Case
Rule
Notes
Fourth Amendment Search & Seizure
What is a Search?
Katz v. United States
Trespass isn’t everything; there is a search if
 You only need to win one of the tests to show it
person had a reasonable expectation of
was a search (the Govt has to prove both to say not a
privacy that society deems as reasonable;
search): Jones (trespass) or Katz (reasonable
listening device on phone booth whether on the
expectation of privacy)
interior or the exterior of the booth constitutes a
search
United States v. Jones
Using GPS device to track someone’s car even
though the physical intrusion on the car/Jeep was
quite minimal – that trespass is sufficient and
constitutes a search – not overruling Katz – what
they are saying is you might not need a trespass,
but if you have a trespass – then it is a search
Searches
Not Searches
Listening device on phone booth whether on the interior or the If police happen to overhear you on the street (e.g., talking on cell
exterior of the booth (Katz)
phone or to a friend) (contrast/distinction from rule of Katz)
Using GPS device to track someone’s car (e.g., Jeep in Jones) Following your car (e.g., Jeep in Jones) around town (not set aside
even though the physical intrusion on the car/Jeep was quite by court in Jones) whether on foot, in a car, in helicopter, etc. and
minimal – that trespass is sufficient
observing its movements on public streets – because you don’t have
a reasonable expectation of privacy with respect to being seen by
normal human investigator tools while on public streets
Entering house too look around – classic example of a search
Peering over property line where police officer may lawfully be – to
Thermal imaging of house (Kylo – which is an application of the see into an area that is protected (which goes back to notion that
Katz test) – yes, a search when this was decided – key test in Kylo constitution protects people not places) – distinguishing entering a
is about the use of sense enhancing technology that is not in house to look
general public use (so query whether Kylo would be decided
today based on what we now know about thermal imaging
scanners)
Entering “curtilage” – Dunn Test to determine what counts as Examining garbage after that garbage has been abandoned and set
curtilage = Curtilage questions should be resolved with particular beyond the curtilage – if I don’t have to walk into the curtilage to get
reference to four factors: (1) the proximity of the area claimed to it – that’s part of the entering into open fields is not a search
be curtilage to the home, (2) whether the area is included within principle (Greenwood = The warrantless search of trash left outside
an enclosure surrounding the home, (3) the nature of the uses to on the curb does not violate the Fourth Amendment, because a
which the area is put, and (4) the steps taken by the evident to person has no reasonable expectation of privacy in trash left for
protect the area from observation by people passing by.
collection in a publicly accessible place)
Entering “open fields” (reaffirmed by Oliver); open fields are
basically what is not in curtilage
Historical phone location data (Carpenter)
Dog sniffs porch just outside of a home – i.e., if the dog comes
onto the curtilage that violates, according to court in Jardines,
applying the Jones test, that violates your property right because
while you do implicitly license strangers, including police, to
walk up to your door and knock and try to say hello, you do not
implicitly license people to bring sense-enhancing tools, whether
canine or technological, to try to incriminate you, says the
majority – Thus, having that dog sniff around the outside of your
house is a search
 Query – how would this apply to hallway outside of apartment
in apartment building? Answer is uncertain and more
complication and thinking hard about that case will help you
figure out Jones and Katz bc it might be a violation of your
reasonable expectation of privacy to have the door of your
apartment sniffed by a dog or it might violate the implied license
that people have to walk along the hallway of your apartment
Hiding “beeper” in item later given to suspect – court in Carpenter
distinguishes that – so the use of a beeper is still not a search as long
as it is installed before the item is given to the suspect – in that case
you are kind of taking the risk that your criminal confederate is
cooperating with police and putting that beeper in there (Knotts)
Use of “pen register” (Smith v. Maryland) – and court in Carpenter
does not overrule; pen register = only shows telephone numbers that
have been dialed, no communications – Smith also gives us the
Third-Party Disclosure Doctrine using Katz – a person has no
legitimate expectation of privacy in information that he person
voluntarily turns over to third parties
Aviation cases that essentially say that following the law with an
aircraft whether it is an airplane flight over house (1000ft) (Ciraolo)
or helicopter flight over house (400ft) (Riley) – so someone can take
pictures – those don’t violate your reasonable expectation of privacy
because anyone could do that and it is public airspace and we all
know that could happen – query the use of drones today – if I’m
flying a drone at a lower level with a little camera – is that or is that
not a search – it may depend on just how invasive such drone use
would be – also keep in mind the concurrence in Riley, the helicopter
case, which says that maybe some lawful use of aircraft could
nonetheless violate the reasonable expectation of privacy standard
set out in Katz
“Well-trained” dog sniffs luggage at airport (Place)
“Well-trained” dog sniffs bag on the sidewalk (in public) – so the
standard we see in place, which is the airport case, actually applies
anywhere the police may lawfully stand with their dog – i.e., if an
officer is allowed to be somewhere, then the officer can use his dog
to sniff things in that place – the court reasons that the privacy
invasion of such a dog is fairly minimal because it only detects a
small number of things and those are things you’re not supposed to
have anyway
“Well-trained” dog sniffs car stopped for speeding – well that just
applies the principle of officer where she is lawfully allowed to be, bc
as long as the car has been appropriately stopped then during that
vehicle stop the dog sniff is the same as the dog sniff on the sidewalk
or at the airport (Caballes)
building; or maybe it does neither of those things and is not a
search
 How well-trained does dog have to be to have probable cause? Florida v. Harris = Evidence of a dog’s satisfactory performance in
a certification or training program can itself provide sufficient reason to trust his alert; and defendant may challenge dog’s reliability
(e.g., contesting adequacy of a certification or training program). If the state has produced proof from controlled settings that a dog
performs reliable in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause The
question - similar to every inquiry into probable cause - is whether all the facts surrounding a dog’s alert, viewed through the lens of
common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. “A sniff
is up to snuff when it meets that test.”
Probable Cause and Reasonable Suspicion
Illinois v. Gates
“Whether, given all the circumstances set forth in
 definition of probable cause
the affidavit before him, there is a fair probability
that contraband or evidence of a crime will be
found in a particular place;” “probable cause
requires only a probability or substantial chance of
criminal activity, not an actual showing of such
activity”
Maryland v. Pringle
Defining probable cause in Terms of Arrest =
 probable cause in terms of arrest
“reasonable ground for belief of guilt”
Whren v. United States
Except with inventory searches and administrative  court does not let a subjective test fly here bc
inspections, when probable cause of illegal conduct court really does not want to get involved in police
exists, an officer’s true motive for searching or
business
detaining a person does not negate the
constitutionality of the search or seizure
When there is probable cause that a traffic offense
has occurred, the officer’s subjective motives for
detaining the motorist do not invalidate the
officer’s actions under the Fourth Amendment.
District of Columbia v.
To determine whether an officer had probable
 application of Gates
Wesby
cause for an arrest court examines the events
leading up to the arrest and decide whether the
 also note Flight Rule: “[U]nprovoked flight upon
facts viewed from the standpoint of an objectively
notice the police, is certainly suggestive” of
reasonable police officer, amount to probable
wrongdoing and can be treated as “suspicious
cause. Probable cause is a fluid concept that is not
behavior” that factors into the totality of the
readily ore even usefully reduced to a neat set of
circumstances.
legal rules - it requires only a probability or
substantial chance of criminal activity, not an
actual showing of such activity. Probable cause is
not a high bar. So, did police have probable cause
to arrest party people? Yes – considering the
totality of the circumstances, the officers made an
entirely reasonable inference that the party people
were knowingly taking advantage of a vacant house
as a venue for their late-night party.
Warrants
 NOTE The Court has stated repeatedly that searches conducted without a warrant are presumptively “unreasonable” and,
accordingly, are presumptive violations of the Fourth Amendment.
Valid Warrant Requires: (1) probable cause that something subject to seizure will be found; (2) oath or affirmation – swear evidence
is true to the best of their knowledge; (3) & (4) warrant specify where officers can search and what things
or persons officers may look for and seize if found (particularity requirement); (5) warrant issued by
neutral and detached magistrate (Coolidge v. New Hampshire)
Connolly v. Georgia
Justice of peace who received payment upon
issuing warrant, but no fee upon denying a warrant
application, not “neutral and detached”
Andersen v. Maryland
The addition of a catchall phrase to a list of items
 particularity requirement - The Fourth
to be searched for and seized in a warrant does not Amendment requires that search warrants
violate the Fourth Amendment’s specificity
specifically list and describe the items to be seized
requirement so long as it is limited by the language and limits seizures to those items. Accordingly,
of the warrant to items relating to a specific crime. general warrants allowing police to rifle through an
Here, Andresen asserts that the phrase “together
individual’s property at their discretion looking for
with other fruits, instrumentalities and evidence of any type of evidence of any crime are forbidden.
crime at this (time) unknown” turns the otherwise
lawful search warrants into “general” search
 this case tells us that the particularity requirement
warrants prohibited by the Fourth Amendment.
is not particularly strict
However, this argument requires reading the
phrase in isolation and out of context. The catchall  keep plain view doctrine in mind – so want to be
phrase comes at the end of a list of items all limited general ish on warrant to be able to kinda look where
by the preceding part of the sentence authorizing
you want
the search for documents related to the sale of Lot
13T.
Groh v. Ramirez
A warrant that does not specifically describe the
 hard to satisfy particularity requirement when
person or property to be searched or seized or
there is no list at all
incorporate supporting documents with those
descriptions is invalid under the Fourth
Amendment.
Knock & Announce
Wilson v. Arkansas
The common-law principle requiring police to
 Factors to determine whether or not reasonable:
knock and announce themselves before entering a
location; what police searching for (explosives,
Richards v. Wisconsin
Banks
Michigan v. Summers
Mueller v. Mena
Ybarra v. Illinois
home is part of the reasonableness test required by
the Fourth Amendment; Although a search or
seizure of a dwelling might be constitutionally
defective if police officers enter without prior
announcement, law enforcement interests may also
establish the reasonableness of an unannounced
entry; here, defendant previously threatened
informants, roommate had convictions for arson
and firebombing
While the general rule is that the police must knock
and announce their presence before a warrant can
be executed, whether or not this rule should in fact
be followed in a specific instance must be
determined on a case-by-case basis at the time the
warrant is being executed; here, police identified
themselves as a maintenance man and defendant
answered door and found cash, cocaine, and
defendant trying to escape
When police “knock and announce” they are often
not obligated to wait very long before forcing entry;
here, court found that a “15 to 20 second wait
before a forcible entry” was justified by the
circumstances, and federal courts have approved
even shorter wait times
Execution of Warrants
Officers executing a search warrant for contraband
have the authority to detain occupants of the
premises while a proper search is conducted
(1) Officers may detain innocent occupants of a
home in which a search warrant is being executed
for the duration of the search; (2) an officer’s
questioning of a detainee about a matter unrelated
to the alleged crimes covered in the search warrant
is not an unreasonable seizure under the Fourth
Amendment
The Court considered a search that police had
conducted at a bar pursuant to a warrant - the
warrant allowed police to search the bar and the
bartender for drugs, and it was based on reports of
guns); behaviors of people at the scene; nature of
crime (drugs – more subject to violence and
destruction of evidence); and suspect’s prior actions
(threaten police)
 two ways to enter without knock: (1) Judge – get
with no knock warrant; OR (2) police get there with
normal warrant and hear suspects saying “oh shit
cops – destroy evidence” – police can enter with no
knock
 burden of knock & announce not very high
 exclusionary rule doesn’t apply with
reasonableness for no knock – so police not at risk
for losing valuable evidence
 as long as police have a valid search warrant you
can be detained the whole time with no violation of
your Fourth Amendment rights
 Although the Court has authorized officers
executing a search warrant to detain persons found
on the premises, officers do not necessarily have
authority to search the persons who are detained
United States v. Di Re
Bailey v. United States
Maryland v. Garrison
California v. Rettele
“tinfoil packets” possessed by the bartender and
stored behind the bar; when officers arrived at the
bar - they told patrons to prepare to be searched
for weapons, and officers patted them all down;
during one pat down officer felt cigarette pack that
seemed to have stuff in it - later found tinfoil
packets of heroin; Suspect charted with possession
moved to suppress the evidence as the fruit of an
illegal search. The Supreme Court agreed, holding
that officers lacked probable cause to believe that
any particular customer possessed drugs.
Holding that even if the search of a certain car was
lawful, that did not justify the ensuing search of its
occupant
Court held that the rule of Michigan v. Summers
applies only to those in “the immediate vicinity of
the premises to be searched.” The Court explained,
“Because detention is justified by the interest in
executing a safe and efficient search, the decision
to detain must be acted upon at the scene of the
search and not at a later time in a more remote
place. In Bailey, officers had followed two men 0.7
miles after seeing them leave the building officers
had been about to search. The Court found the
detention unreasonable.
A search made under an otherwise valid warrant
containing a mistake does not violate the Fourth
Amendment if the police acted reasonably; here,
valid warrant and reasonably executed in light of
officer’s conduct bc reasonably believed entire
third floor was McWebb’s apartment – mistake =
entered Garrison’s apartment – warrant did not
have that apartment on there and when they got
there they did not figure it out – court said this
mistake reasonable
A search conducted reasonably and pursuant to a
valid search warrant does not violate the Fourth
Amendment; here right house, but people moved
and police busted in to execute search warrant and
 just bc you can detain him doesn’t mean you can
search him without probable cause/reason to do so –
if police have nothing on him but his presence at the
scene – police cannot pat him down
 May police arrest all persons found in a location
during the execution of a search warrant? No.
 Note that while police may detain persons present
at the location to be searched, they may not detain
persons who happened to be at the location earlier
but have already left before police arrive to execute
the warrant.
In the next two cases, we examine what happens
when police search the wrong location when
executing a warrant.
 One issue potentially raised by the facts of Rettele
- although not addressed - is the question of when a
warrant goes “stale” - a warrant based upon probable
cause to believe that contraband or suspects will be
made people get up while they were naked and
once they figured out they made the mistake, they
apologized and left – court said reasonable bc
needed to ensure safety of police and not made to
stand there long and left quickly
found in a certain place becomes less reliable over
time.
 E.g., if police receive a warrant in 2018 to search
a particular house for a suspect, news that the
suspect died in 2019 would make it unreasonable
for police to execute the warrant in 2021
 E.g., a warrant to search for drugs recently
delivered to the house of a dealer might go stale
relatively quickly because the dealer is likely to
sell the drugs soon.
 E.g., by contrast, courts have found that
collectors of child porn rarely destroy their
material, meaning that warrants to search their
computers for illicit images do not go stale
 E.g., similarly, a warrant to search an
accountant’s officer for documents proving a
client’s tax fraud would probably remain “fresh”
for a long time
 Executing an extremely stale search warrant –
might be grounds for 4th Am violation – usually
not – arguments usually more about good police
practice
 Arrest warrants never really go stale
 Depends on how mobile things/ people are
Warrant Exceptions
 Remember the Court has stated repeatedly that searches and seizures conducted without warrants are presumptively unlawful –
the Court has also created several exceptions to the warrant requirement
QUESTIONS TO ASK
For every warrant exception, consider:
YOURSELF:
 When does the exception apply? (When does it work?)
 What does the exception allow police to do?
Related Queries:
 Is probable cause necessary? (Most don’t require)
If not, what other quantum of evidence required? (Reasonable suspicion, or something else; or no
quantum of evidence is required and something else does)
The Plain View Exception
 The “plain view” exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize what clearly
is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be
Coolidge v. New
Hampshire
Arizona v. Hicks
Horton v. California
Warrant authorized by an attorney general is not a
neutral, detached magistrate required by the
Fourth Amendment; Under the plain-view
doctrine, police may not conduct a warrantless
search of an automobile if they expected in advance
to find evidence and failed to secure a warrant;
here, police had plenty of time to get a valid
warrant for that car, no excuses as to why they did
not
The Court explained the plain view exception can
apply only if an officer conducts a seizure (1) while
the officer is somewhere the officer has the lawful
right to be (e.g., while on a public sidewalk, or
inside a house executing a warrant) and (2) the
officer has probable cause to believe that the object
is subject to seizure. Objects are subject to seizure
if they are contraband or are otherwise evidence of,
fruits of, or instrumentalities of a crime.
(“Contraband” refers to items that are unlawful to
possess, such as illegal drugs.) In Hicks, an officer
was lawfully inside a. House and spotted an object
the officer believed to be stolen. But because the
officer lacked probable cause to support his belief
upon picking up the item, the officer’s seizure of
the object (a stolen stereo) was deemed outside the
scope of the exception - that is, it was unlawful.
The Court expanded the scope of the plain view
exception by removing the *inadvertence
requirement* set forth in Justice Stewart’s plurality
opinion in Coolidge. Although the Horton Court
described Coolidge as “binding precedent,” it held
that the inadvertence requirement was not
“essential” to the Court’s result in Coolidge. As the
Horton majority put it, for the exception to apply,
“not only must the officer be lawfully located in a
place from which the object can be plainly seen, but
he or she must also have a lawful right of access to
the object itself.” In addition, “not only must the
 remember here – the warrant not valid bc issued
by AG – not neutral magistrate; so court had to see if
a warrant exception applied and could save the
search
item be in plain view; its incriminating character
must also be “immediately apparent”
Minnesota v. Dickerson Police may seize non-threatening contraband
 plain feel exception
detected through a police officer’s sense of touch
 Examples of what would satisfy the “plain feel”
during a protective pat down so long as the officers’ standard the court found was not met in Dickerson search stays within the bounds marked by Terry; A guns, other weapons that have fairly obvious shapes
police officer performing a pat down search for
- such as a club; or the stolen starfish example
weapons may not seize other contraband detected
during the search if the identity of that contraband
is not immediately apparent. Here, the officer had
ascertained that Dickerson had no weapon when he
felt the object he believed to be cocaine. He
squeezed and manipulated the object in
Dickerson's pocket to further confirm his
suspicion. Terry does not permit this type of
evidentiary search. The officer’s Terry stop and
frisk was lawful. But the officer went outside the
strictly limited scope of the pat down when he
continued the search into Dickerson’s pocket after
determining that Dickerson had no weapons.
Therefore, the seizure of the contraband violated
the Fourth Amendment.
The Automobile Exception
 probable cause to search a vehicle + lawfully being next to the vehicle = don’t need a warrant (i.e., if police could get a warrant to
search a car because they have probable cause to believe that something in it is subject to seizure, then they don’t need that warrant)
 again they have to have lawful access to a car so if the car is in my garage, they can’t bust into the garage to use the automobile
exception - but if my car is parked on a public street, or if police are lawfully in my garage because, for example, I let them in or they
ran int here to execute a warrant, even if they didn’t expect that the car would be there or something like that - if police are lawfully
next to a car, such as a car that they pulled over for a traffic stop, if they have probable cause to believe that evidence in that car may
be there that is subject to seizure, they can search the car without a warrant - that’s how after so many traffic stops, the initial
suspicion that justified the traffic stop ripens to probable cause if the officer for example smells marijuana, sees an unlawful gun in
the passenger seat or hears an occupant in the car confess that there is contraband in the vehicle
 Keep in mind that the automobile exception covers the entire car from tip to toe, from bottom to top - the passenger compartment,
the engine block, the wheel walls - wherever there might be evidence that can be found - if police have probable cause to look there,
they may look there - it includes containers that are in automobiles, whether sealed or open, locked or unlocked
California v. Carney
Under the Fourth Amendment, a vehicle that can
 Factors to consider for determining whether
be readily moved and that has a reduced
mobile home is actually mobile - among the factors
expectation of privacy due to its use as a licensed
that might be relevant in determining whether a
motor vehicle may be searched without a warrant
warrant would be required in such a circumstance is
provided probable cause exists (i.e., mobile home
fell under automobile exception here)
United States v. Hill &
United States v. Alberts
United States v.
Montgomery & United
States v. Nigro
California v. Acevedo
Collins v. Virginia
Hill = yes – if police have probable cause, police
can search that boat with no warrant
Alberts = noting that when a houseboat is
“permanently moored” and therefore not easily
mobile, the exception may not apply
Airplanes – if police have probable cause, yes –
again see factors though to see just how mobile
The Fourth Amendment permits warrantless
searches of containers found in automobiles
provided the police have probable cause that the
container contains contraband; when the police
have probable cause that a container in a moveable
car contains contraband, they may search the
container without a warrant. However, their search
must be limited to that specific container, unless
they have probable cause that the car itself
contains contraband too
the Court decided whether the automobile
exception to the Fourth Amendment permits a
police officer, uninvited and without a warrant, to
enter the curtilage of a home in order to search a
vehicle parked therein - Majority said nope - the
scope of the automobile exception extends not
further than the automobile itself - does not justice
officers invasion of the curtilage - nothing in the
Court’s case law suggests that the automobile
its location, whether the vehicle is readily mobile or
instead, for instance, elevated on blocks, whether the
vehicle is licensed, whether it is connected to
utilities, and whether it has convenient access to a
public road
 what about a boat?
 also, note if police have probable cause to think
the bag near the car has drugs – police may seize bag
for reasonable time to obtain a warrant to look in the
bag OR wait for you to put it in the trunk of a car –
probable cause to believe drugs in car now – can
search car and bag
 once police have probable cause to search vehicle
– they can search it – anywhere they think stuff may
be – trunk, luggage, etc.
 Car Computer?
• depends on how much data - just when breaks
applied - eh probs not that privacy
• But if it is like where you have been for the last
month - then that seems violative of privacy
• For car data devices with a tremendous amount of
private information - exception likely not to apply
(see State v. Mobley)
exception gives an officer the right to enter a home
or its curtilage to access a vehicle without a warrant
Searches Incident to a Lawful Arrest
 when police perform a lawful arrest, they are allowed to search the arrestee = search incident to lawful arrest (SILA)
 no warrant is required for a SILA
 For a search to be justified as a SILA: (1) there must have been an arrest, (2) the arrest must have been “lawful,” and (3) the search
must be “incident” to the arrest - that is, close in time and space to the arrest
 How much evidence do police need to do those searches? No evidence other than the probable cause that was necessary to make
the initial arrest lawful - once they arrest someone lawfully, they don’t need any special reason to do the thing that we call a search
incident to that lawful arrest
 What does it mean for a search to be “incident” to lawful arrest?
o It means that it is close in time and space to the arrest
 So if I am arrested in my ground floor living room, police cannot go upstairs and open drawers in the bedroom
hoping to find evidence because that’s not close enough to where I was arrested
 Also they can’t come back the day after the arrest and search the area immediately around the location of the arrest it’s no longer incident
Chimel v. California
Incident to a lawful arrest, a warrantless search of
What areas counts as incident when it is close in
the area in possession and control of the person
time for the arrest?
under arrest is permissible under the Fourth
 Chimel on “Incident”
Amendment (area “within his immediate control” -  There is ample justification, therefore, for a
i.e., area from which he might get ahold of a
search of the arrestee’s person and the area
weapon or destructible evidence)
“within his immediate control” — construing that
phrase to mean the area from within which he
might gain possession of a weapon or destructible
evidence
o It is that area within the arrestee’s
immediate control, the Court tells us in
Chimel, meaning that area in which you
could lunge quickly to gain possession of a
weapon or destructible evidence
o That includes the arrestee’s person - their
clothing, their shoes, etc.
 In that area, police may do a thorough search,
including doing things like opening up cigarette
packages, flipping through people’s wallets to
look for drugs and razor blades, opening up
books that happened to be in someone’s pocket
when they get arrested - All without any quantum
of evidence to think something might be there

Knowles v. Iowa
Arizona v. Gant
New York v. Belton
The “search incident to arrest” exception to the
Fourth Amendment does not authorize the full
search of a car after the issuance of a citation, i.e., a
search cannot be “incident to a lawful arrest” if no
one is arrested
“[W]e hold [1] that Belton does not authorize a
vehicle search incident to a recent occupant’s arrest
after the arrestee has been secured and cannot
access the interior of the vehicle. [W]e also
conclude [2] that circumstances unique to the
automobile context justify a search incident to
arrest when it is reasonable to believe that evidence
of the offense of arrest might be found in the
vehicle.”
Held when an officer lawfully arrests “the occupant
of an automobile, he may, as a contemporaneous
incident of that arrest, search the passenger
compartment of the automobile” and any
containers there in. The holding was based on the
The idea is that stuff is going to turn out to be
there a lot - so police may look for it
 applicability of exception depends on state law bc
state laws dictate crim law – so initial analysis of
whether or not arrest lawful depends on whether
probably cause of breaking state law
[1] Belton (and Gant) do authorize a vehicle search
incident to a recent occupant’s arrest if the arrestee
has not been secured and could access the interior of
the vehicle.
 E.g., so, if you have a few people standing around
or for whatever reason, the police have not yet
handcuffed them if they are near the car, while
that is still true, a Chimel-style search of that
reaching area, which the Court has interpreted to
include that entire passenger compartment of the
car, is permissible
 Somewhat of an unusual situation because
normally police are going to promptly secure the
arrestee - but when that situation exists, police
may search the car effectively it is applying
Chimel to the vehicle - you have to actually be in
a situation where you could lunge toward the
vehicle.
 When the person has been secured, then we get
into this wacky doctrine set out in Gant that
allows a vehicle search incident to arrest —
[2] Gant also allows a vehicle search incident to
arrest when it is reasonable to believe that evidence
of the offense of arrest might be found in the vehicle.
 Does not include OTHER evidence of OTHER
offenses - so someone who is pulled over for
reckless driving and gets arrested, chances are a
search of the vehicle will not be allowed once that
person has been secured
 Somebody who has been arrested for an
immigration violation - similarly, there is not
assumption “that articles inside the relatively
narrow compass of the passenger compartment of
an automobile are in fact generally, even if not
inevitably, within ‘the area into which an arrestee
might reach.’”
United States v.
Robinson
Police may lawfully open a cigarette package found
upon an arrestee’s person during a search incident
to arrest; even though the arresting officer had no
particular reason to believe that the cigarette
package contained contraband or evidence of
crime, the Court held the search permissible; so
long as officers stay within the temporal and
geographic constraints imposed in cases such as
Chimel, no further quantum of evidence is required
to justify a thorough search of the arrestee’s
person, clothing, and immediate surroundings,
along with inspection of papers and effects found
during these searches; accordingly, other than
likely to be evidence of the person’s lack of U.S.
citizenship or residency in the vehicle
 However, someone who is arrested for drug
possession - any judge is going to believe that it
was reasonable for officers to believe that
evidence of the offense of arrest might be found
in the vehicle
 It is going to be a closer question if, for example,
someone is arrested on a warrant for
manslaughter - well if police reasonably believe
that the weapon used to kill the victim is in the
car, then that will make the search allowed; if
police have no reasonable believe that evidence of
the homicide offense will be found in the vehicle,
then that search is not allowed
 One thing to keep in mind is that the automobile
exception and search incident to lawful arrest
may both apply, and you’ll need to think about
which applies in what situation if you have some
person near a car and then police are busy
searching that car
 Remember that the passenger compartment
doesn’t include the trunk
 So, if police are searching the trunk, probably you
need the automobile exception rather than search
incident to lawful arrest to get them in
 BUT Robinson not clear on issue of locked
containers seized incident to arrest; nor issue of
closed (but not locked) containers found near (but
not on the person of) the arrestee.
 NOTE – passenger compartment = only SILA;
entire car = probable cause of evidence of crime –
e.g., pulled over car for speeding an roll down
windown and smell weed
United States v.
Chadwick
Riley v. California
probable cause necessary to justify the underlying
arrest, no probable cause (or even reasonable
suspicion) is required for a SILA
The Court held that opening an arrestee’s luggage
ninety minutes after the arrest could not be
justified as “incident” to the arrest - the time delay
was too great. But the Court did not decide whether
a locked (or otherwise closed) container could be
opened closer in time to the arrest - lower court
still split on the question
Under the Fourth Amendment, the government
may not conduct a warrantless search of the
contents of a cell phone seized incident to an arrest
absent exigent circumstances. In brief, what must
police do before searching a cellphone seized
incident to an arrest? Get a warrant.
 When an unarrested third party is near a car,
there may be authority for a “sweep” (to quickly
search the vehicle for dangerous items third parties
could use).
 When an unarrested third party is at a house that
police wish to search, police likely can secure the
house temporarily as they seek a warrant (to prevent
mischief by, say Chimel’s wife). This rule applies only
if police have probable cause; otherwise they cannot
obtain a warrant.
Consent
 Right to be free from warrantless searches can be waived
 Police investigations rely on such consent - owners of vehicles and luggage allow officers to search their effects; and occupants of
houses allow officers to enter and look around
 There is no dispute about the principle that genuine consent serves as a valid substitute for a search warrant.
 The controversial questions include what is necessary for consent to be valid, who may provide valid consent, and whether certain
police tactics render otherwise-valid consent ineffective
Schneckloth v.
The 4th Amendment does not require officers to
Very powerful (what does it allow?)
Bustamonte
inform persons of their right to refuse consent in
 Allows police to search or size anything that they
order for their consent to be valid. Instead, Courts
get valid consent to search or seize
must assess the totality of the circumstances in
o What constitutes valid consent?
deciding whether consent was voluntary. Normally,
 It just means that a person agreed
when there is no coercion by police officers, an
to it without being threatened
affirmative answer to an officer’s simply request to
improperly or coerced
search amounts to consent
 They don’t need to get some
United States v.
The Court held that police officers could board a
Miranda-style warning
Drayton
bus and ask for permission to search the property
 They don’t need to be told that they
of passengers, as long as under the totality of the
have the right to not consent
circumstances the officers obtained valid consent.
Florida v. Bostick
Ohio v. Robinette
Georgia v. Randolph
Illinois v. Rodrigquez
The majority reiterated that officers need not
advise passengers of their right to leave or to refuse
consent.
The Court held that officers may approach bus
passengers at random to ask questions and request
their consent to searches, provided “a reasonable
person would feel free to decline the officers’
requests or otherwise terminate the encounter.”
Rejecting rule created by Ohio judges that required
officers at traffic stops to state “‘At this time you
are legally free to go’ or words of similar import”
before initiating extra questioning or seeking
consent to search.)
A physically present co-occupant’s stated refusal to
permit entry prevails, rendering the warrantless
search unreasonable and invalid as to him. The
police may not enter a home without a warrant to
search for evidence where they obtain consent from
an occupant but a co-occupant is present and
objects to the search
As the Randolph majority noted, police may rely on
the “consent of an occupant who shares, or is
So if police say - hey do you mind if
i search your car - and you say fine that means they don’t need
probable cause, a warrant, they
don’t need anything - no evidence is
required, just like i could knock on
people’s doors and ask for
permission to go in - police can
knock on people’s doors for no
particular reason and ask for
permission to come in and search
 If they get that permission - then
the search is lawful
 No evidence is required
 Burden is on government (but not hard to meet)
to prove that consent was obtained
o Police officer comes in and says i asked for
permission and he said yes
o As long as judge believes that testimony the burden has been met other than in
bizarre cases where somebody doesn’t
speak English or they obviously lack
mental capacity
o Normally if you ask a person is it ok for me
to search your bag, or search your car, or
pat you down or search your house? - if the
person says yes, that consent is going to be
valid
o Valid consent is a warrant exception that
allows all sorts of searches and seizures
 you can revoke consent (like in sexual assault
cases)

 while Randolph remains good law, its reasoning
may not have support from a current majority of the
Court, and its holding is unlikely to be applied to
new fact patterns.
reasonably believed to share, authority over the
area in common.” In other words, warrantless
entry is valid - that is, reasonable - “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 do so.”
Fernandez v. California
One occupant’s consent to search a premises is
effective under the Fourth Amendment as long as
no other occupant who objects to the search is
physically present; here, the objecting occupant left
and so the remaining occupant could waive
Exigent Circumstances Exception
 The Court has grouped a handful of recurring situations under the umbrella term “exigent circumstances.”
 This exception allows police to conduct searches without warrants as long as officers have probable cause to believe that one of the
approved kinds of unusual situations - that is, exigent circumstances - exists.
 For all the categories of exigent circumstances, the Court has decided that seeking a warrant would be impossible, or at least
impractical.
 In all three scenarios - a police officer has to have probable cause to believe that there is something subject to seizure in a place
where the officer wants to go (squishy for public safety prong tho) idea is that this is a scenario in which a police officer could get a
warrant BUT we do not require the officer to get a warrant because getting it would be impractical
I.e., the officer must have enough evidence that it would be appropriate to grant a warrant, but we’ve decided for practicality’s sake
that getting a warrant would frustrate the purpose of the legitimate police activity and therefore getting the warrant is not necessary
Hot Pursuit
Maryland Penitentiary
(1) The Fourth Amendment permits officers in hot
 The thing that is subject to seizure in this
v. Hayden
pursuit of a fleeing felon to enter a home, into
situation is actually a human being - so you have
which the suspect had fled, and search the home
a person who is fleeing from the scene of a crime
without a warrant.
- and while the pursuit doesn’t have to be that
(2) The Fourth Amendment permits officers to
perfect - i.e., officers don’t have to have perfect
seize mere evidence of a crime that is not either a
line of sight the whole time - the idea is that it’s
fruit or instrumentality of crime or contraband.
pretty direct - an officer is trying to do a lawful
arrest, and the would be arrestee thwarts that
officer’s legit activity by fleeing the scene, officer
gives chase, and then the person goes into a
house or some other place that the officer
normally would need a warrant to enter - the
court says making the officer call to get the
warrant will likely ruin the pursuit also it rewards
very bad behavior by the suspect - so the court
United States v.
Santana
Stanton v. Sims &
People v. Wear
Payton v. New York
Hot pursuit allows officers to follow a fleeing felon
into a house. The Court has explained that “hot
pursuit’ means some sort of chase, but it need not
be an extended hue and cry ‘in and about (the)
public streets.’”
Consider the following scenario: Police have
probable cause to arrest a suspect for a
misdemeanor. The suspect flees, and police give
chase. If the suspect enters a home, may police
follow? Why or why not? See Stanton v. Sims
(declining to decide the question); People v. Wear
(extending “hot pursuit” doctrine to
misdemeanors).
No cold pursuit!
Routine felony arrest does not constitute exigent
circumstances to allow a warrantless entry of a
home in which police have probable cause to
believe the suspect will be found
says hot pursuit justifies a warrantless entry assuming of course the officer has probable cause
to believe that the suspect is in the building the
officer is about to enter - usually not going to be
in much dispute bc saw it or got reliable info
 We know however that even for very serious
offenses like robberies and homicides, a routine
arrest does not count as hot pursuit - so showing
up a couple of days later where you think the
murderer is for that you need to get a warrant of
some kind - note that an arrest warrant allows
the police if they have probable cause to think
that the arrestee is in his home it allows them to
go into that home, but not into some other place
o E.g., if Frank is in my house, then police
will want to get a search warrant to search
for Frank in my house; if Frank is in
Frank’s house an arrest warrant for Frank
would allow them into that residence
 After entering a home in hot pursuit, police may
look around to protect themselves, find the suspect,
find weapons etc. The Court in Hayden even allows
an officer to search a washing machine around the
time the suspect was caught elsewhere.
 open debate though
 How long does it take for pursuit to go cold? Don’t
tell us - don’t have to have line of sight the whole
time - but the chase has to really still be afoot
Public Safety
 The next category of exigent circumstances includes situations in which police believe public safety is at immediate risk. For
example, when operators receive a 911 call reporting an ongoing assault, police need not seek a warrant before heading to the crime
scene and, if necessary, entering a home. Firefighters and emergency medical personnel also enter buildings without warrants to
provide prompt aid. Similarly, officers who hear screams coming from a house or perceive other evidence of imminent danger may
have probable cause that justifies warrantless entry. In these situations, police could not effectively “serve and protect” without an
exception to the warrant requirement.
Brigham City, Utah v.
Police may enter a home without a warrant if there  Keep in mind that police in this situation are
Stuart
is an objectively reasonable basis for believing an
sometimes preventing crime and arresting people
occupant is injured or in immediate danger.
but other times are acting more like the fire dept
(Probable cause that someone being injured) - use
or EMTs who we don’t think of ever having to get
probable cause for exigent circumstances; Pure
warrants to get into a building if on fire or if
public safety – don’t see use of probable cause - see
person passed out in house
house on fire. In this case, the officer’s entry was
 So public safety prong of exigent circumstances
objectively reasonable. The officers observed an
normally involves police acting in a manner
altercation involving several people and at least
similar to these other life saving govt employees
one injury. There was an objectively reasonable
who enter homes and other protected places
basis for believing that the injured person needed
without warrants
assistance and that there was an ongoing risk of
 So yes in Brigham City they engaged in crime
injury to others in the home.
fighting as well as breaking up a fight and in
Michigan v. Fisher
A warrantless search of a home is permissible
Fisher, Fisher ends up getting arrested - the idea
where there is an objectively reasonable basis for
is that this prong will only be triggered if it si the
believing someone within the house is in need of
kind of thing that someone who isn’t a police
immediate aid. Here,when police arrived, they
officer but is just out there trying to help people
found indications that there had been some kind of
would be able to go into a house under those
accident, as evidenced by the damaged car and the
circumstances where there’s a danger to life or at
blood. They also observed Fisher inside his home
a minimum a danger to someone’s safety or
screaming and throwing objects. It was objectively
significant danger to property
reasonable for the officers to believe that someone
 Police can come in and might arrest someone in
else inside the home might be in danger or that
the house, but that does not take away the public
Fisher might have hurt himself. Thus, it was
safety idea
reasonable for Goolsby to enter the home under the  But this prong won’t work if there is not a
circumstances.
legitimate public safety argument - so no saying
just murderer sitting there reading a book (didn’t
work as argument for hot pursuit either) - can’t
just say well the murder is dangerous - can’t get
around public safety to get around argument like
in Payton v. New York - that cold pursuit doesn’t
count as exigent circumstances
Kentucky v. King
Missouri v. McNeely
Schmerber v. California
Preserving Evidence from Destruction (how cold?)
The Rule for so-called police created exigencies
Police must have probable cause to believe (1) that
“[W]e conclude that the exigent circumstances rule items subject to seizure are in a particular place and
applies when the police do not gain entry to
(2) that waiting for a warrant would put the evidence
premises by means of an actual or threatened
at serious risk of destruction.
violation of the Fourth Amendment.”
 Translation: The exigent circumstances rule
Common scenarios involve suspects who may be
does not apply when the police gain entry to
about to flush drugs down the toilet, burn
premises by means of (1) an actual or (2) a
documents, or tamper with electronic devices.
threatened violation of the Fourth Amendment
 But if the police are just doing legit police work
If police are outside your house – BE COOL – how
and that causes someone inside to act in a non cool cold? ICE COLD
manner and create exigent circumstances - then
the rule does apply and the police can go in, as they BUT – The Rule: “[W]e conclude that the exigent
did in King, to protect the evidence from
circumstances rule does not apply when the police do
destruction
gain entry to premises by means of an actual or
threatened violation of the Fourth Amendment.”
Drunk Driving
In drunk-driving investigations, the natural
 police may not do a blood test without consent
dissipation of alcohol in the bloodstream does not
constitute an exigency that in every case is
 In those drunk driving investigations where police
sufficient to justify conducting an involuntary
officers can reasonably obtain a warrant before a
blood test without a warrant. While the natural
blood sample can be drawn without significantly
dissipation of alcohol in the blood may support a
undermining the efficacy of the search, the Fourth
finding of exigency in a specific case, as it did in
Amendment mandates that they do so - no doubt
Schmerber, it does not do so categorically. Whether that under some circumstances will make obtaining
a warrantless blood test of a drunk driving suspect a warrant impractical such that the dissipation of
is reasonable must be determined case by case
alcohol from the bloodstream will support an
based on the totality of the circumstances
exigency justifying a properly conducted warrantless
(warrantless blood draws without other reason
blood test”
prohibited – does not apply to general DUIs)
The exigent-circumstances exception to the Fourth  The dissipation of alcohol in bloodstream and
Amendment's warrant requirement allows officers ensuing loss of evidence should be a factor in the
to withdraw a suspect's blood for testing without a reasonableness analysis
warrant if officers reasonably believe that delaying
 The wisdom of the Court’s opinion may depend on
the test to obtain a warrant could lead to the
destruction of evidence. When car wreck and police factors like (1) how difficult is it to get warrants after
arresting someone for a DUI, (2) how quickly does
need to help people - court said you don’t need a
the alcohol in someone’s blood get removed by the
warrant to take someone’s blood if you are
distracted by legit police business like that (enough
of exigent circumstance to have warrantless blood
draw)
Birchfield v. North
Dakota
Mitchell v. Wisconsin
Welsh v. Wisconsin
Implied blood-draw consent laws that result in
criminal prosecution unconstitutional. Because
breath tests are significantly less intrusive than
blood tests and in most cases amply serve law
enforcement interests, Court concludes a breath
test, but not a blood test, may be administered as a
search incident to a lawful arrest for drunk driving.
As in all cases involving reasonable searches
incident to arrest, a warrant is not needed in this
situation. BUT a law making it a crime for a
motorist to refuse a BAC blood test after being
lawfully arrested for driving while impaired does
violate the Fourth Amendment.
The Court issued a plurality opinion affirming the
legality of a warrantless blood draw conducted by
police after a suspect became unconscious. The
plurality opinion - approved by four Justices stated that when a driver is unconscious and
cannot submit to a breath test, police may perform
a blood draw under the exigent circumstances
exception to the warrant requirement. The opinion
relied upon Schmerber v. California, Missouri v.
McNeely, and Birchfield. Justice Thomas,
concurring in the judgment, would have held that
the natural metabolism of alcohol by the human
body always creates a per se exigency “once police
have probable cause to believe the driver is drunk.”
Four Justices dissented, in two separate opinions.
The exigent circumstances exception to the Fourth
Amendment does not allow warrantless entry into
a home to make an arrest for a minor offense.
body, and (3) how accurate are reverse extrapolation
efforts (which guess how much alcohol was in the
blood at time of arrest, based on the level measured
later).
 keep in mind though that if you refuse to do a
blood test when you’ve been lawfully arrested, there
might be civil consequences such as the loss of your
driver’s license
 hot pursuit doesn’t work bc pursuit cold – also
misdemeanor and court doesn’t really want to take
up this question
 public safety doesn’t really work bc he is already
home and asleep the reason why drunk drivers are
dangerous is because they are driving poorly - but
homeboy was not at risk waking up, going back to
United States v. FloresMontano
United States v.
Martinez-Fuerte
Almeida-Sanchez v.
United States
car and driving it more; not an emergency bc not a
threat to himself or others – no sound or dangerous
things going on – guy is just sleeping it off
 What about prevention of evidence from
destruction? Answer is see McNeely - for a routine
DUI arrest we are not that afraid evidence will be
destroyed - so get a warrant - so court ultimately not
persuaded that state losing the ability to prosecute
this guy was such an exigency that justified no
consent to enter home - that is where 4th
Amendment protections the greatest
Ports of Entry (The Border)
The Government’s authority to conduct
 Default rule - there is immense power granted by
suspicionless inspections at the border includes the
Congress to the executive to enforce the law at
authority to remove, disassemble, and reassemble
the border when people come in and out of US a vehicle’s gas tank. While it might be true that
comes to us from powers that all nations have so
some searches of property are so destructive as to
essentially, the American executive inherited this
require a different result, this was not one of them.
from crown and congress has not done much to
The stops and questioning at issue may be made in
limit it nor says the court does the Fourth
the absence of any individualized suspicion at
Amendment
reasonably located checkpoints - stops for brief
 These kinds of vigorous searches and seizures
questioning routinely conducted at permanent
largely deemed to be reasonably, so they don’t
checkpoints are consistent with the Fourth
count as unreasonable searches and seizures that
Amendment and need not be authorized by
the Fourth Amendment would restrict
warrant. Any further detention must be based on
 The Border:
consent or probable cause.
o The default (gas tank)
The question was whether a roving-patrol unit
 No suspicion is necessary to search
constitutionally could search a vehicle for illegal
gas tank or luggage or pockets
aliens simply because it was in the general vicinity
 Stay in Canada if you don’t want
of the border. Court recognized that important law
these things searched
enforcement interests were at stake but held that
o Mail (and electronic devices?)
searches by roving patrols impinged so
 Same rule - no suspicion
significantly on Fourth Amendment privacy
 Seems to with electronic devices interests that a search could be conducted without
not sure tho
consent only if there was probable cause to believe
o Checkpoints
that a car contained illegal aliens, at least in the
 Move away from physical border
absence of a judicial warrant authorizing random
 A fixed checkpoint is a place where
searches by roving patrols in a given area. Court
police can make you slow down and
held in United States v. Ortiz, that the same
United States v.
Brignoni-Ponce
United States v. Ramsey
United States v. Elvira
Montoya de Hernandez
limitations applied to vehicle searches conducted at
a permanent checkpoint. To SEARCH the car - you
need probable cause
However, Court recognized that other trafficchecking practices involve a different balance of
public and private interests and appropriately are
subject to less stringent constitutional safeguards.
The question was under what circumstances a
roving patrol could stop motorists in the general
area of the border for brief inquiry into their
residence status. Court found that the interference
with Fourth Amendment interests involved in such
a stop was “modest,” while the inquiry served
significant law enforcement needs. Court therefore
held that a roving-patrol stop need not be justified
by probable cause and may be undertaken if the
stopping officer is “aware of specific articulable
facts, together with rational interferences from
those facts, that reasonably warrant suspicion” that
a vehicle contains illegal aliens. Just to STOP the
car - just need reasonable suspicion. To surprise
people and pull them over - need reasonable
suspicion that someone is in there that isn’t
supposed to be. To STOP at a CHECKPOINT you
need 0 suspicion - you can do this randomly
Mail entering the country is subject to search
without probable cause or a warrant.
A person entering the country may be subjected to
more intrusive searches than routine border
searches, if there is a reasonable suspicion that
drugs are being smuggled in that person’s
alimentary canal.
they can even pull you over for a
while on the basis of reasonable
suspicion
 They still cant search the car
without probable cause at a
checkpoint, but they can make you
stop briefly and answer questions
with mere reasonable suspicion
o Roving patrols (not a fixed checkpoint, but
just driving around doing immigration law
enforcement)
 Need reasonable suspicion to pull
you over in the first place - idea
being it is more alarming to a
motorist to be pulled over by a
roving patrol than to be stoped at a
fixed checkpoint that is there all the
time
o Related: “extended border”
 Keep in mind that the checkpoints
and roving patrols are examples of
the authority of the so-called
extended border which may or may
not extend into the interior of the
country by about 100 miles from
the real border - exact details of
govt authority under the extended
border theory are somewhat
uncertain
 Probably does not allow gas tank
style search whatever you want
enforcement of all Americans and
visitors to country who are in 100
miles of international border
o Especially lousy treatment
 Particularly lousy treatment at
border itself or at airport which is
the function equivalent of the

border, requires reasonable
suspicion
And that’s the woman who
swallowed balloons with drugs govt said we can do this with
reasonable suspicion, can’t do it to
everyone, but reasonable suspicion
is all you need for that treatment
Checkpoints
 all involve suspicionless searches – no reason to think person has done something wrong, just pull them over
Michigan State Police v. Court holds that a State’s use of highway sobriety
Alcohol (& other impairment)
Sitz
checkpoints do not violate the Fourth and
 Checkpoints designed to catch impaired drivers,
Fourteenth Amendments. Want to combat drunk
in this case, in Sitz, it involved alcohol - or similar
driving.
to check people driving under influence of drugs
City of Indianapolis v.
A suspicionless roadside checkpoint established for  These checks are permissible under the 4th
Edmond
the purpose of deterring general criminal activity is
Amendment
unlawful under the Fourth Amendment. Illegal
 The Court recognized it was an inconvenience
drugs are a threat, but not an imminent deadly
and imposition on driers, but said that the
threat like person driving while drunk
inconvenience was fairly minimal and that the
Illinois v. Lidster
A roadside vehicle checkpoint is not presumptively
fear associated with stopping at marked
unlawful if the primary law-enforcement purpose
checkpoint, even tho not permanent, when you
of the stop is to ask vehicle occupants for
get there you know what it is and Court said not
information about crimes possibly committed by
that big of a deal and is justified given the
others. In this case, the public concern was very
problems caused by drunk driving
serious, as the police were investigating a hit-andGeneral interest in crime control
run accident that had caused someone's death. The  No checkpoint for discovering whether drivers
police were not engaged in general crime fighting
had drugs in the car (compared to in their body
but were looking for a specific perpetrator. The
impairing their driving) (Indianapolis police)
vehicle checkpoint significantly advanced the
 The court described those kinds of checkpoints as
public concern, and the stops were appropriately
being in furtherance of a general interest in
tailored to the situation: police used a checkpoint
crowd control and distinguish it from the
on the same road, one week later, and at the same
previous checkpoints that were dealing with
time as the incident. Moreover, the stops only
possibility that vehicle itself was
minimally interfered with motorists’ liberty: each
dangerous/deadly bc of the driver
stop was very brief, and the police simply asked for Very specific interest in crime control
information and distributed a flyer. No one was
 Ok to stop people and hand out flyers - same time
forced to incriminate himself. Accordingly, the stop
of day and same place where deadly hit and run
was constitutional.
occurred


Court said yes it is true they are not trying to stop
a dangerous driver in that moment, so it is not
like the fact of Sitz, but they distinguish it from
Edmond saying, on the other hand this is not a
general license to stop people whenever you
want, it is a very limited imposition
And they were not even trying to catch the drivers
they pulled over, they were merely trying to
inform them of an ongoing investigation
Protective Sweeps
 Police may conduct protective sweeps along with an arrest to protect themselves and others from potential attackers who may be
lying in wait.
 When comparing lawful “protective sweeps” with searches incident to lawful arrest, students should note (1) the physical scope of a
protective sweep will often extend beyond the area in which a SILA is permissible, (2) because sweeps are permitted only to protect
against dangers to those present during the arrest, police may search only areas in which an officer may reasonably suspect a person
could be found, and (3) the searches must be “cursory inspections” of those spaces.
Maryland v. Buie
The Fourth Amendment would permit the
When are they allowed?
protective sweep undertaken here if the searching
 When officers are lawfully in a house to make an
officer “possessed a reasonable belief based on
arrest, they may:
specific and articulable facts which, taken together
o Search anywhere in the house in which
with the rational inferences from those facts,
suspect might be found (this isn’t the
reasonably warranted the officer in believing” that
sweep) (just what they are allowed to do
the area swept harbored an individual posing a
when they make that arrest)
danger to the officer or others. Incident to an
o As well, the police may ...
arrest, the police may conduct a protective sweep
o Assure themselves that the house in which
of a premises based on reasonable suspicion that
a suspect is being, or has just been,
other people who pose a threat are in the building,
arrested is not harboring other persons
provided the search is limited to those areas where
who are dangerous and who could
a person may be hiding.
unexpectedly launch an attack on the
officers (this is the sweep)
What is allowed under the term protective sweep?
 Limit: “such a protective sweep, aimed at
protecting the arresting officers, if justified by the
circumstances, is nevertheless not a full search of
the premises, but may extend only to a cursory
inspection of those spaces where a person may be
found. The sweep lasts no longer than is
necessary to dispel the reasonable suspicion of
danger and in any event no longer than it takes to
complete the arrest and depart the premises.
 Gonna be super common when police arrest
someone in a house bc police can say it doesn’t
matter what I am arresting him for - he or his
friends might be angry about it and things can
happen
 So as long as they stick to the cursory inspection
that doesn’t last too long - guess is the officers
will normally be fine bc the reasonable suspicion
prong is not that difficult to satisfy - but you
would need to do that analysis - “bc _____ they
had reasonable suspicion ...” or no reasonable
suspicion
 For courts permitting sweeps absent arrests, see, e.g., United States v. Fadual (holding that “under certain circumstances, law
enforcement officers may engage in a protective sweep where they gained entry through consent in the first instance” but that the
sweep at issue was not lawful); United States v. Miller (allowing sweeps made by the police pursuant to “lawful process, such as an
order permitting or directing the officer to enter for the purpose of protecting a third party”); United States v. Gould (allowing
sweep of mobile home entered by police with consent).
 For courts holding sweeps unlawful absent an arrest, see, e.g., United States v. Torres-Castro (“Following Buie, we held that such
‘protective sweeps’ are only permitted incident to an arrest.”); United States v. Waldner (declining the invitation to “extend Buie
further”); United States v. Reid (holding search cannot be justified as protective sweep because when it occurred suspect “was not
under arrest”)
Searches of Students & Public Employees
New Jersey v. T.L.O.
Under the Fourth Amendment, without a warrant, Two big questions —
a school official is permitted to search a student if
(1) When may school officials search the students?
there are reasonable grounds for suspecting that
(TLO) (when they have reasonable grounds for
the search will result in evidence of the student’s
suspecting that the search they want to do will turn
violation of law or school rules.
up some evidence of either a violation of law or a
violation of school rules - if chewing gum is
Sanford v. Redding
Under the Fourth Amendment, a school official
prohibited in school, reasonable grounds for
cannot strip search a student without a specific
suspecting that someone’s purse has chewing gum
suspicion that the student is hiding evidence in
will likely justify at its inception a search by school
intimate places.
officials of a student’s person)
 TLO — “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
California v. Quon
A government employer’s intrusion on an
employee’s reasonable expectation of privacy does
not violate the Fourth Amendment if it was for
noninvestigatory, work-related purposes and
reasonable under the circumstances; concerning
electronic communications.
violated or is violating either the law or the rules
of the school.”
 However, just bc a search is justified at its
inception doesn’t mean that any kind of search
will be allowed
(2) What kinds of searches may they conduct?
 TLO - “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.”
 E.g., check in places where chewing gum likely to
be found - so no checking of underwear for gum
 So, a more serious accusation like i think this
student has cocaine in her underwear - that
might justify the kind of search deemed
impermissible given fear that student had a
couple of Advil
 Also, if student in Redding had been a little older
then perhaps court might looked at it differently,
etc.
 So, this will be a fact specific analysis BUT strip
searches is highly unlikely to be upheld absent
fairly extraordinary circumstances
 The key thing to keep in mind is that while you do
surrender a fair amount of privacy rights with
respect to digital devices you use with your public
employment and things like your desk or locker
at a public workplace - the court has not really
given us much guidance about what kinds of
searches of public employees are reasonable and
what kinds of searches are not
 ultimately they told us the search of Officer Quan
was allowed, but the facts of that were really good
for the government who wanted to do that search
- so that doesn’t tell us too much about what
would be deemed impermissible


Skinner v. Railway
Labor Executive’
Association
One argument is that almost all searches of
public employees devices that are issued by govt,
or of their workplaces will be allowed under the
theory of don’t come work for the government if
you don’t want your stuff to be searched and they
have a duty they the employer to shepherd
taxpayer dollars, etc.
But given some of our recent cases about the
privacy of digital devices - maybe if you use your
iPhone to have your personal email and your
government email maybe that doesn’t entitle your
government employer to read all of your emails
on your phone that are maybe even not on the
phone itself, but stored in cloud, and so on - these
issues are complicated, and don’t know any for
sure answers on it
Drug Testing of Public Employees
Governmental regulations authorizing the
Drug Testing (public - important part to all of these collection of biological samples from public
if you don’t have any state action, you’re not going to
employees in the absence of suspicion do not
have a Fourth Amendment violation - e.g., Microsoft
violate the Fourth Amendment when special law
& Walmart are free to demand drug testing as a
enforcement needs render probable cause and
condition of employment) – Public Employees
warrant requirements impracticable.
 Not all public employees are subject to
suspicionless drug test, but some may be
subjected and the example we have is after a train
accident, the entire crew, not just the people in
charge of driving it and other safety violations
involving railways - those can trigger searches of
a bunch of employees
 Similarly, the Customs Service is allowed to
require drug testing as a condition for promotion
to certain kinds of sensitive positions
 So, the through line is that the court is not
allowing all government employees to be drug
tested at the whims of their bosses; but the court
has been reasonable open to explanations for why
certain categories of public employees should be
subjected to suspicionless drug testing

National Treasure
Employees Union v. Von
Raab
Chandler v. Miller
A U.S. Customs Service program required drug
testing of employees who sought promotion to jobs
involving seizing illegal drugs or which required
employees to carry firearms or handle classified
materials. Again, the Court found the collection of
urine samples to be a “search.” Again, the Court
upheld the policy, holding that it was “reasonable”
for the government to mandate the tests because of
its “compelling interest in ensuring that front-line
interdiction personnel are physically fit, and have
unimpeachable integrity and judgment.”
Comparing the practice to hypothetical searches of
workers at “the United States Mint ... when they
leave the workplace every day,” the Court
concluded that the “operational realities” of the
Customs Service justified the testing.
By contrast, the Court struck down a Georgia law
requiring that candidates for certain state offices
submit to drug tests. The state stressed “the
incompatibility of unlawful drug use with holding
high state office” and argued that “the use of illegal
drugs draws into question an official’s judgment
and integrity; jeopardizes the discharge of public
functions, including anti drug law enforcement
efforts; and undermines public confidence and
trust in elected officials.” The court was not
persuaded, concluding, “[n]othing in the record
hints that the hazards respondents broadly
describe are real and not simply hypothetical for
GEorgia’s polity.” The Court noted that political
candidates “are subject to relentless scrutiny - by
their peers, the public, and the press.” The Justices
stated that the suspicionless searches needed to
The one case that came out the other way
involved a state statute requiring certain people
seeking election to statewide office - the court
said that is really up to the voters and people
don’t need to subject themselves to this kind of
testing to run for public office
track lower-profile employees - like those approved
in Skinner and Von Raab - were not necessary for
voters to vet candidates for election.
Drug Testing of Public School Students
Vernonia School District Students participating in athletic programs may be  The law is now very friendly to school districts
v. Acton
drug tested without a warrant or suspicion.
who want to test huge majorities of their public
Pottawatomie County v. Students who participate in extracurricular
school students
Earls
activities may be subjected to drug testing without
 Not only are student athletes allowed to be
a warrant or individualized suspicion.
subjected to these kinds of tests
 But also the court tells us in Earls that anyone
who signs up for some sort of voluntary
extracurricular activity, including things like
band and the FFA may be subjected
 This has been even further applied to certain
lower courts for students who park voluntarily on
school property
 Ben thinks almost any school policy short of we
randomly test all students is likely to survive
scrutiny in court
o So Ben thinks anything where a student is
choosing to do something that is not
required for graduation, even something
like going to hoco dance, probably will
satisfy standard set forth by court
o Certainly involvement in extracurricular
activities of all kinds does
 In other words: 4 categories of students who may
be subjected to drug testing (not including
someone who looks high - just principals feels
like testing you)
o 1. No suspicionless testing
o 2. Athletes - it is allowed for athletes
(Vernonia)
o 3. Athletes & Voluntary school activity includes athletes and all voluntary
extracurricular activity (Earls)
o 4. Everyone - suspicionless drug testing
allowed
o Earl essentially allows any student to be
drug tested
Ferguson v. City of
Charleston
Florence v. County of
Burlington
Drug Testing of Public Hospital Patients
A state hospital may not drug test pregnant women  Involved the urine samples being taken from
without a warrant or informed consent for law
pregnant women or new moms who the docs
enforcement purposes under the Fourth
believe were using drugs and this was not even a
Amendment.
hey come and give us a sample, it was just that
when the patients urinated while in the hospital,
they were collecting it and sending it off to be
tested
 And of course docs had good story for why they
did that - protect patients & unborn children
 Court said well while that was laudable, it was
nonetheless a Fourth Amendment violation to
betray the trust that the patients have given to the
doctors - they are expecting to receive medical
care, not to be investigated and turned over to the
police
 It is possible this would have come out differently
if the hospital program did not involve handing
over evidence to the police
o But ultimately the decision we have, likely
would be applied by lower courts to any
kind of system where there was
involuntary collection of samples from
patients for the purposes of finding out if
they have drugs in their system, if there’s
any kind of negative consequence for the
patients
o But when criminal justice system involved
- not allowed without patient’s consent
Searches of Persons in Jails and Prisons
A strip search in jail for those who commit minor
 Overwhelming driver of this decision is best
offenses does not require reasonable suspicion.
practices is NOT required to meet the reasonable
searches standard in jail; doesn’t have to be best
practices - just can’t be wildly ridiculous / really
awful

Black letter law = SCOTUS is not especially
sympathetic to criticism of how folks who run
jails decide when to search the prisoners or the
inmates
 Case we had involved someone arrested for
nonviolent offense, forced to be subjected to
unpleasant search involving a physical inspection
of intimate areas of the body — this kind of
search is not considered best practices by people
in the jail running business, and SCOTUS says we
are not going to find this to be unreasonable
therefore it is not a Fourth Amendment violation
— not because the court thinks it is best practices,
but bc the court says that best practices are not
required by the Fourth amendment — the court is
not especially interested in becoming the arbiter
of precisely when prisoners can be searched and
when they can’t
 There was at least a plausible argument for why
jailers wanted to do searches like this and that
turned out to be good enough for the court
Searches of Probationers and Parolees
 Although persons on probation and parole are not subjected to the sort of control and scrutiny experienced by jail and prison
inmates, probationers and parolees must submit to searches that would be “unreasonable” if required of other persons.
United States v. Knights A probationer’s home may be searched if there is
 Two cases we looked at both involved people with
reasonable suspicion of criminal activity.
search conditions - that is something where a
Griffin v. Wisconsin
The Court held that a warrantless search of a
court had included in the probation order or a
probationer’s residence is “reasonable” within the
parole decision had included in that order a
meaning of the Fourth Amendment because it was
condition subjecting people to searches - that is
conducted in accordance with a regulation that is a
doing some of the work that justifies searches
reasonable response to the “special needs” of a
without warrants or in some cases without
probation system. Supervision of probation is
probable cause for people who are involved under
necessary to ensure the restrictions are followed
the supervision of the correctional system
and that the probation serves as a period of
 Keep in mind that someone who is on probation
rehabilitation; therefore the state may depart from
has been convicted and is sentenced to probation
the usual warrant requirements. The “reasonable
instead of being sent to jail or prison, and
grounds” standard to search a probationer’s
someone who is on parole generally has been in
residence is an appropriate substitute for warrant
prison and is released short of full length of the
requirements in this special situation, and in this
Samson v. California
South Dakota v.
Opperman
Illinois v. Lafayette
case, the information received from the detective
provided those reasonable grounds.
The suspicionless search of a parolee does not
violate the Fourth Amendment. The Fourth
Amendment does not prohibit the suspicionless
search of a parolee whose release was conditioned
on agreement to submit to search or seizure
without cause. Reasonableness under the Fourth
Amendment requires considering the totality of the
circumstances and balancing an individual’s
privacy interests against legitimate governmental
goals. Parolees are legally in the custody of the
state for the duration of parole. Because parole is
analogous to prison, a parolee’s diminished privacy
rights are more like those of a prisoner than a
probationer. The state’s interest in protecting the
public and rehabilitating the offender are
substantial. Under California law, a parolee must
consent to search or seizure with or without cause
as a condition of release. The officer’s suspicionless
search of Samson was permitted by statute and
reasonable under the Fourth Amendment.
Therefore, the suspicionless search of a parolee is
constitutional.
Inventory Searches
Police may constitutionally perform an inventory
search of a vehicle lawfully in police possession.
Property that lawfully comes into possession of
state/police - temporarily comes into lawful
custody of police. Only works when police lawfully
have possession of someone’s stuff. If the property
comes into hands of police unlawfully - then
unreasonable search
Police may constitutionally perform an inventory
search of the personal effects of an arrested person
during booking. The Fourth Amendment does not
prohibit an inventory search of an arrested
person’s effects during booking. South Dakota v.
Opperman, 428 U.S. 364 (1976), makes clear that a



sentence - a lot of the work that is being done
when the court thinks that, well, the alternative
to parole or probation with this sort of condition
might be imprisonment - on the other hand the
court does not explicitly list consent as the
justification and there may just be something of
an argument that it is reasonable to do these
kinds of searches for the advancement of crime
control
Just know the details of when there is a search
condition the court has said that certain kinds of
searches are permissible that otherwise would
not be permissible for random folks walking
around the street
When police lawfully acquire property; e.g.,
lawfully acquiring a car that gets towed because
was parked illegally or bc driver pulled over for
drunk driving and arrested - then car sitting on
side of road - police take it away - so when police
lawfully obtain this car, or in the case of an
arrested person, it might be a backpack person is
carrying when taken to jail, police have some
property
And court says that inventory searches of this
property is permissible for three reasons
Florida v. Wells
warrant is not required for an inventory search.
Thus, the issue is whether the search is reasonable.
Reasonableness is assessed by balancing
Lafayette’s privacy interests against the legitimate
governmental goals advanced by the search. The
reasons for performing an inventory search at
booking are different than those justifying a search
of a person or the area within the person’s control
at the time of arrest. Inventory searches at the time
of booking deter theft, protect police and jailors
against false claims of loss or damage to property,
reveal dangerous items, and sometimes help
identify a suspect. As such, there is a substantial
governmental interest in searching all of the
personal effects of an arrested person, and
reasonableness does not require that there be no
“less intrusive” alternative to accomplish the same
goals. Thus, police may perform an inventory
search of an arrested person’s effects during
booking as part of the standard intake procedure.
The Supreme Court held that there must be a
policy in place that determines whether inventory
searches include opening closed containers or not.
Such a policy allows the situation to be regulated.
Absent such a policy, as in this case, the search is
not regulated sufficiently to be permissible under
the Fourth Amendment. The Fourth Amendment
does allow police officers to use discretion in
determining whether a container can be opened
based on the nature of the search.
Administrative Searches


o (1) protect owner’s property from being
stolen (put that valuable stuff in locked
safe)
o (2) protect police from false claims of
theft/negligence (lol but police could
falsify inventory list - but it does make
sense in theory)
o (3) protect police (and others) from
dangerous items (e.g., guns, drugs, etc.)
Because these reasons don’t really have to do
with searching for crime, nor do they really have
to do with things that police can tell when the
situation might happen - court says probable
cause is not necessary
o E.g., if police tow a car, there’s no way they
can know whether this car belongs to the
sort of person who might later file a false
claim of theft, nor can they really be sure
whether the car contains valuable items so the court says it doesn’t make any sense
to ask the police running the impound lot
to have probable cause to believe that
there is property of value in a vehicle or
that its owner might make a false claim or
that there is a dangerous item
Therefore, the only real constraint is that the
inventory search be conducted pursuant to a
preexisting policy that is not a ludicrous policy - if
there is some kind of vaguely sensible police
already on the books, including, “we search all
cars when they come in,” or something like that
— that will be sufficient to justify it
o If, however, the police don’t search most
cars, but only search the towed cars of
people whom they suspect of unrelated
crime, that would likely not satisfy the
inventory search exception and that might
be an unreasonable search
Camera v. Municipal
Court
See v. City of Seattle
New York v. Burger
City of Los Angeles v.
Patel
Under the Fourth Amendment, routine
administrative searches require consent or a
warrant.
Is arrest appropriate for refusing to allow entry to
commercial property, for a regular inspection? No.
The Court considered this case along with Camara.
The Court held that “[T]he agency’s particularly
demand for access will of course be measured, in
terms of probable cause to issue a warrant, against
a flexible standard of reasonableness that takes
into account the public need for effective
enforcement of the particular regulation involved.”
The Court also stated that they were not addressing
“whether warrants to inspect business premises
may be issued only after access is refused; since
surprise may often be a crucial aspect of routine
inspections of business establishments, the
reasonableness of warrants issued in advance of
inspection will necessarily vary with the nature of
the regulation involved and may differ from
standards applicable to private homes. BUT THEN
A business in a closely regulated industry may be
searched without a warrant so long as the searches
are necessary, there is a substantial government
interest, and the authorizing statute serves the
functions of a warrant. Junkyard case
The warrantless search of hotel records for general
inspection purposes does not fall under the
administrative-search exception to the warrant
requirement of the Fourth Amendment. Like the
junkyard case. Sniffing out prostitution - maybe
people are staying here for like 2 hours again and
again. But hello they could get a warrant bro - court
is not buying it and pull back bc it just looks like
generalized interest in crime control - this is a
search for crime and not for hazards
DNA Tests of Arrestees






These are things like searches by the housing
inspectors or searches of grocery stores to keep
an eye out for tainted food or things of that
nature, and searches of car junkyards
And these searches seem to be general warrants
bc a warrant to search a whole neighborhood for
bad wiring that could start a fire that seems to be
a warrant that does not particularly describe the
place to be searched or things to be seized
Why then does court permit it? Perhaps bc it is
simply necessary to run a municipal government
and we know the fire codes are necessary. Also
perhaps administrative searches are not being
done in pursuit of random crime control or
general crime control efforts but are actually
related to bond fide administrative functions of
city or state - makes it easier to understand why
court would permit it
Some administrative searches require warrants as we saw for searches based on housing
inspection and fire safety - the court has also at
least for closely regulated injuries held that
certain statutes or regulations might permit
warrantless administrative searches in some
kinds
The court pulled back a little in the LA case
involving hotel - court pulled back a little on what
counts as a closely regulated industry
But given that NY car junkyard case is still on
books - standard for close regulation of industries
does not remain especially high
Maryland v. King
United States v.
Mendenhall
When officers make an arrest for a serious offense
that is supported by probable cause and bring the
suspect to the station to be detained in custody,
taking and analyzing a cheek swab of the arrestee's
DNA is a legitimate police-booking procedure that
is reasonable under the Fourth Amendment.
What is a Seizure?
“We conclude that a person has been ‘seized’ within
the meaning of the Fourth 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.” (E.g., if police officer
or other agent of state creates circumstances where
reasonable person in your situation would feel
unfree to leave, then you have been seized. If a
reasonable person in your situation would feel free
to go, then you have not been seized.) –
Controversy mostly about application of this
standard  Mendenhall is sticky  Similar
arguments raised for bus cases where police
wander onto busses and start asking people
questions - do people really feel free to terminate
encounter or stop situation
Examples of circumstances that might indicate a
seizure, even where the person did not attempt to
leave, would be the threatening presence of several
officers, the display of a weapon by an officer, so
physical touching of the person of the citizen, or
the use of language or tone of voice indicating that
compliance with the officer’s request might be
compelled. In the absence of some such evidence,
otherwise inoffensive contact between a member of
the public and the police cannot, as a matter of law,
amount to a seizure of that person.
 all we need to know is the result – if you get
arrested they can swab your cheek and take DNA just
like finger prints
 If you are lawfully arrested, police may take a
cheek swab or other noninvasive method of
obtaining your DNA and they can put that into a
database - they do not need probable cause or any
specific reason to think that your DNA will provide
useful evidence nor do they have to wait until you are
convicted
California v. Hodari D.
Torres v. Madrid
United States v. Watson
Atwater v. City of Lago
Vista
“[A]ssuming that Pertoso’s pursuit in the present
constituted a ‘show of authority’ enjoining Hodari
to halt, since Hodari did not comply with that
injunction he was not seized until he was tackled.”
If police tried to seize someone with a show of
authority such as yelling “stop police” or “freeze,” if
the person obeys, then the person has been seized
— but if the person like Hodari, runs off, then there
is not yet a seizure until the police lay hands on the
suspect. If however police put their hands on you to
try and stop you and you squirm away, then the
seizure begins at the moment the officer has laid
hands on you. And so that is the key distinction in
Hodari D between police trying to stop someone
physically as opposed to stop someone with words
or some other kind of show of authority
"The application of physical force to the body of a
Court relied heavily on Hodari D. The case involved
person with intent to restrain is a seizure even if
an excessive for claim filed against police, who had
the person does not submit and is not subdued."
shot at a suspect who was fleeing police in a car.
(According to the Court, "She thought the officers
were carjackers trying to steal her car, and she hit
the gas to escape them.") Officers shot 13 rounds,
hitting the suspect twice. Despite being shot, she
escaped. (Police later caught up with her at a
hospital.) She then sued. She claimed that the
officers applied excessive force, making the shooting
an unreasonable seizure under the Fourth
Amendment.
Arrests
A warrantless arrest is permitted if there is
Warrantless arrests are permitted even in the
probable cause to believe the person has
absence of probable cause as long as police have
committed a felony (and misdemeanor – courts
lawful access to person they want to arrest
unanimous to say these kinds of arrests are
 E.g., if I am standing around in public and police
allowed)
have probable cause to believe I’ve committed an
offense, then they may arrest me
The Fourth Amendment does not prohibit a
 Similarly, if police get consent to enter a building
warrantless arrest for a minor offense. The
that I’m in, or police have a search warrant to enter a
standard of probable cause applies to all arrest,
building that I’m in — if they are lawfully next to me,
without the need to balance the interests and
circumstances involved in particular situations. If
Virginia v. Moore
In General,
Terry v. Ohio
United States v. Place
United States v. Sharpe
Rodriguez v. United
States
Hiibel v. Nevada
an officer has probable cause to believe that an
and they have probable cause to believe I’ve
individual has committed even a very minor
committed any crime, then I can be arrested
criminal offense in his presence, he may, without
violating the Fourth Amendment, arrest the
offender.
A police search based on probable cause does not
violate the Fourth Amendment even when the
search is conducted subsequent to an arrest that is
not authorized by state law. Here, police received
report defendant driving with suspended license –
and police arrested him and searched him and
discovered illegal drugs.
Stop & Frisk
 The stop is a seizure that must be reasonable to be lawful under the Fourth Amendment
 The frisk is a search that must be reasonable to be lawful
When an officer observes unusual conduct that
 Key case = Terry v. Ohio
reasonably leads him to assume that criminal
The basic holding of Terry v. Ohio
activity is afoot and that the people he is
 What searches does Terry allow?
interacting with are armed, the police officer may
o “A reasonable search for weapons for the
conduct a limited search for weapons.
protection of the police officer ... and
When police seize luggage from a suspect’s
others nearby.” Not a search for evidence,
custody, the limitations applicable to investigative
only dangerous items (e.g., knives, guns,
detentions of the person himself should define the
and clubs).
permissible scope of an investigative detention of
 When is this allowed?
the person’s luggage on less than probable cause. It
o When “specific reasonable interferences”
is not reasonable to take someone’s bag from JFK
cause a “reasonably prudent [police
airport to LaGuardia airport as a part of a Terry
officer] in the circumstances [to believe]
stop - that is just much too long and inconvenient
that [the officer’s] safety or that of others
to count as a Terry stop
was in danger.”
A detention is not too long in duration to be
o I.e., they have to believe that crime is afoot
justified as an investigative stop if police diligently
and that there is an imminent risk that the
pursue a means of investigation that is likely to
suspect is going to use a weapon or
confirm or dispel their suspicions quickly, during
otherwise cause physical harm int he very
which time it is necessary to detain the suspect.
near future - and how do I know that there
Under the Fourth Amendment, a police officer may
has to be this weapon? — bc the only kind
not prolong a routine traffic stop to have a drugof search that is allowed is a reasonable
sniffing dog walk around the vehicle.
search for weapons, for protection of the
An arrest for failure to provide identification does
police officer and others nearby - not a
not violate the Fourth Amendment so long as the
search for mere evidence - and it is not
request was reasonably related to the
circumstances justifying the stop. In this case, the
officer was investigating a domestic violence
allegation, and the request for identification was
reasonably related to the situation that justified the
stop.
supposed to be oh I thought that guy has a
joint - that might allow a brief stop; but to
go and frisk - the officer has to have a
reasonable suspicion that the person is
carrying a gun, knife, or club, or some
other kind of dangerous item
Stop & Frisk: After Terry
 United States v. Place: it is not reasonable to take
someone’s bag from JFK airport to LaGuardia
airport as a part of a Terry stop - that is just much
too long and inconvenient to count as a Terry
stop
 However, we saw in United States v. Sharpe that
a stop of 20 minutes might be reasonable under
some circumstances particularly as in Sharpe,
where the suspect contributed significantly to the
delay
 But in any event, what the court says is there’s no
magic amount of time that a Terry stop may last
 However, we learn in Rodriguez v. United States
that however much time is reasonable for a stop,
police may not purposely extend the stop beyond
that for the purposes of bringing a dog to do a
sniff - so if police have done a reasonable Terry
stop of a driver, and that reasonable business is
concluded, they can’t say “well, I would normally
have been allowed to keep this guy for another
couple of minutes, let me stall to bring the dog.”
o In dissent there is a sensible argument
made there might be potential
shenanigans by police to purposely delay
the end of the lawful, normal vehicle stop
and so on
o But the principle is articulate din
Rodriguez - that you can’t extend the
traffic stop in order to do the dog sniff
 Hiibel: court says that if a state has a statute
known as a “stop and identify statute,” those
statutes require you to either tell your name when
stopped for a Terry stop or show ID; if there is
such a statute and you refuse to say your name or
show ID, then you may lawfully be arrested for
failure to comply — Hiibel had argued that a
Terry stop should not include a demand for ID
and should be limited to just making sure that the
person is not dangerous, such as the guns, knives,
and clubs, etc. the majority in Hiibel says that it
is justified to have this limited addition to the
Terry Doctrine
Reasonable Suspicion
 Need to define reasonable suspicion - which is required for stops and frisks under Terry v. Ohio. - i.e., need reasonable suspicion
for stop and frisks - but what is reasonable suspicion? Reasonable suspicion that there is crime afoot or reasonable suspicion of
violence with weapon (stop & frisk)
United States v. Arvizu
An officer with reasonable suspicion of criminal
activity based upon the totality of the
circumstances may stop a car. Although there is no
specific test for reasonable suspicion, officers must
use their training and experience to assess the
totality of the circumstances to determine whether
there are objective grounds to suspect a particular
person of crime. Each individual factor need not
give rise to reasonable suspicion so long as all of
the relevant facts, when taken together, do.
Illinois v. Wardlow
A police officer may stop and frisk a citizen on the
street when he has reasonable suspicion that the
person is armed and may pose a threat to the
officer. The flight of a suspect in a high crime area
can amount to reasonable suspicion and justify a
lawful stop and frisk by the police.
The Court in Wardlow announced that
“unprovoked flight” in a “high crime area” —
particularly “an area of heavy narcotics trafficking”
— justifies a Terry stop. It is not certain what other
factors, when combined with flight, are sufficient to
constitute reasonable suspicion. It seems likely,
however, that once flight is part of the analysis, not
much additional ground for suspicion is needed to
give officers discretion to stop a suspect.
United States v.
Sokolow
Alabama v. White
Florida v. J.L.
Navarette v. California
Brown v. Mississippi
Ashcraft v. Tennessee
Payne v. Arkansas
The fact that an individual fits the profile of a drug
courier does give rise to reasonable suspicion
justifying a Terry stop.
Reasonable Suspicion Based on Tips
To determine whether an informant’s tip provides
reasonable suspicion, the totality of the
circumstances must be analyzed, with attention
given to the veracity, reliability, and basis of
knowledge of an informant.
An anonymous tip that a person may be carrying a
gun does not justify a stop and frisk under the
Fourth Amendment unless there is additional
corroboration to ensure that the tip has "sufficient
indicia of reliability" to create reasonable suspicion
justifying a stop.
An anonymous tip of reckless driving can support
the reasonable suspicion necessary for a traffic stop
if the tip is accompanied by adequate indicia of
reliability. The anonymous tipster stated that
Navarette was driving recklessly and gave the 9-1-1
dispatcher the make, model, color, and license
plate number of Navarette’s truck. These were
sufficient indicia of reliability to serve as a basis for
the officer’s reasonable suspicion that Navarette
was driving drunk, thus justifying the traffic stop
and, in turn, the subsequent search of the truck.
Interrogations
Due Process and the Voluntariness Requirement
Confessions induced by violence are not consistent  The basic rule for the voluntariness requirement
with the Due Process Clause and such evidence is
which is coming to us from the due process
therefore inadmissible at trial. The Due Process
clauses of the 5th and 14th Amendment, is the
Clause of the Fourteenth Amendment requires that
iron clad rule that if an interrogation produces
state action be consistent with fundamental
and involuntary confession, that confession is
principles of liberty and justice.
inadmissible — the straightforward black letter
Under the Due Process Clauses, confessions
law is that the admission of an involuntary or
obtained through inherently coercive means are
coerced confession against a criminal defendant
deemed involuntary.
violates that defendant’s right to due process of
Whether a defendant’s confession, who was not
law and therefore is not allowed
physically tortured, but subjected to 40 hours of
Spano v. New York
Arizona v. Fulminante
Colorado v. Connelly
Miranda v. Arizona
interrogation with little food, told people were
 The details of what counts as involuntary
going to get him, and not allowed counsel, family
confession is often fact specific — Fulminante
members, or friends to see him, was coerced. Yes.
case (close) — older cases like denying people
“There is torture of the mind as well as body; the
access to food for long periods or threatening
will is as much affected by fear as by force ... A
them with physical violence - those are more
confession by which life becomes forfeit must be
straightforward - today involves more subtle
the expression of free choice.”
forms of compulsion
A confession made after hours of interrogation,
during which the suspect has been denied his right
to have an attorney present, is not made
voluntarily and is inadmissible at trial. A
confession made after hours of interrogation,
during which the defendant has been denied his
right to counsel, is not made voluntarily and is
therefore inadmissible at trial.
The harmless-error doctrine applies in cases
involving coerced confessions. The harmless-error
doctrine applies to coerced confessions wrongly
introduced as evidence at trial.
A statement made by a mentally ill person is not
involuntary for purposes of the Due Process Clause
if there is no coercive behavior by police. Under the
Due Process Clause, a statement may only be
deemed involuntary and therefore inadmissible if
there was coercion by police.
The Miranda Rule
The Rule
The Miranda Rule: The Court created an entirely new method of regulating police interrogations of
suspects. Rather than search the records of each case for evidence of voluntariness, the Court set forth a
procedure under which law enforcement officers must - at least sometimes - inform suspects of certain
constitutional rights and the potential consequences of waiving those rights. Under the new rule, the Court
would presume confessions were obtained involuntarily if officers failed to follow the new procedure, and
such a presumption would lead to the exclusion of confessions from evidence at trial.
 Rule applies only during:
o 1. Custodial
o 2. Interrogation
o you need both
 Assume we have a custodial interrogation — Miranda tells us that if there is going to be a custodial
interrogation, police must first deliver the four Miranda warnings
California v. Prysock
Duckworth v. Eagan
Dickerson v. United
States
In General,
Oregon v. Mathiason
o The Four Miranda Warnings:
 (1) Right to remain silent
 (2) Anything you say can be used against you
 (3) Right to an attorney
 (4) Attorney will be provided if you cannot pay
 Then, police must obtain valid waiver before beginning the interrogation — otherwise the
Miranda rule might lead to the exclusion of evidence
How Well Must Officers Administer the Miranda Warnings?
Police are not required to conform to the specific
 They don’t have to do a perfect job - they only
formulation set out in Miranda v. Arizona, when
have to do a decent job
advising suspects of their rights. Miranda warnings  Prysock: test is whether “police ... fully conveyed
do not have to conform to the exact formulation set
to respondent his rights as required by Miranda”
out in Miranda v. Arizona (1966) so long as the
o So, if they say something like an attorney
suspect is fully informed of his rights. The test is
will be provided to you if and when you go
whether the police conveyed to the suspect his
to court, that might be seen as confusing
rights. Police must have conveyed to the suspect
or misleading bc maybe it means you don’t
his rights.
get a lawyer right now during questioning
Warnings that reasonably advise the suspect of his
- BUT the court says that is good enough
rights are effective under Miranda. Miranda
o They don’t have to provide a perfect
warnings do not have to conform to the exact
recitation of the words set forth in
formulation set out in Miranda v. Arizona, so long
Miranda as long as they “fully convey” —
as the suspect is fully informed of his rights.
whatever that means — to the suspects
their rights as required by Miranda
The Endurance of Miranda in the Face of Criticism
Miranda v. Arizona is a constitutional decision,
 court given opportunity to get rid of Miranda and
and Congress cannot supersede it by passing
court did not
legislation.
What is Custody for Miranda Rule?
The Miranda Rule applies only during “custodial
 “By custodial interrogation, we mean questioning
interrogation.” Therefore, unless a suspect is both
initiated by law enforcement officers after a
(1) in custody” and (2) being “interrogated,” police
person has been taken into custody or otherwise
need not provide the warnings described in
deprived of his freedom of action in any
Miranda.
significant way.”
Miranda warnings must be given only in situations
o Taken into custody = arrested, or
where there has been such a restriction on a
handcuffed
person’s freedom as to render him “in custody.”
 But, these are not “custody”:
While any interview of a suspect by a police officer
o Routine traffic stops (not involving arrest)
will involve some level of coercion, this does not
o Terry stops
mean the suspect is in custody. Where a suspect
JDB v. North Carolina
Delaware v. Prouse
Brendlin v. California
voluntarily answers an officer’s questions, and he
remains free to leave at any time, the suspect is not
in custody. Therefore, the officer need not read him
his Miranda warnings for the statements to be
admissible at trial. In this case, Mathiason was
never arrested, he came voluntarily, he only stayed
for 30 minutes, and he was allowed to leave when
he got up to do so. Any coercive tactics by the
officer does not change the fact that Mathiason’s
freedom was not restricted in any significant way.
Therefore, Mathiason was not in police custody
and the officer was under no obligation to read him
his Miranda warnings when he first arrived at the
patrol office. Accordingly, the judgment of the state
supreme court is reversed and the case is
remanded.
The age of a child subjected to police questioning is
relevant to whether the child is in custody under
Miranda. Yes - hello he is 15 - a 50 year old not the
same pulling them out of class in middle school - i
can’t be put in detention by the principal as a
parent of the school; and they can’t search my bag
if they suspect I have gum. So court is like come on
bro.
The Court has long held that when police stop a
car, the driver is “seized” and can later object if the
stop was unlawful.
In 2007, the Court announced the additional
holding that everyone in the car - including
passengers - is “seized” during a vehicle stop. The
Court explained: “We think that in these
circumstances any reasonable passenger would
have understood the police officers to be exercising
control to the point that no one in the car was free
to depart without police permission. A traffic stop
necessarily curtails the travel a passenger has
chosen just as much as it halts the driver, diverting
both from the stream of traffic to the side of the
road, and the police activity that normally amounts
o So, police do not have to give Miranda
warnings before questioning someone here
 NOTE - police are allowed to lie to suspects about
evidence they have - this is not deemed to be
coercive - seen as regular interrogation not coercion
 I talked to your lawyer; or braisen promises of
leniency (if you confess Rn then i guarantee you
won’t serve any prison time - that might be too
much to move the minds) - you might not be able
to say these
 Regular old lying is allowed - just deemed smart
police work
Berkemer v. McCarty
Rhode Island v. Innis
Illinois v. Perkins
to the intrusion on ‘privacy and personal security’
does not normally (and did not here) distinguish
between passenger and driver.”
Police must issue Miranda warnings prior to all
custodial interrogations, regardless of the nature or
severity of the offense. However, a motorist is not
subject to custodial interrogation for the purpose of
Miranda when he is questioned on the side of the
road during a routine traffic stop. When you get
pulled over for a routine traffic stop - then you are
not in custody for purposes of Miranda — if you
arrested - then you are in custody for Miranda
What is Interrogation for Miranda Rule?
The term interrogation under Miranda refers not
From Miranda (quoted by the Court in Innis):
only to express questioning, but also to any words
 “By custodial interrogation, we mean questioning
or actions on the part of the police (other than
initiated by law enforcement officers after a
those normally attendant to arrest and custody)
person has been taken into custody or otherwise
that the police should know are reasonably likely to
deprived of his freedom of action in any
elect an incriminating response from the suspect.
significant way.”
An undercover law enforcement officer posing as a  “The term ‘interrogation’ under Miranda r Evers
fellow inmate need not give Miranda warnings to
not only to express questioning, but also to any
an incarcerated suspect before asking questions
words or actions on the part of the police (other
that may elicit an incriminating response. The
than those normally attendant to arrest and
statements here were voluntary. Court thinks it
custody) that the police should know are
would be silly/absurd to apply Miranda to
reasonably likely to elicit an incriminating
undercover agents; bc it would basically make
response from the suspect.”
undercover agents useless.
 Innis - police chatting in car while suspect in car
talking about how sad it would be for child to kill
themselves with hidden gun - tells him
o Court found this standard was not met officers did not engage in sort of words or
actions that police should reasonably know
would illicit incriminating response
 Not Interrogation:
o Questioning by an undercover officer (who
the suspect does not know is working for
police)
o The court tells us in Perkins that if you
don’t know you’re talking to a police
officer, then the sort of fears that the court
talks about in Miranda will not exist and
therefore all that would be available to a
suspect who had a confession wheedled
out of him b an undercover jailhouse
informant or any other kind of undercover
person would be the old fashioned
voluntariness requirement or perhaps the
Sixth Amendment right to counsel
Waiver of Rights
 Now, once you have a custodial interrogation and the warnings have been properly delivered and read, police need to obtain a
waiver
North Carolina v. Butler  Best way to get a waiver would be a written express waiver — the person signs a document saying yes I
Berghuis v. Thompkins
waive
 Almost as good is an oral express waiver in which the person says “yes I am happy to waive my rights
and talk to you officer”
 But the court says those express waivers, whether written or oral, are not necessary —
 Miranda Mathematics: Butler edition
o (1) Silence +
o (2) Understanding of warning +
o (3) Certain conduct indicating waiver =
o Waiver
 then the court explains further that an uncoerced statement to police is good enough —
 Miranda Mathematics: Berghuis edition
o (1) Silence +
o (2) Understanding of warning +
o (3) Uncoerced statement to police =
o Waiver
 According, Berghuis tells us:
o Uncoerced statement to police = conduct indicating waiver (see Butler)
Colorado v. Spring
A suspect’s awareness of all the possible subjects of
questioning in advance of interrogation is not
relevant to determining whether the suspect
voluntarily, knowingly, and intelligently waived his
Fifth Amendment privilege. The federal agents
read him his Miranda rights and he signed a
written waiver of those rights. It is irrelevant that
Spring was unaware of the full scope of the agents’
Moran v. Burbine
Davis v. United States
Edwards v. Arizona (see
more below)
questioning. Accordingly, Spring’s confession is
admissible.
If a suspect has knowingly waived his Miranda
rights, officers' deception of a lawyer seeking to
represent the suspect and their refusal to inform
the suspect that his family had obtained a lawyer
for him does not invalidate the suspect's Miranda
waiver.
 Court has said that being stupid or deeply
ignorant of legal consequences of your actions does
not waive your rights; if you erroneously believe that
there is some defense that can serve as an excuse of
justification of your conduct - none of that makes
your waiver valid
 E.g., people said “Ill talk, but i won’t sign that
form”
 Being mentally ill does not mean that your waiver
is valid
 If you are so mentally ill or have such limited
capacity that you can’t understand Miranda
warnings - different - you don’t understand them
 But if you feel that demons are compelling you to
confess does not make it invalid or involuntary
What Counts as an Unambiguous Invocation of Miranda Rights?
Court held in Miranda that a suspect is entitled to
An ambiguous invocation is worthless (creates no
the assistance of counsel during custodial
obligation for police at all)
interrogation even though the Constitution does
 E.g., “Maybe I should have a lawyer.” — maybe I
not provide for such assistance. Court held in
should have a lawyer is ambiguous and an
Edwards that if the suspect invokes the right to
ambiguous invocation of one’s rights under
counsel at any time, the police must immediately
Miranda - whether the right to silence or right to
cease questioning him until an attorney is present.
counsel - is absolutely worthless - it creates no
But Court unwilling to create new rule to prevent
obligation for police at all
police questioning when the suspect might want a
 They do not have to ask clarifying questions like
lawyer. Unless the suspect actually requests an
“Well, do you want a lawyer?” — even tho it might
attorney, questioning may continue. Suspect must
be best practices — the court says that is not
unambiguously and unequivocally request counsel.
required — in order to invoke your right to
Suspect must articulate his desire to have counsel
silence or right to counsel under Miranda, you
present sufficiently clearly that a reasonable police
must do so in an unambiguous fashion such as: “I
officer in the circumstances would understand the
want a lawyer” or “I don’t wish to speak to you”
statement to be a request for an attorney. If the
statement fails to meet the requisite level of clarity,
Edwards does not require that the officers stop
questioning the suspect.
Court held that law enforcement officers must
immediately cease questioning a suspect who has
State v. Demesme
Remember:
Michigan v. Mosley
clearly asserted his right to have counsel present
during custodial interrogation.
in Louisiana shows how easily a court can find a
suspect’s request for counsel to be ambiguous.
Suspect voluntarily agreed to be interviewed twice
regarding his alleged sexual misconduct with
minors. At both interviews detectives advised the
defendant of his Miranda rights and the defendant
stated he understood and waived those rights.
Suspect argues he invoked his right to counsel.
Suspect said “if y’all, this is how I feel, if y’all think
I did it, I know that I didn’t do it so why don’t you
just give me a lawyer dog cause this is not what’s
up.” Court decided “the defendant’s ambiguous and
equivocal reference to a ‘lawyer dog’ does not
constitute an invocation of counsel that warrants
termination of the interview and does not violate
Edwards v. Arizona.” Lol ok boomer - we think the
guy was saying “give me a lawyer, dawg” - get with
the times guy — sparked major ridicule. BUT one
might still find the request to be ambiguous under
Davis. And if we went with Souter concurrence police would have been required to verify whether
the suspect meant to ask for a lawyer before
continuing with the interrogation
The Effect of Invocations of Rights
As the Court noted in Berghuis v. Thomkins, only an “unambiguous invocation of Miranda rights” by a
suspect is effective. Interrogation must cease upon an unambiguous invocation of either the right to
counsel or the right to silence.
Invocation of the Right to Silence
Miranda v. Arizona does not bar police from
 Scrupulously Honored = getting secondary
subsequently questioning a suspect who previously waiver, ended interrogation as soon as Mosley
invoked his right to remain silent, as long as the
exercised his right to remain silent
suspect’s right to end questioning has been
 But realistically - the court didn’t really give us a
scrupulously honored.
rule here on time
 Court doesn’t seem to think that this calculation
is based just on time
 Several hours here pretty good, and different
police officer asking about completely different




offense - could go back with same officer, same
offense - but makes it look better for scrupulously
honored calculation - bc Miranda is about
dispelling that inherently coercive nature of
custodial interrogation where suspect might
think there is no point for me to invoke rights bc
officer won’t listen to me
Whereas having other officer talking about
something different – better
Prof. T says in my police dept — wait a few hours,
and might send a different police officer so i can
be as along all fours with Mosley as possible — no
case law saying that different officer must be sent
in — but more like Mosley, the better off you are
(or wait next day)
Danger of waiting next day - is lawyer might get
to him or judge might let him out
We have this weird majority test of somewhat
muddling
Invocation of the Right to Counsel
 In comparison with an invocation of the right to silence, a suspect’s invocation of the right to counsel is more powerful. When a
suspect says, “I want a lawyer,” that statement restricts police more effectively than something like, “I don’t want to talk to you” — or
even something more legalistic like, “I invoke. My right to silence.”
Edwards v. Arizona
When an accused has invoked his right to have
counsel present during custodial interrogation, a
valid waiver of that right cannot be established by
showing that he responded to further policeinitiated custodial interrogation even if he has been
advised of his rights; additionally, an accused, such
as Edwards, having expressed his desire to deal
with the police only through counsel, is not subject
to further interrogation by the authorities until
counsel has been made available to him, unless the
accused himself initiates further communication,
exchanges, or conversations with the police. I.e.,
Once a suspect has received his Miranda warnings
and invoked his right to counsel, the police may not
further interrogate the suspect until the suspect
Arizona v. Roberson
Minnick v. Mississippi
Maryland v. Shatzer
has been given access to counsel, unless the suspect
initiates further communication with the police.
Court held that Edwards prohibits police from
seeking a waiver regardless of the crime they wish
to discuss. Once you invoke your right to counsel
under Miranda, you can’t be asked about some
other crime.
Once a suspect has requested counsel, police must
suspend the interrogation and may not interrogate
the suspect again without counsel present. What is
being taken away is the right of police to ask the
suspect to change his or her mind.
A break in custody ends the presumption of
involuntariness established in Edwards v. Arizona.
Because law enforcement will need concrete
guidance in determining whether a break in
custody is long enough, this Court finds that 14
days is an adequate period of time for the accused
to re-enter his normal life, seek advice, and to
escape the coercive effects of his first interrogation.
Normal abode - probably where prisoner usually at
- so if they spend all their time in the SHOE likely
then this would be deemed their typical abode and
14 days would start with Shatzer rule; but if they
are not normally there then that might mess with
Shatzer argument
 compare Roberson with McNeil v. Wisconsin – Bc
it turns out that the court treats differently under
right to counsel under 6th Amendment what is or
what is not offense specific
 Once you have invoked your right to counsel police are not allowed to ask you to reconsider unless
you are (1) out of custody or (2) your lawyer is right
there to slap you when you are asked to reconsider you can talk at some point, but only with lawyer
saying yes this is the best thing to do for you right
now
 By contrast when you merely invoke your right to
silence - you are using your own gumption to make
this decision - if police come back some hours later,
and they come back and say hey you didn’t want to
talk earlier, what about now? If suspect goes for it no problem for police, statements are admissible
 Overwhelming bulk of cases where rule in
Shatzer would apply - not in prison cases
 Usually goes like this: (1) A suspect is taken into
custody and read the Miranda warnings, (2) the
suspect invokes his right to counsel, and
interrogation stops, (3) the suspect is released,
perhaps after a bail hearing, and (4) later,
perhaps after several weeks, the suspect is
arrested and taken back into custody.
 Does rule of Edwards prevent police from
engaging in that second custodial interrogation?
Court says it depends how long guy was out of
custody
o If he is out of custody for 14 days or more the rule of Edwards is turned off; if he is
out of custody for less than 14 days then
see Edwards, the questioning is improper
 Massive Dicta Fest - in this case - it was literally
years bw the questioning in the case her e-


When does it apply?
Harris v. New York
normal way for court to proceed would say hey
we need not decide actual number of days - here
was enough for the Edwards rule to turn off BUT
here weird bc they just decided on days
o Lol why? Well I want the answer now! In a
lot of cases tho the court says while we
would love to give you the answer now, our
job is to decide the case before us and not
create law on issues not presented to us think it is ok in this case bc Scalia is like
well I don’t like the rule in Edwards but
precedent is precedent - well if you ask
how we should interpret it - well then we
might as well just tell ya
o Also there is a sense that waiting for the
50th case - court doesn’t want to have all
these cases
o Ultimately answer is break in custody for
14 days or more turns off the Edwards rule
DON’T BE FOOLED = Police come to door 12
days after first interrogation; and ask suspect
question just knocking on door; not in custody so
Miranda rule doesn’t apply bc not custodial
interrogation so no Edwards rule
If they come back to suspect’s house and arrest
him after 12 days - ok then you have to wait - then
Edwards applies
Exceptions to the Miranda Rule
 Under each of these exceptions, a prosecutor may use statements against a defendant even though (1)
those statements were obtained through custodial interrogation and (2) police either did not provide the
Miranda warnings or did so but did not obtain a valid waiver.
 Only consider applicability of these exceptions if four things are true (1) if our is suspect in custody; (2)
if our suspect was being interrogated (bc if you don’t have these then no custodial interrogation so no
Miranda); (3) the police didn’t read the Miranda warnings; or (4) they read the Miranda warnings and
didn’t get a valid waiver.
Impeachment Exception
Statements made by a suspect who has not received  Impeachment exception only applies if the
the Miranda warnings may be admitted at trial for
defendant takes the stand as a witness in his own
impeachment purposes. The shield provided by
defense — so it is important to remember that it is
Miranda cannot be perverted into a license to use
perjury by way of a defense, free from the risk of
confrontation with prior inconsistent utterances.
Court holds that petitioner’s credibility was
appropriately impeached by use of his earlier
conflicting statements.
State v. Batts
New York v. Quarles
only for the impeachment of the defendant’s
TESTIMONY - not for the defendant’s impeachment
of the defendant’s case or defendant’s defense
 If statement is TRULY involuntary - found to be
result of threat or torture - NO impeachment:
exception bc coerced statements are typically
unreliable and bc everyone agrees confessions
obtained by coercion or are involuntary are blatantly
violative of 5th Am
Following the reasoning of the Harris majority, the
Batts Court held that — under Alaska law —
statements made during interrogations conducted
in violation of Miranda normally may be used for
impeachment. However, the Alaska court held that
“in cases where the violation of Miranda was either
intentional or egregious — by which we mean a
violation that would have been obvious to any
reasonable police officer” — the resulting
statements are inadmissible, even for
impeachment. The court’s aim was to balance
deterrence of police misconduct (achieved by
excluding evidence in cases of especially bad police
misbehavior) with the state’s interest in deterring
perjury and presenting useful evidence to juries
(achieved by allowing impeachment in cases of
more minor police wrongdoing).
The Emergency Exception / The Public Safety Exception
On these facts (woman alleges man with
 O’Connor Concurrence/Dissent: This is what has
description raped her and was armed; police find
carried the day! Court has limited what gets excluded
guy in store, guy has empty gun holster, police ask
for Miranda violations to statements - physical
where is gun) there is a public safety exception to
evidence not excluded!
the requirement that Miranda warnings be given
before a suspect’s answers may be admitted into
evidence, and that the availability of that exception
does not depend upon the motivation of the
individual officers involved. There is a public-safety
exception to the requirement that Miranda
warnings be given before a suspect’s statements
may be admitted into evidence at trial. The need
Pennsylvania v. Muniz
for answers to questions in a situation posing a
threat to the public safety outweighs the need for
the prophylactic rule protecting the 5th
Amendment’s privilege against self-incrimination.
Yes in custody; yes being interrogated; Miranda
warnings not being read. So we have what looks
like Miranda violation. But court here saying we
think what officer did here was fine - the larger
social purpose of public safety justifies a departure
from the requirements of Miranda in
circumstances like this
Routine Booking Exception
The Supreme Court held that the Fifth Amendment
distinguishes between real or physical evidence
and testimonial evidence, of which only testimonial
evidence is protected under the Amendment. Based
on this analysis, the incriminating evidence drawn
from physical evidence is admissible, but evidence
drawn from the content of statements that relate
factual information is not. The Court also held that
the Fifth Amendment does not require the
suppression of information not elicited by an
officer.
As the semester progresses, students should make a point of noting (1) which police tactics are permissible with no evidence or
suspicion whatsoever (for example, investigator tactics that are not “searches,” such as opening a bag of trash left out for collection, (2)
which tactics may not be conducted with no suspicion but are allowed with “reasonable,” suspicion, and (3) which police tactics require
probable cause. Among those police tactics requiring probable cause, student should note which require warrants. (when it applies and
what quantum of evidence they need) – when dealing with exceptions
West academic practice problems
Searches without warrants are presumptively unreasonable – once you are in a warrantless search world – is there some sort of
exception that makes it reasonable
Watch out for situations wehre cops exceeded scope of warrant – where we can invalidate the warrant – “go search everything they have
– general warrant cases”
Once it is a search – without a warrant, presumptively unreasonable – must be some sort of warrant exception that makes the search
reasonale
Learn everything about everything to deal with cars!!! – dive into all the things that deal with cars
4th; 5th; 6th – break those down
5th and 6th Am. Intertogations
- This was in violation of my due process (torture) 5th – silence
- This was in violation of 6th am without attorney
4th
Miranda (also ends up encompassing Messiah)
Messiah