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Criminal Procedure Outline

Criminal Procedure Outline
4th Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Key Language
 Reasonableness clause, warrant clause, warrantless searches
4th Amendment Analysis Questions
Who was conducting the search?
What were they searching for?
Did they have suspicion?
Did they have a warrant?
Where were they looking?
Key/Initial Questions
Who does the Amendment apply to? - Only to the Government
Has there been a search or seizure?
o 4th Amendment Values - (any test to determine if there is a search will weigh these
 Privacy
 Freedom to be left alone
 Protection from government abuse
 Property rights - weighing used to be primarily property based, this changed
with the Katz case
Exclusionary Rule
Weeks v. United States
Police entered the home of Fremont Weeks and seized papers which were used to convict
him of transporting lottery tickets through the mail. This was done without a search
warrant. Weeks took action against the police and petitioned for the return of his private
Did the search and seizure of Weeks' home violate the Fourth Amendment?
In a unanimous decision, the Court held that the seizure of items from Weeks' residence
directly violated his constitutional rights. The Court also held that the government's refusal
to return Weeks' possessions violated the Fourth Amendment. To allow private documents
to be seized and then held as evidence against citizens would have meant that the protection
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of the Fourth Amendment declaring the right to be secure against such searches and
seizures would be of no value whatsoever. This was the first application of what eventually
became known as the "exclusionary rule."
Mapp v. Ohio
Dollree Mapp was convicted of possessing obscene materials after an admittedly illegal
police search of her home for a fugitive. She appealed her conviction on the basis of
freedom of expression.
Were the confiscated materials protected from seizure by the Fourth Amendment?
The majority brushed aside First Amendment issues and declared that all evidence obtained
by searches and seizures in violation of the Fourth Amendment is inadmissible in a state
court. The decision launched the Court on a troubled course of determining how and when
to apply the exclusionary rule.
o Exclusionary Rule is a fundamental part of the privacy rights of the 4th Amendment
applicable to the States through the 14th Amendment.
Has There Been A Search Or Seizure?
Katz v. United States
Acting on a suspicion that Katz was transmitting gambling information over the phone to
clients in other states, Federal agents attached an eavesdropping device to the outside of a
public phone booth used by Katz. Based on recordings of his end of the conversations, Katz
was convicted under an eight-count indictment for the illegal transmission of wagering
information from Los Angeles to Boston and Miami. On appeal, Katz challenged his
conviction arguing that the recordings could not be used as evidence against him. The Court
of Appeals rejected this point, noting the absence of a physical intrusion into the phone
booth itself. The Court granted certiorari.
Does the Fourth Amendment protection against unreasonable searches and seizures require
the police to obtain a search warrant in order to wiretap a public payphone?
o Yes. The Court ruled that Katz was entitled to Fourth Amendment protection for
his conversations and that a physical intrusion into the area he occupied was
unnecessary to bring the Amendment into play. "The Fourth Amendment protects
people, not places," wrote Justice Potter Stewart for the Court. A concurring
opinion by John Marshall Harlan introduced the idea of a 'reasonable' expectation
of Fourth Amendment protection.
o Test - Privacy based, not property based (Reasonable Expectation of Privacy Test)
 Did the government's activity violate the defendant’s right to privacy on
which he justifiably relied?
 A search for 4th Amendment purposes occurs if the person searched had a
subjective expectation of privacy and if the expectation is one that society
is prepared to accept as reasonable.
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California v. Greenwood – Application of the Katz test
Local police suspected Billy Greenwood was dealing drugs from his residence. Because
the police did not have enough evidence for a warrant to search his home, they searched
the garbage bags Greenwood had left at the curb for pickup. The police uncovered evidence
of drug use, which was then used to obtain a warrant to search the house. That search turned
up illegal substances, and Greenwood was arrested on felony charges.
Did the warrantless search and seizure of Greenwood's garbage violate the Fourth
Amendment's search and seizure guarantee?
Voting 6 to 2, the Court held that garbage placed at the curbside is unprotected by the
Fourth Amendment. The Court argued that there was no reasonable expectation of privacy
for trash on public streets "readily accessible to animals, children, scavengers, snoops, and
other members of the public." The Court also noted that the police cannot be expected to
ignore criminal activity that can be observed by "any member of the public."
California v. Ciraolo – Deals with Examination of Property Adjacent to a Home
Open Fields v. Curtilage
o Factors
 Distance from the home structure
 Is the area enclosed
 Use to which the area is put
 Precautions taken to exclude others
 Others?
Open fields: Area beyond the curtilage, does not enjoy any 4th Amendment protections.
Curtilage: Some portion of the area outside but adjacent to the home such as a patio, garage, or
backyard. Enjoys the same degree of 4th Amendment protection as does the home.
The Santa Clara Police received an anonymous tip that Ciraolo was growing marijuana in
his backyard. Unable to observe the yard from the ground due to a high fence which
encircled it, the police secured a private plane and flew over Ciraolo's house at an altitude
of 1,000 feet. The fly-over confirmed the presence of marijuana. The police then obtained
a search warrant, seized 73 plants the next day, and arrested Ciraolo who then pleaded
guilty to the cultivation of marijuana. The California Court of Appeals, however, found
that the aerial observation was illegal and reversed Ciraolo's conviction.
Did the warrantless, aerial observation of Ciraolo's back yard from an altitude of 1,000 feet
constitute an illegal search and violate the Fourth Amendment?
The divided Court found that the observation did not violate the Constitution. Chief Justice
Burger reasoned that the Fourth Amendment protections regarding the home had never
been absolute: for example, police officers are not obligated to shield their eyes when
passing homes on public streets or sidewalks. Since the observations of the Santa Clara
officers was "nonintrusive" and "took place within public navigable airspace," their actions
were consistent with the Fourth Amendment. "Any member of the public flying in this
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airspace who glanced down could have seen everything that these officers observed,"
concluded Burger. The dissenters, led by Justice Powell, argued that this decision was a
significant departure from the Court's holding in Katz v. United States (1967) which
established a two-part test to evaluate privacy claims.
What is a reasonable expectation of privacy?
A search for 4th Amendment purposes occurs if the person searched had a subjective
expectation of privacy and if the expectation is one that society is prepared to accept as
reasonable - Katz test
United States v. White – Voluntary Disclosure to 3rd Parties
o A government informant, Harvey Jackson, wore a concealed radio transmitter and
engaged in four conversations with defendant White at three different locations:
Jackson's house, a restaurant, and Jackson's automobile. Government agents
listened to each of the radio transmissions, thereby overhearing defendant White
make self-incriminating remarks regarding his involvement in multiple narcotics
transactions. Jackson was unavailable during the trial, so the prosecution offered
the testimony of the agents who had conducted the electronic surveillance as
o Does the 4th Amendment bar from evidence the testimony of government agents
relating certain conversations that occurred between a defendant and an undercover
government informant, which the agents overheard while monitoring the frequency
of a radio transmitter concealed on the body of that informant?
o No. The testimony of government agents, relating conversations between a
defendant and an undercover informant, overheard via electronic surveillance, is
admissible, despite the informant's unavailability at trial. This case expanded the
principle announced in Katz v. United States.
o Add to Katz Test
 When people voluntarily disclose information to 3rd parties, there is no
reasonable expectation of privacy and they assume the risk of discloser to
the cops.
Smith v. Maryland – Looks at 3rd Party Doctrine in the Context of Private or Quasi-Private
On March 5, 1976, Patricia McDonough was robbed in Baltimore, Maryland. She was able
to give the police a description of the robber and the 1975 Monte Carlo she thought the
robber was driving. Within a few days, she began receiving threatening phone calls that
culminated in the caller telling her to stand on her porch, from where she observed the same
Monte Carlo drive past. On March 16, the police observed the car in McDonough's
neighborhood. By running a search on the license plate number, the police learned the car
was registered to Michael Lee Smith. The police contacted the telephone company and
requested that a pen register, a device that only records numbers dialed, record the numbers
dialed from the telephone at Smith's home. On March 17, the pen register recorded a call
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from Smith's phone to McDonough's home, so the police obtained a warrant to search
Smith's house. During the search, police discovered a phone book with the corner turned
down on the page on which McDonough's name was found. Smith was arrested and placed
in a line-up where McDonough identified him as the man who robbed her.
In pretrial, Smith filed a motion to suppress the information derived from the installation
of the pen register because it was obtained without a warrant. The trial court denied the
motion, Smith waived a jury, and the case was submitted to the court with an agreed-upon
statement of facts. The court convicted Smith and sentenced him to six years in prison.
Smith appealed to the Maryland Court of Special Appeals, but the Maryland Court of
Appeals intervened by issuing a writ of certiorari. That court affirmed the conviction and
held that there was no expectation of privacy to cover the numbers dialed into a telephone
system, so there was no Fourth Amendment violation of the warrant requirement.
Did the use of a pen register without a warrant violate the Fourth Amendment protection
against unreasonable searches and seizures?
No. Justice Harry A. Blackmun delivered the opinion for the 5-3 majority. The Court held
that Fourth Amendment protections are only relevant if the individual believes that the
government has infringed on the individual's reasonable expectation of privacy. This
reasonable expectation of privacy does not apply to the numbers recorded by a pen register
because those numbers are used in the regular conduct of the phone company's business, a
fact of which individuals are aware. Because the Fourth Amendment does not apply to
information that is voluntarily given to third parties, the telephone numbers that are
regularly and voluntarily provided to telephone companies by their customers do not gain
Fourth Amendment protections.
Justice Potter Stewart wrote a dissent in which he argued that a person who uses a telephone
has a reasonable expectation of privacy regarding the content of call. Because the telephone
numbers dialed also contain information relating to the content of the call, that information
is also protected by the Fourth Amendment. Justice William J. Brennan, Jr. joined in the
dissent. In his separate dissent, Justice Thurgood Marshall argued that the majority
opinion's analysis depends on an individual's choice to voluntarily turn over information,
but that choice is not valid if no practical alternative exists. He wrote that no citizen should
be forced to accept government monitoring of the phone numbers he dials simply by
registering a phone with a telephone company. Such government intrusion on telephone
records could impede the exercise of free speech or political affiliation. Therefore phone
records should be subject to the Fourth Amendment's protections. Justice Brennan also
joined in the dissent.
Carpenter v. United States – Cell Phones/Technology
In April 2011, police arrested four men in connection with a series of armed robberies. One
of the men confessed to the crimes and gave the FBI his cell phone number and the numbers
of the other participants. The FBI used this information to apply for three orders from
magistrate judges to obtain "transactional records" for each of the phone numbers, which
the judges granted under the Stored Communications Act, 18 U.S.C. 2703(d). That Act
provides that the government may require the disclosure of certain telecommunications
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records when "specific and articulable facts show[] that there are reasonable grounds to
believe that the contents of a wire or electronic communication, or the records or other
information sought, are relevant and material to an ongoing criminal investigation." The
transactional records obtained by the government include the date and time of calls, and
the approximate location where calls began and ended based on their connections to cell
towers—"cell site" location information (CSLI).
Based on the cell-site evidence, the government charged Timothy Carpenter with, among
other offenses, aiding and abetting robbery that affected interstate commerce, in violation
of the Hobbs Act, 18 U.S.C. 1951. Carpenter moved to suppress the government's cell-site
evidence on Fourth Amendment grounds, arguing that the FBI needed a warrant based on
probable cause to obtain the records. The district court denied the motion to suppress, and
the Sixth Circuit affirmed.
Does the warrantless search and seizure of cell phone records, which include the location
and movements of cell phone users, violate the Fourth Amendment?
The government's warrantless acquisition of Carpenter's cell-site records violated his
Fourth Amendment right against unreasonable searches and seizures. Chief Justice John
Roberts authored the opinion for the 5-4 majority. The majority first acknowledged that
the Fourth Amendment protects not only property interests, but also reasonable
expectations of privacy. Expectations of privacy in this age of digital data do not fit neatly
into existing precedents, but tracking person's movements and location through extensive
cell-site records is far more intrusive than the precedents might have anticipated. The Court
declined to extend the "third-party doctrine"—a doctrine where information disclosed to a
third party carries no reasonable expectation of privacy—to cell-site location information,
which implicates even greater privacy concerns than GPS tracking does. One consideration
in the development of the third-party doctrine was the "nature of the particular documents
sought," and the level of intrusiveness of extensive cell-site data weighs against application
of the doctrine to this type of information. Additionally, the third-party doctrine applies to
voluntary exposure, and while a user might be abstractly aware that his cell phone provider
keeps logs, it happens without any affirmative act on the user's part. Thus, the Court held
narrowly that the government generally will need a warrant to access cell-site location
Kyllo v. United States – Technology Enhanced Searches
A Department of the Interior agent, suspicious that Danny Kyllo was growing marijuana,
used a thermal-imaging device to scan his triplex. The imaging was to be used to determine
if the amount of heat emanating from the home was consistent with the high-intensity
lamps typically used for indoor marijuana growth. Subsequently, the imaging revealed that
relatively hot areas existed, compared to the rest of the home. Based on informants, utility
bills, and the thermal imaging, a federal magistrate judge issued a warrant to search Kyllo's
home. The search unveiled growing marijuana. After Kyllo was indicted on a federal drug
charge, he unsuccessfully moved to suppress the evidence seized from his home and then
entered a conditional guilty plea. Ultimately affirming, the Court of Appeals held that Kyllo
had shown no subjective expectation of privacy because he had made no attempt to conceal
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the heat escaping from his home, and even if he had, there was no objectively reasonable
expectation of privacy because the imager "did not expose any intimate details of Kyllo's
life," only "amorphous 'hot spots' on the roof and exterior wall."
Does the use of a thermal-imaging device to detect relative amounts of heat emanating
from a private home constitute an unconstitutional search in violation of the Fourth
Yes. In a 5-4 opinion delivered by Justice Antonin Scalia, the Court held that "[w]here, as
here, the Government uses a device that is not in general public use, to explore details of
the home that would previously have been unknowable without physical intrusion, the
surveillance is a 'search' and is presumptively unreasonable without a warrant." In dissent,
Justice John Paul Stevens argued that the "observations were made with a fairly primitive
thermal imager that gathered data exposed on the outside of [Kyllo's] home but did not
invade any constitutionally protected interest in privacy," and were, thus, "information in
the public domain."
United States v. Knotts – Technology Enhanced Searches
Tristan Armstrong, a former employee of the 3M Company, which manufactures chemicals
in St. Paul, came under suspicion for stealing chemicals that could be used to manufacture
illegal drugs. The company notified a narcotics agent, and further investigation determined
that Armstrong had been purchasing similar chemicals from the Hawkins Chemical
Company in St. Louis. With the consent of Hawkins Chemical Company, narcotics agents
installed a radio transmitter in the container of chloroform that Armstrong would receive.
By tracking the radio transmitter, officers were able to track Armstrong delivering the
chloroform to Darryl Petschen. Petschen drove it to a cabin owned by Leroy Carlton Knotts
in Shell Lake, Wisconsin. Relying on this information, the officers obtained a search
warrant for the cabin and found a fully operable drug-manufacturing lab.
Knotts was convicted in district court after the court denied his motion to suppress the
evidence. The United States Court of Appeals for the Eighth Circuit reversed the
conviction and held that the monitoring of the radio transmitter violated Knotts’ Fourth
Amendment rights.
Does police planting and tracking of a radio transmitter violate the Fourth Amendment?
No. Justice William H. Rehnquist delivered the unanimous opinion. The Court held that
the use of the radio transmitter to track the movements of a suspect in a car falls under the
privacy expectations for a vehicle, which are less than those of a house. Since the radio
transmitter in this case was used primarily to ascertain where the chloroform traveled and
where it stopped, the surveillance did not violate Knotts’ right to privacy in his home.
Additionally, the use of the radio transmitter did not serve any function that the police
could not have performed visually; the transmitter merely made the process easier.
United States v. Karo – Technology Enhanced Searches
Defendants James Karo, Richard Horton, and William Harley ordered fifty gallons of ether
from a government informant, to be used to extract cocaine from clothes imported into the
United States. Carl Muehlenweg, the informant and owner of the ether, gave consent to the
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police to install a tracking device into one of the cans containing the ether before delivery
to the defendants.
Does the installation of a tracking device into a container, with the permission of the
original owner, constitute a seizure within the meaning of the 4th Amendment when the
container is delivered to a buyer having no knowledge of the tracking device?
No. The Court found that although the cans of ether may have contained an unknown and
unwanted object, no meaningful interference with the defendants' interest in their
possessions occurred, as the tracking device was installed before the defendants obtained
the ether. This case was an expansion of the holding announced in United States v.
Knotts, 460 U.S. 276 (1983). (Abstract by Blaine Schmidt.)
United States v. Jones – Technology Enhanced Searches
Antoine Jones was arrested on Oct. 24, 2005, for drug possession after police attached a
tracker to Jones's Jeep -- without judicial approval -- and used it to follow him for a month.
A jury found Jones not guilty on all charges save for conspiracy, on which point jurors
hung. District prosecutors, upset at the loss, re-filed a single count of conspiracy against
Jones and his business partner, Lawrence Maynard. Jones owned the "Levels" nightclub in
the District of Columbia. Jones and Maynard were then convicted, but a three-judge panel
of the U.S. Court of Appeals for the D.C. Circuit ruled that the Supreme Court specifically
stated in a 1983 case regarding the use of a beeper to track a suspect that the decision could
not be used to justify 24-hour surveillance without a warrant.
Did the warrantless use of a tracking device on Jones's vehicle to monitor its movements
on public streets violate Jones' Fourth Amendment rights?
Yes. Justice Antonin Scalia delivered the opinion of the Court. The Court affirmed the
judgment of the lower court, and held that the installation of a GPS tracking device on
Jones' vehicle, without a warrant, constituted an unlawful search under the Fourth
Amendment. The Court rejected the government's argument that there is no reasonable
expectation of privacy in a person's movement on public thoroughfares and emphasized
that the Fourth Amendment provided some protection for trespass onto personal property.
Probable Cause
For a search to be reasonable, the search must be based upon probable cause and must be
accompanied by a warrant.
What is probable cause? →
a standard of proof, lowest one.
PC to Arrest
PC to arrest exists where the facts and circumstances within the officers’ knowledge and
of which they have reasonably trustworthy information are sufficient in themselves to
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warrant a man of reasonable caution in the belief that an offense has been or is being
committed by the person arrested.
Certain quantum of evidence that:
o A particular individual
o Is committing or has committed a crime
PC to Search
PC to search exists if the facts and circumstances within the officers’ knowledge and of
which they have reasonably trustworthy information are sufficient in themselves to warrant
a man of reasonable caution in the belief that an item subject to seizure will be found in the
place to be searched.
Certain quantum of likelihood that:
o Property subject to seizure
o Is presently
o In the place to be searched
How to determine the existence of probable cause, what information should be considered and
how should that information be weighed?
Possible Factors in Evaluating PC
Source of information
o Reliability
o Motive
o Ability to observe
Method of obtaining information (Eyewitness, hearsay, rumor, etc.)
Quantum of information
Quality of information
Timeliness of information
Agular v. Texas – Affidavit
A Texas justice of the peace issued a warrant to search for narcotics in defendant's home;
the warrant was based on an affidavit filed by two municipal police officers and reciting
that affiants received reliable information from a credible person, and that affiants believed,
that narcotics were being kept at defendant's premises for illegal sale and use. Over
defendant's objection, heroin seized under the warrant was introduced in evidence at his
trial in a Texas state court. Defendant was convicted of illegal possession of heroin, and
his conviction was affirmed by the appellate court holding that the evidence obtained as a
result of the search was properly admitted as evidence.
Did the affidavit of the police officers provide sufficient basis for finding probable cause
and issuance of a search warrant?
No. The United States Supreme Court held that the search violated U.S. Const. amend. IV
because the affidavit did not provide any basis for the determination that probable cause
existed. The complaint contained no affirmative allegation that the affiant or the affiant's
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unidentified source spoke with personal knowledge of the matters contained therein.
Additionally, the affidavit did not indicate any sources for the affiant's belief and did not
set forth any other sufficient basis upon which a finding of probable cause could be made.
The "mere conclusion" that defendant possessed narcotics was not even that of the affiant
himself; it was that of an unidentified informant. The affidavit here not only "contains no
affirmative allegation that the affiant spoke with personal knowledge of the matters
contained therein," it does not even contain an "affirmative allegation" that the affiant's
unidentified source "spoke with personal knowledge." For all that appears, the source here
merely suspected, believed or concluded that there were narcotics in defendant's
possession. The magistrate here certainly could not "judge for himself the persuasiveness
of the facts relied on . . . to show probable cause." He necessarily accepted "without
question" the informant's "suspicion," "belief" or "mere conclusion."
Although an affidavit may be based on hearsay information and need not reflect the direct
personal observations of the affiant, the magistrate must be informed of some of the
underlying circumstances from which the informant concluded that the narcotics were
where he claimed they were, and some of the underlying circumstances from which the
officer concluded that the informant, whose identity need not be disclosed, was "credible"
or his information "reliable." Otherwise, the inferences from the facts which lead to the
complaint will be drawn not by a neutral and detached magistrate, as the Constitution
requires, but instead, by a police officer engaged in the often competitive enterprise of
Spinelli v. United States – Affidavit & Other Corroborating Evidence
Agents of the Federal Bureau of Investigation (FBI) applied for, and were issued, a search
warrant to assist in uncovering evidence of defendant William Spinelli conducting illegal
gambling activities. In the affidavit required for the warrant application, the FBI agents
stated the defendant was known to "local law enforcement officials as a bookmaker." The
FBI related in the affidavit that agents had tracked defendant Spinelli for five days, and
that on four of the days, Spinelli was seen crossing into St. Louis, MO, entering an
apartment at 1108 Indian Circle Drive. Finally, the agents offered that they "had been
informed by a confidential reliable informant that William Spinelli is operating a handbook
and accepting wagers and disseminating wagering information by means of the telephones
which have been assigned the numbers WYdown 4-0029 and WYdown 4-0136."
Did the affidavit included in the warrant application afford probable cause sufficient to
issue the search warrant?
No. The informant's tip, even when corroborated with the FBI's observations from their
surveillance, was not sufficient to provide a basis for a finding probable cause when using
the two-pronged test set forth in Aguilar v. Texas, 378 U.S. 108 (1964). (Abstract prepared
by Blaine Schmidt.)
Two Prong Test:
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Illinois v. Gates – Overruled Agular & Spinelli Test replaced with the Totality of Circumstances
The Bloomingdale, Illinois Police Department received an anonymous tip that Lance and
Susan Gates were selling drugs out of their home. After observing the Gates's drug
smuggling operation in action, police obtained a warrant and upon searching the suspects'
car and home uncovered large quantities of marijuana, other contraband, and weapons.
Did the search of the Gates's home violate the Fourth and Fourteenth Amendments?
The Court found no constitutional violation and argued that the lower court misapplied the
test for probable cause which the Court had announced in Spinelli v. United States (1969).
Justice Rehnquist argued that an informant's veracity, reliability, and basis of knowledge
are important in determining probable cause, but that those issues are intertwined and
should not be rigidly applied. He argued that the "totality-of-the-circumstances" approach
to probable cause was the correct one to glean from Spinelli, and that the law enforcement
officials who obtained a warrant abided by it in this case.
Totality of the Circumstances Test
o Source of Information
 Reliability
 Motive
 Ability to observe
o Method of obtaining information (Eyewitness, hearsay, rumor, etc.)
o Quantum of information
o Quality of information
o Timeliness of information
o Other
Whren v. United States – Subjective intent of police officers
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Whren and Brown were driving in a 'high drug area.' Some plainclothes officers, while
patrolling the neighborhood in an unmarked vehicle, noticed Whren and Brown sitting in
a truck at an intersection stop-sign for an usually long time. Suddenly, without signaling,
Whren turned his truck and sped away. Observing this traffic violation, the officers stopped
the truck. When they approached the vehicle, the officers saw Whren holding plastic bags
of crack cocaine. Whren and Brown were arrested on federal drug charges. Before trial,
they moved to suppress the evidence contending that the officers used the traffic violation
as a pretext for stopping the truck because they lacked either reasonable suspicion or
probable cause to stop them on suspicion of drug dealing. The District Court denied the
motion to suppress and convicted the petitioners. The Court of Appeals affirmed. The
Supreme Court granted certiorari.
Did the officers conduct an unreasonable search and seizure in violation of the Fourth
No. The unanimous Court held that as long as officers have a reasonable cause to believe
that a traffic violation occurred, they may stop any vehicle. In the present case, the officers
had reasonable cause to stop the petitioners for a traffic violation since they sped away
from a stop sign at an 'unreasonable speed' and without using their turn signal. Thus, since
an actual traffic violation occurred, the ensuing search and seizure of the offending vehicle
was reasonable, regardless of what other personal motivations the officers might have had
for stopping the vehicle. Furthermore, the Court rejected the claim that the anxiety,
confusion, and haste which the petitioners experienced from the stop-and-search
outweighed the government's interest in traffic safety. While the Fourth Amendment does
require a balancing test between a search-and-seizure's benefits and the harm it might cause
to the individual, such a test only applies to unusually harmful searches and seizures. There
was nothing unusually harmful about this traffic stop.
Warrant Requirement
For a search to be reasonable, the search must be proceeded by a warrant, a warrant based on
probable cause.
Johnson v. United States – Search not based upon a warrant
Based on the information of a confidential informant and drug user, a Seattle detective
went to the Europe Hotel. The confidential informant stated he could smell opium in the
hallway. The detective contacted and returned to the hotel with four federal narcotics
agents. They too, smelled opium, and followed it to the defendant’s room. They did not
know who was in the room. When a voice inside asked who was at the door, the detective
identified himself. After a period of time, during which noises could be heard from inside
the room, the door opened and the defendant appeared. The detective said they wanted to
speak to her, and that she allowed them to enter. He then told her: “I want you to consider
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yourself under arrest because we are going to search the room.” They found opium and a
recently used smoking device.
“Whether it was lawful, without a warrant of any kind, to arrest petitioner and to search
her living quarters.”
No. “At the time entry was demanded the officers were possessed of evidence which a
magistrate might have found to be probable cause for issuing a search warrant,”
specifically, the odor of opium coming from the room and the informant’s testimony. The
Fourth Amendment’s “protection consists in requiring that those inferences be drawn by a
neutral and detached magistrate instead of being judged by the officer engaged in the often
competitive enterprise of ferreting out crime.” While there are certain circumstances “in
which a magistrate’s warrant for search may be dispensed with,” they were not present
Moreover, much of the grounds of the arrest are “not on the informer’s tip and the smell
the officers recognized before entry, but on the knowledge that she was alone in the room,
gained only after, and wholly by reason of, their entry of her home. It was therefore their
observations inside of her quarters, after they had obtained admission under color of their
police authority, on which they made the arrest.” Police officers must “have [a] valid basis
in law” for the entry into private homes.
Analytical Template:
What is the underlying rational for the exception?
What must be shown to invoke the exception?
What is the scope of authority conferred by the exception?
Public Arrest
United States v. Watson – Several conditions must be met first
 On August 17, 1972, a postal inspector received information from an
informant that the respondent, Henry Ogle Watson, was in possession
of stolen credit cards. The informant had provided the inspector with
reliable information in the past, and, later that day, provided the
inspector with a stolen card. The inspector asked the informant to
arrange another meeting with Watson to deliver more stolen cards. At
the meeting on August 23, when the informant gave the signal,
officers revealed themselves and arrested Watson. The officers read
Watson his Miranda warning and searched him but did not find the
cards on his person. They asked to search his car, and Watson gave
them permission. In the car, officers found two stolen cards. Watson
was then charged with four counts of possessing stolen mail. Prior to
the trial, Watson moved to suppress the cards by claiming his arrest
was illegal because there was no warrant, and that the search of his
car was involuntary because he was not informed that he could
withhold consent. The motion was denied and Watson was convicted.
 Did the arrest and following search of the respondent’s car violate his
Fourth Amendment rights?
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No. Justice Byron R. White delivered the opinion of the 6-2 majority.
The Court held that postal inspectors have the power to execute an
arrest without a warrant when there is probable cause. Congress has
granted this power to several federal agencies, not just the postal
service. Because Watson’s arrest was constitutional, the search of his
car was not the product of an illegal arrest. The Court held that there
was no evidence that Watson was coerced into agreeing to the car
 In his concurring opinion, Justice Lewis F. Powell wrote that there
was established historical precedent for warrantless arrests. He also
argued that interpreting the Fourth Amendment as always requiring a
warrant prior to arrest would severely and negatively impact effective
law enforcement. Justice Potter Stewart wrote a concurring opinion
where he argued that the arrest occurred with probable cause, in broad
daylight, in a public place and thus did not violate the Fourth
Amendment. He also held that the majority’s decision in this case
does not set any precedent regarding under what circumstances an
officer may make a warrantless arrest in a private place.
Atwater v. City of Lago Vista
 Under Texas law, it is a misdemeanor, punishable only by a fine,
either for a front-seat passenger in a car equipped with safety belts
not to wear one or for the driver to fail to secure any small child riding
in front. In 1997, Gail Atwater was driving her truck in Lago Vista.
Neither of Atwater's children, who were sitting in the front seat, was
wearing seatbelts. Lago Vista policeman Bart Turek observed the
violations and pulled Atwater over. Ultimately, Atwater was
handcuffed, placed in jail, and released on bond. Atwater then filed
suit alleging that Turek's actions had violated her Fourth Amendment
right to be free from unreasonable seizure. In granting the city
summary judgment, the District Court ruled the claim meritless. In
affirming, the en banc Court of Appeals held that the arrest was not
unreasonable for Fourth Amendment purposes because no one
disputed that Turek had probable cause to arrest Atwater, and there
was no evidence the arrest was conducted in an extraordinary manner,
unusually harmful to Atwater's privacy interests.
 Does the Fourth Amendment, either by incorporating common-law
restrictions on misdemeanor arrests or otherwise, limit a police
officer's authority to arrest without warrant for minor criminal
 No. In a 5-4 opinion delivered by Justice David H. Souter, the Court
held that the Fourth Amendment does not forbid a warrantless arrest
for a minor criminal offense, such as a misdemeanor seatbelt violation
punishable only by a fine. "If an officer has probable cause to believe
that an individual has committed even a very minor criminal offense
in his presence, he may, without violating the Fourth Amendment,
arrest the offender," wrote Justice Souter for the Court. Justice Sandra
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Search Incident
to Arrest
Day O'Connor's dissenting opinion argued that the Court's decision
"neglects the Fourth Amendment's express command in the name of
administrative ease" and thus "cloaks the pointless indignity that Gail
Atwater suffered with the mantle of reasonableness."
Payton v. New York
 New York City police suspected Theodore Payton of murdering a gas
station manager. The police forcibly entered Payton's home thinking
he was there (he was not) and found evidence connecting Payton to
the crime, which was introduced at Payton's trial. The police lacked
an arrest warrant when they entered his home. However, they acted
under a New York law allowing police to enter a private residence to
make a felony arrest without a warrant. At trial, Payton
unsuccessfully sought to suppress the evidence as the fruit of an
illegal search. State courts upheld. In the companion case, victims
identified Obie Riddick in June 1973 for robberies in 1971. Police
learned of his whereabouts in 1974. Without a warrant, they knocked
on his door, entered his residence and arrested him. A search for
weapons revealed illegal drugs. He was indicted on narcotics charges
but sought the suppression of the evidence based on a warrantless
entry. The trial judge concluded that the entry was authorized by the
New York law and that the search was therefore permissible. Riddick
was convicted. The appeals court affirmed.
 Does New York statute authorizing warrantless arrests and searches
violate the Fourth Amendment prohibition against unreasonable
searches and seizures?
 Yes. Justice John Paul Stevens, writing for the 6 to 3 majority, held
that the Fourth Amendment, as applied to the states by the Fourteenth
Amendment, "prohibits the police from making a warrantless and
nonconsensual entry into a suspect's home in order to make a routine
felony arrest." Warrantless arrests and searches went to the core of
the Fourth Amendment's protection of privacy in a citizen's dwelling.
This protection was too important to be violated on the basis of a
police officer's on-the-spot decision regarding probable cause. In the
absence of special circumstances, a search of a residence is
permissible only after a finding of probable cause by a neutral
magistrate issuing a search warrant. Justice Byron R. White, joined
by Chief Justice Warren E. Burger and Justice William H. Rehnquist,
dissented. White maintained that common law and practice prior to
and at the time the Fourth Amendment was adopted did not limit a
police officer's inherent power to arrest or search.
Chimel v. California – What areas the police an search under the exception
 Local police officers went to Chimel's home with a warrant
authorizing his arrest for burglary. Upon serving him with the arrest
warrant, the officers conducted a comprehensive search of Chimel's
residence. The search uncovered a number of items that were later
used to convict Chimel. State courts upheld the conviction.
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Was the warrantless search of Chimel's home constitutionally
justified under the Fourth Amendment as "incident to that arrest?"
 In a 6-2 decision, the Court held that the search of Chimel's house
was unreasonable under the Fourth and Fourteenth Amendments. The
Court reasoned that searches "incident to arrest" are limited to the
area within the immediate control of the suspect. While police could
reasonably search and seize evidence on or around the arrestee's
person, they were prohibited from rummaging through the entire
house without a search warrant. The Court emphasized the
importance of warrants and probable cause as necessary bulwarks
against government abuse.
United States v. Robinson – The search of a person as part of a lawful
 A police officer pulled over and arrested Robinson for operating an
automobile without a valid permit. The officer then frisked Robinson
and discovered a crumpled cigarette package containing fourteen
vials of heroin in his pocket.
 Did the officer's search violate the Fourth Amendment?
 The Court upheld the search. Distinguishing between searches done
to discover concealed weapons and those conducted coextensive with
an arrest, Justice Rehnquist argued since the officer did not conduct
the search in an abusive or extreme manner, and because he acted
consistent with the authority vested in a police officer when making
an arrest, his actions were legitimate.
Arizona v. Gant – The search of a car incident to a lawful arrest
 Rodney Gant was apprehended by Arizona state police on an outstanding
warrant for driving with a suspended license. After the officers handcuffed
Gant and placed him in their squad car, they went on to search his vehicle,
discovering a handgun and a plastic bag of cocaine. At trial, Gant asked the
judge to suppress the evidence found in his vehicle because the search had
been conducted without a warrant in violation of the Fourth Amendment's
prohibition of unreasonable searches and seizures. The judge declined
Gant's request, stating that the search was a direct result of Gant's lawful
arrest and therefore an exception to the general Fourth Amendment warrant
requirement. The court convicted Gant on two counts of cocaine possession.
The Arizona Court of Appeals reversed, holding the search unconstitutional,
and the Arizona Supreme Court agreed. The Supreme Court stated that
exceptions to the Fourth Amendment warrant requirement must be justified
by concerns for officer safety or evidence preservation. Because Gant left
his vehicle voluntarily, the court explained, the search was not directly
linked to the arrest and therefore violated the Fourth Amendment. In seeking
certiorari, Arizona Attorney General Terry Goddard argued that the Arizona
Supreme Court's ruling conflicted with the Court's precedent, as well as
precedents set forth in various federal and state courts.
Is a search conducted by police officers after handcuffing the
defendant and securing the scene a violation of the Fourth
Amendment's protection against unreasonable searches and seizures?
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Yes, under the circumstances of this case. The Supreme Court held
that police may search the vehicle of its recent occupant after his
arrest only if it is reasonable to believe that the arrestee might access
the vehicle at the time of the search or that the vehicle contains
evidence of the offense of the arrest. With Justice John Paul Stevens
writing for the majority and joined by Justices Antonin G. Scalia,
David H. Souter, Clarence Thomas, and Ruth Bader Ginsburg, the
Court reasoned that "warrantless searches are per se unreasonable"
and subject only to a few, very narrow exceptions. Here, Mr. Gant
was arrested for a suspended license and the narrow exceptions did
not apply to his case.
Reily v. California – A search incident to an arrest involving cell phones
 David Leon Riley belonged to the Lincoln Park gang of San Diego,
California. On August 2, 2009, he and others opened fire on a rival gang
member driving past them. The shooters then got into Riley's Oldsmobile
and drove away. On August 22, 2009, the police pulled Riley over driving
a different car; he was driving on expired license registration tags. Because
Riley's driver's license was suspended, police policy required that the car be
impounded. Before a car is impounded, police are required to perform an
inventory search to confirm that the vehicle has all its components at the
time of seizure, to protect against liability claims in the future, and to
discover hidden contraband. During the search, police located two guns and
subsequently arrested Riley for possession of the firearms. Riley had his cell
phone in his pocket when he was arrested, so a gang unit detective analyzed
videos and photographs of Riley making gang signs and other gang indicia
that were stored on the phone to determine whether Riley was gang
affiliated. Riley was subsequently tied to the shooting on August 2 via
ballistics tests, and separate charges were brought to include shooting at an
occupied vehicle, attempted murder, and assault with a semi-automatic
Before trial, Riley moved to suppress the evidence regarding his gang
affiliation that had been acquired through his cell phone. His motion was
denied. At trial, a gang expert testified to Riley's membership in the Lincoln
Park gang, the rivalry between the gangs involved, and why the shooting
could have been gang-related. The jury convicted Riley on all three counts
and sentenced to fifteen years to life in prison.
Was the evidence admitted at trial from Riley's cell phone discovered
through a search that violated his Fourth Amendment right to be free
from unreasonable searches?
Yes. Chief Justice John G. Roberts, Jr. wrote the opinion for the
unanimous Court. The Court held that the warrantless search
exception following an arrest exists for the purposes of protecting
officer safety and preserving evidence, neither of which is at issue in
the search of digital data. The digital data cannot be used as a weapon
to harm an arresting officer, and police officers have the ability to
preserve evidence while awaiting a warrant by disconnecting the
phone from the network and placing the phone in a "Faraday bag."
The Court characterized cell phones as minicomputers filled with
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massive amounts of private information, which distinguished them
from the traditional items that can be seized from an arrestee's person,
such as a wallet. The Court also held that information accessible via
the phone but stored using "cloud computing" is not even "on the
arrestee's person." Nonetheless, the Court held that some warrantless
searches of cell phones might be permitted in an emergency: when
the government's interests are so compelling that a search would be
Missouri v. McNeely – Various categories of exigency, totality of the
circumstances approach
 On October 3, 2010, Missouri state police officer Mark Winder saw
Tyler McNeely driving above the speed limit. When Winder followed
McNeely to pull him over, he saw McNeely cross the center line three
times. Upon making contact with McNeely, Wilder observed that his
eyes were red and glassy, and that his breath smelled like alcohol.
McNeely performed poorly on four field sobriety tests and refused to
submit to a portable breath test. Wilder arrested McNeely for driving
while intoxicated and transported him to a hospital to obtain a blood
sample. Wilder read McNeely the Missouri Implied Consent
statement, and McNeely still refused to submit the sample. Wilder
ordered the sample taken anyway, and the blood test revealed
McNeely's blood alcohol level was far above the legal limit.
 The state charged McNeely with driving while intoxicated, and
McNeely moved to suppress the evidence of the blood sample
because it was obtained without a warrant. The trial court granted the
defendant's motion. The state appealed and argued that the risk of
McNeely's blood alcohol level decreasing over time represented an
exigent circumstance requiring a blood draw.
 Does the Fourth Amendment prevent the taking of a warrantless
blood sample under exigent circumstances?
 Yes. Justice Sonia Sotomayor delivered the opinion of the 5-4
plurality. The Supreme Court held that the Fourth Amendment’s
protection against warrantless searches applies to blood alcohol tests
unless specific exigent circumstances exist. Because each case must
be considered based on its individual facts, there are cases in which
the natural dissipation of alcohol in the blood would be considered an
exigent circumstance, but there is no reason to create a categorical
rule. The Court also held that the Fourth Amendment’s protection
against bodily intrusions outweighs the state’s interest in gaining
evidence quickly.
Mincey v. Arizona – State wanted to create a broad exigency for all
homicide cases
 On October 28, 1974, Officer Barry Headricks of the Tucson
Metropolitan Area Narcotics Squad allegedly arranged to purchase a
quantity of heroin from Rufus Mincey. Later, Officer Headricks
knocked on the door of Mincey's apartment, accompanied by nine
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other plainclothes officers. Mincey’s acquaintance, John Hodgman,
opened the door. Officer Headricks slipped inside and quickly went
to the bedroom. As the other officers entered the apartment -- despite
Hodgman’s attempts to stop them -- the sound of gunfire came from
the bedroom. Officer Headricks emerged from the bedroom and
collapsed on the floor; he died a few hours later.
 The other officers found Mincey lying on the floor of his bedroom,
wounded and semiconscious, then quickly searched the apartment for
other injured persons. Mincey suffered damage to his sciatic nerve
and partial paralysis of his right leg; a doctor described him as
depressed almost to the point of being comatose. A detective
interrogated him for several hours at the hospital, ignoring Mincey’s
repeated requests for counsel. In addition, soon after the shooting, two
homicide detectives arrived at the apartment and took charge of the
investigation. Their search lasted for four days, during which officers
searched, photographed and diagrammed the entire apartment. They
did not, however, obtain a warrant.
 The state charged Mincey with murder, assault, and three counts of
narcotics offenses. Much of the prosecution’s evidence was the
product of the extensive search of Mincey’s apartment. Mincey
contended at trial that this evidence was unconstitutionally taken
without a warrant and that his statements were inadmissible because
they were not made voluntarily.
 The Supreme Court of Arizona held that the warrantless search of
Mincey’s apartment was constitutional because it was a search of a
murder scene, and that Mincey’s statements were admissible for
impeachment purposes, reversing the murder and assault charges on
other grounds.
 Did the admission of evidence taken during a four-day long
warrantless search of Mincey’s residence constitute an unreasonable
search or seizure under the Fourth and Fourteenth Amendments?
 Did the admission of Mincey’s responses to police questioning made
while he was a patient in the intensive care unit of a hospital violate
his privilege against self-incrimination, rights to counsel and due
process under the Fifth, Sixth, and Fourteenth Amendments?
 Yes and yes. In an 8-1 opinion written by Justice Potter Stewart, the
Court held that the extensive, warrantless search of Mincey’s
apartment was unreasonable and unconstitutional under the Fourth
and Fourteenth Amendments. Justice Stewart wrote that warrantless
searches were per se unreasonable with a few specific exceptions, and
rejected Arizona’s argument that the search of a homicide scene was
one of these exceptions.
Welsh v. Wisconsin
 A witness observed a car being driven erratically and then swerving
of the road. The driver left the car and walked away. Police officers
responding to the scene checked the car's registration. Without
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obtaining a warrant, the police went to the home of the registered
owner, gained entry and found defendant Edward G. Welsh lying in
bed. Welsh was then arrested for operating a motor vehicle while
under the influence of an intoxicant. After a hearing on his refusal to
take a breathalyzer test, a Wisconsin trial court concluded that the
arrest was lawful and that Welsh's refusal to take the test was
unreasonable; his license was suspended. The suspension order was
vacated by the Court of Appeals of Wisconsin, which concluded that
the warrantless arrest violated the Fourth Amendment. The Supreme
Court of Wisconsin reversed the court of appeals, holding that there
were exigent circumstances in the case. Welsh was granted a writ of
 Did the warrantless arrest at Welsh's home violate his Fourth
Amendment right?
 Yes. The Supreme Court of the United States vacated the judgment
of the Supreme Court of Wisconsin and remanded the case for further
proceedings. The Court held that the warrantless arrest of petitioner
in his home violated U.S. Const. amend. IV because the State,
although demonstrating probable cause to arrest, had not established
the existence of exigent circumstances. Absent exigent
circumstances, the Court ruled, a warrantless nighttime entry into the
home of an individual to arrest him for a civil, non-jailable traffic
offense was prohibited by the special protection afforded the
individual in his home by the Fourth Amendment. The Court noted
that application of the exigent-circumstances exception in the context
of a home entry was rarely appropriate when there was probable cause
to believe that only a minor offense had been committed.
Brigham City v. Stuart – Immediate harm or risk of serious injury,
subjective believe of police
 Responding to a complaint about a loud party, police arrived at a
house where they saw minors drinking alcohol outside and heard
shouting inside. As they approached the house, they saw a fight
through the window involving a juvenile and four adults, one of
whom was punched hard enough to make him spit blood. The officers
announced their presence, but the people fighting did not hear them
so they entered the home. They arrested the men for contributing to
the delinquency of a minor and other related offenses. The trial court
judge, however, refused to allow the evidence collected after the
police entered the home because it was a warrantless search in
violation of the Fourth Amendment. On appeal, the government
argued that the search was covered by the "emergency aid doctrine"
because the officers were responding to seeing the man be punched.
The Supreme Court of Utah disagreed, however, ruling that the
doctrine only applies when there is an unconscious, semiconscious,
or missing person who is feared injured or dead. The Court also gave
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weight to the fact that the officers acted exclusively in a law
enforcement capacity, not to assist the injured man.
 What objectively reasonable level of concern is necessary to trigger
the emergency aid exception to the Fourth Amendment's warrant
 In a unanimous decision, the Supreme Court held that police may
enter a building without a warrant when they have an objectively
reasonable basis to believe that an occupant is "seriously injured or
threatened with such injury." Quoting from Mincey v. Arizona, Chief
Justice John Roberts wrote that "[t]he need to protect or preserve life
or avoid serious injury is justification for what would be otherwise
illegal absent an exigency or emergency."
Kentucky v. King – Exigency created by the police
 Police officers in Lexington, Ky., entered an apartment building in
pursuit of a suspect who sold crack cocaine to an undercover
informant. The officers lost sight of the suspect and mistakenly
assumed he entered an apartment from which they could detect the
odor of marijuana. After police knocked on the door and identified
themselves, they heard movements, which they believed indicated
evidence was about to be destroyed. Police forcibly entered the
apartment and found Hollis King and others smoking marijuana.
They also found cash, drugs and paraphernalia. King entered a
conditional guilty plea; reserving his right to appeal denial of his
motion to suppress evidence obtained from what he argued was an
illegal search.
 The Kentucky Court of Appeals affirmed the conviction, holding that
exigent circumstances supporting the warrantless search were not of
the police's making and that police did not engage in deliberate and
intentional conduct to evade the warrant requirement. In January
2010, the Kentucky Supreme Court reversed the lower court order,
finding that the entry was improper. The court held that the police
were not in pursuit of a fleeing suspect when they entered the
apartment, since there was no evidence that the original suspect even
knew he was being followed by police.
 Does the exclusionary rule, which forbids the use of illegally seized
evidence except in emergency situations, apply when the emergency
is created by lawful police actions?
 The Supreme Court reversed and remanded the lower court order in
a decision by Justice Samuel Alito. "The exigent circumstances rule
applies when the police do not create the exigency by engaging or
threatening to engage in conduct that violates the Fourth
Amendment," Alito wrote for the majority. Justice Ruth Bader
Ginsburg dissented, contending that "the Court today arms the police
with a way routinely to dishonor the Fourth Amendment's warrant
requirement in drug cases. "
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Chambers v. Maroney – Warrantless search of a car
 After the second armed robbery within a week had occurred, the
police were given a description of the robbers' car and of the clothing
worn by two of the four men seen in the car. Within an hour the police
stopped a car that met the description and which was carrying four
men and the described clothing. Petitioner Frank Chambers was one
of the four men in the car. The police conducted a warrantless search
of the car at the station and found two revolvers, ammunition, and
property stolen in the robberies. They also searched Chambers' home
and found more ammunition of the same type as that found in the car.
Chambers was tried for both robberies in Pennsylvania state court,
but his first trial ended in a mistrial. At the second trial, the materials
found through the searches were admitted in evidence, the victim of
each robbery identified the Chambers as one of the robbers, and
Chambers was convicted and given consecutive sentences for the two
robberies. After the state courts denied his request for habeas corpus
relief, he petitioned for habeas corpus in federal district court, which
denied the petition. The court of appeals affirmed. Chambers was
granted a writ of certiorari.
 Did the warrantless search of the car after Chambers' arrest violate
the Fourth Amendment?
 No. The Court held that the warrantless search of the suspects' car at
the police station after Chambers and the other occupants were
arrested for robbery did not violate the Fourth Amendment. The
police had probable cause to stop the vehicle and to search it
immediately at the time and place of arrest. The requirement of
probable cause still applied at the police station, and it was reasonable
for police to take the car there before making the search. The Court
also ruled that the district court properly denied Chambers a hearing
on his claim pertaining to his right to the effective assistance of
California v. Carney – Warrantless search of car/home
 On May 31, 1979, Drug Enforcement Agency officers observed
Charles Carney approach a youth who followed him into a motor
home parked in a lot in downtown San Diego. Having previously
received a tip that Carney was using the motor home to sell marijuana
in exchange for sexual favors, the officers kept the motor home under
surveillance while the two were inside. When the youth exited, the
officers contacted him, and he confirmed that Carney gave him
marijuana in exchange for receiving Carney’s sexual advances. The
officers knocked on the door of the mobile home, identified
themselves, and entered without a warrant or consent. They found
marijuana, plastic bags, and a scale on the table. The officers arrested
Carney for possession of marijuana with intent to sell. Carney moved
to suppress the evidence discovered in the warrantless search of the
motor home, and the trial court denied the motion.
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Does the warrantless search of a motor home violate the Fourth
 No. Chief Justice Warren E. Burger delivered the opinion of the 6-3
majority. The Supreme Court held that the Fourth Amendment
applied a lesser degree of protection to motor vehicles based on the
ability to easily and quickly move them before a warrant can be
obtained. Also, the regulation surrounding automobiles affords them
a lesser expectation of privacy and therefore less protection under the
Fourth Amendment. Since Carney’s motor home was not in an area
traditionally used for residence and was licensed to operate as a
vehicle on public streets, the Court held that it should receive the level
of constitutional protection of a motor vehicle rather than a residence.
The Court also held that the officers had probable cause and that the
search itself was reasonable.
United States v. Chadwick – Footlocker placed in the car
 After a footlocker had been lawfully seized by federal agents from
the open trunk of a parked automobile during the arrests of those who
were in possession of the footlocker at the automobile's location
outside a train terminal, it was transported by federal agents to the
federal building in Boston, Massachusetts. Federal agents, acting
without a search warrant and without the consent of the arrested
persons, but with a probable cause belief that the footlocker contained
contraband, broke the lock and opened the footlocker in the federal
building over an hour after the arrests and discovered large amounts
of marijuana. Before their trial in the United States District Court for
the District of Massachusetts on charges of, among other things,
possession of marijuana with intent to distribute, those from whom
the footlocker had been seized moved to suppress marijuana found
during the search. The District Court granted the motion to suppress,
holding that warrantless searches were per se unreasonable under the
Fourth Amendment unless they fell within some established
exception to the warrant requirement, and that the search of the
footlocker without a warrant was not justified under either the
exception for searches of automobiles or for searches incident to
lawful arrests. The United States Court of Appeals for the First Circuit
affirmed. Defendants petitioned for further review by the United
States Supreme Court.
 Was a search warrant required to open a locked footlocker that was
seized during arrest, when there is probable cause to believe that the
footlocker contains contraband?
 Yes. The Court held that by placing personal effects inside a doublelocked footlocker, defendants manifested an expectation that the
contents would have remained free from public examination. The
Court held that the expectation of privacy was no less than one who
locked the doors of his home to intruders and that defendants were
due the protection of U.S. Const. amend. IV's Warrant Clause. The
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Court held that there being no exigency it was unreasonable for the
government to have conducted a search without the safeguards a
judicial warrant provided. The Court held that the search was too
remote to have been considered incident to arrest. The Court affirmed
the order from the appellate court.
California v. Acevedo
 California police officers saw Charles Acevedo enter an apartment
known to contain several packages of marijuana and leave a short
time later carrying a paper bag approximately the same size as one of
the packages. When Acevedo put the bag in the trunk of his car and
began to drive away, the officers stopped the car, searched the bag,
and found marijuana. At his trial, Acevedo made a motion to suppress
the marijuana as evidence, since the police had not had a search
warrant. When the trial court denied his motion, Acevedo pleaded
guilty and appealed the denial of the motion. The California Court of
Appeal reversed the trial court, ruling that the marijuana should have
been suppressed as evidence. The Supreme Court had ruled
previously that officers can thoroughly search an automobile if they
have probable cause to believe there is evidence somewhere in the
vehicle ( U.S. v. Ross ), and also that officers need a warrant to search
a closed container ( U.S. v. Chadwick ). The California Court of
Appeal decided that the latter case was more relevant. Since the
officers only had probable cause to believe the bag contained
evidence - not the car generally - they could not open the bag without
a search warrant. The California Supreme Court denied review, but
the Supreme Court granted the State's petition.
 Under the Fourth Amendment, may police conduct a warrantless
search of a container within an automobile if they have probable
cause to believe that the container holds evidence?
 Yes. In a 6-3 decision authored by Justice Harry Blackmun, the Court
reversed the Court of Appeal and ruled that the "automobile
exception" to the Fourth Amendment's general search-warrant
requirement is broad enough to cover a situation where the police
only have probable cause to believe there is evidence in a specific
movable container within the car. The Court noted that the warrant
requirement previously had depended on a "curious line between the
search of an automobile that coincidentally turns up a container and
the search of a container that coincidentally turns up in an
automobile." In place of that uncertain distinction, the Court adopted
a single rule: "The police may search an automobile and the
containers within it where they have probable cause to believe
contraband or evidence is contained."
Wyoming v. Houghton
 After pulling Sandra Houghton's friend over during a routine traffic
stop, a Wyoming Highway Patrol officer noticed a needle in the
driver's shirt pocket. Upon learning that the needle was used for
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drugs, the officer searched the car and Houghton's purse, where he
found more drug paraphernalia. Houghton challenged her subsequent
arrest on drug charges, alleging that the officer's search of her purse
was unconstitutional. On appeal from an adverse appeals court ruling,
overturning a favorable trial court decision, the Supreme Court
granted Wyoming certiorari.
 May police officers, with probable cause to search a car, inspect
personal items belonging to its passengers without violating the
Fourth Amendment's protection against unreasonable searches?
 Yes. In a 6-to-3 decision the Court held that so long as there is
probable cause to search a stopped vehicle, all subsequent searches of
its contents are legal as well. The Court added that such searches are
especially warranted if aimed at looking into objects or personal
belongings capable of concealing items that are the object of the
Collins v. Viginia
 On two occasions, a particular unique-looking motorcycle evaded
Albemarle police officers after they observed the rider violating
traffic laws. After some investigation, one of the officers located the
house where the suspected driver of the motorcycle lived and
observed what appeared to be the same motorcycle covered by a tarp
in the driveway. The officer lifted the tarp and confirmed that it was
the motorcycle (which was also stolen) that had eluded detainment on
multiple occasions. The officer waited for the suspect to return home,
at which point he went to the front door to inquire about the
motorcycle. Initially the suspect denied knowing anything about it but
eventually confessed that he had bought the motorcycle knowing that
it had been stolen. The officer arrested the suspect for receipt of stolen
 At trial, the defendant sought to suppress the motorcycle as evidence
on the grounds that the police officer conducted an illegal warrantless
search (by lifting the tarp covering the motorcycle parked in the
driveway) that led to its discovery. The trial court held that the search
was based on probable cause and justified under the exigent
circumstances automobile exceptions to the Fourth Amendment’s
warrant requirement and convicted the defendant. The appeals court
affirmed on the grounds of exigent circumstances, and the Virginia
Supreme Court affirmed as well, but under the automobile exception
only. The Virginia Supreme Court reasoned that the automobile
exception applies even when the vehicle is not “immediately mobile”
and applies to vehicles parked on private property.
 Does the Fourth Amendment's automobile exception permit a police
officer without a warrant to enter private property in order to search
a vehicle parked a few feet from the house?
 No. The Fourth Amendment's automobile exception does not permit
a police officer without a warrant to enter private property to search
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a vehicle parked a few feet from the house. In an 8–1 opinion authored
by Justice Sonia Sotomayor, the Court held that its own Fourth
Amendment jurisprudence regarding the home and the "curtilage" of
one's home (the area immediately surrounding it) clearly prevents
officers from entering and searching without a warrant, even if the
object searched is an automobile. The Court found that the area
searched (the back of the driveway) was indeed the curtilage of the
defendant's home, and thus the Fourth Amendment's highest degree
of protection applies there. Although warrantless searches of
automobiles are permissible in limited circumstances, the warrantless
search of an automobile parked within the curtilage of one's home is
not permissible.
Criminal Procedure Outline
United States v. Edwards – Immediacy does not matter, confinement
 On May 31, 1970, at around 11 PM, the defendant Edwards was
lawfully arrested, taken to the local jail and placed in a cell. The next
morning trousers and a shirt were purchased for him to substitute for
the clothing which he had been wearing at the time of and since his
arrest. His clothing was then taken from him, examined, and held as
evidence. At his trial, which resulted in conviction, this evidence was
received over his objection that neither the clothing nor the results of
its examination were admissible because the warrantless seizure of
his clothing was invalid under the Fourth Amendment. His conviction
was reversed by the Court of Appeals, which held that although the
arrest was lawful, the warrantless seizure of the clothing, carried out
after the administrative process and mechanics of arrest had come to
a halt, was unconstitutional under the Fourth Amendment.
 Did the warrantless seizure of the defendant’s clothing violate the
Fourth Amendment?
 No. The Court held that the search and seizure of Edwards' clothing
did not violate the Fourth Amendment. The Court ruled that the
search and seizure of the defendant’s clothing was a normal incident
of custodial arrest and that it was reasonable because of the existence
of probable cause linking the clothes to the crime. Furthermore, it was
held that once an accused has been lawfully arrested and is in custody,
the effects in his possession at the place of detention that were subject
to search at the time and place of arrest may lawfully be searched and
seized without a warrant even after a substantial time lapse between
the arrest and later administrative processing, on the one hand, and
the taking of the property for use as evidence, on the other.
South Dakota v. Opperman – Don’t need probable cause under inventory
exception, need to show its part of standard operating procedures
 The respondent, Donald Opperman, left his car unattended in a
prohibited parking space in violation of local ordinances in
Vermillion, South Dakota. He received two parking tickets from local
police officers, and as a result, his vehicle was subsequently inspected
and impounded. At the impound lot, a police officer observed
personal items in the dashboard of the car and unlocked the door to
inventory the items using standard procedures. In the unlocked glove
compartment, the officer found marijuana in a plastic bag. Opperman
was arrested later that day and charged with possession of marijuana.
He was convicted but the Supreme Court of South Dakota reversed
on appeal and concluded the search was in violation of the Fourth
 Does the Fourth Amendment’s Warrant Clause prohibit police from
inventorying a vehicle that is lawfully impounded for traffic
violations, without first obtaining a warrant?
 No. Mr. Chief Justice Warren Earl Burger delivered opinion for the
6-3 majority. The Court held that police can inventory a vehicle that
Criminal Procedure Outline
has been lawfully impounded, even without a warrant. Inventory
procedures for impounded vehicles are taken in order to protect the
owner’s property and to protect police from claims of stolen items as
well as potential danger. Therefore, the search of an impounded
vehicle is considered reasonable under the Fourth Amendment.
Justice Louis F. Powell, Jr. wrote a concurring opinion agreeing that
the Constitution allows inventory searches, as long as the search is
not done in order to find evidence that could lead to criminal charges.
Criminal Procedure Outline
Searches Based
on Consent
Schneckloth v. Bustamonte
 A police officer stopped a car that had a burned out license plate light
and headlight. There were six men in the car, including Robert Clyde
Bustamonte. Only one passenger had a drivers license, and he claimed
that his brother owned the car. The officer asked this man if he could
search the car. The man said, “Sure, go ahead.” Inside the car, the
officer found stolen checks. Those checks were admitted into
evidence at Bustamonte’s trial for possessing checks with the intent
to defraud. A jury convicted Bustamonte, and the California Court of
Appeal for the First Appellate District affirmed. The court reasoned
that consent to search the car was given voluntarily, so evidence
obtained during the search was admissible. The California Supreme
Court denied review. Bustamonte filed a petition for a writ of habeas
corpus, which the district court denied. The U.S. Court of Appeals for
the Ninth Circuit reversed, holding that consent is not voluntary
unless it is proven that the person who consented to the search knew
he had the right to refuse consent.
 Did the court of appeals err when it held that the search of the car was
invalid because the state failed to show consent given with knowledge
that it could be withheld?
 Yes. Justice Potter Stewart, writing for a 6-3 majority, reversed. The
Supreme Court held that whether consent is voluntary can be
determined from the totality of the circumstances. It is unnecessary
to prove that the person who gave consent knew that he had the right
to refuse. The Fourth Amendment protection against unreasonable
searches and seizures does not require a knowing and intelligent
waiver of constitutional rights. Because the Fourth Amendment
claims had no merit, the Court did not reach the second question.
United States v. Drayton
 Christopher Drayton and Clifton Brown were traveling on a
Greyhound bus. In Tallahassee, Florida, police officers boarded the
bus as part of a routine interdiction effort. One of the officers worked
his way from back to front, speaking with individual passengers as he
went. The officer did not inform the passengers of their right to refuse
to cooperate. As the officer approached Drayton and Brown, he
identified himself, declared that the police were looking for drugs and
weapons, and asked if the two had any bags. Subsequently, the officer
asked Brown whether he minded if he checked his person. Brown
agreed and a pat-down revealed hard objects similar to drug packages
in both thigh areas. When Drayton agreed, a pat-down revealed
similar objects. Both were arrested. A further search revealed that
Drayton and Brown had taped cocaine to their legs. Charged with
federal drug crimes, Drayton and Brown moved to suppress the
cocaine on the ground that their consent to the pat-down searches was
invalid. In denying the motions, the District Court determined that the
police conduct was not coercive and Drayton and Brown's consent to
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the search was voluntary. In reversing, the Court of Appeals noted
that bus passengers do not feel free to disregard officers' requests to
search absent some positive indication that consent may be refused.
 Must police officers, while searching buses at random to ask
questions and to request passengers' consent to searches, advise
passengers of their right not to cooperate?
 No. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the
Court held that the Fourth Amendment does not require police
officers to advise bus passengers of their right not to cooperate and to
refuse consent to searches. The Court reasoned that, although the
officer did not inform the defendants of their right to refuse the
search, he did request permission to search and gave no indication
consent was required. Moreover, the Court noted, the totality of the
circumstances indicated that the consent was voluntary.
Illinois v. Rodriguiez
 A woman called police officers to a residence. She showed signs of
having been beaten. She led police to another residence, where she
said Edward Rodriguez was asleep inside. She alleged that he had
beaten her earlier in the day. The woman had a key to the residence
and referred to it as “our apartment” several times. She consented to
a search of the residence and police entered without a warrant. Once
inside, police found drug paraphernalia and containers filled with a
white powder. Police arrested Rodriguez and he was later charged
with possession of a controlled substance with intent to deliver. At
trial, Rodriguez attempted to suppress evidence obtained during the
search, arguing that the woman did not have authority to consent to
the search. The woman had moved out a few weeks before the
incident and no longer lived at the apartment. With no valid consent,
the search violated the Fourth Amendment. The court granted the
motion. The Appellate Court of Illinois affirmed and the Supreme
Court of Illinois denied leave to appeal.
 Is a police officer's good faith reliance on a third party's apparent
authority to consent to a search a valid exception to the warrant
requirement of the Fourth Amendment?
 Did the woman possess actual authority to permit a consensual entry?
 Yes, No. Justice Antonin Scalia, writing for a 6-3 majority, reversing
and remanding. The Supreme Court held that a warrantless search
does not violate the Fourth Amendment if the police reasonably
believed that the person who consented to the search had the authority
to do so. The case was remanded for consideration of whether the
police officers reasonably believed that the woman had authority to
consent to their search of the residence.
United States v. Matlock
 Police arrested William Earl Matlock, a bank robbery suspect, in the
front yard of the house where he lived. Police did not ask Matlock
which room he occupied in the house or whether they could conduct
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a search. A woman, who gave them permission to search the house,
including the bedroom where Matlock lived, let the officers inside.
The woman’s parents leased the house and Matlock paid them rent
for his room. In that room, police found $4,995 in cash.
 At trial, Matlock moved to suppress evidence obtained during the
search. He argued that the unwarranted search of his room was illegal.
At the suppression hearing, the woman who agreed to the search
testified that she lived with Matlock in his room. This gave her
sufficient authority to lawfully consent to the search. The district
court held that those statements were inadmissible hearsay and
granted the motion to suppress. The U.S. Court of Appeals for the
Seventh Circuit Affirmed.
 Does a third party with control over a space have authority to consent
to a search?
 Were the woman’s statements that she lived with Matlock
inadmissible hearsay?
 Yes, No. Justice Byron R. White, writing for a 6-3 majority, reversed
and remanded. The Supreme Court held that police can obtain consent
for a search from a third party if that third party has common authority
over the premises. The woman’s statements should not have been
excluded at the suppression hearing because evidentiary burdens are
lower for suppression hearings than the actual trial. On remand, the
court must determine whether the woman had authority to consent to
the search.
Georgia v. Randolph
 Scott Randolph was arrested for drug possession after police found
cocaine in his home. The police did not have a warrant to search the
home, but Randolph's wife consented to the search. Randolph was
also present at the time of the search, however, and objected to the
police request. At trial, his attorney argued that the search was
unconstitutional because of Randolph's objection, while the
prosecution argued that the consent of his wife was sufficient. The
trial court ruled for the prosecution, but the appellate court and
Georgia Supreme Court both sided with Randolph, finding that a
search is unconstitutional if one resident objects, even if another
resident consents.
 Can police search a home when one physically present resident
consents and the other physically present resident objects?
 No. In a 5 to 3 decision, the Supreme Court held that when two cooccupants are present and one consents to a search while the other
refuses, the search is not constitutional. Justice David Souter, in the
majority opinion, compared the reasonableness of such a search to a
more casual interaction. Souter wrote, "it is fair to say that a caller
standing at the door of shared premises would have no confidence
that one occupant's invitation was a sufficiently good reason to enter
when a fellow tenant stood there saying, 'stay out.' Without some very
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The Plain View
good reason, no sensible person would go inside under those
conditions." A police search in such circumstances, Souter wrote,
would therefore not meet the reasonableness requirement of the
Fourth Amendment.
Fernandez v. California
 On October 12, 2009, Abel Lopez was attacked and robbed by a man
he later identified as Walter Fernandez. Lopez managed to call 911,
and a few minutes after the attack, police and paramedics arrived on
the scene. Detectives investigated a nearby alley that was a known
gang location where two witnesses told them that the suspect was in
an apartment in a house just off the alley. The detectives knocked on
the door of the indicated apartment, and Roxanne Rojas answered.
The detectives requested to enter and conduct a search, at which point
Walter Fernandez stepped forward and refused the detectives entry.
They arrested Fernandez and took him into custody. Police officers
secured the apartment, informed Rojas that Fernandez had been
arrested in connection with a robbery, and requested to search the
apartment. Rojas consented to the search verbally and in writing.
During the search, officers found gang paraphernalia, a knife, and a
 At trial, the defendant moved to suppress the evidence seized in the
warrantless search, and the trial court denied the motion. The jury
found Fernandez guilty on the robbery charge, and he did not contest
the charges for possession of firearms and ammunition. On appeal,
the defendant argued that the trial court improperly denied his motion
to suppress. The California Court of Appeal for the Second District
affirmed and held that the warrantless search was lawful because a
co-tenant consented.
 Does the Fourth Amendment prohibit warrantless searches when the
defendant has previously objected but is no longer present and the cotenant consents?
 No. Justice Samuel A. Alito, Jr. delivered the opinion for the 6-3
majority. The Supreme Court held that, although a warrant is
generally required for a search of a home, the ultimate touchstone of
the Fourth Amendment is whether the search was reasonable.
Although warrantless searches are unreasonable when two co-tenants
are present and one objects to the search, the Court has held that the
same search is reasonable when the objecting tenant leaves. In this
case, because the objecting tenant was arrested and no longer present,
the Court held that the search was reasonable because the consenting
tenant had the authority to allow the police into her home.
Arizona v. Hicks
 A bullet was fired through the floor of Hicks's apartment which
injured a man in the apartment below. To investigate the shooting,
police officers entered Hicks's apartment and found three weapons
along with a stocking mask. During the search, which was done
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without a warrant, an officer noticed some expensive stereo
equipment which he suspected had been stolen. The officer moved
some of the components, recorded their serial numbers, and seized
them upon learning from police headquarters that his suspicions were
 Was the search of the stereo equipment (a search beyond the
exigencies of the original entry) reasonable under the Fourth and
Fourteenth Amendments?
 No. The Court found that the search and seizure of the stereo
equipment violated the Fourth and Fourteenth Amendments. Citing
the Court's holding in Coolidge v. New Hampshire (1971), Justice
Scalia upheld the "plain view" doctrine which allows police officers
under some circumstances to seize evidence in plain view without a
warrant. However, critical to this doctrine, argued Scalia, is the
requirement that warrantless seizures which rely on no "special
operational necessities" be done with probable cause. Since the
officer who seized the stereo equipment had only a "reasonable
suspicion" and not a "probable cause" to believe that the equipment
was stolen, the officer's actions were not reconcilable with the
Horton v. California
 On January 13, 1985, Erwin Paul Wallaker, the treasurer of the San
Jose Coin Club, returned home with the proceeds from the annual
coin convention, which Terry Brice Horton attended. Upon entering
his garage, two robbers accosted Wallaker; one was armed with a
machine gun and the other with an electric shocking device. They
threw him to the ground, shocked him, bound him, and robbed him of
jewelry and cash. During this interaction, Wallaker was able to
identify Horton by the sound of his voice. The three witnesses who
discovered Wallaker partially corroborated his identification of
Horton. They saw someone leaving the scene carrying what looked
like an umbrella.
 Sergeant LaRault determined there was enough evidence to search
Horton’s home, and obtained a warrant to do so. His affidavit for the
search warrant described both the weapons and the proceeds of the
robbery, but the warrant only granted permission to look for the stolen
property. While searching Horton’s house, Sergeant LaRault did not
find the property, but he did find an Uzi machine gun, a .38 caliber
revolver, two stun guns, and a handcuff key, along with other items
linking Horton to the crime.
 The evidence was admitted into evidence at trial, and Horton was
found guilty. The California Court of Appeals affirmed the verdict,
and the California Supreme Court denied the petitioner’s request for
Criminal Procedure Outline
Does the Fourth Amendment prohibit the warrantless seizure of
evidence in plain sight if the discovery of such evidence was not
No. Justice John Paul Stevens, writing for a 7-2 majority, held that
the seizure of evidence in plain view does not constitute the invasion
of privacy that the Fourth Amendment is meant to prohibit. Once an
officer has a warrant to search a suspect’s house, that officer may
seize any obviously incriminating evidence that the officer finds in
plain view. The Court also held that the “inadvertent” limitation does
not limit the scope of the search further than the warrant itself does.
In this case, since the warrant was specifically for the stolen property,
the officer had to limit his search to the likely places where the
property might be kept. Since the officer also had probable cause to
believe that certain types of weapons were used in the commission of
the crime, he could legally seize the weapons if they were found in
the course of that search.
Balancing Approach to 4th Amendment reasonableness, its constitutional underpinnings, and its
relationship to the warrant and probable cause requirements of the 4th Amendment.
Terry v. Ohio – Balancing Test
Terry and two other men were observed by a plain clothes policeman in what the officer
believed to be "casing a job, a stick-up." The officer stopped and frisked the three men and
found weapons on two of them. Terry was convicted of carrying a concealed weapon and
sentenced to three years in jail
Was the initial stop of the suspects and pat down of their outer clothing a search/seizure
under the 4th Amendment?
If the stop and frisk was a search/seizure, was a warrant required?
Can the police conduct a stop and search on a degree of suspicion less than probable cause?
In an 8-to-1 decision, the Court held that the search undertaken by the officer was
reasonable under the Fourth Amendment and that the weapons seized could be introduced
into evidence against Terry. Attempting to focus narrowly on the facts of this particular
case, the Court found that the officer acted on more than a "hunch" and that "a reasonably
prudent man would have been warranted in believing [Terry] was armed and thus presented
a threat to the officer's safety while he was investigating his suspicious behavior." The
Court found that the searches undertaken were limited in scope and designed to protect the
officer's safety incident to the investigation.
Balancing Question – Was the State’s actions justified an its inception and was the search
reasonably related in scope to the circumstances that initially justified that action?
Stop and Frisk
Criminal Procedure Outline
What Constitutes a Terry Stop?
 Start with the Terry Balancing Test Question – Was the State’s actions justified an its
inception and was the search reasonably related in scope to the circumstances that initially
justified that action?
United States v. Mendenhall (Part 1) – Terry Stop Test
Defendant arrived in Detroit on a flight from LA She was watched by two DEA agents
assigned to conduct drug interdictions. Defendant fit the profile of a drug runner because
she was the last one to get off the plane, she came from LA, she appeared nervous, she did
not claim any bags, she scanned the entire area when she got off the plane, and she changed
her flight at Detroit.
DEA agent approached her, identified themselves as federal agents and asked to see her
ID. Her license did not match the name on the ticket and she had no good explanation. She
became nervous when the cops told her they were DEA.
The agents asked her to come with them to an office 50 feet away. The agents asked if the
could search her bag and she consented to a strip search by a female DEA agent. Two bags
of heroin were found in her underwear.
Was the agents' conduct in initially approaching Mendenhall and asking to see her ticket
and identification a permissible investigative stop?
Yes, The Court ruled that that Mendenhall was not seized when she was approached by the
DEA agents who asked to see her ticket and identification, even though Mendenhall was
not expressly told that she was free to decline to cooperate with their inquiry. The Court
held that a person had been seized within the meaning of the Fourth Amendment only if,
in view of all of the circumstances surrounding the incident, a reasonable person would
have believed that she was not free to leave.
Terry Stop Test that was applied – A person is seized only when, by mean of force or show
of authority, his freedom of movement is restrained in such a way that a reasonable person
would believe he is not free to leave.
Florida v. Bostick – Terry Stop Enclosed Space Test
In Broward County, Florida, Sheriff's Department officers regularly boarded buses during
stops to ask passenger for permission to search their luggage. Terrance Bostick, a
passenger, was questioned by two officers who sought permission to search his belongings
and advised him of his right to refuse. After obtaining Bostick's permission, the officers
searched his bags, found cocaine, and arrested him on drug trafficking charges. Bostick
filed a motion to suppress the evidence on the ground that it was illegally obtained, but the
trial court denied the motion. Following an affirmance and certification from the Florida
Court of Appeals, the State Supreme Court held that the bus searches were per se
unconstitutional because police did not afford passengers the opportunity to "leave the bus"
in order to avoid questioning. Florida appealed and the Supreme Court granted certiorari.
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Is the acquisition of evidence during random bus searches, conducted pursuant to
passengers' consent, a per se violation of the Fourth Amendment's protection against
unconstitutional search and seizure?
No. The Court, in a 6-to-3 decision, noted that when deciding if a search request is overly
coercive, within a confined space such as a bus, one must not look at whether a party felt
"free to leave," but whether a party felt free to decline or terminate the search encounter.
The Court held that in the absence of intimidation or harassment, Bostick could have
refused the search request. Moreover, the fact that he knew the search would produce
contraband had no bearing on whether his consent was voluntarily obtained. The test of
whether a "reasonable person" felt free to decline or terminate a search presupposes his or
her innocence.
Terry Stop Enclosed Space Test was applied – Whether a reasonable person would feel
free to decline the cops request or terminate the encounter.
California v. Hodari – Terry Stop Test When Suspects Runs
Cops in a unmarked vehicle see a group of youth gathered around a car in a high crime
area. As they approach, the youth scatter. One cop chases the defendant. Defendant looks
ahead, sees the cop coming and then ditches a bag of crack before the cop tackles and cuffs
Terry Stop Test When Suspect Runs was applied – seizure can be accomplished by force
or show of authority but show of authority not enough. There must be:
o Physical touching; or
o A show of authority that should make a reasonable person feel that they were not
free to leave AND actual submission to that authority.
United States v. Place – Person items seized v. a person
A traveler at an airport alerted the suspicions of drug agents, who, based upon his behavior
and discrepancies in his luggage tags, believed he was carrying narcotics. They relayed this
information to fellow agents at his destination airport. There, the agents met him and seized
his bags without his consent. Ninety minutes after the seizure, his bags were subjected to a
"sniff" test by a drug-detection dog. The dog signaled the presence of a controlled
substance in one of the bags. The agents then obtained a warrant for that suitcase, which
turned out to contain cocaine, and the man was convicted of the drug offense. The Court
of Appeals reversed his conviction on the ground that the ninety minutes exceeded the
investigative stop permitted by _Terry v. Ohio, and thus violated the Fourth Amendment's
search and seizure privilege.
Was the ninety minute seizure of the traveler's luggage a valid investigative stop under
Terry? Did the "sniff test" by the dog constitute a search?
No and no. Seizures pursuant to investigative detentions are lawful only if they are limited
in scope, as described in Terry, and evidence resulting from such unlawful seizures must
be suppressed. The "sniff" of a properly trained narcotics detection dog does not constitute
a search within the meaning of the Fourth Amendment.
Criminal Procedure Outline
What is Reasonable Suspicion?
 Less than Probable Cause, test is s totality of the circumstance focus.
United States v. Mendenhall (Part 2) – Court did not expressly determine if DEA agents had
Reasonable Suspicion
Defendant arrived in Detroit on a flight from LA She was watched by two DEA agents
assigned to conduct drug interdictions. Defendant fit the profile of a drug runner because
she was the last one to get off the plane, she came from LA, she appeared nervous, she did
not claim any bags, she scanned the entire area when she got off the plane, and she changed
her flight at Detroit.
DEA agent approached her, identified themselves as federal agents and asked to see her
ID. Her license did not match the name on the ticket and she had no good explanation. She
became nervous when the cops told her they were DEA.
The agents asked her to come with them to an office 50 feet away. The agents asked if the
could search her bag and she consented to a strip search by a female DEA agent. Two bags
of heroin were found in her underwear.
United States v. Sokolow – Court found DEA agents had reasonable suspicion
Drug Enforcement Administration agents stopped Sokolow in Honolulu International
Airport after his behavior indicated he may be a drug trafficker: he paid $2,100 in cash for
airline tickets, he was not traveling under his own name, his original destination was
Miami, he appeared nervous during the trip, and he checked none of his luggage. Agents
arrested Sokolow and searched his luggage without a warrant. Later, at the DEA office,
agents obtained warrants allowing more extensive searches and they discovered 1,063
grams of cocaine.
Did the search violate the Fourth Amendment?
The Court upheld the search and reasoned that the agents had a "reasonable suspicion that
respondent was engaged in wrongdoing." Chief Justice Rehnquist argued that the validity
of such a stop should be based on the "totality of the circumstances," (United States v.
Cortez, 1981), which, in this case, gave agents a clear reason to suspect Sokolow of drug
Illinois v. Wardlow – Factors
Sam Wardlow, who was holding an opaque bag, inexplicably fled an area of Chicago
known for heavy narcotics trafficking after noticing police officers in the area. When
officers caught up with him on the street, one stopped him and conducted a protective patdown search for weapons because in his experience there were usually weapons in the
vicinity of narcotics transactions. The officers arrested Wardlow after discovering that he
was carrying handgun. In a trial motion to suppress the gun, Wardlow claimed that in order
to stop an individual, short of actually arresting the person, police first had to point to
"specific reasonable inferences" why the stop was necessary. The Illinois trial court denied
the motion, finding that the gun was recovered during a lawful stop and frisk. Wardlow
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was convicted of unlawful use of a weapon by a felon. In reversing, the Illinois Appellate
Court found that the officer did not have reasonable suspicion to make the stop. The Illinois
Supreme Court affirmed, determining that sudden flight in a high crime area does not create
a reasonable suspicion justifying a stop because flight may simply be an exercise of the
right to "go on one's way."
Is a person's sudden and unprovoked flight from identifiable police officers, patrolling a
high crime area, sufficiently suspicious to justify the officers' stop of that person?
Yes. In an opinion delivered by Chief Justice William H. Rehnquist, the Court held, 5 to
4, that the police officers did not violate the Fourth Amendment when they stopped
Wardlow, because the officer was justified in suspecting that the accused was involved in
criminal activity and, therefore, in investigating further. Chief Justice Rehnquist wrote for
the majority that, "[n]ervous, evasive behavior is a pertinent factor in determining
reasonable suspicion" to justify a stop. The Chief Justice noted that "flight is the
consummate act of evasion." Stevens, joined by three other justices, concurred in avoiding
a per se rule but dissented from the majority holding.
o Location
o Time of day
o Behavior of the individual
o Clothing?
o Known criminal associates?
o Age
o Gender?
o Race?
o Demeanor of cops and what they were wearing/doing
Alabama v. White – Close call case in assessing reasonable suspicion
An anonymous caller told Montgomery, Alabama police that Vanessa Rose White had
cocaine in an attaché case in her car. The caller gave certain specific details about the car
and White’s future movements. Following that tip, police followed Vanessa Rose White as
she drove from an apartment complex to Doby’s Motel Court, where they pulled her over.
When asked, White gave the officers permission to search her car and an attaché case found
in the car. Police found marijuana in the case and arrested White. During processing at the
police station, officers also found 3 milligrams of cocaine in White’s purse. After being
charged with possession of marijuana and cocaine, White moved to suppress evidence of
the drugs. The trial court denied the motion and White plead guilty. On appeal, the Court
of Criminal Appeals of Alabama reversed the motion, finding that the officers did not have
reasonable suspicion to stop and search White’s car. This search violated the Fourth
Amendment protection against unreasonable searches and seizures.
Does an anonymous tip alone provide a reasonable suspicion sufficient to stop and search
an individual’s car?
Yes. In a 6-3 decision, Justice Byron R. White wrote for the majority, reversing the lower
court. The Court held that the totality of the circumstances provided a sufficiently
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reasonable suspicion that White possessed illegal drugs. Even though police had no way to
confirm the credibility of the caller, police verified many allegations made by the caller
about White’s car and movements. Because the police had a reasonable suspicion, the
search did not violate the Fourth Amendment.
Justice John Paul Stevens dissented, stating that the majority’s standard allows anyone with
enough knowledge of a person’s routine to cause police to search that person. The standard
also gives officers too much freedom to claim that they received an anonymous tip to justify
any search. Justice William J. Brennan and Justice Thurgood Marshall joined in the dissent.
Florida v J.L. – Close call case in assessing reasonable suspicion
On October 13, 1995 Miami-Dade police received an anonymous tip that a black male
wearing a plaid shirt was standing near a bus stop carrying a gun. The two officers who
responded found three black males, one of which, J.L., a 15 -year-old, was wearing a plaid
shirt. After frisking him, the officers did find a firearm. J.L. was charged with carrying a
concealed weapon without a license. At trial, he moved to suppress the gun as evidence,
arguing that the frisking performed by the officers was illegal under the Fourth
Amendment. The trial court granted the motion, but was reversed by the immediate
appellate court. The Florida Supreme Court overruled the appellate court and suppressed
the evidence.
Did searching J.L. solely on the basis of the anonymous tip received by the Miami-Dade
police violate his Fourth Amendment rights against unreasonable search and seizure?
Yes. In a unanimous opinion authored by Justice Ruth Bader Ginsburg, the Court
concluded that J.L. the anonymous tip did not meet the minimum requirements to perform
a warrantless search. Justice Ginsburg, drawing from the Court's logic in Terry v. Ohio and
Adams v. Williams, indicated that an anonymous tip must posses a moderate level of
reliability, including "predictive information" that offers police a "means to test the
informant's knowledge or credibility." An accurate description of a person without a
reliable assertion of illegality or description of the crime in question, as was the anonymous
tip in this case, does not meet this standard. "All the police had to go on in this case was
the bare report of an unknown, unaccountable informant who neither explained how he
knew about the gun nor supplied any basis for believe he had inside information."
Navarette v. California – Close call case in assessing reasonable suspicion
On August 23, 2008, the Mendocino County dispatch center received a call from a
Humboldt County dispatcher with the information that a silver Ford F150 pickup truck had
run an unidentified vehicle off the road at mile marker 88 on southbound Highway 1. The
original caller had also provided the license plate number of the pickup truck in question.
The dispatch center broadcast that information to officers in the area, and two separate
officers soon reported seeing the vehicle and began following it. The officers pulled the
vehicle over, and while requesting information from the driver, smelled marijuana. During
a search of the vehicle, the officers found four large bags of marijuana in the truck bed.
The occupants of the vehicle, Lorenzo Prado Navarette and Jose Prado Navarette, were
arrested for transportation of marijuana and possession of marijuana for sale.
Criminal Procedure Outline
At trial, the defendants moved to suppress the evidence obtained from the traffic stop and
argued that the evidence did not establish a reasonable suspicion of wrongdoing to justify
the stop. The state argued that the anonymous tip combined with the officers' observations
of details that matched the tip constituted reasonable suspicion of the alleged reckless
driving. The magistrate judge denied the motion. After the defendants petitioned for a
review of this decision and were denied by both the California Court of Appeals for the
First District, Division Five and the California Supreme Court, the defendants pled guilty.
The California Court of Appeals for the First District, Division Five affirmed.
Does the Fourth Amendment require an officer who received information regarding
drunken or reckless driving to independently corroborate the behavior before stopping the
No. Justice Clarence Thomas delivered the opinion for the 5-4 majority. The Court held
that, under the totality of the circumstances, the officer had a reasonable suspicion that the
driver was intoxicated, which justified the traffic stop. Because the reasonable suspicion
standard allows an officer to rely on information beyond what that officer personally
observed, a stop based on an anonymous tip does not violate the Fourth Amendment as
long as the officer had reason to believe the information contained in the tip was reliable.
In this case, the information came in the form of a call from the driver who had been run
off the road, which means that the caller claimed eyewitness knowledge of the incident.
Additionally, the timeline of the events suggest that the call was made almost immediately
after the incident, so the caller presumably would not have had sufficient time to concoct
a story. The Court held that, because the anonymous tip had these indicators of reliability
and reported driving behavior consistent with reports of drunk driving that resulted in a car
being run off the road, the officer had sufficient reasonable suspicion and did not need to
observe the alleged behavior at length.
In his dissenting opinion, Justice Antonin Scalia wrote that the aspects of the anonymous
tip that the majority opinion argues make it reliable do not in fact make the information
trustworthy enough to stand uncorroborated. Justice Scalia argued that the supposed
eyewitness status of the caller could be afforded to anyone who saw the truck and wanted
the driver to be pulled over and that any time at all between the alleged incident and the
phone call allowed the caller to create a false story. Since the caller only reported a specific
instance of unsafe driving—forcing another car off the road—there was no reason for the
police officer to suspect ongoing drunk driving. When the officers observed the car and
still did not see any indication of impaired driving, the reliability of the anonymous tip was
further undermined, and there was no reasonable suspicion for the officer to conduct a
traffic stop. Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, and Justice Elena
Kagan joined in the dissent.
Permissible Scope of Stop and Frisk
 Always keep in mind the Terry Balancing Question
o When does police conduct disrupt this balance and become unreasonable?
Criminal Procedure Outline
United States v. Place – Police arguably had reasonable suspicion for the stop, did it exceed a
permissible Terry Stop?
A traveler at an airport alerted the suspicions of drug agents, who, based upon his
behavior and discrepancies in his luggage tags, believed he was carrying narcotics. They
relayed this information to fellow agents at his destination airport. There, the agents met
him and seized his bags without his consent. Ninety minutes after the seizure, his bags
were subjected to a "sniff" test by a drug-detection dog. The dog signaled the presence of
a controlled substance in one of the bags. The agents then obtained a warrant for that
suitcase, which turned out to contain cocaine, and the man was convicted of the drug
offense. The Court of Appeals reversed his conviction on the ground that the ninety
minutes exceeded the investigative stop permitted by _Terry v. Ohio, and thus violated
the Fourth Amendment's search and seizure privilege.
Was the ninety minute seizure of the traveler's luggage a valid investigative stop under
Terry? Did the "sniff test" by the dog constitute a search?
No and no. Seizures pursuant to investigative detentions are lawful only if they are limited
in scope, as described in Terry, and evidence resulting from such unlawful seizures must
be suppressed. The "sniff" of a properly trained narcotics detection dog does not constitute
a search within the meaning of the Fourth Amendment.
Maryland v. Buie – Protective sweep without warrant
On February 3, 1986, two men robbed a Godfather’s Pizza in Prince George’s County,
Maryland. One of the men was wearing a red running suit. Later that day, the police
obtained warrants for the arrest of Jerome Edward Buie and Lloyd Allen and put Buie’s
house under surveillance. On February 5, the police arrested Buie in his house. Police found
him hiding in the basement. Once Buie emerged and was handcuffed, an officer went down
to determine if there was anyone else hiding. While in the basement, the officer saw a red
running suit in plain view and seized it as evidence. The trial court denied Buie’s motion
to suppress the running suit evidence, and he was convicted. The Court of Special Appeals
of Maryland affirmed the trial court’s denial of the motion. The Court of Appeals of
Maryland reversed.
Does the Fourth Amendment prevent police officers from making a “protective sweep” at
the site of an in-home arrest if they do not believe themselves or others to be in immediate
No. Justice Byron R. White delivered the opinion of the 7-2 majority. The Court held that
the potential risk to police officers of another person on the arrest site must be weighed
against the invasion of privacy. Because the arrest in this case happened in the suspect’s
home, the officer was put at even greater risk because of the possibility of an ambush. This
risk justified the protective sweep. The Court also held that a protective sweep was meant
to be a cursory one, and not an in-depth search of the premises that would require a specific
Minnesota v. Dickerson – Distinct from United States v. Robinson
Criminal Procedure Outline
On November 9, 1989, while exiting an apartment building with a history of cocaine
trafficking, Timothy Dickerson spotted police officers and turned to walk in the opposite
direction. In response, the officers commanded Dickerson to stop and proceeded to frisk
him. An officer discovered a lump in Dickerson's jacket pocket, and, upon further tactile
investigation, formed the belief that it was cocaine. The officer reached into Dickerson's
pocket and confirmed that the lump was in fact a small bag of cocaine. Consequently,
Dickerson was charged with possession of a controlled substance. He requested that the
cocaine be excluded from evidence, but the trial court denied his request and he was found
guilty. Minnesota Court of Appeals reversed, and the State Supreme Court affirmed the
appellate court's decision.
When a police officer detects contraband through his or her sense of touch during a
protective patdown search, does the Fourth Amendment permit its seizure and subsequent
introduction into evidence? Was the police officer who frisked Dickerson adhering to the
Fourth Amendment when he formed the belief, through his sense of touch, that the lump
in Dickerson's jacket pocket was cocaine?
Yes and No. In a unanimous opinion authored by Justice Byron R. White, the Court recalled
that a police officer may seize contraband when it is in plain sight, and "its incriminating
character is immediately apparent". It held that instances in which an officer uses the sense
of sight to discover illegal goods are analogous to those involving the sense of touch. The
Court also reasoned that the tactile detection of contraband during a lawful pat-down search
does not constitute any further invasion of privacy, therefore warrantless seizure was
permissible. The Court also concluded that the police officer frisking Dickerson stepped
outside the boundaries outlined in Terry v. Ohio which requires a protective pat-down
search to involve only what is necessary for the detection of weapons. In fact the officer
was already aware that Dickerson's jacket pocket did not contain a weapon, when he
detected the cocaine through further tactile investigation.
Michigan v. Long – Frisk of a car
David Long was convicted for possession of marijuana found by Michigan police in the
passenger compartment and trunk of his car. The police searched the passenger
compartment because they suspected Long's vehicle contained weapons potentially
dangerous to the officers. After a state appellate court affirmed the conviction, the
Michigan Supreme Court reversed. The Michigan Supreme Court held that the search
violated the Fourth Amendment and the Michigan Constitution.
Can a protective search for weapons extend to an area beyond the person in the absence of
probable cause to arrest?
The search of the passenger compartment of an automobile, limited to those areas in which
a weapon may be placed or hidden, is permissible if the police officer possesses a
reasonable belief based on specific and articulable facts which, taken together with the
rational inferences from those facts, reasonably warrant the officer in believing that the
suspect is dangerous and the suspect may gain immediate control of weapons. The issue is
whether a reasonably prudent man in the circumstances would be warranted in the belief
that his safety or that of others was in danger.
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The Court held that a protective search of the passenger compartment of an automobile,
limited to those areas in which a weapon may be placed or hidden, is permissible during
an investigative detention if the police officer reasonably believes that the suspect is
dangerous and may gain immediate control of weapons. Protection of police officers
justified protective searches when the officers had a reasonable belief that the suspect posed
a danger, especially during roadside encounters. Moreover, the articles inside the relatively
narrow compass of the passenger compartment of an automobile were within the area into
which a suspect might reach in order to grab a weapon.
Rodrieguez v. United States - Drug dogs sniff exceeding scope of a traffic stop
On March 27, 2012, a Nebraska K-9 police officer pulled over a vehicle driven by Dennys
Rodriguez after his vehicle veered onto the shoulder of the highway. The officer issued a
written warning and then asked if he could walk the K-9 dog around Rodriguez's vehicle.
Rodriguez refused, but the officer instructed him to exit the vehicle and then walked the
dog around the vehicle. The dog alerted to the presence of drugs, and a large bag of
methamphetamine was found. Rodriguez moved to suppress the evidence found in the
search, claiming the dog search violated his Fourth Amendment right to be free from
unreasonable seizures.
Is the use of a K-9 unit, after the conclusion of a traffic stop and without reasonable
suspicion of criminal activity, a violation of the Fourth Amendment prohibition on
unreasonable search and seizures?
Yes. Justice Ruth Bader Ginsburg delivered the opinion for the 6-3 majority. The Court
held that the use of a K-9 unit after the completion of an otherwise lawful traffic stop
exceeded the time reasonably required to handle the matter and therefore violated the
Fourth Amendment’s prohibition against unreasonable searches and seizures. Because the
mission of the stop determines its allowable duration, the authority for the stop ends when
the mission has been accomplished. The Court held that a seizure unrelated to the reason
for the stop is lawful only so long as it does not measurably extend the stop’s duration.
Although the use of a K-9 unit may cause only a small extension of the stop, it is not fairly
characterized as connected to the mission of an ordinary traffic stop and is therefore
Special Needs
 Terry balancing analysis applied beyond the specific issues of stick law enforcement
 Keep in mind several points
o What is the claim special needs for the states action?
o What degree of individualized suspicion, if any, is needed before the state can
engage in the activity?
o How intrusive into personal privacy are these actions?
o Can any of the information obtained by the state be used for law enforcement
Michigan v. Sitz – Special Needs Balancing at Checkpoints
Criminal Procedure Outline
In 1986, the Michigan State Police Department created a sobriety roving checkpoint
program aimed at reducing drunk driving within the state. The program included guidelines
governing the location of roadblocks and the amount of publicity to be given to the
operation. Before the first roadblock went into effect, Rick Sitz, a licensed Michigan driver,
challenged the checkpoints and sought declaratory and injunctive relief. Sitz was victorious
in the Michigan lower courts.
Did the drunk driving checkpoints violate motorists' privacy protected by the Fourth
In a 6-to-3 decision, the Court held that the roadblocks did not violate the Fourth
Amendment. The Court noted that "no one can seriously dispute the magnitude of the
drunken driving problem or the States' interest in eradicating it." The Court then found that
"the weight bearing on the other scale--the measure of the intrusion on motorists stopped
briefly at sobriety checkpoints--is slight." The Court also found that empirical evidence
supported the effectiveness of the program.
Indianapolis v Edmond – Special Needs Balancing at Checkpoints
In 1998, the City of Indianapolis began to operate vehicle checkpoints in an effort to
interdict unlawful drugs. At each roadblock, one office would conduct an open-view
examination of the vehicle. At the same time, another office would walk a narcoticsdetection dog around the vehicle. Each stop was to last five minutes or less, without
reasonable suspicion or probable cause. Both James Edmond and Joell Palmer were
stopped at one of the narcotics checkpoints. They then filed a lawsuit, on their behalf and
the class of motorists who had been stopped or were subject to being stopped, alleging that
the roadblocks violated the Fourth Amendment and the search and seizure provision of the
Indiana Constitution.
Are highway checkpoint programs, whose primary purpose is the discovery and
interdiction of illegal narcotics, consistent with the Fourth Amendment?
No. In a 6-3 opinion delivered by Justice Sandra Day O'Connor, the Court held that because
the checkpoint program's primary purpose was indistinguishable from the general interest
in crime control, the checkpoints violated the Fourth Amendment. "We cannot sanction
stops justified only by the generalized and ever-present possibility that interrogation and
inspection may reveal that any given motorist has committed some crime," wrote Justice
Skinner v. Railway Association – Special Needs Balancing in Drug Testing
Recognizing the dangers of drug and alcohol abuse by railroad employees, the Federal
Railroad Administration (FRA) implemented regulations requiring mandatory blood and
urine tests of employees involved in certain train accidents. Other FRA rules allowed
railroads to administer breath and urine tests to employees who violate certain safety rules.
Did the regulations violate the Fourth Amendment?
No. The Court held that the government's interest in assuring safety on the nation's railroads
constituted a "special need" which justified a departure from standard warrant and
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probable-cause requirements in searches. Preventing accidents, the goal of most railroad
regulations including the one in this case, argued Justice Kennedy, was such a significant
concern that it warranted reduced "expectations of privacy" for railroad employees.
United States v. Flores - Montano – Special Needs Balancing at the Boarders
When Manuel Flores-Montano approached the U.S.-Mexico border, U.S. Customs
inspectors noticed his hand shaking; an inspector tapped Flores-Montano's gas tank with a
screwdriver and noticed that the tank sounded solid; a drug-sniffing dog alerted to the
vehicle. After a mechanic began disassembling the car's fuel tank, inspectors found 37
kilograms of marijuana bricks in the tank. Flores-Montano was charged in federal district
court in California for importing and possessing marijuana with intent to distribute. FloresMontano moved to suppress the marijuana finding on Fourth Amendment grounds. He
argued that the search that yielded the marijuana finding was intrusive and non-routine and
therefore required reasonable suspicion (which, he argued, was not present in his case).
Does the Fourth Amendment require customs officers at the international border to have
reasonable suspicion in order to remove, disassemble, and search a vehicle's gas tank for
illegal material?
No. In a unanimous opinion delivered by Chief Justice William Rehnquist, the Court held
that the government had authority to inspect a vehicle's fuel tank at the border without
suspicion. Though the Fourth Amendment "'protects property as well as privacy,'"
interference with a vehicle owner's gas tank "is justified by the Government's paramount
interest in protecting the border." The Court rejected the argument that the requirement of
suspicion for highly intrusive searches of people be carried over to cars (especially at the
border): "Complex balancing tests...have no place in border searches of vehicles."
Maryland v. King – Special Needs Balancing in Jails
The Maryland DNA Collection Act (MDCA) allows state and local law enforcement
officers to collect DNA samples from individuals who are arrested for a crime of violence,
an attempted crime of violence, burglary, or attempted burglary. Alonzo Jay King, Jr. was
arrested on first and second degree assault charges. While under arrest, but prior to
conviction, King's DNA was collected and logged in Maryland's DNA database. That
database matched King's DNA to a DNA sample from an unsolved rape case. This sample
was the only evidence linking King to the rape. The trial judge denied King's motion to
suppress the DNA evidence and he was convicted of first-degree rape and sentenced to life
in prison. King appealed the conviction, arguing that the MDCA was an unconstitutional
infringement of his Fourth Amendment privilege against warrantless searches.
Does the Fourth Amendment allow states to collect and analyze DNA from people arrested,
but not convicted, of serious crimes?
Yes. Justice Anthony M. Kennedy delivered the opinion of the 5-4 majority. The Court
held that conducting a DNA swab test as a part of the arrest procedure does not violate the
Fourth Amendment because the test serves a legitimate state interest and is not so invasive
so as to require a warrant. The routine administrative procedures that occur during a
booking for an arrest do not require the same justification and the search of a location. The
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Court held that ascertaining an arrestee's identity and criminal history is a crucial part of
the arrest procedure and that a DNA test is just as valid and informative as fingerprinting.
Determining an arrestee's criminal history also serves the legitimate state interest of
determining what level of risk the individual poses to the public and what conditions should
be set on his/her release from custody.
Florence v. Board of Chosen Freeholders of the County of Burlington – Special Needs
Balancing in Jails
Albert Florence was searched twice in seven days after he was arrested on a warrant for a
traffic violation he had already paid. Florence filed a lawsuit against officials at the two
jails, contending the jailhouse searches were unreasonable because he was being held for
failure to pay a fine, which is not a crime in New Jersey.
Does the Fourth Amendment permit a jail to conduct a suspicion-less strip search whenever
an individual is arrested, including for minor offenses?
Yes. Justice Anthony M. Kennedy, writing for a 5-4 majority, affirmed the lower court,
holding that the strip searches for inmates entering the general population of a prison do
not violate the Fourth Amendment. The Court concluded that a prisoner's likelihood of
possessing contraband based on the severity of the current offense or an arrestee's criminal
history is too difficult to determine effectively. The Court pointed out instances, such as
the arrest of Timothy McVeigh, in which an individual who commits a minor traffic offense
is capable of extreme violence. Correctional facilities have a strong interest in keeping their
employees and inmates safe. A general strip search policy adequately and effectively
protects that interest. The Court did note that there may be an exception to this rule when
the arrestees are not entering the general population and will not have substantial contact
with other inmates.
New Jersey v. T.L.O. – Special Needs Balancing in the School Context
T.L.O. was a high school student. School officials searched her purse suspecting she had
cigarettes. The officials discovered cigarettes, a small amount of marijuana, and a list
containing the names of students who owed T.L.O. money. T.L.O. was charged with
possession of marijuana. Before trial, T.L.O. moved to suppress evidence discovered in the
search, but the Court denied her motion.
Does the exclusionary rule apply to searches conducted by school officials in public
After the original oral argument in March of 1984, the Supreme Court restored the case to
the calendar for re-argument. In addition to the previously argued question, the Court
requested that the parties brief and argue the additional question of whether the assistant
principal violated the Fourth Amendment in opening T.L.O's purse.
The Court heard re-argument on October 02, 1984. The Court held that while the Fourth
Amendment's prohibition on unreasonable searches and seizures applies to public school
officials, they may conduct reasonable warrantless searches of students under their
authority notwithstanding the probable cause standard that would normally apply to
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searches under the Fourth Amendment. The Court held that the search of T.L.O.'s purse
was reasonable under the circumstances.
5th Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or
in the Militia, when in actual service in time of War or public danger; nor shall any person be
subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use, without just
Key language
 Compelled self-incrimination, due process
Confessions and Due Process
Brown v. Mississippi – Confession was a product of physical intimidation and torture, was a
violation of 5th Amendment Due Process Clause, confession was unreliable
The Petitioners were indicted for a murder that occurred on March 30, 1934. The
Petitioners were indicted on April 4, 1934, arraigned thereafter and then pleaded not guilty.
The Petitioners were found guilty after a trial solely on the basis of their confessions.
During the trial, the Petitioners testified that the confessions were untrue and procured after
physical torture. The Petitioners appealed to the Supreme Court of Mississippi arguing that
their Fourteenth Amendment rights were violated.
Did the use of defendants' confessions at trial violate Due Process?
Yes. A complaint that a conviction was obtained by confessions procured through the use
of torture is not of the commission of mere error, but of a wrong so fundamental that it
made the whole proceeding a mere pretense of a trial and renders the conviction and
sentence wholly void.
The Supreme Court of the United States reversed the judgment convicting defendants. The
state's freedom to regulate the procedure of its courts was limited by the requirements of
due process and did not include the freedom to obtain convictions that rested solely upon
confessions obtained by violence. The use of defendants' confessions at trial was a clear
denial of due process, rendering the convictions and sentences void. The failure of
defendants' counsel to move to exclude the confessions did not prevent a reversal because
the trial court was fully advised of the coerced nature of the confessions. The proceedings
were vitiated by the lack of the essential elements of due process and could be challenged
in any appropriate manner.
Ashcraft v. Tennessee – Psychological intimidation was a violation of due process clause
Criminal Procedure Outline
Victim Zelma Ashcraft was found dead on the side of the road and later that night, officers
talked to the petitioner husband. On a Saturday nine days later, the petitioner was taken by
police to an office at their jail where they sat him at a table with a light overhead, and
proceeded to question him in relays until the following Monday morning. The petitioner
was never given the opportunity to rest during this interrogation and claimed that after
much suggestion that he was to confess, the state ended up admitting into evidence a
statement by Ashcraft that he had paid the other petitioner Ware to murder his wife. The
petitioners were convicted of murder and accessory before the fact and the Supreme Court
of Tennessee affirmed. The petitioners were granted certiorari claiming that their
confessions had been extorted from them in violation of the Fourteenth Amendment.
Are confessions obtained after police question a subject for more than 36 hours straight
without rest violative of the Fourteenth Amendment as made involuntarily, and thus
Yes. The confessions obtained in this case were made involuntarily under the totality of
the circumstances test used in evaluating due process violation claims. He was held for a
day and a half straight without sleep or rest, or the ability to talk with anyone. His
conviction, having been based on this coerced confession, is faulty and must be reversed
and remanded.
Spano v. New York – Court expressly adopted test for voluntariness (voluntariness = due
After petitioner, Vincent Joseph Spano, a foreign-born man of 25 with a junior-high-school
education and no previous criminal record, had been indicted for first-degree murder, he
retained counsel and surrendered to police. He was then subjected to persistent and
continuous questioning by an assistant prosecutor and numerous police officers for
virtually eight hours. Ultimately, Spano confessed, after he had repeatedly requested, and
had been denied, an opportunity to consult his counsel. At his trial in a New York state
court, his confession was admitted in evidence over his objection, and he was convicted
and sentenced to death.
Was the trial court's admission of Spano's involuntary confession inconsistent with the
Fourteenth Amendment under traditional principles?
Yes. The abhorrence of society to the use of involuntary confessions does not turn alone
on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police
must obey the law while enforcing the law; that in the end life and liberty can be as much
endangered from illegal methods used to convict those thought to be criminals as from the
actual criminals themselves.
The Supreme Court of the United States found that Spano's involuntary confession had
been wrongly admitted into evidence over appropriate objection at trial. The confession
was inconsistent with U.S. Const. amend. XIV under traditional principles. Spano was
subjected to questioning by several men for nearly eight hours. The questioning was not
conducted during normal business hours, but began in early evening, continued into the
night, and did not bear fruition until morning. The questioners persisted in the face of
Spano's repeated refusals to answer on the advice of his attorney. The Court found another
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factor that deserved mentioning was the use of Spano's "childhood friend," now a police
officer, to play upon his sympathy. The Court concluded that Spano's will was overcome
by official pressure, fatigue, and sympathy falsely aroused in a post-indictment setting. The
police were only concerned in securing a statement from Spano on which they could
convict him.
Totality of the circumstances to determine if the suspect will was overborne.
Colorado v. Connally – Source of the corrosive pressure, whether the confession violated due
In 1983, Francis Connelly approached a police officer and, without any prompting,
confessed to murder. The police officer immediately informed Connelly that he had the
right to remain silent, but Connelly indicated that he still wished to discuss the murder. It
was later discovered that Connelly was suffering from chronic schizophrenia at the time of
the confession. A Colorado trial court suppressed the statements on the ground that they
were made involuntarily.
Did the taking of Connelly's statements as evidence violate the Due Process Clause of the
Fourteenth Amendment?
The Court held that because the taking of Connelly's statements as evidence did not involve
any element of governmental coercion, no violation of the Due Process Clause occurred.
The Court argued that suppressing statements in cases where suspects were not coerced
would have no deterrent effect on future violations of the Constitution by the police. The
Court noted that "Miranda protects defendants against government coercion leading them
to surrender rights protected by the Fifth Amendment; it goes no further than that."
Confessions and The Privilege Against Self-Incrimination
Miranda v. Arizona – Miranda Warnings
Defendants were arrested by the police, who later obtained confessions from them while
they were confined in interrogation rooms. The trial court, where each of the defendants
was charged, admitted the confessions into evidence, and thereafter convicted each
defendant. Defendants sought a review of the trial court's judgment.
Should the confessions obtained from a defendant who was subjected to custodial police
interrogation be admitted as evidence at trial?
No. According to the Court, when an individual was taken into custody and subjected to
questioning, the U.S. Const. amend. V privilege against self-incrimination was
jeopardized. To protect the privilege, procedural safeguards were required. A defendant
was required to be warned before questioning that he had the right to remain silent, and
that anything he said can be used against him in a court of law. A defendant was required
to be told that he had the right to the presence of an attorney, and if he cannot afford an
attorney one was to be appointed for him prior to any questioning if he so desired. After
these warnings were given, a defendant could knowingly and intelligently waive these
rights and agree to answer questions or make a statement. The Court held that evidence
obtained as a result of interrogation was not to be used against a defendant at trial unless
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the prosecution demonstrated the warnings were given, and knowingly and intelligently
waived. Effective waiver required that the accused was offered counsel but intelligently
and understandingly rejected the offer. Presuming waiver from a silent record was
In the context of custodial interrogation, once warnings have been given, the subsequent
procedure is clear. If the individual indicates in any manner, at any time prior to or during
questioning, that he wishes to remain silent, the interrogation must cease. At this point he
has shown that he intends to exercise his Fifth Amendment privilege; any statement taken
after the person invokes his privilege cannot be other than the product of compulsion, subtle
or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation
operates on the individual to overcome free choice in producing a statement after the
privilege has been once invoked. If the individual states that he wants an attorney, the
interrogation must cease until an attorney is present. At that time, the individual must have
an opportunity to confer with the attorney and to have him present during any subsequent
questioning. If the individual cannot obtain an attorney and he indicates that he wants one
before speaking to police, they must respect his decision to remain silent.
Dickerson v. United States – Congress
Petitioner was indicted for bank robbery, conspiracy to commit bank robbery, and using a
firearm in the course of committing a crime of violence. Before trial, petitioner moved to
suppress a statement he had made at a Federal Bureau of Investigation field office, on the
grounds that he had not received "Miranda warnings" before being interrogated. The
district court granted his motion to suppress. The court of appeals reversed the suppression
order, holding that 18 U.S.C.S. § 3501, which made admissibility turn solely on whether
the statement was made voluntarily, had been satisfied. Petitioner appealed from the
judgment of the United States Court of Appeals for the Fourth Circuit, which reversed the
grant of his motion to suppress his custodial statement.
May Miranda, being a constitutional decision of the Supreme Court of the United States,
be in effect overruled by an Act of Congress?
No. On appeal, the court reversed, finding that Miranda was a constitutional decision of
the court, and therefore could not be in effect overruled by an Act of Congress. Further,
following the principles of stare decisis, the court declined to overrule Miranda itself. The
court held that Miranda and its progeny governed the admissibility of statements made
during custodial interrogation in both state and federal courts.
New York v. Quarles – Public Safety
After receiving the description of Quarles, an alleged assailant, a police officer entered a
supermarket, spotted him, and ordered him to stop. Quarles stopped and was frisked by the
officer. Upon detecting an empty shoulder holster, the officer asked Quarles where his gun
was. Quarles responded. The officer then formally arrested Quarles and read him his
Miranda rights.
Should the Court suppress Quarles's statement about the gun and the gun itself because the
officer had failed at the time to read Quarles his Miranda rights?
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No. The Court held that there is a "public safety" exception to the requirement that officers
issue Miranda warnings to suspects. Since the police officer's request for the location of
the gun was prompted by an immediate interest in assuring that it did not injure an innocent
bystander or fall into the hands of a potential accomplice to Quarles, his failure to read the
Miranda warning did not violate the Constitution.
There are two prongs that trigger Miranda. Custody and Interrogation.
1. Miranda Custody
Berkemer v. McCarty – Do warnings apply to misdemeanor offenses, did the prearrest traffic
stop trigger the custody prong of Miranda?
An officer observed a vehicle swerving in and out of lanes on the highway and initiated a
traffic stop. The officer asked if the driver had been using intoxicants, to which the driver
replied in the affirmative. The driver was arrested, asked again about the use of intoxicants,
and again answered in the affirmative. The driver was never advised of his constitutional
rights, and he was convicted of driving under the influence. He appealed, asserting that the
incriminating statements were not admissible as he had not been informed of his
constitutional rights prior to interrogation. The Court vacated the driver’s conviction.
Is roadside questioning of a motorist stopped pursuant to a routine traffic stop considered
a custodial interrogation when the motorist is not yet arrested or placed into custody?
No. The safeguards prescribed by Miranda become applicable as soon as a suspect's
freedom of action is curtailed to a degree associated with a formal arrest. If a motorist who
has been detained pursuant to a traffic stop is subjected to treatment that renders him in
custody, he will be entitled to the protections prescribed by Miranda. However, the initial
stop of a vehicle by an officer does not amount to being in custody.
The initial stop of the driver’s vehicle, by itself, did not render the driver in custody.
Therefore, at that point in time, the driver was not entitled to a recitation of constitutional
rights. However, after the driver was arrested, any statements made were inadmissible
against him without a reading of his constitutional rights. Because it could not be
determined which statements were relied upon in convicting the driver, the conviction was
properly vacated.
J.D.B. v. North Carolina – Custody is generally an objective test, Court adds subjectivity here
A uniformed police officer removed the 13-year-old, seventh-grade student from his
classroom and escorted him to a closed-door conference room, where he was questioned
by police for at least half an hour regarding home break-ins. Prior to the commencement
of questioning, the student was not given Miranda warnings. The student confessed.
Thereafter, two juvenile petitions were filed against the student, alleging breaking and
entering and larceny. The state trial court denied the student's motion to suppress his
statements, and adjudicated him delinquent. The North Carolina Supreme Court upheld the
decision. In denying the student's motion to suppress, the North Carolina Supreme Court
declined to find the student’s age relevant to the determination whether he was in police
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Does a child’s age properly inform a Miranda custody analysis?
Yes. The Court held that a child's age properly informs Miranda's custody analysis since a
reasonable child subjected to police questioning will sometimes feel pressured to submit
when a reasonable adult would feel free to go, and courts can account for that reality
without doing any damage to the objective nature of the custody analysis. Furthermore, the
Court posited that a child's age differed from other personal characteristics that, even when
known to police, have no objectively discernible relationship to a reasonable person's
understanding of his freedom of action.
Whether a suspect is "in custody" is an objective inquiry. Two discrete inquiries are
essential to the determination: first, what were the circumstances surrounding the
interrogation; and second, given those circumstances, would a reasonable person have felt
he or she was at liberty to terminate the interrogation and leave. The court must apply an
objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on
freedom of movement of the degree associated with formal arrest.
2. Miranda Interrogation
Rhode Island v. Innis – Conversation between police officers
 After a picture identification by the victim of a robbery, Thomas J. Innis was arrested by
police in Providence, Rhode Island. Innis was unarmed when arrested. Innis was advised
of his Miranda rights and subsequently requested to speak with a lawyer. While escorting
Innis to the station in a police car, three officers began discussing the shotgun involved in
the robbery. One of the officers commented that there was a school for handicapped
children in the area and that if one of the students found the weapon he might injure himself.
Innis then interrupted and told the officers to turn the car around so he could show them
where the gun was located.
 Did the police "interrogation" en route to the station violate Innis's Miranda rights?
 No. In a 6-to-3 decision, the Court held that the Miranda safeguards came into play
"whenever a person in custody is subjected to either express questioning or its functional
equivalent," noting that the term "interrogation" under Miranda included "any words or
actions on the part of the police (other than those normally attendant to arrest and custody)
that the police should know are reasonably likely to elicit an incriminating response from
the subject." The Court then found that the officers' conversation did not qualify as words
or actions that they should have known were reasonably likely to elicit such a response
from Innis.
 Test created to see if interrogation took place for Miranda purposes:
o Express questioning and words or actions on the part of the police (other than those
attendant to arrest and custody) that the police should know are reasonably likely
to elicit an incriminating response from the suspect.
Illinois v. Perkins – Undercover cop
An informer told the police that a particular suspect might be responsible for an unsolved
Illinois murder, and the suspect was traced to an Illinois jail in which the suspect was being
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held pending trial on an aggravated-battery charge unrelated to the murder. The police
placed an undercover agent in the jail with the suspect. Eventually, the agent, without
giving the suspect Miranda warnings, engaged in conversations with the suspect, who made
incriminating statements about the murder. The suspect was then charged with the murder,
but the circuit court of St. Clair County (Illinois) granted the suspect's pretrial motion to
suppress the statements made to the agent in the jail. On appeal, the Appellate Court of
Illinois, Fifth District, affirmed, expressing the view that Miranda v Arizona (1966) 384
US 436, 16 L Ed 2d 694, 86 S Ct 1602, prohibited all undercover contacts which were
reasonably likely to elicit incriminating responses from incarcerated suspects. Petitioner,
the State of Illinois, was granted certiorari.
Should an undercover law enforcement officer, posing as a fellow inmate, be required to
give Miranda warnings to an incarcerated suspect before engaging in a conversation that
could elicit incriminating response from the incarcerated suspect?
No. Miranda warnings are not required when a suspect is unaware that he is speaking to a
law enforcement officer and gives a voluntary statement.
The Court held that Miranda warnings were not required when the suspect was unaware
that he was speaking to a law enforcement officer and gave a voluntary statement. The
Court found that conversations between suspects and undercover agents did not implicate
the concerns underlying Miranda. According to the Court, the essential ingredients of a
police-dominated atmosphere and compulsion were not present when an incarcerated
person spoke freely to someone he believed to be a fellow inmate. Coercion was to be
determined from the perspective of the suspect. Ploys to mislead a suspect or lull him into
a false sense of security that did not rise to the level of compulsion or coercion to speak
were not within the concerns of Miranda warnings. The Court averred that Miranda was
not meant to protect suspects from boasting about their criminal activities.
Miranda Warning and Waivers
Waiver Test – First, the waiver has to be a product of free and deliberate choice. Second, the
waiver must be made with full awareness of the right and the consequences of the waiver.
The court looks to the totality of the circumstance.
Colorado v. Spring – Charges
The defendant was suspected of being involved in a murder. He was also the subject of an
ATF investigation involving the sale of illegal firearms. When he was questioned by ATF
agents, he was given his Miranda warnings but not what crimes he was being investigated
for. Defendant waived his rights and initially answered questions about the firearm sales
but eventually answered questions about the murder.
Was Spring’s waiver of his Miranda rights invalid under U.S. Const. amend. V on the
ground that the agents failed to disclose all possible charges against Spring or all the
possible consequences of the waiver?
No. The United States Supreme Court overruled the judgment of the state supreme court.
The Court held that the Fifth Amendment did not require ATF agents to warn Spring of a
possible murder charge before he waived his Miranda rights. The Court found that Spring
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knowingly waived his Miranda rights since he knew what his right were, including the
right to discontinue talking at any time. Thus, his waiver of his Miranda rights was valid.
Berghuis v. Tompkins – Implied waiver
Thompkins was given his complete Miranda warnings and said virtually nothing for the
next three hours and he never expressly waived his Miranda rights. After this almost three
hours of silence the police asked him if he believed in God and if he prayed to God to
forgive him for shooting the victim. To this questions the defendant answered “yes” and
this statement was admitted against him at trial.
Did Thompkins waive his right to remain silent when he knowingly and voluntarily made
an uncoerced statement to police?
Yes. If the State establishes that a Miranda warning was given and that it was understood
by the accused, an accused's uncoerced statement establishes an implied waiver. The Court
found that Thompkins waived his right to remain silent when he knowingly and voluntarily
made a statement to police. First, the lack of any contention that he did not understand his
rights indicated that he knew what he gave up when he spoke. Second, his answer to the
question about God is a “course of conduct indicating waiver” of that right. Third, there
was no evidence that his statement was coerced. He did not claim that police threatened or
injured him or that he was fearful. The fact that Thompkins made the statement about three
hours after receiving a Miranda warning did not overcome the fact that he engaged in a
course of conduct indicating waiver.
Davis v. United States – Vague invocation
Defendant was investigated for the murder of another sailor. NCIS Agents read him his
Article 31 rights and Miranda warnings. Defendant his rights and agreed to talk. During
the interrogation, at one point, the defendant said “maybe I need a lawyer.” NCIS stopped
the questioning clarified his request, re-read him his rights and then continued questioning
until he unequivocally asked for a lawyer.
When a suspect makes an ambiguous request for counsel during a custodial interrogation,
must the interrogator cease questioning until the suspect is provided with counsel?
No. The Supreme Court held that, assuming Edwards applies in military proceedings,
investigators do not need to cease questioning when an accused makes an ambiguous
statement like “Maybe I should talk to a lawyer.” The Court noted that, while it was proper
for the investigators to clarify Davis’ intentions, the Court does not require investigators to
adopt that practice in future interrogations.
Michigan v. Mosley – Invoking the right to silence
Richard Mosley was arrested in Detroit in connection with robberies that had occurred at
two local restaurants. Mosley was taken to police headquarters, where he was informed of
his Miranda rights to remain silent and to have an attorney present. After Mosley signed
the police department’s constitutional rights notification certificate, Detective James
Cowie began to question Mosley, but he immediately stopped when Mosley said that he
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did not wish to speak about the robberies. A few hours later, Detective Hill brought Mosley
out from his cell to question him about the recent murder of a man named Leroy Williams,
and Mosley was again informed of his Miranda rights. At first Mosley denied any
involvement, but after being informed that another man had named him as the shooter, he
made statements implicating himself in the murder. During the second interrogation, he
never asked for a lawyer or refused to answer questions. Mosley was subsequently charged
with first-degree murder. Mosley moved to suppress his incriminating statement and
argued that Detective Hill’s interrogation and eventual use of his incriminating comment
violated his Miranda rights.
Does the re-initiation of interrogation after a suspect has invoked his right to silence under
Miranda v. Arizona violate the suspect’s Fifth and Sixth Amendment rights to silence and
the presence of counsel?
The re-initiation of interrogation after a suspect has invoked his right to silence is not a per
se violation of Miranda rights, as long as the suspect’s invocation of his rights is honored.
The Court held that the Miranda rule, which requires an immediate cessation of questioning
if the individual in custody wishes not to speak, does not clearly establish the circumstances
under which questioning may be resumed. The Miranda rule could bar the police from
questioning the individual again in regards to any subject, or it could require a complete
break from any current questioning but allow for re-initiation of another round of
questioning at a later time. The Court held that Miranda only required that the suspect’s
right to refuse to answer questions be honored. In this case, the Court held that Mosley’s
invocation of his right to silence had been honored because the interrogation ceased as soon
as he stated he did not wish to continue, he was read his rights again before interrogation
was re-initiated, and a significant amount of time passed between the two interrogations.
Test – the police must scrupulously honor a suspect’s right to silence. If they have done so
they can reinitiate questioning.
o Factors:
 Time
 Different location
 Different offense
 Different police officers
 Continuous confinement of the suspect
 Willingness of the suspect to engage in another round of questioning
 Other?
Edwards v. Arizona – Invoking the right to council
After being arrested on a state criminal charge, and after being informed of his rights as
required by Miranda v. Arizona, petitioner Edwards was questioned by the police on Jan.
19, 1976, until he said that he wanted an attorney. Questioning then ceased, but on Jan. 20
police officers came to the jail and, after stating that they wanted to talk to him and again
informing him of his Miranda rights, obtained his confession when he said that he was
willing to talk. At trial in Arizona state court, the trial court ultimately denied Edwards'
motion to suppress his confession, finding the statement to be voluntary. Edwards was
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convicted, and he appealed. The Supreme Court of Arizona held that during the Jan. 20
meeting Edwards waived his right to remain silent and his right to counsel when he
voluntarily gave his statement after again being informed of his rights. Edwards filed a
petition for certiorari, which was granted.
Did the Fifth, Sixth, and Fourteenth Amendments require suppression of a post-arrest
confession, which was obtained after Edwards had invoked his right to consult counsel
before further interrogation?
Yes. The Supreme Court of the United States held that the use of Edwards' confession
against him violated his Fifth and Fourteenth Amendment rights in that he had asserted his
right to counsel and his right to remain silent, and the police, without furnishing him with
counsel, returned and secured a confession. The Court averred that Edwards did not validly
waive his right to counsel, where there was no finding that he understood his right to
counsel and intelligently and knowingly relinquished it. Moreover, the Court opined that
having requested counsel, Edwards was not subject to further interrogation until counsel
had been made available to him, unless Edwards himself initiated further communication
with the police. Hence, the Court reversed the state supreme court's judgment.
Test – voluntary and knowing/intelligent abandonment or relinquishment of a known right
or privilege – unless an attorney is made available to speak with the suspect, the police
cannot reinitiate questioning (Edwards Bar)
Maryland v. Shatzer – How long the Edwards Bar stays up
In August 2003, a detective from the Hagerstown, MD Police Department interviewed
Michael Blain Shatzer Sr. regarding allegations that he had sexually abused his three-year
old child. At the time, Mr. Shatzer was incarcerated on an unrelated offense involving
sexual abuse of another child. After Mr. Shatzer invoked his Fifth Amendment rights to
counsel and to remain silent, the interview was terminated. The investigation was
subsequently closed, only to be reopened in January 2006 on the prompting of Mr. Shatzer's
wife, when she recognized her child could make more specific allegations about Mr.
Shatzer's alleged sexual abuse. Thereafter in March 2006, another detective from the
Hagerstown Police Department, who was aware that Mr. Shatzer had been under
investigation, but was not aware that Mr. Shatzer had previously invoked his Fifth
Amendment rights to counsel and to remain silent, interviewed him. At this interview, Mr.
Shatzer was advised of his Fifth Amendment rights, which he waived, and then confessed
to specific instances of sexual abuse involving his child.
Does Edwards v. Arizona prohibit the re-interrogation of a suspect, who has invoked his
Fifth Amendment rights to counsel and to remain silent, after a substantial amount of time
has elapsed between the invocation of rights and the subsequent interrogation?
No. The Supreme Court reversed the Court of Appeals of Maryland, holding that because
Mr. Shatzer experienced a break in Miranda custody lasting more than two weeks between
the first and second attempts at interrogation, Edwards does not mandate suppression of
his 2006 statements. Justice Antonin G. Scalia writing for the majority reasoned that when
a suspect has been released from custody and returned to normal life before the police later
attempt interrogation, there is little reason to believe that the suspect's change of heart was
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coerced. The Court then stated that the appropriate period of time for a person to be reacclimated to normal life was 14 days. Here, even though Mr. Shatzer was released back
into the general prison population, he entered back into his normal life and was free of the
pressures of investigative custody; thus, the Edwards presumption was no longer
6th Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
Key language
 Assistance of counsel
Massiah v. United States – Critical Stage is the trigger, indictment and anything after is a critical
After Winston Massiah was indicted on federal narcotics charges, he retained counsel,
pleaded not guilty, and was released on bail. While on bail, Massiah had a conversation
with one of his codefendants in the absence of counsel. Unknown to Massiah, the
codefendant became a government informer and allowed police to install a radio
transmitter under the seat of his car. A nearby government agent listened to the entire
conversation by way of this transmitter. Massiah made several incriminating statements.
At trial, the agent who listened to the conversation testified to the incriminating statements
over Massiah’s objection. The codefendant never testified. A jury convicted Massiah and
the U.S. Court of Appeals for the Second Circuit affirmed.
Are a defendant’s incriminating statements made without the presence of counsel after a
criminal proceeding has begun admissible as evidence?
No. Justice Potter Stewart, writing for a 6-3 majority, reversed and remanded. The Supreme
Court held that incriminating statements deliberately elicited by federal agents in the
absence of counsel after the proceeding has begun violate the Sixth Amendment. The
prosecution could not use these statements as evidence against Massiah. Justice Byron R.
White dissented, arguing that the statements should be admitted because they were
voluntarily made and not coerced. The absence of counsel was only one factor among many
the court should consider in this situation.
United States v. Henry – Deliberate Elicitation
After Defendant Billy Gale Henry was indicted for armed robbery of a bank, and while he
was in jail pending trial, Government agents contacted a confidential informant (CI), an
inmate confined in the same cellblock as Henry. An agent instructed the CI to be alert to
any statements made by federal prisoners but not to initiate conversations with or question
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Henry regarding the charges against him. After the CI had been released from jail, he
reported to the agent that he and Henry had engaged in a conversation in which that Henry
made incriminating statements about the robbery. The CI was paid for furnishing the
information. At Henry's trial, which resulted in a conviction, the CI testified about the
incriminating statements that Henry had made to him. Henry moved to vacate his sentence
on the ground that the introduction of the CI's testimony interfered with and violated his
Sixth Amendment right to the assistance of counsel. The District Court denied the motion,
but the Court of Appeals reversed, holding that the Government's actions impaired Henry's
Sixth Amendment rights under Massiah v. United States.
Was Henry's Sixth Amendment right to assistance of counsel violated by the admission at
trial of incriminating statements made by Henry to his cellmate, an undisclosed government
informant, after indictment and while Henry was in custody?
Yes. By intentionally creating a situation likely to induce a defendant to make
incriminating statements without the assistance of counsel, the government violates the
defendant's Sixth Amendment right to counsel. The United States Supreme Court held that
Henry's Sixth Amendment right to counsel had attached at the time he made the statements.
Further, the Court held that the government's specific mention of Henry to the undercover
informant, who was paid on a contingency fee basis, constituted the type of affirmative
steps to secure incriminating information from Henry outside the presence of his counsel
prohibited by the Sixth Amendment.
Had there been an official questioning in volition of the suspects 6th amendment right to
o The test asks whether the police’s actions deliberately elicited an incriminating
response from the defendant.
6th Amendment right to council is offense-specific, only attached for those crimes that have
reached a critical stage.
Brewer v. Williams – Deliberate Elicitation
Robert Williams escaped from a mental hospital and lived at the Des Moines YMCA. Soon
thereafter, a 10-year-old girl disappeared from the YMCA while at her brother’s wrestling
match. A boy in the parking lot saw Williams carrying a large bundle to his car with two
“skinny and white” legs in it. The next day, police found Williams’ abandoned car about
160 miles east of Des Moines. Williams soon turned himself in to police in Davenport,
Iowa. Williams said he would tell police the whole story once he saw his lawyer in Des
Moines. Williams spoke with a local attorney and reiterated his intention to confess when
he saw his attorney in Des Moines. Davenport police promised not to question Williams
during the drive to Des Moines. During the drive, however, the detective, knowing that
Williams was deeply religious, told Williams that the girl’s family wanted to give her a
“Christian burial” and suggested that they stop to locate the body. As a result of the officer's
pointed statements, Williams made incriminating statements and ultimately led police to
the girl’s body. He was indicted for first-degree murder.
At trial, Williams moved to suppress all evidence relating to the car ride conversation,
arguing that the questioning violated Williams’ Sixth Amendment right to counsel. The
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judge denied the motion, and a jury found Williams guilty. The Iowa Supreme Court
affirmed the conviction. Williams petitioned for a writ of habeas corpus in the U.S. District
Court for the Southern District of Iowa. The court granted the writ, finding that speaking
to Williams during the drive violated his right to counsel, and the evidence in question was
wrongly admitted at trial. The U.S. Court of Appeals for the Eighth Circuit affirmed.
Was Williams denied counsel in violation of the Sixth Amendment? Did Williams waive
his right to counsel when he led the detective to the girl’s body?
Yes, No. In a 5-4 decision, Justice Potter Stewart wrote the majority opinion, affirming the
Court of Appeals. The Supreme Court held police denied Williams his Sixth Amendment
rights because the adversary proceeding had already began. The detective’s statements
eliciting incriminating statements amounted to an interrogation, entitling Williams to
counsel. The Court also held that Williams had not waived his right to counsel.
Justice Thurgood Marshall concurred, writing that the detective who gave the "Christian
burial" speech knowingly set out to violate Williams’ constitutional rights. The nature of
the crime was not an excuse for the detective’s behavior. Justice Lewis F. Powell also
concurred, stating that the record clearly showed that Williams had not waived his rights.
Justice John Paul Stevens wrote a concurrence, expressing that the state had promised not
to question Williams before he reached Des Moines, and the state could not dishonor that
promise made to Williams’ lawyer.
14th Amendment – Section 1
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.