going into intent
 Shut the door to pretext
Takeaway: rules out regulating police use of profiles by banning police use of pretexts
 SC acknowledges benefits, but not the harms of allowing the power
But in WA--we do it different: you can actually argue pretext
 Inquires into the motivation for making the stop, considering the totality of the circumstances (subjective intent
and subjective reasonableness)
 Vs. 4A which doesn't offer such protections
Officer’s Mistakes of Law and Fact
(Heien v. NC, 2014): stops not invalidated --> vast power
 Stops based on officer's reasonable mistakes of fact are not a 4A violation
o Ie thought 1 person in car in carpool lane because kid was slumped down out of sight
 Stops based on officer's reasonable mistakes of law (ie stop for a broken brake light but law only requires one,
not two working brake lights) are not a 4A violation
o Ie stop for a broken brake light but law only requires one, not two working brake lights
 What happens when the officer's states basis for an arrest is not a crime--but there's another (unrelated)
potential basis for the arrest?
o RULE: if the officer, in consultation with prosecutors finds another basis for arrest, then the arrest
remains valid
o Devenpeck v. Alford (2004):
 Facts:
 arrest for recording the police in traffic stop
 Turns out recording the police is not a crime --> was the arrest wrongful and should the
fruits be seized?
 Holding: No --> as long as there's another objectively reasonable basis for the arrest (ie
impersonating a cop, speeding)
C. Use Of Force
Legal standards: squishy
Excessive Force Standards:
 Governs: excessive force claims generally in arrests, stops, or other “seizures”
 Objective Reasonableness (under the totality of the circumstances) from officer’s perspective at the moment
 Generally: very fact-specific
 Considers factors such as: (but factors not determinative—just squishy, no hard and fast rules)
o Severity of crime
o Whether suspect poses immediate safety threat
o Whether they’re actively resisting
  But qualified immunity comes into play because law isn't clearly established --> if they use too
excessive of force, without established law, they qualified immunity
TN v. Garner (USSC, 1985):
 Seemed to hold: Before officers may use deadly force, there must be PC to believe suspect poses threat of
serious physical harm
 BUT Garner was later cabined to its facts by Scott v. Harris: we must wade through the factbound morass of
o Standard: objective reasonableness under the totality of the circumstances
o All that matters is whether the officer’s actions were reasonable, NOT whether or not an officer's
actions constituted application of deadly force  doesn’t distinguish between deadly/nondeadly
 ALL use of force claims are subjected to the totality of the circumstances under the facts
Graham v. O'Connor:
 The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is
constitutionally unreasonable
lol SIKE
Holding (presumably):
 Reasonableness standard: the court balances the individual’s Fourth Amendment interest against the
government’s interest
A court should consider:
 the particular circumstances surrounding each individual claim,
 how severe the crime at issue is,
 the threat posed to officers, and
 whether the suspect is resisting arrest
correct inquiry is whether the use of force was objectively reasonable under the circumstances from the point of
view of a reasonable officer on the scene
Excessive force claims should be brought as $A claims, rather than under the substantive due process clause
The inequality of fear
 Repeatedly Sc will explain: cops are often forced to make split-second judgements
 Chain of judgements leading to the tragic outcome
o From the karen calling, to the ignorant dispatcher, to the pig
The Remedial Dilemma
Basic remedies:
 Exclusionary rule: the default remedy
o But doesn't do shit when you're hurt/killed
 Money damages
 Civil suits, causes of action for violations of civil rights
o Individuals can bring civil suits for damages against individual officers and prevailing parties are entitled
to attorneys’ fees but to survive a motion to dismiss, the plaintiff must overcome qualified immunity
o Qualified immunity standard
o Shields officials from liability for civil damages insofar as their conduct does not violate clearly
established statutory/constitutional rights of which a reasonable person would have known
o Courts may dismiss civil suits against law enforcement officers without ever deciding if there
was a violation of a right on the ground that there was no violation of a clearly established right
o Officers enjoy qualified immunity--to overcome: have to show not only a 4a violation, but that
violation was a clearly established law and a reasonable officer should have know
 Structural reform litigation/preliminary injunctions
o Injunctive relief: I want you to do something about it/change
o Title 6 Claim: a statutory avenue for injunctive relief that permits proof by discriminatory impact (via
 Criminal prosecution--federal criminal charges: difficult because very high mens rea
 Route-around 4A constitutional tort limitations--State tort laws: don’t present as many hurdles for municipality
o If a state waives its 11A immunity, individuals may be able to bring tort claims against the state
 Standard for suing local government entities—Monell v. Department of Social Services (USSC, 1978)2: P must
show either—
o Injury arose from execution of government policy or custom or
o Failure to train amounted to deliberate indifference to the violation of rights of persons
 General notes:
o DOJ may investigate police departments for patterns and practices of violations of rights under 42 USC
o State officers may be sued for violations of constitutional rights under 42 USC Section 1983 and federal
officers may be sued for constitutional rights violations in Bivens actions
o Bivens action: a lawsuit for damages when a federal officer who is acting in the color of federal
authority allegedly violates the Constitution
D. Special Needs
Rule: both special needs and administrative searches are beyond the interest in ordinary criminal law enforcement
 Standard: general reasonableness balancing unmoored from warrant and PC requirements
o The more you can demonstrate government interest, the more reasonable it is
o Comes down to balancing government interest with the intrusion
 Reasonableness is a flexible balancing approach to determine what protections apply:
o O'Connor v. Ortega-- general reasonableness under all the circumstances:
o Gravity of public concern/government interest
o Severity of interference
o Degree to which intrusion advances governmental interest
o Sounds a bit like scrutiny and tailoring (like in Con law context)
o Sometimes courts will use, sometimes they'll leave it out
o Ie notice of diminished expectation of privacy can diminish the degree to which
intrusion advances gov interest
o Other courts: just reasonableness under the totality of the circumstances
Special Needs: Roadblocks & Checkpoints
Twists and Turns of Roadblock Law:
 DE v. Prouse: Random suspicionless stops of (fewer) cars is impermissible
 Mich. PD vs. Sitz: but it’s okay if you stop everyone…or every second/third/fourth/etc car (at least for
suspicionless sobriety checks)
o So as long as you have some criteria it’s okay
o Special needs aspect: interest in state roads, public safety
 Indy v. Edmond: but if the primary purpose is to detect evidence of ordinary criminal wrongdoing (ie drug
detection)  impermissible
o Doesn’t look at individual cop purpose, but at the official stated purpose of the program
o Can’t be for illegal narcotics interdiction
 IL v. Lidster: but brief information-seeking stops to solve a crime are okay
o Ie looking for witnesses after a crime
Can apply even for a week later: even though the primary purpose is such a checkpoint is ordinary
criminal investigation
Can also do so under an exigent circumstances rationale
So long as directed at solving this one crime
Special Needs: Border Searches
Rule: at the border, government’s power is at its height  can conduct unconstrained suspicionless search of people -->
without any individualized suspicion
 You can be stopped against your will at a checkpoint (terry), but you have a right to not answer questions that
pose a risk of incrimination (5A)
At the functional border:
 Agents can search your car and all your bags without any individualized suspicion
 Agents can detain you for an hour to conduct the searches
 Agents can dismantle your gas tank and put it back together again
BUT you might not be at the functional border when you're stopped
 Functional (equivalent of the) border: first point where it's practicable to stop someone
o WHERE WE GOT STOPPED LMAO because there's sand dunes at shit
 Valid if:
o Reasonable certainty that there was a border crossing
o Reasonable certainty that there was no change in the condition of person/thing crossing
o That search has to be conducted as soon as practicable
 Extended border search doctrine:
o Reasonable certainty that there was a border crossing
o Reasonable certainty that there was no change in the condition of person/thing crossing
o Has to be reasonable suspicion to search
100 mile zone for interior immigration enforcement and checkpoints:
 Rule: agents can set up a checkpoint and stop people without any individualized suspicion pursuant to
standardized criteria
 8 USC 1357(a)(3) gives Customs and Border Protection power to conduct customs and immigration
searches on vehicles, vessels, trains etc within a “reasonable distance from any external boundary of the
US”. Regulations define “reasonable distance” as 100 miles.
 Spokane vs. border patrol on greyhound bus checks: just expressive authority by spokane's condemnation
because supremacy clause
 But JUST random stops and searches: need individualized suspicion (extended border search doctrine)
Case Law:
 US v. Montoya de Hernandez: permits 16 hour detention until court order for medical exam for suspected
alimentary canal smuggler
 US v. Flores-Montano: power to engage in suspicionless border searches extends to gas tank searches
 US v. Ortiz: but must be border or its functional equivalent
o OR extended border PLUS RAS
Special Needs: Mass Transit--airport, metro & ferry searches
Doctrine: where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may
rank as “reasonable”
 Searches valid where the need for brief seizures and searches to ensure public safety can be particularly acute
Courts of appeals have ruled that law enforcement may conduct random suspicionless bag searches on ferries,
metro and other modes of mass transit to address substantial and real risks to public safety, even if there are no
express nor imminent threats
Special Needs: School Searches
Rule: teachers stand in special relationship to you, so there can be bag searches without a warrant
 Standard—NJ v. TLO: reasonableness, under all the circumstances
 The younger the kid, the more clear the power
 But no matter how old, teachers/school professionals must ensure safety so more power without warrant or PC
 Limits under 4a: Measures have to be reasonably related to the objectives of the search
o And not excessively intrusive in light of the age and sex of the student and the nature of the infraction
Metal Detectors, Random Bag Searches at School
 TLO sets basis
 State v. Mensees (WA 2012): search by police's SRO does not qualify for NJ v. TLO's school search exception
o If principal/teacher searches, then fine
o But if it's a cop, then criminal law enforcement, then no special needs
 Random suspicionless drug testing of student athletes:
o 4A: permitted
o WA: forbidden
E. Regulatory and Administrative Searches: Cousin of Special Needs Searches
1. Administrative Warrants and Administrative Probable Cause in Civil Regulatory
Rule: administrative warrants based on administrative probable cause to enforce a civil regulatory scheme do not
require probable cause of a violation
 Administrative probable cause exists if reasonable legislative or administrative standards for conducting an area
inspection for health or safety are satisfied
 Based on such administrative PC, an administrative warrant may issue to inspect a premises or business to
enforce the civil regulatory scheme
 Standard: administrative probable cause
o Don’t need individualized probable cause of a crime
 Note: includes daycare centers (unclosely regulated business)
Avenue—Administrative Warrants:
 Diff because no individualized PC
 Only need legislative or administrative standards for conducting
 Needs to be issued by a neutral third party or need the opportunity for precompliance review by a third party
 Unless closely regulated business
2. Regulatory Search: DNA swabs for arrestees for serious crimes
Rule: a part of the regulatory scheme to collect DNA swab, so don’t need PC
o Whether or not convicted (ie if just arrested)
o MY v. King: DNAswabs from people who haven't been convicted ok
 Rationale: because administrative search
 Like routine-booking identification procedures ie fingerprints, mugshots
Not going to make distinguish between minor vs. major offenses --> likely permissible for misdemeanors
CODIS DNA Databanks
 Combined DNA Index System: keeps DNA profiles and constantly compares them against each other
3. Administrative Searches (warrantless and unannounced): Closely Regulated Businesses
What qualifies as a closely regulated business: cabined to contexts posing a public hazard
 Mines
 Stone quarries
 Stores licensed to sell firearms
 Junk yards
 Certain factories
A warrantless search of a closely regulated business is reasonable if: (NY v. Burger)
1. Pursuant to regulatory scheme serving “substantial” governmental interest
2. Search is necessary to further regulatory scheme
3. Inspection program provides a constitutionally adequate substitute for a warrant
a. Ie by putting limits on scope, time and place of inspections and informing proprietors that regular
inspections of a defined type will be taking place
4.  don’t need administrative warrant, notice, nor precompliance review
4. Administrative Search: Motel/Hotel Guest Registers
Rule (Patel): not a closely regulated business  requires neutral third-party review
 Need administrative warrant and precompliance review from neutral entity such as admin law judge
 Bottomline: cut back the closely regulated business thing
 Hotels don't pose a public hazard
 Concerned about using the law to harass hotels/motels you don't like
VI. Limits on Remedies
Exclusionary rule: precludes prosecutors from introducing evidence obtained in violation of the Fourth Amendment
A. The Good Faith Exception
Standard: objectively reasonable reliance  if cops can objectively reasonably rely on something
 If exception doesn’t apply, evidence must be excluded
 Rationale: the evidence must stem from culpable police conduct that can be deterred
o More than isolated negligence attenuated from the search or seizure
 UNLESS so facially defective that no reasonable officer could rely
o Ie things that are patently defective
 Also can't reasonably rely on (can’t reasonably rely on magistrate’s PC finding if):
o Bare bones conclusory affidavit
o Anything facially defective
o Systematically recurring problems
o Affiant’s false info or info in reckless disregard of truth
o Magistrate wholly abandons judicial role
Applies to reliance upon:
 Magistrate Judge’s PC finding and issuance of warrant
 State statute unless “clearly unconstitutional”
 Data entry error by court clerk (negligence of court officials)
 Computer records: even if data error is by police employee  if due to isolated negligence attenuated from the
wrongfully arrest
o But controversial because how can you rely on negligence
o But doesn’t mean that ie you weren’t wrongfully seized based on an erroneous police record  you’re
still wrongfully seized, the evidence just won’t be excluded
 Binding judicial precedent at the time
Rationale: cost-benefits balancing
 Exclusion of evidence is extreme sanction
 The benefits of deterrence must outweigh the costs of suppressing valuable evidence, impeding truth-find, and
letting guilty and possibly dangerous Ds go free
 Competing worldviews:
o A more majestic conception of the 4A: If there's a right violation, don't want it to be the basis of the
B. Standing
Standard: your personal rights have to be violated  can’t get exclusion based on someone else’s rights
 Rule: Who has standing depends on who has REP
o Ie to claim Fourth Amendment protection, an individual must have a reasonable expectation of privacy
in the place searched.
 Rakas v. IL: the 4A is a personal right and the exclusionary rule must be invoked by the individual whose right is
 Ie a party bust: who has standing against the shit in plain view?
o Answer: unclear/we don't know, SC hasn't ruled on it
 Cars:
o No REP in someone else's car
o Byrd v. US: If an authorized user lends you their car (even in violation of rental contract), you have
 Third-party’s home:
o Someone merely present with the consent of the householder (ie business invitees): no rep
o Social guests: shaky, but majority says yes rep
 Unless they only have a fleeting and insubstantial connection to the home
o Overnight guests: yes rep
C. Causal Link
Rule: Exclusion applies to the evidentiary fruits of the poisonous tree
 Fruit of the tree: if evidence is discovered through violation of someone's rights
o Not only direct, but downstream, causally connected, evidence
o Tree: violation of D's rights
o Fruit: evidence
 Fruits of the poisonous tree are excluded unless some exception to the exclusionary rule applies
 Mapp v. OH: all evidence obtained by searches and seizures in the violation of the Constitution is inadmissible
o But NOW: NOT TRUE!!!
Causation in Fruit-of-the-Poisonous Tree Doctrine
1. Direct causal link (aka but for causation)
2. Attenuation (ie passing of time, voluntary free will)
a. By intervening events
b. By mismatch in policies served
c.  Three important factors (US v. Ceccolini):
i. Time
ii. Intervening even, especially intervening act of free will
iii. Nature of the derivative evidence
1. Related to second factor
2. Less likely to be excluded
Independent Source
 Violation of D’s rights
 Independent source
o There was in fact an alternate independent source
o So not but for cause because there was another route that actually led to the evidence
Warrant as Independent Source: not just could have but WOULD have gotten a warrant (WITHOUT the law breaking)
 Warrant obtained after illegal entry is NOT independent source if decision to seek the warrant:
o Was prompted by what they had seen during unlawful entry or
o If information obtained during that entry was presented to the Magistrate and affected their decision to
issue the warrant
 Ie would you have gotten that warrant if you hadn’t illegally broken in
Inevitable Discovery: Hypothetical Independent Source
Rule: There was a chain of events in place that would have led you to the discovery regardless
 Evidence admissible if can show that it would have inevitably been discovered even if the illegal search had
never taken place
 The existence of PC to get a warrant alone is insufficient for the inevitable discovery exception to exclusion
based on inevitable discovery or independent source  must show that you WOULD have gotten it
 To claim the evidence would inevitably have been discovered because the cops had PC for a warrant, the
government needs to show the cops WOULD have actually gotten the warrant
o Both sought and granted
 But you didn't actually even get the warrant
 Inevitable discovery and inventory searches:
o Circuit split: whether to require proof that the government was actively pursuing an alternative
independent line of investigation (or if "would have" suffices)
Attenuation (reduction of the force, effect, or value of something)
Exception: permits the use of evidence discovered through the government's unconstitutional conduct if the causal link
between that misconduct and the discovery of the evidence is seen by the reviewing courts as sufficiently remote or has
been interrupted by some intervening circumstances
 Lower courts typically hold there must be an independent chain of events in or intervening chain of events
leading toward getting a warrant that purges the taint of the unlawful entry
Causation and knock and announce violations: no exclusionary remedy
 Rationale of Hudson v. Michigan:
o Purpose of the knock and announce requirement is to avoid death and shit, not facilitate flushing
o Extended to excessive force cases --> is exclusion a remedy for excessive force?
 But split: sometimes you can, sometimes you can't get exclusion
 7th:
 9th: have to show causal link
 US v. Ramirez: exclusion also is not the remedy for "excessive or unnecessary destruction of
property in the course of a search" unless the obtaining of evidence is causally connected
 But suing for damages is hard
EXAMPLE--Utah v. Strieff: discovery of warrant for arrest after bad stop attenuates taint
 Tainted source: bad terry stop without RAS, evidence found during SIA
 Discovery of outstanding warrant attenuates, dissipates the taint --> no exclusionary remedy
 Controversial:
o even if the government admits that someone was targeted for a Terry without RAS (it was a bad stop),
discovery of the warrant is an intervening circumstance that attenuates the taint
o Dissent: this case is going to aggravate the ability to move (in terms of wealth)
Impeachment: collateral use of excluded evidence for impeachment
Rule: Even if evidence is excluded for trial purposes, may be used in impeachment, before grand juries, in habeas corpus
litigation, civil tax proceedings
 Even if evidence is suppressed, can still be used before a grand jury
 So witnesses appearing before the grand jury may be questioned based on information derived from the
suppressed evidence
 US v. Havens: may be used to impeach D
 IL v. James: but may NOT be used to impeach defense witness besides D
 ie partner providing alibi for D
VII. The Fifth Amendment Privilege Against Self-Incrimination
Note: the grand jury--sword and shield power (to see if there’s PC to proceed)
 Very prosecution friendly
 Trial rules don't apply (because formal proceedings haven’t commenced)
 Required for feds
 Not an incorporated right
 Can indict
 Can investigate
 Secrecy
 Option in many states
Relevance to 5A: if an investigating criminal grand jury is convened, D can invoke 5A privilege question by question but
CAN’T refuse to appear altogether before the grand jury
A. The Core Textual Privilege Against Self-Incrimination
The Broad Scope of the 5A Privilege:
 From document production to police interrogation
 Post-arrest, you have a 5a right, and if you assert it, can't be used against you
 Can plead the 5th in civil or other noncriminal contexts --AS LONG AS there is a risk of crimination
o Even if no criminal case has been brought  could eventually lead to incrimination/criminal case
o But if you do, CAN draw adverse inferences
o Noncriminal proceeding: must plead question by question
 But if you plead the 5th in a criminal proceeding:
o CAN'T draw adverse inferences
o Can exercise the 5A by refusing to take the stand altogether
 So why show up at all just to plead the 5th?
o Because otherwise ie criminal indictment on charges of contempt of congress
o So what would competent lawyers instead advise a client to do instead of defying the subpoena to
 Show up and plead the 5th 5ever
 Notes:
o only waived if you take the stand during a criminal proceeding
 So you can't plead the 5th unless you're being questioned about something that's criminal -->
otherwise don't have a 5A issue
3 requisites/elements for pleading the fifth- Compulsion "compelled": by the government
 Incriminating "in any criminal case": has to be a risk of crimination
 Testimonial "to be a witness against"
o Has to be the kind of evidence that a witness would give
o If government puts you in a cruel trilemma, going to be testimonial
Classic government compulsion: held in contempt for refusal to answer
 Writs (28 USC 1651, All Writs Act): can be used to order people to do shit as long as consistent with law
Differential Protection against compulsion:
 Extension--Griffin v. CA: cannot use your failure to take the stand against you
 They don't like the threat of losing your livelihood --> major protections
o Can't force to speak at risk of livelihood, but there STILL has to be a risk of crimination
o Ie withdrawal of government benefits, losing your job, home, etc
 Garity v. NJ: re Garity rights
o If a cop is being investigated, then they can't be forced to answer questions/waive their 5A privilege -->
and can't be fired for it
o If a department coerces an officer (ie suggesting bad consequences), those answers can't be used in a
criminal prosecution --> can't use statements that are coerced from an officer
 But prisoner benefit cases: have very few 5A protections
o McKune v. Lile: had to admit responsibility for eligibility into a sex offender treatment program that
involves transfer to less restrictive confinement --> basically forcing them to waive 5A
 SC: not compelled because it's a voluntary program
 Caveat--9th circuit: conditions of the case not compulsion, but length of sentencing may be
o OH Adult Parolve v. Woodward: adverse inferences at voluntary interview/clemency proceedings for
death row inmates
Griffin Error practice pointer:
o What's wrong with this closing rebuttal argument: "and you've heard nothing from the D to rebut this
evidence" --> misconduct
 No reference to the D's silence!!
 BUT if D takes the stand (ie if anything's suppressed/against advice of counsel), then the D has
waived their 5A privilege with respect to the stuff they testified about
 May be subjected to cross-exam on anything within the scope of their statements
Rule: if inquiry is into misconduct, but not criminal misconduct, can’t plead the 5A
Criminating: the degree of risk
 What counts as criminal consequences?
o Has legislature designated penalty as civil or criminal?
o Even if legislature designates penalty as civil, is the statutory scheme so punitive in purpose or effect as
to negate legislative intent?
o Nonexhaustive, nondispositive factors: all factors to say --> is it so punitive?
What degree of risk?
o Sufficient if would "furnish a link in the chain of evidence to prosecute"
o Danger must be "real and appreciable" not "imaginary and insubstantial"
Defeating/negating the crimination element: immunities --> overrides the 5a privilege
 Immunities are a mirror image of the privilege's scope
 Immunities as a way to force/compel witnesses to testify
 Can’t give someone immunity and then use the statements to impeach
o But CAN be used for perjury or false statement
 Three types of immunity:
o Counselman v. Hitchcock--Use immunity: not enough
 Ie I'm gonna make you testify and I promise I won't use what you say against you
 Not enough--must also include evidence DERIVED
o Kastigar v. US--Use & derivative use immunity: just right
 What's needed to defeat the privilege
 Includes any information directly or indirectly derived from such testimony or other information
 Can still be prosecuted based on independently derived evidence
 If you're given immunity and you lie: can be prosecuted
 Immunized testimony can be used against you
o Brown v. Walker--Transactional Immunity: too much
 You can't be prosecuted for anything you're talking about, so you can freely talk about anything
 Includes independently derived evidence
 At a minimum, the government's grant of immunity must bar both the use of compelled testimony and any
evidence directly or indirectly derived from it
 To overcome the privilege, the government must give either use & derivative use or transactional immunity
Testimonial: if you're using the statement to prove the content of what they're saying
To be a witness against himself = must be testimonial communication
 Definitely testimonial: speaking (oral statements)
 Doe standard: does what is being compelled constitute a communication that explicitly or implicitly relates a
factual assertion or disclose information
 Pa v. Muniz test: does what is requested force suspects to choose between truthfully or falsely revealing their
thoughts thereby putting them in the "cruel trilemma" of confessing, lying, or contempt for refusal to comply
o Cruel trilemma: used for gray area
 NOT testimonial: Giving physical evidence
o Ie refusal to consent to a breathalyzer, standing in a line up, giving blood sample for blood alc test,
wearing particular clothing, furnishing a voice sample, etc
o But ie unlocking of a cell phone that the government has a warrant to search
 Lower circuit split
 Like a writ--Communications Assistance for Law Enforcement Act (CALEA): ambiguous, up to
statutory interpretation
B. The Fifth Amendment Privilege and Compelled Production
Asserting the Privilege
Rule: Must assert the privilege
 EXCEPT when you are in custodial arrest and when you're being interrogated  automatic right to remain silent
 If you're in a voluntary interview/not in custody --> risky: no custody, no miranda protections
o So if you want to be silent, you have to AFFIRMATIVELY plead the 5th
o If voluntary, not compelled
o If voluntary: silence, statements and body language are NOT compelled and CAN be used against you
o Ie if you're in a terry stop --> not seized/custodial arrest, so must assert
 Pleading the 5th: silence does not suffice --> affirmative assertion REQUIRED (Minn v. Murphy)
o Rationale:
 Notice to government
 Record for court to decide
 Concern about losing evidence
 Lying isn't wise--Brogan v. US
o If you don't assert the 5th and instead lie, then you can be charged for lying/false statement
o If you plead guilty to false statement, you're now cooperating and can work off your time
Exceptions to the affirmative assertion requirement (Salinas)
 In a criminal trial, D need not take the stand to assert the privilege, and prosecutor cannot comment on silence
 Custodial interrogation, which triggers Miranda protections
 Threats to livelihood, withdrawal of government benefit
 Where the very assertion of the privilege would incriminate
Limiting the Privilege: When the Privilege Does Not Apply
Corporations aren't persons who can plead the 5th
 Hale v. Henkel: 5a privilege belongs to natural persons
 Bellis v. US: individual can't assert 5a for corporation, partnership, or other collective entities
o Employees can plead the 5th about their own shit but not ie corporate documents
o Corps can't hide behind its employees with respect to corporate shit
 Based on concern over closing the door of access to every available source or information and styming effective
Exception--Production that serves civil regulatory interests
 Shapiro v. US: required records
 Baltimore v. Bouknight: custody of child under court/social services supervision for protection from abuse
o 5a gives way to government interest in protecting the child
o 5A’s protection against self-incrimination does not extend to regulatory production orders required by a
system that serves a public purpose unrelated to criminal law enforcement.
o Further, a person who assumes custodial duties over an object of the state’s noncriminal regulatory
power diminishes her ability to assert Fifth Amendment protection.
 Cal v. Byers: hit and run statutes  CAN mandate that people stay at h&r’s
 Common theme: court says these are in the service of a regulatory scheme and not merely for criminal law
enforcement (special needs rationale)
 Required records doctrine: government can require regulated entities to keep records for civil administrative
purposes even if the records may be incriminating and used in a criminal investigation
Evidentiary Production and the 5a
Where the act of production testifies—they testify that:
 Exist and are responsive to the request
 They are authentic
 They are in your custody
Does the act of production implicate the 5A privilege:
 NO: if following are forgone conclusion
o Existence
o Authenticity
o Possession
 YES: if suspect must make extensive use of the contents of their own mind to identify existice of responsive
documents to broad subpoena
Foregone Conclusion: no 5A
o Government must show that it already knows this evidence exists and is within the suspect's possession
o If foregone conclusion, act of production isn’t testimonial
 You can be shielded by 5a from complying with subpoena (demanding an act of production) if responding would
require you to extensively use the content of your mind
 Content may be testimonial but NOT compelled
o So you have to argue that the act of production itself is compelled, testimonial and incriminating
o Content not compelled because government didn't make you ie kill someone, defraud
o But still a debate about whether act of production is testimonial
VIII. Miranda Law
1. The Struggle To regulate Interrogation: From Due Process Voluntariness to
Miranda Law
i. 6A: Due Process Voluntariness and Police Interrogation
When applicable: government actor gets statements or consent from D
When violated:
 involuntary inducement (not voluntary, will overborne)
shocks the conscience
revolts sense of justice
violations of miranda
unnecessarily suggestive identifications on the part of the government (see below)
Due Process Voluntariness Standards
 Brown v. Miss: convictions based on confessions obtained through methods revolting to the sense of justice
violate DP
 Admissions extracted through methods that shock the conscience are excludable
 Watts v. IN: confessions that are a product of sustained pressure by the police and not from a free choice (will
overborne) violate DP
 In arguing if will was overborne: educational level, age, any cognitive disabilities, other subjective
characteristics are relevant
 Ie sleep deprivation
 Where it overbears someone's will --> rendered involuntary
 SO regardless of whether there is a signed and initialed Miranda advisal and a videotaped waiver, might be able
to bring a DP voluntariness claim
 NOTE: lying doesn’t violate DP
 Just can’t lie about things that they can’t actually do
 Lying can be a factor, but not determinative
Messiah and the 6A
 6a not activated until formal proceedings have commenced
o Once commenced, government cannot deliberately elicit information without a waiver of these rights
o Ie jury indictment: commencement of formal proceedings
 6a protection IS offense specific: only activated for that specific crime, with respect to that charge
o Can ask about anything else
o Strategic charging
ii. Miranda: an Extra-Textual Protection
What's the assumption? --> custodial police interrogation is inherently coercive
 So an exception to having to assert 5a
 So you get the right:
o To be informed
o Right to counsel (a miranda right to counsel)
 Extends your right to before formal proceedings
 If invoked, all interrogation must stop --> if it doesn't, miranda violation
 To penetrate the opacity of the interrogation room
o To a stop button
 --> has become standardized into an advisal
Miranda: When does it apply?
 Custody + interrogation = custodial interrogation
 Standard: has there been formal arrest or restraint on freedom of movement of degree associated with formal
o An objective inquiry
 NOT offense specific: can’t ask about anything else
 Routine booking questions exception:
o Routine booking at arrest that is necessary, not subject to miranda
Custody = formal arrest or (functional) equivalent
Not custody: Voluntary interviews
o And terry stops, consensual encounters
o All the above are when miranda rights don't apply --> EXCEPT PSYCH EVAL (estelle v. smith)
 Ie doesn't apply to terry stops
 Ie if you're put back in gen pop, considered a break in custody --> you can be not in custody
while even in custody
Can Congress Revise Miranda?  no
 “Miranda is a constitutional decision” that cannot be overturned by Congress
 Because Miranda is a constitutional decision, Congress cannot suspend Miranda’s requirements unless Congress
comes up with protections as effective as the Miranda requirements
 Chief Rehnquist: learning to love/live with Miranda
Interrogation: express questioning or its functional equivalent
 Standard (RI v. Innis): Words or actions that officer should know are reasonably likely to elicit an incriminating
o Objectively reasonably
o Pretext = subjective --> not a subjective inquiry
o But you can prove that cops played on known susceptibilities, could be argued
 Initiating Discussion Exception--OR v. Bradshaw: Suspect's initiation is not interrogation under Miranda
o But even if D invoked the right to counsel upon arrest, if D initiates discussion about the case, the police
can elicit incriminating statements
o Even if ambiguous
 AZ v. Mauro: non-state actor eliciting incriminating statements is not interrogation
o Unless somehow the person becomes a government agent (ie being an informant)
 JDB v. NC: all manner of other individual characteristics should be treated like age and taken into account -->
anything objectivey
o Ie age, meekness,
o Suspect’s juvenile status is a relevant factor in determining whether conversation was reasonably likely
to elicit an incriminating response
Undercover questioning and Miranda
 Ie if you're put back in your cell, mate is undercover
o Might be an interrogation, but not an custodial interrogation (that's inherently coercive)
 Rule: If 6a hasn't attached, government can use undercover informant and get information from you
o Because not interrogation if you don’t know it’s a government agent
 BUT once formal proceeding commences, gov can't use informant to deliberately elicit for the charged offense
BUT can be a listening post and testify as to any incriminating statements made by D so long as the
agent doesn’t ask any questions
Ie undercover cop offers to give D protection from prison gangs threatening violence
o Suppressible: due process implicated because there’s a threat of violence  not voluntary because
you’re saying it to protect yourself
Can police try again after invocation
 Rules depend on whether the D invoked the right to counsel OR right to remain silent
 Right to silence: YES
o Mich v. Mosely--May try again if invocation is "scrupulously honored" and subsequent advisal and
waiver are effective to dispel risk of coercion
 Standard: look at all the facts
 Ie 12 hours
o Must only show that they "scrupulously honored" the implication
o Relevant factors that weigh in favor of admitting statements:
 Passage of time
 Fresh team of agents
 Inquiry about a different offense
 Fresh advisal
 Right to counsel: NO
o Mosely doesn't apply to suspects who invoke right to counsel
o Questioning 3 days later about different crime by different cop who again gave Miranda warnings is NOT
o Minnick v. Miss--Can't be questioned without counsel present even after they've been allowed to talk
with counsel, and even if the officer is from another agency
o Maryland v. Shatzer--BUT police can try again to question D after a break in custody of +14 days
 BUT you can still initiate yourself through both
iii. Advisals
Notes: Advisals tailored to the subject
 SC has had degree of tolerance for messed up advisals/warnings --> allows for ambiguity (unlike invoking rights)
 When can your silence be used against you?
 If you invoke your right to silence: NEVER
 Can prosecutors argue the D's pre-arrest silence as inference of guilty?
 Yes --> because not in custody
 Unless in WA
 Post-arrest silence: no
 Failure to take the stand: no
iv. Waivers
Rule: All rights must be invoked unambiguously
 Berghuis v. Thompkins: CAN'T be invoked through silence
 Waivers can be implicit through silence
 Conditional implication: "I can't talk to you about x, but will about y" --> not enough to stop the interrogation as
long as officer honors the condition
Standards for waiver:
 Voluntary
 Constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege
 Depends on the facts and circumstances surrounding the case
Waiver need not be express; an implicit waiver is enough
Waiver may implied by a defendant’s silence where there is proof that the defendant understood his rights after
being given the Miranda warnings and where his course of conduct indicates waiver
Burden--Colorado v. Connelly: Government has to prove a knowing voluntary waiver of miranda rights by a
preponderance of the evidence
NC v. Butler--A written waiver is not required (though it is a frequent and easy form of proof)
 Ie D orally waived miranda rights but refused to sign the card --> waiver valid
Gamesmanship & getting a waiver: keeping counsel away during interview
 Moran v. Burbine: What the suspect doesn't know can't vitiate a valid 5a miranda waiver --> waiver
remains valid
 Ie if suspect doesn't know that cops are lying to lawyer to keep them away
 Key here: D never asked for a lawyer (vs. if he had been lied about lawyer not wanting to talk
despite asking for one)
 BUT if the 6a has attached, outcome would likely be different
 Probably would have been a 6a violation
v. Public Safety Exception
Exception: Addressing immediate necessities --> if there's emergency, deal with it, and then you're done
o Questions that ensure the public safety
o No definitive time frame
 But can be ie an hour
o But what qualifies as immediate necessity? --> the very question
 Ie in counterterrorism diff than just finding a gun
o Ie NY v. Quarles: need to find gun that cops suspects was tossed in supermarket --> didn't need to give miranda
o What about due process: Chavez v. martinez (court was torn)
 Under Section 1983, if you sue, you can't get damages for Miranda violations but remanding to
determine whether they have a cause of action under 14a DP
 Ie fundamental prohibition against torture
2. Limits on Remedies for Miranda Violations--Oral Fruits vs. Physical Fruits of
a Miranda Violation
Simply just a Miranda violation (no 2-step)
 Where D is in custody and questioned before Miranda advisal and waiver
 Physical Fruits: admissible—NOT excludable
 Oral fruits: inadmissible
Midstream 2-step interrogation: Questions first, Miranda Advisal Later
 Physical fruits: admissible—NOT excludable
 Oral fruits:
o Admissible
o BUT if you have a calculated two-step tactic, then can be INADMISSIBLE
o UNLESS plurality standards are satisfied
 Plurality standard: whether the subsequent Miranda advisal could function as well as it requires
o Completeness and detail of pre-warning questions and answers
o Overlapping content of two statements
o Timing and setting of first and second statements
Continuity of police personnel
Was second round of questions treated as continuous with first
Whether police advise that previous statement can’t be used
But ultimately, SCOTUS all conflicted
Note—Impeachment: Statements taken in violation of Miranda CAN be used for impeachment
 Can refer to suppressed statement in impeachment
3. 6A Right to Counsel in the Investigation Stage
6A Right to Counsel: in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for
their defense
 Only valid IF it has ATTACHED: attaches only AFTER initiation and the commencement of adversary judicial
formal proceedings
o Ie indictment, information, arraignment, preliminary hearing
 Offense-Specific: only activated with respect to the charge that has been filed
o Even if same transaction, if they're different offenses --> separated
o Analysis/standard: if each one has an element that the other does not --> separate
 Principle protected: adversarial parity
Waiver of 6a rights:
 Even if 6A has attached, police can still approach to obtain a waiver
 If the suspect is read and understand the Miranda advisal and waives the miranda rights --> suffices to waive the
6a right to counsel
The Difference the 6A Right to Counsel Makes in Pre-Trial Investigations if it has Attached:
 Previously unregulated covert tactics now regulated: government can’t deliberately elicit incriminating info
without counsel present or waiver
o Ie if you've been indicted and you're out on bail --> undercover informant can't elicit info for you ON
THE CHARGED OFFENSE --> formal proceedings have already started
o Can't deliberately elicit on the charged offense
o BUT jailhouse informant CAN ask about something other than the charged offense
o AND undercover can be “listening post”
o Unlike 4a (3rd party) and 5a (not custodial interrogation)
 D’s attorney must be present in corporeal IDs (below)
o Corporeal ID: LIVE in person lineup ID (vs like mugshots--protections don't apply)
o Only if formal proceedings have commenced
o But no 5a privilege/5a Miranda --> not testimonial (physical evidence)
 Can’t lie and keep counsel away from D
o Vs. Miranda where you can
 Physical fruits excludable
o BUT oral statements that are suppressed CAN be used to impeach if D takes the stand and testifies in
contradiction to the suppressed statements
4. Regulating Eyewitness Identifications
Leading cause of wrongful convictions: (especially where cross-racial)
 But Constitution doesn’t say much
6a right to have counsel present applies to corporeal IDs after formal proceedings have commenced
Ie voice exemplars, doesn't just need to be a line up
But NOT non-corporeal ID (photo arrays)
So prosecutors just won't charge before line ups
Due process challenges to eyewitness IDs
 Must show the procedure was UNNECESSARILY suggestive in a way conducive to mistake IDs
o And compensating indicia of reliability are lacking
 So even if suggestive, question is was it UNNECESSARILY suggestive ON THE PART OF THE GOVERNMENT
 Stovall v. denno: showing single suspect to severely injured hit and run victim might be suggestive but not
o Necessary because V might die
due process apply only when the police are responsible for the unreliable ID? --> YES
Fruits analysis for admissibility of in-court ID after bad out of court ID
 Bad out of court ID doesn't mean that in court ID is barred
o Prosecution might still be able to get that same ID in court
o Standard: Government has to show by clear convincing evidence that the in court testimony is
INDEPENDENT of faulty out of court procedures
 How does government prove it--factors:
o Opportunity of witness to view
o Consistency between descriptions
o Witness degree of attention
o Time elapsed between crime and ID
o Level of certainty