4th Am, 5th Am: Self Incrimination, 6th Am, and how they relate to the 14th Am: DP clause, by reading
case law of the SC. They have all been incorporated and are used in the states.
I. Policy Divides in the CJS-Policy background to case law-both go back to DOI
a. Competing Criminal Justice Models. We must balance the two b/c the more process we give the
harder it is to convict. The more we control the crime, less due process is given.
i. Crime Control Model: Conservative Approach, focused on Declaration of Independence
language, thinks that gov’t should be protecting citizens rights “ life, liberty, and the pursuit
of happiness” from private violence (criminals)
1. Efficiency in processing, conviction, and disposition of cases
2. Managerial/administrative model
3. Interested in protecting citizens’ natural rights and human rights to be free
from violent acts of criminals
ii. Due process Model: liberal approach: focused on Declaration of Independence language of
protecting citizens’ life, liberty, and the pursuit of happiness” from the governments
influence
1. Focuses on protecting defendants’ rights, human dignity
2. Not managerial
3. Adversarial and judicial
4. Protects from gov’t infringement of D human rights, showing respect and
autonomy of the individual
b.
Procedural/Structural Dimension: Judicial Power Dimension. DOI created govt to control
crime and protect individuals from criminals but at the same time we have to be concerned with
gov’t infringement on individual rights.
i. Judicial Activism: liberal
1. Constitutional democracy:
discretion of interpreting constitution, not
necessarily required to ground decision in traditional legal
materials/precedents
2. Fear of the masses. Protect minority rights.
3. Protection of electoral minority (unpopular)
4. Part of a system of checks and balances
5. Believes the constitution in a “living constitution” allowing for modification;
makes policy determinations…have to interpret for the times we are living in.
6. Believes in broad judicial authority to legislate from the bench and make
policy-adapting to tough political/social concerns, where legislature may not
be prepared to act because of politics
ii. Judicial Restraint: conservative
1. Local control: states have police power generally, so their laws should be
upheld unless clearly in violation of the constitution; majority rule
2. Federalism-S. Ct. has little business interpreting Constitution – should focus
more on history and intent of framers
3. Representative democracy: legislature should get deference, and make policy,
not the court. Judicial branch violates rights of citizens by making policy, b/c
legislature represents the people and is responsive to them-they should make
the law
4. Decisions of the court should be grounded in history and traditions and
precedents, little flexibility allowed here.
c.
Liberal v. Conservative: Current split 5/4
i. Liberal justices: Ginsberg….Kennedy could be a swing vote.
1. Favor due process model and judicial activism
ii. Conservative: Scalia, Alito, Thomas, Kennedy, Roberts
1. Favor crime control and judicial restraint
d.
This area became popular in the 60’s based on new and expansive interpretations of the
constitution. Warrant Court-activist due process approach. By the 1980’s Burger and
Rehnquist Court-converted back to old ways. Much more restrained and much more crime
control. However, hardly any of the 60’s cases were overruled by new court. We get narrow
interpretation instead of broad. At 1994 case would be reinterpreted much more narrowly than
in the 60’s.
e.
Limits on the SC to make a comprehensive code: they are limited to a passive role of waiting
for cases and the cases must be a good vehicle; however the court is busy and can’t take a large
number of criminal cases each term. Problem with Coherent Code: complex fact situations,
members change, policy shifts, the court can move back and forth between models, cases don't
line up. Problems with Implementation: “Rules of Justice”; if you make it too hard to prevent
crime-rules will be violated and PO will lie about it. “Dirty Harry” situations
II. Incorporation Arguments-BOR limitations on federal gov’t; is not a limit on states. 14 th Am. limits the
states. 4th, 5th, and 6th might be limited to states through the 14th. We need incorporation b/c the states do
much of the crime fighting.
a. Duncan v. Louisiana – convicted of simple battery; involved question of whether DP clause of
14th am made the 6th Am. Jury trial requirement applicable to the states. Important to figure out
how much of the BOR applies to the states, because states do almost all the lawmaking in the
CJS. Yes. Jury Trial comes from Old England and is deeply rooted in Anglo American history.
Policy: meant to be a check on the gov’t. to make sure they are not overstepping boundaries.
There are several theories:
i. Total Incorporation – all provisions apply to states. If it appears in BOR it is incorporated.
This is what Justice Black likes b/c it should be done during privileges and immunities
clause which comes under 14th am. Also, text and history of original understanding leads to
TI.
ii. Pseudo Incorporation/Fundamental Fairness- BOR should apply to states to the extent
necessary to protect ∆ from things which would deprive them of FF. What rights are
fundamental or fair for a fair trial? Never actually incorporating BOR but create rights that
look like BOR. We are tracking BOR but only using rights that might parallel BOR.
Justice Harlan’s dissent. Black does not like this b/c judges will decide what means
“fundamentally fair” and this will lead to judicial activism. Harlan says the real activist is
the one who likes total incorporation and selective incorporation and that FF can be applied
in a restrained manner.
iii. Selective Incorporation: current stance: some, but not all of the BOR apply to states. This
is almost total incorporation, as only a couple amends are not incurred. Need a test to
decide what to use, so, FF is considered. Basically all major criminal protections have been
incorporated. Argument against is that some provisions don't apply well-what works well
on federal level may not work well at local level-ex. 12 v. 6 jurors, have to have same
standard or it is not incorporation; a more rigorous level for federal than state-have to
“water down”; voting; Whites explanation. Harlan and Black do agree that no text and
history leaned towards selective incorporation. This is a compromised position.
III. Search and Seizure
a. The 4th amendment states “ the right of people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall
issue but upon probable cause, supported by an oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.”
b.
Cases:
i. Boyd v. US: Boyd is required (by fed sup) to turn over paperwork over shipping/tariffs on
some plate glass. Court found that this violated 4th- no unreasonable search and seizure and
5th- self incrimination, am. It was essentially a seizure, and if ∆ provided docs, it was
incriminating, and if he did not he was assumed guilty.
1.
While a landmark case at the time, Boyd has been overruled, because it was
based on property rights. The thought was that the gov’t could come in and
look for more evidence of crime as long as they had a property interest
(trespass doctrine). If they make you turn over and take your property it is
trespass and have violated the 4th Am.
2. This trespass doctrine said that people’s rights were not violated (and gov’t
could search and seize) if they did not have a property right: examples of
things people did not have rights to:
a. contraband: illegal drugs, smuggled goods, etc
b. fruits of a crime-stolen goods
c. instrumentalities under forfeiture
3. Judgment said that 4/5 were linked and meant same thing, basically on the
principle that and unreasonable search revealing evidence used against you is
effectively making you testify against yourself. Making one give up papers
by giving your own property as evidence is making him a witness against
himself b/c you have a right to keep your own property. The compulsion of
making him turn papers over is just as bad as a seizure. Bad Law. Gets his
analysis from British case of Entick by Lord Camden– property rights in a
trespass analysis. Justice Miller says 4th not violated, it is just compulsion.
4. Under Boyd Analysis, violating one usually violates the other.
ii. Olmstead (1928) eaves dropping in a telephone booth is OK, because it was not trespass.
OR b/c of property rights/trespass reasoning) by Schmerber and Hayden.
iii. Schmerber v. CA: Blood taken from the DUI suspect against his will at hospital; he loses.
1. Under Boyd-compelled to be a witness against himself; unreasonable search
by taking blood b/c it makes him a witness against himself b/c he has a
possessory interest in his blood. Schmerber would win
2. Splits 4/5 am.
a. We must now look to PC and warrant or if there was some exigency the
did not allow time for a warrant
b. 4th involves unreasonable search and seizure and protects persons, so its
clearly implicated here:
i. There was probable cause that he was drunk, no warrant-but
there was exigency (emergency situation) (liver was
filtering out alcohol as time passes-destruction of evidence)
c. 5th only applies to “testimony of a communicative nature” and does not
apply to property rights…this is the modern rule. Testimonial v.
Communicative Evidence.
d. J. Black’s dissent: blood here is communicative in nature because it is
physical evidence:
i. Thinks there is no real difference in testimonial/physical
evidence. Violation of 5th
e. Fisher case: testimonial communications in police interr.
iv. Hayden: ∆ personal effects (clothes) seized, which had nothing to do with the crime
1. Under Boyd-police engaged in search and seizure. It was property so gov’t
trespasses-unreasonable search (4th) and could be self incrimination. Hayden
would win
2. gov’t thinks they can seize anything they have property right to(like Boyd)
3. majority kicks out this argument:
a. nothing in the text of the 4th makes the distinction b/t property and
privacy rights: mere evidence in one case could be an instrumentality
in another case
b. 4th am is really about privacy rights. Same intrusion exists whether
gov’t is searching/seizing evidence or instrumentality. Once a warrant
dispels a privacy concern, then the gov’t can seize.
c. if warrant, no self incrimination or compulsion. There was PC and a
warrant exception here b/c of time. Physical evidence, not testimonial
Gouled said that gov’t cannot look for mere evidence of crime. This
rule must be thrown out. Privacy is not disturbed and cannot be the
basis of reasonable or unreasonable
4. Concurrence: Fortas-adds another category to what is not mere evidence;
shrinks mere evidence
5. Dissent: property theories actually relate to privacy, and a “limit on the fruit
to be gathered limits the quest itself” therefore providing adequate protection.
Limitations on what they can search and seize limits what the police can do;
Brennan says equivalent to MWF rule but that is stupid and arbitrary and we
can do better.
v. Hubbell, 2000: even though Schmerber and Hayden have overruled Boyd, Scalia and
Thomas commented that they might be willing to return to it. They feel like compelling
evidence is really making ∆ be a witness against himself. History supports Boyd which
makes no distinction b/t testimonial and physical evidence.
d.
c.
Search and seizure defined:
i. Cases
1. What is a search? Katz v. US: this expressly overruled Olmstead by asking
same questions. ∆ used phone booth, and gov’t listened in. ∆ convicted. This
case helps define what a search is under 4th. Do you have to have a physical
trespass and is a phone booth a constitutionally protected area
a. Under Boyd: they would ask if there is some kind of trespass to the
property. No-cant seize the spoken words; no physical intrusion.
b. Majority-Katz did not have property claim, but privacy claim. Gov’t
can not intrude on what ∆ seeks to preserve as private. The 4th protects
people not places
c. Harlan’s Concurrence-what we now use: Current test-it is a search if ∆
had a “reasonable expectation of privacy.” There are 2 parts
i. Subjective EOP-did ∆ personally believe it was private? If
so, search must be reasonable (PC and warrant or warrant
exception) this phone booth is to be recognized as private
ii. Objective EOP-is this privacy interest something legitimate
and justified, and would society recognize it as reasonable?
By asking is there PC and a warrant or warrant exception.
Reviewed by (court has never endorsed this, but it covers
most arguments):
1. empirical evidence-based on facts of situation-a
judgment about the way the world is
2. normative-court looks at value judgments, about
the way in which the world should be, by the
following factors:
a. social value in protecting this privacy
b. amount/degree of gov’t intrusiveness
c. degree to which ∆ attempted to protect
privacy interest
d. crime control-does it further cc interests?
d. How is Katz different from the other 2? Katz loses under Boyd while
the other 2 win; the other two lose under the new analysis while Boyd
wins
e. We must now ask is something is a 4th am search is we think it is a
search (to be reasonable, must have PC and W or WE). Is a search if it
invades EOP (see above)
f. Black’s dissent: eavesdropping should not even fall under the 4 th Am.
It is intangible
2. Lopez: FF with tape recorders; does not violate 4th am in mid 60’s
3.
4.
5.
6.
d.
On Lee: FF with transmitter; does not violate 4th am. In 50’s. did Katz
undermine this case as well as Lopez and Hoffa (FF)
US v. White: “false friend” case. Turncoat. Conversations recorded in
informants home, and also heard by agent hiding in closet.
a. Was search a 4th am search? Have to look at EOP. Had a subjective
EOP.
b. Majority-court looks at objective factors and decides that ∆ claim fails,
because he did not attempt to protect privacy-he assumed the risk
(assumption of the risk) by divulging incriminating info to another and
also, there is no difference b/t recording a conversation, and later
reporting to police. It is also important to collect evidence through
reliable sources.
c. What is the difference from Katz? Involvement of 3 rd party to the
conversation. Under Katz tapping of phone line is search; under white,
if you divulge the info to govt agent, it is not a search.
d. Dissent-Douglas-intrusiveness is greater b/c of its accuracy and should
not be allowed; Harlan, intrusive and society has interest in private
conversations with others. Rejects assumption of the risk argument.
As to the importance of collecting the evidence, the police need a
warrant and PC to search. If not, it can be done anytime at anyplace.
Bond: police board bus to check nationality status. Officer squeezes ∆
luggage and feels hard object.
Opens it and finds a brick of
methamphetamines
a. Gov’t argues that ∆ bag is like open fields and ∆ knew others would
touch and feel bag
b. Majority: court says this was much more intrusive that what other
passengers would have done-this was examinatory squeezing and is a
violation of 4th with no probable cause /warrant
c. Dissent-the conduct did not exceed that of a border patrol agent; an
individual cannot reasonably expect privacy in respect to objects or
activities that he “knowingly exposes to the public”; would deter even
the most minimal touching
d. Policy Thought-Should Katz analysis be thrown out and instead use a
trespass analysis?
Kyllo v. United States (5-4)
a. Thermal imaging device to determine how hot his walls were. High
level in walls and roof. Believed he was growing mar. was it a search
when they used the device?
b. Majority says yes it is a search. Subjective EOP and objective reason
for it. No PC or warrant to use it.
c. Thermal imaging devices are not used by the public so no empirical
risk. The only info obtained is that which would normally only be
obtained by a physical intrusion. The house has walls so it was
guarded. Are we going to allow advancing technology invade privacy?
NO; is unreasonable b/c it is something that the general public could
not have gone out and bought
d. Dissent: off the wall-nothing from inside the house shown. He could
have put in more insulation. How much privacy interest is there in
thermal heat coming off the walls?
Open fields and Curtilage
i. Oliver v. United States: announced the “open field doctrine: no warrant needed to search
here, b/c persons don't have a reasonable expectation of privacy in open fields. Real
property cannot be considered an effect (Hester); No trespassing signs do not really keep
people out.
ii. To fall under the OFD, it does not have to be open and it does not have to be a field. Can
be woods and fenced in. It is considered private property the police can go on to with no
warrant, but cannot do that with curtilage.
iii. Dissent-Marshall: Hester not good b/c the fact that we even have trespass laws mean that
society recognizes a high value of privacy for this. Katz worthless b/c conversations not
included in 4th
iv. However, the S. Ct. said in US v. Dunn, that curtilage (area immediately around home) is
considered an extension of the home, and warrant/p.c. needed to search. Majority said we
needed bright line rule here. Analysis in determining if warrant needed:
1. proximity to home
2. enclosure
3. nature of the uses of the area in question
4. what steps were taken to resist/protect (exclusion) from observation
5. *Cts are generous with curtilage but will not extend to large plots of land
6. Police have to stay on sidewalk if no warrant
e. Arial Surveillance:
i. CA v. Ciraolo: 1986; ∆ had 6’ outer fence and 10’ inner fence around home. Police got a
plane and flew over at 1000’ to spot marijuana plaints. ∆ asserted unreasonable search.
1. S. Ct. said ∆ had no reasonable expectation of privacy in what he knowingly
exposes to the public (Katz). Should have built a roof
2. This plane was within FAA reg. airspace and ∆ knows that people can see if
from the air.
3. Dissent-planes that usually might fly over are probably commercial and not
looking for mar. No empirical value; privacy value is high b/c it is curtilage.
Had a fence so had the privacy. If
ii. Florida v. Riley: Police use helicopter at 400’ to come over ∆ property looking for
marijuana.
1. majority holds that the aircraft was within FAA reg. airspace and there was
no physical intrusion (no wind, dust, etc blown on land), it was reasonable
2. O’Conner concurrence: it’s frequent that aircraft flyby at low altitudes, so no
reasonable expectation of privacy in open land
3. Dissent: argues with O’Conner; says that aircraft rarely come by at low
altitude, so expectation reasonable
iii. Note Cases: See Handout
1. Air Pollution Variance Bd-daylight observation of smoke plumes from open
fields is not a search
2. US v. Knotts-monitoring the whereabouts of car by electronic beeper revealed
nothing that invaded D’s expectation of privacy.
3. US v. Karo- warrantless monitoring of beeper in person’s residence is search
in violation of 4th. Getting it there by consent in container and then knowing
container was taken to house is not a search.
4. US v. Place: no search; not intrusive and it was in a public place so no big
EOP
5. CA v. Greenwood: no search: while probably argued no privacy interest in
trash; has been abandoned and assumption of the risk in that 3 rd party will pick
it up (trash collectors); empirical point for majority-animals and homeless can
go through trash; empirical counterpoint-if trash in a secure container,
unlikely that any animals would get in the trash. how much privacy can you
expect when you through something on the curb? Against-privacy value high
for peoples personal trash. If there is a higher privacy, we would expect
people to do more to guard their stuff; argument for place: it reveals things
about the interior of the bag that others could not know without physical
intrusion of the same.
6. Property- “any meaningful action or interference with a posessory interest”
(Jacobson). Private search by someone not a state actor-notify police. Court
says not a search b/c they may replicate a private search as long as they
already know what they will find based on the communication of what was
found. Minimum intrusion such as mere handling or slight amount (drugs)
used for chemical testing is not sufficient to be seizured.
a. 4th covers state and federal law enforcement, school teachers, postal
officials, custom agents
b. If police encourage the “private party” search under Skinner-private
actor b/c state actor when it was a state action, totality of the cirm.
Analysis, fact intensive, and draws on CL agency principles…in the
search activity
f.
Seizures
i. What is a seizure?
1. Jacobson- Property-“any meaningful action or interference with a posessory
interest”; had to seize some the cocaine to test it
2. Person – an application of physical force (or threat) or show of authority
which combines to restrain personal liberty in such a way that a “reasonable
person would not feel free to leave” (Terry, Mendenhall). This does not
actually mean would you or I feel free to leave and not answer, but something
more, some heightened level. This is based on totality of circumstances
(Mendenhall). Mere questions don't amount to seizure unless:
a. Physical force applied
b. Display of weapon (even touching holder)
c. ∆ surrounded?
d. Tone of voice from police (is officer commanding-showing authority)
e. Police say ∆ suspect in crime
f. Keeping ID of ∆ may keep him from feeling free to leave
3. Easy cases to say someone has been seized: handcuffed, physical intrusion,
shot/struck
4. Hard cases to say someone has been seized: questioning by police, restricted
environments, pursuit
ii. Bostick “restricted environment”: on a bus, requesting for consent searches. Was he
seized? Majority says we must ask if he felt free to decline the officers’ request of
terminate the encounter.
1. O’Conner concerned with the per se rule applied to buses; more a TOC
situation.
2. Sent back to lower court to use per se rule.
3. Marshall’s dissent-need to reformulate language if making new rule. Can be
distinguished form Delgado. Bus is very important factor to the TOC.
iii. Brower: force (in seizure context) must be applied intentionally—accident of bumping into
someone does not count
1. In bus search cases—test is “would r.p. feel free to decline officer’s request or
terminate interview?” No per se rule that not free to leave on bus. Not feeling
free to leave is linked to officers’ conduct. The SCT feels suspicionless
questioning is necessary for police to obtain valuable information.
iv. Flight: CA v. Hodari D: a show of authority only amounts to a seizure if a person
submits to it
1. a show of authority followed by flight and pursuit is not a seizure
2. there needs to be physical restraint, not a chase or something of the type
3. if a person runs from police upon sight, he has not been seized. Likewise, ∆
must submit to physical act as well—if an officer tackles suspect, he is seized,
but if the suspect gets free and runs, he is not seized anymore.
4. Dissent: pursuit is a seizure. Stevens thinks we don't need such a narrow
ruling, and that this invites police misconduct.
v. TN v. Garner: burglary suspect running and police shoot to stop him from fleeing-use of
deadly force
1.
At CL, felony suspect could be apprehended by serious force; however, things
have changed now. Many things are felonies now that were not then and our
weapons much deadlier (guns v. clubs)
2. Majority: Application of force here (shooting someone) is a seizure, and
the use of deadly force is VERY intrusive. next step…was it reasonable
3. Balancing test: state interest in crime control, apprehending dangerous felon
v. Individual’s right to live (very strong). using deadly force frustrates the
purpose of criminal justice system which is to determine guilt or innocence.
contemporary practice has been not to use deadly force against non violent
criminals and police officers put extreme standards on their officers anyway.
4. Rule: to use deadly force:
a. Officer must have p/c to believe suspect poses and significant threat of
injury to officers/others and a crime has been committed
b. + reasonable suspicion that such force is necessary to effect arrest.
c. warning, if feasible
5. officer should have chased guy instead of killing him
6. Dissent-individual interest of a persons right to flee when they have been told.
garner’s fault he got shot; burglary is a dangerous crime. Citizens can use
force to protect themselves against burglary.
vi. Graham v. Conner: 1989: an arrest is a seizure. Therefore, excessive force would make
the seizure unreasonable. To determine whether force excessive or not, look to t/c of each
case:
1. nature of crime—how serious was the crime-level of state interest
2. how much does ∆ resist arrest?
3. etc.
g.
Exclusionary Rule of 4th Amendment
i. Exists as prophylactic rule to discourage police misconduct and to protect individuals’
rights, not to punish the gov’t. US v. Calandrana
ii. Weeks v. US: 1914(at this time it applied only to fed. courts—Lottery tickets case; suspects
home searched and letters taken by gov’t. The use of evidence is barred when it is
obtained through an illegal S&S
1. Court found letters seized unconstitutionally. Argument of the Court is that
while 4th does not contain an exclusionary rule, the 5th does, and it’s a gloss
over the 4th.
2. Looked at federal policy concerns for excluding evidence:
a. Right-remedy link: if there is no constitutional right, there is no
adequate remedy
i. If there is no remedy, we might as well strike the part of the
constitution that deals with it
b. Judicial Integrity: it would undermine judicial process if by allowing
evidence to be introduced; it would be sanctioning unconstitutional
activity.
iii. Wolf (1949): Court stated that exclusionary rule was not in 4 th and it wasn’t a constitutional
requirement. 4th applies but ER does not. 2/3 of states reject ER. Will not impose it
through incorporation doctrine.
iv. Mapp v. Ohio: 1961: Court overruled Wolf and said exclusionary rule applied to the states
through the 14th.
1. Court looked at states and said many had already started using the ER
2. Court said that while there are some legal remedies for violation, none are
effective (private lawsuits, civil action, etc.) to replace ER—need uniform
standard
3. Policy of deterrence: court wants to get rid of police incentives for violating
the constitution through unreasonable search and seizure. If evidence is not
allowed, police won’t want to do it. Even if officer does not care about
consequences, his superiors/department will have policy and may discipline
him.
4. Black says that 4/5 are closely related and 5th is an exclusionary rule so it is
already in the 4th am.; Douglas-we need a remedy b/c there are no effective
remedies (like wolf). Thinks this is the only effective remedy b/c
5. Dissent: Cardozo said letting crooks off the hook like this is a “crazy idea”
6. Dissent: Harlan: judicial restraint and stare decisis; No real legal argument;
says this is an illegitimate use of judicial power to create this rule, where it is
not grounded in constitution test, history, etc. He thinks SCT may have
violated the constitution by authoring this rule.
h. Calandrana: 1974: court stated that the ER was a “judge made rule” Prophylactic, and not a
remedy; judicial integrity drops out-policy is now to deter violations
i. Miranda-warnings, 5th am SI rule
ii. Tucker-miranda warnings judge made prop. rule
iii. Dickerson- miranda warnings judge made prop. constitutional rule and therefore can apply
to the states since its in the constitution
IV. Probable Cause and Warrants
*Warrants based on tips from informants/anonymous tips cause the most problems in this area. Cannot
be issued without PC
*Clause 2 of 4th
a. PC exists where facts and circumstances within officers’ knowledge and reasonable trustworthy
info are sufficient in and of themselves to warrant a man of reasonable caution in the belief that
an offense has been or is being committed and person arrested committed it and that they are
(presently) in that place.
i. Based on more than bare suspicion-quantum level
ii. Measured by the facts and circumstances of the particular case; is to be fluid and based on
common sense.
iii. Reasonable suspicion is much lower than PC
b. Language of PC-fair probability, substantial loss, reasonable belief
c. Maryland v. Pringle-pringle said they had no reason to arrest him-no PC; court said yes there is
b/c “common enterprise”
d. Spinelli v. US: gambling/bookie guy—FBI sees 2 phone lines in apartment, they hear rumors
that he is a bookie, informant says he is. Did officers have PC to go in and search the place?
NO. no details of 1st hand knowledge, etc; analysis for probable cause to issue warrant:
i. Veracity—how reliable is information—oath of officer or informant
ii. Basis of knowledge—how believable/reliable are the facts—can/have some of the facts
been corroborated (self-verifying)
1. are the facts based on first hand witnessed account?
2. hearsay—if officer simply heard something from informant, repeat test with
respect to informant.
a. Veracity—what’s informants past track record, statement against
interest, etc
b. BOK—what’s the informants knowledge based upon?
i. Firsthand
ii. Hearsay: at least some facts should be corroborated through
investigation
iii. Self verifying details-wont tell how they know what they
know but will tell certain things to help police understand
why the know; info only an insider would have
e. Dissent-the superme court should not present rigid rules when reviewing a case. PC is for
investigation, not for review here. Magistrates should be able to do their jobs and issue a
warrant from a fluid test, not rigid test.
f. Illinois v. Gates: changed from absolute Aguilar/Spinelli 2 prong test, to a more flexible TOTC
test. This is the current law.
i. Majority: Rehnquist said we still care about the Aguilar/Spinelli factors, but it is just not
rigid anymore. One very strong factor may make up for another weak one, and are all
factors in the T/C test, which magistrate will evaluate.
ii. Majority felt that Aguilar/Spinelli was too rigid and difficult for officers and magistrates to
apply in some cases.
iii. Policy reasons-2 prong test limits law enforcement; lawyers talking to non-lawyers use a
common sense approach which should be allowed. If not, more mistakes will take place.
Last, incentives and disincentives for the police. If he thinks tip has to make 2 prong rigid
test, not much incentive to get the warrant. Rehnquist says investigation by police used
common sense to pick up on the suspicious behavior.
iv. White wants a good faith exception and a flexible 2 prong test
v. Dissent-we should have test b/c it provides structure and guidance. Using common sense is
not structure. PC and tips are too permissive. Searches that should not occur will occur.
g.
Notes:
i. When officers have probable causes in a search situation, its known as substantial basis.
ii. PC does not mean 51% or something. Its more like 35% and this TOTC test makes it vary
from magistrate to magistrate
iii. Standard of review for Appellate Courts:
1. magistrates’ findings of fact will be reviewed by clearly erroneous standard
2. M determinations of mixed q of fact and law will be reviewed de novo.
3. PO pc determination is a de novo standard-Ornelas (1986)
4. why do we give deference to magistrate and not PO? Magistrate is supposed
to be detached from situation while PO is not. The officers incentive is that
they can go get a warrant even if they do not need a warrant but need PC.
Ventresca-standard is less demanding for warrant authorized
searches/seizures
iv. Whren v. US: ∆ arrested in bad neighborhood for turning without a turn signal and police
come to car and see drugs…∆ argues that his stop was based on racial profiling and bad
motivations by police
1. Court said 9-0 that pretext does not matter. Whether police had right to arrest
based on probably cause will be viewed objectively and wont question
officers mental state
2. Here, officer had PC to stop b/c of the traffic rule violation and once he went
to car and saw drugs, he could arrest. Officers subjective intent is
irrelevant. Would a reasonable officer have stopped the car for the
reason given?
3. Pretextual stop is OK; when there is no PC, we worry about no pretext (such
as checking drivers license)
4. racial profiling is not a 4th am violation-needs to go to 14th am equal
protection clause.
5. the best way to keep PO from doing something is the suppression of evidence.
Not really much to do for equal protection violation unless an exclusionary
rule is created (not likely)
6. there can be a class of one (Olech) but probably will not get suppression of
evidence
h.
Warrant requirements/exceptions
i. Based on the test of the 4th am., arrests and searches should never take place without a
warrant. This is called the Warrant Preference. However, there have been so many
exceptions added that they have largely swallowed this rule, and warrants are only needed
in certain instances. Remember that there still must be PC.
i.
WARRANT EXCEPTIONS
i. EXIGENCY
1. Destruction of Evidence:
a.
b.
Schmerber: DOE is an exigency/warrant exception
PC-we want to look at:
i. hot pursuit/flight
ii. dangers of weapons or persons
iii. loss of evidence
ii. Hot Pursuit
1. US v. Santana: Woman stands squarely in her doorway (1/2 in, 1/2 out) and
when she sees police, jumps in, and closes door. Police go after her and arrest
her inside
a. SCT: first, if she is halfway outside, she is in public place and police
can effect an arrest for a felony if they have probable cause. Second,
once she went in, police could chase her in b/c they were in hot pursuit.
2. Warden, MD Pen. V. Hayden: ∆ robbed cab company and ran home, cab
drivers followed and informed police who got consent to come in and search.
They arrested Hayden (pretending to be asleep in bed, no less), and officers
searched house and found his clothes, gun , ammo, etc. exigency here is that
he has weapons…public safety. Want to also prevent suspects escape.
a. Court said this was an exigent circumstance and was almost “hot
pursuit.” Police did not have time to get warrant to search house or
arrest ∆. Police may search or seize if:
i. Police have PC
ii. Scope of search is tied to the exigency (police protection,
destruction of evidence)—coming back sometime after
arrest to search house would be invalid, as exigency has
ended (Mincey v. AZ)
iii. The exigent circumstances must exist
iv. Police cannot create exigency
b. What’s the proper scope of a search incident to arrest? Same as scope
of exigency. Exigency ends when danger is avoided. Here, court
said police have ability to search for weapon, in any place where either
the ∆ could be hiding, or the weapon could have been stashed. This
exigency is narrow.
c. Plainview Doctrine: if police comes across evidence out in the open
while searching for ∆, they can seize (protects possessory interest) it
lawfully.
i. Need-lawful vantage point to see item
ii. must have right of access
iii. must be immediately apparent it can be seized
d. The court does not have decide where the PO can search as long as they
are looking for the weapon/person
e. Horton- Officers executing a search warrant to search for fruits of
armed robbery but not weapons used in its commission. While
executing the warrant, officers seize the weapons as evidence, claiming
a right to seize under the plain view doctrine. Lower courts rule that
weapons inadmissible because plain view doctrine applies only to
evidence inadvertently discovered.
i. Court rules that there is no inadvertence requirement to the
plain view doctrine because law enforcement is better
served by objective standards the disregard subjective
intent, and warrant requirement already describes the scope
of the search and any seizure outside scope of the search is
unreasonable.
ii. Privacy is already protected b/c it must be in a lawful
vantage point and there must be probable cause. If A/B are
only things listed in warrant, they must stop once they are
found.
3.
4.
5.
iii. There is no incentive to leave items out of the warrant
because the omission effectively limit’s the scope of the
warrant.
iv. Lower court and dissent argue that items not listed in
warrant are exempt from seizure unless inadvertently
uncovered, because magistrate issuing the warrant did not
have opportunity to rule on the seizability of the items .
v. many people say this is a warrant exception to deal with
recurring exigency of finding something that needs to be
seized. Mag. PC determination is bypassed. if you already
have PC you have to check with magistrate
vi. brennan says that officers might leave items out of warrant
b/c there could be many items and they want it to be
convenient so list the smallest items. If a ring could be in
certain areas, a weapon could be there-gamble that search
would be broad enough.
vii. 4th amend. more about searches and privacy than possessory
interest. Small risk so why have it? Stevens no warrant
requirement for arrest then why would we have stringent
warrant requirement for items susceptible to seizure?
f. Plain Touch Doctrine-Dickerson. Terry Frisk; court said officer
exceeded terry frisk b/c he did not think it was a weapon at first and
then decided it was drugs. If he simultaneous decided these things, it
would be lawful.
Vale v. LA: Police get arrest warrant for suspected drug dealer, come to
house, and watch and witness deal in front yard. They arrest ∆ and then go in
and search, looking for other people, and to prevent destruction of evidence.
a. Courts say police cannot create their own exigency. Here they already
had ∆ in custody, and could have gotten a search warrant at same time
they got arrest warrant. Search of house is no good.
b. Dissent: Black-points out that arrest warrant was for bond hearing, and
so police could not have gotten search warrant too. Also said that a
search is often more intrusive than a seizure.
Macarthur (2001): wife tells police that ∆ had drugs in house. Police seized
house, then went to get a warrant. Constitutional to seize house, and then get
warrant.
Brigham City, Utah v. Stuart (2006)-got a call for fight-saw a guy hit another
guy through the window so they went in. Was there exigency? Danger.
Court said they had an objectionable reason to believe there was danger. 9-0
iii. Auto Exception
1. Overview
a. Mobility Doctrine: Since cars are inherently mobile, courts have found
a per se exigency to search without warrant → fear of losing evidence
by getting out of the jurisdiction.
b. Diminished expectation of privacy, due to the fact that people can see
inside, and people know they can be searched early and often (heavily
regulated area)
2. Cases
a. Carroll v. US: established first that warrantless search is ok if police
have PC. (recurring exigency)-1929 bootleg liquor case.
b. Chambers v. Maroney: police seized car after arrest and took it back
to station for search. This is ok b/c of mobility doctrine. Also b/c of
diminished expectation of privacy.
i. Even though the exigency seemed dispelled, Majority said
that there was no difference b/t seizing the car and searching
3.
j.
Review:
1.
2.
3.
k.
it. Was ok. White says there is an exigency at least until
the seizure occurs and it must be cured-search it or seize itno real distinction
ii. Dissent: Harlan said that search was very intrusive, and
police could have gotten a warrant once at stations (they had
unlimited time). Lesser intrusion was seizure of vehicle.
c. CA v. Carney: guy living in his car “mobile home”. Had PC but not
warrant. Did they have a WE? 2 policies: You have a diminished
expectation of privacy in a car b/c it is heavy regulated (have to have a
license, have to register cars) and you can see right into most vehicles
and vehicles are made for transportation, not privacy as a home is.
Auto exception is based on how it appears to the officer (reasonable
appearance of readily mobility)
a. Car must be readily mobile: not on blocks in a yard
b. Car must be used for transportation, and not for use like a home
c. If car is in driveway, that’s curtilage and if its in garage, that’s
considered in a home
4th am.
a. Clause 1: search and seizures must be “reasonable”
b. Clause 2: reasonable if done with warrant and PC or at least PC with a
warrant exception
Warrantless seizure is thought to be less intrusive than a search. Privacy is
thought to be more valuable than a possessory interest.
Warrant Preference: intervention of a detached judicial magistrate necessary;
police cannot make warrant choice, because often biased and caught up in
moment-not objective
Container Laws
i. US v. Chadwick: drugs in big trunk on Amtrak train. Train folks see talcum powder
around trunk and notify authorities. Police arrest Chadwick, seize trunk and take it to
station and open it there.
1. Court says NO. No footlocker exception for mobile PP. Containers don't
have same exigency as automobiles and there is no diminished expectation of
privacy here and not heavily regulated. Would have been ok if they had
searched upon arrest
2. Court said police could always seize and then get a warrant.
3. the police could have waited a few more minutes and gotten exception under
Chambers rule.
4. Concurrence-automobile could have been search but that does not mean a
locked container within it can be.
ii. Arkansas v. Sanders: ∆ put baggage in car and police step in and search. Court said you
don't lose expectation of privacy by putting it in car. (Now bad law). No warrant
exception when PC is related to luggage and not automobile (as opposed to Ross where PC
was for car not luggage). Not under chambers WE rule. We should always be looking for
natural exigency and no bright line rule.
iii. Robbins- limits AE to searching auto but not the containers found within.
iv. US v. Ross: police had PC to believe there were drugs in car. They come across a
container and search it. This is ok.
1. court stated that PC was attached to the car, and this container was in the car.
The scope of this is basically that officer can search whatever a magistrates’
warrant would have allowed, but you don't have to have it (chambers rule).
So if police come across container that could contain the drugs they thought
would be in the car, they can search
v. CA v. Acevedo: does away with sanders; the PC attached to the container that ∆ put in car;
however, here the Court overruled Sanders and created a warrant exception when container
(object that holds another object) was placed in car. Reasoning:
1. mobility interest is the same (exigency)
2. privacy interest is the same (reduced)
3. trying to make police draw line between Ross and Sanders is difficult, so now
Sanders is overruled, and there is a bright line rule (drawn b/t chadwick and
acevedo).
4. Remember the scope is same as scope of PC: if police believe drugs in the
container, and you put container in trunk, they can only search the trunk of the
car…may not know what situation you are under and how you can search.
This way should be clear b/c automobile exception only applies to
automobiles.
5. Dissent: Stevens said that now in order to retain a privacy interest, you have
to walk with your containers. Privacy protection in a car until you put it into a
car…creates an anomaly.
6. Scalia’s concurrence-believes all the cases should be under BLR.
vi. After Acevedo, if PC is for package, seize and get a warrant. If PC is for car, can search
w/o warrant. Potential problem-officers will wait until someone gets into vehicle to search
them. Does Chadwick rule have minimal protection? Automobile exception extends to the
trunk. Search incident to arrest does not.
vii. Atwater: arrests for minor offenses are ok-not a 4th am violation.; BLR-officer’s discretionno litigation b/c no particular circumstances to look at.
1. O’Conners dissent-history applied incorrectly. We must balance privacy
interests with
viii. Houghton: 1999; court stated that it did not matter who owned container, whether its
passengers or drivers has no bearing. Police can’t be expected to make this distinction over
ownership in the field.
1. If you are sitting in a car, you are not considered a container including purses,
bags. If you get out of vehicle, take you stuff b/c if you leave it, your stuff is
included in the auto exception. If they make you leave it, it could be a seizure
of your purse and a violation of the 4th.
l.
Plain View Doctrine:
i. Elements
1. seen from a lawful legal vantage point (ex: officer walking by on sidewalk,
etc; executing a warrant)
2. right of entry-right of access to the item
3. probably cause to seize-immediately apparent to the officer
V. Seizures/Arrests
a. Arrest in a public place
i. US v. Watson: warrantless arrest in public accommodation (credit card fraud case?) ∆
challenges constitutionality of arrest w/o warrant. Court said arrest valid:
1. full custodial arrests seldom require a warrant, and legal tradition, including
CL roots to show no warrant necessary for felonies in public and
misdemeanors committed in officer’s presence (based on officers 5 senses)
2. cl-this leaves only misdemeanors not committed in officer’s presence that
require a warrant. Still exigency exceptions.
3. Powell concurrence-an arrest without warrant should be the same as search
without warrant (searches have a warrant preference). Sometimes logic tells
us to do one thing and history tells us to do something else. Could lead to a
problem in effective law enforcement-warrant could not longer be good if
received too early; if you wait to long, could be excused of creating own
exigency (Vale)
4.
Dissent-definition of felony is different now than from common law. history
will not answer the question for us. Wants to go back to warrant preference.
Magistrates better at making judgment to determine if there is enough PC
“neutral magistrate”
ii. US v. Santana: See above—threshold of doorway is a public place, and if you dart in when
you see the police, they can come in b/c they are in hot pursuit
iii. Gerstein: there will be a PC hearing after the warrantless arrest where a magistrate will
determine whether there’s PC to hold ∆. This hearing must be prompt and within a
reasonable amount of time.
iv. McLaughlin-above must be done within 48 hrs.-if longer, const. violation unless a bona
fide emergency
b.
Arrests in home
i. Payton v. NY: officers need arrest warrant and PC that person is in home to go into your
home and arrest you. This is to protect home and privacy interest that is essential to 4th.
However, a search warrant is not necessary. if staying overnight or for a few nights, could
be considered a temporary residence and only need an arrest warrant. STANDING (Mn v.
Olson and Carter)
1. Common law tradition is mixed on whether you could enter the home to arrest
someone for a felony.
2. search warrant would be better protection for privacy but problem is that it
could go stale. That would be too big a burden to put on police. The arrest
warrant will still protect privacy in the home in an indirect way b/c magistrate
makes determination of PC to arrest-derivative privacy through PC
determination.
3. to make arrest, have to have arrest warrant and pc that it was committed and
the person who committed was the one being arrested and need PC to believe
that person is in the house-WE
4. Dissent-traditions do support-Watson shows problem with arrest warrants
going stale. Can create uncertainty-do I actually have exigent circumstances?
ii. US v. Steagald: if officers seek to arrest ∆ in 3rd party’s home, they need an arrest warrant
and a search warrant—Court feels that privacy interests are strong for 3 rd party and this will
help prevent gov’t abuse. Exceptions-exigency, consent; “standing” issue.
1. dissent-search warrants go stale/too burdensome to police
c.
Search incident to Arrest (SIA)
i. Overview: An arrest is limited in spatial scope to the suspect’s person, therefore if a search
is to be allowed because of the arrest, it should be limited by this scope to the following:
1. Scope: area of control of the suspect:
a. On the suspects person
b. Immediate grabbing area of the suspect (including drawers/containers
within reach, and even entire passenger compartment of car)
2. there must be some justification:
a. police safety: man officers killed, want to make sure ∆ cant go for
weapon during arrest process, etc.
b. destruction of evidence—we want to preserve evidence
c. this immediate grabbing area is actually wingspan + a few feet.
ii. Cases:
1. Chimel v. CA: Cops get arrest warrant, but not search warrant, for ∆ for
stealing coins. They go, arrest ∆ and search whole house for an hours. They
argue SIA. Court reasons:
a. Cursory visual inspection; Spaces immediately adjoining place of arrest
(free search); any place a person could be (usually closets)
b. Buie: protective sweep incident to arrest: safety of the officers
(sweeping for people somewhere in the areas that may pose a threat to
the officers)
2.
3.
4.
i. Protective Sweep Doctrine if Reasonable suspicion (less
than PC—basement). No Q/S for spaces immediately
adjoining place of arrest (would blow Chimel out of the
water) and reasonable suspicion for other areas.
ii. Court said NO. SIA only covers “immediate grabbing area”
or “wingspan” to provide for safety of officers and prevent
destruction of evidence.
iii. Dissent-arrests are a recurring exigency. Rule is you need
PC. Therefore you have WE—Chambers Automobile
Exception (also written by White) majority says no b/c
lower expectation of privacy is for the automobile, not the
home. Even a protective sweep undercuts privacy interests.
c. Vail/Chadwick-temporal
scope-SIA
must
be
substantially
contemporaneous.
US v. Robinson: Guy’s driving w/o license. Police have probable cause, and
pull over to arrest. During search, officer feels crumpled cigarette pack in
pocket. He removes it and finds drugs. ∆ argues that police can’t search for
stuff outside crime arrested for, and that police aren’t in danger when arresting
for traffic offense. Court reasons:
a. Officer needs to think it’s a weapon in order to search it/seize it,
however, officer does not have to think that weapons/evidence exist to
initiate SIA. All you need is a valid arrest in the spatial and temporal
scope
b. No quantum of suspicion is necessary b/c with SIA we are ultimately
concerned with police safety and preservation of evidence. This is
what precedent says.
c. With arrests, in general, there is lengthy exposure to suspect, so police
officer is in much greater danger—more chance for altercation. Person
will be mad so it is much more important for PO to search for weapons.
If there is not a bright line rule, it will be adjudication on a case by
case basis-we do not want this-more litigation and uncertainty
d. Dissent-patdown ok, seizure might be ok, search not ok; PO could use
this to conduct more searches. Wren/Atwater-we don't care about
pretext/can arrest someone for minor traffic offenses.
e. SIA and Chadwick(?) Knowles v. Iowa: 1998: ∆ stopped for traffic violation, and simply issued
citation. Police search his car.
a. Court found this unconstitutional-there’s no Search Incident to
Citation. There’s no extended exposure (police safety) when only
giving a ticket, no evidence to be preserved.
b. There must be a full custodial arrest to get SIA. Problem is that
officers want to search, but don't want a jail filled with speeders.
However, with Atwater, the officer can arrest and put in patrol car for
traffic offense, and search, and if they don't find, they can release
suspect.
NY v. Belton: Cop pulls ∆ over for speeding and sees envelope with
“supergold” on it, which is slang for marijuana. He pulls guy out of car and
searches car and finds more drugs in jacket in backseat. ∆ challenges
constitutionality of search saying once he is pulled out of car, non of that is in
his grabbing area (Chimel)
a. Court issues bright line rule: SIA: entails police to search entire
passenger compartment of vehicle (regardless of where person is)
anytime there is a lawful arrest. If the arrestee was originally in car;
does not include the trunk. (automobile does include the trunk)
b. This will help protect officers b/c otherwise they would want to keep ∆
in car as long as possible so they could search, and ∆ is likely to have
5.
weapon (gun knife) within reach there. Also, rule like this will be easy
for police to follow in field.
c. Extended to recent occupants to reduce litigation and have a BLR
d. Justified intrusion b/c of PC arrest.
Thornton v. US-is there a contact initiation requirement to trigger the Belton
rule? NO. Scalia’s dissent-some quantum of suspicion needed
VI. Inventory Searches
a. Overview:
i. Colorado v. Bertine: Inventory searches are constitutional
1. here there is no criminal investigation, so no warrant is needed; PC
preferences: balancing test of
a. states interest
i. protect police from false claims of property loss
ii. concerned with police danger (booby traps/explosive)
iii. protect the property itself
iv. ID of person (make sure we have right person)
b. Privacy interest of ∆
i. Diminished expectation in a vehicle
2. the states interest win if:
a. police acted in good faith
b. limited discretion pursuant to regulation
3. In inventory searches, police are essentially acting as clerks and not as
criminal investigators.
4. he says secure facility changes everything and police had discretion so SOP
are not insuring against pretext. However, police have concerns about 3 rd
parties stealing from their facility and as long as discretion is done w/i
standard procedures, it is fine.
ii. IL v. Lafayette: to have a valid inventory search:
1. lawful custody and arrest
2. standard operating inventory procedures for search
a. no warrant, PC or reasonable suspicion and state interests are not crime
fighting but special needs
b. so, it will prevent false claims, dangerous weapons into the jail
3. incarceration must follow arrest
4. Balancing interests of protecting persons property and protecting police
department from false claims; safety of both person and police. If you are
under arrest, privacy interests diminish greatly. If we balance, inventory
search is constitutional under certain circumstances.
iii. Inventory searches do not have to involve the least restrictive means
b.
Consent Searches
i. Schneckloth v. Bustamote: search is ok b consent if the consent was voluntary. Test of
voluntariness is measured by TOTC (if you did not know you had right to refuse, its just a
single factor on test). test comes out of interrogation law-due process test
1. prosecution has BOP (POE) to show the consent was voluntary-NO. don't
have to tell them b/c they could refuse which would be impractical to place
this burden on police. this is a crime fighting tool so no reason to tell they can
refuse.
2. voluntary = not coerced beyond normal coercion of police
3. policy: critical to crime control – lots of good evidence
4. dissent: wanted a Miranda style warning – said you could not voluntarily
consent, if you don't realize you can decline.
5. not a 4th waiver, just that its reasonable for police to search under 4 th b/c you
consented.
6.
ii.
iii.
iv.
v.
Johnson-waiver analysis used in trial context. no reason to import this into
police investigations.
7. why is a consent search constitutional? could have to do with Katz
(reasonable EOP) but courts have found this is not really the reason. It is a
reasonable search (1st clause of Con.) so, not a waiver, not a diminished EOP,
just reasonable when someone gives there consent.
8. Mendenhall-when is a person seized and when do they feel free to leave?
TOTC someone is seized when they don't feel free to leave. court look for
something more than minimal level of coercion when PO asks to search.
some form of restraint would make it a higher level. “we may be here a
while”
9. Watson-what is the person was not in custody? in Watson, the fact that he
was arrested went to TOTC, but court says not high level of coercion.
OH v. Robinette: 1996: ∆ pulled over for traffic violation. ∆ asked to get our of car, given
warning. Then, before cop lets ∆ go, asks to search, gets consents, and finds drugs. Is
consent while in custody voluntary? Ohio rule of thumb was “tell before you go” to show
you have a voluntary search
1. court says maybe. They are still going to apply a TOTC test and the coercive
nature of the custody will be an important factor to weigh. However, officer
does not have to give warning that ∆ does not have to consent.
2. here the search was justified officer had PC to pull ∆ over
3. once scope of seizure has ended, police need to issue a warrant or tell person
free to go.
4. Unlawful detention-alternative theory of when you have to tell someone they
can go. if you stop them for a traffic stop, once you finish your business here,
that is the end of the traffic stop. If you go farther, as done here, it is an
unlawful detention. the majority’s argument against this is if the officer has
PC for traffic stop, we have to focus on justification and when it ends. there is
a temporal dimension and the officer gets a reasonable amt. of time for
stevens, if question would have been given at beginning or middle of search, it
would have been okay, but not at the end. majority does not want to put a
time on it-reasonable time.
5. Ginsberg concurrence-state can do what they want
Florida v. Jimeno: 1991: what’s the scope of a consent search? Courts says its what the
officer would reasonably believe the scope is based on TOTC. What would officer have
reasonably interpreted consent search to allow? Search of car includes containers in car.
US v. Matlock: 1974: Assumption of the Risk. 3rd party consent for search. If another
with common authority over domicile is there, they can consent to search of premises,
except personal space…trial court looks at facts and determines whether there was common
authority. Generally, courts hold that if you have a roommate, you assume the risk that
they will consent. Many circuits also hold that even if both roommates are present, and one
consents and other says no, cops can come in and search. Hotel clerk can not consent to
guest room search.
Georgia v. Randoplh-2006-co-tenants of husband and wife. She goes with police to get her
things from the home. Tells the police her husband has cocaine. Consents to the search.
the husband is present and does not consent. “Disputed Consent”. consent is invalid in this
type of case.
1. Analysis-Randolph is different from Matlock in the sense that property rights
do not control 4th am. analysis. Influenced from common social expectationsif one who does not like you is not there, you can still go in. If both are there
and one does not like you, you probably would not go in. Aspect of
Formalism-Matlock cannot object b/c he is in squad car. Rodriquiz was
asleep. Randolph does not undercut those two b/c he was present while the
others were not. if the police ring the doorbell and no one answers, they can
go in b/c no one there
2.
vi.
vii.
viii.
ix.
Roberts dissent-social expectations vary too much to be the circumstances we
base it on. wants Assumption of the Risk from Matlock b/c it is already a
clear rule.
3. Police could lock them out of the house, seize the house and get a warrant
(Illinois v. McArthur) They have alternatives
Illinois v. Rodriguez: when you do not truthfully have common authority, but make cops
believe you do…girlfriend has access and tells cops she lives there and lets them in. Is that
consent valid?
1. Factual correctness is not the issue, the question is “was it reasonable for
officers to rely upon x’s consent to search?” If so, it passes.
2. Actual authority consent was not present here, and apparent authority to
consent (if police reasonably believe the person has authority to consent).
even if you have PC you may not be right-constitution no more violated
3. Cites Terry-reasonable suspicion standard. remand for factual development to
be safe.
4. dissent-privacy of the home under 4th. could have gotten warrant. person they
relied upon had no authority so they are out of luck.
5. other issues:
a. private citizens searching cannot violate a constitutional amendment—
requires state action
b. When state actors begin to instruct private citizens, then you might
have a violation” TOTC test to determine degree of police involvement.
c. ∆ can revoke consent at any time.
Bumper-if warrant is no good, not a consent search b/c you are not independently
consenting to a search, just giving in to a show of authority.
Whren (subjective intent) and Atwater (arrest for traffic offense)-someone stopped for
traffic offense and officer asks for consent search “before you say no, I would like you to
know I can arrest you and search your car anyway, if you say no” no SC resolving this. Is
it voluntary? Common sense answer if that it is highly coercive but argument for it being
OK is that they gave all information need to make a valid decision-here are the possible
consequences.
US v. Jacobson: citizen does private search, calls police, then they come and search.
Constitutional?
1. once the “cats out of the bag” whatever officers are told by private citizen is
equivalent to PVD.
VII. Stop and Frisk & Reasonable Suspicion
a. Overview:
i. Under the 4th; stop is a seizure if you don't feel free to leave; frisk is a search, intimate
touching of body (invasive). Terry stops and traffic stops are less intrusive than FCA
ii. Terry v. Ohio: seasoned officer sees guys outside place who look like they are preparing to
do an armed robbery. He stops them and asks questions, and when they can’t answer, he
briefly frisks them for weapons and finds two guns…
1. Majority says stop and frisk is a per se exigency and thus no warrant is
required. As a brief stop and frisk is much less intrusive than full search or
full arrest, so no PC needed—only reasonable suspicion. The test is whether
suspicion exists is
a. objective R/S
b. TOTC
c. Particularized to person
d. Articulable facts/reasons
2. officer can now stop when he has reasonable suspicion that criminal activity is
afoot
3. officer can search when he has reasonable suspicion that ∆ may be armed and
dangerous
4.
This stop and search is limited however to confirm or deny the suspicion.
Officers search should not full search, simply a pat down minimal search to
find weapons.
5. policy: balancing interests b/t individual privacy and states interest in crime
control
a. states interest: crime control—we want to allow police to act
proactively as well as retroactively. With establishment of reasonable
suspicion, police can now confront suspects and foil crimes. 1983
actions and exclusionary rule exist to help protect citizens here.
b. Personal interests: privacy is key. Police may use this lesser standard
to harass minorities and citizens in general. Also, with the lower
standard, it will make it harder to show discrimination and harassment.
ER does not deter harr, only 1983 harassment suits so no reason to alter
doctrine. We have to assume police officers are fighting crime.
6. Dissent-we must have probable cause as the standard.
iii. IL v. Wardlow: defined reasonable suspicion. Police in bad neighborhood investigating
drugs: ∆ looks at police and runs-so police have reasonable suspicion?
1. SCT says RS is established by TOTC test. Here you are in a high crime area,
and suspicious looking flight is enough, under objective test.
a. Officer must be able to articulate facts that give suspicion, cant just be
a hunch and rational inferences from those facts beyond hunches
b. This standard is low (15-20%) and probably half of PC
c. Flight must be unprovoked (officer cant hold gun on suspect and say
“run”
iv. Arvizu: 2002: most recent RS case: police stop van on border road in which lots of
illegals/drug traffic takes place. Police see van, not a local vehicle, no eye contact, no kids
waving, then kids waive mechanically. They say that’s RS.
1. SCT says yes, there was RS based on TOTC. You look at all facts together to
determine this and not each fact individually. Drug courier profiles can also
be a factor here.
b.
Stop and Frisk Issues
i. Tips: Alabama v. White: can anonymous tips form basis of R/S? yes depending. We
would normally go with Gates veracity and basis of knowledge test, but here the informant
is anonymous.
1. police must use corroboration and try to see if D does any of predicted activity
to verify
2. Florida v. J.L.: this is an example of a case where RS was not established by
anon. tip. Just b/c ∆ met description is not enough—there must be predictive
info that he is going to be involved in a crime. Police try to argue for public
safety exception. SCT says NO, but there may be one for a bomb in airport,
etc.
ii. When does stop/frisk become full custodial arrest? US v. Sharpe—overloaded car and
truck with camper running case.
1. Court employs a reasonable police officer test, rather than setting time limit,
however, a very long detainment may exceed scope of reasonable suspicion.
Here ∆ created the length of time by not stopping together for officers.
2. can officer ask you to get out of car at traffic stop based on RS?
a. YES. Mimms: we are worried about officer safety and ∆ is more
dangerous in car where he could reach for a weapon. Liberty interest in
not problem, b/c ∆ has already stopped. Passengers can be asked to get
out as well (MD v. Wilson)
VIII. Checkpoints/Roadblocks
Good reasons-emergency situations (exigency-bank robbery, terrorism, etc), L, VR, sobriety, nexus
Prouse (1979) – Roving patrol without individualized suspicion constitutes a 4 th Amendment violation.
Balancing Analysis: Public policy concerns + Degree to which the seizure advances public interest 
Severity of intrusion/Interference with individual liberty. it is more frightening and state interest is low. a
better way to get them off the road is wait until they violate traffic laws. we will look at objective and
subjective analysis of intrusion v. state effectiveness-Brown Balancing
Michigan Dept. State Police v. Sitz: Δ challenges the constitutionality of sobriety/DUI checkpoints.
 Stop constitutes a seizure, therefore it must be reasonable
 Reasonableness = State interest + Effectiveness  Severity of Intrusion
 Subjective intrusion is low here b/c you are put on notice by seeing the other cars being stopped.
law abiding citizen does not have any worries about going through checkpoint
 Objective intrusion is also low b/c people are not there long. In and Out. State interest is high b/c
lots of people get killed by drunk drivers and effectiveness is high. It is supposed to be a
deferential standard.
 We also need standard operating procedures to control police discretion-analyze with inventory
searches. Police are not supposed to be looking for evidence of crime just as in inventory
searches. only to be used for checkpoint purposes under Brown balancing
 Dissent-Brennan-as long as they call the checkpoint something, should require reasonable
suspicion and be on level of terry stop. Stevens-checkpoints are not effective and courts should
see that people privacy interest is greater than states interest esp. since they are ineffective. a more
effective way is driving around and looking for the people who look like they are driving under
the influence. No surprise in fixed point in border checkpoints. Local people always knew where
they were. Also, checkpoints can be called many things-call it one thing and move it around.
 what happens if you drive away-they come after you
City of Indianapolis v. Edmond: Δ challenges the constitutionality of narcotics checkpoints.
 Checkpoint used for ordinary crime fighting and not a special needs purpose are a 4 th Amendment
violation absent any individualized suspicion. they were only trying to stop drugs-had a huge sign
 Seems to be a “magic words” case, in which the same conduct under the auspices of a DUI or
License checkpoint. Write the right words on the sign.
 3rd requirement here is (brown balancing, SOP) that checkpoint has to have a specific reason why
they are doing it. Some kind of nexis to highway safety or border if near the border. Cannot be for
ordinary crime fighting purposes. Have to have some special need and the courts will check for
programmatic pretext.
 This is an exception to Whren b/c we care about pretext at the programmatic level. in Whren you
have objective PC. No OPC here.
 Majority says that 3rd requirement’s justification is that if there is no limit they will be set up all
over town and everyone will be checked.
 What would happen if they changed signs to license and CP, but still ran dogs? the court
expressed no view on the subject. An argument that the dog does change things-just b/c they
pretend it is about highway safety does not mean it really is. Changes pretext. You can run a drug
dog along corridor as long as you don't extend stop. so could argue it violates 4 or that it is just an
extra thing
 Dissent-should not distinguish from Sitz-just added a dog. Why does it matter if narcotics is put
on the side or drug dog is able to run around. It does not last any longer or change anything.
Allowed under Sitz to stop for license VR and sobriety. Should there be this 3 rd requirement?
Illinois v. Lidster: looking for witnesses to hit and run that occurred week to 2 weeks in the past. He had
been drinking, got arrested for DUI. SC rules 6-3 that CP was okay-meets Brown bal, standard operating
procedures, and it was not for ordinary crime fighting-it was for a specific reason. those who did not vote
for it just wanted a remand-did not think unconstitutional.
Look at special needs handout-give it about 5 minutes
IX. Fruit of the Poisonous Tree Doctrine
This doctrine states that, generally, not only must all evidence directly obtained through the illegal
search/seizure be excluded, but also evidence indirectly obtained as a product (fruit) of that illegal
search/seizure will be excluded. This is necessary to deter police from misconduct and benefiting by
getting hold of indirect evidence. must show that 4th am violation caused police to find evidence
a. Exceptions
i. Inevitable discovery doctrine (hypothetical independent source rule)
1. evidence so attenuated that “taint” is dissipated (no Proximate Cause)
2. evidence may be used in impeachment of ∆ testimony
3. good faith exception
Prosecution wants to show there was an independent source or inevitable discovery so it will be
permitted. policy balance is to put the police in no worse a position than they would have been
absent the illegality. have to disgorge any benefit but are not to be actively penalized.
how do we establish general independence-would warrant be issued without first search? nothing
from 1st search can be necessary to PC determination to #2 or PC 1 is tainting #2. no evidence
before magistrate on 1st search (Murray)
b. How long does the taint last? Looks like TOTC; Factors should be considered:
i. Time-temporal proximity, special proximity
ii. Chain of events (break in chain=lack of proximate cause)
iii. Voluntary act of free will-witness coming forward with oral test
iv. Type of evidence: court is reluctant to exclude witness testimony
c. Cases
i. Wong Sun v. US: 1963; stated excludsionary rule as above, and FOPT must be excluded
ii. Brown v. Illinois: 1975; Miranda warnings by themselves don't dissipate the taint of an
unlawful arrest. ∆ was arrested without PC
1. Majority-allowing warnings to dissipate the taint of unlawful seizure, so court
won’t allow it. There would be no deterrent effect to officers if this were
allowed.
iii. US v. Ceccolini: 1978; police went to flower shop and searched/opened envelope looking
for evidence. This was unconstitutional. Then police asked witness about envelope and
gave statement. Was her statement FOPT?
1. Witnesses are live and come forward, can do so of own free will—different
from physical evidence. Court is reluctant to exclude oral testimony for
witnesses, and there is little deterrent effect on police, b/c witnesses can come
to them.
iv. NY v. Harris: illegal arrest in home without an arrest warrant. Outside (on way to police
car, and later,)Harris made incriminating statements and seeks to suppress as FOPT.
1. mere continuing custody does not necessarily constitute a continuing 4 th
violation. Court found the statements admissible.
2. causal break b/t the illegal seizure when you have PC to arrest. The
incriminating statements after arrest cut off FOPT. Don't have to let criminal
go after you get incrimination evidence. Must give the evidence back-not let
the criminal go.
X. Inevitable Discovery Doctrine
This doctrine is hypothetical and requires that gov’t show by a POE that they would have discovered the
evidence anyway, even if the violation had no occurred.
a. Nix v. Williams: 1984; ∆ was given “Christian Burial Speech” which violated 6 th am rights and
∆ showed police where body was
i. Gov’t showed that they would have found body anyway (search team was close to area and
working themselves that way). No exclusion.
ii. Policy concerns: we want to put the prosecution in place they would have been had there
been no violation instead of punishing them.
b. Circuit split over IDR: some worry that this exception will foster misconduct. Views:
i. Some circuits only allow exception for derivative evidence. These circuits would exclude
direct evidence-provides more deterrence.
ii. Some circuits require police be actively pursuing a warrant in order to take advantage of
this exception
iii. Others say that if this exception is used by police to avoid getting a warrant, then the
evidence will be excluded.
XI. Independent Source Rule: police need to show that the evidence came from a source independent of the
original illegality.
a. Murray v. US: 1998; police cannot get PC for 2nd search from first illegal search. If so, any
evidence obtained in 2nd search is excluded.
i. Court wants to put gov’t in position it would have occupied had there been no illegal 1 st
search. If gov’t can show they had PC to search independent of 1 st illegality, they can
search 2nd time legally
ii. Gov’t must show:
1. no evidence from illegal 1st search used to establish PC for 2nd search
2. motivation for 2nd search must be independent (must convince court that they
would want to search even if they found nothing the first time)
b. Segura v. US: 1984; but for illegal arrest, ∆ could have destroyed evidence
i. Court does not buy this. There is no constitutional right to destroy evidence
ii. Don't want police to benefit from illegality but don't want to hurt them either
XII. Good Faith Exception
a. US v. Leon: magistrate issues warrant (in good faith) on mistaken belief that he had enough to
amount to PC. Police act on it. Court later finds that there was not probable cause. Must the
evidence be excluded?
i. NO. court announces good faith exception because:
1. the exclusionary rule exists as a prophylactic rule to deter police misconduct,
not judicial misconduct. Judges are not in the business of fighting crime, have
no interest in violating 4th am. and exclusion wont deter them. Magistrates’
jobs don't depend on evidence.
2. good faith exception will not be allowed when:
a. officer intentionally mislead magistrate
b. warrant is completely deficient on its face
c. magistrate/judge appears to have abandoned judicial role and become
interested in fighting crime…bias
d. lacking indicia of PC
b. IL v. Krull: 1987; police officer can reasonably rely on legislature (if law is unconstitutional)
c. AZ v. Evans: 1995; if officers reliance is reasonable, exception applies where clerk made a
mistake; if mistake is blatantly unreasonable, officer cannot rely on it.
FOUR BASIS TO EXCLUDE STATEMETNS AND CONFESSIONS
EXCLUSIONARY
RULE
UNDER THE 4TH,
5TH,
AND
6TH
AMENDMENTS
APPROACH
CONSTITUTIONAL BASIS
Due process clause of 5th and 14th am.
Voluntariness Approach-to be
admissible, a stmt. must be voluntary
made based on TOTC
5th am. privilege against self incrimination
Miranda Standard-statements made
during custodial interrogation are
inadmissible in the absence of Miranda
warnings
Right to Counsel Approach-statements
made during any “critical stage” of a
criminal proceeding are inadmissible
unless the ∆ is afforded a right to
counsel
6th am. right to counsel
Fruits of Illegal Conduct-even
voluntary statements obtained as fruits
or prior illegal searches and seizures are
inadmissible
4th am. exclusionary rule
THE 5TH AND 6TH
AMENDMENTS
DIFFERENCES B/T THE 5TH AND 6TH
5TH
6TH
dispel coercive atmosphere of custodial interrogation
legal guidance and advocacy to inform ∆ of the intricacies and technicalities of
(MIRANDA)
law
available at custodial interrogation (MIRANDA, MURPHY)
available at commencement of judicial proceedings
does not apply to undercover interrogation (PERKINS)
applies to undercover interrogation (MASSIAH)
responsible likely to elicit a response (INNIS)
invocation must be clear and unambiguous (DAVIS)
deliberate elicitation beyond more passive listening (BREWER)
invocation can be implied or inferred from acceptance and retention of council
(TX v. COBB)
probably cannot invoke in advance of custodial interrogation
invoked at commencement of judicial proceedings and goes on after invoked at
arraignments
not offense specific (ROBERTSON)
offense specific (MN v. MCNEIL)
full FOPT
little or no FOPT (ELSTAD)
XIII. Amendment Text
a. 5th: no person shall be compelled in any criminal case to be a witness against himself…”
b. 6th: “in all criminal prosecutions, the accused shall enjoy the rights to the assistance of counsel
for his defense
c. 14: shall not be deprived of libery…w/o due process of law…
______________________________________________________________________________________
Ybarra-search of patron when not named in search warrant; SC says this is no good-violates constitution;
concerned with evidence destruction is states justification. SC says No. must have reasonable suspicion.
Dissent-high probability that someone would have a weapon in a drug situation that it is for police safetyshould be an automatic weapons frisk.
Summers-execution of Search Warant-detained Summers as he was leaving his house so they could execute
the warrant. OK to do so. Minimal interest in practice. Not a full custodial arrest. A law abiding citizen
would usually want to stay when the police search, while one who is hiding something would not. Helps
eliminate flight/police protection/facilitate search. Justification for detention-Payton decision (in reverse).
Payton’s arrest warrant gave some privacy to home. Search warrant for Summers home gives some privacy
to Summers himself (derivative indirect liberty protection). Stewart’s Dissent:
Questions left open from these two cases-Stevens says there may be no warrant required if exigency existsevidence rule extends to contraband narcotics, etc, but not to mere evidence. Policy basis for distinguishing
b/t contraband and mere evidence-if you have contraband, narcotics, etc you are probably a criminal but if
you have evidence of crime, it could just be there by accident.
Ybarra was a place of public accommodation (tavern). This is different from private residences.
Public Accommodation
Private House
Seizures: Ybarra: ? Payton in reverse does not
work in a public place, suggesting NO, but there is a
foot note in Summers that suggests Yes.
Summers: OK-constitutional
Search: Ybarra: NO
?
Summers: argument it should change Ybarraconnection is closer so more suspicion should
adhere especially concern with weapons/officer
safety. Against Ybarra-government conceded (D.
Re)
Seizures are less intrusive than searches (are not okay if not described in warrant)
Exclusionary Rule Revisited
1) Overview
a. Standing Approach: must ask 2 questions:
i. was there a 4th am. violation?
ii. does Def. have standing? target, co-conspirator, property interest. was anyone
violated
iii. Old Approach
b. New Approach-established in Rakas
i. makes it plain that entire court does not agree with 2 approach-only need 1
approach:
ii. Was the ∆’s 4th am. rights violated?
iii. “Personal Rights” approach
iv. was the criminal defen. 4th am rights violated? if so, evidence can be
suppressed; if not, evidence not suppressed.
v. Katz and reasonable expectation of privacy in place search by police. if so,
privacy was violated.
c. Big Policy Thought on these two approaches-scope of exclusionary Rule
i. Those who prefer standing-used to expand ER. if A’s rights are violated, B
might also have been violated because of standing. maximize the determinate
effect
ii. those who prefer personal rights-limits exclusionary rule; one person does not
get to assert someone else’s rights in court.
2) Rakas
a. did criminal def. have an EOP that was legitimate and reasonable? if not, no right was
offended and they cannot use ER.
b. when have personal rights of individual been invaded? search of trunk in Katz is a
violation of EOP, but only a search with respect to owner.
c. to resolve this decision, we ask: does a passenger in a vehicle have a ROP in a glove
compartment and under the seat in a car? Court says NO
d. they prefer this approach instead of the old one because they do not want to expand ERbig social cost-criminal wrongdoing excluded at trial and criminals go free. we want it
limited and not expanded.
e. Jones case-was first characterized as a standing case but can be done in Katz since
legitimately on the premises. Rehnquist says it is a statement about personal rights
modified by Katz. “leg. on premises” way to broad so it was changed based on its facts.
f. White’s dissent: content to use personal rights approach. wants katz question answered
differently. 2 points: even though there is a diminished EOP, there is still some level of
privacy; If legitimately on premises, one has a 4 th am right. if they put something in
glove compartment, it was done with knowledge of owner. easier to comply with.
concerned this rule will make police officers make illegal stops and searches of the
passengers instead of drivers
g. powell’s concurrence-not sure police will be able to use rakas rule and ER to use
properly-may not know exactly what the relationship is between person and operator of
vehicle. thinks its exaggerated.
3) Rawlings v. Kentucky-guys narcotics in girls purse. police search purse and find them. have a’s
rights been violated? did he have an EOP in the purse? No. they were only casual acquaintances.
no evidence she routinely stored items for him. Rakas decision-Rehnquist suggested one of the
problems was that he did not have EOP in the rifle of shells-so there might be some basis to invoke
ER in personal property. if you have a privacy interest, you can object to search. if you have a
possessory interest you can object to seizure. rawlings was arguing that possessory interest gives a
basis against a search…makes no sense.
4) Minnesota v. Olson-was an overnight guest-did he have any EOP when host was there and he did
not have a key? REOP as an overnight guest.
5) Minnesota v. Carter-followup to olson-PO saw two people bagging cocaine when he peeked
through the blinds. was he on curtilege? but they are prosecuting the two people there not owner.
Minnesota courts talked about standing and Rakas-supreme court does not want to talk standing
anymore and the right analysis is to focus on personal rights. we should only go as far as overnight
guest. these two were not over night guests and they were only business acquaintances. “Fleeting
Business guests”
a. Scalia’s concurrence-4th am does not guarantee general right to privacy but persons,
houses paper and effects (each person) cannot assert a right of privacy in another’s
home.
b. Not 3rd party. Olson pushed this to the absolute boundary. if you are an overnight guest,
it is your temporary home but this is as far as he will go.
c. Kennedy’s concurrence-most social guests have a REOP.
d. What is important to Carter is that they were business guests, not social guests.
e. Breyers concurrence-no 4th violation-not on curtilege. still have to show 4th am search so
if it has not been violated, no harm done.
f. Ginsberg’s dissent-whenever one is a guest they should have a REOP. she should talk
about whether or not there was a 4th violation.
g. the owner was receiving some of the cocaine. “renting by paying in cocaine”
h. does carter undercut rakas in any way? yes-could say they were social guests; arg, that
not eroded-happened in someones house-diminished EOP in cars