Outline Criminal Procedure Professor Jones
I. Course Themes:
 Common law baselines (conservatives) v. privacy norms (liberals)
 Common law base lines: Commonly did the police have the right to be
there (Riley) in regards to the normal regulations.
 Privacy norms: did you have the right to privacy
 Formalism (i.e. katz model; Judges include Marshall, Brennan) v. Realism (i.e.
sliding scale judges include Scalia, Rhenquist, Kennedy)
 Formal categories v. ad hoc approach
 Crime Control Approach v. Privacy rights
 i.e. need for government to curtail crimes vs. your rights as a US citizen
II. Introduction
 Two Models
 Balancing
 Categorical aka Katz Model
 Entick v. Carrington: Carrington issued a “general warrant” that his men carried
out that searched the home of Entick who was suspected of writing slander
against the king. The men went to Enticks home and ruffled and destroyed a
plethora of material in Enticks home. Entick sought judgment against Carrington
stating that the search and seizure of his property was illegal
 Whether or not the search and seizure of the Secretary of States men was
lawful?
 Rule: the state may do nothing but that which is expressly authorized by
law, while the individual may do anything but that which is forbidden by
law.
 No; Separation of powers does not allow the Secretary of State or
anyone who works for him to act outside the scope of their statutory or
common law power prescribed to them by the state. The “general
warrant” needed to be more specific. The allowance of a general warrant
would allow the police to search anywhere and everything for the
evidence they seek which would be a violation of the 4th amendment.
 Florida v. Riley (Plain View Doctrine/ Crime Control Approach): Cops look
from a helicopter and see drugs through a hole in the respondent’s roof from a
height of 400 feet.
 Is there a search? Whether surveillance of the interior of a partially
covered greenhouse in a residential backyard from the vantage point of
a helicopter located 400 feet above the greenhouse constitutes a search
for which a warrant is required?
 Plurality (White):
1. The home and the curtilage are not necessarily protected from
inspection that involves no physical invasion. What a person
knowingly exposes to the public, even in his own home, is not a
subject of 4th amendment protection. The police may see what may
be seen from a public vantage point where they have a right to be.
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2. The defendant could not have a reasonable expectation of privacy
from examination by a cop in a plan at 400 feet. The situation may
be different if the cop was flying so low that it was contrary to
flying law or regulations. Then the defendant may have had that
expectation of privacy.
3. If the police are in a heli where everyone else also has a right (not
necessarily the money, but who cares) to fly around, the how can
this be a search when they see something which has been left open
in plain view?
4. Even if an area is within a traditionally protected setting (home or
curtilage), 4th amendment protection may be lost by application of
the privacy expectation concept, i.e., if it is left out in open view
where it can be seen from a public vantage point, there is no
reasonable expectation of privacy. There is no expectation of
privacy in what you expose to the public, even if it is in your own
home.
5. In this case, the court noted that no intimate details connected with
the use of the home were revealed. If this were the case, that might
be a good basis to distinguish this case.
 Concurring (O’Connor):
1. She thinks the plurality’s decision rests too much on the fact that
the cop’s plane was within the airspace where it was permitted to
fly by FAA regulations.
2. She sees the issue differently, “whether the helicopter was in the
public airways at an altitude at which members of the public travel
with sufficient regularity that defendant’s expectation of aerial
observation was not one that society is not prepared to recognize as
reasonable.
3. Because there is reason to believe that there is considerable public
use of airspace at altitudes of 400 feet the defendant did not have a
reasonable expectation of privacy.
 Dissenting (Brennan):
1. Thinks that flying at 400 feet is a search b/c the public does not
have access to helicopters at 400 ft. altitude.
2. Brennan is concerned about government surveillance.
 The previous case demonstrate that expectation of privacy includes the
factor of vantage point as well as setting. Where police observations are
made from a location to which the public has lawful access, the viewing
of otherwise protected areas may not implicate the 4th. Where, however,
police must physically enter the area to make their observations, a
search has likely taken place.
Wyoming v. Houghton: person was pulled over for traffic violation and the cop
saw that there was a syringe in the drivers front pocket, thus the officer searched
the rest of the vehicle and found drugs and paraphernalia.
 Majority by Scalia:
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Relied on Caroll and Ross: The critical element in a reasonable search is
not that the owner of the property is suspected of crime but that there is
reasonable cause to believe that the specific things to be searched for
and seized are located on the property to which entry is sought.
 When there is probable cause to search for contraband in a car, it is
reasonable for police officers—like customs officials in the founding
era—to examine packages and containers without a showing of
individualized probable cause for each one.
 Police officers with probable cause to search a car may inspect
passengers’ belongings found in the car that are capable of concealing
the object of the search. When there is probable cause to search for
contraband in a car, it is reasonable for officers to examine packages and
containers without a showing of individualized probable cause for each
one. A passenger’s personal belongings, just like the driver’s belongings
or containers are “in” the car and the officer has probable cause to
search for contraband in the car.
 Effective law enforcement would be appreciably impaired without the
ability to search a passengers belongings when there is reason to believe
contraband or evidence of criminal wrongdoing is hidden in the car.
 The ready mobility of an automobile creates a risk that the evidence or
contraband will be permanently lost while a warrant is obtained.
 Looks to balance compelling interests of crime control and 4th
amendment protection.
 Distinguished from Ybarra (search of persons in a tavern) and Di Re
because these cases turned on the unique, significantly heightened
protection afforded against searches of ones person.
 Breyer Concurring: When a police officer has probable to search a car,
establishing ownership of each package prior to the search would
destroy the workability of the bright-line rule from Ross.
 Stevens Dissent: in all of our prior cases applying the automobile
exception to the fourth amendments warrant requirement, either the D
was the operator of the vehicle and in custody of the objet of the search,
or no question was raised to as the Ds ownership or custody.
1. Relies on Di Re where the passenger of D was searched.
Analogizes the search of the person in Di Re with the search of the
persons belongings here. Believes that the cop needed PC just to
search her purse.
2. In his view the States legitimate inteters in effective law
enforcement does not out weigh the privacy concerns.
Illinois v. Caballes (2005):
 Majority by Stevens
 A seizure that is lawful at its inception can violate the 4th amendment if
its manner of execution unreasonably infringes interests protected by the
Constitution. A seizure that is justified solely by the interest in issuing a
warning ticket to the driver can become unlawful if it is prolonged
beyond the time reasonably necessary to complete that mission.
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Conducting a dog sniff around the driver’s car would not change the
character of a traffic stop that is lawful at its inception and otherwise
executed in a reasonable manner, unless the dog sniff infringed
respondent’s constitutionally protected interested in privacy – our cases
hold that it does not.
Official conduct that does not compromise any legitimate interest in
privacy is not a search subject to the 4th amendment. We have held that
any interest in possessing contraband cannot be deemed legitimate and
this government conduct that reveals only the possession of contraband
compromises no legitimate privacy interest. This is because the
expectation that certain facts will not come to the attention of the
authorities is not the same as an interest in privacy that society is
prepared to consider reasonable.
As was decided in Place, a dog sniff exposing only the presence of
contraband and nothing else is not a search. The use of a well-trained
narcotics-detection dog – one that does not expose noncontraband items
that would otherwise remain hidden from public view during a lawful
traffic stop, generally does not implicate legitimate privacy interests.
This conclusion is entirely consistent with our decision in Kyllo that the
use of a thermal-imaging device to detect the growth of marijuana in a
home constituted an unlawful search. Critical to that decision was the
fact that the device was capable of detecting lawful activity – in that
case, intimate details in a home, such as “at what hour each night the
lady of the house take her daily sauna and bath.” The legitimate
expectation that information about perfectly lawful activity will remain
private is categorically distinguishable from respondent’s hopes or
expectations concerning the nondetection of contraband in the trunk of
his car.
Souter Dissenting: Since Place we have learned these drug sniffing dogs
make mistakes. This is not, of course, to deny that a dog’s reaction may
provide reasonable suspicion or even probable cause. The point is
simply that the sniff and alert cannot claim the certainty that Place
assumed, both in treating the deliberate use of sniffing dogs as sui
generis and then taking that characterization as a reason to say they are
not searches subject to the 4th. The Court today does not go so far as to
say explicitly that sniff searches by dogs trained to sense contraband
always get a free pass under the 4th amendment, since it reserves some
judgment on the constitutional significance of sniffs assumed to be more
intrusive than a dog’s walk around a stopped car.
Ginsburg Dissenting Joined By Souter: Dogs are scary. If we were
dealing with bombs, then this search may have been permissible.
Note that Ginsburg does not join Souter’s Dissent but Souter Joins
Ginsburg’s.
Operation Pipeline is in effect no different that the roadblock the Court
found unconstitutional in Edmond: 7 Justices agreed in Edmond that the
4th amendment prohibits police from stopping cars at a checkpoint to
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have a dog sniff them for drugs. With no change in the Court’s
membership, 6 Justices held in Caballes that a dog sniff during a traffic
stop does not violate the 4th amendment. The Court failed to recognize
that Caballes and Edmond are the same case and involve the same
arbitrary seizure. The only difference is that in Edmond the systematic
nature of the stops was obvious. In Caballes, the fact that the stop was
part of a federally created systematic dragnet was hidden from view
because the stops are made by various police agencies one car at a time .
 What would SCOTUS need to do to change its approach so that the
government couldn’t sneak something like OPERATION PIPELINE by
the Court?
Whren v. US: A truck stopped at an intersection for an unusually long time
attracted the attention of a vice-squad officer patrolling a “high drug” area of D.C.
When the police officer made a U-turn, the truck turned without signaling and
sped off. The officer caught up with the truck, and forced it to pull over. The
officer went to the truck and immediately saw two bags of crack cocaine.
 The temporary detention of a motorist who the police have probable
cause to believe has committed a civil traffic violation is consistent
with the 4th amendment.
 Is the temporary detention of a motorist who the police have PC to
believe his committed a civil traffic violation inconsistent with the 4th
amendment prohibition against unreasonable seizures, unless a
reasonable officer would have been motivated to stop the car by a
desire to enforce the traffic laws?
 Would a reasonable police officer have stopped the defendant?
 Majority by Scalia:
1. Not only have we never held, outside the context of inventory
search or administrative inspection, that an officer’s motive
invalidates objectively justifiable behavior under the 4th
amendment; but we have repeatedly held and asserted the contrary.
We have flatly dismissed the idea that an ulterior motive might
serve to strip the agents of their legal justification. A trafficviolation arrest would not be rendered invalid by the fact that it
was a mere pretext for a narcotics search, and that a lawful post
arrest search of the person would not be rendered invalid by the
fact that it was not motivated by the officer-safety concern that
justifies such searches.
2. Subjective intent alone does not make otherwise lawful conduct
illegal or unconstitutional. The fact that the officer does not have
the state of mind which is hypothecated by the reasons which
provide the legal justification for the officer’s action does not
invalidate the action taken as long as the circumstances, viewed
objectively, justify that action.
3. The Constitutional basis for objecting to intentionally
discriminatory application of laws is the Equal Protection Clause,
not the 4th amendment. Subjective intentions play no tole in
ordinary, probable-cause 4th amendment analysis.
 Jones Says: Reasonableness is an objective good faith manner under the
4th amendment. The P was acting for the subjective motivation of the
police officer. But 4th amendment only requires an objective good faith
manner.
III. The Rise and Fall of Boyd
 US v. Boyd: Several cases of plate glass were confiscated from the defendants by
federal customs agents due to suspicion that certain documents had been falsified
for the purposes of avoiding customs fees or duties. During the course of the
proceedings, the defendants were ordered by the judge to produce documents
showing the quantity and value of the shipments. The defendants protested under
the theory that they could not be compelled to produce evidence against
themselves, but the motion was overruled and judgment was entered for the
government. Issue: Whether a compulsory production of a person’s private papers
to be used in evidence against him in a judicial proceeding is an unreasonable
search and seizure within the meaning of the Fourth/Fifth Amendment of the
Constitution?
 Rule: The Fourth Amendment of the United States Constitution
(”Constitution”) protects against the invasion into a person’s private
matters and will not allow the government to compel a person to
produce private papers through subpoena. Fifth amendment gives right
not to provide evidence against you.
 Holding: There need not be a physical invasion of one’s home to
constitute a violation of the Fourth Amendment protection against
unreasonable search and seizure. The Fourth Amendment of the
Constitution protects against the invasion into a person’s private matters.
This extends to the compulsory production of a person’s papers.
Government is extorting evidence and not just requesting it.
 Concurrence. Justice Samuel F. Miller (”J. Miller”) would have held
that this was a violation of the Fifth Amendment of the Constitution
rather than the Fourth Amendment of the Constitution because, J. Miller
argues, this is a criminal proceeding according to the language of the
Fifth Amendment of the Constitution.
 Discussion: This opinion stands for the proposition that the Fourth and
Fifth Amendments of the Constitution should be more liberally
construed
 Notes:
1. Property, privacy, general warrants, papers, mere evidence
2. Reasonableness is applied to scope of the governments power.
3. 5th amendment places substantive limits on the power of the
government.
4. Viable zone of autonomy: private space;
5. “Governments need for evidence is subordinate to Privacy”
 Schmerber v. California: Petitioner Schmerber was convicted of DWI of alcohol
based on a chemical analysis that revealed his intoxication. The blood was taken
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at the direction of a police officer at the hospital where the petitioner had been
taken following an accident, over the petitioner’s refusal.
 Issue: Whether blood taken despite a suspect’s refusal “and the
admission of the analysis in evidence denied him his privilege against
self-incrimination under the Fifth Amendment.”
 Rule: The Fifth Amendment privilege against self-incrimination
“protects an accused only from being compelled to testify against
himself, or otherwise provide the State with evidence of a testimonial or
communicative nature, and that the withdrawal of blood and use of . . .
analysis . . . did not involve compulsion.
 Holding: No. The Supreme Court based its finding on precedent. While
acknowledging that the State “compelled [petitioner] to submit to an
attempt to discover evidence that might used to prosecute him,” it did no
mean that he had been compelled “to be a witness against himself.” The
Court concluded that the privilege is “a bar against compelling
‘communications’ or ‘testimony,’ but that compulsion which makes a
suspect or accused the source of ‘real or physical evidence’ does not
violate it.” The Court also listed fingerprints, photographs,
measurements, writing or speaking samples, and the like as not being
privileged. Dissent: The dissent argued that the blood sample was “so
that a person who analyzed it could give evidence to convict him had
both a ‘testimonial’ and a ‘communicative nature.
 Discussion: “Since the blood test evidence . . . was neither petitioner’s
testimony nor evidence relation to some communicative act or writing
by the petitioner, it was not inadmissible on privilege grounds.”
1. No substantive limit on what the government can get.
2. Textual interpretation/formalism: when court wants to give narrow
ruling it focuses on specific words.
3. Normative approach: what our ideal, tradition, history, and
precedent? Broad rulings.
4. What’s happening is that the intimate connection between the 4th
and 5th amendment has been broken.
5. New model formed “Katz Approach”: is there a search? If there is,
is there a warrant? If there is a warrant, there must be probable
cause!
6. 4th amendment cases: is the search reasonable?!
7. Right to gather evidence deals enters into your own privacy and
bodily integrity.
Warden v. Hayden: Defendant Hayden was arrested in his home after a robbery.
The robber had been followed by two cab drivers to the residence. Their
dispatcher notified the police, who arrived in short order and were permitted to
enter by Mrs. Hayden, the defendant’s wife. As they searched the house, police
found weapons, ammunition, and clothing that the robber was described as
wearing. The police had no search warrant.
 Issue: “[Whether] there is under the Fourth Amendment a ‘distinction
between merely evidentiary materials, which may not be seized either
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under the authority of a search warrant or during the course of a search
incident to arrest, and those objects which may validly be seized
including the instrumentalities and means by which a crime is
committed, the fruits of crime such as stolen property, weapons by
which escape of the person arrested might be effected, and property the
possession of which is a crime.’
Rule: “‘The exigencies of the situation,’ in which the officers were in
pursuit of a suspected armed felon in the house which he had entered
only minutes before they arrived, permitted their warrantless entry and
search” and “the distinction prohibiting seizure of items of only
evidential value and allowing seizure of instrumentalities, fruits, or
contraband is no longer accepted as being required by the Fourth
Amendment.”
Brennan Holding: No. First, the court made clear that the search
without warrant was valid as “the exigencies of the situation made that
course imperative.” Under the circumstances “speed . . . was essential,
and only a thorough search of the house for persons and weapons could
have insured that [the defendant] was the only man present and that the
police had control of all weapons which could be used against them or to
effect [sic] an escape.” Second, the court reject the distinction
between items of evidential value and those that include contraband,
fruits of a crime, etc. “as based on premises no longer accepted as
rules governing the application of the Fourth Amendment.” This
reasoning is premised on the fact at “[o]n its face, the provision
assures the ‘right of the people to be secure in their persons, houses,
papers, and effects . . .,’ without regard to the use to which any of
these things are applied.” Moreover, the transitive nature of property
rendered such a distinction meaningless and “irrational” as “depending
on the circumstances, the same ‘papers and effects” may be “mere
evidence” in one case and “instrumentality’ in another.”
Dissent. J. Douglas premised his dissent on historical precedent and a
strict reading of the Constitution, concluding that the “constitutional
philosophy is . . . clear. The personal effects and possessions of the
individual (all contraband and the like excepted) are sacrosanct from
prying eyes, from the long arm of the law, from any rummaging by
police.”
Concurrence. J. Black concurred, but did not write and opinion. J.
Fortas, joined by the Chief Justice, agreed with the result, but did not
agree with the court’s “repudiation” of the “mere evidence” distinction.
Given the nature of exceptions to the Fourth Amendment, an
unwarranted search “is justified [by] . . .’hot pursuit,’” but that scope
“does not include permission to search the entire building in which the
arrest occurs, or to rummage through locked drawers and closets, or to
search at another time or place.”
Discussion: “The Fourth Amendment allows intrusions upon privacy
under [specific] circumstances, and there is no viable reason to
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distinguish intrusions to secure ‘mere evidence’ from intrusions to
secure fruits, instrumentalities, or contraband.”
1. Where is privacy protected now? Arguably 1st and 5th
amendment. Only a procedural gloss is left in the 4th
amendment.
2. Is Boyd dead? For the most part probably yes
Fisher v. United States: Two taxpayers, Mr. Kasmir and Mr. Fisher (taxpayers)
were visited by two Internal Revenue Service (IRS) agents and interviewed in
connection with two separate investigations into possible violations of federal tax
laws; following the interviews, each taxpayer obtained documents from his
accountant and turned the documents over to his attorney. When the IRS issued
summonses seeking the documents, the attorneys refused to comply, after which a
District Court ordered the summonses enforced in each case. When two different
Courts of Appeals came to different conclusions about whether the summonses
should be enforced, the United States Supreme Court granted certiorari here to
decide the issue and resolve the Circuit Court conflict.
 When the Internal Revenue Service, during the course of a tax
investigation, serves summonses on taxpayers’ attorneys commanding
the attorneys to produce documents given to the attorneys by their
clients and concerning the taxpayers’ accounting, are the Fifth
Amendment rights against self-incrimination of the taxpayers violated?
 A subpoena, served on the attorney of a taxpayer by the IRS, which
commands the attorney to produce documents prepared by the
taxpayer’s accountant and given to the attorney by the taxpayer, does not
violate the taxpayer’s Fifth Amendment right against self-incrimination,
as the production of the documents does not compel oral testimony nor
does it compel the taxpayer to affirm the authenticity of the documents
sought.
 The Court first pointed out that, “The Court has held repeatedly that the
Fifth Amendment is limited to prohibiting the use of ‘physical or moral
compulsion’ exerted on the person asserting the privilege.” (citations
omitted).
 The Court then cited its decision in Couch v. United States, 409 U.S.
322 (1973), in which it was held that, “the Fifth Amendment rights of a
taxpayer were not violated by the enforcement of a documentary
summons directed to her accountant and requiring production of the
taxpayer’s own records in the possession of the accountant.”
 The Court then applied the decision in Couch to the present case,
writing: Here, the taxpayers are compelled to do no more than was the
taxpayer in Couch. The taxpayers’ Fifth Amendment privilege is
therefore not violated by enforcement of the summonses directed toward
their attorneys. This is true whether or not the Amendment would have
barred a subpoena directing the taxpayer to produce the documents
while they were in his hands.
 The Court also supported its holding through an examination of the
language of the Fifth Amendment, stating: A subpoena served on a
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taxpayer requiring him to produce an accountant’s workpapers in his
possession without doubt involves substantial compulsion. But it does
not compel oral testimony; nor would it ordinarily compel the taxpayer
to restate, repeat, or affirm the truth of the contents of the documents
sought. Therefore, the Fifth Amendment would not be violated by the
fact alone that the papers on their face might incriminate the taxpayer,
for the privilege protects a person only against being incriminated by his
own compelled testimonial communications.
 The Court concluded that since, “surely it is not illegal to seek
accounting help in connection with one’s tax returns or for the
accountant to prepare workpapers and deliver them to the taxpayer . . .
we are quite unprepared to hold that either the fact of existence of the
papers or of their possession by the taxpayer poses any realistic threat of
incrimination to the taxpayer.”
Andresen v. Maryland: State authorities obtained search warrants to search the
defendant, Andreson’s (the “defendant”) law office, for papers evidencing a
fraudulent sale of land
 Does the Fifth Amendment’s protection against self-incrimination apply
to incriminating papers which have been seized by law enforcement and
have been subsequently admitted into evidence at trial?
 The Fifth Amendment’s protections against self-incrimination do not
apply to information obtained from papers or other documents which are
properly seized
 The Fifth Amendment’s protections against self-incrimination protects
individuals from complying with a subpoena for the production of
incriminating evidence, however, it does not prevent the same materials
from being properly seized by law enforcement and subsequently being
admitted at trial.
 Dissent. Search and seizure includes elements of compulsion which
constitute part of the essence of the Fifth Amendment. The forcible
compulsion of both a person’s private papers and testimony are within
the protection of the Fifth Amendment.
 The lawful seizure of a person’s business records, or other documents
which contain incriminating information, does not undermine the
protections of the Fifth Amendment. Compelled self-incriminating
testimony is protected by the Fifth Amendment.
 Justice Holmes: “ a party is privileged from producing the evidence but
not from producing the evidence but not from its production.
United States v. Hubbell: The defendant, after pleading guilty to crimes arising
out of his involvement with the Whitewater scandal, entered into a plea agreement
with the Independent Counsel in which he agreed to provide full and accurate
information regarding those matters. While incarcerated, the defendant responded
to a subpoena duces tecum (court summons to appear and product tangible
evidence) and appeared before a grand jury, where he promptly asserted his Fifth
Amendment constitutional right not to incriminate himself. The Independent
Counsel produced an order obtained pursuant to 18 U.S.C. Section:6002 granting
the defendant immunity “to the extent allowed by law,” but thereafter used the
documents that the defendant then produced before a Grand Jury to obtain a 10count indictment against him. The District Court dismissed the indictment on the
grounds that it violated 18 U.S.C. Section:6002. The Court of Appeals vacated the
judgment and remanded the case for further proceedings to determine whether the
Independent Counsel knew, with reasonable particularity, that the documents it
sought existed prior to their production by the defendant.
 Issue: Does the Fifth Amendment privilege against self-incrimination
protect a witness from being compelled to disclose the existence of
incriminating documents that the Government is unable to describe with
reasonable particularity? If the witness produces such documents,
pursuant to a grant of immunity, may the Government use them to
prepare criminal charges against him?
 Rule: The 5th amendment privilege against compelled self incrimination
protects a witness from being compelled to disclose the existence of
incriminating documents that the government is unable to describe with
REASONABLE PARTICULARITY; Where the witness produces such
documents pursuant to a grant of immunity, 18 USC §6002 prevents the
government from using them to prepare criminal charges against the
witness.
 Holding: opinion delivered by Justice John Paul Stevens, the Court, in
order to determine the precise scope of a grant of immunity with respect
to the production of documents in response to a subpoena, held that a
person responding to subpoena, pursuant to a court order granting
immunity, could not be prosecuted on the basis of information in the
documents produced if the government did not have any prior,
independent knowledge of the documents. Thus, the indictment against
Hubbell was dismissed because it was not derived from sources
independent of documents produced under his grant of immunity.
Justice Stevens wrote for the Court, "we have no doubt that the
constitutional privilege against self-incrimination protects the target of a
grand jury investigation from being compelled to answer questions
designed to elicit information about the existence of sources of
potentially incriminating evidence." Chief Justice William H. Rehnquist
was the lone dissenter.
 Concurrence. In analyzing the meaning of the Fifth Amendment of the
United States Constitution (”Constitution”) at the time of the founding,
Justice Clarence Thomas (”J. Thomas”) found historical evidence for the
proposition that the privilege against self incrimination applied to the
production of all incriminating evidence, not just to the production of
incriminating testimony, based on the old definition of a witness as
someone who produced evidence, not just someone who testified in
open court.
 *Where act of production involves a COGNITIVE (thinking) process the
government cannot compel you to help them other than to provide
something that they already knew i.e. government cant get you to
produce the code of a safe but if they know where the key is they can get
you to produce it.
IV. THE MEANING OF THE FOURTH AMENDMENT
 4th amendment plays two roles:
 “protecting privacy” law’s chief source of privacy protection. Extends to
all invasions on the part of the government and its employees of the
sancity of a mans home and the privacies of life.
 “limiting police power” 4th amendment law plays concerns not the
interest being protected rather the actors being regulated. Applies to all
government actors but is almost always enfored against police oficers
 Two important questions to ponder:
 Whether the law regulates wisely
 Whether privacy is adequately protected without disabling the police
from guarding the public safely.
 Exclusionary rule:
 Seeks to suppress incriminating evidence.
 Mapp v. Ohio (Exclusionary rule): Police officers sought a bombing suspect and
evidence of the bombing at the petitioner (defendant), Miss Mapp’s (the
“petitioner”) house. After failing to gain entry on an initial visit, the officers
returned with what purported to be a search warrant, forcibly entered the
residence, and conducted a search in which obscene materials were discovered.
The petitioner was tried and convicted for these materials.
 Did the First Amendment protect the confiscated materials? May
evidence obtained through a search in violation of the Fourth
Amendment be admitted in a state criminal proceeding?
 All evidence discovered as a result of a search and seizure conducted in
violation of the Fourth Amendment of the United States Constitution
(”Constitution”) shall be inadmissible in State court proceedings.
 Clark.J Majority: the evidence obtained through unreasonable searches
and seizures that violate the fourth amendment is inadmissible in court.
In Wolf v. Colorado, the court held that while the fourth amendment
applies to the states through the fourteenth amendment, the exclusionary
rule set forth in Weeks v. US does not. The Wolf court reasoned that the
right to have relevant evidence excluded at trial is not an essential
element of the right to be free from unreasonable searches and seizures.
Without applying the Weeks exclusionary rule to state violations of the
fourth amendment, Wolf leaves no remedy for the constitutional
violation and states are free to violate the Fourth amendment rights of
citizens without any meaningful consequences. Wolf v. Colorado is
OVERRULED! Reversed and remanded.
1. Rights and Remedies are insoluble i.e. they run together.
2. Theory of Justice
 Concurrence Black, J: Nothing in the fourth amendment specifically or
implicitly requires that the evidence obtained through unreasonable
searches and seizures be excluded from trial. To reach that conclusion,
the fourth and fifth amendment must be read together. Reading these

two together, a state may not commit unreasonable searches and seizures
under the fourth amendment and the fifth amendment requires
incriminating evidence obtained in violation of Fourth Amendment to be
excluded at trial. In cases such as this, there is no substantial difference
between presenting evidence obtained in violation of the fourth
amendment and requiring a defendant to testify against herself at trial.
 Dissent Harlan, J: the majority has exceeded its authority in overruling
Wolf. While the exclusionary rule was raised as a minor contention on
appeal, the focus of the appeal was on the merits—whether the ohio law
criminalizing mere possession of obscene material violates the first
amendment as applied by the fourteenth amendment to the states. In
overruling Wolf, the majority avoided this primary issue, violating the
principles of stare decsis. Aside from this, the fourth amendment does
not require exclusion of relevant evidence against a defendant in a state
proceeding. The fourteenth amendment, through which the majority
enforces the fourth amendment, requires that all D’s receive due process
of the law. The exclusionary rule, which is primary procedural in nature,
is but one means of ensuring due process. Federalism requires that the
states be free to utilize any procedural mechanism that preserves their
citizens due process rights in state court proceedings.
 Analysis: while several justifications have been offered for application of
the exclusionary rule in state court proceedings, the reasoning that has
continued to gain judicial approval is the deterrence against future fourth
amendment violations. As stated by the majority, there is little value in
holding that the constitution requires the states to refrain from
unreasonable searches and seizures if evidence obtained by those
constitutional violations may nonetheless be used as if no violation
occurred. The deterrence rational serves to prevent future constitutional
violations rather than remedy those that have already occurred.
Katz v. US (“meaning of searches”; Relationship between privacy and property; What
is a reasonable search? One where there is a warrant): Petitioner’s phone conversation
was tapped and the evidence there from was entered in court against him. FBI agents
attached an electronic listening device to the outside of the telephone booth to listen to
the petitioner transmitting illegal gambling info.
i. Does the Fourth Amendment protection against unreasonable searches and
seizures require the police to obtain a search warrant in order to wiretap a
public pay phone?
ii. Majority:
 The 4th can’t be translated into a general constitutional right to
privacy. It protects individual privacy against certain kinds of
governmental intrusion, but its protections go no further, and often
have nothing to do with privacy at all. Other provisions of the
Constitution protect personal privacy from other forms of
governmental intrusion. But the protection of a person’s general
right to privacy is largely left to the states.

The court goes on to say that the 4th “protects people, not places.
What a person knowingly exposes to the public, even in his own
home or office, is not a subject of 4th Amendment protection.”
 Also recognizes that since Olmstead, the Court has moved away
from the basis on which that decision rested, i.e. property rights,
but instead has held that the 4th governs not only the seizures of
tangible items, but extends as well to the recordings of oral
statements overheard without any technical trespass under local
property law. Once this is clear, and it is recognized that the 4th
protects people – and not simply areas – against unreasonable
searches and seizures, it becomes clear that the reach of the 4th
cannot depend on the presence or absence of a physical intrusion
onto any given enclosure.
 The government’s activities in electronically listening to and
recording the petitioner’s words violated the privacy upon which
he justifiably relied while using the telephone booth and thus
constituted a “search and seizure” within the meaning of the 4th.
The fact that the electronic device employed to achieve that end
did not happen to penetrate the wall of the booth can have no
significance.
 Exceptions to warrant: exigent circumstances (Schmerber);
iii. Concurrence (Harlan) (this is what gets cited from this case):
 So, the 4th protects people and not places, but Harlan asks what
does that mean? He sees it as a twofold requirement, first that a
person have exhibited an actual (subjective) expectation of privacy
and, second that the expectation can be one that society is prepared
to recognize as reasonable.
It is not enough for the target to believe that he acting in private;
that belief must be deemed reasonable.
 Now the 4th only has to do with privacy and its protections go no
further.
 Thus, a man’s home is, for most purposes, a place where he
expects privacy, but objects, activities, or statements that he
exposes to the plain view of outsiders are not protected because no
intention to keep them to himself has been exhibited. On the other
hand, conversations in the open would not be protected against
being overheard, for the expectation of privacy under the
circumstances would be unreasonable.
What a person knowingly exposes to the public, even in his own
home or office, is not subject to the 4th amendment; protection is
afforded only for what he seekds to preserve as private.
 In the case of the telephone booth, the petitioner exhibited such an
expectation of privacy and shutting the door behind him, the fact
that others can use the booth at other times is irrelevant.
iv. Dissent (Black):


The 4th says nothing about privacy and does not prevent the
government from eavesdropping. This is a literal approach taken
by Black. Further, he says that since wiretapping phone
conversations is just a high tech form of eavesdropping, there is
nothing which prevents the government from using such measures.
 Black goes on to say that the 4th applies to tangible things already
in existence when the warrant is issued, but that the majority would
have it apply to future conversations which by definition do not yet
exist; how can a warrant particularly describe that? He concludes
that the 4th does not apply in such a case.
 Also, Black mentions that the Framers were aware of
eavesdropping when they wrote the Constitution and that they
would have used the appropriate language if they intended for the
government to be forbidden from eavesdropping.
 Many SCOTUS opinions dealing with the 4th use a two-step
process: (1) whether the Constitution applies and (2) whether it
was violated. If the Constitution applies and it was violated, there
is a third step, which is what remedy is due to the person whose
rights were violated?
United States v. White: White (D) was convicted of drug charges based on the testimony
of government agents who overheard incriminating conversations between the defendant
and an informant by way of a listening device carried by the informant. Jackson i.e.
white’s friend consented to putting the listening device in the home.
i. A defendant bears the risk that communications with another will be
transmitted, electronically or otherwise to government agents.
ii. Does the fourth amendment bar testimony from government agents who
overhead conversations between a D and a government informant who
was wearing a listening device on his person?
iii. (J.White) No. Criminal defendants bear the risk that communications with
others will be transmitted, electronically or otherwise, to government
agents. Although Katz protects individuals from search and seizure when
they maintain a justifiable expectation of privacy. D had no such
expectation. One who discusses criminal activities with another can have
no justifiable expectation that the conversations will not be reported to the
police. The fact that the police may overhear the conversations through a
listening device carried by an informant does not affect this expectation.
Whether the individual speaks directly to an undercover agent, the
informant later reveals the conversation to the police or the informant
relays the conversation through a listening device, a D bears the risk that
his or her privacy will be breached. The expectation of privacy is not
justifiable. Reversed.
iv. (J.Douglas) Dissent: Permitting the use of electronic surveillance as
means of eavesdropping endangers the fundamental privacy interests
afforded by the 4th amendment. By allowing the government to listen and
record the conversations of an unknown defendant the majority empowers

the government to penetrate all the walls and doors which men need to
shield them from the pressures of a turbulent life.
v. (Harlan) Dissent: The courts’ holding affords law enforcement too much
power and invades the protection of the 4th amendment. The admission of
evidence obtained through electronic surveillance in every case overly
burdens citizens expectations of privacy under the fourth amendment.
When as here, the agent utilize a listening device solely with the consent
of an informant, the free exchange of information underlying the liberties
afforded by the fourth amendment is restricted. Courts should not rely
exclusively on the self restraint of law enforcement officers in deciding
whether electronic surveillance will be used, but should first require a
warrant so that the government must justify the need to employ such
surveillance, rather than placing the risk on society.
vi. Analysis: the courts opinion focuses on the defendants risk that the person
to whom he communicates is or may be betraying him to the government.
In Katz, this case is distinguished because the government agents acted
unilaterally in listening to the conversation, without assistance from the
parties to the conversation. Here, however the informant consented to the
governments actions. While no warrant was obtained in either instance,
the cooperation of one of the parties to the conversations relieves the 4th
amendment concerns. NOTE, that the court places some emphasis on the
second prong of the analysis set forth in Harlan,J.’s concurrence in Katz.
While the defendant here had a subjective expectation of privacy, his
expectation was considered objectively unreasonable.
California v. Greenwood: Police with the Laguna Beach Police Department received
information that the respondent might be trafficking narcotics. The police asked the
regular trash collector to gather the respondent’s trash and keep it separate from the other
trash in the neighborhood, so that it might be examined for evidence of narcotics
trafficking. Evidence was found in the garbage, and a search warrant was issued to search
the respondent’s house based upon that evidence. Police searched the respondent’s house
and arrested him after discovering narcotics. Respondent posted bail. The police
continued to receive reports of narcotics trafficking at the respondent’s house. A second
search of the respondent’s trash was conducted and again a search warrant was issued in
which more narcotics were found in the house. The respondent was again arrested.
i. Procedure:The Superior Court dismissed the charges stating that
warrantless searches of trash violated the Fourth Amendment and the
California Constitution. The Court of Appeals affirmed, and the California
Supreme Court denied the State’s petition for review. Certiorari was
granted.
ii. Issue: when you put trash out on the street for pick-up, do you still have
an expectation of privacy with regards to the contents of that trash bag? If
respondents manifested a subjective expectation of privacy in their
garbage that society accepts as objectively reasonable, then the search
would have violated the 4th.
iii. An expectation of privacy does not give rise to 4th amendment protection,
however, unless society is prepared to accept that expectation as
objectively reasonable.
iv. Majority White (anti-Katz): The respondents in this case exposed their
garbage to the public sufficiently to defeat their claim to 4th amendment
protection.
 It is common knowledge that plastic garbage bags left on or at the side of
a public street are readily accessible to children, animals, scavengers,
snoops and other members of the public. Moreover, respondents placed
their garbage on the curb for the express purpose of conveying it to a third
party, the trash collector, who might himself have sorted through
respondent’s trash or permitted others, such as the police to do so.
Accordingly, having deposited their garbage in an area particularly suited
for public inspection and, in a manner of speaking, public consumption,
for the express purpose of having strangers take it, respondents could have
no reasonable expectation of privacy in the inculpatory items they
discarded. What a person knowingly exposes to the public, even in his own
home or office, is not a subject of 4th amendment protection.
 The court cites Smith v. Maryland, where the police did not violate the 4th
by causing a pen registry to be installed at the phone company’s offices to
record the telephone numbers dialed by a suspected criminal. The court
there reasoned that an individual has no legitimate expectation of privacy
in the numbers dialed on his telephone because he voluntarily conveys
those numbers to the telephone company when he uses the phone. A
person has no legitimate expectation of privacy in information he
voluntarily turns over to third parties.
 The court carefully avoids basing its decision on the premise that the trash
is abandoned property, “whether he retained a subjective expectation of
privacy in his trash bag that society accepts as reasonable” is the
question. They do this to make sure that they do not rely on notions of
property as the basis for their decision.
o Dissent Brennan (Regulatory approach i.e. impact on society): Respondents
deserve no less protection just because they decided to discard them. Discarding
your belongings does not lessen your expectation of privacy in those items. This is
especially the case where local laws compel you to discard of your trash in this
manner. Besides, it is well known that there are many very personal items in
someone’s trash bags. Going through someone’s trash can tell you a lot about
that person’s personal life, making it normal for people to have an expectation of
privacy in their trash.
 The mere possibility that unwelcome meddlers might open and rummage
through trash does not negate the expectation of privacy in their contents
any more than the possibility of burglary negates en expectation of privacy
in the home; or the possibility of a private intrusion negates an expectation
of privacy in an unopened; or the possibility that an operator will listen in
on a telephone conversation negates an expectation of privacy in the
words spoken on the phone.


You put the trash out for the express purpose that someone will
take it, you never have a purpose of getting burglarized. But
Brennan is addressing the possibility that someone might go
through your trash. If there was a local law making it a crime
would that provide for an expectation of privacy in your trash
that the Court would consider legitimate? If there was, what
would be the arguments for and against a privacy interest in trash
placed outside the home?
 The voluntary relinquishment of possession or control over an effect does
not necessarily amount to a relinquishment of a privacy expectation in it.
United States v. Karo: A government informant told the DEA that Respondents Karo,
Horton and Harley had ordered 50 gallons of ether to be used to extract cocaine from
clothing imported into the U.S. With the informant’s consent, they placed a can
containing a beeper in one of the cans of the shipment. The DEA saw Respondent Karo
pick up the ether shipment and observed the shipment moving to various places until it
reached the home of another respondent, Steele. Agents used the beeper information in
obtaining a warrant to search the house where cocaine was seized, resulting in
indictments for various offenses for the Respondents. The New Mexico District Court
granted the pretrial motion to suppress the evidence on grounds that the warrant was
invalid and that the seizure was the tainted fruit of the unauthorized installation of the
beeper. The Tenth Circuit Court of Appeals affirmed except as to the monitoring of the
beeper in the private dwellings and storage lockers. The Government was then granted
certiorari.
 Issue: Whether the monitoring of a beeper which is placed inside a
container (which is being used to indicate the location of illegal drugs) in a
private residence, a location not open to visual surveillance, violates the
4th amendment of those who have a justifiable interest in the privacy of the
residence? We think it does.
 Searches and seizures inside a home without a warrant are presumptively
unreasonable absent exigent circumstances. Where, without a warrant, the
government surreptitiously employs an electronic device to obtain
information that it could not have obtained by observation from outside
the curtilage of the house, an unreasonable search has been conducted.
 Held that police could monitor you with use of a beeper when you could
be moitored via the naked eye but once you enter the home the beeper acts
as a seizure. Held that it was okay to locate the ether via the beeper but the
fact that it was illegal to monitor once in the home that fact could be
severed from the rest of the issue, thus beeper tracking was legal.
o Majority White: The existence of the physical trespass, by placing the beeper in
the container, is not by itself a seizure. The intrusion was too mild to be a seizure.
However, if this was a seizure, it would follow that the occupation of space alone
violated the amendment.
 Even though a beeper is less intrusive than a full-scale search, it does
reveal a critical fact about the interior of the premises that the Government
is extremely interested in knowing and that it could not have otherwise
obtained without a warrant. In this case, the beeper verified that the beeper
was in the house, which was a fact that could not have been visually
verified. Indiscriminate monitoring of property that has been withdrawn
from public view would present far too serious a threat to privacy interests
in the home to escape entirely some sort of 4th amendment oversight.
 We also reject the Government’s contention that it should be able to
monitor beepers in private residences without a warrant if there is requisite
justification in the facts for believing that a crime is being committed and
that monitoring the beeper wherever it goes is likely to produce evidence
of criminal activity. Requiring a warrant will have the salutary effect of
ensuring that use of beepers is not abused, by imposing upon agents the
requirement that they demonstrate in advance their justification for the
desired search. This is not to say that there are no exceptions to the
warrant rule, because it truly exigent circumstances exist no warrant is
required under 4th amendment principles.
 We are also unpersuaded that no warrant should be required because it is
hard to satisfy the particularity requirement when you attached a beeper to
something to monitor it. Even though it is hard to guess where the beeper
will be taken, it is still possible to describe the object into which the
beeper is to be placed, the circumstances that led agents to wish to install
the beeper, and the length of time for which beeper surveillance is
requested. In our view, this information will suffice to permit issuance of a
warrant authorizing beeper installation and surveillance.
o Concurrence in part and in the result by O’Connor, Rehnquist: Because,
according to U.S. v. White, the mere presence of electronic equipment inside a
home, transmitting info to government agents outside, does not, in and of itself,
infringe on legitimate privacy expectations of all who have a privacy interest in
the home, we have to look further before we conclude that monitoring of a beeper
in a home violated the homeowner’s reasonable expectation of privacy. If consent
is given, movement of the container into the home violates no reasonable
expectation of privacy of the homeowner. If the container owner’s consent is not
obtained, the Court holds that the homeowner’s expectations of privacy in the
home are violated when the beeper comes in and monitors from inside the home,
even if the homeowner has no expectation of privacy in the container. The
Concurrence disagrees with this. They would use as the touchstone the
defendant’s interest in the container in which the beeper was placed. When a
closed container is moved by permission into a home, the homeowner and others
with an expectation of privacy in the home itself surrender any expectation of
privacy they might otherwise retain in the movements of the container – unless it
is their container or under their dominion and control. In sum, a person’s right not
to have a container tracked by means of a beeper depends both on his power to
prevent visual observation of the container and on his power to control its
location, a power that can usually be inferred from a privacy interest in the
container itself. On who lacks either power has no legitimate expectation of
privacy in the movements of the container.
 Stevens Dissenting/Concurring with Brennan, Marshall: The Court
correctly concludes that when beeper surveillance reveals the location of

property that has been concealed from public view, it constitutes a search
within the meaning of the 4th amendment (Stevens/White agree on this).
 Analysis: The Karo Court distinguished Knotts, which held that when the
police monitored an electronic tracking device attached to an automobile
and monitored it on public roads, no 4th amendment violation occurred
because the movements of the car could have been observed by the naked
eye. This did not violated any 4th amendment right even though the cops
lost the car when they were following it and then used the device to find it
again because it was on the public road the whole time, i.e. they could
have seen it without any assistance.
 Where the device is in general use and available to the public merely
enhances sensory perception and facilitates surveillance that otherwise
would be possible without the enhancement, the 4th amendment is not
implicated. Such devices include flashlight, an aerial camera, photo/video,
a drug detection dog, and field tests for narcotics. Similarly when the
police monitored an electronic tracking device attached to an automobile
and monitored it on the public roads, no 4th amendment right was
infringed because the movements of the car could have been observed by
the naked eye. U.S. v. Knotts. When, however, the police continued to
monitor a beeper installed in a container after it was taken into a home, the
constraints of the 4th applied because the device revealed information that
could not have been obtained through unaided surveillance. U.S. v. Karo.
 Again, the physical setting in which en enhancement device is used plays
an important role in determining whether the subject’s reasonable
expectation of privacy has been violated. Surveillance into the home is
most likely to trigger the 4th’s protections. This while use of a drug
detection dog to sniff luggage at a public airport does not trigger the 4th,
U.S. v. Place, placing the dog nest to someone’s house to determine the
presence of drugs within the homes has been held to bring the amendment
into play. The last exampled being similar to Kyllo v. U.S.
Kyllo v. United States: Upon suspicion that the defendant was growing marijuana in his
home, police used a thermal-imaging device to detect heat radiating from the defendant’s
home. With this information, police obtained a search warrant for the home.
o Majority by Scalia (outcome determinative/ Bright line ruling i.e. protecting the
individuals/ upholds Katz Model):
 All details inside the home are intimate and protected under the 4th unless
they are exposed to the public.
 Emphasizing the firm line at the entrance to the house, the majority held
that when the Government employs 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
presumptively unreasonable without a warrant.
 Look back to Brennan’s dissent in Florida v. Riley (airplane overflight
case) where Brennan invoked his fears of an Orwellian Big Brother
society; this holding might suggest that more justices now share that view
and want to prevent police power from growing to the extent where such

police conduct is the norm. Nonetheless, Florida v. Riley is
distinguishable because there the contraband items were viewable from a
vantage point which was open to the general public without the use of
electronic devices.
o Stevens, Dissenting: Questioned the workability of the majority’s rule,
particularly given the difficult of determining in our technological age whether a
sense-enhancing device has come into general public use. Further, the majority’s
standard is likely only to allow the threat to privacy in the home to grow, rather
than recede, as the use of intrusive equipment becomes more readily available.
Further, according to Stevens, this is not a search because the information they
received was from outside of the home, the senses picked up were heat waves
which were emanating from the home, i.e. there was no search going into the
home. When the stuff is emanating from the home, the fact that the Government is
using gadgets to perceive it will not turn it into a search.
 SCOTUS used to profess that warrants reassures the person whose
property was being searched and seized of the officer’s authority to search
and of limits of that authority. (Gates, Chadwick, Camara). More recently,
the Court has held that warrants are not meant to provide such notice. In
Groh v. Ramirez, Stevens’ majority opinion noted that the 4th amendment
does not require law enforcement to “serve notice on the owner before
commencing the search.”
Sacramento v. Lewis: A police officer was responding to a fight when Respondent and
another failed to adhere to the police demand to stop. Instead of stopping, they
maneuvered between police cars and sped off. The officer chose to pursue Respondent
through a residential neighborhood at speeds of up to 100 mph. While trying to make a
sharp left turn, the motorcycle slid and both driver and passenger were thrown. The
cruiser avoided hitting the driver, but hit Respondent and threw him 70 feet. He was
pronounced dead at the scene.
o Government conduct that “shocks the conscience” and violates the “decencies of
civilized conduct” also violates the Fourteenth Amendment. In emergency
situations, the government is afforded greater leeway.
o The allegation here that Lewis was deprived of his right to life in violation of
substantive due process amounts to a such claim, that under the circumstances
described earlier, Smith's actions in causing Lewis's death were an abuse of
executive power so clearly unjustified by any legitimate objective of law
enforcement as to be barred by the Fourteenth Amendment
o Are the Fourteenth Amendment's substantive due process protection, or the
Fourth Amendment's guarantee against illegal seizure, violated by a police officer
who, in the course of pursuing a subject, causes their death through deliberate or
reckless indifference?
o No. In a unanimous decision the Court first ruled that the Fourth Amendment's
reasonableness standards prevented its illegal seizure protections from applying to
high-speed police chases. Such incidents are merely pursuits and do not constitute
actual seizures, especially if they fail due to the death of the subject. Moreover,
addressing the Fourteenth Amendment challenge, the Court held that Smith's
actions, while perhaps unwise, were not intended to injure or kill those pursued.
o
o
o
o
o
As such, the negligent infliction of harm during a police chase does not violate
due process since it is not an unexpectedly shocking or egregious result under the
circumstances.
Police pursuit has costs and benefits. Weighing these against each other is a task
better suited to other branches of government. Pursuits do result in some accidents
and a few deaths, but they also result in the capture of a large number of felons,
even though the felony status of the pursued person may not be apparent at the
time the pursuit is begun. Furthermore, the cost of a highly restrictive pursuit
policy would be a license to escape merely by driving recklessly. If pursuit policy
is to be driven by fear of lawsuits, that policy will be weighted toward minimizing
risks for which the agency can be sued, such as pursuits, while exposing the
public to greater risks for which it cannot, such as the felons and intoxicated
drivers who would otherwise have been caught.
The people and Legislature of California have already weighed the competing
interests and struck a reasonable balance. California law provides immunity for
the individual officer and a tort action, with some limitations, against government
entities for negligent operation of vehicles by their employees. Creation of a
federal tort for automobile accidents would shatter the balance achieved through
the democratic process.
Substantive due process does not have the inherent boundaries of Fourth and
Eighth Amendment claims. That is, it is not limited to seizures or to convicted
persons. A vague standard is therefore far more dangerous in this area than in the
others. Such a standard would chill the legitimate exercise of lawful police
powers in the vitally important area of public safety. This problem is best avoided
by limiting substantive due process claims to intentional deprivations.
Most substantive due process claims challenge a choice of substantive law made
by the legislative authority. In that context, the availability of state judicial
process cannot negate a violation. In the context of a "constitutional tort" suit,
however, state processes can and should be a factor in the equation. When the
state provides an adequate postdeprivation remedy, as California has in the
present case, it has provided the process due, and there is no constitutional
violation.
Like prison officials facing a riot, the police on an occasion calling for fast action
have obligations that tend to tug against each other. Their duty is to restore and
maintain lawful order, while not exacerbating disorder more than necessary to do
their jobs. They are supposed to act decisively and to show restraint at the same
moment, and their decisions have to be made "in haste, under pressure, and
frequently without the luxury of a second chance." A police officer deciding
whether to give chase must balance on one hand the need to stop a suspect and
show that flight from the law is no way to freedom, and, on the other, the highspeed threat to everyone within stopping range, be they suspects, their passengers,
other drivers, or bystanders.
 The fault claimed on Smith's part in this case accordingly fails to meet the
shocks-the-conscience test. . . . The . . . summary judgment proceedings
revealed that the height of the fault actually claimed was "conscious
disregard," the malice allegation having been made in aid of a request for
punitive damages, but unsupported either in allegations of specific conduct
or in any affidavit of fact offered on the motions for summary judgment.
The Court of Appeals understood the claim to be one of deliberate
indifference to Lewis's survival, which it treated as equivalent to one of
reckless disregard for life. We agree with this reading of respondents'
allegations, but consequently part company from the Court of Appeals,
which found them sufficient to state a substantive due process claim, and
from the District Court, which made the same assumption arguendo.
MEANING OF SEIZURES:

Florida v. Bostick (MEANING OF SEIZURES; Free to leave 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.
o “[N]o seizure occurs when police ask questions of an individual, ask to examine
the individual’s identification, and request consent to search his or her luggage –
so long as the officers do not convey a message that compliance with their
requests is required.”---reasonable person would feel they could terminate the
questioning.
o Uses the Free to Refuse Test: Do you have the right to refuse consent? If no than
a seizure has occurred.
o Rejecting bright line approach.
o Can officers approach individuals at random on buses to ask them questions and
to request consent to search their luggage so long as a reasonable person would
understand that he or she could refuse to cooperate?
o Majority By O’Connor:
 A bus passenger is not necessarily seized when confronted by officers
conducting a drug interdiction sweep.
 To determine whether someone is seized, the Court adopted an ad hoc
approach, “In order to determine whether a particular encounter
constitutes a seizure, a court must consider all the circumstances
surrounding the encounter to determine whether the police conduct
would have communicated to a reasonable person that the person was
not free to decline the officer’s request or otherwise terminate the
encounter.”
 How aggressive can police be? When will a reasonable person not
feel free to walk away? Whether the police have their guns drawn
is an important factor, however the fact that the police are armed is

not enough. Also, if a suspect is advised that he may refuse to
consent to a search or that he may refuse to talk to the police is
also sufficient. However, in Drayton, even though the suspect in a
bus was not advised of his right to refuse to consent, there was no
seizure because there were no threats, intimidation or show of
force and no blocked exits preventing the suspect from leaving the
bus.
 In this case, the court noted that the fact that the police told the subject that
he had the right to refuse their request leaned toward their conclusion that
the subject had not been seized. While failure to inform the subject of the
right to refuse is not itself fatal to the validity of the consent, the converse
fact that the police did so inform the subject is a strong factor pointing
toward the conclusion that the consent was voluntary.
 The 4th amendment permits police officers to approach bus passengers at
random to ask questions and to request their consent to searches, provided
a reasonable person would understand that he or she is free to refuse.
 Even though a bus rider’s movements are confined when he is in a bus,
that is the natural result of choosing to ride a bus and is not a result of
coercive conduct by the police officers.
 When a person has no desire to leave for reasons unrelated to the police
presence, the coercive effect of the encounter can be measured better by
asking whether a reasonable person would feel free to decline the officers’
requests or otherwise terminate the encounter. This is an objective inquiry.
 Factors: crammed space/ police demeanor/ badges out/ Consent
(voluntary?)
United States v. Drayton: Drayton consented involuntarily, he said- to being patted down
as part of an all-passenger search of the greyhound bus on which he was riding, and was
convicted of a drug offense based on evidence discovered during the pat down. Because
of the clothing he was wearing Drayton was chosen to be searched. Officers said that
Drayton consented to being searched by saying yes and lifting up his arms.
o Police officers do not violate the fourth amendment prohibition on unreasonable
seizures by approaching individuals in public places, questioning them, and
requesting consent to search, if they do not induce cooperation by coercive means
and a reasonable person would feel free to terminate the encounter.
o Did the bus passengers voluntarily consent to the patdowns by the police officer,
such that the searches of their person were constitutional and the evidence
therefrom was admissible?
o Court used Ad Hoc approach by looking at the totality of the circumstances.
o Majority By Kennedy:
 Even though the bus passenger in this case was not advised of his right to
refuse consent, because there were no threats, intimidation or show of
force, and no blocked exits, there was no seizure.
 A police officer does not always need to inform citizens of their rights to
refuse when seeking permission to conduct a warrantless consent search.
While knowledge of the right to refuse consent is one factor to be taken

into account, the government need not establish suck knowledge as the
sine qua non of an effective consent.
 Where police enter a bus and start asking questions they have not seized
the passengers as long as the police do not give off the impression that
they are required to answer the questions. The fact that an encounter takes
place on a bus does not conform standard police questioning into a
seizure.
 Dissent points out that what constitutes a restraint on liberty prompting a
person to conclude that he is not free to leave will vary, not only with the
particular police conduct at issue, but also with the setting in which the
conduct occurs. In this case, the passengers were on a bus and could not
leave without risking being left behind with their luggage still on board. In
this case, the Dissent says that the officers took control of the entire
passenger compartment, one stationed at the door, monitoring all the
occupants with the other officers working forward from the back.
United States v. Verdugo-Urquidez (WHO DOES THE 4th AMENDMENT APPLY
TO?): Rene Martin Verdugo-Urquidez was a citizen and resident of Mexico. In
cooperation with the Drug Enforcement Agency (DEA), Mexican police officers
apprehended and transported him to the U.S. border, where he was arrested for various
narcotics-related offenses. Following his arrest, a DEA agent sought authorization to
search Verdugo-Urquidez's residences for evidence. The Director General of the Mexican
Federal Judicial Police authorized the searches, but no search warrant from a U.S.
magistrate was ever received. At trial, the district court granted Verdugo-Urquidez's
motion to suppress the evidence on the ground that the search violated the Fourth
Amendment to the Federal Constitution.
o Does the Fourth Amendment apply to the search and seizure by United States
agents of property that is owned by a nonresident alien and located in a foreign
country?
o Sliding scale: if you are here in the US you can be protected but once you leave
you get no protection.
o Rehnquist Majority:
 No. The text of the Fourth Amendment concerns "the people," suggesting
a concern with persons who are part of the national community, as
contrasted with aliens without any substantial connection to the U.S.
Moreover, extraterritorial aliens are not even entitled to rights under the
Fifth Amendment, which speaks in the relatively more universal term of
"person." And non-"fundamental" rights are not even guaranteed to
inhabitants of unincorporated territories under U.S sovereign control,
much less aliens. Therefore, any restrictions on searches and seizures of
nonresident aliens and their foreign property must be imposed by the
political branches through diplomatic understanding, treaty or legislation.
 Narrow notion of what nexus is: restricts it to people who are
citizens or people close to being citizens
 Rooted in ideas of foreign policy/affairs
 Originalist: this is what framers intended.
 Status/Where you are become important.

Concurrence Kennedy: The government may act only as the Constitution
authorizes, whether the actions in question are foreign or domestic.
Question is what constitutional standards apply when the government acts
in reference to an alien within its sphere of foreign operations? If the
search would have occurred in a residence within the US, full protection
of the 4th amendment would apply. Here, the absence of local judges or
magistrates available to issue warrants, the differing and perhaps
unascertainable conceptions of reasonableness and privacy that prevail
abroad, and the need to cooperate with foreign officals all indicate that no
4th amendment’s warrant requirement should not apply in Mexico.
 Concurrence Stevens: Agrees that an alien lawfully present in the US are
among the people protected by the 4th amendment. But since there was
Mexican approval and cooperation there was no unreasonable search. I do
not believe the Warrant Clause has any application to searches of
noncitizens homes in foreign jurisdictions because American magistrates
have no power there.
o Dissents:
 Justice Brennan dissented, joined by Justice Marshall: our government
holds foreign nationals criminally liable under federal laws for conduct
committed entirely beyond the territory limits of the US that effect this
country. The constitution is the source of Congress’ authority to
criminalize conduct, whether here or abroad, and the Executives authority
to investigate an prosecute such conduct. But the same constitution also
prescribes limits on our governments authority to investigate, prosecute,
and punish criminal conduct, whether foreign or domestic.
 The court admits that the “people” extend beyond the citizentry but
leaves the precise contours of its sufficient connection test unclear.
 Here, he was investigated and is being prosecuted for violations of
US law and may well spend the rest of his life in US jails.
 The sufficient connection is supplied by the US. D is entitled to the
protections of the 4th amendment because our government by
investigating him and attempting to hold him accountable under
US criminal laws has treated him as a member of our community
for purposes of enforcing our laws.
 Mutuality is paramount. If we can prosecute them they should be
able to be protected too.
 When the government conducts unlawful searches here or abroad
they ignore our values.
 Justice Blackmun also dissented, contending that when a foreign national
is charged with a violation of U.S. criminal law, he is being treated as one
of the governed. Agrees with the majority that magistrates have no power
abroad but agrees with dissent that we should still conduct our searches
reasonably.
PROBABLE CAUSE



Probable cause is a substantive standard: it defines the level of suspicion police must
have before they search or seize someone or something. The warrant requirement is a rule
of procedure: it determines the method by which probable cause or some other
substantive standard is to be applied.
o The probable cause standard presupposes that the government CAN invade ones
privacy—as long as it has good enough reason.
o Supreme Court Rule: the facts and circumstances within the officers knowledge
and of which they had reasonably trustworthy information are sufficient in
themselves to arrest when to warrant a man of reasonable caution in the belief that
an offense has been or is being committed.
Ad Hoc Approach is most prevalent: courts will look at totality of circumstances in most
instances.
Brinegar v. U.S.: Petitioner was convicted of importing intoxicating liquor into
Oklahoma from Missouri in violation of 27 U.S.C.S. § 223, which forbade importation
contrary to the laws of any state. His conviction was based in part on the use of evidence
against him of liquor seized from his automobile in the course of the alleged unlawful
importation. Petitioner maintained that the trial court erred in admitting a police officer's
testimony at his probable cause hearing, but excluding it at trial. The testimony at issue
was that the officer had arrested petitioner several months earlier for illegal transportation
of liquor and that the indictment was pending in another court. The U.S. Supreme Court
affirmed petitioner's conviction. The Court ruled that the trial court's decision in
admitting the testimony at the probable cause hearing, but denying it at trial, was neither
improper nor inconsistent, because the law required two different standards in those two
situations. The officer had probable cause to stop petitioner because petitioner had moved
from mere suspicion to probable cause by recently and repeatedly giving substantial
grounds for believing that he was engaged in illegal activity.
o Majority by Rutledge: The court cites Carroll, which states that under the 4th
amendment, a valid search of a vehicle moving on a public highway may be had
without a warrant, but only of probable cause for the search exists.
 In dealing with probable cause, we deal with probabilities. These are not
technical; they are the factual and practical considerations of everyday life
on which reasonable and prudent men, not legal technicians, act. The
standard of proof is accordingly relative to what must be proved. Probable
cause is a reasonable ground for belief of guilt; it is much less than
evidence which would justify condemnation or conviction, but it is more
than bare suspicion. Probable cause exists where the facts and
circumstances within the officer’s knowledge and of which he had
reasonably trustworthy information are sufficient in themselves to warrant
a man of reasonable caution in the belief that an offense has been or is
being committed.
 Because many situations which confront officers in the course of
executing their duties are more or less ambiguous, room must be allowed
for some mistakes on their part. But the mistakes must be those of
reasonable men, acting on facts leading sensibly to their conclusion of
probability.


A citizen who has given no good cause for believing he is engaged in
illegal activity is entitled to proceed on his way without interference. But
one who recently and repeatedly has given substantial ground for
believing that he is engaging in the smuggling contraband has no such
immunity.
Draper v. U.S. (1959): A federal narcotics agent was given information from a reliable
informant that the Petitioner was dealing drugs from his apartment. The informant stated
that the Petitioner had gone to Chicago to purchase heroin. The informant told the agent
the date the Petitioner would return to Denver from Chicago, the clothes he would be
wearing, and the color of the bag he would be carrying. Based on this information, the
agent waited for the Petitioner at Denver’s Union Station on the Petitioner’s expected
date of return. When the Petitioner disembarked the Chicago train, he was wearing
clothes and carrying a bag fitting the informant’s description. Based on this information,
the agent arrested the Petitioner without a warrant.
o Probable cause exists where the known facts and circumstances would cause a
reasonable person to believe that an offense had been, or is being, committed.
o Did the surrounding facts and circumstances give the federal agent probable cause
to believe that the Petitioner had committed, or was committing a crime. Can
probable cause be based on hearsay?
o Majority by Whittaker: The knowledge prong may be satisfied setting out detailed
information supplied the informant from which it may reasonably be inferred that
she is speaking from personal knowledge and not mere rumor or conjecture. The
credibility prong may be demonstrated where the informant implicates herself in
criminal activity, on the premise that such admission against self-interest carries
some assurances of reliability. Independent corroboration by police of specific
facts asserted by the informant can be a factor in satisfying either prong. The
corroboration must be sufficient to permit the suspicions engendered by the
informant’s tip to ripen into a judgment that a crime was probably being
committed.
o Deficiencies in the information known to police for probable cause can be
overcome by the detailed nature of the informant’s report, as well as the
verification of those details later verification. The view is that independent
police verification of facts supplied by the informant can salvage an otherwise
inadequate showing of probable cause has become an important component of
contemporary probable cause analysis. However, where the corroboration is
of innocent or non-suspicious details, courts are less likely to credit the
informant’s conclusions.
o Here, the informant’s information regarding the suspect was predictive and
not easily guessed, that is very important in determining whether probable
cause exists.
o The knowledge prong may be satisfied by setting out detailed information
supplied by the informant from which it may reasonably be inferred that she is
speaking from personal knowledge and not mere rumor or conjecture. The
credibility prong may be demonstrated where the informant implicates herself
in criminal activity, on the premise that such admission against self-interest
carries some assurance of reliability. Independent corroboration by police of

specific facts asserted by the informant can be a factor in satisfying either
prong. The Aguilar Spinelli Test:
 In Aguilar, SCOTUS held that in passing upon a warrant based in part on details
supplied by an informant, the magistrate must be informed of some of the underlying
circumstances from which the informant concluded that the drugs were where he
claimed that were, and some of the underlying circumstances from which the officer
concluded that the undisclosed informant was credible or that his information was
reliable.
 In Spinelli: Defendant challenged the constitutionality of the warrant that authorized
the Federal Bureau of Investigation (FBI) search, which uncovered the evidence
necessary for his conviction. The warrant was granted by a magistrate judge upon an
affidavit stating that the FBI had observed defendant's travels to and from an
apartment and that a confidential reliable informant had informed the authorities that
defendant was operating a gambling operation. On certiorari, the court found that the
application for the warrant was inadequate because it failed to set forth the
underlying circumstances necessary to enable the magistrate to independently judge
the validity of the informant's information. Also the affiant-officers failed to support
their claim that their informant was "credible" or his information "reliable." The bald
assertion that defendant was "known" as a gambler was entitled to no weight in
appraising the magistrate's decision and the Court rejected as imprecise the "totality
of circumstances" approach embraced by the court of appeals. Thus, the affidavit fell
short of providing probable cause as necessary to support the issuance of the search
warrant.
o SCOTUS added to the Aguilar requirement that in the absence of a statement
detailing the manner in which the information was gathered, it is especially
important that the tip describe the accused’s criminal activity in sufficient
detail that the magistrate may know that he is relying on something more than
a causal rumor circulating in the underworld or an accusation based merely on
someone’s reputation.
o These cases led to a 2-pronged test for probable cause:
 (1) did the affiant make clear why the information supplied to him
was reliable or trustworthy; and
 (2) was the magistrate told the basis for the informant’s
information?
o In Illinois v. Gates, it was decided that rigid adherence to this test is not
necessary.
Illinois v. Gates (1983:ANONYMOUS TIPS, STANDING ALONE, DO NOT GIVE RISE TO
PROBABLE CAUSE): Lance and Susan Gates were indicted for violation of state drug laws
after police officers, executing a search warrant, discovered marijuana and other
contraband in their automobile and home. There was an anonymous tip (letter that was
very specific) about how they were involved in drug trafficking. After, receiving the tip
the police monitored them (corroborated the tip) and then the judge issued a warrant.
 So long as substantial basis exists for concluding that a search would uncover
evidence of wrongdoing a warrant is valid under the fourth amendment.

In order for a warrant based on an informants anonymous tip, even with police
corroboration, to be valid, must the elements of veracity, reliability, and basis of
knowledge exist separately and independently?
 Majority by Rehnquist: The central teaching of our decisions bearing on the
probable cause standard is that it is a practical, nontechnical conception. In dealing
with probable cause, as the name implies, we deal with probabilities. These are not
technical, they are the factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians, act. As a fluid concept –
turning on the assessment of probabilities in particular factual contexts – probable
cause is not readily, or even usefully reduced to a neat set of legal rules.
o When weighing the adequacy of cause in a given case, courts focus on the source
of the information in the possession of the police as well as the conclusions that
may be reasonably drawn from it. If the information is based on the officer’s own
observations, credibility is usually presumed. If, however, the officer has obtained
information from a third party, the reliability of that source must be weighed
together with the accuracy of the inferences drawn.
o The traditional analysis based on informant information (from the Aguilar Spinelli
test) was modified in this case. While reaffirming the important of evaluating both
the informant’s credibility and the basis of knowledge, the Court abandoned the
insistence that the prongs be considered as completely distinct elements. It
substituted a “totality of the circumstances” approach that looks at the overall
reliability of a tip and in which a deficiency in one of the prongs may be
compensated for by a strong showing as to the other, or by some other indicia of
reliability. This case thus replaced an approach to probable cause that it
considered an excessively technical dissection of informant’s tips with an
analysis that permits a balanced assessment of the relative weights of all the
various indicia of reliability attending an informant’s tip, i.e. whether there is
a fair probability that contraband or evidence of a crime will be found in a
particular place.
o So, this case replaces the Aguilar-Spinelli test for the totality of the
circumstance approach that looks at the overall reliability of a tip and in which
a deficiency in one of the prongs may be compensated for by a strong showing as
to the other, or by some other indicia of reliability. A tip from an informant
whose past reliability could not be determined might be deemed adequate if the
information as sufficiently detailed to justify the inference that the informant was
speaking from personal knowledge of the circumstances.
The approach under this case permits a balanced assessment of the relative
weights of all the various indicia of reliability (and unreliability) attending an
informant’s tip. The revised standard is whether there is a fair probability that
contraband or evidence of a crime will be found in a particular place.
 Concurrence White: the critical issue is not whether the activities observed by the
police are innocent or suspicious. Rather, the proper focus should be whether the
actions of the suspects, whatever their nature give rise to an inference that the
informant is credible and that he obtained his information in a reliable manner.
Therefore, it was not necessary to overrule Aguilar-Spinellie in order to reverse
the judgment of the Illinois Supreme Court.


Dissent Brennan: By requiring police to provide certain crucial information to
magistrates and by structuring magistrate’s probable cause inquiries, Aguilar and
Spinelli assure the magistrate’s role as independent arbitrator of probable cause
and insure greater accuracy in probable cause determinations.
 Despite Gates, the Aguilar-Spinelli test retains some importance. It delineates the
two fundamental factors – reliability and basis of knowledge – to be considered in
weighing informant information under the new totality of circumstances analysis.
Ornelas v. United States: In the early morning of a December day in 1992, Detective
Michael Pautz was conducting drug-interdiction surveillance in downtown Milwaukee.
Pautz noticed a Oldsmobile with California plates in a motel parking lot. The car
attracted the detective's attention for two reasons: because older model car, and because
California is a "source state" for drugs. Pautz inquired the dispatcher about the car's
registration. Pautz checked the motel registry and found that an Ismael Ornelas
accompanied by another man registered at 4:00 a.m., without reservations. The last name
matched the one given by dispatch, although the first did not. Pautz called his partner,
who had worked in drug enforcement. The officers contacted the DEA and asked them to
run the names of Miguel Ledesma Ornelas and Ismael Ornelas through the Narcotics and
Dangerous Drugs Information System, a federal database of known and suspected drug
traffickers. The NADDIS report identified Miguel Ledesma Ornelas as a heroin dealer
from California, and Ismael Ornelas, Jr. as a cocaine dealer from Arizona. The officers
then summoned Deputy Luedke and the department's drug-sniffing dog, Merlin.
Sometime later, petitioners emerged from the motel and got into the Oldsmobile.
Detective Hurrle approached the car and identified himself as a police officer, and asked
whether they had any illegal drugs. Petitioners said "No." Hurrle then asked for
identification and was given two California driver's licenses bearing the names Saul
Ornelas and Ismael Ornelas. Hurrle asked them if he could search the car and the
petitioners consented. Luedke subsequently discovered two kilograms of cocaine in a
panel above the right rear passenger armrest. The petitioners were arrested.
o Are a trial court’s determinations of reasonable suspicion and probable cause
subject to de novo (a form of appeal in which the appeals court holds a trial as if
no prior trial had been held) review?
o Whether questioning the two men was valid?
o Was scope of search within warrant clause?
o Probable cause and reasonable suspicion determinations are subject to de novo
review by appellate courts
o Chief Justice Rehnquist majority, discussed the nature of Fourth Amendment
claims of unreasonable search and seizure and concluded that it was not standard
practice for appeals courts to defer to trial courts in reviewing the facts in such a
case. Such a case usually requires a court to determine either: (1) whether a police
officer who performed a limited patdown search for weapons without obtaining a
warrant from a magistrate had reasonable suspicion to believe that criminal
activity was afoot; or (2) whether a police officer who conducted a warrantless
search of a person or place had probable cause to believe a crime has been
committed. These questions are difficult questions for courts to answer because
"[A]RTICULATING PRECISELY WHAT `REASONABLE SUSPICION' AND `PROBABLE
CAUSE' MEAN IS NOT POSSIBLE." They are "fluid concepts that take their

substantive content from the particular contexts in which the standards are being
assessed."
o In order to achieve a more meaningful jurisprudence on the questions, the
majority felt it best to require that appeals courts conduct de novo review in
cases where the questions arise. The Court cited three main reasons for its
decision. First, to hold otherwise would subject Fourth Amendment jurisprudence
to the whims of trial court judges. Second, the legal rules for the issues of
reasonable suspicion and probable cause "acquire content only through
application." If appeals courts are to clarify and control the legal principles that
guide those issues, they must be able to give meaning to the principles by
thoroughly considering all of the facts on record. Third, full review by appeals
courts unifies precedent, makes law enforcement more predictable, and generally
stabilizes the law.
Maryland v. Pringle: A police officer stopped a car for speeding, searched the car, and
seized money from the glove compartment and cocaine from behind the back-seat
armrest. The officer arrested the car's three occupants after they denied ownership of the
drugs and money. A state court sentenced Pringle, the front- seat passenger, for
possessing and intending to distribute cocaine after he signed a written confession. The
state appellate court reversed the conviction, holding that the mere finding of cocaine in
the back armrest when Pringle was in the front-seat of a car being driven by its owner
was insufficient to establish probable cause for arrest for possession
o Does an arrest of a front-seat passenger in a car driven by its owner, after police
find cocaine in the car's back armrest, lack probable cause and violate the Fourth
Amendment's prohibition of unreasonable searches and seizures?
o When a reasonable officer can conclude that a defendant is guilty, probable cause
exists.
o Majority by Rehnquist:
 To determine whether an officer had probable cause to arrest an
individual, we examine the events leading up to the arrest, and then
decide whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to probable cause.
 The court cites Ybarra v. Illinois: A person’s mere propinquity to others
independently suspected of criminal activity does not, without more, give
rise to probable cause to search that person. Where the standard is
probable cause, a search or seizure of a person must be supported by
probable cause particularized with respect to that person. This
requirement cannot be undercut or avoided by simply pointing to the fact
that coincidentally there exists probable cause to search or seize another or
to seize the premises where the person may happen to be.
 In Ybarra, the defendants were all in the same bar. In this case, however,
the defendants were all in a car together. A relatively small car is different
from a public tavern. A car passenger – unlike the unwitting tavern
patron in Ybarra – will often be engaged in a common enterprise with
the driver, and have the same interest in concealing the fruits or the
evidence of their wrongdoing.



Any inference that everyone on the scene of a crime is a party to it must
disappear if the Government informer singles out the guilty person. No
such singling out occurred in this case; none of the three men provided
information with respect to the ownership if the cocaine.
Mendenhall Case
o Threating presence of officers?
o Display of weapon?
o Physical touching?
o Use of language/tone of voice?
o Confined space?
o Path was blocked?
o Length of time of encounter
Bond Case
Warrants:

Knock and Talk: Courts have described the knock and talk technique as "a noncustodial
procedure where the officer identifies himself and asks to talk to the home occupant and then
eventually, requests permission to search the residence."
o (1) The knock and talk technique is essentially a form of a consensual encounter
that occurs at a residence.
o (2) One court examining a knock and talk case noted that "[t]he utility of this
procedure is obvious: It avoids the necessity of securing a search warrant from a
judicial officer. While the potential for abuse is apparent, courts and
commentators appear to concur the practice can be lawful."
 Officer’s are always trying to expand the rules of reasonableness that allow for no
intervention from courts or outside i.e. opens up for more abuse from the police i.e. Knock
and Talk rule can open up for more abuse of search and seizures.
o Jones probably likes notion that protects your individual rights.
o Sliding Scale works in favor of the police.
 Warrants require:
o Specificity
o Facts
o Exigency
 Procedural:
o Objective
o Historical context
 Means-Ends Fit?:
o Does the ends justify the means ( Balancing test/ normative judgements)
1. United States v. Banks: Las Vegas Police and FBI agents arrived at the defendant’s home
with a warrant to search his apartment for drugs. Police officers in front announced that they
had a warrant, and then knocked loudly enough to be heard by police officers at the back
door. After waiting 15-20 seconds, and with no indication as to whether or not the defendant
was home, the police opened the door with a battering. The defendant was in the shower, and
claimed not to have heard anything until the door was broken open
o “[W]here the officers knocked and announced their presence, and forcibly entered
after a reasonable suspicion of exigency had ripened, their entry satisfied
Section:3109 as well as the Fourth Amendment, even without refusal of admittance.
o “[W]hether their 15-to-20-second wait before a forcible entry satisfied the Fourth
Amendment and 18 U. S. C. Section:3109.
o SOUTER MAJORITY: Yes. The court noted that the case turned on “the significance
of exigency revealed by circumstances known to the officers, for the only substantive
difference between the two situations goes to the time at which the officers
reasonably anticipated some danger calling for action without delay.” Specifically at
issue was whether it was reasonable for the officers “to suspect imminent loss of
evidence” in the period prior to their forced entry. RICHARDS V. WISCONSIN. The
court countered the defendant’s arguments that the fact that the defendant was in the
shower, and that 15-20 seconds was insufficient for the defendant to reach the front
door were inconsequential to “the very risk that justified prompt entry.” The court
also held 18 U.S.C. Section:3109 is subject to the same exigency exceptions that the
Fourth Amendment is.
 Gets rid of categorical approach explained below; they use the TOTALITY
OF CIRCUMSTANCES approach to determine reasonableness.
o If circumstances support a reasonable suspicion of exigency when the officers arrive
at the door [with a warrant], they may go straight in.”
o In assessing the reasonableness of the execution of the warrant, the panel majority
(LOWER COURT) set out a nonexhaustive list of “factors that an officer reasonably
should consider” in deciding when to enter premises identified in a warrant, after
knocking and announcing their presence but receiving no express acknowledgment:
 “(a) size of the residence; (b) location of the residence; (c) location of the
officers in relation to the main living or sleeping areas of the residence; (d)
time of day; (e) nature of the suspected offense; (f) evidence demonstrating
the suspect's guilt; (g) suspect's prior convictions and, if any, the type of
offense for which he was convicted; and (h) any other observations triggering
the senses of the officers that reasonably would lead one to believe that
immediate entry was necessary.”
o The lower court also defined four categories of intrusion after knock and
announcement, saying that the classification “aids in the resolution of the essential
question whether the entry made herein was reasonable under the circumstances”:
 “(1) entries in which exigent circumstances exist and non-forcible entry is
possible, permitting entry to be made simultaneously with or shortly after
announcement; (2) entries in which exigent circumstances exist and forced
entry by destruction of property is required, necessitating more specific
inferences of exigency; (3) entries in which no exigent circumstances exist
and non-forcible entry is possible, requiring an explicit refusal of admittance
or a lapse of a significant amount of time; and (4) entries in which no exigent
circumstances exist and forced entry by destruction of property is required,
mandating an explicit refusal of admittance or a *35 lapse of an even more
substantial amount of time.”
o Judge Fisher dissented, saying that the majority ought to come out the other way
based on the very grounds it stressed: Banks's small apartment, the loud knock and
announcement, the suspected offense of dealing in cocaine, and the time of the day.
Judge Fisher thought the lapse of 15 to 20 seconds was enough to support a
reasonable inference that admittance had been constructively denied.
2. Wilson v. Layne: Charles Wilson challenged the constitutionality of an arrest procedure
conducted by federal and state authorities who sought to apprehend his son. Wilson claimed
that by inviting media photographers and reporters on a "ride- along" to observe and record
the execution of their arrest warrant, authorities violated his Fourth Amendment rights. On
appeal from an adverse District Court ruling, denying the officers' qualified immunity, the
Court of Appeals reversed but chose not to address the Fourth Amendment question since no
prior pronouncement existed on the subject. On appeal, the Supreme Court granted certiorari.
o Is the accompaniment of law enforcement authorities by media personnel, during the
execution of an arrest warrant in a home, a violation of the homeowner's Fourth
Amendment protection against unlawful search and seizure?
o In order to bring suit against police/municipality:
 Fourth amendment violation
 Policy enacted by city?
 Qualified immunity?
o Means-Ends inquiry:
o Majority Rhenquist: Yes. In a unanimous opinion, the Court held that the presence of
media during the execution of an arrest warrant in a home was in no way related to
the officers' task at hand. Reporters neither assist officers nor do they have anything
to do with the warrant's execution. Moreover, the connection between their presence
and furthering positive publicity for law enforcement is unclear at best. The Court
added, however, that in this case the officers had no reason to believe that permitting
media to accompany them would be illegal, since no prior rule existed in this matter.
Accordingly, the officers in question were granted qualified immunity.
o A “media ride-along” in a home violates the Fourth Amendment, but because the
state of the law was not clearly established at the time the entry in this case took
place, respondent officers are entitled to qualified immunity
o A court evaluating a qualified immunity claim must first determine whether the
plaintiff has alleged the deprivation of a constitutional right, and, if so, proceed to
determine whether that right was clearly established at the time of the violation.
o It violates the Fourth Amendment rights of homeowners for police to bring members
of the media or other third parties into their home during the execution of a warrant
when the presence of the third parties in the home was not in aid of the warrant's
execution.
o The Fourth Amendment requires that police actions in execution of a warrant be
related to the objectives of the authorized intrusion.
o Taken in their entirety, the reasons advanced by respondents to support the reporters'
presence-publicizing the government's efforts to combat crime, facilitating accurate
reporting on law enforcement activities, minimizing police abuses, and protecting
suspects and the officers-fall short of justifying media ride-alongs. Although the
presence of third parties during the execution of a warrant may in some circumstances
be constitutionally permissible, the presence of these third parties was not.
o Petitioners' Fourth Amendment right was not clearly established at the time of the
search. “Clearly established” for qualified immunity purposes means that the contours
of the right must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right. His very action need not previously have been
held unlawful, but in the light of pre-existing law its unlawfulness must be apparent.
o It was not unreasonable for a police officer at the time at issue to have believed that
bringing media observers along during the execution of an arrest warrant (even in a
home) was lawful.
 First, the constitutional question presented by this case is by no means open
and shut. Accurate media coverage of police activities serves an important
public purpose, and it is not obvious from the Fourth Amendment's general
principles that the officers' conduct in this case violated the Amendment.
 Second, petitioners have not cited any cases of controlling authority in their
jurisdiction at the time in question which clearly established the rule on which
they seek to rely, nor have they identified a consensus of cases of persuasive
authority such that a reasonable officer could not have believed that his
actions were lawful.
 Finally, the federal marshals in this case relied *605 on a Marshals Service
ride-along policy which explicitly contemplated media entry into private
homes, and the sheriff's deputies had a ride-along program that did not
expressly prohibit such entries. The state of the law was at best undeveloped
at the relevant time, and the **1695 officers cannot have been expected to
predict the future course of constitutional law
3. EXIGENT CIRCUMSTANCES; Mincey v. Arizona: During a narcotics raid on petitioner's
apartment by an undercover police officer and several plainclothes policemen, the
undercover officer was shot and killed, and petitioner was wounded, as were two other
persons in the apartment. Other than looking for victims of the shooting and arranging for
medical assistance, the narcotics agents, pursuant to a police department directive that police
officers should not investigate incidents in which they are involved, made no further
investigation. Shortly thereafter, however, homicide detectives arrived on the scene to take
charge of the investigation, and they proceeded to conduct an exhaustive four-day
warrantless search of the apartment, which included the opening of dresser drawers, the
ripping up of carpets, and the seizure of 200 to 300 objects. In the evening of the same day as
the raid, one of the detectives went to the hospital where petitioner was confined in the
intensive-care unit, and, after giving him Miranda warnings, persisted in interrogating him
while he was lying in bed barely conscious, encumbered by tubes, needles, and a breathing
apparatus, and despite the fact that he repeatedly asked that the interrogation stop until he
could get a lawyer. Subsequently, petitioner was indicted for, and convicted of, murder,
assault, and narcotics offenses.
o The “murder scene exception” created by the Arizona Supreme Court to the warrant
requirement is inconsistent with the Fourth and Fourteenth Amendments, and the
warrantless search of petitioner's apartment was not constitutitionally permissible
simply because a homicide had occurred there.
o Stewart Majority: The search cannot be justified on the ground that no
constitutionally protected right of privacy was invaded, it being one thing to say that
one who is legally taken into police custody has a lessened right of privacy in his
person, and quite another to argue that he also has a lessened right of privacy in his
entire house.
 The Supreme Court, Mr. Justice Stewart, held that: (1) warrantless four-day
search of defendant's apartment following his arrest after the shooting of a
police officer in the apartment could not be justified on the basis of any socalled “murder scene exception”; (2) fact that a homicide occurred did not, of
itself, give rise to such exigent circumstances as to justify four-day
warrantless search; (3) the fact that defendant had been arrested did not lessen
his privacy right in his apartment, and (4) statements made by defendant in a
hospital, while in great pain, while depressed almost to the point of coma, and
while he was encumbered by tubes, needles, and breathing apparatus were
involuntary and could not be used against him, even for impeachment
purposes.
o Nor can the search be justified on the ground that a possible homicide inevitably
presents an emergency situation, especially since there was no emergency threatening
life or limb, all persons in the apartment having been located before the search began.
o The seriousness of the offense under investigation did not itself create exigent
circumstances of the kind that under the Fourth Amendment justify a warrantless
search, where there is no indication that evidence would be lost, destroyed, or
removed during the time required to obtain a search warrant and there is no
suggestion that a warrant could not easily and conveniently have been obtained.
o The Arizona Supreme Court's guidelines for the “murder scene exception” did not
afford sufficient protection to a person in whose home a homicide or assault occurs,
where they conferred unbridled discretion upon the individual officer to interpret such
terms as “reasonable . . . search,” “serious personal injury with likelihood of death
where there is reason to suspect foul play,” and “reasonable period,” it being this kind
of judgmental assessment of the reasonableness and scope of a proposed search that
the Fourth Amendment requires be made by a neutral and objective magistrate, not a
police officer.
o Due process requires that the statements obtained from petitioner in the hospital not
be used in any way against him at his trial, where it is apparent from the record that
they were not “the product of his free and rational choice, but to the contrary that he
wanted not to answer his interrogator, and that while he was weakened by pain and
shock, isolated from family, friends, and legal counsel, and barely conscious, his will
was simply overborne. While statements made by a defendant in circumstances
violating the strictures of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694, are admissible for impeachment if their “trustworthiness . . . satisfies
legal standards,” Harris v. New York, 401 U.S. 222, 224, 91 S.Ct. 643, 645, 28
L.Ed.2d 1; Oregon v. Hass, 420 U.S. 714, 722, 95 S.Ct. 1215, 1220, 43 L.Ed.2d 570,
any criminal trial use against a defendant of his involuntary statement is a denial of
due process of law.
o CARE TAKING EXCEPTION:
o Notes:
 Reasonableness does not always require an individualized suspicion.
4. Welsh v. Wisconsin: On the night of April 24, 1978, a witness observed a car that was being
driven erratically and that eventually swerved off the road, coming to a stop in a field without
causing damage to any person or property. Ignoring the witness' suggestion that he wait for
assistance in removing his car, the driver walked away from the scene. The police arrived a
few minutes later and were told by the witness that the driver was either very inebriated or
very sick. After checking the car's registration, the police, without obtaining a warrant,
proceeded to the petitioner's nearby home, arriving at about 9 p.m. They gained entry when
petitioner's stepdaughter answered the door, and found petitioner lying naked in bed.
Petitioner was then arrested for driving a motor vehicle while under the influence of an
intoxicant in violation of a Wisconsin statute which provided that a first offense was a
noncriminal violation subject to a civil forfeiture proceeding for a maximum fine of $200.
Petitioner was taken to the police station, where he refused to submit to a breath-analysis
test. Pursuant to Wisconsin statutes, which subjected an arrestee who refused to take the test
to the risk of a 60-day revocation of driving privileges, petitioner requested a court hearing
to determine whether his refusal was reasonable. Under Wisconsin law, a refusal to take a
breath test was reasonable if the underlying arrest was not lawful. The trial court, ultimately
concluding that petitioner's arrest was lawful and that his refusal to take the breath test was
therefore **2093 unreasonable, issued an order suspending petitioner's license. The
Wisconsin Court of Appeals vacated the order, concluding that the warrantless arrest of
petitioner in his home violated the Fourth Amendment because the State, although
demonstrating probable cause to arrest, had not established the existence of exigent
circumstances. The Wisconsin Supreme Court reversed.
o Held: The warrantless, nighttime entry of petitioner's home to arrest him for a civil,
nonjailable traffic offense, was prohibited by the special protection afforded the
individual in his home by the Fourth Amendment
o (a) Before government agents may invade the sanctity of the home, the government
must demonstrate exigent circumstances that overcome the presumption of
unreasonableness that attaches to all warrantless home entries. An important factor
to be considered when determining *741 whether any exigency exists is the gravity of
the underlying offense for which the arrest is being made. Moreover, although no
exigency is created simply because there is probable cause to believe that a serious
crime has been committed, application of the exigent-circumstances exception in the
context of a home entry should rarely be sanctioned when there is probable cause to
believe that only a minor offense has been committed. Pp. 2097-2100.
o (b) Petitioner's warrantless arrest in the privacy of his own bedroom for a noncriminal traffic offense cannot be justified on the basis of the “hot pursuit” doctrine,
because there was no immediate or continuous pursuit of the petitioner from the
scene of a crime, or on the basis of a threat to public safety, because petitioner had
already arrived home and had abandoned his car at the scene of the accident. Nor
can the arrest be justified as necessary to preserve evidence of petitioner's bloodalcohol level. Even assuming that the underlying facts would support a finding of this
exigent circumstance, given the fact that the State had chosen to classify the first
offense for driving while intoxicated as a noncriminal, civil forfeiture offense for
which no imprisonment was possible, a warrantless home arrest cannot be upheld
simply because evidence of the petitioner's blood-alcohol level might have dissipated
while the police obtained a warrant.
o Brennan Majority: We therefore conclude that the common-sense approach utilized
by most lower courts is required by the Fourth Amendment prohibition on
“unreasonable searches and seizures,” and hold that an important factor to be
considered when determining whether any exigency exists is the gravity of the
underlying offense for which the arrest is being made. Moreover, although no
exigency is created simply because there is probable cause to believe that a serious
crime has been committed, see Payton, application of the exigent-circumstances
exception in the context of a home entry should rarely be sanctioned when there is
probable cause to believe that only a minor offense, such as the kind at issue in this
case, has been committed.
o TAKE AWAY: Reasonableness can be used to mitigate exigent circumstances i.e. was
it reasonable under the circumstances to use the exigent circumstances exception.
 Sliding Scale (terry v. Ohio) v. Categorical Balancing (Katz): this battle is
key for the reasonableness standards.
5. Exceptions to Warrant Requirement:
o Katz is model
 Warrantless searches are presumptively illegal.
 Need probable cause
 Bright line rules
 Search or Seizure? Not important to its analysis
o Crime Control:
 Warrant clause is only one instance of reasonableness
 Categorical Balancing: is it reasonable?
 Exigency
6. Illinois v. MacArthur: Police officers, with probable cause to believe that respondent
McArthur had hidden marijuana in his home, prevented him from entering the home
unaccompanied by an officer for about two hours while they obtained a search warrant. Once
they did so, the officers found drug paraphernalia and marijuana, and arrested McArthur. He
was subsequently charged with misdemeanor possession of those items. He moved to
suppress the evidence on the ground that it was the “fruit” of an unlawful police seizure,
namely, the refusal to let him reenter his home unaccompanied. The Illinois trial court
granted the motion, and the State Appellate Court affirmed.
o Held: Given the nature of the intrusion and the law enforcement interest at stake, the
brief seizure of the premises was permissible under the Fourth Amendment. Pp. 949953.
o Whether the police violated an individuals right when they refused to allow him to
enter his home for two hours so as to obtain a search warrant?
o The restriction at issue was reasonable, and hence lawful based on various
circumstances including the fact that the police officers had probable cause to believe
that the home contained contraband, the contraband could have been destroyed and
the restraint was both limited and tailored reasonably to secure law enforcement
needs while protecting privacy interests.
o BREYER MAJORITY: (a) The Amendment's central requirement is one of
reasonableness. Although, in the ordinary case, personal property seizures are
unreasonable unless accomplished pursuant to a warrant, United States v. Place, 462
U.S. 696, 701, 103 S.Ct. 2637, 77 L.Ed.2d 110, there are exceptions to this rule
involving special law enforcement needs, diminished expectations of privacy,
minimal intrusions, and the like, see, e.g., Pennsylvania v. Labron, 518 U.S. 938,
940-941, 116 S.Ct. 2485, 135 L.Ed.2d 1031. The circumstances here involve a
o
o
o
o
plausible claim of specially pressing or urgent law enforcement need. Cf., e.g., United
States v. Place, supra, at 701, 103 S.Ct. 2637. Moreover, the restraint at issue was
tailored to that need, being limited in time and scope, cf. Terry v. Ohio, 392 U.S.
1, 29-30, 88 S.Ct. 1868, 20 L.Ed.2d 889, and avoiding significant intrusion into the
home itself, cf. Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d
639. Consequently, rather than employing a per se rule of unreasonableness, the
Court must balance the privacy-related and law enforcement-related concerns to
determine if the intrusion here was reasonable. Cf. Delaware v. Prouse, 440 U.S.
648, 654, 99 S.Ct. 1391, 59 L.Ed.2d 660. In light of the following circumstances,
considered in combination, the Court concludes that the restriction was reasonable,
and hence lawful. First, the police had probable cause to believe **948 that
McArthur's home contained evidence of a crime and unlawful drugs. Second, they
had good reason to fear that, unless restrained, he would destroy the drugs before
they could return with a warrant. Third, they *327 made reasonable efforts to
reconcile their law enforcement needs with the demands of personal privacy by
avoiding a warrantless entry or arrest and preventing McArthur only from entering his
home unaccompanied. Fourth, they imposed the restraint for a limited period, which
was no longer than reasonably necessary for them, acting with diligence, to obtain the
warrant.
(b) The conclusion that the restriction was lawful finds significant support in this
Court's case law. See, e.g., Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82
L.Ed.2d 599; United States v. Place, supra, at 706, 103 S.Ct. 2637. And in no case
has this Court held unlawful a temporary seizure that was supported by
probable cause and was designed to prevent the loss of evidence while the police
diligently obtained a warrant in a reasonable period. But cf. Welsh v. Wisconsin,
466 U.S. 740, 754, 104 S.Ct. 2091, 80 L.Ed.2d 732. Pp. 951-952.
(c) The Court is not persuaded by the countervailing considerations raised by the
parties or lower courts: that the police proceeded without probable cause; that,
because McArthur was on his porch, the police order that he stay outside his home
amounted to an impermissible “constructive eviction”; that an officer, with
McArthur's consent, stepped inside the home's doorway to observe McArthur when
McArthur reentered the home on two or three occasions; and that Welsh v.
Wisconsin, supra, at 742, 754, 104 S.Ct. 2091, 80 L.Ed.2d 732, offers direct support
for McArthur's position. Pp. 952-953.
Jones: greater power includes the lesser power; preserving the status quo, not taking
away anyone’s rights. Agrees with dissent, case does not make sense
Souter Concurrence: Respondent McArthur’s location made the difference between
the exigency that justified temporarily barring him from his home and circumstances
that would have supported a greater interference with his privacy and property. Police
had need to keep him outside because if he was inside he could have flushed the
drugs. That risk would have justified the police in entering McArthur’s trailer
promptly to make a lawful, warrantless search. When McArthur stepped outside and
left the trailer uninhabited, the risk abated, and so did the reasonableness of entry by
the police for as long as he was outside. It was reasonable to keep him outside
because the laws preference for warrants. . .the law can hardly raise incentives to
obtain a warrant without giving the police a FAIR chance to take their probable cause
to a magistrate and get one.
o Stevens Dissent: less than 2.5 grams of marijuana is a class C misdemeanor. A small
amount of marijuana for personal use does not constitute a particularly significant
public policy concern. The detection and prosecution of small quantities of weed is by
no means a law enforcement priority in Illinois. Each of the Illinois jurists who
participated believe that the sanctity of the home is higher than the prosecution of this
petty offense. WELSH V. WISCONSIN held that some offenses might be so minor as to
make it unreasonable for police to undertake searches that would be constitutionally
permissible if graver offenses were suspected.
7. Arizona v. Hicks (Probable Cause is required to invoke the plain view doctrine): Police are
in the respondent’s home due to the firing of bullet wounds. Then they see an expensive
stereo system which seems to be out of place for such a cheap apartment. They move the
stereo to get the serial numbers and find out that the stereo was stolen. It was conceded that
the policy did not have probable cause to think that the stereo was stolen, all they had was a
hunch.
o Issue: Is probable cause required to invoke the plain view doctrine?
o Jones issue: Do u need the same PC for seize that you need for a search? Are search
and seizures subject to the same requirements? Or do we need less info to seize than
to search?
o The plain view doctrine may not be used to justify warrantless searches or seizures of
a dwelling, which require probable cause.
o Majority (Scalia):
 Yes. By taking action unrelated to why the policy were in the apartment
constituted a search. This action, the moving of the stereo, exposed to view
unconcealed portions of the apartment or its contents and that produced a new
invasion of respondent’s privacy unjustified by the exigent circumstances that
validated the entry into the apartment. Just looking around is not a search,
but where the policy move stuff around it is.
 The majority holds that probable cause is required to invoke the plain view
doctrine.
 A dwelling-place search, no less than a dwelling-place seizure, required
probable cause, and there is no reason why application of the plain view
doctrine would supplant that requirement.
 In short, whether legal authority to move the equipment could be found only
as an inevitable concomitant of the authority to seize it, or also as a
consequence of some independent power to search certain objects in plain
view, probable cause to believe the stereo was stolen is required.
 However, the majority does say that a truly cursory inspection – one that
involves merely looking at what is already exposed to view, without
disturbing it – is not a search for purposes of the 4th, and therefore does not
even require reasonable suspicion.
 Even though Powell’s dissent may argue that this could hinder crime
prevention, the majority states that there is “nothing new in the realization that
the Constitution sometimes insulates the criminality of a few in order to
protect the privacy of all.” We take it as a necessary cost of society that civil
rights will hinder some aspects of crime prevention.

o
o
o
o
Specific searches are allowed because they have what a general search does
not have; a specific search sets parameters on the search, i.e. there are
limits to it. General searches, on the other hand, are bad because there is no
end.
Dissent (O’Connor):
 Frames a different issue, namely, whether police must have probable cause (or
a reasonable suspicion) before conducting a cursory inspection of an item in
plain view.
 O’Connor agrees with the court that even under the plain view doctrine,
probable cause is required before the police seize an item, or conduct a fullblown search of evidence in plain view. This is to prevent the plain view
doctrine from permitting general searches. This is not to say, however, that
even a mere inspection of a suspicious item must be supported by probable
cause.
 O’Connor would allow a cursory inspection based in a reasonable suspicion.
 She justifies this by looking at the governmental interest in crime prevention
and the minimal invasion of privacy involved.
Dissent Powell: the distinction between looking at a suspicious object in plain view
and moving it even a few inches trivializes the fourth amendment. The courts new
rule will cause uncertainty and could deter conscientious police officers from lawfully
obtaining evidence necessary to convict guilty persons
Jones thinks: that because it is a home is important because you need a warrant there.
Says that here there is a bright line approach here aka no sliding scale.
Notes:
 Plain view doctrine:
 Really two doctrines, one dealing with searches and the other one
dealing with seizures.
 The plain view seizure doctrine: states that if officers are somewhere
that are lawfully entitled to be, they may constitutionally seize an
object in plain view that is immediately apparent as contraband.
 The plain view search doctrine: states that an officer making
observations from a place that she is lawfully entitled to be does not
conduct a 4th amendment search.
 Evidence discovered in plain view does not need to be discovered
inadvertently, even though that used to be the rule. What the police are
actually searching for does not matter if there is valid probable cause
to search a place for evidence of some crime and they do not exceed
the scope of the search justified by that probable cause.
 Note on “Plain View Doctrine” from E&E: The plain view doctrine permits an
officer to make a warrantless seizure of incriminating items that she comes upon
while otherwise engaged in a lawful arrest, entry, or search. Unlike the other
exceptions to the warrant requirement, this doctrine does not permit a search, but
only a seizure of something already discovered. The authorization for the search
emanated from the action that the officer is already conducting at the time – such as
a search pursuant to a warrant or incident to a lawful arrest. The plain view doctrine
is premised on the notion that once item has been spotted in plain view by the
officer, insistence on a warrant would be a needless inconvenience. The
incriminating nature of the item in question must be immediately apparent. That
means that police must, without further inspection or analysis, have probable cause
to believe that the thing they have encountered is connected to criminal activity. The
plain view operates to permit seizures of items even if they are unrelated to the
reason the officers are on the premise.
8. Horton v. California (POLICE MAY SEIZE EVIDENCE FOUND IN PLAIN VIEW):
Horton was charged with armed robbery. Weapons seized during the search of his home
pursuant to a valid warrant were admitted into evidence against him. The weapons were not
listed on the search warrant.
o The warrantless seizure of evidence of a crime found in plain view should not be
prohibited by the fourth amendment, even if the discovery of the evidence was not
inadvertent.
o Should the warrantless seizure of evidence of a crime in plain view be prohibited by
the fourth amendment if the discovery of the evidence was not inadvertent?
o Stevens Majority: No. The warrantless seizure of evidence of a crime, found in plain,
view should not be prohibited by the Fourth Amendment, even if the discovery of the
evidence was not inadvertent. The suggestion that the inadvertence requirement is
necessary to prevent the police from conducting general, searches, or from converting
specific warrants into general warrants, is not particularly describes the place to be
searched and the persons or things to be seized, and that a warrantless search be
circumscribed by the exigencies that justify its initiation. Affirmed.
 If an article is already in plain view, neither its observation nor its seizure
would involve any invasion of privacy.
 Relies on Coolidge: court held that seizure of two automobiles parked in plain
view on the defendants driveway in the course of arresting the D violated the
4th amendment. Two limitations on the doctrine: 1. The plain view doctrine
alone is never enough to justify the warrantless seizure of evidence. 2. That
the discovery of evidence in plain view must be inadvertent.
 2 justifications:
 Item must be in plain view, its incriminating character must also be
immediately apparent (probable cause to believe it is contraband.)
 Not only must the officer be lawfully located in a plce from which the
object can be plainly seen, but he or she must also have a lawful right
of access to the object itself.
o Brennan Dissent: the inadvertent discovery requirement is essential if we are to take
seriously the fourth amendments protection of possessory interests as well as privacy
interests. The rationale behind the inadvertent discovery requirements is simply that
we will not excuse officers from the general requirement of a warrant to seize if the
officers know the location of evidence, have probable cause to seize it, intend to seize
it, and yet do not bother to obtain a warrant particularly describing that evidence.
When an officer with probable cause to seize an item fails to mention that item in his
application for a search warrant, for whatever reason, and then seizes the item
anyway his conduct is per se unreasonable.
o Analysis: The plain view doctrine is often considered an exception to the general rule
that warrantless searches are presumptively unreasonable, but this characterization
overlooks the important difference between searches and seizures. If an article is in
plain view, neither its observation not its seizure would involve any invasion of
privacy. A seizure of the article, however, would obviously invade the owner’s
possessory interest. The Court set out in Horton to clarify the application of the plain
view rule on seizures that was set out in Coolidge v. New Hampshire.
9. Automobile Exception:
o Carroll v. US: court upheld the search of a car going from Detroit to grand rapids
(bootlegging route) because the cops thought they were bootleggers. They stopped
them and found whiskey and gin. Court upheld the search, concluding that the
traditional fourth amendment warrant requirement was unsuited to the search of a
ship motor boat wagon or automobile for contraband goods, where it is not
practicable to secure a warrant because the vehicle can be quickly moved out of the
locality or jurisdiction in which the warrant must be sought.
 Justified through inherent mobility of vehicle; Exigent Circumstance
 Search of Automobile---Exigent Circumstance---Inherent mobility of car
o Brightline approach to automobiles
 Exigency is usually an ad hoc approach but not with automobiles.
o Automobile Exception for warrant requirement: for searches and seizures of cars
stopped along the road, if obtaining a warrant is not reasonably practicable, then the
measure of legality. . .is that the seizing officer shall have reasonable or probable
cause for believing that the automobole which he stops and seizes has contraband
liquor therein which is being illegally transported.
 Only Two ways to use this exception:
 Exigent circumstance
 Probable cause (Developed after Carroll and Chambers; the search of a
car could be based solely on PC to believe that the car contained
evidence or contraband and did not require a warrant)
o Chambers: police stopped a car based on PC that its occupants had just committed a
late night armed robbery. The police arrested the suspects and drove the car to the
police station, where a thorough warrantless search of the car was conducted,
producing two handguns and other evidence of a crimw.
 Issue was whether the Automobile exception applied to the search of a car
already in police custody at the police station rather than on the road.
 The decision to move the car to the police station before conducting the search
was not unreasonable because it would have been potentially dangerous for
the police to conduct the search on a dark street in the middle of the night.
Because the police cause to conduct the search, and because they behaved
reasonably in dealing with the cars mobility the search was valid.
 After Caroll and Chambers the search of a car could be based solely on PC to
believe that the car contained evidence or contraband and did not require a
warrant.
o Chadwick: cops monitored a guys with a footlocker on a train. They waited for him to
get to his car and placed the locker in his trunk. They stopped him and searched the
car. Court refused to apply the Carroll-chambers automobile exception. According to
the court the automobile exception is based only in part on the INHERENT
MOBILITY of automobiles. Strict regulation of Cars is not analogous to the
footlocker. Court held that the police should have maintained custody of the
footlocker until they could have obtained a warrant to search it.
o Sanders: police had PC to believe that a suitcase had weed in it at the airport. The
cops waited till the guy brought the suitcase into a taxi cab and leave the airport. They
stopped the cab and found 9.3 lbs of trees. Court did not uphold basis for search
because unlike in Chadwick the police waited until the car was moving, “ the
exigency of mobility must be assessed at the point immediately before the search—
after the police have seized the object to be searched and have it securely within their
control.” The suitcase did not have a diminished expectation of privacy simple
because it was seized from a trunk of a car. AE does not apply
o Robbins: cops stopped car that had bricks of trees in it that were wrapped in
packaging. Court refused to uphold search, preferring not to distinguish between the
brick and a suitcase or footlocker.
o United States v. Ross: police had probable cause to belive that Ross was selling
narcotics out of the trunk of his maroon chevy Malibu. They found the car but did not
see Ross nearby, so they kepy circling the neighborhood. Later they saw Ross driving
the Malibu stopped the car and arrested Ross. They conducted a warrantless search of
the car including the trunk, where they found a closed brown paper bag. Inside the
bag were a number of glassine bags containing a white powder.
 Court Upheld the search in Ross. Noting the importance of striving for
clarification in this area of the law which affected countless police-citizen
encounters every day.
 Key aspect was that the police had PC that extended to the entire car, rather
than being limited as in Chadwick and Sanders to a particular c ontainer that
happened to be located in the car.
 “ A lawful search of fixed premises generally extends to the entire area in
which the object of the search may be found and is not limited by the
possibility that separate acts of entry or opening may be required to
complete the search. . .when a legitimate search is underway. . .nice
distinctions. . .between glove compartments, upholstered seats, trunks, and
wrapped packages. . .must give way to the interest in the prompt and
efficient completion of the task at hand.”
 Ross court agreed with Robbins plurality that the same rule must apply
equally to containers from brown bag to attaché case.
 Court held that the scope of a warrantless search of an automobile thus is not
defined by the nature of the container in which the contraband is secreted.
Rather, it is defined by the object of the search and the places in which there
is PC to believe that it may be found.
 AFTER THE DECISION IN ROSS, THE LEGALITY OF WARRANTLESS SEARCHES
OF CONTAINERS IN CARS GENERALLY DEPENDED ON WHETHER THE PC
POSSESSED BY THE POLICE WAS CONTAINER SPECIFIC ( CHADWICK
SANDERS) OR CAR GENERAL (ROSS).
10. California v. Acevedo: The police were monitoring one Daza’s aparatment, because they had
observed him take a package, which they knew from prior inspection contained marijuana,
into his home. Some officers kept the home under surveillance while another officer went to
obtain a warrant to search the home. Before the warrant could be obtained, the officers
observed Acevedo enter Daza’s apartment and emerge ten minutes later carrying a brown
paper bag. The officers noted that the bag looked to be the size of one of the marijuana
packages Daza had entered his home with. Acevedo placed the bag in the trunk of his car and
drove away. Police then stopped his car, opened the trunk, and found the bag of marijuana,
which they then opened.
o Does the fourth amendment require police to obtain a warrant to open a container
placed in an automobile which they have probable cause to believe contains
contraband, simply because they lack probable cause to search the entire car?
o Police can search an automobile and all containers in it when they have probable
cause to believe contraband is contained somewhere within the automobile.
o Majority by Blackmun:
 No. In Carroll, this Court established an exception to the warrant
requirement because: “a necessary difference between a search of a store,
dwelling or other structure in respect of which a proper official warrant
readily may be obtained, and a search of a ship, motor boat, wagon or
automobile, for contraband goods, where it is not practicable to secure a
warrant because the vehicle can be quickly moved out of the locality or
jurisdiction in which the warrant must be sought.” It therefore held that a
warrantless search of an automobile, based upon probable cause to believe
that the vehicle contained evidence of crime in the light of an exigency arising
out of the likely disappearance of the vehicle, did not contravene the Warrant
Clause of the 4th.
 In Chambers, it held that the existence of exigent circumstances was to be
determined at the time the automobile is seized. When a car has been seized,
the police do not have to search it immediately. The police could search the
car later when they could have searched earlier, had they so chosen. If the
police have probable cause to justify a warrantless seizure of an automobile on
a public road, they may conduct either an immediate or a delayed search of
the car without a warrant.
 In Ross, it is held that the scope of a warrantless search based on probable
cause is no narrower – and no broader – than the scope of a search authorized
by a warrant supported by probable cause. Thus, if probable cause justifies the
search of a lawfully stopped vehicle, it justifies the search of every part of the
vehicle and its contents that may conceal the object of the search. This case
clarified the scope of Carroll as properly including a probing search of
compartments and containers within the automobile so long as the search is
supported by probable cause. So, under Ross, if there is probable cause to
search a stopped vehicle, that search may extend to any part of the car and any
packages, luggage, or other containers that might contain the object of the
search.
 Ross: The Carroll Doctrine covered searches of automobiles when the police
had probable cause to search an entire vehicle, but the Chadwick Doctrine
governed searches of luggage when the officers had probable cause to search
only a container within the vehicle.
 In this case, the Court decides that the 4th amendment does not require the
police to obtain a warrant to open a sack in a movable vehicle just because
they lack probabe cause to search the entire car.
 The interpretation of the Carroll Doctrine now set forth in Ross now applies
to all searches of containers found in an automobile. In other words, the police
may search without a warrant if their search is supported by probable cause:
The scope of a warrantless search of an automobile is not defined by the
nature of the container in which the contraband is secreted. Rather, it is
defined by the object of the search and the places in which there is probable
cause to believe that it may be found. There is now one rule to govern all
automobile searches. The police may search an automobile and the containers
within it where they have probable cause to believe contraband or evidence is
contained.
 This case went a step further than Ross and Chambers by holding that police
are not required to obtain a warrant to open a container found in a car even if
their probable cause to search is limited to just that container, and not the car
itself. In this case, with probable cause to believe that a paper bag in the
defendant’s car contained narcotics, but lacking probable cause to search the
rest of the car, officers stopped the car, seized the bag and opened it. The
court upheld the search and opted for a clear and unequivocal rule: police
may search an automobile and any containers within it when they have
probable cause to believe contraband or evidence or crime is present
anywhere inside. The only remaining limit on scope of the permissible search
derived from the size and shape of the items sought – police may search only
where such items may be hidden. Moreover, it does not matter that the
container in question is known to the officer to be the property of a passenger
not suspected of criminal activity. Given the reduced expectation of privacy
with regard to property transported in cars, officers with probable cause to
search a car may inspect a passenger’s belongings as long as they are
capable of concealing the object of the search, Wyoming v. Houghton.
 Jones: says distinctions between brown bags and suitcases and whether or not
they are in the car are distinctions that do not need to be made as in here in
Acevedo.
11. To arrest without a Warrant:
o Whether or not it was reasonable under common law?
12. Payton:
o Court struck down a NY statute that authorized warrantless entries into private homes
for the purpose of making felony arrests. The court concluded that if warrants were
necessary to look for property in a private home, warrants should be necessary for
people as well.
o Chief evil against which the Fourth Amendment is made is the physical entry into the
home.
13. Stegald: officers had an arrest warrant for one ricky lyon; an informants tip had reported that
Lyons could be found at Steagalds house. Officers went to Steagalds house and searched it;
they did not find lyons but did find a substantial qty of cocaine.
o Whether an arrest warrant justified the search of the home of someone other than the
arrestee?
o Court held that it did not.
14. Atwater v. Lago vista: Tex. Tran. Code Ann. Section: 545.413(a) (1999) requires that any
passenger in the front seat wear a seatbelt, and Section: 545.413(b) requires any small child
riding in the front to be secure. Petitioner Gail Atwater ["the petitioner"] was driving with her
two small children, none of whom were wearing seatbelts. They were stopped by a police
officer who observed that they were not wearing seatbelts. According to the respondent, the
officer was aggressive with her. She was arrested, had her mug shot taken, and placed in jail
for one hour.
o “[W]hether the Fourth Amendment forbids a warrantless arrest for a minor criminal
offense, such as a misdemeanor seatbelt violation punishable only by a fine.”
o “The standard of probable cause ‘applies to all arrests, without the need to balance the
interests and circumstances involved in particular situations.”
o "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,"
o JONES: Continuation of common law defining scope of warrantless search. (police
become judge/magistrate determining whether PC exists.)
 Formalism is enacted here.
 This was a regulatory offense “mens rea”
 This was abuse of discretion according to JONES; Gives unfettered discretion;
the courts question is only if it was “REASONABLE?”
 Jones: “This approach makes sense if Katz is not the starting point.”
 Tradition----bright line rule; Can we trust the police? If so then majority view
makes sense
 Has problem with being able to arrest under the violation here, he believes
that each case should be ad hoc with individualized determinations.
o Majority Souter: No. Petitioner contends that founding-era common-law rules
forbade peace officers to make warrantless misdemeanor arrest except in cases of
breach of peace. The court says that this argument ultimately fails because there is
disagreement, not unanimity, among both the common-law jurists and the text writers
who sought to pull the cases together and summarize the accepted practice.
 For example, Sir William Blackstone and Sir Edward East spoke to nonfelony
offenses saying “he may, without warrant, arrest any one for a breach of
peace, and carry him before a justice of the peace.” In the edition nearest to
the date of the Contitution’s framing, Sergeant William Hawkins’ widely read
Treatise of the Pleas of Crown generalized from Holyday that “from reason of
this case it seems to follow that warrantless arrest of any other offenders..from
offences in like manner scandalous and prejudicial to the public, may be
justified.” Furthermore, the “divers Statutes” authorized warrantless
misdemeanor arrests without reference to violence or turmoil. The Court's
common law analysis supported the proposition that a police officer could
arrest any person for a misdemeanor committed in his or her presence.
Atwater had urged the Court to adopt a "bright-line" rule that the police not
arrest anyone for an offense that did not carry jail time unless the government
could show a compelling need to detain the person. The Court conceded, this
rule appeared easily administrable by police officers, which would serve the
government's interest in rules that are easy to apply on the spot. But in
thinking through many possible applications of the rule Atwater proposed, the
Court found it more difficult to apply.
 Court opinion stated that it is not reasonable to expect the average police
officer to know the details of "frequently complex penalty schemes,"
especially since the penalty associated with seemingly identical conduct can
vary with the facts that are difficult to discern at the scene of a crime, such as
whether the suspect is a repeat offender or the weight of drugs. Furthermore,
even if the officer could make that distinction on the spot, he could not know
how the district attorney will later choose to charge the offense. Police
routinely exercise discretion in their work. Requiring the police to decide
whether a crime is a fine-only crime, for which he could not arrest the suspect,
in the heat of the moment ultimately exposes the police to greater legal
consequences—either exclusion of illegally obtained evidence, or personal
liability for violating the suspect's constitutional rights.
 Balancing of Fourth Amendment interests through “probable cause” and
“extraordinary” circumstances has been delineated. Given the choice to
abandon or abridge the requirement of probable cause for arrest in the case of
fine-only misdemeanors, the Court ruled that the Fourth Amendment imposed
the same standard for all crimes: probable cause. The Court's decision in this
case ultimately involved the extent of law-enforcement discretion in
exercising their duties.
o Dissent: (O’Connor, Stevens, Ginsburg, Breyer) not uniform in rejecting Atwater's
proposed rule and reasoned that the Fourth Amendment required a balancing of
interests in the case of an arrest for a fine-only misdemeanor. The court dissent in
Atwater precluded the sole use of probable cause, where the Court had held that, on
balance, it was reasonable to allow the police to make a traffic stop whenever they
spied a violation of the traffic laws, although a traffic stop was a seizure. But, because
of the length of the typical traffic stop and the fact that most drivers are free to go
after it is done, such a seizure was commensurate with the magnitude of the violation
and sufficient to ensure that the offender would appear later in court if necessary. In
Atwater, the dissent also argued that Atwater could not have been characterized as a
possible flight risk by the arresting officer, since she was known to him and was an
established member of the community. They further noted that arrest for a fine-only
misdemeanor was not reasonable because sending someone to jail for up to 48 hours
(the time necessary to get him or her before a magistrate to be released) was too great
an intrusion upon the personal liberty interests of anyone who had committed a
relatively minor offense as would only merit such a fine as punishment.
 The Atwater dissenting court opinion states, “A broad range of conduct falls
into the category of fine-only misdemeanors... Such unbounded discretion
[given to law enforcement] carries with it grave potential for abuse. The
majority takes comfort in the lack of evidence of ‘an epidemic of unnecessary
minor-offense arrests’." Reasoning beyond the case of a misdemeanor arrest
for a seat-belt-law violation, Justice O'Connor’s dissenting court opinion
further cautions, “The Court’s error, however, does not merely affect
disposition of this case. The per se rule that the Court creates has potentially
serious consequences for the everyday lives of Americans.” Justice O’Connor
concludes the court’s dissent by stating, “The Court neglects the Fourth
Amendment’s express command in the name of administrative ease. In so
doing, it cloaks the pointless indignity that Gail Atwater (and her children)
suffered with the mantle of reasonableness.”
**Control---how far?:
o upheld searches of an entire place:
 Weeks:
 Agnello:
 Rabinovitz: a warrantless search incident to a lawful arrest may generally
extend to the area that is considered to be in the possession or under the
control of the person arrested.
 Mcdonald:
15. Chimel v. California (IMMEDIATE-REACH SEARCHES ARE ALLOWED WHEN AN ARREST IS
MADE): Police arrived at Chimel D’s home with a warrant to arrest him for burglary (NO
WARRANT FOR SEARCH). The officers knocked on the door and announced themselves to
Chimel’s wife, who then let them into the home to wait for Chimel to arrive. D arrived about
fifteen minutes later and police gave him the arrest warrant and asked permission to search
the house. Chimel refused, but the police told him they were going to search the house
anyway because they had the authority to do so incident to a lawful arrest. The police
searched the entire house, including the attic and garage. The police also had Ds wife open
several drawers in the sewing room and move things aside so they could see clearly. Several
items were seized including coins medals tokens and other objects.
o Ad hoc approach v. Bright-line approach
o Can police search an accused criminals entire home incident to a lawful arrest?
o PURSUANT TO A LAWFUL ARREST, THE POLICE MAY CONDUCT A SEARCH OF ANY
AREA WITHIN THE IMMEDIATE REACH OF THE ACCUSED CRIMINAL.
o JONES: this case holds the Katz line/ could be a due process issue
o Majority by Stewart:
 No. Based on the fundamental tenet that license to conduct a search without
prior judicial approval should be strictly circumscribed by the necessities of
the moment, the scope of the search incident to arrest is limited to the person
of the arrestee, including pockets, and the grabbable space from which he
could reach weapons or evidence. The search must occur at the time of the
arrest; once the subject is securely in custody and the immediate exigencies of
the arrest disappear, so too does the excuse for circumventing the warrant
process. Thus, a search is deemed incident to an arrest only if it is
substantially contemporaneous with it, and confined to the immediate
vicinity of the arrest. [note that this is a 1969 case and that the scope of
searches incident to arrest has grown considerably].
 When an arrest is made, it is reasonable for the arresting officer to search the
person arrested in order to remove any weapons that the latter might seek to
use in order to resist arrest or for his escape. Otherwise, the officer’s safety
might well be endangered, and the arrest itself frustrated. In addition, it is
entirely reasonable for the arresting officer to search for and seize any
evidence on the arrestee’s person in order to prevent its concealment or
destruction. And the area into which an arrestee might reach in order to grab a
weapon or evidentiary items must, of course, be governed by a like rule.
 As a bright-line rule, the passenger compartment of every car is within
the grabbable area.
 Court problem they want to intervene with: If limited to exigency only, there is
no justification for search of the whole house. If this was allowed every arrest
would be a search warrant.
o Dissent by White & Black: Would permit a search incident to arrest with a wider
scope. Where, as here, the existence of probable cause is independently established
and would justify a search as broad as would be permitted with a warrant for a search
for evidence, I would follow past cases and permit such a search to be carried out
without a warrant, since the fact of arrest supplies an exigent circumstance justifying
police action before the evidence can be removed. This view would not support a
general search; it would only be as broad as if the officers had a warrant.
 Since Chimel, the Court has broadened the scope of the exception in
significant ways. First, it has increased the license to search the immediate
area by authorizing seizure and opening of containers. U.S. v. Robinson held
that a cigarette pack found on the arrestee’s person could be removed and
opened by the officer at the time of the arrest. An important limitation is that
this must occur contemporaneously with the arrest. Where agents seized a
footlocker during an arrest but did not open it until an hour later back at their
office, the search was unlawful – the exigent circumstances created by the
arrest no longer existed, thus a warrant was required to search the contents of
the private receptacle. See U.S. v. Chadwick.
16. US v. Robinson: A DC police officer stopped a 1965 Cadillac based on reliable information
that the drivers operating license had been revoked. All three occupants exited the car, and
the officer arrested the driver, Robinson. The officer proceeded to search Robinson, and felt a
package whose contents the officer could not immediately identify. Upon removing the
package—a crumpled cigarette packet—and opening it, the officer discovered 14 gelatin
capsules of white powder that turned out to be heroin. Court upheld the search.
o Incident to a lawful arrest, even for a driving violation, a thorough search (frisk) of an
arrestee’s person for weapons and also to prevent the concealment or destruction of
incriminating evidence is reasonable under the Fourth Amendment of the United
States Constitution (”Constitution”)
o JONES: could be a crime control issue
o Issue. May a police officer conduct a thorough search of a person beyond frisking for
weapons when the arrestee has committed only a traffic offense?
o Yes. A search of an arrestee’s person beyond frisking for weapons is reasonable
under the Fourth Amendment of the Constitution, even where there is no reason to
believe the arrestee committed any crime other than the traffic violation.
o Dissent. Where there is no evidence that an arrestee committed any other crimes
besides a traffic violation, the police may not conduct a search beyond frisking for
weapons. Any additional search is unreasonable under the Fourth Amendment of the
Constitution.
o Discussion. Once a person has been lawfully arrested, the police may conduct a
search of the arrestee beyond frisking for weapons, in order to preserve any
incriminating evidence.
17. Maryland v. Buie: Police officers entered the Respondent’s home to arrest him. After the
Respondent emerged from his basement, a police officer entered the basement to ensure no
one else was in the there. While the officer was in the basement, he found evidence linking
the Respondent to the robbery that had led to the Respondent’s arrest. The Respondent was
subsequently found guilty of robbery.
o When police have a reasonable belief that a serious danger exists, they are allowed to
carry out a protective sweep
o Is probable cause that a serious danger exists required before police perform a
protective sweep after arresting a person in his home?
o No. Only a reasonable belief (reasonable suspicion) that a serious danger exists is
required before police perform a protective sweep after arresting a person in his
home.
o Dissent. Probable cause should be the standard applied for protective sweeps because
of the sanctity of the home, and level of intrusion that is caused by a protective sweep
o Discussion. Under the Fourth Amendment, searches going beyond the scope of a
warrant are allowed when the search is objectively carried out for the safety of police.
18. New York v. Belton: A New York state police officer pulled over a speeding vehicle, with
four occupants, including Roger Belton ["the respondent"]. The vehicle belonged to none of
the men present. The police officer smelled burnt marijuana, and saw an enveloped
associated with the drug. He ordered the men out, arrested them for possession. He split them
up, confiscated the drug, and searched each of them. He then searched the passenger
compartment of the car, and found the respondent’s leather jacket. He found cocaine in one
of the pockets.
o Jones:
o “. . .when a policeman has made a lawful custodial arrest of the occupant of an
automobile, he may, as a contemporaneous incident of that arrest, search the
passenger compartment of that automobile. . .including exmaing the contents of any
containers found there.”---meaning you can search glove compartment, bags. . .etc.
o For arrests of persons stopped in automobiles, the Court has designated the entire
interior of the passenger compartment (as well as containers found there) as within
the proper scope of a contemporaneous search incident to arrest, even if the subjects
have already been removed from the vehicle and cannot actually reach into it. This is
another BRIGHT LINE RULE. So, under Belton, a trunk of a sedan would be off limits
but the entire interior of an Escalade could be subject to search if done
contemporaneously with the arrest. [This is the case that Scalia argues should be
overturned in this concurring opinion in Arizona v. Gant; also remember that the
majority opinion in Arizona v. Gant by Stevens complains that lower courts have
been applying this holding too broadly].
o ROBINSON AND BELTON REPRESENT AN IMPORTANT TREND IN 4TH AMENDMENT
JURISPRUDENCE – THE REJECTION OF AN AD HOC REVIEW IN FAVOR OF
CATEGORICAL RULES. In Robinson, the Court rejected the proposition that there must
be litigated in each case the issue of whether or not the rationale supporting the search
incident to arrest exception applied. Recognizing that a police officer’s
determination as to how and where to search the arrestee is necessarily a quick ad
hoc judgment, the Court granted blanket authority to conduct the search, not
dependent on whether in the particular case there actually was a need to secure
weapons or evidence. As long as the arrest is lawful, no additional justification is
required to conduct a search incident to it. Similarly, in Belton, the Court observed
that a single, familiar standard is essential to guide police officers, who have only
limited time and expertise to reflect on and balance the social and individual interests
involved in the specific circumstances they confront.
o The right to search is premised on an arrest actually occurring. A unanimous court
held that an officer who opts to issue a traffic citation to a suspect in lieu of arrest
may not conduct a search. Knowles v. Iowa. In the absence of an arrest, neither
rationale of Chimel – protection of the officer and prevention of the destruction of
evidence – applies.
o The scope of a search incident to arrest was expanded yet again in Maryland v. Buie
to permit a protective sweep of the premises when police make an arrest in a home.
The officers are authorized to search areas (including closets and other spaces) in the
immediate vicinity of the arrest from which an attach could be launched against them.
Where the police have reasonable suspicion to believe they are in danger from
accomplices lurking elsewhere, they may also make a cursory inspection of those
other spaces, but the sweep may last no longer than is necessary to dispel the
reasonable suspicion of danger (and in any event must end by the time the arrest is
complete and the suspect is removed from the premises).
19. Thornton v. US: After a police officer noticed that the car Petitioner was driving had a
stolen license plate, the officer stopped Thornton to question him. After asking if he could
search him, the officer found two bags of drugs on Petitioner’s body. At that point, he
searched his vehicle and found a gun. Thornton was convicted of drug and firearms offenses
and he moved to have the gun dismissed because it was found as the result of an
unconstitutional search. The Fourth Circuit found that the gun fell within the search incident
to arrest exception and affirmed the conviction.
o under the search incident to arrest exception of the Fourth Amendment, an officer
may search the vehicle of a person after they have been arrested.
o Whether, under the “search incident to arrest” exception to the Fourth Amendment, it
is appropriate to allow evidence obtained when an officer searches the vehicle of a
person they have arrested, despite the fact that they did not make contact with the
person until after they left the vehicle.
o JONES: Exigency becomes fictional in this case because of the move to a bright line
rule; Police can search within the grabbable area.
o Rhenquist Majority:
 The rule stated by the United States Supreme Court in New York v Belton--that when a police officer made a lawful custodial arrest of an occupant of an
automobile, the Federal Constitution's Fourth Amendment allowed the officer
to search the vehicle's passenger compartment as a contemporaneous incident
of arrest--applied even when, as in the instant case, the officer first made
contact with the arrestee after the arrestee left the vehicle. So long as an
arrestee was the sort of "recent occupant" of a vehicle such as the arrestee in
the instant case, officers could search the vehicle incident to the arrest, as:
 (1) In Belton, the court had placed no reliance on the fact that the
officer in that case had ordered the occupants out of the vehicle, or
initiated contact with them while they remained within the vehicle.
 (2) The court did not find such a factor persuasive in distinguishing the
instant case, as this factor bore no logical relationship to the Belton's



rationale, for there was no basis to conclude that the span of the area
generally within the arrestee's immediate control was to be determined
by whether (a) the arrestee exited the vehicle at the officer's direction;
or (b) the officer initiated contact with the arrestee while the arrestee
remained in the vehicle.
(3) In all relevant aspects, the arrest of a suspect who was next to a
vehicle presented identical CONCERNS REGARDING OFFICER SAFETY
and the DESTRUCTION OF EVIDENCE as did the arrest of a suspect who
was inside the vehicle, for (a) a custodial arrest was fluid; (b) the
danger to the police officer flowed from the arrest and its attendant
proximity, stress, and uncertainty; and (c) the stress was no less
because the arrestee exited the vehicle before the officer initiated
contact.
(4) In some circumstances it might be safer and more effective for
officers to conceal their presence from a suspect until the suspect had
left the vehicle, where (a) under the "contact initiation" rule proposed
by the arrestee in the instant case--which would have allowed a search
of the vehicle only when the officer had initiated contact with the
arrestee--officers, by concealing their presence, would (i) potentially
compromise their safety, and (ii) place incriminating evidence at risk
of concealment or destruction; and (b) the Fourth Amendment did not
require such a gamble.
(5) The proposed "contact initiation" rule would obfuscate the
constitutional limits of a Belton search and would be impracticable, for
(a) under the proposed rule, an officer approaching a suspect who had
just alighted from a vehicle would have to determine whether (i) the
officer had confronted or signaled confrontation with the suspect while
the suspect remained in the vehicle, or (ii) the suspect had exited the
vehicle unaware of, and for reasons unrelated to, the officer's presence;
and (b) this determination would (i) be inherently subjective and
highly fact specific, and (ii) require precisely the sort of ad hoc
determinations by officers [***908] and reviewing courts that Belton
had sought to avoid.
o BELTON GOVERNS EVEN WHEN AN OFFICER DOES NOT MAKE CONTACT UNTIL THE
PERSON ARRESTED HAS LEFT THE VEHICLE. In Belton, the Court placed no reliance
on the fact that the officer ordered the occupants out of the vehicle, or initiated
contact with them while they remained within it. And HERE, there is simply no basis
to conclude that the span of the area generally within the arrestee's immediate
control is determined by whether the arrestee exited the vehicle at the officer's
direction, or whether the officer initiated contact with him while he was in the car. In
all relevant aspects, the arrest of a suspect who is next to a vehicle presents identical
concerns regarding officer safety and evidence destruction as one who is inside.
o Under petitioner's proposed "contact initiation" rule, officers who decide that it may
be safer and more effective to conceal their presence until a suspect has left his car
would be unable to search the passenger compartment in the event of a custodial
arrest, potentially compromising their safety and placing incriminating evidence at
risk of concealment or destruction. The Fourth Amendment does not require such a
gamble. BELTON ALLOWS POLICE TO SEARCH A CAR'S PASSENGER COMPARTMENT
INCIDENT TO A LAWFUL ARREST OF BOTH "OCCUPANTS" AND "RECENT
OCCUPANTS." Ibid. While an arrestee's status as a "recent occupant" may turn on his
temporal or spatial relationship to the car at the time of the arrest and search, it
certainly does not turn on whether he was inside or outside the car when the officer
first initiated contact with him.
o Although not all contraband in the passenger compartment is likely to be accessible to
a "recent occupant," THE NEED FOR A CLEAR RULE, readily understood by police and
not depending on differing estimates of what items were or were not within an
arrestee's reach at any particular moment, justifies the sort of generalization which
Belton enunciated.
o Under petitioner's rule, an officer would have to determine whether he actually
confronted or signaled confrontation with the suspect while he was in his car, or
whether the suspect exited the car unaware of, and for reasons unrelated to, the
officer's presence. Such a rule would be inherently subjective and highly fact specific,
and would require precisely the sort of ad hoc determinations on the part of officers in
the field and reviewing courts that Belton sought to avoid. 325 F.3d 189
o Scalia Concurrence: this was the question in Chimel, is search incident to arrest a
right or an exception to a rule based on exigency. (Chimel: we allow a search because
it fits into an exception.) Here, court says we should have a RIGHT to search!
o O’Connor Concurrence:
o Stevens/Souter Dissent:
20. Knowles v. Iowa: Petitioner Knowles was stopped for driving 43 mph in a 25 mph zone. The
officer issued a citation, and then searched the petitioner’s car, discovering a bag of
marijuana and a pipe. Under Iowa code, an officer may arrest a traffic violator, or he may
issue a citation. The law permitted a search of the vehicle in either case. Knowles moved to
suppress the evidence obtained arguing that the search could not be sustained under the
“search incident to arrest” exception recognized in US v. Robinson because he had not been
placed under arrest.
o “[W]hether [issuing a citation or similar] such . . . procedure authorizes the officer,
consistently with the Fourth Amendment, to conduct a full search of the car.”
o An officer issuing a traffic citation cannot search the cited person’s vehicle.
o JONES:
o Majority by Rehnquist: No. An officer can conduct a search-incident-to-arrest when
he arrests someone. However, when the police officer has the legal ability to arrest
someone, but chooses not to and instead only gives him a citation, then he does not
have the legal ability to conduct such a search.
o In Robinson, WE NOTED TWO REASONS FOR THE SEARCH-INCIDENT-TO-ARREST: (1) TO
DISARM THE ARRESTEE IF NECESSARY AND (2) TO PRESERVE EVIDENCE. For the
former, the court reasoned that “a routine traffic stop . . . is a relatively brief
encounter.” For the latter, the court argued that once the respondent was issued a
citation “all the evidence necessary to prosecute that offense has been obtained. No
further evidence was going to be found either on the person of the offender or in the
passenger compartment of the car.”
o In Robinson, we held that the authority to conduct a full-field search as incident to
arrest was a BRIGHT LINE RULE which was based on the concern for officer safety and
destruction or loss of evidence but which did not depend in every case upon the
existence of either concern. Here we are asked to extend that BRIGHT-LINE RULE to a
situation where the concern for officer safety is not present to the same extent and
the concern for destruction or loss of evidence is not present at all. We decline to do
so.
o The court was unwilling to extend a rule of “search incident to citation” in a situation
“where the concern for officer safety is not present to the same extent and the concern
for the destruction or loss of evidence is not present at all.” Knowles v. Iowa
o This case makes the officers authority to search dependent on the fact of arrest, but
the fact of arrest is in turn wholly within the discretion of the officer---and the officer
is not bound by his initial announcement that the suspect is under arrest.
21. Two models become: KATZ & TERRY
22. REASONABLENESS NOTE:
o Wilson v. Leel; a shopkeeper was wounded during an attempted robbery but at the
same time wounded the assailant. The issue here involved a proposed search for the
shopkeepers bullet, which was lodged in the side of the criminal. The court
determined that on the facts, searching for the evidence---even with probable cause
and judicial authorization---would be unreasonable, given where the bullet was
located.
STOP AND FRISKS
23. Terry v. Ohio: A police officer (McFadden, 39 yrs experience) observed two men (Chilton
and Terry) standing on a corner for a long time. They then walked down the street, peered
into a store window, and turned around to walk back to the corner again. This series of events
happened several times. At one point, another man approached the two men and spoke with
them and then walked in the other direction. He then came back and they followed him. The
officer suspected the men were casing the store before committing a robbery. He stopped
them to ask for their names. When the men failed to answer audibly, the officer spun Terry
around (engaging in self protective act) and patted down the outside of his overcoat for a
weapon. Upon feeling a gun, the officer ordered the men into a store, where he removed
Terry’s overcoat and retrieved the gun. After finding a gun on another man, the men were
arrested. (1st case store, 2nd confronts them, 3rd questions them, 4th questions do not dispel
suspicions, 5th pat down)
o JONES VIEW:
 Nature of intrusion [seizure or something less? Arrest (PC)---stop(RS)]
 Court says this is a minimal intrusion, not the same as being handcuffed and
taken to jail.
 RS is standard to determine legitimacy of the officer’s action.
 Must have articuable facts that are clear and reasonably specific.
 Give us two things: (1) Objective, (2) individualized suspicion.
 Pat down does not equal a search.
 Purpose (protective) and Degree of intrusiveness
 Holding is result of a balancing test. . . i.e. police safety v. individual rights
 “What we are witnessing is a sliding scale in which the level of justification
varies with the degree of intrusion.”

Attempting to prevent future criminal activity; police need to engage in
predictive evaluations.
 New line of authority to balance, How much of a search/frisk is it? Under
Katz, the question is was there a search?
o If the police have a reason to believe a suspect has committed a crime or is about to
commit a crime, may they conduct a stop on less than PC?
o If the police have reasonable suspicion that a suspect has committed a crime or is
about to commit a crime, they may stop the person, detain him briefly for
questioning, and then frisk the suspect if they reasonably believe the suspect is
carrying dangerous weapon.
o Majority opinion by Warren: Recognizing the important of the “stop & frisk” in the
scheme of effective law enforcement, SCOTUS set a new level of justification –
reasonable suspicion (common sense) – which falls below probable cause. In
appropriate circumstances and in an appropriate manner officers may briefly detain a
person to investigate possible criminal activity. The court invoked the 4th
amendment’s reasonableness clause to fashion this standard, which is lower than
probable cause.
 The court weighed the governmental interest in conducting stops and frisks
against the interference with individual liberty and concluded that the officer
must be prepared to articulate the specific facts giving rise to reasonable
suspicion that criminal activity may be afoot. Because the additional step of
patting down or frisking constitutes a further intrusion, it requires additional
justification: a reasonable suspicion that the suspect may be armed and
dangerous.
 The court distinguished between an investigatory stop and an arrest, and
between a frisk of the outer clothing for weapons and a full-blown search for
evidence of crime. The frisk, it held, was essential to the proper performance
of the officer’s investigatory duties, for without it the answer to the police
may be a bullet, and a loaded pistol discovered during the frisk is
admissible.
 Suffice it to note that such a search, unlike a search without a warrant incident
to a lawful arrest, is NOT JUSTIFIED BY ANY NEED TO PREVENT THE
DISAPPEARANCE OR DESTRUCTION EVIDENCE OF CRIME. The SOLE
JUSTIFICATION OF THE SEARCH IN THE PRESENT SITUATION IS THE
PROTECTION OF THE POLICE OFFICER AND OTHERS NEARBY, and it must
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therefore be confined in scope to an intrusion reasonably designed to discover
guns, knives, clubs, or other hidden instruments for the assault of a police
officer.
The scope of such the protective search is limited by the exigencies that
justify its initiation and is therefore restricted to that which is necessary to
discover weapons.
Under Terry, an officer conducting an investigative stop & frisk need not (as
with probable cause to arrest) have reason to believe that a crime has been
committed; it is enough if the officer has reason to believe a crime is about to
be committed.
The definition of reasonable suspicion is a flexible one: based upon the whole
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picture the detaining officers must have a particularized and objective basis
for suspecting the particular person stopped of criminal activity. Reasonable
suspicion is considerably less than proof by a preponderance of the evidence,
but considerable more than an inchoate and unparticularized suspicion or
hunch.
What constitutes a stop? Not all interaction with police is a stop. The 4th
amendment is implicated only when the officer, by means of physical force or
show of authority, has in some way restrained the liberty of the subject. In
defining stop, ask whether you think the subject has been seized? In defining
what constitutes a stop (or seizure) the COURT USES AN OBJECTIVE TEST:
 A person has been seized within the meaning of the 4th amendment
only if, in view of all the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave.
U.S. v. Mendenhall; see also Hodari B, Bostick, Drayton.
No seizure occurs where the police have not yet caught the subject or placed
any physical restraint upon him. So, where the suspect actually flees, he is not
seized at that time, he’s running! There must be actual application of force or
submission to police authority for a seizure to occur. Hodari D.
In order to determine whether a particular encounter constitutes a seizure, a
court must consider all the circumstances surrounding the encounter to
determine whether the police conduct would have communicated to a
reasonable person that the person was not free to decline the officers request
or otherwise terminate the encounter. Bostick.
What constitutes a restraint on liberty prompting a person to conclude that he
is not free to leave will vary, not only with the particular police conduct at
issue, but also with the setting in which the conduct occurred. .
Concurrence White/Harlan: in order for a frisk to protect an officer to be
justified, the officer must first have constitutional grounds to insist on an
encounter and make a forcible stop. When the reason for the stop is an
articuable suspicion of a crime of violence, however, the right to frisk must be
immediate and automatic.
Dissent Douglas: by holding that a police officer may stop a person based
only upon reasonable suspicion that a crime has been committed, the court
gives the police greater authority to make a seizure and conduct a search than
a judge has to authorize such actions. To give the police greater power than a
magistrate is to take a long step down a totalitarian path. Even if this is a
desirable step, it should be taken by the people through a constitutional
amendment.
Analysis: The result of the Terry decision has been a significant diminution in
the role of the Warrant Clause in the 4th amendment jurisprudence. Terry
provided the impetus for the SCOTUS to move away from the proposition that
warrantless searchers are per se unreasonable, to the competing view that the
appropriate test of police conduct is not whether it was reasonable for police
to have secured a search warrant, but whether the search was
reasonable.(KATZ V. TERRY) Also, the Court now takes into consideration
the level of intrusiveness of each search, instead of treating all searches and
seizures alike.
24. STOP AND FRISK NOTES:
o US v. Place: The respondent Raymond Place was met on a Friday by drug
enforcement agents on arrival at the airport and he refused to consent to a search of
his bags, leading an agent to tell him that they were going to take the bags to a judge
to get a search warrant. The agents took the bags to another airport to have the drug
detection dogs sniff them, and the dogs reacted positively ninety minutes after seizure
of the bags. The agents kept the bags over the weekend, and on Monday they were
able to get a search warrant for the bags which yielded cocaine. The trial court
convicted the respondent of drug possession, and the Second Circuit Court of Appeals
reversed, claiming that such a prolonged seizure of the respondent’s baggage
amounted to a seizure without probable cause counter to the Fourth Amendment. The
government was granted certiorari.
 Does the seizure of a person’s luggage for an entire weekend until a warrant
may be procured violate the Fourth Amendment as exceeding the limits of a
Terry stop? Is the “canine sniff” of a narcotics dog a search for Fourth
Amendment purposes?
 Seizing a person’s luggage for an entire weekend until a warrant may be
obtained violates the Fourth Amendment as beyond the scope of a valid Terry
stop. Also, a sniff by a well-trained narcotics dog that does not require
opening of the luggage is not a search for Fourth Amendment purposes.
 Affirm the decision of the Second Circuit. When there is reasonable
suspicion that a traveler is carrying narcotics in their luggage, the concepts of
Terry allow the officer to detain the luggage temporarily to investigate the
circumstances, as long as the investigative detention is appropriately limited
in scope. However, the actions here went beyond the scope allowable under
Terry since the luggage was held for three days, thus it is in violation of the
Fourth Amendment.
 The agents’ failure to tell the respondent where the bags were being
transported to, how long they may be gone, and how they would be returned if
no suspicion of criminal activity remained, made the unreasonableness of their
actions under the Fourth Amendment even more clear.
 A drug-sniffing dog’s actions are not invasive enough of privacy to constitute
a search under the Fourth Amendment.
 Concurrence. Justice William Brennan stated that the Fourth Amendment was
violated as soon as the respondent’s luggage was seized by the
officers. Justice Harry Blackmun expressed the view that the validity of a
drug dog sniff under the Fourth Amendment should not even have been
opined upon under these facts.
o US v. Sharpe; a fed drug agent and a highway patrolman, in separate cars, attempted
to stop a Pontiac and a blue pickup with an attached camper on suspicion that the
vehicles, which were traveling in tandem, were transporting contraband. HPO
Thrasher pulled alongside the car driven by D Sharpe, and signaled driver to stop.
The D Savage drove his pickup truck between Thrasher and Sharpe, nearly hitting the
HPO and drove on. DEA Agent Cooke remained with Sharpe while Thrasher went
after Savage. Cooke radioed for local police help. Cooke joined Thrasher after locals
arrived and they removed Savage from the truck. They smelled weed and the Cooke
conducted a search where they found large amounts of weed. Twenty minutes have
elapsed between the intital stop of Savage and the search.
 Government argued that this time did not exceed that standard set by Terry.
 Also argued that the smell of the weed was enough PC for the search and the
automobile exception justified the warrantless search.
 Chief Justice Berger upheld the search
 “. . .but our cases impose no rigid time limitation on Terry Stops.
While it is clear that the brevity of the invasion of the individuals 4th
amendment interests is an important factor in determining whether the
seizre is so minimally intrusive as to be justifiable on reasonable
suspicion, we have emphasized the need to consider the law
enforcement purposes to be served by the stop as well as the TIME
REASONABLY NEEDED to effectuate those purposes.”
 “ . . .common sense and ordinary human experience must govern rigid
criteria”---he says bright-line rule is desirable but that common sense
works better. i.e. ad hoc approach v bright line
 “In asserting whether a detention is too long in duration to be justified
as an investigative stop, we consider. . .to examine whether the police
diligently pursued a means of investigation that was likely to confirm
or dispel their suspicions quickly, during which time it was necessary
to detain the defendant.”
o “The question is not simply whether some other alt was
available, but whether the police acted unreasonably in failing
to recognize and pursue it.”
 Justice Marshalls view:
o “ Fidelitly to the ratioanles that justify Terry stops reuires that
the intrusiveness of the stop be measure separately from law
enforcement needs.”
o “A stop must first be found not unduly intrusive, particularly in
its length, before it is proper to consider whether law
enforcement aims warrant limted investigation.”
o Said 20 minutes was to long but only because Savage ran away
causing delay.
25. Bright-Line Rule Favoring aka SAFETY OF OFFICERS:
o Pennsylvania v. Mims; The D was lawfully stopped for driing with an expired license
plate and was ordered out of his car. AS the D emerged from the car the officer notice
a large bulge under his sports jacket. A frisk revealed the bulge to be a gun.
 Issue is whether the officer had acted properly under Terry in commanding the
D to exit his vehicle.
 Court holds that “establishing a face 2 face confrontation diminishes the
possibility, that the driver can make unobserved movements; this in turn
reduces the likelihood that the officer will be victim of assault”
 The officer prudently may prefer to ask the driver of the vehicle to step out of
the car and off onto the shoulder of the road where the inquiry may be pursued
with greater safety to both.
o Same Anaylsis RE Passengers: Maryland v. Wilson
 Court says you can do the same with passengers because they are already
stopped
 They say that the only difference is you would be outside of your car instead
of inside and that the officer’s safety trumps this difference.
o Michigan v. Long: two cops on patrol in rural area when they observed a car traveling
erratically and speeding. Car swerved into a shallow ditch. Officers stopped to
investigate. Long was at the rear of the car and the drivers side door was open.
Officer asked long for his license but he did not respond. Request repeated and Long
provided it. Long again failed to respond after requested for his registration. Long
appeared to be under the influence of something. Officers saw a large knife on the
floor of the car. They pat down searched Long, revealing nothing. Officers flashed
their light in the car looking for weapons but found bag of weed instead.
 Justice O’Connor: “even though suspect was outside of car at the time it is
searched, because a stop is a temporary intrusion, the suspect “will be
permitted to reenter the automobile, and he will then have access to any
weapons inside.” Search Permissible.
 Terry-type search: 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. . .have RS to belive that the suspect is dangerous. .
.may gain immediate control of the weapons.
 Dissent Brennan: argued that officers could have pursued a less intrusive but
equally effective means of ensuring their safety by getting the regristration
themselves.
o These stop and frisks are DISTINGUISHED FROM DICKERSON because in
Dickerson where the frisk was illegally the officer felt that the object was not a
weapon and the manipulating and squeezing of it exceeded the scope of the search.
o IN CASES LIKE MIMS, WILSON, AND LONG, THE COURT HAS BEEN CONSIDERABLY
LESS WILLING TO TOLERATE ELABORATIONS ON THE STOP AND FRISK AUTHROITY
IN THE ABSENCE OF OFFICER SAFETY CONCERNS.
26. Florida v. JL: Police received an anonymous call that a young black male standing at a
particular bus stop and wearing a plaid shirt was carrying a gun. So far as the record reveals,
there is no audio recording of the tip, and nothing is known about the informant. Sometime
after the police received the tip, the record does not say how long, two officers were
instructed to respond. They arrived at the bus stop about six minutes later and saw three
black males “just hanging out [there]”. One of the three, J.L, was wearing a plaid shirt. Apart
from the tip, the officers had no reason to suspect any of the three of illegal conduct. The
officers did not see a firearm, and J.L made no threatening or otherwise unusual movements.
One of the officers approached J.L, told him to put his hands up on the bus stop, frisked hi,
and seized a gun from J.L’s pocked. The second officer frisked the other two individuals,
against whom o allegations had been made, and found nothing.
o Jones View: Cant do a frisk in absence of reasonable suspicion!
 Anonymous Tip: Not PC, unless substantially specific. . .
 More dangerous the less information we need for RS. . .
 Is it a search?
 Was the initial intrusion justified?
 Is there reasonable suspicion? “Indicia of suspicion?”
 How evidence was obtained?
o Whether an anonymous tip that a person is carrying a gun is, without more, sufficient
to justify a police officer’s stop and frisk?
o “An anonymous tip that a person is carrying a gun is not, without more,
sufficient to justify a police officer’s stop and frisk of that person.”
o Unanimous opinion written by Ginsburg
 Absent some indicia of credibility, an anonymous tip will not support a Terry
stop. In this case, the tip provided no predictive information and therefore left
police without means to test either the informant’s knowledge or credibility.
 Anonymous tips are generally less reliable than tips from known informants
and can form the basis for reasonable suspicion only if accompanied by
specific indicia of reliability, for example, the correctness of a subject’s “not
easily predicted” movements. An anonymous tip alone seldom demonstrates
the informant’s basis of knowledge or veracity.
 Knowledge about a person’s future movements indicates some familiarity
with that person’s affairs, but having such knowledge does not necessarily
imply that the informant knows, in particular, whether such person is carrying
hidden contraband.
 The reasonable suspicion here at issue requires that a tip be reliable in its
assertion of illegality, not just in its tendency to identify a determinate person.
 We cannot allow unverified anonymous tips to allow Terry stops. Firearms are
dangerous, but an automatic firearm exception to our established reliability
analysis would go too far. Such an exception would enable any person seeking
to harass another to set in motion an intrusive, embarrassing police search of
the targeted person simply by placing an anonymous phone call falsely
reporting the target’s carriage of a gun. POLICY ARGUMENT
 We do not say, for example, that a report of a person carrying a bomb need
bear the indicia of reliability we demand for a report of a person carrying a
firearm before the police can constitutionally conduct a frisk. Nor do we hold
that public safety officials in quarters where the reasonable expectation of 4th
amendment privacy is diminished, such as airports and schools, cannot
conduct protective searches on the basis of information insufficient to justify
searches elsewhere.
 The requirement that an anonymous tip bear standard indicia of reliability in
order to justify a stop in no way diminishes a police officer’s prerogative, in
accord with Terry, to conduct a protective search of a person who has already
been legitimately stopped. We speak in today’s decision only of cases in
which the officer’s authority to make the initial stop is at issues.
27. NOTE. . .United States v. Arvizu: A section of Highway 191 in Arizona serves as a border
patrol checkpoint. Roving border agents check the unpaved back roads to catch smugglers
who are seeking to avoid the checkpoint. Magnetic sensors lining the dirt roads alert agents
to such smugglers. In January 1998, one Agent Stoddard was notified that a sensor had been
triggered. Driving out to investigate, Stoddard encounter a minivan. It was the only vehicle
Stoddard encountered. The minivan is a type of vehicle favored by drug-smugglers. A family
of five occupied the van. Stoddard followed it after the driver appeared unnaturally stiff. The
children began to wave in an “unnatural pattern” at Stoddard. After turning the last road to
avoid the checkpoint, Stoddard radioed in for the vehicle’s registration, and then pulled the
vehicle over upon learning that the owner lived in a high drug-traffic area. He asked the
respondent, Ralph Arvizu, if he could search the van. He found over 100 lbs of marijuana in
the van.
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Synopsis of Rule of Law. “When discussing how reviewing courts should
make reasonable-suspicion determinations, we have said repeatedly that they
must look at the “totality of the circumstances” of each case to see whether the
detaining officer has a ‘particularized and objective basis’ for suspecting legal
wrongdoing.
 Whether certain factors, “alone . . . susceptible to innocent explanation, and
some factors are more probative than others, taken together . . . sufficed to
form a particularized and objective basis for stopping the vehicle” in
compliance with the Fourth Amendment.
 Yes. The court built its analysis on Terry’s reasonable-suspicion standard. In
light of that, the Court reiterated that courts “must look at the ‘totality of the
circumstances’ of each case to see whether the detaining officer has a
‘particularized and objective basis’ for suspecting legal wrongdoing.” This
standard “allows officers to draw on their own experience and specialized
training to make inferences from and deductions about the cumulative
information available to them that ‘might well elude an untrained person.’”
 The appeals court erred by eliminating the seemingly innocuous behavior of
the driver and the children, in light of the other circumstances, such as the
van’s presence on a road know to smugglers without any overt reason and its
evasion of the check point. “Stoddard was entitled to make an assessment of
the situation in light of his specialized training and familiarity with the
customs of the area’s inhabitants.”
 In conclusion, “having considered the totality of the circumstances and given
due weight to the factual inferences drawn by the law enforcement officer and
District Court Judge, [the court held] that Stoddard had reasonable suspicion
to believe that respondent was engaged in illegal activity.”
 Concurrence. J. Scalia, agreed with the analysis of the court, but did not “see
how deferring to the District Court’s factual inferences (as opposed to its
findings of fact) is compatible with de novo review.”
 “In making reasonable-suspicion determinations, reviewing courts must look
at the “totality of the circumstances” of each case to see whether the detaining
officer has a “particularized and objective basis” for suspecting legal
wrongdoing.”
28. JONES Says. . . Starting to see a battle between: Rule Based Structure (TERRY)<---------------->Totality of Circumstances structure
29. Illinois v. Wardlow(FLIGHT ALONE IS NOT INDICATIVE OF WRONGDOING):
Officers Nolan and Harvey were working as uniformed officers in the special operations
section of the Chicago PD. The officers were driving the last car of a four car caravan
converging on an area known for heavy narcotics trafficking in order to investigate drug
transactions. The officers were traveling together because they expected to find a crowd of
people in the area, including lookouts and customers. Nolan observed Wardlow standing next
to the building holding an opaque bag. Respondent looked in the direction of the officers and
fled. Nolan and Harvey turned their car around, watched him as he ran through the gangway
and an alley, and eventually cornered him on the street. Nolan then exited his car and stopped
respondent. He immediately conducted a protective pat-down search for weapons because his
experience it was common for there to be weapons in the near vicinity of narcotics
transactions. During the frisk, Officer Nolan squeezed the bag respondent was carrying and
felt a heavy, hard object similar to the shape of a gun. The officer than opened the bag and
found a .38 caliber handgun with five live rounds of ammunition. Wardlow was arrested.
o Is flight from police in a high crime area indicative of criminal wrongdoing?
o Flight from police is not indicative of wrongdoing, but it is certainly suggestive of
such.
o JONES SAYS:
 Factors:
 High Crime Area (can we easily define a HCA? Court Doesn’t
Define, but it is relevant. . .contextual approach comes out, idea of
police discretion.),
 Evasive Action i.e. unprovoked flight (might indicate guilt or fear thus
creating an issue of whether or not this has evidentiary significane;
Court says it does. . .there is a normative issue, the idea that we have
the freedom to go about our business, by applying this people are less
free to go about their business; also to some extent there is guilt by
association. Cut the balance in favor of liberty v. police common sense
approach i.e. courts view),
 opaque bag,
 hanging out. . .
 Mere presence does not suffice for RS
 Court says all these factors add up for RS; but then rule based structure
begins to erode and court is comfortable with it. Opens the door to racial
profiling.
o Majority by Rehnquist:
 Reversed lower courts holding that stop and frisk was unconstitutional.
 Flight alone is not itself sufficient to establish probable cause; the officer must
be able to point to other specific information. Unprovoked flight from police
in an area known for heavy narcotics trafficking may, however, be sufficient
to establish reasonable suspicion for a stop. Police should not of course be
able to transform a hunch into probable cause by reason of conduct, which
they themselves have provoked. That would have the same essential vice as a
proposition we have consistently rejected that a search unlawful at its
inception may be validated by what it turns up.
 While flight is not proof of wrongdoing, it is indicative of such. Innocent
persons might run from police officers; but flight creates ambiguity; and the
officer mat stop the person to resolve the ambiguity.
o Dissent in part and concurrence in part by Stevens:
 Concurrence: The inference we can reasonably draw about the motivation for
a person’s flight will depend on a number of different circumstances. Factors
such as time of day, the number of people in the area, the character of the
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neighborhood, whether the officer was in uniform, the way the runner was
dressed, the direction and speed of the flight, and whether the person’s
behavior was otherwise unusual might be relevant in specific cases.
Unprovoked flight, in short, describes a category of activity too broad and
varied to permit a per se reasonable inference regarding the motivation for the
activity. It would be profoundly unwise to adopt a per se rule that flight alone
gives rise to RS.
How would the issues in this case apply to a roadblock? You could use this
case as the basis to argue that avoidance of a roadblock could constitute
reasonable suspicion. However, you could also argue that where a driver
avoids a roadblock but does so in a normal manner, without violating any
traffic laws, that no reasonable suspicion occurs. Know that the legal issues
present in this case could come up in many scenarios. This case is about
evasion or avoidance of contact with law officials and whether that can lead
to reasonable suspicion.
Scope of a “Terry” Stop
 When the duration of an investigative stop ripens into the equivalent of
a full-scale arrest, then probable cause is required; a line has to be
drawn between a Terry stop and a more substantial intrusion.
Analysis: The court has held in previous cases that nervous, evasive behavior
is a pertinent factor in determining RS. Although the court stated that flight is
the consummate act of evasion, it declined to adopt a BRIGHT-LINE rule that
flight equals RS. There is concern that if such a BRIGHT-LINE rule were
adopted, it could subject to police abuse, particularly in high-crime areas.
POLICE DISCRETION AND PROFILING
30. United States v. Sokolow: Defendant was detained at the Honolulu Airport by DEA agents
who suspected him of being a drug trafficker. They searched defendant’s carry-on luggage
and found large quantities of cocaine. The agents did not secure a warrant before searching
the luggage and they claimed that they had reasonable suspicion to conduct the search. In
particular, agents claimed that the following factors gave them the reasonable suspicion:
 Defendant paid over $2K for his tickets in cash;
 Defendant was traveling under a false name;
 Defendant traveled to Miami, a city known for drug trade;
 After a long flight from Hawaii to Miami, defendant stayed in Miami for only
48 hours;
 Defendant appeared very nervous during the flight; and
 Defendant did not check in any of his luggage.
o 1. Did the search violate the Fourth Amendment? 2. Did the officers have reasonable
suspicion to perform the warrantless search?
o 1. No; 2. Yes; The Court held that that officers had reasonable suspicion that
Defendant was engaged in wrongdoing. The Court reasoned that the police can stop
and briefly detain a person for investigative purposes if they have a reasonable
suspicion supported by articulable facts that criminal activity may be afoot, even if
they lack probable cause under the Fourth Amendment. The Court noted that
reasonable suspicion entails some minimal level of objective justification for making
a stop- that is, something more than an incohate and unparticularized suspicion or
hunch, but less than the level of suspicion required for probable cause. Here, the
Court reasoned that DEA agents had a number of factors (listed above) that made
them suspicious. Even though individual factors may not be enough for reasonable
suspicion, when added together, they are indeed enough for reasonable suspicion.
Therefore, the search was constitutional under the Fourth Amendment.
o 1. Police can briefly detain and investigate if reasonable suspicion. 2. Reasonable
suspicion is more than a mere hunch, but less than probable cause.
31. People v. Kali: kali was a suspected prostitute. She was arrested not for prostitution but for
violating an obscure local ordinance requiring all bicycles to be equipped with bells. The
arrest stemmed from a police requiring strict enforcement of all laws against suspected
prostitutes. Officer testified she had never arrested anyone without a bell on their bike. Kali
eventually was convicted of a drug offense when a post-arrest inventory search tunred up a
small qty of weed. The Illinois Court of Appeals reversed, finding—even under a “rational
basis” approach—that the arrest was a violation of equal protection.
o Majority: While the state has broad discretion to enforce its laws, that discretion may
not be exercised on the basis of an arbitrary classification. . .Where heighted scrutiny
is inappropriate, the challeneged state action is presumed to be valid and will be
sustained where the classification is rationally related to a legitimate state interest. . .
 The purpose of the ordinance requiring bells does not envision the eradication
of prostitution. There is no conceivable set of facts that establishes a rational
relationship between the class of prostitutes and enforcing an ordinance
requiring bells on bikes. This requirement is irrational.
o Dissent: majority’s position for example, would bar the government from convicting
al capone of tax evasion, since the government was interested in other unrelated
offenses.
32. Brown v. City of Onenonta: Plaintiff black residents sought review of a decision of the
United States District Court for the Northern District of New York, which granted defendant
city and police summary judgment on some of plaintiffs' claims under 42 U.S.C.S. §§ 1983,
1981, 1985(3) and 1986, and other related causes of action, and dismissed others on the
pleadings. Plaintiffs' action was brought pursuant to a police investigation based primarily on
a suspect's race. n defendant town of predominately white citizens, defendant police
attempted to locate and question all black males based on the description of a crime suspect.
Appellant black residents sought redress under various federal and state statutes. The court
affirmed the lower court's dismissal of plaintiffs' 42 U.S.C.S. §§ 1983, 1981, 1985(3), and
1986 claims because there was no evidence of discriminatory racial animus. When
challenging a policy that contained an express, racial, classification the classification was
subject to strict judicial scrutiny. However, in acting on a crime description defendants did
not engage in a suspect racial classification and plaintiffs therefore failed to state an
actionable claim under the Equal Protection Clause. Likewise, plaintiffs' claims under §§
1981, 1985, and 1986 failed from the same shortcomings. However, certain individual
plaintiffs had been subjected to unconstitutional seizure in violation of § 1983 and the lower
court's grant of summary judgment on those plaintiffs' claims was vacated and remanded.
The grant of summary judgment to defendant police and city by the lower court was affirmed
in part because absent other evidence of discriminatory racial animus, defendants could act
on the basis of a suspect's racial description without violating the Equal Protection Clause.
However, the judgment of the lower court was reversed in part as to those plaintiffs who
were unlawfully subjected to seizure and remanded for further proceedings.
o Majority: Those stopped and questioned here had no cause of action under the equal
protection clauses because the police were acting on the victims racial description
rather than their own racial stereotypes or preferences.
33. Papachristou v. Jacksonville: Eight defendants were convicted in Florida of violating a
vagrancy ordinance which provided criminal penalties for “common night walkers,...persons
wandering or strolling around from place to place without any lawful purpose or object,
habitual loafers,...persons...frequenting...places where alcoholic beverages are sold or served,
persons able to work but habitually living upon the earnings of their wives or minor
children.” In each of the cases, the persons may or may not have been preparing to commit a
crime, but most of them seemed completely innocent and being harassed by the police. The
statute did not provide any guidelines as to when the statute should be enforced, thus leaving
ultimate discretion to the arresting police officers.
o Whether the Florida vagrancy statute was unconstitutional as being contrary to the
fourth amendment.
o Yes; The statute failed to give a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute. It also encouraged arbitrary and
unequal enforcement. It served as a tool for the police officer to unreasonably detain
and harass minorities and poor persons who were not engaged in criminal activity. It
made criminal many actions that literally were normally innocent. For example, many
people walk at night for various legitimate reasons. Many men live off of their wives’
income. Many highly respected persons frequent places where alcohol is served. This
statute was incompatible with the constitutional notion of “probable cause” and the
Fourth Amendment because it allowed persons to be arrested solely because they
appeared as if they might commit a crime in the future. Furthermore, it was a tool that
was being inconsistently applied to minorities and the poor.
34. Hibel v. Sixth Judicial District Court: Police received a call reporting an assault. The caller
reported seeing a man assault a woman in a red and silver GMC truck on Grass Valley Road.
Deputy Lee Dove was dispatched to investigate. When the officer arrived at the scene, he
found the truck parked on the side of the road. A man was standing by the truck, and a young
woman was sitting inside it. The officer observed skid marks in the gravel behind the vehicle,
leading him to believe it had come to a sudden stop. The officer approached the man and
explained that he was investigating a report of a fight. The man appeared to be intoxicated.
The officer asked him if he had “any identification on him”. the man refused and asked why
the officer wanted to see identification. The officer responded that he was conducting an
investigation and needed to see some identification. The man became agitated. After
continues refusals to comply with the officer’s request for identification, the man began to
taunt the officer by placing his hands behind his back and telling the officer to arrest him and
take him to jail. After warning the man that he would be arrested if he continued to refuse to
comply, the officer placed him under arrest.
o Hiibel was tried in the Justice Court of Union Township. The court agreed that
Hiibel’s refusal to identify himself as required by State statute “obstructed and
delayed Dove as a public officer in attempting to discharge his duty”. Hiibel was
convicted and fine 250 dollars. The Sixth Judicial District Court affirmed. Supreme
Court of Nevada rejected the Fourth Amendment challenge.
o Whether the Nevada vagrancy statute was unconstitutional? Whether the actions by
the police officer to stop and question, violated the defendants constitutional rights?
o No; The court began by looking at the history of vagrancy laws, which can be traced
back to the colonial era. These laws required suspected vagrants to face arrest unless
they gave “a good account of themselves”. In English common-law, a suspected
“night walker” could be detained until he gave a good account of himself. The court
also differentiated this case from Brown v. Texas, in that in the Brown the court
invalidated a Texas stop and identify statute by ruling that the initial stop was not
based on specific, objective facts establishing reasonable suspicion. However, the
Nevada statute only requires the suspect to reveal his name and nothing else. They
further held that asking questions is an essential part of police investigations and that
the court as recognized police officers reasonable suspicion that a person may be
involved in criminal activity permits the officer to stop the person for a brief time and
take additional steps to investigate further. The court further held that obtaining a
suspect’s name in the course of a Terry stop serves important governmental interests.
Knowledge of indemnity may inform an officer that a suspect is wanted for another
offense, or has a record of violence or mental disorder. On the other hand, knowing
identify may help clear a suspect and allow the police to concentrate their efforts
elsewhere. Identity may prove particularity important in cases such as this, where the
police are investigating what appears to be a domestic assault.
35. Brown v. Texas: the court invalidated a conviction for violating a texas stop and identify
statute on 4th amendment grounds---ruling that the intital stop was not based on reasonable
suspicion and abusive police practices was too great. Here, one of the arresting officers
explained the stop by saying that we had never seen that subject in that area before.
36. Kolender v. Lawson: was a civil suit brought by Lawson, an African American man who
liked to take late-night walks in San Diego neighborhoods and who was arrested some 15
times, evidently because he looked out of place to the local police. The Court held that the
Cali law requiring a suspect to give an officer “credible and reliable” identification when
asked to identify himself was void for vagueness.
37. Chicago v. Morales: The Chicago City Council enacted the Gang Congregation Ordinance
which prohibits gang members from loitering with one another or with other persons in any
public place. Commission of the offence involves four things: (1) The police officer must
reasonably believe that at least one of the two or more loiterers is a gang member; (2) the
persons must be loitering, which is defined as “remaining in any one place with no apparent
purpose”; (3) the officer must order all of the persons to disperse; (4) a person must disobey
the order. Any person who disobeys the order, regardless of whether he/she is a gang
member, is guilty of violating the ordinance. The Illinois Supreme Court held the ordinance
to be unconstitutionally vague and the Supreme Court of the United States granted certiorari.
o An ordinance that seeks to impose criminal penalties for conduct that is vaguely
defined and for which violations are deemed to have been committed at the
discretion of law enforcement officers will not be enforced as in contravention of
due process.
o Was the Illinois SC correct in holding that gang-related loitering ordinance violated
the due process clause?
o Jones Says:
 What a profile is?

Court uses two factors for profile:
 Primary: source city, where you going to. . .based on police experience
i.e. certain routes of criminal activity. . .etc.
 Secondary: individual behavior. . .type of luggage, nervouseness,
running, etc. . . wardlow: high crime area (primary) running away
(secondary)
 Argument is Profiling produces efficiency and its common sense. Police
should be able to use experience . . . take a contextual approach to 4th
amendment.
 Is it rational?
 Argument of reasonable discrimination . . . Korematsu v. US? Efficient
discrimination; Counter Argument is that your wrong more than your right
also that it is morally wrong, you put a burden on individuals.
 We should be able to tailor requirements of equal protection in order to solve
other problems BUT it opens the door for police discretion abuse.
 There are no standards to judge what a gang is or what loitering is, in WHREN
they felt there was sufficient regulation provided by PC and RS but here there
is something less because RS of loitering is RS of innocent activity.
o Majority Stevens: Yes, an ordinance may be void for vagueness for two reasons: 1. It
may fail to provide adequate notice to a citizen as to what conduct the law finds
criminal and 2. It may lead to arbitrary enforcement. When a law is so vague as to
provide inadequate notice of the conduct the law finds criminal, it violates the
requirements of due process. While the word “loiter” may have a generally accepted
meaning the meaning adopted by the ordinance for “loiter” does not reflect that
meaning. What determines whether persons are standing in a place with or without a
purpose? Is talking to another person a purpose? How about waiting for a friend?
o The law makes no distinction between conduct that is innocent and conduct that
threatens harm. The City (P) argues that there is no notice problem here since the
offender cannot be arrested until he or she has failed to obey a police officers order to
leave the area, but this argument fails for two reasons: 1. The purpose of fair notice is
to allow ordinary citizens to comply with the law. While a loiterer may not be
criminally responsible until he or she disobeys the order to leave, the ordinance is
designed to prohibit loitering. If that conduct is innocent until the officer designates it
as otherwise, then the law allows the police to issue an order proscribing innocent
conduct 2. Once the order is issued, the appropriate response to the order is unclear--how far away from each other must the parties move and for how long? The
Constitution prohibits passing an overly broad ordinance and leaving it to the courts
to decide who was unintentionally caught in the net.
o The ordinance also fails to provide minimal guidelines to assist police with the
enforcement of the law. This ordinance provides law enforcement officers with
almost unfettered discretion as to what constitutes a violation. Chicago raises three
points that establish a restraint on the police’s enforcement. 1. No one who is moving
along or has an apparent purpose can be issued an order 2. Individuals who obey the
order cannot be arrested 3. The officer can only issue a citation when he believes the
loiterer to be a member of a gang. While the limitation sound appealing, the public
has no reason to trust the law will be enforced as intended. Further, a law-abiding
o
o
o
o
o
o
person, simply by stopping to talk to a gang member, runs the risk of violating the
law. Taken to the absurd, a group of gang members stopped to conduct a drug
transaction would not fit within the ordinances language, since the gang members
clearly had a purpose. Based on the foregoing, it is apparent that the Illinois SC was
correct in concluding that the ordinance did not meet with constitutional standards for
definiteness and clarity. Affirmed.
Analysis: The arguments raised in this case surfaced again in Fuller v. Decatur Public
School Board of Education. In fuller, students were expelled from school for
participation in gang related conduct. The schools ordinance was vaguely drafted,
akin to that discussed in this case, but there the court declined to find the ordinance
unconstitutional. In fuller, the court determined that a school’s disciplinary needs
allow its rules to be less detailed than criminal ordinances in order to provide the
schools with the flexibility they need to address a variety of disruptive conduct.
O’Connor Concurrence: agrees with the majority that the ordinance is
unconstitutionally vague, but she shares J. Thomas’s concern regarding gang
violence. J. O’Connor specifically finds the phrase “no apparent purpose” in the
definition of loitering to be overbroad. She would more narrowly tailor the definition
to serve the purpose of deterring gang violence without criminalizing innocent
behavior.
Justice Anthony Kennedy (J. Kennedy) concurs in part and concurs in the judgment.
J. Kennedy opines that the ordinance simply reaches a broad range of innocent
conduct.
Justice Stephen Breyer (J. Breyer), concurs in part and concurs in the judgment. J.
Breyer also opines that police officers are granted far too much discretion in
enforcing the ordinance, and “no apparent purpose” is not sufficiently defined
Scalia dissent: J. Scalia opines that the statute is not impermissibly vague nor are
police officers granted any more discretion in its enforcement than in numerous other
measures. Rather, the people of Chicago have willingly traded the freedom to “hang
out” with gang members in order to eliminate gang crime.
Thomas dissent: opines that the ordinance does not violate the Due Process Clause of
the Fourteenth Amendment of the Constitution. The ordinance is not vague, as the
citizens of Chicago would know what is prohibited conduct.
SPECIAL NEEDS- uses balancing approach, this sliding scale approach gives way to special
needs exception. Is this a context in which we deviate from warrant requirement?
A. Road Blocks:
38. NJ v. TLO: The principle of a high school discovered two girls smoking in a laboratory. One
of the girls admitted she was smoking, which violated a school rule. The second girl claimed
she was not smoking and as such did not break the rule. The assistant vice-principal took the
student into his private office and demanded to search her purse. While looking for
cigarettes, the vice-principal found a package of cigarette rolling papers. He continued
searching the purse and found a small amount of marijuana and a pipe, a number of empty
plastic bags and a substantial amount of one dollar bills and an index card with the names of
various people who owed the student money. The state brought delinquency proceedings
against the student and the student argued that her Fourth Amendment Rights were violated .
The juvenile court denied the motion to suppress and the student was found to be delinquent.
The Appellant Division affirmed the trial court’s finding there was no Fourth Amendment
violation. The Supreme Court of New Jersey overruled the Appellate Division.
o “[S]chool officials need not obtain a warrant before searching a student who is under
their authority.”
o What is the appropriate “standard for assessing the legality of searches conducted by
public school officials and the application of that standard to the facts of this case[?]”
o Majority: The search did not violate the Fourth Amendment. The majority observed,
“we are faced initially with the question whether that Amendment’s prohibition on
unreasonable searches and seizures applies to searches conducted by public school
officials.” The majority observed “[i]t is now beyond dispute that “the Federal
Constitution, by virtue of the Fourteenth Amendment, prohibits unreasonable
searches and seizures by state officers.’ ” Equally indisputable is the proposition that
the Fourteenth Amendment protects the rights of students against encroachment by
public school officials.” “Today’s public school officials do not merely exercise
authority voluntarily conferred on them by individual parents; rather, they act in
furtherance of publicly mandated educational and disciplinary policies. In carrying
out searches and other disciplinary functions pursuant to such policies, school
officials act as representatives of the State, not merely as surrogates for the parents,
and they cannot claim the parents’ immunity from the strictures of the Fourth
Amendment.” The majority then asked, “[h]ow, then, should we strike the balance
between the schoolchild’s legitimate expectations of privacy and the school’s equally
legitimate need to maintain an environment in which learning can take place? It is
evident that the school setting requires some easing of the restrictions to which
searches by public authorities are ordinarily subject. The warrant requirement, in
particular, is unsuited to the school environment: requiring a teacher to obtain a
warrant before searching a child suspected of an infraction of school rules (or of the
criminal law) would unduly interfere with the maintenance of the swift and informal
disciplinary procedures needed in the schools. Just as we have in other cases
dispensed with the warrant requirement when ‘the burden of obtaining a warrant is
likely to frustrate the governmental purpose behind the search, we hold today that
school officials need not obtain a warrant before searching a student who is under
their authority .’ ” “We join the majority of courts that have examined this issue in
concluding that the accommodation of the privacy interests of schoolchildren with the
substantial need of teachers and administrators for freedom to maintain order in the
schools does not require strict adherence to the requirement that searches be based on
probable cause to believe that the subject of the search has violated or is violating the
law. Rather, the legality of a search of a student should depend simply on the
reasonableness, under all the circumstances, of the search. Determining the
reasonableness of any search involves a twofold inquiry: first, one must consider
‘whether the . . . action was justified at its inception,’ second, one must determine
whether the search as actually conducted ‘was reasonably related in scope to the
circumstances which justified the interference in the first place.’ Under ordinary
circumstances, a search of a student by a teacher or other school official will be
‘justified at its inception’ when there are reasonable grounds for suspecting that the
search will turn up evidence that the student has violated or is violating either the law
or the rules of the school. Such a search will be permissible in its scope when the
measures adopted are reasonably related to the objectives of the search and not
excessively intrusive in light of the age and sex of the student and the nature of the
infraction.” “This standard will, we trust, neither unduly burden the efforts of
school authorities to maintain order in their schools nor authorize unrestrained
intrusions upon the privacy of schoolchildren. By focusing attention on the question
of reasonableness, the standard will spare teachers and school administrators the
necessity of schooling themselves in the niceties of probable cause and permit them
to regulate their conduct according to the dictates of reason and common sense. At
the same time, the reasonableness standard should ensure that the interests of students
will be invaded no more than is necessary to achieve the legitimate end of preserving
order in the schools.” “Because the search resulting in the discovery of the evidence
of marihuana dealing by [the second student] was reasonable, the New Jersey
Supreme Court’s decision to exclude that evidence from [the student's] juvenile
delinquency proceedings on Fourth Amendment grounds was erroneous.
Accordingly, the judgment of the Supreme Court of New Jersey is erroneous.”
o Dissent: Justice Brennan and Justice Marshall concurred in part and dissented in
part. The justices observed we “fully agree with Part II of the Court’s opinion.
Teachers, like all other government officials, must conform their conduct to the
Fourth Amendment’s protections of personal privacy and personal security. As
Justice Stevens points out, this principle is of particular importance when applied to
schoolteachers, for children learn as much by example as by exposition. It would be
incongruous and futile to charge teachers with the task of embuing their students with
an understanding of our system of constitutional democracy, while at the same time
immunizing those same teachers from the need to respect constitutional protections”
“[The dissenting judges] do not, however, otherwise join the Court’s opinion.
Today’s decision sanctions school officials to conduct fullscale searches on a
‘reasonableness’ standard whose only definite content is that it is not the same test as
the ‘p robable cause’ standard found in the text of the Fourth Amendment. In
adopting this unclear, unprecedented, and unnecessary departure from generally
applicable Fourth Amendment standards, the Court carves out a broad exception to
standards that this Court has developed over years of considering Fourth Amendment
problems. Its decision is supported neither by precedent nor even by a fair application
of the ‘balancing test’ it proclaims in this very opinion. ”
39. US v. Martinez-Fuerte: Martinez-Fuerte and others were charged with transporting illegal
Mexican aliens. They were stopped at a routine fixed checkpoint for brief questioning of the
vehicle's occupants on a major highway not far from the Mexican border.
o Do such stops violate the Fourth Amendment's proscription against unreasonable
searches and seizures?
o No, because if there is a reasonable collective suspicion, then individuals can be
searched in the interest of public safety. Justice Lewis F. Powell, Jr., writing for the 7to-2 majority, said: "The defendants note correctly that to accommodate public and
private interests some quantum of individualized suspicion is usually a prerequisite to
a constitutional search or seizure.... But the Fourth Amendment imposes no
irreducible requirement of such suspicion."
40. Michigan Dept of State Police v. Stitz: drunk driving roadblocks were permissible due to the
magnitude of the drunken driving prolem and the states interest in eradicating it, as well as
the fact that unlike the random stops in Prouse, all cars were stopped at the roadblock in
Stitz.----factors to look at: de minimis intrustion, no bias,
41. Delaware v. Prouse: Officer pulled over Prouse (“Defendant”) and smelled marijuana as he
was walking up to the car. Sure enough, the officer saw marijuana joint upon arriving at the
car in plain view and arrested Defendant, who was later charged with possession of a
controlled substance. The officer testified that he pulled over Defendant to see whether he
had a valid driver’s license; but the officer testified that he did not witness any other criminal
activity before pulling the Defendant over.
o Can a police officer pull over a person without observing the person break any laws?
o No; The Court observed that the officer seized the Defendant when he pulled him
over and therefore the protections of the Fourth Amendment applied to the case. “The
essential purpose of the proscriptions in the Fourth Amendment is to impose a
standard of ‘reasonableness’ upon the exercise of discretion by government officials,
including law enforcement agents, in order to ‘safeguard the privacy and security of
individuals against arbitrary invasions.” The Court observed that “to insist neither
upon an appropriate factual basis for suspicion directed at a particular automobile nor
upon some other substantial and objective standard or rule to govern the exercise of
discretion would invite intrusions upon constitutionally guaranteed rights based on
nothing more substantial then inarticulate hunches. By hypothesis, stopping
apparently safe drivers is necessary only because the danger presented by some
drivers is not observable at the time of the stop. When there is not probable cause to
believe that a driver is violating any one of the multitude of applicable traffic and
equipment regulations – or other articulable basis amounting to reasonable suspicion
that the driver is unlicensed or his vehicle unregistered – we cannot conceive of any
legitimate basis upon which a patrolman could decide that stopping a particular driver
for a spot check would be more productive than stopping any other driver.”
o Accordingly, the Court held that “except in those situations in which there is at least
articulable and reasonable suspicion that a motorist is unlicensed or that an
automobile is not registered, or that either the vehicle or an occupant is otherwise
subject to seizure for violation of law, stopping an automobile and detaining the
driver in order to check his driver’s license and the registration of the automobile are
unreasonable under the Fourth Amendment.”
42. Indianapolis v. Edmond (CHECKPOINTS CANNOT BE USED FOR ORDINARY LAW
ENFORCEMENT PURPOSES): The city of Indianapolis set up vehicle checkpoints in an
effort to interdict illegal drugs. At each checkpoint location, police stopped a predetermined
number of vehicles, checked licenses and registration, looked for signs of impairment, and
conducted an open-view examination of the vehicle from the outside. A drug sniffing dog
also walked around the outside of each vehicle. The officers had no discretion to stop any
vehicle out of sequence and could conduct a search only by consent or based on RS. Edmond
and others claimed that the roadblocks violated the 4th amendment.
o Are highway checkpoints for the discovery and interdiction of illegal narcotics
constitutional?
o Highway checkpoints designed to advance a general interest in ordinary crime
control are unconstitutional.
o Jones: scope of the special needs exceptions are up to the purpose of the need.
Special needs represents a categorical exigency which covers a whole set of exigent
circumstances. Needs this individualized suspicion as a precondition to any legitimate
government stop.
o O’Connor Majority: No Highway checkpoints designed to advance a general
interest in ordinary crime control are unconstitutional. The 4th amendment requires
searches and seizures to be reasonable, and we have recognized only certain
circumstances in which individualized suspicion of wrongdoing is not a component of
reasonableness. In other words, suspicionless searches may be warranted to serve
special needs, beyond routine law enforcement, or for administrative purposes, if they
are appropriately limited. In US v. Martinez-Fuerte, for example, we upheld brief,
suspicionless searches at fixed border checkpoints to detect illegal aliens, based on
considerations specifically applicable to the need to police our borders. And in
Michigan Department of State Police v. Sitz, we approved sobriety checkpoints to
detect drunk driving, where the magnitude of the drunk driving problem and the
state’s interest in getting drunk drivers off the road weighed heavily in favor of a
finding of constitutionality. But when the primary purpose of a roadblock or
checkpoint is a general interest in deterring or detecting crime, the program
contravenes the 4th amendment.
o Here, the purpose of the checkpoints was to advance a general interest in crime
control. We decline to suspend the requirement of individualized suspicion to this
context. Although there are specific circumstances that may justify a checkpoint
where the purpose seems to relate to ordinary crime control---such as to thwart
terrorist activity or prevent a fleeing felon---this is not a case presenting such
exigencies. The constitutionality of a checkpoint program depends on a balancing of
the competing interests at stake and the effectiveness of the program. The checkpoints
here violate the 4th amendment.
o Dissent Rhenquist: The use of roadblocks to look for signs of impairment was
approved in Sitz, and the use of roadblocks to check licenses and registration was
recognized in Delaware v. Prouse. These purposes were served here as well, and the
fact that forty-nine of the resulting arrests were non-drug related is further evidence
of the state’s legitimate interests. Because the stops were neutral, regularized, and
only minimally intrusive, they were constitutional.
o Dissent Thomas: Although, I believe that Sitz and Martinez-Fuerte may have been
wrongly decided, we are not asked to overrule them, so those decisions compel the
upholding of the checkpoints in this case.
o Analysis: Martinez and Sitz established that roadblcoks are constitutional in
appropriate circumstances. Some may argue that roadblocks at issue here are not
sufficiently distinguishable to warrant a different outcome. Had the Court applied the
principles set forth in earlier cases, it could be argued, it would have upheld the drug
interdiction checkpoints as constitutional. But instead, the majority created a
Confusing distinction and, as a result, roadblock case law became confusing. States
can circumvent the Courts decision and establish roadblocks found to be
constitutional by articulating a purpose that the Court has deemed applicable.
43. Illinois v. Lidster: In response to the hit-and-run death of a bicyclist, police set up a
checkpoint to ask occupants if they had any information about the incident, and handed each
driver a flyer about the matter. Respondent Robert Lidster’s vehicle swerved as it approached
the checkpoint. A roadside sobriety test determined that the respondent was driving under the
influence of alcohol. Lidster challenged the lawfulness of his arrest and conviction on the
ground that the government had obtained much of the relevant evidence through use of a
checkpoint stop that violated the 4th. The trial court rejected that challenge. The Illinois
appellate court reached the opposite conclusion. The Illinois supreme Court agreed with the
appellate court. The US Supreme Court reversed the Illinois Supreme Courts determination.
o Whether a “highway checkpoint where police stopped motorists to ask them for
information” about a criminal matter complied with the Fourth Amendment.
o Where a stop advances a grave public concern to a significant degree, and interferes
only minimally with liberty the Fourth Amendment seeks to protect
o Majority Breyer: The checkpoint in Edmond was designed to ferret out drug crimes
committed by the motorists themselves. Here, the stop’s primary law enforcement
purpose was not to determine whether a vehicle’s occupants were committing a
crime, but to ask the occupants, as members of the public, for help in providing
information about a crime in all likelihood committed by others. Nor does the Fourth
Amendment require courts to apply an Edmond-type rule of automatic
unconstitutionality to such stops.
o The context here (seeking information from the public) is one in which, by
definition, the concept of individualized suspicion has little role to play, and an
information-seeking stop is not the kind of event that involves suspicion, or lack
thereof, of the relevant individual. In addition, information-seeking highway stops are
less likely to provoke anxiety or to prove intrusive, since they are likely brief, the
questions asked are not designed to elicit self-incriminating information, and citizens
will often react positively when police ask for help.
o The checkpoint stop was constitutional. In judging its reasonableness, its
constitutionality, this Court looks to “the gravity of the public concerns served by the
seizure, the degree to which the seizure advances the public interest, and the severity
of the interference with individual liberty.”
o The relevant public concern was grave, as the police were investigating a crime that
had resulted in a human death, and the stop advanced this concern to a significant
degree given its timing and location. Most importantly, the stops interfered only
minimally with liberty of the sort the Fourth Amendment seeks to protect. Viewed
objectively, each stop required only a brief wait in line and contact with police for
only a few seconds. Viewed subjectively, the systematic contact provided little reason
for anxiety or alarm, and there is no allegation that the police acted in a
discriminatory or otherwise unlawful manner
o Dissent Steven Souter Ginsberg: There is a valid and important distinction between
seizing a person to determine whether she has committed a crime and seizing a person
to ask whether she has any information about an unknown person who committed a
crime a week earlier. . .In contrast to pedestrians, who are free to keeep walking when
they encounter police officers handing out flyers or seeking information. . .motorists
who confront a roadblock are required to stop, and to remain stopped for as long as
the officers choose to detain them. On the other side, the likelihood that questioning a
random sample of drivers will yield useful information about a hit and run accident
that occurred a week earlier is SPECULATIVE at best.
o Jones: its okay to have this roadblock. . .grave public concern & limited intrusion &
the test is independent ordinary law enforcement activity.
44. US v. Montoya de Hernandez: Customs officials had RS to believe that the D who had
traveled from Colombia, was smuggling contraband in her alimentary canal. After she
refused to submit to an Xray, Montoya remained in detention for 16 hours before customs
offcials obtained a court oreder for a medical examination that ultimately revealed drugs. The
SCOTUS held that though the length of her detention exceeded any other it had approved on
RS, it was nonetheless acceptable, noting that the D herself had contributed to this time
period by attempting to avoid a bowel movement. The 4th amendment BALANCE of
INTERESTS, the court said “leans heavily to the Government” at an international border.
45. US v. Flores Montano: reaffirmed Governments BROAD AUTHORITY IN BORDER
SEARCHES.The gas tank of FM’s 1987 Ford tauras station wagon was removed,
disassembled and searched when FM attempted to enter the US. Customs seized 37 kg of
weed from the tank. The Lower Court, relying on language from Montoya to the effect that
routine searches of persons and effects at the border are not subject to any requirement of RS,
PC, or warrant, had earlier determined that the search of the vehicle’s gas tank is not a
routine border search and must be supported by RS. SCOTUS disagreed: “Court of appeals
took the term routine and fashioned a new balancing test, and extended it to searches of
vehicles. But the reasons that might support a requirement of some level of suspicion in the
case of highly intrusive searches of the person---dignity and privacy interests of the person
being searched---simply do not carry over to vehicles. Complex balancing tests to determine
what is a routine search of a vehicle, as opposed to a more intrusive search of a person have
no place in border searches of vehicles.”
o Court noted that it was hard to conceive how the search of a gas tank, which should
solely a repository for fuel, could be more of an invasion of privacy than the search of
an automobiles passenger compartment--- a search commonly performed in the
context of border inspections.
NONPOLICE SEARCHES:
46. New Jersey v. TLO:
47. Veronian School District v. Acton
48. Treasury Employees v. Von Raab
49. Skinner v. Railway Labor Executives
50. Chandler v. Miller
51. FERGUSON V. CHARLESTON: In response to an apparent increase use of cocaine among
prenatal patients, the Medical University of South Carolina (MUSC) began to order drugs
screens. Those testing positive were referred for treatment. Subsequently, MUSC began a
relationship with Solicitor of Charleston, which led to a policy outlining legal action to be
taken against pregnant addicts, including protocols for arrest, with the hope that the threat of
the law would get women into treatment. No consent was given by the women for the drug
screening.
o “[W]hether a state hospital’s performance of a diagnostic test to obtain evidence of a
patient’s criminal conduct for law enforcement purposes is an unreasonable search if
the patient had not consented to the procedure.”
o A policy that permits searches where the purpose served is “ultimately
indistinguishable form the general interest in crime control” does not comport with
the Fourth Amendment.
o Stevens Majority/ Kennedy Concurrence: The MUSC is a state-operated hospital, so
its employees are government actors subject to the Fourth Amendment. And a drug
screen is a "search" covered by the Fourth Amendment. Because the Fourth Circuit
had ruled only on the special needs claim, the Court assumed that the women had not
consented to the drug screens. It then concluded that the special needs doctrine did
not permit the MUSC to conduct the drug screens according to its policy.
o The fact that the women neither knew of nor consented to the drug screens made this
case different from the other cases in which the Court had applied the special needs
doctrine. In Skinner v. Railway Labor Executives Association, National Treasury
Employees Union v. Von Raab, and Vernonia School District 47J v. Acton, the Court
had sustained drug testing under the special needs doctrine in light of the subjects'
consent; in Chandler v. Miller, the Court had struck down drug testing under the
special needs doctrine despite the subjects' consent. In all four of those cases, the fact
that the subjects consented lessened the invasion on the subjects' privacy.
o In this case, by contrast, the extent of the invasion on the women's privacy was far
greater. "The reasonable expectation of privacy enjoyed by the typical patient
undergoing diagnostic tests in a hospital is that the results of those tests will not be
shared with nonmedical personnel without her consent." By turning over the results of
these medical tests to the police without the women's consent, the MUSC violated
this reasonable expectation of privacy. In this case, unless the special needs doctrine
applied, this intrusion upon the women's expectation of privacy would amount to a
violation of the Fourth Amendment.
o The Court did not simply take the city and the hospital at their word that their
motivations were beneficent; rather, the Court examined all the evidence available to
determine whether the special needs advanced were divorced from the generalized
interest in law enforcement. For example, in Railway Executives, the need to discover
the cause of railway accidents justified the drug testing, and in Acton it was the need
to promote a drug-free school environment. In this case, however, the very reason for
the policy was to use the threat of arrest to motivate the women to abstain from using
cocaine. This fact was evident from the fact that police and prosecutors assisted the
hospital staff in developing specimen collection and chain-of-custody procedures, the
nature of possible criminal charges to which the patients would be subject, and how
the police would be notified and the arrests would be accomplished. "While the
ultimate goal of the program may well have been to get the women in question into
substance abuse treatment and off of drugs, the immediate objective of the searches
was to generate evidence for law enforcement purposes in order to reach that goal."
Because the MUSC plan used the threat of arrest as the means to accomplish its
overall goal of inducing pregnant women to abstain from using cocaine, "this case
simply does not fit within the closely guarded category of 'special needs.'" The mere
fact that the hospital may have had benevolent motives cannot justify departing from
the protections of the Fourth Amendment, especially in light of the heavy
involvement of law enforcement with the hospital's program.
o Justice Kennedy pointed out that all searches, by definition, would uncover evidence
of crime, and this says nothing about the "special needs" the search might serve. In
this case, however, Kennedy agreed that "while the policy may well have served
legitimate needs unrelated to law enforcement, it had as well a penal character with a

far greater connection to law enforcement than other searches sustained under our
special needs rationale."
o Dissent Scalia: reasoned that there was no "search" in this case because the hospital
did not take the urine from the women without their consent. Urine, a waste product,
would ordinarily be abandoned by the person who produces it; anyone who came
across it would be free to do with it what they will, just as with garbage found on the
sidewalk. There is no "search" in the case of garbage left on the sidewalk because its
(former) owner no longer expresses any interest in keeping it private. For a similar
reason, there is no "search" involved in performing a urine screen because the women
voluntarily provided it to the hospital—and even if they had not, the women would
have freely abandoned it anyway. Scalia also reasoned that even if the women had
been coerced into providing the urine samples, it was not the government that coerced
them. This was so, Scalia reasoned, even if these women had to provide the samples
as a precondition of receiving their prenatal medical care.
52. Cases of close regulation of business as reasonable:
o Donovan v. Dewey: warrantless inspections of mines and stone quarries to ensure
compliance with health and safety standards.
o United States v. Biswell: warrantless inspections of pawnshop licensed to sell
sporting weapons for compliance with gun control laws.
o NY v. Burger: Warrantless inspections of a commercial entity are permitted if the
entity is part of a “closely regulated industry”, is a “substantial government interest”,
the inspections are “necessary to further [the] regulatory scheme’, and the inspection
provides “the two basic functions of a warrant: it must advise the owner of the
commercial premises that the search is being made pursuant to the law and has
properly defined scope, and it must limit the discretion of the inspecting officers.”
 Yes. Junkyards are a “closely” regulated industry. The state has a “substantial
interest in regulating” it because the threat of “motor theft”, and “regulation of
the . . . industry” can control “the receiver of, or market in, stolen property.”
That statute provides a “constitutionally adequate substitute for a warrant” by
informing the operator “that inspections will be made on a regular basis.”Yes.
“A State can address a major social problem both by way of an administrative
scheme and through penal sanctions.”
o Camara v. Municipal Court of San Francisco: warrant necessary for a at home health
inspection. It concluded that in the housing inspection context, probable cause exists
to issue a warrant to inspect if reasonable legislative or administrative standards for
conducting area inspections are satisfied---even though these standards do not require
specific knowledge that code violations exist in a particular dwelling.
REASONABLENESS AND POLICE USE OF FORCE
1. Tennessee v. Garner: At about 10:45 p.m. on October 3, 1974, Memphis Police Officers
Elton Hymon and Leslie Wright were on dispatched to answer a ‘prowler inside call’. Upon
arriving at the scene they saw a woman standing on her porch and gesturing toward the
adjacent house. She told them she had heard glass breaking and that someone was breaking
in next door ($10 was stolen.) Officer Hymon went behind the house. He heard a door slam
and saw someone run across the backyard. The fleeing suspect, Edward Garner, stopped at a
6-feet-high chain link fence at the edge of the yard. Hymon was able to see his face and
hands and he saw no weapon. He though Garner was about 17 or 18 and about 5’5 or 5’7.
Hymon yelled “Police Halt” and took a few steps toward him. Garner then began to climb
over the fence. Hymon shot him in the back of the head, in order to prevent him from eluding
capture. He died. Hymon acted under authority of a Tennessee statute which provided “if,
after notice of the intention to arrest the defendant, he either flee or forcibly resists, the
officer may use all the necessary means to effect the arrest” Furthermore, the departmental
policy allowed police to use deadly force in cases of burglary.
o The fourth amendment to the US constitution prohibits the use of deadly force
against a fleeing suspect who is not believed to pose a threat of serious physical
harm to others.
o Jones: police argument is that use of deadly force allows for deterrence. Here, the
definition of deadly force is not defined, thus, a problem for following cases.
o Was the use of deadly force constitutionally permissible against an unarmed fleeing
prowler?
o White, J. Majority: The 4tha amendment to the US Constitution prohibits the use of
deadly force against a fleeing suspect who is not believed to pose a threat of serious
physical harm to others. Shooting a fleeing suspect is a “seizure” within the meaning
of the 4th amendment prohibition of unreasonable searches and seizures. The state’s
interest in apprehending all fleeing felony suspects does not outweigh the suspects’
interest in his own life. Using deadly force against a fleeing suspect also frustrates the
mutual interest of the state and the suspect in judicial determination of guilt and
punishment. There is no evidence that a meaningful threat of deadly force has
resulted in the apprehension of more suspects by deterring escape attempts. The rule
that allows the use of deadly force against fleeing felony suspects comes from a time
when most felonies were punishable by death or involved violence, neither of which
is true today. The rule also arose at a time when deadly force could be inflicted only
at close quarters during a struggle, which means the police officer’s life would have
been in jeopardy. Deadly force may only be used to prevent the escape of a suspect
who threatens an officer with a weapon, or if there is PC to believe the suspect has
committed a crime that involves the infliction or threatened infliction of serious
physical harm. There were no such facts here, use unreasonable. Affirmed.
 Must evaluate under the reasonableness clause, substantive inquiry.
 Court engages in balancing test. Is it better that all suspects die rather
than escape? Court says it is more reasonable to let suspects go.
 Deadly force can only be used where there is a threat of death or
SERIOUS bodily harm; You need actual necessity.
 Courts does NOT accept that ALL felons are DANGEROUS.
2. Canton v. Harris: held that municipalities may be liable for inadequately training police
pursuant to §1983 only where the failure to train amounts to deliberate indifference to the
rights of persons with whom the police come into contact.
3. Graham v. Connor: a diabetic, asked his friend, Berry, to drive him to a convenience store to
purchase orange juice to counteract the onset of an insulin reaction. Upon entering the store
and seeing the number of people ahead of him, Graham hurried out and asked Berry to drive
him to a friend's house instead. Respondent Connor, a city police officer, became suspicious
after seeing Graham hastily enter and leave the store, followed Berry's car, and made an
investigative stop, ordering the pair to wait while he found out what had happened in the
store. Respondent back-up police officers arrived on the scene, handcuffed Graham, and
ignored or rebuffed attempts to explain and treat Graham's condition. During the encounter,
Graham sustained multiple injuries. The District Court granted respondents' motion for a
directed verdict at the close of Graham's evidence, applying a four-factor test for
determining when excessive use of force gives rise to a § 1983 cause of action, which
inquires, inter alia, whether the force was applied in a good-faith effort to maintain and
restore discipline or maliciously and sadistically for the very purpose of causing harm.
Johnson v. Glick, 481 F.2d 1028. The Court of Appeals affirmed, endorsing this test as
generally applicable to all claims of constitutionally excessive force brought against
government officials, rejecting Graham's argument that it was error to require him to prove
that the allegedly excessive force was applied maliciously and sadistically to cause harm, and
holding that a reasonable **1867 jury applying the Johnson v. Glick test to his evidence
could not find that the force applied was constitutionally excessive.
o Rhenquist, J. Majority: Held: All claims that law enforcement officials have used
excessive force-deadly or not-in the course of an arrest, investigatory stop, or other
“seizure” of a free citizen are properly analyzed under the Fourth Amendment's
“objective reasonableness” standard, rather than under a substantive due process
standard.
 a) The notion that all excessive force claims brought under § 1983 are
governed by a single generic standard is rejected. Instead, courts must identify
the specific constitutional right allegedly infringed by the challenged
application of force and then judge the claim by reference to the specific
constitutional standard which governs that right. Pp. 1870-1871.
 (b) Claims that law enforcement officials have used excessive force in the
course of an arrest, investigatory stop, or other “seizure” of a free citizen are
most properly characterized as invoking the protections of the Fourth
Amendment, which guarantees citizens the right “to be secure in their persons
... against unreasonable seizures,” and must be judged by reference to the
Fourth Amendment's “reasonableness” standard. P. 1871.
 (c) The Fourth Amendment “reasonableness” inquiry is whether the officers'
actions are “objectively reasonable” in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation. The
“reasonableness” of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, and its calculus must embody
an allowance for the fact that police officers are often forced to make splitsecond decisions about the amount of force necessary in a particular situation.
(d) The Johnson v. Glick test applied by the courts below is incompatible
with a proper Fourth Amendment analysis. The suggestion that the test's
“malicious and sadistic” inquiry is merely another way of describing conduct
that is objectively unreasonable under the circumstances is rejected. Also
rejected is the conclusion that because individual officers' subjective
motivations are of central importance in deciding whether force used against a
convicted prisoner violates the Eighth Amendment, it cannot be reversible
error to inquire into them in deciding whether force used against a suspect or
arrestee violates the Fourth Amendment. The Eighth Amendment terms
“cruel” and “punishments” clearly suggest some inquiry into subjective state
of mind, whereas the Fourth Amendment term “unreasonable” does not.

Moreover, the less protective Eighth Amendment standard applies only after
the State has complied with the constitutional guarantees traditionally
associated with criminal prosecutions. vacated and remanded.
CONSENT SEARCHES
1. Schneckolth v. Bustamonte (Consent to a search is valid even if the consenter did not
know he could refuse): A police officer stopped a car because one if its headlights and the
car’s license plate light were burned out. The driver of the car could not produce a license, so
the officer asked the driver, Alcala, who claimed his brother owned the car, for permission to
search the vehicle. Alcala said, “sure, go ahead.” Alcala actually opened the trunk and the
glove compartment for the officer. The search uncovered three stolen checks that were later
linked to BUstamonte (D), one of the passengers in the car.
o In order for consent to a search to be considered voluntary, must the individual be
informed he has the right to refuse consent?
o An individuial need not be informed that he has the right to refuse consent to a
search before his consent to the search will be considered voluntary.
o J. Stewart Majority: No. an individual need not be informed that he has the right to
refuse consent to a search before his consent to such a search will be considered
voluntary. Whether consent to a search was in fact voluntary and not the product of
duress or coercion is a question of fact to be determined from the totality of
circumstances. The problem of reconciling the recognized legitimacy of consent
searches with the requirement that they be free from any aspect of official coercion
cannt be resolved by any infallible touchstone. In examining all the surrounding
circumstances to determine if in fact the conset to the search was coerced, account
must be taken of subtly coercive police questions, as well as the possibly vulnerable
subjective state of the person who consents. Neither this Court’s prior cases, nor the
traditional definition of voluntarieness, requires proof of knowledge of a right to
refuse as the sine qua non of an effective consent to a search. REVERSED.
o Dissent Marshall: Consent should be viewed as relinquishment of 4th amendment
rights and should be taken literally to mean a “knowing” choice. If consent to search
means that a person has chosen to forgo his right to exclude the police from the place
they seek to search, it follows that his consent cannot be considered a meaningful
choice unless he knew that he could not in fact exclude the police.
2. US v. Matlock: where people mutally use property and have joint access or control for most
purposes, it is reasonable to recognize that any of the co-inhabitants has the right to permit
the inspection in his own right and that the others have assumed the risk that one of their
number might permit the common area to be searched.
3. Illinois v. Rodriguez: Respondent was arrested in his apartment and charged with possession
of illegal drugs, which the police had observed in plain view and seized. The officers did not
have an arrest or search warrant, but gained entry to the apartment with the assistance of Gail
Fischer, who represented that the apartment was “our[s]” and that she had clothes and
furniture there, unlocked the door with her key, and gave the officers permission to enter.
The trial court granted respondent's motion to suppress the seized evidence, holding that at
the time she consented to the entry Fischer did not have common authority because she had
moved out of the apartment. The court also rejected the State's contention that, even if
Fischer did not have common authority, there was no Fourth Amendment violation if the
police reasonably believed at the time of their entry that she possessed the authority to
consent. The Appellate Court of Illinois affirmed.
o A warrantless entry is valid when based upon the consent of a third party whom the
police, at the time of the entry, reasonably believe to possess common authority over
the premises, but who in fact does not
o What respondent is assured by the Fourth Amendment is not that no government
search of his house will occur unless he consents; but that no such search will occur
that is “unreasonable.” As with the many other factual determinations that must
regularly be made by government agents in the Fourth Amendment context, the
“reasonableness” of a police determination of consent to enter must be judged not by
whether the police were correct in their assessment, but by the objective
*178 standard of whether the facts available at the moment would warrant a person of
reasonable caution in the belief that the consenting party had authority over the
premises. If not, then warrantless entry without further inquiry is unlawful unless
authority actually exists. But if so, the search is valid.
4. Florida v. Jimeno: Having stopped respondent Jimeno's car for a traffic infraction, police
officer Trujillo, who had been following the car after overhearing Jimeno arranging what
appeared to be a drug transaction, declared that he had reason to believe that Jimeno was
carrying narcotics in the car, and asked permission to search it. Jimeno consented, and
Trujillo found cocaine inside a folded paper bag on the car's floorboard. Jimeno was charged
with possession with intent to distribute cocaine in violation of Florida law, but the state trial
court granted his motion to suppress the cocaine on the ground that his consent to search the
car did not carry with it specific consent to open the bag and examine its contents. The
Florida District Court of Appeal and Supreme Court affirmed.
o Held: A criminal suspect's Fourth Amendment right to be free from unreasonable
searches is not violated when, after he gives police permission to search his car, they
open a closed container found within the car that might reasonably hold the object of
the search. The Amendment is satisfied when, under the circumstances, it is
objectively reasonable for the police to believe that the scope of the suspect's consent
permitted them to open the particular container. Here, the authorization to search
extended beyond the car's interior surfaces to the bag, since Jimeno did not place any
explicit limitation on the scope of the search and was aware that Trujillo would be
looking for narcotics in the car, and since a reasonable person may be expected to
know that narcotics are generally carried in some form of container. There is no basis
for adding to the Fourth Amendment's basic test of objective reasonableness a
requirement that, if police wish to search closed containers within a car, they must
separately request permission to search each container.