CRIM PRO I CANONS
CANON
Incorporation
Doctrines
Incorporated
Rights
Unincorporated
Rights
Petty
Offenses/Misde
meanors
Crime Control
Model
AUTHORITY
INTERPRETATION/APPLICATION
MECHANICS OF THE CRIMINAL JUSTICE SYSTEM
Incorporation
Selective Incorporation (White) (prevailing theory)
Duncan v. Louisiana (SCT 1968) (incorporating 6th A
right to impartial jury)
 Deeply rooted in American system of justice?
Majority (White)
 Necessary to fundamental fairness?
Selective incorporation: Only bill of rights fundamental
 Inclusion in P& I clause, inclusion in protecting life liberty
to American system of justice are incorporated to the
and due process?
states
 Selective incorporation of fundamental aspects of selectively
Concurrence (Black)
incorporated rights is appropriate.
Advocates full incorporation: Black would apply the
Fundamental Approach
entire bill of rights to the states through privileges and
Is the right necessary to an anglo-american regime of ordered
immunities clause.
liberty
Dissent (Harlan) (Prevailing Analysis)
 Is any fair system of justice imaginable w/ out it?
Selective Incorporation: Only incorporate certain aspects
 Immutable principles of a free government that nobody must
of selectively incorporated rights.
disregard.
 ie A jury is fundamental to our system but there may be other
systems that are fair without it.
Total Incorporation: Entire bill of rights is applicable to
the states.
4th Am Right to be free from unreasonable searches and seizures and have illegally seized evidence excluded from criminal
trial. Mapp v. Ohio (exclusionary rule)
5th Am privilege against self-incrimination. Malloy v. Hogan
5th Am guarantee against double jeopardy. Benton v. Md
6th Am right to counsel. Giddeon v. Wainwright
6th Am right to speedy Klopfer v. N.C. and public trial In re Oliver.
6th Am right to confront opposing witnesses. Pointer v. Texas
6th Am right to an impartial jury for felony charges. Duncan v. Louisiana. Blakely v. Washington (SCT 2004) (right to jury
on all matters that will affect the sentence)
Beyond a Reasonable Doubt Standard. US v. Winship.
Indictment by grand jury
12 person jury Williams v. Florida. Ballew v. Georgia (need only 6)
6th A right to Juror Unanimity Apodaca v. Oregon (however must be unanimous if it is a 6 person jury and a felony charge)
8th Am bail clause
Jury trial for petty offenses (6 mo. or less imprisonment)
Lewis v. United States
 May be tried w/o a jury.
Sup. Ct. rejected the argument that petty offenses, when
 Petty = an offense is not deemed petty for the purposes of the
joined in a single trial must be aggregated to determine
right to trial by jury where imprisonment for less than six
the seriousness of the charges for the purpose of the jury
months is authorized.
trial right.
 Crime of less than 6 months may qualify as serious enough to
be tried by jury if excessive fines imposed
 Will look at following things to determine whether its petty:
fine; incarceration over 6 mos.; community service amount
imposed; extent to which D’s liberty is restricted
 Burden is on the D to prove that the legislature intended this
to be a serious offense
 Goal: crime prevention because it is more desirable than a reasonable doubt standard
 Focus on social order and crime
 Few restraints on police: The police are skilled investigators likely to ascertain the truth if obstacles are not in their way
 Limits judicial intervention: Process should be as informal as possible (prefer nonjudicial processes)
 Favors uniformity
 No presumption of innocence
 Assumes those that are detained are factually guilty then tries to make legal guilt match factual guilt
 Fear caused by crime limits freedoms, liberty
 Prevents crime with efficient investigation & prosecution
 Efficiency: the indigent is only given as much help as is required to provide him with a fair opportunity to demonstrate his
factual innocence and then he isn’t on = footing.
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Due Process
Model
Grand Jury
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Pre-Trial
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Trial and PostTrial Sentencing
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Goal: Maximizes individual freedoms
Also seeks low crime
Key: Reasonable doubt standard  Presumption of Innocence
Questions reliability of police
Recognizes socio-economic factors and tries to eliminate as a basis for disparate treatment
Police are not neutral protectors of rights. There job is to produce defendants and appearing effective is almost as
important as being effective.
Early involvement of counsel and court system is vital to reliability
Only req’d for felonies indictments in the fed system
Up to 23 grand jurors of which at least 16 must be present to issue indictment
Vote must be 12 to indict
No const’l right to be present or have counsel only ppl present are the prosecutor, grand jurors, and court reporter
Prosecutor will talk about case and call one or more witnesses
Prosecutors goal is to indict with as little info as possible  Eventually def. will get transcript and there is bound to be
something that can be used for impeachment
Not much of a shield from govt power since govt has unlimited resources and can probably indict a ham sandwich
After all testimony prosecutor tells the grand jurors potential charges def. could be indicted for  lesser included offenses
etc, all possible outcomes
Reapproval of indictment: At the end of week prosecutor comes back and gives them the indictment they voted for and
makes sure it is correct and grand jury has one more chance to change mind
Presiding judge disseminates cases amongst judges according to different calendar systems
Arraignment on felony charge must be within 2 days Riverside v. McLaughlin
Defense counsel will usually waive reading of indictment
Omnibus/Status hearing date is scheduled
o Defense counsel begins to perfect discovery motions, scientific evidence, govt produces witness
o Status hearing is the time to resolve legal issues ie suppression motions, motions in limine suggested instructions
o Plea discussion typically take place and may be required
Prelim hearing within 10 days if def. makes bail 20 days if not
Bail review hearing if def is still being held
o Danger to community
o Likelihood of flight
o Prior record
o Preventive detention should last only 90 days
o Most serious cases  Danger of witnesses
Plea bargains. Prosecutors often over charge in order to scare def. with jail time in order to obtain plea bargain.
o Overcharging is difficult to document or demonstrate
o 80-90% of cases are plea bargained
o Often done to obtain witnesses and informants and sentences are part of the discussion
o Some states allow for bargains but judge will always make the decision of the sentence since sentencing is a judicial
function of the court
o Sometimes judge will (coercively) tell def. that admission is the first step to rehabilitation
o Some (few) judges will not take a plea if they feel the def. is just saying what he has to say and has a legitimate
defense
o Some jurisdictions have parties submit a recommendation and trial judge is obligated to tell def whether he will
allow the bargain (if they allow and change their mind then guilty plea can typically be withdrawn)
Alfred Plea: Def. denies committing the offense but will agree that govt. has sufficient evidence to convict beyond a
reasonable doubt. Must admit that govt will convict and they are obtaining some benefit by pleading.
o Some prosecutors do not take Alfred pleas b/c of theory Judge may soften the sentence
Conviction or acquittal must be unanimous in federal system or it will be a hung jury which can be retried without double
jeapordy.
After conviction there is an intense study of the def. to determine appropriate sentencing
Sentencing within 6 weeks
Fed sentencing guidelines are not mandatory since 2005.
o Guidelines use a point system
o In state systems sentencing differs with some giving broad discretion to trial judges
On sentencing date def. is advised that they have 10 days to appeal. No appeal if guilty plea. In IA def has 60 days.
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Burden of Proof
Text of 4th A
Two Clauses
In re Winship (establishing reasonable doubt standard)
 Proof beyond a reasonable doubt is not in Const.
Sandoval & Victor (eliminating “moral certainty”
 State has burden to prove all elements of crime beyond
language from reasonable doubt instruction and adopting
reasonable doubt
“firmly convince” language)
 “Firmly convinced” and “abiding conviction” are the two
Mullaney (invalidating Maine’s statute that placed
most prevalent interpretations of the standard
burden on def to prove heat of passion)
Blakely v. Washington (cannot add to jury imposed
maximum penalty based off of a judicial finding)
FOURTH AMENDMENT
“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and
seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.”
1. Reasonableness Clause
 Even if no warrant is req’d searches/seizures must be reasonable
2. Warrants Clause
 must have probable cause to get a warrant
Court has read warrant clause to be predominant. Searches and seizures are presumed to be unreasonable unless carried out
pursuant to warrant.
Exceptions: if exception applicable, only reasonableness clause must be satisfied
Remedial action available: the exclusionary rule  evidence seized as a result of an unconstitutional search is excluded
Reasonable
Expectation of
Privacy
Consequence of finding a 4th A search/seizure is govt must act reasonably whereas consequence of not finding one is
govt can act unreasonably. If 4th A is not implicated no suspicion reasonable or otherwise is req’d. Govt can do
whatever they want.
Katz v. United States (establishing reasonable expectation test)
Majority
 FBI conduct in placing bug on public phonebooth where def. conducted bookmaking business violates the reasonable
expectation of privacy test
 Def sought to exclude the intruding ear and it doesn’t matter if he was visible in the booth—violation if it interferes with
person’s reasonable expectation of privacy
Concurrence (Harlan) (Controlling)
(1) Has the individual “exhibited an actual (subjective) expectation of privacy”
(2) Is society prepared to recognize that this expectation is (objectively) reasonable.
This test was later adopted by the majority in Smith v. Maryland.
Rakas v. Illinois (objectively reasonable prong must have source outside 4th Amendment, i.e. property rights, understandings
permitted by society)
Reasonable Expectation Test
(1) Subjective, Actual Expectation
 Must be an objective manifestation of subjective expectation
 Actual steps taken by def. that demonstrate an expectation
(2) Is society willing to recognize it as Objectively Reasonable?
 Look at both the place in general and the particular place specifically under the circumstances
o Nature of the property—intimate activities there?
o Extent of measures taken by ∆
o Degree of intrusion—could it reveal intimate info?
 Cardinal Principle from Katz: searches conducted outside the judicial process (warrantless searches) are per se
unreasonable
 4th amendment protects people not places; anything a person knowingly exposes to the public, even in his own home or
office, is not a subject of 4th amendment protection; BUT what one seeks to preserve as private even in public areas may be
constitutionally protected. Dunn
 4th applies not only to seizure of tangible items, but also extends to recording of oral statements overheard without any
technical trespass  words are effects, intrusion can exist absent physical breach
 In application consider both of the prongs but there will be an interplay between them sometimes because society is willing
to accept something when/if someone takes objective steps towards privacy.
What society is prepared to recognize as reasonable:
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(1) Must have source outside of 4th that society is willing to recognize and accept (Rakas)
(2) References to concepts of real and personal property or to understandings recognized and permitted by society
(3) If general public has access, police should have access
Reasonable
Expectation of
Privacy Cases
Open Fields
Doctrine
Public Access
Doctrine and
Assumption of
Risk
Interests protected by 4th after Katz:
(1) freedom from physical disruption and inconvenience
(2) info that does not reveal illegality but may be embarrassing or personal
(3) interest in controlling and using property
However, no legitimate privacy interest in illegal activity
Katz v. United States (establishing reasonable expectation test)
Majority
 FBI conduct in placing bug on public phonebooth where def. conducted bookmaking business violates the reasonable
expectation of privacy test
 Def sought to exclude the intruding ear and it doesn’t matter if he was visible in the booth—violation if it interferes with
person’s reasonable expectation of privacy
Concurrence (Harlan) (Controlling)
(1) Has the individual “exhibited an actual (subjective) expectation of privacy”
(2) Is society prepared to recognize that this expectation is (objectively) reasonable.
This test was later adopted by the majority in Smith v. Maryland.
Rakas v. Illinois (objectively reasonable prong must have source outside 4th Amendment, i.e. property rights, understandings
permitted by society)
Oliver v. US (1984) Open Fields Doctrine
Result of Oliver v. United States:
Facts: Acting on a tip Police Officers drove onto
1. Field isn’t an effect.
defendant’s land, past his house, and walked nearly a mile 2. No legit. expectation of privacy: not a setting for those
passed a gate marked with a “no trespassing” sign. At
intimate activities that the 4th amendment is intended to
that distance from the house, the two officers spotted a
shelter from govt. They are usually visible to the police and
large marijuana crop on defendant's property.
public and can clearly be lawfully surveyed from the air.
3. No amt of subjective manifestation will make property
Holding
outside of curtilage private.
 An individual may not legitimately demand privacy
4. not generally true that fences and signs bar public from view
for activities conducted out of doors in fields, except
of field
in the area immediately surrounding the home.
5. only curtilage warrants protection
 Practical Considerations: open fields “usually are
6. curtilage defined by reference to factors that determine
accessible to the public,” and “no trespassing” signs
whether an individual may expect an area immediately
are generally ineffective at “bar[ring] the public from
adjacent to home will remain private
viewing open fields in rural areas,” and “the public
7. an “open field” need be neither open nor a field
and police lawfully may survey lands from the air.”
8. Police do not need suspicion to go into curtilage. So they can
go into curtilage observe intimate activities then go and get a
US v. Dunn
warrant.
Holding
9. Purpose for entry into curtilage will determine
 A barn located 60 yards from the farmhouse, which
reasonableness: Police can go into curtilage to sell you raffle
officers had to cross three fences to reach, is not
tickets, or inquire into a crime, but they must have a warrant
within the curtilage.
if they are investigating you.
Analysis
 4th A protects ppl not places. Protecting curtilage
4 Prong Dunn Curtilage Test
prevents ability to hear inside house
1. The proximinty of the area claimed to be curtilage
 House was enclosed by separate fence that did not
2. Whether the area is included within an enclosure surrounding
include barn.
home
 Objective data indicated barn was not being used for
3. The nature of the uses to which the area is put
intimate activities
4. The steps taken by the resident to protect the area from
 Defendant did little to protect barn from observation
observation by ppl passing by
from open fields
 *courts will differ on this one—furthest barn included
in curtilage will probably not exceed 300 yards. Most
j.d. including Iowa treat barns and other buildings as
having an expectation of privacy.
Public Access
Financial banking info
 Not protected from govt under 4th A disclosing to bank equates to disclosing to the public.
 Banks have reporting reqs w/out notice to acct holder
 No probable cause or warrant required
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Use of
Technology
Investigation
That Can Only
Reveal Illegality
Cordless phones: No expectation of privacy but statutorily protected.
Pen registers: records the phone numbers that you dial
 No legitimate interest in privacy
 Disclosure to third/private party phone co.  assumption of risk
 Patriot Act now applies pen register concept to e-mail and web sites; courts are finding that Internet providers are the
public so no legit. expectation of privacy
Pagers/Call ID
 Transmitting person has no expectation of privacy
 Receiver has statutory protection of electronically stored information w/out court order (typically req probable cause
unless it is terrorism)
Abandoned Property: Giving up control of the property with the intent of permanent dissociation
 No reasonable expectation of privacy
 When  throws a bag of drugs away in pursuit, abandoned b/c he disposed of them in a public area—if person dissociates
themselves there is no reasonable expectation of privacy because anyone in the public can inspect
 If nobody claims a bag in a bus sweep it is considered abandoned.
Trash
 No reasonable expectation of privacy in trash b/c trash left at the curbside is readily accessible to animals, children,
scavengers, snoops, and other members of the public, so that the owner can’t expect it to be private—Ca v. Greenwood
 What about garbage located next to your house? Some courts have adopted a bright line rule that you don’t have an
expectation of privacy. On the other hand, courts analyze both prongs ie opaque bags, near house etc, public access
 No reasonable expectation of privacy in shredded material
Public Areas: depends whether your actions are visible to public (view through bathroom stall to view illegal activity—had
no reasonable expectation of privacy)
 homeless persons on public property have a reasonable expectation of privacy in their possessions
 homeless persons on private property don’t when they are there w/o the landowner’s consent
Kyllo v. US (2001)
Tech Test
Facts: heat from indoor weed factory is observed by
1. Whether the tech is reasonable available and know to the
police using thermal imager
public (Dow Chemical)
Holding: use of thermal imager on home is a 4th A search 2. Whether the tech is in general use (Kyllo)
Analysis
3. If so def assumed the risk
 Heat is emanating from home is not the same type of
Thermal Detection Devices
public access b/c there is no abandonment. No
Viewed as a search; intrusive and people don’t assume risk of
conscious choice w/ intent dispossess.
this sort of technology; reveals much more than illegal conduct;
 The technology is not in general use (not routine)
home is significant. Kyllo
 Caveat: if the tech comes into general public use then
this holding must be reevaluated
Beeper Test
Ordinary v. Possible Access  Possible access rejected
1. Installation
and routine/ordinary access is adopted.
Govt must have lawful access to place where beeper is
installed. Public access theory allows attachment to exterior
TX v. Brown (use of flashlight to illuminate dark car does
of car but not interior. Public access theory allows
not violate 4th A)
attachment in driveway but warrant needed to enter garage.
2.
Monitoring
US v. Knotts (monitoring of a beeper does not violate the
Monitoring can only occur while beeper is in plain view or
4th A)
public place. Monitoring cannot continue in home.
Public/police can visually observe in a public place so this
US v. Karo (1984)
just augments the natural senses.
Bugged drums of ether location could be monitored
until they went into the home. Monitoring in home is
Binoculars: viewing inside the home from outside the cartilage
an unreasonable 4th A search. Once it comes back out
is okay
they can track it again.
However, the affidavit which led to the issuance of the
arrest had enough evidence not obtained through use of
the beeper (such as the smell of ether and visual tracking
of the cans of ether in automobiles) so the arrest warrant
was valid.
Il v. Cabelles (drug-dog at routine traffic stop does not
Jacobsen Test
constitute a search)
1) Are police lawfully in position to make observation?
a. Public or legal access.
US v. Place
2) Does it reveal any more than the criminal activity?
a. Consider quality of intrusion
 Dog sniffs with no cause whatsoever are allowed 
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will not be a search
 Sniff wasn’t a search but it was a seizure b/c held
suitcase for 90 minutes; exercise of dominion and
control over suitcase was unreasonable
US v. Jacobsen (1984)
Facts: While examining damaged package employees of
freight carrier observed white powder in a bag in a tube.
They put it the bag back in the tube, and the tube back in
the box and notified the DEA. DEA agent took it back
out and did a field test revealing it was cocaine and
obtained a warrant to search the destination.
Holding: Field test was not a 4th A search.
Analysis
 (1) Govt must have lawful access (2) Conduct must be
capable of revealing only illegality
 Private party searches do not implicate 4th A b/c it only
governs govt activity  Govt is entitled to replicate
intrusion made by private party
 Additional testing not significant enough of a seizure to
implicate 4th A
Skinner v. Railway Labor Executives Assn (1989)
(Urinalysis is a search due to intrusiveness however
random testing of govt employees in safety sensitive
positions is permitted)
U.S. v. Lyons (dog ripping open a package is not a search
but a natural occurrence that cannot be attributed to the
police)
Plain View
doctrine
Assumption of
Risk
Transportation
Searches
Third-Party
Activity
 If it threatens to uncover innocent activity, it is considered a
search b/c it violates a 4th amendment privacy interest
 An investigate activity isn’t a search if it can only reveal
illegal activity b/c no expectation of privacy in illegal
activities
Canine Sniffs
 K9 sniff of closed luggage NOT search; doesn’t require
opening of luggage and only detects drugs
 Gov. must have lawful access to the item that the dog
sniffs
 An invasion will be found if the dog touches a person b/c then
it is a search; court will view sniff of person as a Terry stop
so need reasonable suspicion to do that
 Issues with dogs: hypersensivity of dogs; 30% error rate
 When dog alerts, info. is brought to a magistrate to get a
warrant
Field Testing for Drugs
 Test that merely discloses whether or not a particular matter
is contraband (drugs) don’t interfere with privacy interest.
No privacy interest in contraband. Jacobsen
 Non-search if chemical is handed over by third party—
because this is lawful access
 Destruction of a small amount of drug is a reasonable seizure.
Drug Testing
Testing of urine is a search b/c it may reveal innocent secret
info (pregnancy, diseases). Skinner
Ill. v. Caballes (drug dog during traffic not a search
provided the stop is and duration is not unreasonable.
Dow Chemical v. US
If subject to public scrutiny by society then no expectation
Holding: Permits aerial photos using $24,000 map
of privacy
making camera.
 Aerial Surveillance
If the technology is so sophisticated that it is not
 Plain view doctrine: objects on private property that can
generally available to the public or so intrusive that it
be seen from public places that are observed by the police
cannot be justified it will not be permitted.
doesn’t constitute a search; mere fact that one has restricted
Dow Factors
view of activities doesn’t preclude officer from observing
1. Cost
from public vantage point where he has a right to be.
2. availability
 No reasonable expectation of privacy from aerial
3. public use
surveillance
4. knowledge of use
In some situations there is a reasonable expectation or
5. intrusiveness (have intimate activities been observed?)
privacy; burden is on the defendant:
6. sophistication
1. to show that public does not have legal access (possible
Ca. v. Ciraolo (fly over at FAA level despite fences to
access)
prevent “plain view” of marijuana fields not a search)
2. show it sufficiently uncommon for public to use such
Florida v. Riley (helicopter fly over below FAA level
methods
does not constitute a search. Safety regulations do not
3. show access only possible, not ordinary (if public ordinarily
determine reasonableness of expectation.
had access, no search)
US v. White (assumption of risk)
Drug case involving wired informant. No expectation of privacy that unprotected conversations in home will not be
recorded. Informant was an invitee so no govt. intrusion.
Bond v. U.S (act of squeezing the luggage was an unreasonable search. Passenger only expects casual touching and not
exploratory touching.)
Investigative activity voluntarily conducted by private citizens isn’t within the 4th amendment.
If the private party is acting as an agent of the state 4th A is implicated.
Two Part Test
1. Primary Purpose: Is it to assist the govt or a private employer.
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Private emplyr has legit purpose in not assisting illegal activity so mere training of fed ex and hotel
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employees is not enough
Did the private person believe at the time of the search or seizure that her action had been explicitly or implicitly
requested or required by police or other govt. acgents, who had reason to know actions might give rise to belief
that such belief existed.
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Also framed as did the government instigate/encourage/participate/consent/acquiesce
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Rewards typically amt to instigation
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Reasonably foreseeable analysis is rarely used
Former informants: not a govt agent based on past payment or leniency when they voluntarily offer new info with
expectation of similar compensation b/c the govt did not encourage it
O’Connor v. Ortega:
Public School
Students have a minimal privacy expectation in school. Gov.
Plurality (O’Connor):
only needs reasonable suspicion to invade that privacy, no
 Govt employees have a diminished expectation of
warrant req’d.
privacy. 1. reasonable suspicion of illegal activity or
 Student safety is important in educational environment.
work related misconduct; 2. or work related reason
Must limit student access to contraban .
for access
 Balancing test: nature of expectation of privacy v. need
 Balance between 4th Am. rights and other governmental
of govt to make the intrusion
interests
Scalia: If private emplyr could search then govt. can do
 Most of these cases involve school officials acting alone
the same no broader privacy right for govt. emplyees.
(not in concert with law enforcement)
N.J. v. TLO (limited school search justified absent prob
cause if there is reason to believe it will uncover
Prison Searches: No justification req’d
evidence. Use Camara balancing test)
Bell (prisoners have virtually no expectation of privacy)
Reasonableness Clause and the Warrant Clause
Interpretations
(1) Warrant Clause Predominates: Johnson (Technically still the language of the court)
 Katz Cardinal Principle: Warrantless searches are per se unreasonable and forbidden except for in the case of a well
delineated exception.
 Puts neutral magistrate btw govt and citizen
 Reasonableness approach renders warrant clause inapplicable and puts discretion in hands of police since they would
only need a warrant when it is found after the fact to be unreasonable
2.
Public schools
Public
Employees and
Prisons
The Warrant
Clause
(2) Reasonableness Clause Predominates: Oconnor, Scalia (In reality this approach prevails)
 All reasonable warrantless searches are permitted under the 4th
 Reasonableness clause has meaning independent of warrant clause
 Exclusionary rule gives officers incentive to get a warrant
 Scalia: all the warrant clause does is require probable cause if you want a warrant
(3) Reasonableness Approach Limits Warrant Clause
 You need probable clause and it still must be reasonable
 Sets standards as to how and when warrants can be issued
 ie never reasonable to extract a bullet from somebody as evidence even if there is probable cause Wilson v. Lee
Probable Cause to Search must be:
1. seizable item (connected with criminal activity) on premises
2. probability item is on premises
Probable Cause to Arrest must be:
1. believe crime has been committed
2. believe person that you are about to arrest committed crime
Pre-eminence of
Warrant
Constitutional Prereq’s
 Time and place restrictions
Reasonable officer standard: Trustworthy evidence that would make a reasonable person think it more likely than not
the proposed arrest or search is justified
Johnson v. US (1948) (warrantless search of hotel
Pre-eminence
room cannot be justified absent exigent
 The warrant clause is pre-eminent, the only way for a
circumstances)
reasonable intrusion is with a warrant or an exception
 Cannot justify a search incident to an arrest when the  There are currently 29 exceptions
arrest follows the search  no basis to arrest until after  The purpose of the reasonableness clause is to limit the
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The Magistrate
search
 Police had sufficient info (smell of opium) to obtain
warrant
 Determination of when the right of privacy must
reasonably yield to the right of search should be
made by neutral magistrate not a police officer in
the competitive business of ferreting out crime
Shadwick v. City of Tampa (No legal training req’d
provided they have the capacity to determine probable
cause)
Fed Rule of Crim Pro 41: Fed Magistrates and State
Judges must sign warrants.
Probable Cause
warrant clause. Thus the exceptions have to fit within the
reasonableness clause.
Scalia thinks the reasonableness clause should predominate.
This results in inconsistent applications between the j.d.
Magistrate
 Must be neutral and detached
o Excludes members of prosecution, police, AGs office
 No legal training req’d. Shadwick v. City of Tampa
o Burden is on def. to show they do not have the capacity
to determine probable cause
o Limitations on magistrates are statutory not const’l
*In IA magistrates are elected and do not have to have
legal training
Factors Magistrate Considers
 Totality of the Circumstances  Probable Cause (Gates v.
IL)
 Credibility of officer  Officers are presumed reliable due to
official position
 Magistrate must determine if officer is credible and these
facts exist is there probable cause
 Can consider all evidence including inadmissible evidence
 Is there sufficient evidence to provide a substantial basis for
magistrates determination (very deferential) (Gates v. IL)
Do the totality of the circumstances provide a fair probability that this person has committed the crime. (Gates v. IL)
Aguilar-Spinelli test
1. Veracity/Reliability: The magistrate must be informed of the reasons to support the conclusion that such an informant is
reliable and credible.
 past record of reliability
 detail
 corroboration
2. Basis of knowledge: The magistrate must be informed of some of the underlying circumstances relied on by the person
providing the information
 How did they come across the info.
 first hand knowledge
 corroboration
Factors in Gates Totality of the Circumstance Test
1. Aguilar-Spinelli Test
 Reliability
 Underlying facts providing basis of informant knowledge
2. Corroboration (including innocent activity)
3. statements against interest
4. reputation
5. self-authenticating detail
6. predictive info








Other Factors to Consider in Prob Cause Determination
Distance
Time of day
Number of descriptions in area
Neighborhood
High crime area
Crime Stats
Suspect conduct ie flight, nervousness, physical cues
Prior criminal record
8
Confidential
Informants
Brinegar v. US (applying reasonable prudent officer in light of experience and training standard to probable cause
determination. Warrantless searches must be reasonable)
Whren v. US (subjective intentions of officer do not play a role in p/c analysis so long as a reasonable basis exists for his
actions)
Aguilar v. TX (laying out the test)
Spinelli v US (adopting test in Aguilar)
Facts: CI tells officers Spinelli runs illegal gambling op from two specific phones. Officers follow Spinelli at the time of
day consistent with the numbers operation see him go into a specific apartment and found that the two telephone numbers
were listed to that specific apartments. Left the apt at time of day consistent with gambling op Officer said CI is reliable.
Holding: Ct said this was insufficient to justify a warrant.
 No effort made to demonstrate reliability of informant
 No showing have how info was received
 No showing of first-hand knowledge
 Lack of detail
Draper v. US
Holding
Police corroboration of suspect getting off the train in clothing that was predicted by informant was clearly sufficient to
justify warrantless arrest
Factors
 Minute detail predicting future conduct is self-authenticating
 assumption that when informant is reliable on innocent information, he will also be reliable on crime
Il v. Gates
Facts
Anonymous letter: wife drives to fl, leaves car and flies back, car gets loaded w/ dugs, husband drives it back. Wife will go
on May 3. $100 k worth of drugs in basement.
Holding
(1) rejects the Aguilar-Spinelli test and adopts the totality of the circumstances test
(2) Probable cause existed for a warrant
Other
Informants
Collective
Knowledge
Mistaken
Officer
Mass v. Upton (1984)
Facts: Anonymous caller w/ info re burglary admits to being suspects girlfriend. States location of unrecovered burgled
items, described motor home, knew about govt raid on suspect within last three hours, states motor home will be moved
soon. Wants to burn him.
Holding: Such facts sufficient to show probable cause for a warrant.
Citizen Informants
 Presumed reliable b/c they have no self-interest, motivated by a concern for society
 Self-interested motive can add to credibility (Mass v. Upton)
 Always have probably cause to arrest when identifiers testimony alone is enough to convict
o i.e. victim testimony is enough to convict
Accomplice Informants
 Confession of accomplice is automatic p/c
 Declaration against interest makes them reliable
Allows officer B to make an arrest based on Officer A’s determination of p/c. Whiteley v. Warden (1971)
Devenpeck v. Alford (2004) (Arrest valid when there is
objective basis to find p/c for some crime different from
what the officer arrests for. Officers subjective state of
mind is irrelevant.)
Multiple
Defendants in
Car
MD v. Pringle (If car is pulled over and illegality is
discovered there is p/c to arrest anyone in the car)
US v. Di Re (when the informant points out one suspect
in the car only p/c to arrest that one pointed out)
Stale Info
Factors to Consider
Mistaken Identity of Arrestee
 If p/c existed, arrest is valid even if the wrong person is
arrested and found w/ contraband.
 When police make a mistake of fact the ct will validate the
search if there was a fair probability of criminality.
 When police make a mistake of law the search/arrest is
invalid.
P/C Determination for Multiple Suspects in Car
 Particularized inquiry (Carrol v. US)
 Common criminal enterprise (MD v. Pringle)
 Access to contraband (MD v. Pringle)
9







Things and
Places Subject to
Seizure
Reqs of Search
Warrant
Mere Evidence
Rule
Third
Parties/NonSuspects
Maturity of Info/Passage of time
Character of item ie drugs v. porn
Ease of disposal ie quantity to be disposed
Nature and function of premises to be searched
Habits of accused
Single or re-occurring event
Ongoing criminal activity
US v. Harris (p/c exists for a warrant where informant having purchased illegal liquor from suspect in past two weeks and
illegal liquor activity has been occurring for 2 years)
Probable Cause, Specificity and Reasonableness
(1) Things subject to seizure
 Fruits and instrumentalities as well as
 Any contraband  no lawful right to possess
 Stolen goods  govt has superior right once it is demonstrated def has no greater privacy interest than he would in
contraband
 Mere evidence
(2) Places subject to seizure
 Critical Element: probale cause to believe specific item to be searched for and seized is located on property to which
entry is sought
 Warrant must particularly describe and show probable cause to intrude on particular location
 No first hand knowledge required of where the seizable items are kept
 Cts permit reasonable inferences as to where ppl keep property
 Most j.d. allow one warrant for multiple locations (balance in favor of police obtaining evidence over privacy in
situations of crime)
 Lawler: Must be a link btw street drug activity and home in order to get warrant to search home.
 Most courts allow normal inference that drugs, records, and paraphernalia are kept at home.
 Differentiate btw dealers and users. Probably insufficient to search home of user where drugs are found in car.
*Note: Magistrate should typically incorporate warrant to ensure specificity
1. Probable Cause
a. Prob cause to believe there is seizable property
b. Prob cause as to location of the property
2. Property must be described with specificity
3. Must define location to be searched with specificity
4. Balancing state interest v. privacy interest of individual
5. Would a trained investigator reasonably believe that the items are important to the investigation (Andresen)
6. Minimization of the intrusion (Andresen)
Warden v. Hayden (clothing of man suspected of robbery Mere evidence rule : Warden v. Hayden (1967)
was properly seized b/c it matched description provided
 Must be of value in assisting of apprehension and
police and could be used to convict. *warrantless search)
conviction of the suspect
 Must be a nexus btw the item seized and
apprehension/conviction
Searches of Non-Suspects’ Premises
 Not viewed any differently b/c nothing in 4th A distinguishes btw suspect’s and non-suspects’ premises
 Only probable cause is relevant. State has the same interest in the item searched for regardless of who is in possession.
 A valid warrant may be issued to search any property, whether or not occupied by a third party, at which there
is p/c to believe that fruits, instrumentalities, or evidence of a crime will be found. Non-criminals and criminals
have the same privacy interests.
 Police have no obligation to use the least intrusive method of searching
 Reasonableness Analysis
o 3rd party may destroy property
o 3rd party may turn out to be involved in criminality
o magistrates will protect against unreasonable searches that will endanger the freedom of the press, protection of
reporter notes, informants.
 Statutes in place to protect certain relationships:
 Law Office Searches: statute often looks like this—unreasonable to search even with a warrant unless
attorney is a suspect and/or attorney may destroy evidence
 In 1980 congress passed Privacy Protection Act, a statute requiring govt. to use subpoena duces tecum to
search press locations. Willing to risk loss of evidence.
10
Specificity and
Reasonable
Particularity
Anticipatory
Warrants
Breadth and
Scope
o Almost no info req’d to get subpoena duces tecum
 Req’s you to appear with the doc. in order to contest it.
 Little protection for the individual.
Zurcher v. Stanford Daily (warrant issued to search press location believed to have pictures of suspects involved in a riot did
not violate the 4th A or the 1st A)
Warrant Execution
MD v. Garrison
Parts of a warrant
Holding
 Affadavit in Support
 Where info known to the police would not allow them
 Warrant signed by magistrate listing places to be searched
to determine whether location to be searched was one
and things to be seized  will typically incorporate
apt or two, search of wrong persons apt that yields
affadavit
contraband does not violate 4th A)
 Similar to a mistake of fact for an arrest and does not
Specificity
change the right of the police to be there.
 Specificity in 4th A limits scope, discretion, and intensity of
govt intrusion.
Andresen v. Maryland
 Sliding scale of specificity depending on area and
Facts: Suspect engaged in fraudulent property deal.
circumstances that is judged on the basis of the information
Warrant with catch-all provision. Each thing can be
that the officers know or should have known. Garrison
seized “together with other fruits, instrumentalities and
1. Have they taken reasonable efforts to find info?
evidence of crime at this time unknown.”
a. nature of the place to be searched, info that an
Holding: Ct finds this to be valid b/c catch all is read to
officer could reasonably obtain prior to a warrant
be limited to information related to the suspected crime.
being issued
FN: Imposes a minimization requirement on the govt.
2. Was the warrant executed properly?
regarding privacy intrusion
a. i.e. if address does not match description can search

Documents should be read by an officer
house next door if description matches and police
trained for and familiar with investigation
are reasonably certain it is the location meant to be
searched ie neighbor indicates it is the location

Officer is supposed to stop reading the
b. multiple dwelling case: fine so long as officer
document upon realization that it is not
believes there is p/c for each location ie suspects
seizable.
have access to entire structure.

If officer finds info about other frauds they
can seize it under mere evidence rule and
Catch-all provisions: most appropriate in drug cases where
they do not really need a catch-all clause.
paraphernalia is unknown. Much less appropriate in Andresen.
Lo-Ji Sales Inv. v. NY
Severability: if the court determine a catch-all phrase to be
Holding
overbroad, this doesn’t taint the entire warrant; broad portion
(1) magistrate or justice cannot accompany police in
redacted and that evidence is excluded while the evidence that
executing warrant w/ out losing neutral detached status
is properly seized is admitted.
(2) a warrant that simply authorizes seizure of “other
things that violate the law” is overly broad
Computers: Test for whether the whole computer can be
N.Y. v. P.J. Video (magistrate does not need to view porn seized: Does the fraud broadly infect the person business life. If
so the whole computer can be seized.
to determine that there is prob. cause to search video
store. Officer must screen material and magistrate can
Sneak and peek warrants: generally prohibited unless delay
take officers word for it. 1st A does not req a higher
of notice to owner of premises is authorized by statute (like
standard on warrants for mediums of speech)
PATRIOT ACT)
US v. Grubbs
 warrant conditioned on future events
A/W anlasysis
 to be valid must set forth explicit conditions to limit
 is there probable cause trigger event will occur
discretion of officers in determining whether triggering event
 will there be probable cause for search subsequent to
has occurred; if condition occurs, p/c present
trigger condition
 IA has rejected anticipatory warrant analysis
 does not req that officer observe the triggering event
Hypo: govt. intercepts contraband in mail. They get an
anticipatory warrant since they believe p/c will exist upon
 does not req that triggering condition be listed in the
controlled delivery. They then dress up as a mail guy and
warrant
deliver the package. Put a beeper so they know when package
 Prior to Grubbs all circuits req’d officers to list the
is opened. Wait 15 to 30 mins for him to call police the execute
triggering conditions and most still do.
warrant. Valid anticipatory warrant.
 Warrant to search “premises” covers detached house, detached buildings, and everything in curtilage (unless police know
someone else is renting it)
 Car (Split Authority): Some jds allow search if object of search may reasonably be located in the vehicle. Some restrict if
car is visiting
11
People on the
Premises to be
Searched
Knock and
Announce
 officers can’t remain on premises once the search is done and must avoid unnecessary damage to premises
 Officer must refrain from excessive searches like photographing woman with newborn in the middle of the night to prove
that a nurse is practicing without a license
Ybarra v. Il (Warrant to search a public place like bar
People on scene:
does not amount to a right to search each individual. Not
Depends on the situation, BUT
allowed to search or even frisk patron in bar when search
1. most courts won’t allow search under warrant itself b/c
warrant is for bartender)
designed for property (can detain them)
2. search if probable cause to believe items are on person
3. probable cause if person is attempting to leave scene and
Rawlings v. Kentucky
items sought could easily be carried away
 Applies Ybarra in private premises
4. Terry frisk if reason to believe person is dangerous
 Terry frisk: Not allowed unless reasonable suspicion
5. But cannot search someone just because they are on scene
that ppl on premises are armed. Must have objective
Ybarra v. Illinois
basis they are armed.
6. Property of guest (Split authority):
 can be searched if object sought can reasonably be
Clenched Fist Case (lady on premises refuses to open
located therein
her hand. Officers pry it open. Ct held this to be a valid
terry frisk. Could have been a razor blade)
 can be searched if in plain view and not in physical
possession of person
 physical possession reduces probable cause
 property of occupant can be searched but not
property of a casual visitor
7. Once the evidence is found the cts are reluctant to exclude
it  Typically will defer to safety concerns of officer
Must knock and announce that he is a cop with warrant
(1) protect privacy
(2) safety of officers and citizens on scene
(3) protection of property
Constitutional Issues
Not a constitutional requirement per se but part of reasonableness prong of 4th. However, Statutory Req under fed law.
EXIGENCY EXCEPTIONS
(1) Emergency/Exigency: disposal of evidence, destruction of property
 Must have specific indications: flushing toilet or running water, officer knows of possession of easily disposable drugs
in easily disposable amounts, informant tells them drugs kept next to toilet
(2) safety of officers and others
 Substantial degree: Drugs and guns presumption insufficient. Must be reasonable suspicion that announcing presence
would be dangerous or futile
 Propensity for violence, armed, threats?
(3) hot pursuit
(4) danger of escape or frustration of arrest
 ie cannot cover all escape routes
OTHER EXCEPTIONS
(1) no breaking; residence already open useless gesture-suspect knows police are there
(2) trickery: allowed to gain access through trickery and then announce. Meets destruction of property and safety concerns.
Knock and
Announce Cases
Application
 Part of the reasonableness clause. Do balancing. Does government interest (ie war on drugs) outweigh privacy
interest. On some occasions it will.
 officer may break open premises if announced and refused admission (this includes a no answer on the premises-which
allows the officer to infer a refusal of entry)
o 10 seconds is approximate time to wait to bust in (5 was too few); BUT 6:00 a.m. knock and 10 seconds may be
unreasonable
o can get permission from judge ahead of time not to knock.
Wilson v. Ark. (unannounced forcible entry will be so disruptive to inhabitants that it will be unreasonable) (factor in
determining reasonableness)
US v. Remigio; US v. Mendoza (Knock announce not required when there is no breaking)
Contreras-Ceballos; US v. Alejanadro (use of trickery to invalidate knock & announce req valid)

Reasonableness probably will never req officer to inform magistrate of trickery
Hudson v. Michigan
 Exclusionary rule does not apply to failure to knock and announce
12
Private Parties
and Search
Warrants
Warrantless
Searches
Warrantless
Public Arrests
 May provide basis of civil rights action under sec 1983
 Exclusionary rule is aimed at protecting privacy  Knock and announce has less to do with privacy since 15 to 20 secs
of privacy are at stake
 Social cost of exclusion of evidence is to high
US v. Bach (8th Cir. 2002) (yahoo techs can help retrieve
Citizen Assistance
child porn)
 No private parties in execution of warrant unless they serve
Bellville v. Town of Northboro (1st Cir. 2004) (citizen
a law enforcement purpose
assistance in identifying stolen merchandise is ok)
 officers can seek voluntary assistance of private citizens for
Wilson v. Lane (media ride alongs violate the 4th A)
efficiency; must be there to aid officers and not for own
private purposes
o Iowa: I.C.A. 804.10: assumes officers have authority to
request assistance of third party in making arrest
 Remedy is not exclusion but a civil suit. Officers have
qualified immunity and will not be liable unless they violate
a clearly established const’l principle
Media Ride Alongs
 No private parties unless they serve a law enforcement
purpose
Arrest  Search incident to arrest permitted
Seizure of encounter  terry frisk permitted if reason to believe suspect is armed
ARRESTS
*Note: When a superior societal interest is satisfied by not
US v. Watson
Bright Line Rule: Public arrests w/out a warrant are
demanding a warrant the court looks to the reasonableness
always reasonable and are per se constitutional when
clause  Safety, children education process
there is p/c to believe suspect has committed a felony
Warrantless Public Arrests
 History
Can always be made where there is p/c to believe a felony has
 Leg./Cong. Approval
been committed or that a misdemeanor has been committed in
 Efficiency: Too much litigation
the officers presence.
*IA allows arrests for traffic violations
Atwater v. City of Lago Vista
Times when should/good to get a warrant:
Arrest for seat-belt violation.
 probable cause borderline—just get warrant to be safe
Bright Line Rule
 danger of person fleeing—get warrant so if they flee system
warrantless public arrests where there is p/c to believe
will pick them up
suspect has committed misdemeanor in officers presence
 trouble finding someone, put into NCIS system and they will
are per se const’l
pop up
Brown v. TX (Cannot be arrested for failing to give name
 provides expanded search because if go and execute warrant
during encounter)
will be allowed to get anything in “plain view”
Hiibel v. Nevada
Facts: Man suspected of domestic violence refused to
give officer his name so they could determine if there was
a restraining order.
Holding: may be arrested for refusing to give name when
officer has reasonable suspicion to seize person)
Deadly Force
and High Speed
Chases
Tennessee v. Garner (balancing test: injury to person or
death v. danger to society)
Graham v. Connor (U.S. 1989) (all claims of excessive
force in making arrest (whether deadly or not) are
governed by 4th Amendment standards of
reasonableness)
Standards for Warrantless Arrests: arrest warrants are only
required when police enter a private home to make an arrest and
there are no exigent circumstances present—therefore no arrest
warrant needed when…
 Exigent circumstances exist (can even enter third parties
home) if there is danger of destruction of evidence or there
is hot pursuit of suspect
 suspect is violent and may cause injury to himself or others
or damage to property unless immediately arrested
 Public Felony Arrests
 Warrantless arrests for any misdemeanor when crime takes
place in the officer’s presence Atwater v. City of Lago Vista
Deadly force: can only be used when necessary to prevent the
escape of a felon and the officer has p/c to believe that the
suspect poses a significant threat of death or serious physical
injury to the officer or others.
Did the police officer have enough info. to assume that their
was danger. Lots of leeway to officer.
*fact-specific inquiry under reasonableness clause: armed,
seriousness/violence of crime, evading arrest, confrontational
etc under
13
P/C Hearings for
Warrantless
Arrest
Gerstein v Pugh (accused is entitled to receive a prompt
probable cause hearing by a neutral and detached
magistrate)
Riverside v. McLaughlin (Const. reqs prob cause hearing
within 48 hrs) (rejects admin convenience arg.)
Arrests in the
Home
Payton v. NY (in order to enter a home to arrest an
individual, police must have a warrant unless exigent
circumstances are present)
United States v. Santana (suspected felon who stood
precisely in the threshold of her front door was subject to
warrantless arrest. She was in a “public place” for 4th A
purposes)
Arrest in Third
Party Residence
Arrest of a
Material
Witness
Encounter,
Seizure, or
*officers not required to use least intrusive degree of force—
inquiry is whether force used was reasonable viewing facts as
reasonable officer on scene
High Speed Chases: always allowed. Contrary position would
encourage flight and suspects would still pose a danger to
public.
Entitled to a probable cause hearing for all arrests without a
warrant as prompt as possible but within 48 hrs
 Gerstein hearing is equivelant to pre-arrest p/c hearing
 Very informal non-adversarial process
 Prosecutor reads police file then judge/magistrate agrees
there is probable cause and it is just a formality
 No right to counsel
 48 hrs does not make it per se reasonable however if w/in
48 hours, burden to prove delay is on def  almost
impossible to meet
 If beyond 48 hours, burden shifts to gov’t to show
extraordinary circumstances prevented prompt hearing
Prelim hearing is req’d in fed and most states
 Must explain why there is probable cause to continue to
hold you
 More adversarial but it typically is all hearsay from one
officer
 Minutes Jurisdictions: IA reqs prelim hearing unless
minutes of testimony are filed
 Fed System does not have minutes system
Warrant req’d for home arrests
 Magistrate does not need to have prob cause that person is
in the home
 Executing officer only needs reason to believe that suspect
is therein
o Majority View: reason to believe is more like
reasonable suspicion
o Minority View: more like probable cause
The Doorway
One View: standing in doorway amts to voluntary public
exposure and warrantless arrest is allowed. However, if door is
opened due to lawful assertion of authority then this is a private
arrest
 Some cts require you be on or over threshold to be in
public space
 Some cts allow pursuit in the home if suspect retreats from
the doorway
Second View: standing in doorway is private space
MN v. Carter (can arrest business visitor in third-party’s
Third Party Residence
home w/o A/W. A/W req’d for social visitor)
No A/W req’d for business visitors but req’d for social visitors
MN v. Olson (cannot arrest overnight guest in thirdor overnight guests.
party’s home w/out arrest warrant)
Factors
Steagald v. U.S. (A/W for suspect who is an overnight
 Commercial nature of transac
guest is insufficient to search the home of the third-party
 Time period on premises
absent consent or exigent circumstances)
o Meaningless w/ out context since overnight guest could
*note: if suspect is arrested he will not have standing to
have just arrived
challenge the arrest
 Connection to homeowner
Arrest of material witnesses: May arrest witness if p/c belief that testimony is material and may become impracticable to
secure his presence by subpoena.
SEIZURE OF PERSON
Encounters
 If an officer merely asks to speak with you it is not a seizure.
14
Arrest of Person
Stop and Frisk
 Voluntary encounters are not seizures
 Ct has held cannot draw negative inference from refusal to speak with them. Not a realistic assumption.
Seizure of person
 Req’s reasonable suspicion
 If they have reasonable suspicion to detain you they are entitled to your name and refusal can result in arrest Brown v. TX
 Traffic stops seizures DE v. Prouse
 During a p/c search officers are entitled to seize any people present
 Involuntary trip to the station is always a seizure even if told you are free to leave Hayes v. Fl
Arrest
 Req’s p/c
 Restriction of movt alone is not enough to constitute an arrest
 reason for movt of suspect part of analysis. If it is just to isolate and frighten this weighs in favor of arrest.
 Taking someone to scene of crime for eyewitness ID is not an arrest. No hard fast rule but 2 hrs is the outer limit.
Terry v. Ohio
Permissible Scope of the Stop/Seizure
Facts: police stopped and frisked Terry and others who
Two Part Inquiry
were casing a store
(1) Was it justified by reasonable suspicion of criminality.
Analysis: The court must balance the interest of the
 Specific, articulable facts that the suspect is engaging in
person to be free from intrusion against the State’s
criminal activity. Terry.
interest in prevention of crime and detention
(2) Scope of stop: was it reasonably related in scope to the
Holding: Societal interest in police safety outweighs
circumstances that justified the interference in the first place.
minimal intrusion of pat down.
Under Muehler v. Mena and Cabelles any action that in and of
Terry Frisk Test: (1) reasonable suspicion of
itself does not constitute a 4th A intrusion will not change the
criminality (2) If there are reasonable grounds to
character of the detention unless it prolongs it unnecessarily.
believe suspect is armed and dangerous officer must
(a) Quantitatively so intrusive w/ respect to freedom of
id himself and make a reasonable inquiry to dispel the
movement that it exceeds the permissible scope of Terry.
suspicion (3) reasonably prudent experienced be able
(i) Time: However long it reasonably takes to
to articulate objective factors leading to belief that the
conclude investigation permitted officers act
individual is armed (4) scope of search must be
diligently. Sharpe rejects a rigid approach but brevity
reasonable  limited to pat down of outer clothing for
will weigh heavily in favor of finding the stop
purpose of discovering a weapon
minimally intrusive.
(b) Qualitatively so intrusive w/ respect to freedom of
Penn. v. Mimms (1977) (police have automatic right
movement that it exceeds the permissible scope of Terry.
under Terry to order driver out of vehicle. Deminimus
Authority to Frisk:
intrusion of heavily regulated field. Frisk must be
(1) The Test
reasonably justified ie bulge, nervousness, or furtive
(a) Narrowly drawn authority to engage in reasonable search for
mvmt.)
weapons where officer has reasonable grounds to believe
Md. v. Wilson (1997) (police have automatic right under
suspect is armed and dangerous. (b) Would reasonably prudent
Terry to order passengers out of vehicle)
man in the circumstance believe there is a danger to himself or
Brendlin v. CA (traffic stop is a seizure of any passengers others? US v. Trullo
in the car)
(c) Did officer id himself and make reasonable inquiries. Terry.
US v. Trullo (frisk authorized in high crime area where
*this part not req’d under Adams v. Williams
there is suspicious activity and a bulge in the pocket.
(2) Application
Drugs and guns go hand in hand.)
(a) standard less onerous than reasonable suspicion Terry
MI v. Long (authorizing frisk of auto when officer has
(b) reasonable suspicion of violent offense weighs heavily in
reason to belief suspect is dangerous and may gain
favor of allowing frisk
immediate control of the weapon)
Scope of the Frisk: must be strictly tied and justified by to the
N.Y. v. Class – (authorized limited investigative entry
circumstances which rendered its initiation permissible.
into car during stop (can move papers off dash to check
Limited to a frisk for weapons. Not a general exploratory
VIN))
search for criminality.
AZ v. Johnson (upholding frisk of passenger upon
Officer may pat down outer clothing, must not put hands in
reasonable suspicion he is armed)
pockets unless he feels weapon. If he feels a weapon he can
MN v. Dickerson (during a lawful terry frisk the officer
only remove the weapon.
cannot manipulate an object once they realize it is not a
weapon. however if it is readily apparent that it is
Companion pat down rule
contraband they can seize it)
Majority View: if reasonable suspicion exists to pat down x,
AZ v. Hicks (p/c req’d for evidence search even if it is
officer may pat down y.
minimally invasive)
Hayes v. Fl (At some point scope of terry stop can
Show of force is permitted during Terry Stop: Officer can
become so intrusive that it req’s prob. cause. Transporting point guns, use handcuffs, and put you in squad car.
suspect to police station exceeds scope of Terry stop)
US v. Sharpe (20 minute delay does not exceed length of
Seizure of property: Property can be seized longer than ppl b/c
15
Reasonable
Suspicion
Reasonable
Suspicion and
Informants
Detention
during legal
search of home
terry stop where delay is attributable to suspect. Police
must pursue a means of investigation that is likely to
confirm or dispel their suspicions, during which time it is
necessary to detain the suspect) (rejects least intrusive
analysis)
US v. Place (90 minute delay to obtain drug dog exceeds
length of terry stop)
Il v. Cabelles (presence of drug dog does not increase the
intrusiveness of a terry stop)
Muehler v. Mena (asking questions re immigration status
unrelated to investigation does not change the character
of the detention where it does not prolong detention)
US v Montoyo DeHernandez (16 hr border delay is not
an unreasonable seizure and does not amt to an arrest
where suspect refuses X-Ray)
U.S. v. Cortez (quantum of suspicion test)
IL v. Wardlow (unprovoked flight alone is enough for
reasonable suspicion in a high crime area)
US v. Hensley (wanted poster sufficient to create
reasonable suspicion to pull over car and find gun poking
out from under the seat. Provides reasonable suspicion
suspect committed or is wanted for felony in the past.
Investigation does not have to be imminent or ongoing.
However issuing dept must demonstrate reasonable
suspicion for issuing the poster)
Sibron v. NY (bald suspicion and talking to drug addicts
in a high crime area alone are not enough to amt to
reasonable suspicion)
US v. Rhodes (drugs and guns go hand in hand)
US v. Arvizu (totality of the circumstances approach
permits consideration of otherwise innocent facts that
allow a trained and experienced officer to make
inferences that may elude an untrained person)
Ohio v. Robinette (Consensual encounter can occur after
stop has ended. no requirement that D be told he is free to
go. consent based on totality)
Fl. v. J.L. (cannot stop and frisk based solely on an
anonymous tip describing only publically knowable
details and innocent behavior which does not predict
future actions. Lacks moderate indicia of reliability)
Alabama v. White (reasonable suspicion can be based on
info less reliable than that which is req’s to establish
prob. cause. Predictive info is key. Here the informant
correctly predicted drug-toting suspect would go to
specific hotel)
Adams v. Williams (1972) – (Once probable cause
existed to arrest Williams for unlawful possession of
weapon, informant’s information was sufficiently
corroborated to justify search of vehicle for narcotics)
(personal knowledge of officer not req’d. Reasonable
suspicion analysis can consider hearsay)
US v. Heard (11th Cir 2004) (face to face anonymous tip
is more reliable and creates reasonable suspicion to
search for gun)
US v. Wheat (8th Cir 2001) (anonymous tip re reckless
driving is a per se showing of reasonable suspicion due to
danger posed to society)
Mich. v. Summers (officer w/ warrant may detain any
occupant of home even if they were leaving)
Muehler v. Mena (asking questions re immigration status
unrelated to investigation does not change the character
possessory interest is not as great as liberty interest. 24 hr is
probably the outer limit.
Standards for Reasonable Suspicion
(1) Is there objective evidence to believe individual is
committing, has committed, or is about to commit a crime.
Terry. Cannot be merely a vague, general, inchoate and
unparticularized hunch.
(2) Quantum of Suspicion Test: (i) Under the totality of the
circumstances (series of probabilities), is there a
particularized and objective basis for suspecting a (ii)
particular person of criminality. U.S. v. Cortez
(3) More than a hunch based on common sense judgements and
inferences about human behavior that cannot be reduced to
scientific certainty. IL v. Wardlow
Reasonable suspicion factors

Time of day

Appearance of suspect

Age of suspect

Nature of neighborhood (isolated?)

Nervous evasive behavior

Flight

Non-factor: Refusal to answer questions

Quality of information
When the informant’s tip is reliable enough to give rise to the
required reasonable suspicion is to be determined by the
“totality of the circumstances”
 Key: prediction of future events that someone w/out inside
info would be unlikely to know weighs heavity in the favor of
reasonable suspicion
 Corroboration: anonymous tip will be sufficiently reliable
to permit a stop only if the police have been able to verify
that the informant’s assertion that criminality is afoot is
reliable.
 No gun exception—(being told gun involved not enough
alone for r/s)—court has left open bomb exception, esp. in
airport or school
May detain occupants to prevent flight or destruction of
evidence. Less serious than street stop because detained in own
home
16
Free to Leave
Test
Hot Pursuit or
Show of Force
of the detention where it does not prolong detention)
US v. Mendenhall (Stop in airport when plain-clothes
officers ask for but do not demand ticket or ID, return the
immediately, do not obtain luggage, and ask suspect to
consent to search in office is not a seizure. Suspect was
free to leave)

Telling the suspect they are free to leave weighs
heavily in finding no seizure but not telling them
carries little weight.
Fl v. Royer (Seizure when officers kept his ticket and ID,
obtained his luggage without permission, took him to a
room, and got consent to search. 15 mins. State has
burden of proving consent to search was free and
voluntary.)
Fl v. Bostick (overturning Fl per se rule that consensual
searches of passengers on a bus are unreasonable.
Officers are free to ask consent if free to leave test is met)
U.S. v. Drayton (4th A does not require officers to advise
passengers of their right not to cooperate before engaging
in suspicionless bus searches provided free to leave test is
met)
INS v. Delgado (Workers not “seized” during factory
search for illegal aliens – even though agents at exits,
because workers had freedom of movement inside and
wouldn’t have been able to leave anyway)
MI v. Chesternut (backing up down a one-way to catch
up with suspect and requesting to ask a few questions is
not a seizure)
Kaupp v. Texas (involuntary transport to station is an
arrest)
Oregon v. Mathiason (parolee who voluntarily came to
police station and gave incriminating statements not
seized b/c he was free to leave)
Brower v. County of Inyo (blind road block might be an
unreasonable seizure if it was set up in a manner likely to
cause death)
Scott v. Harris (if a fleeing driver poses a danger to the
community a PIT maneuver that causes death is a
reasonable seizure)
California v. Hodari D. (hot pursuit is not a seizure.
therefore drugs “abandoned” during pursuit were not
suppressed. )
Free-to-Leave Test
Person has been “seized” only if, viewing totality of
circumstances, a reasonable (objective) innocent person
would have believed he was not free to leave. Mendenhall,
Bostick
Free to Leave Factors:
Use of force, threatening manner, intimidating movements,
brandishing weapons, blocking exits, threats, commands,
authoritative tone, # of officers, politeness, length of detainment
Wearing uniform, showing badge, holstered weapon makes
little difference in the analysis. Drayton.
*An unreasonable stop can be remedied by obtaining consent
Bus sweeps: would reasonable person feel it is an encounter not
a seizure. Would a reasonable person feel free to decline
officer’s request to frisk or search. Would reasonable person
feel free to terminate encounter? If so the police is free to ask
consent to search.
Hot Pursuit or Show of Force
High speed chase or show of force is not a seizure until the
suspect is physically captured. If suspect submits to police
authority it is a seizure.
*Important Note: If officers do not have reasonable suspicion
when the seizure occurs then evidence may be suppressible.
However, if they officers are engaging in a chase with not
reasonable suspicion and the suspect abandons the evidence
then it will not be suppressible b/c no unreasonable seizure has
occurred yet
7 Berry Profile characteristics
1. Arrival from or departure to an indentified source city
2. Carrying little or no luggage, or large quantities of empty
suitcases
3. Unusual itinerary, such as rapid turnaround time for a very
lengthy airline trip
4. Use of an alias
5. Carrying unusually large amts of currency on their person or
briefcase or bags
6. Purchasing airline tickets with small denomination currency
7. Unusual nervousness beyond that ordinarily exhibited by
passengers
Drug Courier
Profile
US v. Sokolow (rejects mechanical approach  fitting the
characteristics of a profile is not enough for reasonable
suspicion. Officer must articulate the factors leading to
the conclusion) (warrantless search upheld where
passenger, pays in cash, travels under an alias, seems
nervous, doesn’t check luggage, travels from a source
city)
US v. Berry (establishing 7 oft cited profile
characteristics)
Fl v. Royer
US v. Mendenhall
Consent
Search based on voluntary consent is always valid.
Voluntariness: was consent product of express or implied duress or coercion. Determined by totality.
Revocation: can only occur before evidence is found
Totality of circumstances test: 6 factors US v. Gonzalaz-Basulto vccaeb
(1) Voluntariness of D’s custodial status
17
(2)
(3)
(4)
(5)
(6)
Presence of coercive police procedures
The extent and level of D’s cooperation with the police
D’s awareness of his right to refuse consent
D’s education and intelligence, and
D’s belief that no evidence will be found
3rd party Consent
3rd with joint use of area can consent to search of Ds property
3rd party with joint use of area (like duffel bag) can consent to search as to suspect – allowing 3rd party use = assuming risk
(1) Actual authority – rests on mutual use of persons having joint access – any person can give consent
(2) Apparent authority – entry valid (even if no actual authority) if police had reasonable belief that 3rd party had
authority
Three Views on Apparent Authority
(1) Officer would never be justified in believing consenter had authority
(2) Officer can usually assume no authority, but additional information could demonstrate authority
(3) Officer could usually assume authority
Search Incident
to Arrest
Protective
Sweeps
Plain View
Doctrine
Exigent
Schneckloth v. Bustamonte (1973) (knowledge of right to refuse is one factor, but not a per se rule)
Frazier v Cupp (1969) (3rd party can consent to search of dufflebag used jointly)
U.S. v. Matlock (1974) (any person w/ joint access can give consent)
Rodriguez (third party consent of person w/ no joint access permissible when person has apparent authority)
Ga. v. Randolph (2006) (present occupants refusal prevails over consent of other party)
Fla. v. Jimeno (1991) (reasonableness determines scope. Consent to search car includes bag in car)
Arrest Searches
US v. Robinson (Bright line rule: suspicionless search
 Scope: search person and area within control of arrestee
of person allowed incident to arrest. more than a pat down  Traffic tickets rarely involve evidence so limited frisk for
b/c of extended exposure relative to Terry stop)
weapons is all that is needed to protect officer safety
Chimel v. CA (Bright line rule: Always allows full search  No necessity needed to justify
to find weapons or destruction of evidence in area of
 Once arrested no more expectation of privacy.
immediate control)
 The line is a cavity search. Not permitted for traffic offenses
Knowles v. IA (IA statute allowing full search incident to
unless there are additional fact that there is a weapon there. If
citation is impermissible)
so cavity search must be done in a medically accepted way
Thornton v. US (2003) (after warrantless p/c arrest
officers may search vehicle even though defendant has
exited the vehicle)
AZ v. Gant (overrules Belton adopts Scalia
concurrence in Thornton) (If suspect is in cuffs and in
back of squad car than search must be justified by risk to
safety or loss of evidence risk *Note: they are going to
impound and “inventory” vehicle anyway)
MD v. Buie (If def is arrested outside house when officers  Sweep that accompanies arrest in a home
execute arrest warrant they can search inside the house if
 Merely for protection and safety.
they believe somebody inside poses a danger. Guns can
 Cursory inspection of places where a person may be found.
pose a danger even though they are outside)
No longer than is necessary to dispel the reasonable suspicion
Vale v. LA (cannot sweep if parents are seen going into
of danger.
home b/c they are not confederates of criminal activity)
Test for Exigent Circumstances For Protective Sweep to
US v. Socey
Prevent Destruction of Evidence Socey
1. a reasonable (objective) belief that third persons were inside a
private dwelling
2. a reasonable belief that these third persons are aware of an
arrest of a confederate outside the premises so that they might
see a need to destroy evidence
**No justification to arrest them so holding them must be
framed as a Terry stop.
Horton v. Cal. (1990) (even if discovery was not
 Can seize things not named in the warrant if they are in
inadvertent, seizure of items in plain view in a person’s
“plain view”
home is permissible)
 Not free reign to seize anything; only those sufficiently
AZ v. Hicks (p/c req’d for evidence search even if it is
connected with criminal activity that a warrant could have
minimally invasive
been procured for them (contraband, drugs)
Warden v. Hayden (1967) (warrantless search during
Examples
18
Circumstances
(for arrest and
search)
“hot pursuit” to make warrantless p/c arrest is allowed
based on public safety/destruction of evidence)
Welsh v. Wisc. (1984) (no exigency to arrest suspect in
home for traffic offense where pursuit is not “hot”)
Mincey v. AZ (no exigent circumstance exception for
murder to justify 4-day search)
Ill. v. MacArthur (prohibit entry while warrant being
obtained: reasonable when (1) PC to believe contraband
in home and (2) good reason to fear that drugs would be
destroyed if allowed entry)
US v. Edwards (upholding search and seizure of
defendants clothes 6 hours after arrest in order to find
paint chip that are evidence of B&E)
Dorman v. US
MD v. Buie
Brigham City v. Stuart (SCT 2006) (police responding to
call re noisy party can enter under public safety exception
to make arrest upon seeing altercation through back door)
Automobile
Exception
Chambers v. Maroney (automobile taken to station house
and searched hours after arrest is impermissible)
Carroll v. United States; United States v. Di Re
(establishing exception but only applies upon showing of
exigency)
Auto exception
and
Movable
Containers
CA v. Acevedo (if p/c exists to search vehicle or container
exception applies)
U.S. v. Johns (delayed warrantless search of movable
container removed from car is permissible where there
was p/c in the first place)
Wyo. v. Houghton (no need for individualize pc to search
each passengers belongings under exception)
CA v. Carney (motor home subject to exception where its
readily movable)
US v. Forrest (applied to boats)
US v. Hill (applied to house boats)
US v. Nigro; US v. Montgomery (applied to airplanes)
PA v. Lebron (Mobility no longer basis of auto exception
it is now expectation of privacy)
Auto Exception
and Motor
Homes, Boats,
and Planes
Inventory
Searches
 Hot pursuit ie Case where hood of defendants car is still
warm considered hot pursuit
 Fleeing suspect/likely to flee suspect
 Movable Vehicle v. Permanent residence
 Threat of contraband/evidence being removed or destroyed
o (Drugs and gambling cases)
o Is quantity too large to be disposed of
 Danger to police (special circumstances needed)
 Danger to public or others (can enter home)
Test
Must have reasonably prompt pursuit and (1) threat of escape
(2) threat of injury (3) threat of destruction of evidence
6 Dorman Exigent Circumstances Factors
(1) the gravity or violent nature of the offense with which the
suspect is to be charged
(2) whether the suspect is “reasonably believed to be armed”
(3) “a clear showing of probable cause . . . to believe that the
suspect committed the crime”
(4)“Strong reason to believe that the suspect is in the premises
being entered”
(5) likelihood the suspect will escape if not swiftly apprehended
(6) peaceful circumstances of the entry
 Per se rule allowing an officer to search a vehicle without a
warrant as long as he has p/c to believe that evidence or
contraband is located in the vehicle.
 Justification: mobility + diminished expect. of privacy
 Auto must be in public
 Limited to places where evidence may reasonably be located
 cannot look for a stolen elephant in the trunk of a v/w bug
 Main difference from search of auto incident to arrest is
you can search the trunk if p/c to believe evidence is in the
trunk
 Delayed search of all containers in car
 Applies to delayed search of containers removed from car
where p/c existed to justify search of trunk in the first place
 Can search containers of all passengers
 Extend to luggage
Is it objectively situated to indicate use as a home instead of
vehicle.

Location

Mobility

Access to a public road

Hooked up to utilities?

Up on blocks? (if not then it is probably a vehicle)
Admin Procedures
S.D. v. Opperman (1976) (Warrantless, suspicionless
Seized cars can automatically be searched unless def is
inventory of a car reasonable because conducted as part
eligible for immediate jail house bond.
of standard police procedures (min. invasion))
(1) Protect owners property
Ill. v. Lafayette (1983) (Reasonable, good faith inventory (2) protect officers from false claims
search of suspect after arrest satisfies 4th Am. even if
(3) protect officer from danger.
courts could devise other reasonable alternatives)
Two requirements:
Colo. v. Bertine (1987)) (inventory search of backpack in 1. standardized procedures to limit discretion
van reasonable. However, without standardized
2. police have not acted in bad faith for sole purpose of finding
guidelines, searches could be pretexual)
evidence
U.S. v. Ramsey (1997) (warrantless border search w/ out
Majority View: Most courts say property booked at jail can be
p/c is reasonable)
searched
Fl. v. Wells (opening of locked suitcase not an inventory
1. Police have already seized and examined this evidence which
search and is impermissible)
diminishes expectation of privacy
19
Roadblocks and
Street Searches
Administrative
Searches of
Closely
Regulated
Industry
2. When it is search later there is no privacy or possessory
impact
Roadblocks: are allowed if . . .
1. checkpoint is in a reasonable place
2. there are adequate warning signs
3. Motorists minimally surprise
4. police are uniformed
5. standards are based on objective criteria
6. non-discretionary in execution
7. Location is not chosen by officer, but by higher officials
Davis v. MS (Cannot round up all the blacks in a 3 block
radius and take them to the station for fingerprinting.
Says that process of obtaining print is minimally intrusive
suggests they can be collected on the streets)
DE v. Prouse (random vehicle safety checks not
permitted. Traffic stop is a seizure per se so reasonable
suspicion is req’d)
Indianapolis v. Edmond (Suspicionless drug road blocks
impermissible where the primary purpose is general crime
control)
US v. Davis (Suspicionless road blocks permissible where
the primary purpose is traffic control)
US v. Martinez-Fuerte (1976) (Fixed checkpoints are
okay – minimally intrusive vs. state interest in
intercepting illegal immigrants)
MI v. Sitz (Temporary checkpoints for DUI permissible)
Ill. v. Lidster (2004) (temp checkpoint to request
assistance in solving a crime permissible)
(1) 4th Amendment governs administrative searches (like those by the Health Dep’t), but no individual P/C required
 Warrant is required by 4th A, but can be issued upon finding that search complies with reasonable administrative scheme
(Camara v. Mun. Ct.)
 Operator of commercial premises in “closely regulated” industry has reduced expectation of privacy; warrantless
inspection may be reasonable as long as:
(1) Must be closely regulate industry
a. Licensing, registration, record keeping, display of reg #, does failure to comply carry criminal president.
(2) substantial gov’t interest giving rise to inspection (must be a need separate from law enforcement)
(3) inspection must be necessary to further regulatory scheme, and
(4) statute’s inspection program must be applied consistently and provide a constitutionally adequate notice substitute
for a warrant.
 Req’s some legislative or administrative standard to justify inspection
Industries that can be searched randomly w/ out a warrant:
 Junkyards, taxidermists, truckers, rabbit farmers, cosmetologists, airports
Special Needs
Searches
Attenuation
Camara v. Mun. Ct. (4th Am bars prosecution of a person who has refused to permit a warrantless code-enforcement
inspection of his personal residence.)
NY v. Burger (SCT 1987) (NY statute, which allows officers to inspect automobile dismantling sites does not violate 4th
Am)
NJ v. TLO (Allows search of students purse based on
*Must have govt interest other than law enforcement
reasonable suspicion of violation of crim law or school
School Search
rules)
(1) reasonable suspicion (justified at its inception)
Bd of Ed v. Earls (drug testing of students in student
(2) reasonable in its scope (T.L.O.)
activities is permissible)
Drug testing students
Skinner v. RR Labor Exec Assoc (drug testing
(1) limited privacy interest in schools  even more limited
permissible for government employees in safety sensitive
when students engage in privacy reducing activities
positions where there is a documented drug problem and
(2) students already submit to vaccines and med exams
no indication that test is a pretext for law enforcement)
(3) minimally intrusive in closed stall, not reported to police
(4)minimal privacy interest outweighed by state interest in
National Treasury Employees Union v. Von Raab
(special need to make sure customs employees
education, discipline, health, and safety
responsible for drug interdiction were not on drugs
Drug testing of Public Employees
themselves)
(1) Public employees in safety sensitive positions is
Chandler v. Miller (suspicionless drug testing politicians
governed by 4th Am.  drug testing is a “search”
impermissible when only interest is appearance)
(2) gov’t interest presents special needs that outweighs
Ferguson v. Charlston (drug testing pregnant mothers
minimal privacy interest
impermissible despite benign motive where results would
(3) warrant not necessary if tests are neutrally administered
be given to police)
Border Searches: Permissible. Only cavity search reqs consent
Exceptions to the Exclusionary Rule
Hudson v. MI (2006) (exclusionary does not apply to
Theory: exclusion does not apply b/c evidence is not directly
knock and announce violation b/c deterrence benefits are
related to illegal government action. Look at deterrence. More
20
outweighed by substantial social costs)
U.S. v. Ceccolini (1978) (Testifying witness product of
illegal search  witness’s free will decision to testify
enough to purge taint)
Wong Sun v. US (voluntary confession taints the initial
purge of an illegal entry that yields implication of
suspect)
Brown v. Ill (Miranda warnings in and of themselves do
not break the causal chain so that any subsequent
statement, even one induced by the continuing effects of
unconstitutional custody, is admissible so it was
voluntary and not coerced)
Hudson v. MI (exclusion does not apply to knock and
announce)
a exercise in prophylactic theory than in proximate cause
theory. Is the wrong sufficiently distant from the evidence that
deterrence isn’t served.
Test: what did police expect to get from illegally seized
evidence?
Confessions
look to see whether sufficient intervening circumstances will
attenuate the illegal search: look to see whether Miranda
warning was given, lapse of time, good faith of officer
(consistent w/ deterrence rationale yet bad faith isn’t
considered); access to counsel, arraignment, talking with family
or friends; deterrence not served any more
Majority Rule: live witness testimony is always admissible b/c
witnesses always have the ability to come forward voluntarily
Standard: Clear and convincing evidence
Independent Source Doctrine: evidence will not be excluded if it is obtained independently and without reliance on prior
Independent
illegal police activity. Ask whether illegal activity formed the basis for prob. cause. Murray v. U.S. (1988)
source
Nix v. Williams (1984) (Christian burial speech case)
Theory: police are engaged in a process that will inevitably lead
Inevitable
to the evidence found by inappropriate manner
Discovery
AZ v. Evans (good faith reliance on court personnel that
Applies to the exclusionary rule (not to fourth amendment)
Good faith
warrant was still valid. No deterrent effect)
1. Only applies where warrant has been sought and
exception
obtained
US v. Butz (searches and seizures conducted under law
2. And in retrospect it is proven that the warrant lacked
that is later invalidated are allowed even when they are on
probable cause.
direct review at the time the law is changed. Seems
Supporting Rationale  Police acted in good faith in asking for
inconsistent with Griffith v. KY)
and receiving the warrant so the intrusion was justified by the
Magistrates decision. Deterrence is aimed at police officers not
Herring (reasonable reliance on another police dept is not at judges.
worthy of deterrence)
Exceptions to good faith exception U.S. v. Leon
(1) Magistrate is misled by info that affiant knew was false or
would have known was false if not for reckless disregard of the
U.S. v. Leon
truth
Ill v. Rodriguez (warrantless search/arrest good faith
(2) Cases where issuing magistrate wholly abandoned judicial
exception)
role in circumstances that officer recognizes that magistrate has
abandoned judicial role
(3) Affidavit is so lacking in probable cause that if you read it
your belief in it would be entirely unreasonable.
(4) Warrant is so facially deficient, for example in particularly
stating places to be searched and things to be seized, that
officers cannot reasonably presume it is valid
If officer objectively believed he had probably cause or
consent to search then good faith exception applies to
warrantless searches See Ill v. Rodriguez (SCT)

No deterrent effect if officer is acting in good faith

Cost-benefit rationale

Again no remedy whatsoever for individual violations
Fifth Amendment
Fischer v. US (5th A does not protect def from having tax record being subpoenaed from attorney. 5 th A is personal and lawyer cannot exercise 5th
A on behalf of client. Def was not under compulsion Def is not free from production of evidence)
Baltomore v. Bouknight (order to disclose whereabouts of son is does not implicate 5 th A where defendant has waived the right to refuse to give
such info by signing a DSS agreement)
Schmerber v. CA (SCT 1966) (Collecting blood sample of drunk driver is reasonable under the 4th A and is non-testimonial under 5th A)
PA v. Muniz (When the cruel trilemma faces defendants this is compulsion to testify under the 5th)
1. The Privilege Against Compelled Self-Incrimination
a. D has two related rights:
i. Due process right not to present evidence and rely on rule that the prosecution must prove the case b.r.d. (In re
Winship)
ii. Fifth Amendment right to refrain from self-incrimination
b. Main reasons for protection:
i. Protect the innocent
ii. The Cruel Trilemma – force suspects into self-accusation, perjury, or contempt
21
2.
3.
iii. Unreliability of coerced statements
iv. Deter improper police practices
v. Fair state-individual balance
c. The Griffin Rule: neither the judge nor prosecutor may comment to the jury on D’s choice not to testify – constitutes
punishment for invocation of silence.
i. Carter (U.S. 1981) – trial judge must give admonition to jury
ii. Robinson (U.S. 1988) – however, prosecutor could state that D had the opportunity to testify, to rebut D’s attorney’s
assertion that D had not been given the chance to tell his story
iii. Prosecutor can likely say that P’s evidence was “uncontradicted” (especially if D was not the only one who could
rebut)
d. What is protected? Privilege only protects a person from being a “witness”
i. Must be testimonial and communicative in nature – blood sample or breathalyzer does not count (Schmerber v. Cal.
(U.S. 1966)).
1. Under a different case, stomach pumping or surgery would be a violation of D.P., even though not 5 th
Amendment
2. The line between testimonial and non-testimonial is determined by whether D faces “cruel trilemma” –
slurred speech is physical, not testimonial, evidence (Penn v. Muniz (U.S. 1990)).
3. Complying with a summons directing D to produce accounting documents does not involve selfincrimination within 5th Amendment
a. Prep. of documents voluntary, not compelled
i. Extended to all voluntarily prepared documents in O’Connor’s concurrence in U.S. v.
Doe (1984)
ii. Some courts draw a distinction between business and personal records, protecting
personal records.
b. Act of producing evidence may involve communication and compulsion, to be analyzed on a
factual basis
4. Breadth of subpoena in question was such that D was required to identify and produce potential sources of
information – this implicates 5th Amendment privilege because it requires D to make witness-like
decisions in determining which documents complied with the subpoena(U.S. v. Hubbell (U.S. 2000)
Confessions and Due Process:
a. From 1936 to the present, D.P. clauses of 5th and 14th Amendments have been used to exclude involuntary confessions (Brown
v. Miss.)
i. Voluntariness is determined by the totality of the circumstances
1. requires case-by-case scrutiny
ii. Pre-Miranda cases dealing with involuntariness focused on:
1. Youthfulness
2. Educational background
3. Mental competence – insanity, disability
4. Experience with criminal proceedings
5. Other stress besides severe brutality (sleep and food)
iii. Deceptive techniques generally okay
iv. False documentary evidence generally not – too coercive
1. False promises not – although an honest promise not carried out is okay
v. Threats of physical violence/promise to protect from violence not okay (Ariz. v. Fulminante (U.S. 1991)) – DPC
vi. Focus is on police misconduct, not D’s state of mind (Colo. v. Connolly (U.S. 1986)) – mental incompetence, absent
police coercion does not make confession inadmissible – DPC
vii. Judge Posner – voluntariness is a term of art – confession is admissible so long as whatever it was that destroyed
D’s power of choice was not police conduct
Silence and the Fifth Amendment
a. From 1967 to the present, the 5th Amendments privilege against self-incrimination has been applied to statements made during
custodial interrogation; a waiver analysis has prevailed; and the privilege must be shown to have been effectively waived
before confession is admissible.
b. Miranda v. Arizona (U.S. 1967) – pros. may not use statements stemming from a custodial interrogation of D unless it
can demonstrate the use of procedural safeguards.
i. must be warned by “fully effective means” of continuing right to silence, and right to an appointed attorney
ii. D may waive these rights if done voluntarily, knowingly, and intelligently – no waiver unless rights given
iii. Custody = all settings in which freedom of action is curtailed in any significant way
c. Dickerson v. U.S. (U.S. 2000) – Congress tried to limit Miranda (voluntariness would be determined by totality, and would
not depend on reading of rights)
i. Not merely supervisory because Miranda consistently applied to state prosecutions.
1. Congress cannot repeal a constitutional rule.
ii. Court determined that RISK of an uninformed confession being a compelled confession permits Court to interpose
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4.
this rule to protect 5th Amendment rights.
1. However, Dickerson left all prior exceptions to Miranda intact.
d. After Miranda warnings given, DPC prohibits gov’t from using silence against D (Doyle v. Ohio (U.S. 1976))
Miranda has several exceptions limiting its reach:
a. Miranda-defective confession may still be used for impeachment when D testifies (Harris v. N.Y. (U.S. 1971) – balance
between deterrence of police misconduct vs. need for truth/discourage perjury
i. However, DPC blocks involuntary confession for even impeachment purposes
b. Use of pre-arrest silence for impeachment is allowed – fundamental unfairness of Doyle not present when gov’t has not
induced silence (Jenkins v. Anderson (U.S. 1980))
i. Post-arrest, pre-Miranda silence – probably permissible because no governmental inducement (Fletcher v. Weir
(U.S. 1982))
c. Fruits of a Miranda-defective confession may still be used (Ore. v. Elstad (U.S. 1985), premised on:
i. Exclusion of fruit of poisonous tree only justified if constitutional right is violated, and
ii. Violation of Miranda is not by itself a constitutional violation
1. This is not still viable post-Dickerson, but the fruits exception was expressly preserved
d. Fruit – leads to witnesses
i. Mich. v. Tucker (U.S. 1972) – no reason to believe witness testimony is untrustworthy simply because D was not
given Miranda warnings when he gave police W’s name.
e. Fruit – subsequent confession
i. Elstad – extended Tucker to case where second confession resulted from first, tainted confession – although original
rejection of Wong Sun analysis no longer valid after Dickerson, Court retained exception – probably on cost-benefit
analysis
1. However, if first confession was involuntary under DPC, second confession would be excluded if it
derived from the first
ii. Missouri v. Seibert (U.S. 2004) - Kennedy’s concurrence prevails (narrowest) – only applicable to bar evidence from
subsequent confession if there is evidence that the two-step interrogation technique was “used in a calculated way to
undermine Miranda warning” (bad faith).
1. Multifactor test: look at changes in time, place, and circumstances from first statement to the second
a. Timing and location of interrogations
b. Continuity of police personnel
c. Overlapping content of statements and questions
f. Fruit – physical evidence
i. U.S. v. Patane (U.S. 2004) – D interrupted officers during M rights and told them where his gun was.
1. Prophylactic rules (including Miranda) sweep beyond actual protection of self-incrimination clause, and
thus any further extension must be justified by its necessity for protection of the actual right against
compelled self-incrimination.
a. Here, with failure to warn and voluntary statement, nothing to deter.
g. Emergency exception – N.Y. v. Quarles (U.S. 1984) – “overriding considerations of public safety” can justify failure to warn
i. Police confronted with immediate need to know where gun was (when not on D) during arrest
ii. O’Connor’s concurrence – no need for this exception – Miranda does not prevent officer from asking about gun,
only admission of incriminating answers at trial.
5.
What is custody?
a. 8th Cir. (Brown) – 1) was suspect informed he could leave and that answering would be voluntary, 2) did suspect have
unrestrained freedom of movement, 3) did suspect initiate contact or voluntarily acquiesce, 4) were strong arm tactics or
deception used, 5) atmosphere, and 6) was suspect arrested at the end?
b. Objective test – Stansbury v. Cal. (U.S. 1994) – officer’s subjective and undisclosed view is irrelevant; doesn’t matter if
officer believed D was witness, not suspect, and so did not give Miranda warnings.
c. Personal characteristics irrelevant – Yarborough v. Alvarado (U.S. 2004) – suspect’s youth irrelevant – custody under
Miranda is determined by an objective test
i. Subjective test would muddy waters – police officer won’t likely know suspect’s past interrogation history or
likelihood that age would bear on individual’s perception of being free to leave.
d. Prisoners – Mathis v. U.S. read to mean that custody of a prisoner means whether a reasonable person would believe his
freedom of movement had been further diminished
e. Interrogation at station – Ore. v. Matheson (U.S. 1977) – when person comes to station voluntarily for questioning and is told
he was not under arrest and allowed to leave after confession, not in custody.
f. Terry Stops – Berkemer v. McCarty (U.S. 1984) – Terry stops not custodial; generally brief, questioning is limited, detainee
not obliged to respond, and unless probable cause arises quickly, D must be allowed to leave – comparatively non-threatening.
6.
What is interrogation?
a. Rhode Island v. Innis (U.S. 1980) – interrogation is:
i. Express questioning
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b.
7.
ii. Other police words or actions that constitute the “functional equivalent” of express questioning
1. Test is whether officer should know that those words or actions are reasonably likely to elicit
a. Looked D-friendly, but not applied as such
iii. Intent of police is not dispositive but is relevant
Further cases:
i. Ariz. v. Mauro – suspect speaking to wife with police overhearing
ii. U.S. v. Calisto – officers discussing possible criminal consequences for daughter within hearing of suspect
iii. Edwards v. Ariz. – confronting suspect with incriminating evidence
iv. U.S. v. Soto – along with Innis, police officers talking amongst themselves
1. Looking at picture of suspect’s wife and daughter, officer says “what are you doing with this crap (drugs)
when you’ve got these two at home?”
a. Court determined this was inappropriate – direct inquiry into Soto’s reasons for committing
offense he appeared to have committed, and elicited an inculpatory response.
v. Penn. v. Muniz – booking exception (where express questioning does not violate Miranda) – asking questions
necessary to process detainee
Waiver
a. 2 part test for waiver: Moran v. Burbine (U.S. 1986) – waiver requires 1) free and deliberate choice rather than intimidation,
coercion, or deception and 2) made with full awareness of nature of right and consequences of abandoning it.
i. Waiver valid even though suspect not told attorney trying to reach him
b. Suspect has to be really out of it in one way or another to be found to have been incapable of waiving rights.
c. Colo. v. Spring (U.S. 1987) – Constitution does not require that a suspect know and understand every possible consequence of
a wavier – waiver as to one crime does not prevent questioning about a separate crime.
d. Elstad – Miranda-defective confession led to subsequent confession, which was used against D; D claimed not an intelligent
waiver because he didn’t know 1st confession could not be used – Court rejected this on same reasoning as Spring – Miranda
is a minimum,
e. Mich. v. Mosley (U.S. 1975) – D invoked right to silence, then was warned again and questioned 2 hours later, waived and
confessed
i. Interrogation is not “forever barred;” not a per se bar, but repeated questioning without break not allowed.
f. Sufficiency of proof of waiver:
i. Written waiver signed by suspect is desirable for P because it almost guarantees P’s victory at suppression hearing
ii. However, police have to balance whether getting written waiver signed will have the effect of causing suspect to not
talk against the fact that a confession without a signed waiver has a greater chance of getting suppressed
iii. With some regularity, the police choose to proceed without a signed written waiver; often, P prevails anyway
because the oral waiver is found to be sufficient, and sufficiently proven.
g. Information needed for a knowing/intelligent waiver
i. Full awareness necessary for such waiver means only that suspect was given Miranda warnings and professed to
understand them
ii. So matters like:
1. Being unaware of the intended scope of the interrogation
2. The admissibility of prior Miranda-defective confession
3. The efforts of counsel to reach the suspect
a. Are not relevant to “full awareness”
h. Sufficiency of invocation of right to silence
i. Davis requires a clear, unambiguous statement to invoke the right. What language is necessary?
1. “I don’t got nothing to say, because I don’t know anything.” – NO, because exculpatory, not intent to
invoke silence
2. “What, you think I’d be stupid enough to incriminate myself to you?” NO
3. “I have nothing to say because I’m going away for life anyway.” NO
4. Continually repeating “no comment” – YES
i.
Waiver of right to counsel
i. Questioning can continue when suspect makes ambiguous or equivocal invocation of right to counsel (Davis v. U.S.
(U.S. 1994))
ii. Once invoked, a valid waiver cannot be established only by showing that he responded to further police initiated
questioning; cannot be subject to further interrogation unless 1) attorney made available or 2) suspect initiates
further questioning (Edwards v. Ariz. (U.S. 1981))
1. Initiation – “well, what is going to happen to me now” constitutes initiation; requesting water or to use
telephone would not – look for generalized willingness to discuss investigation vs .necessary inquiry
arising out of incidence of custody (Ore. v. Bradshaw (U.S. 1983))
2. Must unequivocally invoke right to counsel to get protections of Edwards
a. However, protection continues even after suspect has consulted with an attorney (Minnick v.
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Miss. (U.S. 1990))
iii. Invocation of right is not offense-specific; once invoked according to Edwards, no further questioning allowed (Ariz.
v. Roberson (U.S. 1988))
iv. When accused who is arraigned asks for counsel, he is invoking the 6th Amendment (which is offense-specific – see
below); when Miranda is invoked by a suspect, it applies to all crimes (McNeil v. Wis. (U.S. 1991))
v. Prohibits deliberate elicitation of incriminating info from an accused.
1. Delib. elicit. applies even when no “interrogation” (Fellers (U.S. 2004))
2. Paid informants constitute “deliberate elicitation” (Henry (U.S. 1980))
a. paid informant
b. deceptive – pretending to be fellow inmate
c. D in custody and under indictment at time of conversation
3. However, no violation when informant placed in close proximity to D but without any effort to elicit
statements (Kuhlmann v. Wilson (U.S. 1986))
4. Wearing wire during continuing investigation into other crimes, even without specific intent to get info
about charged crime is a violation – “deliberateness” found whenever officers should have known that
investigative tactic would lead to incriminating info from a charged D (Me. v. Moulton (U.S. 1985))
ii. The Massiah Rule: protects A/C relationship and guards against prosecutorial overreaching. Fed. agents cannot
deliberately elicit incriminating through surreptitious use of undercover agent in the absence of his attorney
(Massiah v. U.S. (U.S. 1964)).
iii. To establish waiver, pros. must show intentional abandonment of right, not merely act of volunteering info in
response to police conduct (Brewer v. Williams (U.S. 1977))
iv. Waiver must be knowing and intelligent
1. However, Miranda suffices to convey 6th Am. rights – but more copious warnings required for waiver of
counsel at trial (Patterson v. Ill. (U.S. 1988))
2. When D asks for counsel, Edwards governs (Mich. v. Jackson (U.S. 1986)) – lower courts have held this
to mean that Edwards does not apply unless D unequivocally invokes right to counsel
a. Rehnquist dissent: flawed, because D’s right to counsel does not depend on whether D has
“requested” counsel
3. Invocation of 6th Amendment rights gives Jackson-Edwards protection only as to the crime with which D
has been charged
v. Right to counsel is offense-specific – statements about crimes for which D had not been charged are admissible;
however, when 6th Am. right attaches, it encompasses offenses that would be considered the same under the
Blockburger Test (same act constitutes violation of two or more statutory provisions) (Tex. v. Cobb (U.S. 2001))
484-492; 493-504
If police hear or see illegal activity they can go in immediately in order to render aid.
Prob cause
 In practice does not req crime is more probable than not  Il v. Gates
 Totality of circumstances including high crime area and crime stats  Il v. Gates
 Finding must be particularized and relate to the individual in question  Carroll
v. US
 Refusal of consent to search cannot alone create prob cause  Scneckloth v.
Bustamante
 To arrest: facts and circumstances within the officers knowledge, or about which
the officer has reasonably trustworthy info, sufficient to warrant a person of
reasonable caution in the belief that a crime has been or is being committed.
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
To search or seize: facts and circumstances within the officers knowledge, or
about which the officer has reasonably trustworthy info, sufficient to warrant a
person of reasonable caution in the belief that contraband or evidence of a crime
will be found in the place to be searched and the belief that the items sought are
currently in the place to be searched
Reasonable suspicion
 Traffic stops  DE v. Prouse
 Investigative stop  US v. Mendenhall

Beyond Reasonable Doubt
 Higher standard than prob cause  Cunningham v. CA
Auto Search
 If p/c exist to believe evidence of crime or contraband is in auto can search w/out
warrant
 Auto must be in public. Cannot enter private property to conduct warrantless
search of auto
 Can search vehicle incident to arrest when suspect is secured if reason to believe
evidence of crime arrested for is in vehicle AZ v. Gant
 can search when passenger is the one arrested
 Limited places where evidence may reasonably be located
 Can search motor home functioning as vehicle. ca v. carney
 Co v. Bertine no obligation to allow arrestee to make alternate towing arrangment
o
o
o
o
Location
Utilities
Readily mobile
Access to public road
Miranda
 It is not improper for police to tell suspect that they have a right to a lawyer but
they have no way to give him one. Duckworth v. Eagan
 Orozco v. TX (in-home interrogation triggers Miranda)
 Berkemer v. McCarty (custodial interrogation for misdemeanor offense triggers
Miranda) (subjective intent of officer irrelevant) (less likely to be in custody
during traffic stop b/c of presumptive brevity and public nature)
 Custody  Higher standard of intrusion that Terry stop. Must significantly
curtail freedom of action to the degree associated with formal arrest
 Interrogation  Express questioning or the functional equivelant of express
questioning RI v. Innis (gun in the park case). Focuses on perception of suspect
but police knowledge of unusual susceptibility plays a role in determining
whether they should have known acts or statements were reasonably likely to
elicit a incriminating response. Innis states that if statement is designed to elicit
incriminating response it is hard to argue it is not an interrogation.
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




o Can typically answer suspects questions and update them on investigation
w/ out triggering Miranda
Waiver
o NC v. Butler (silence is not a waiver where suspect refused to sign a
waiver) Waiver: express oral or written statement not merely silence after
being read rights is great proof but not necessarily enough
o CO v. Spring  waiver is not crime specific
o Moran v. Burbine  (waiver valid despite police telling lawyer no
questioning would occur. Since suspect did not know of convo it had no
bearing on the analysis)
o CT v. Barret  suspect who refuses to sign written waiver can still make
oral waiver
o CO v. Connely  waiver is effective with psycho who thinks he has to
confess or commit suicide. only protects against compulsion from govt.
not from outside influences or perception of coercion even by god.
Resuming Question permissible in Mosley based on  MI v. Mosley
o Scrupulously honored Factors
o Significant passage of time  2 hrs
o New set of warning
o Second crime
o Signed waiver
o You can stop at any time
o Different officer in different location
Edwards v. AZ  once suspect asks for counsel per se rule that no further
interrogation can occur until counsel is available
6th Am is crime specific so once formal proceedings they can about different
crime
request for counsel does not have to be honored if it was made before custodial
interrogation has actually commenced
Right to counsel
 Interrogation analysis  focuses on subjective intent of officer
Cali Lessons Completed
 Probable cause
 Probable cause to search or seize
 Auto exception
 Stop and Frisk and II
 Miranda I and II
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