CRIMINAL PROCEDURE OUTLINE
Fall 2010
INTRODUCTORY MATERIALS
Constitutional Provisions
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Summary: Need to know…
o All of 4th Amendment
o Self-incrimination clause of 5th amendment
o Right to counsel element of 6th amendment
o Due Process element of 14th Amendment
Amendment IV (1791)
o People have the right to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures (CLAUSE 1)
 What is reasonable? Unreasonable?
o Cannot issue warrants without probable cause + oath/affirmation + description of place to
be searched and persons or things to be seized (CLAUSE 2)
 Warrant requirement  “Warrant clause”
 Concept of probable cause; oath/affirmation
Amendment V (1791)
o Will not be compelled to be a witness against himself
 “Self-incrimination” Clause
 Not as applied at trial but in the interrogation progress
 When cops place you under arrest and want to interrogate you pre-trial
 Miranda warnings
o No deprivation of life, liberty or property without due process
o Will not take private property for public use without just compensation
Amendment VI (1791)
o May have assistance of counsel for defense
 Principal application is at trial
 But for this class concerned with pre-trial when cops interrogating - when does
the 6th amendment right to counsel kick in?
 Miranda doctrine right to counsel as well in addition to 6th amendment
Amendment XIV (1868)
o Section 1
 Persons born/naturalized in US and subject to jurisdiction are citizens of US and
of state where reside
 States can’t make laws that abridge privileges or immunities of US citizens
 States cannot deprive persons of life, liberty or property without due process
 Cannot deny persons equal protection of the laws
Criminal Justice Policy
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Interpretation of the constitutional provisions
Herbert Packer, The Courts, The Policy and the Rest of Us (1966)
o Crime Control  central value = efficient, expeditious and reliable screening and
disposition of persons suspected of crime; administrative and managerial; linear
 “The control of crime”
 Establishing law and order
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Due Process  maintaining dignity and autonomy of individual above Crime Control’s
central value; adversarial and judicial; more like an obstacle course
 Referring to due process as the rights of the individual against the government
and thoughts about autonomy, dignity, privacy, etc.
 We want the government to control crime but also respect our individual rights
 Bill of Rights articulates rights people have against the government, and the due
process model is meant to protect those rights
 We want the police but we don’t want to live in a police state
o Today, system more like Crime Control model - more administrative and managerial than
adversarial and judicial
o Official norms laid down mostly by Supreme Court look more like Due Process model 
“judicializing” each stage of the criminal process
The Constitution, the Declaration, “Due Process,” and “Crime Control”
o Lincoln believed purpose of Constitution to enshrine and preserve political principles in
the Declaration of Independence
o DOI in terms of criminal law/procedure?
 DOI says something about life, liberty and the pursuit of happiness and we don’t
want the government interfering with that
 But what about Crime Control? The basic purpose of government according to
the DOI is to SECURE our rights to life, liberty and the pursuit of happiness
 Securing these rights FROM EACH OTHER (one of the basic purposes of gov’t)
 Not to protect ourselves from the government
 ANARCHY=CRIME  create institutions of law and order to defeat anarchy
 We need institutions of corrections to fulfill gov’t purpose - police, prisons…
 Need to find a balance between the values of due process and crime control
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Law and the Initial Role
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What is the proper role of the courts, particularly the Supreme Court?
Judicial “Activism,” Judicial “Restraint,” and Constitutional Rights & Structure
o Summary:
 Liberals - DP - Activist
 Conservatives - CC - Restraint
o ACTIVIST concept of judicial role where judges are:
 Non-deferential to democratic decision-makers
 Not required to ground decisions in traditional legal materials
 Exercise political discretion in interpreting constitutional provisions
 Accept judicial policy-making in areas of political importance/controversy
o PASSIVIST concept of judicial rule where judges are:
 Deferential to democratic decision-makers
 Required to ground decisions firmly in traditional legal materials
 Minimize political discretion
 Reject expansive judicial policy-making in areas of political
importance/controversy
o Motivation behind judicial activism = concern with governmental violations of individual
rights and distrust of ordinary politics for protecting rights
 Protecting individual rights
 Unpopular numerical minorities - ex: CRIMINALS
o Connections between race and crime
 Thought that courts are crucial in protecting these rights - special role
 Emphasis on national standings
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States and local governments won’t protect these rights at the
appropriate levels
Motivation behind judicial restraint = concern with judicial governmental action in
tension with constitutional values (ex: popular sovereignty, representative democracy,
separation of powers, bicameralism, presentment to executive, federalism); measure of
distrust of judiciary as legitimate and competent institution for resolving political
decisions which should be left to political process (i.e. policy-makers better suited)
 Courts need to respect the democratic process
 They need to respect the centralized political authority
 National government made up of the three branches=decentralized political
authority  separation of powers; we also have FEDERALISM (national
government v. 50 states)
 Courts need to make sure they don’t invade the authority of democratically
elected politicians/legislatures
 Majority rule and federalism
 Protect minimal national standards
Restraintists want to do LESS; Activists want to do MORE
Thoughts in terms of American politics:
 Liberals and Conservatives
 Liberals  associate with due process as an approach and with activism
 Conservatives  crime control and restraint
 Judicial restraint  lots of authority to the police  crime control
 Activism  let courts articulate the rights of the government  due process
The conservatives have a slight majority today in the Supreme Court
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History and Criminal Procedure
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1960s  the Warren court
o Revolutionary in criminal procedure
o Established most of criminal procedure that we know today
o Expansive interpretations of the criminal procedure provisions of the Constitution liberal interpretations; due process interpretations
o Followed by Berger court
1980s  the Rehnquist court
o Little overruling
o Created exceptions
Today  the Roberts court
o Trajectory from 1960s to 1980s and today? Very few Warren court cases overruled
o But many EXCEPTIONS
o “Swiss cheese” concept
Limits of the Supreme Court in the area of Criminal Procedure
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Limit towards court creating a comprehensive code of criminal procedure
o Model Penal Code
o What makes this difficult for the Court?
 CASE OR CONTROVERSY requirement
 The Court is required to be PASSIVE  they can’t tell us the answers until a
case or controversy comes before them
 The Court is BUSY  lots of other legal issues to deal with - beyond crim pro…
Difficult for the Court to create a coherent body of criminal procedure as well
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Why is this difficult?
 We get a case in 1977 and another in 2003 and one doesn’t exactly contradict the
other, but they don’t really line up very well…
 DIFFERENT JUSTICES! Changing justices often means changing philosophies
 We saw this in the move from the liberal Warren court in the 60s to the
more conservative Rehnquist and Roberts courts in the 80s and today
 Reinterpretations
 Stare decisis - not overruling the cases but clear issues between them
Concern with implementation of the law that is created…
o Alan Dershowitz, The Best Defense xxi-ii (1982)
 Rules of the justice game - not in print but understood as controlling the realities
of the process (see handout for list)
 Legal idealism v. legal realism
 Whatever rules the SC articulates, they are applied first by police, then
prosecutors, then trial judges
 Suggests that there is a strong crime control bias
o Must consider if the rules articulated CAN actually be implemented
 Ex: Miranda warnings
 Easy for cops to get away with stuff if no litigation results from failure to
implement
Incorporation
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What is it?
o Incorporating the Bill of Rights; Ratified in 1792
o BOR limits the national government
o First word of the first amendment? CONGRESS - “Congress shall make no law…”
o Barron v. Baltimore  BOR limits nat’l, not state gov’t
o 14th Amendment in 1868 - applies to states and subdivisions of states (local gov’t) 
limits the states but not the national government
o Incorporation means the BOR limits state governments THROUGH the 14th amendment
Three major approaches:
o (1) Total Incorporation (Justice Black)
 Never had a majority in the Supreme Court
 All BOR incorporated under the 14th amendment
 Black: HISTORY  history suggests this is what was meant; when the 14th was
written, it was intended that all BOR be incorporated
o (2) Pseudo Incorporation (Justices Frankfurter and Harlan)
 Dissent in Duncan
 Is a right FUNDAMENTAL? If it is, it is part of the 14th amendment
 Fundamental rights are protected by the 14th amendment, and maybe certain
portions of the BOR are fundamental and therefore protected by the 14th  this
means there is no true incorporation, merely paralleled protection
 This had a majority for a number of years…
 Frankfurter and Harlan: HISTORY  suggest that history explains that the BOR
was not meant to be actually incorporated
o (3) Selective Incorporation
 Selective provisions of Bill of Rights are applied to states based on their
“fundamental fairness.” Most provisions have been incorporated today, and all
provisions of the 4th, 5th, 6th amendment have been.
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A right in the BOR that is deemed fundamental is incorporated; one that is not
fundamental is not incorporated; hence “selective” - some but not all
 COMPROMISE between total and pseudo
 In practice? We don’t officially have total incorporation but almost all of the
provisions of the BOR have actually been incorporated
 All of the important criminal procedure provisions have been incorporated
 Mapp v. Ohio (1961) (4th amendment and exclusionary rule)
 Malloy v. Hogan (1964) (5th amend self-incrimination clause)
 Gideon (1963) (6th amendment)
o This all occurs at the time of the Warren court
o States do more crime-fighting than the national government;
explosion of litigation prompted by incorporation in the 60s
when the Warren court adopts the criminal procedure provisions
of the BOR through selective incorporation
Duncan v. Louisiana
o SELECTIVE INCORPORATION
o FACTS: Gary Duncan, black teen in LA, found guilty of assaulting a white youth by
allegedly slapping him on the elbow. Sentenced. Duncan's request for a jury trial was
denied. At SC says 14th amendment DPC incorporates the 6th amendment and therefore
LA must grant him a jury trial. He wins.
o Right to jury trial is FUNDAMENTAL… why?  jury as a check on judges/prosecutors;
want people to have the option of a jury; fundamental to American scheme of justice
o Question: Whether a right is among those “fundamental principles of liberty and justice
which lie at the base of all our civil and political institutions,” whether it is “basic in our
system of jurisprudence,” and whether it is a fundamental right, essential to a fair trial
SEARCH AND SEIZURE
Old Regime
Boyd v. United States (1886)
- NO LONGER GOOD LAW
- Summary: A subpoena required Boyd to provide incriminating documents to federal agents. The
Court held the subpoena violated both the Fourth and Fifth Amendments: the subpoena was, in
effect, a seizure that resulted in self-incrimination. The Court explained that the Fourth and Fifth
Amendments must be read together; an unreasonable search and seizure results in the use of the
defendant’s property as self-incriminating evidence.
- Property Rights Analysis:
o CL Trespass  An unreasonable search and seizure is one where the police trespass and
violate your property rights
- 5th amendment  didn’t actually search or seize anything - compelled him to turn over his
papers; turning over the papers = self-incrimination
- 4th amendment  If the government hadn’t compelled Boyd to turn over his papers, they would
have searched and seized to get them
- Must consider what searches and seizures are UNREASONABLE  not suggesting they can’t
search and seize anything…
(1) Stolen goods (wouldn’t be a CL trespass on person’s property rights)
(2) Criminal instrumentalities (civil forfeiture - legal item for an illegal purpose)
(3) Contraband (something that is illegal to own; no possessory interest in contraband
- Cannot search and seize mere evidence
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Displacement of Boyd
Schmerber v. California (1966)
- FACTS: Petitioner was driving under influence (criminal offense of DUI); car accident; officer
smelled alcohol and saw signs of intoxication; was arrested at hospital; told physician to take
blood sample; report admitted into evidence
- Exclusionary Rule: If Schmerber can show that there was a violation of his constitutional rights
when they got the BAC, then the evidence can be excluded
- If this were under Boyd?  would likely suggest there is a property right in your own blood, so
there would be a CL trespass on his property right; his blood isn’t stolen goods, contraband, or a
criminal instrumentality - it is mere evidence of driving under the influence
- TESTIMONIAL COMMUNICATIONS  this is what the 5th amendment self-incrimination
clause protects against; being compelled to hand something over does not qualify
o Both federal and state courts say the 5th amendment self-incrimination clause does not
protect against compulsory fingerprinting, photographing, or measurements, to write or
speak for identification, to appear in court, to stand, to assume a stance, to walk, or to
make a particular gesture - distinction=privilege is a bar against compelling
“communications’
- 4th amendment reasonableness standard
o Probable cause  the officer was concerned that the evidence would dissipate, and the
officer had reason to believe he was driving under the influence; there was no warrant but
the court says the officer had a good reason for not having a warrant
o Because of the possibility that evidence would be deteriorated as a result of the body
eliminating alcohol from the system, there was no time to seek out a magistrate and
secure a warrant; therefore, extracting blood to test for alcohol content was appropriate in
this case  exigency
- DISSENT: 5th amendment self-incrimination applies the same way it applied in the Boyd case
- What’s weird about this case given it is a Warren court decision? The criminal defendant loses;
he would have won under the dominant law beforehand; here is an unusual narrowing of the law
Warden v. Hayden (1967)
- FACTS: Inmate convicted of armed robbery. Items of clothing (cap, jacket, trousers) seized
during search of his home; admitted into evidence without objection.
- SC Held: (1) entry without warrant to search nor search without warrant invalid because of
circumstances, (2) under 4th no distinction between evidentiary materials (which can’t be seized)
and objects which may validly be seized (instrumentalities, fruits of crime, and contraband)
- Under Boyd?
o 5th amendment argument  clothing not stolen goods nor contraband, and difficult to
make an argument of criminal instrumentality; would suggest there is a CL trespass of
property rights as they are personal effects; mere evidence
o 4th amendment argument  the search and seizure were unreasonable and there was no
warrant, so there was a CL trespass on property rights
- Under Schmerber?
o No 5th amendment issue because clothing not testimonial communication
o 4th amendment  overrule the mere evidence rule…
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- 4 amendment reasonableness  probable cause because the cops were told that the robber went
into the house; they also think he is armed and hiding in the house; there is substantial reason for
them to enter; they have a good reason for not having a warrant (an exigency) because evidence
could be destroyed in the house or other lives could be in danger within it - emergency situation
- DISSENT: Two zones of privacy: (1) clause 2 regarding probable cause and warrants; (2) clause
1 zone of privacy linked to property (Boyd)  wants Boyd reaffirmed and both zones required
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RESPONSE TO DISSENT: 4th amendment is not about trespass nor property, it is about
PRIVACY; this is the new orientation; distinction between mere evidence and other evidence is
arbitrary
This is a Warren court decision  Judicially active; It is strange that the plaintiffs in Schmerber
and Hayden lose, but it’s not strange that the Court steers away from the norm and adjusts the law
THE “THRESHOLD” OF THE 4TH AMENDMENT RIGHT TO BE SECURE AGAINST SEARCHES
Katz v. United States (1967)
- Background:
o “Last nail in the coffin of Boyd”
o Doctrinal Question: WHAT IS A SEARCH?
 The first clause of the 4th prohibits unreasonable searches and seizures
 Important for the defendant to establish whether there is a search or a seizure
because without one, the 4th amendment does not apply
 Once established that a search or a seizure is present, must then determine
whether it was reasonable  if it is reasonable then no constitutional violation
 If violation is found, evidence is thrown out
- FACTS: Petitioner Katz transmitted wagering info via telephone from LA to Miami and Boston;
Violated federal statute; Gov’t had evidence of his end of telephone convo because FBI agents
attached electronic listening/recording device to outside of public phone booth where placed calls
- Olmstead (1928)  Wire tapping case; “persons, houses, papers and effects” are the protections
of the 4th amendment; a conversation does not fall into any of these categories
- What would Olmstead say about Katz?
o It would ask if the phone booth was a “constitutionally protected area”
o Physical trespass?
- Departing from Olmstead  reach of amendment can’t turn upon presence or absence of physical
intrusion into any given enclosure; “trespass” doctrine eroded
- If an expectation of privacy has been invaded, then there is a search under the 4th amendment;
once there is a search, it must be determined if it was reasonable
- Twofold requirement: (1) person exhibited an actual/subjective expectation of privacy, and
(2) expectation is considered reasonable according to society (ex: home)
o SUBJECTIVE REQUIREMENT AND OBJECTIVE REQUIREMENT
o Both are required
- “What a person knowingly exposes to the public, even in his own home or office, is not a subject
of the 4th Amendment protection. But what he seeks to preserve as private, even in an area
accessible to the public, may be constitutionally protected.”
- Both subjective and objective established; no prob cause=unreasonable; evidence inadmissible
- DISSENT: 4th doesn’t apply to conversations; not a person house paper or effect; trespass thought
Application of Expectation of Privacy Test
- SUBJECTIVE: Little substantive analysis on the subjective element
- OBJECTIVE: Reasonable expectation of privacy?
o Empirical (facts) - as a matter of fact, how likely is it that expectation of privacy will be
invaded?
o Normative (value)
 Value
 Social value of the citizen activity - how important?
 How intrusive is the police activity? - bleeds into social value element
 Steps the person has taken to guard their privacy?
o (ex: Katz closed the door of the phone booth)
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Balance these with the police utility of the search (crime control thought)
United States v. White (1971)
- FACTS: White tried and convicted for illegal narcotics transactions; 25-year concurrent sentences
- ISSUE: Whether 4th bars testimonial evidence of convos between White and informant that
agents overheard by monitoring radio transmitted carried by informant
- HELD: This is not a search under the 4th
- No indication that White was justified or constitutionally protected in expecting person with
whom he was conversing to keep the conversation private
- Expectation of Privacy Test:
o Subjective  Not discussed
o Objective 
 Empircal (fact)? Unreasonable to assume conversation will be kept secret
 Normative (value)?
 Social value? Not discussed…
 Intrusiveness? Assume the risk that information will be relayed
 Guarding expectation privacy? When communicated, no longer guarded
 Police Utility? Crime control value HIGH  shouldn’t put constitutional
barriers on evidence that is accurate and reliable
- DISSENT: Katz analysis finds there was a search (Fact-don’t expect someone to record
information; social value-important to be able to converse with people, shouldn’t fear being
recorded; intrusive-yes because of social value; guard-didn’t make info public, only discussed
with one person)
- Big thought  Police can tap a phone in a Katz situation when there is probable cause or a
warrant; allowed to record/transmit a conversation in a White situation at ANY TIME because
there is the cooperation of the defendant
Open Field Doctrine
Oliver v. U.S. (1984)
- FACTS: reports that weed raised on Oliver’s farm; narcotics agents went to farm, drove past
house to locked gate that said “No Trespassing” but footpath around side; agent walked around
gate and found week field a mile from house; Oliver arrested and indicted; DC suppressed
evidence of field, said not an “open” field that could be intruded; COA reversed, saying Katz
didn’t impair open fields doctrine
- Hester v. U.S. (1924)  established open fields doctrine - allows cops to enter and search a field
without a warrant; doesn’t implicate 4th because language of 4th says “persons, houses, papers and
effects,” and an open field isn’t within that restrictive language
- HELD: Not a search within the meaning of the 4th amendment
- Expectation of Privacy Test:
o Subjective? YES - fenced with “no trespassing” sign
o Objective?
 Empirical fact - likelihood of regular trespass? YES - it is a field
 Privacy value of open fields? LOW - curtilage and home where private acts occur
 Intrusive? NO - not a lot of private activities occurring in field
 Guard? Not really discussed here…
 Police Utility? HIGH
- DISSENT: Different results of Katz analysis (Empirical expectation of privacy-not common for
trespassers; social value-we don’t know how people use their property, may have extra acres for
additional privacy; intrusive-YES in regard to social value; guard-signs and fences sufficient to
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have civil and criminal liability on trespassers; police utility-may be present but need to protect
privacy higher, need prob cause + warrant)
o Majority  Facts + low social value = no reasonable expectation of privacy
o Dissent  High social value = reasonable expectation
Note Case: United States v. Dunn (1987)
- Curtilage (area immediately adjacent to home) is protected and open fields are not
- Four-factor test:
o (1) Proximity to home
o (2) Use of area
o (3) Enclosures
o (4) Attempts to guard area
- FACTS: barn 60 yards from house and about 50 yards from fence around house; police invade
area around barn and find narcotics; based on 4 factors find area is not curtilage
- Main Thought  Police should be able to do anything an ordinary citizen would do (ex: walk up
sidewalk to a house and knock on door)
- There is no bright line rule - an uncertain “bubble” of curtilage around home
Aerial Surveillance and “Lawful Vantage Points”
Note Case: United States v. Knotts (1983)
- Police want to tail a car; attached electronic tracking device (“beeper”); court found this was not a
search; visual surveillance from public places is okay, so using a beeper instead is okay
California v. Ciraolo (1986)
- FACTS: Santa Clara Police anonymous tip that respondent growing marijuana in back yard;
couldn’t see because of fence; flew over house in private plane, took photos, and got search
warrant; warrant executed and plants seized
- Question: Given that the area is curtilage, did the fly-over violate the 4th amendment? Is there a
reasonable expectation of privacy here?
- What a person knowingly exposes to public even in home or office is not subject of 4th
amendment protection (Katz)
- Big thought: police were entitled to be in the public navigable airspace; ANYONE could be there
and see the weed growing
- DISSENT: likelihood of ordinary citizen doing what cops did makes their actions unreasonable
and therefore there is a reasonable expectation of privacy as a factual matter; if say will protect
curtilage then must do so - high social value bc shouldn’t be forced to build roof over yard
Note Case: Florida v. Riley (1989)
- Different FAA regulations apply to helicopters; they can go lower; this one went down to 400
feet; this was within the FAA regulations so the search was acceptable/reasonable
Bond v. United States (2000)
- FACTS: Bond on Greyhound; Border Patrol boarded bus to check immigration status; squeezed
soft luggage in overhead storage; brick-like object in one; Bond allowed inspection - meth
- Ciraolo different because purely visual inspection, whereas this was tactile
- Expectation of privacy clear bc bag opaque and directly above seat on bus
- No societal expectation that bags be touched in exploratory manner; squeezing unreasonable
- DISSENT: unreasonable expectation of privacy; squeeze by cop no different than by general
public when moving bags in bins; foreseeability; unreasonable when object/activity knowingly
exposed to public, like a bag in a public overhead bin
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Kyllo v. United States (2001)
- FACTS: Suspected weed grown at Kyollo’s home in triplez; used thermal-imaging device scan
for heat emanating; judge issued warrant with evidence from device
- HELD: where gov’t uses device not in general public use to explore details of private home that
would previously have been unknowable without physical intrusion, surveillance is a 4th
amendment search and presumptively unreasonable without a warrant
- As a factual matter, expectation of privacy reasonable
o Social value? This is the home (highest privacy protected area)
o Intrusive? Home, so yes
o Guard? He has walls and blinds, so yes
o Police Utility? Sure, but still have to respect a person’s privacy in their home
- DISSENT: Only seeing how hot walls are, not seeing into home; not intrusive; police utility
Handout Case: United States v. Place (1983)
- Exposure of luggage, located in a public place, to trained canine did not constitute search
- A dog sniff is not a search within the meaning of the 4th amendment
Handout Case: California v. Greenwood (1988)
- No objectively reasonable expectation of privacy in trash voluntarily left in plastic bags for
collection along a public street
- Facts? Anyone could look in the trash; Social value? No, it’s garbage and it’s being thrown out;
Intrusive? No because it’s garbage; Guard? Should shred or dispose in some other way if want
information private; Police Utility? Yes
- Dissent  Facts? Not common for trash to be looked through; Social value? Police would only
want to look in garbage if they thought there was something in there that the person throwing the
trash away didn’t want them to find, so it would be intrusive as well
Note Case: United States v. Jacobsen (1984)
- FACTS: Package w/ cocaine found by FedEx; private actors opening it; closed, called cops, cops
reopen; 4th amendment issues?
- Because FedEx private individual, no violation  only STATE ACTORS bound by 4th
- State actor = anyone works for gov’t/state (cops, school officials)
- State actors can replicate private search if no remaining reasonable expectation of privacy
- Is the field test a search (when they tested the cocaine)? NO  the test would only tell them if it
was or was not cocaine, not anything else about the powder
- Seizure? YES  but it was reasonable
Private Actor who counts as a State Actor: Skinner (1989)
- Fact intensive inquiry; will look to Cl agency principles (when a private actor is acting on behalf
of state, as its agent) also looking for gov’t encouragement/endorsement/participation
- Totality of the circumstances analysis
WHAT IS A SEIZURE?
Seizure of Objects
- Jacobsen (1984)  Seized when there is a meaningful interference with a possessory interest
- Possessory interest doesn’t have to be legal (like in Jacobsen, the cocaine)
- When gov’t destroys property deliberately = seizure (ex: break door to enter home = door seized)
- TAKE or DESTROY property
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Seizure of Persons
- Terry-Mendenhall Test:
o Physical force or show of authority (objective - what the officer has actually done)
o RPP - Totality of the circumstances (objective from suspect’s perspective)
o Would not feel free to leave
- “Heightened Coercion”  just because a person in uniform asks questions and you wouldn’t feel
free to leave, that is not enough; can’t consider all communication with a gov’t official a seizure
- Examples of seizures:
o Use of force constitutes a seizure (ex: being shot in the back by a cop)
o Being stopped at a road block is a seizure
- Examples that are cause for concern:
o Questioning
o Questioning in confined spaces
o Pursuit of fleeing suspect
o Passengers in a vehicle that the police have stopped
United States v. Mendenhall (1980)
- FACTS: Mendenhall at Airport; DEA agents thought seemed like unlawful carrier of narcotics;
approached and asked questions; went with agents to DEA office after they IDed themselves; she
said didn’t object to search; strip search; gave cop heroine
- Seized on concourse? NO  they request, don’t demand, info from her; she consents; RPP
would’ve felt free to leave; she wasn’t restrained
- Seized when taken to DEA office? NO  they asked her to go and went voluntarily; choice
- Court looking for heightened coercion - don’t want all police questioning to constitute a 4th
amendment seizure because of POLICE UTILITY and crime control
- HOLD: No seizure under 4th
- CONCUR: Feds reasonable suspicion present; Reasonableness of a stop: (1) the public interest
served by the seizure, (2) the nature and scope of the intrusion, and (3) the objective facts upon
which the law enforcement officer relied in light of his knowledge and expertise
- DISSENT: RPP wouldn’t think could leave; mere conduct not enough to show suspicion
- 2 justices for majority; 3 for concurrence; 4 for dissent  plurality decision
Note Case: Florida v. Royer (1983)
- Facts similar to Mendenhall except that tell person that they suspect him to be a criminal and
keep his documents longer  This constitutes a seizure
Florida v. Bostick (1991)
- FACTS: Two cops found cocaine in Bostick’s suitcase when routine board bus and ask
permission search luggage
- When a person is seated on a bus and has no desire to leave, the degree to which a reasonable
person would feel free to leave is not an accurate measure of the coercive effect of the encounter
- APPROPRIATE QUESTION: whether a reasonable person would feel free to decline the
officers’ requests or otherwise terminate the encounter
- “Reasonable person” test presupposes an innocent person
- RULE: in order to determine whether a particular encounter constitutes a seizure, a court must
consider all the circumstances surrounding the encounter to determine whether the police conduct
would have communicated to a reasonable person that the person was not free to decline the
officers’ requests or otherwise terminate the encounter
- DISSENT: approve of rule formulation but wants applied rather than remanded; wants to find that
there was a seizure on the application; officers armed - won’t feel free to leave
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Note Case: United States v. Drayton (2002)
- Another bus case
- Officers in uniform wearing guns is not an issue of heightened coercion on the totality of the
circumstances because almost all officers wear their uniforms and are armed
- No requirement of a warning that consent could have been refused
- DISSENT: what really is heightened coercion? Balance of power concern; leverage
Seizure of Persons?
- Mendenhall test:
o Show of authority or use of physical force
o Totality of the circumstances
o Reasonable person - From the suspect’s position (objective)
o Not feel free to leave
- Bostick - confined spaces:
o Rather than not feel free to leave formulation - feel free to decline the officer’s request or
terminate the interview by the officer
o Confined space is a factor that goes in the totality of the circumstances, but is not a major
factor
- Drayton - consent searches:
o Not required to warn that consent could be refused
o Uniforms, badges and guns are factors in the totality of the circumstances, but not major
factors
o Concern with heightened coercion - but not willing to consider all discussions with
officers heightened coercion
California v. Hodari D. (1991)
- FACTS: cops patrolling high crime area; suspicious kids ran; Hodari D ran, chased, cuffed, had
discarded a rock of crack-cocaine
- ISSUE: whether “seized” within meaning of 4th at time dropped drugs
- HELD: No 4th amendment seizure at time dropped drugs
- Seizure = taking possession of something, physical force; telling someone to stop isn’t the same;
not a seizure until the officer actually touches the person (relates to CL arrest)
- To satisfy Mendenhall, show of authority must be submitted to; flight is not submission
- Policy thought: don’t want to give people incentive to flee from cops
- Motion to exclude evidence properly denied
- DISSENT: Not being true to Katz; dictionary definitions insufficient; Mendenhall isn’t about CL
so shouldn’t be considering this; police incentive to make people run - if no objective suspicion to
stop and question someone and then run, then police suddenly have probable cause
- RULE: Show of authority requires submission; no seizure until submission occurs
Note Case: Brendlin v. California (2007)
- When the driver of a vehicle is seized, all of the passengers are seized too
- RPP doesn’t feel free to leave at a traffic stop
- Submission to show of authority found in not leaving a car
- Cross reference: Rakas - “standing”
- Cross reference: Johnson - authority of officers to seize passengers in vehicle stops
- This case says passengers seized; Johnson says why officer has authority to do seizing
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EXCLUSIONARY RULE
What is it?
- Prevents gov’t from introducing evidence that violates the constitution
- If 4th amendment violation which causes police to get evidence, then it is inadmissible
Weeks v. United States (1914)
- ORIGIN OF EXCLUSIONARY RULE
- FACTS: Weeks arrested concerning transport of lottery tickets/coupons in violation of criminal
code; arrested without warrant; cops entered house and found papers; Marshal returned and found
more things; no warrant either time; papers introduced at trial, but Weeks objected
- When police illegally search and seize, items must be returned and excluded from evidence
Two reasons why we have the exclusionary rule:
(1) Right needs a remedy  if the government can illegally search and seize without the remedy of
getting the items back, then the 4th amendment right has no value; we don’t want the 4th
amendment to be meaningless words; effective remedy=exclusionary rule
(2) Judicial integrity  Don’t want the judiciary to be accessories after the fact; they would be
complicit to the 4th amendment violation; cannot condone or sanction these violations
Status of Exclusionary Rule after Weeks…
- The court is not very clear here as to where the exclusionary rule comes from; unsure if it is
implicit in the 4th amendment; question as to whether this is a constitutional rule or an evidentiary
rule created under the SC’s supervisory authority; when Congress hasn’t acted, the SC can set
evidentiary rules for the lower courts
- This is a federal rule; unclear if it is applied to the states; if it is an evidentiary rule, it couldn’t be
applied to the states; the SC controls the rules of evidence for the lower federal courts but not the
states; if it is a constitutional rule then it would be applied to the states through incorporation
Between Weeks and Mapp: Wolf v. Colorado (1949)
- FACTS: Wolf abortionist; wants evidence suppressed that was seized; presumptive unreasonable
search and seizure
- ISSUES: Is 4th applicable to states? Is Exclusionary Rule in Weeks applicable to states too?
- If 4th pseudo-incorporated (parallel right similar to 4th) then it IS applicable
- Exclusionary rule is NOT applicable  not part of substantive due process clause
- Substantive DPC is about tradition; tradition against unreasonable searches and seizures is
extensive (goes back to English CL); tradition in exclusionary rule not deeply rooted in history
(made up in 1914 in Weeks; not in CL)
- When this case was decided about 2/3 of states didn’t have exclusionary rule
- DISSENT: Lack of alternative remedies concerning 4th amendment violations; traditional remedy
was trespass action at CL, but insufficient protection; Exclusionary rule based in relationship
between 4th and 5th amendments (Boyd) - 4th remedy generally trespass and 6th exclusion of
statements at trial, so if amendments have an intimate relationship, then not a big leap to say
exclusionary element of 5th is applicable to 4th
- Bottom Line of Wolf: Something like the 4th amendment is applicable to the states, but the
exclusionary rule is not
- This is OVERRULED by Mapp…
Mapp v. Ohio (1961)
- FACTS: info about someone hiding in home; couldn’t get in; no warrant; fake warrant to get in;
searched and found materials to convict Mapp
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Question: do the 4th amendment and exclusionary rule apply to states?
HOLD: all evidence obtained by searches and seizures in violation of the Constitution is, by that
same authority, inadmissible in a state court
Interpret 4th as INCORPORATED - there is no more pseudo-incorporation of the 4th
Exclusionary rule is INCORPORATED as well as a REMEDY to a 4th violation
Wolf is overruled
Need for symmetry between national and state governments - uniformity
By the time Mapp is decided, over half of the states have adopted the exclusionary rule
Policies:
o Reaffirmation of the notion of JUDICIAL INTEGRITY (Weeks)
o DETERRENCE  this becomes the policy for the exclusionary rule; incentive to violate
the 4th is desire to collect evidence, so to properly counter cannot allow evidence in
o Repeat 4th and 5th amendment argument from the Wolf dissent regarding the intimate
relationship and exclusion as the remedy for the 5th
CONCUR: Black says 4th and 5th combined so exclusion remedy of 5th imported to 4th; Douglas
says conclusion necessary for enforcement purposes bc alternative remedies insufficient
DISSENT: No changes since Wolf; state choice; no federal compulsion; 4th and 5th not combined
Note Case: United States v. Calandra (1974)
- Court dictates deterrence policy of exclusionary rule
- The exclusionary rule is NOT part of the 4th amendment; it is a JUDGE-MADE RULE
- Not an evidentiary rule nor constitutional rule  WE DON’T KNOW WHAT IT IS A PART OF
- The closest explanation we have is the 5th amendment self-incrimination clause and Miranda
warnings - the SC said in Miranda that the warning requirement comes from the 5th amendment;
but in a case called Pucker in 1974, the same year as Calandra, the court said Miranda warnings
were a judge-made rule; in the Dickerson case in 2000, the court said that Miranda warnings are a
CONSTITUTIONAL RULE (below constitutional right/above supervisory rule)
Legal Foundation for Exclusionary Rule?
- Text? NO
- Original understanding? NO (prior remedy was CL trespass)
- Evolving legal traditions (by 1961 in Mapp)? YES  Over half the states adopted rule by Mapp
- 4th and 5th amendment connection  5th amendment exclusionary rule
o Problem after the 1960s with this argument? The court explicitly says there is very little
connection between the two amendments; makes this argument problematic
- Policy? YES  Deterrence (Alternative remedies insufficient)
PROBABLE CAUSE
What is it?
- Fourth Amendment protection - “unreasonableness” clause and “warrant clause”
- Probable cause is an essential precondition for a valid warrant to search or seize
- A variety of types of warrantless searches and seizures are constitutionally acceptable
- Probable cause is not a precondition for warrantless searches and seizures
- But probable cause is a norm of reasonableness for searches and seizures without warrants
- Requirement of sufficient likelihood, not certainty
- Standard: QUANTUM OF SUSPICION
o Totality of the circumstances test - all things considered (fact intensive inquiry; fluidity)
o Reasonable basis for believing (don’t have to be right all the time)
o Substantial chance
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What does it relate to?
- Seizures  arrest warrants
o Probable cause to arrest  exists where the facts and circumstances within the officers’
knowledge and of which they have reasonably trustworthy information are sufficient in
themselves to warrant a man of reasonable caution in the belief that an offense has been
or is being committed by the person to be arrested
 A certain quantum of likelihood that
 (1) That particular individual
 (2) Has committed or is committing a particular offense
- Searches
o Probable cause to search  exists if the facts and circumstances within the officers’
knowledge and of which they have reasonably trustworthy information are sufficient in
themselves to warrant a man of reasonable caution in the belief that an item subject to
seizure will be found in the place to be searched
 A certain quantum of likelihood that
 (1) Something that is properly subject to seizure by the government, i.e.,
contraband or fruits, instrumentalities or evidence of a crime,
 (2) Is presently
 (3) In the specific place to be searched
Note Case: Maryland v. Pringle (2003)
- FACTS: Pringle passenger in car with two other people; car stopped; everyone arrested; cocaine
- 9-0 unanimous decision against Pringle - court says there IS probable cause that coke was his
Issues with probable cause:
- Informants - tips (Spinelli)
- Pretextual arrests (Wren)
Probable Cause Procedure:
- Cop provides magistrate with warrant application
- Magistrate evaluates application to determine whether or not there is probable cause
- Looking for true facts
- How do we know the cop is telling the truth?
o Oath or affirmation requirement of 4th amendment (clause 2) - “veracity”
o Basis of knowledge  cop saw this or these are his inferences
- Hearsay  information not acquired first-hand by the officer or other individual who related it to
the magistrate or trial court (not within that person’s personal knowledge)
- Informants: concerned with the informant’s veracity and his basis of knowledge
o Veracity  no oath or affirmation; consider track record of informant’s information;
statement against inference
o Basis of knowledge  saw something; informant; self-verifying detail
- Started with two-part test; now considered part of fluid common sense TOC analysis
Spinelli v. United States (1969)
- FACTS: Spinelli convicted for intent to conduct gambling activities against state law; challenged
constitutionality of warrant that authorized FBI search to find evidence
- In Aguilar v. Texas (1964), search warrant issued from hearsay; Court found affidavit inadequate
for magistrate to make proper determination
- FBI affidavit here more ample than the one in Aguilar, but find tip doesn’t contain sufficient
statement of underlying circumstances from which informer made his conclusion; not alleged that
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informer personally observed bookmaking operation; if informant got information indirectly,
didn’t explain why his sources were reliable
Without statement detailing manner in which information gathered, important that tip describe
criminal activity in sufficient detail that magistrate may know that he is relying on something
more substantial than a casual rumor or an accusation based on reputation
Facts not provided with sufficient particularity; also FBI’s investigation insufficient to further
verify the allegations
HOLD: No basis for finding probable cause
DISSENT: Should be a common sense fluid TOC test; this test is too rigid
Illinois v. Gates (1983)
- FACTS: Cops receive anonymous letter about Sue and Lance Gates selling drugs; provided with
a number of details; cops pursued tip with investigation; learned many facts true; attached letter
to affidavit; granted search warrant; found lots of drugs
- TOC approach: elements of veracity, reliability and basis of knowledge should be understood as
closely intertwined issues that may usefully illuminate the common-sense practical question
whether there is probable cause to believe contraband or evidence is located in a particular place
 deficiency in one doesn’t mean no probable cause
- Conclude: abandon the two-pronged tests of Aguilar and Spinelli; reaffirm the totality-of-thecircumstances analysis
- Why Spinelli should be more flexible?
o Encourage use of tips
o People engaged in warrant-issuance process that aren’t attorneys (need less rigid test)
o If too many roadblocks to get warrant, officers will try to get around warrant completely
- CONCUR: Apply Spinelli with more flexibility
- DISSENT: rigid test helps with structured decisions; tip here not 100% accurate
Whren v. United States (1996)
- FACTS: person driving car suspiciously; traffic violation; cop pulls car over; when at driver’s
window saw bags that looked like crack cocaine; both men arrested; retrieved drugs; challenged
legality of stop and seizure, claim not justified by probable cause
- Temporary detention of individuals during stop of a car by cops constitutes a seizure, and the stop
is considered reasonable if the cops have probable cause to believe a traffic violation has occurred
- The subjective motivation of the officer is irrelevant, only objective
- Cops here have probable cause to stop for traffic violation so stop and seizure is legal
Note Case: Devenpeck v. Alford (2004)
- Probable cause for two offenses; no mention of offense one; turns out first offense isn’t actually
an offense; second one is, but doesn’t articulate
- Don’t care about officer’s subjective motivations
- All we need to know is that there was probable cause for an offense
- What is said in the arrest warrant doesn’t matter, so long as facts for probable cause present
Magistrates v. Officers
- Magistrates and PC determinations  “great deference”
- Officers and PC determinations  de novo review
- Why does the magistrate get great deference and the officer doesn’t?
o Magistrates are supposed to be detached and neutral
o Want the officer to go through the magistrate whenever possible
o Ornelas (1996)  case with Gates regarding great deference standard
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Ventresca  probable cause slightly lower standard when applied by magistrate, and
slightly higher when made by officer
Handout: Warrant Preference and Issuance of Warrants
(1) Warrants must be supported by probable cause
- The text of the second clause of the 4th amendment states: “No warrants shall issue, but upon
probable cause”
- Probable cause=Constitutional requirement for issuance of a warrant
(2) The “Warrant Preference”
- Searches and seizures based on warrant are preferable to warrantless ones
- The thought: Probable cause determination typically required for a search or seizure will be made
with greater accuracy by a “detached and neutral magistrate” than by a cop engaged in action
- Assume the interests of the 4th amendment are better protected when a warrant is required
- Johnson v. United States (1948)
(3) “Detached and Neutral Magistrates”
- Detachment and neutrality refer to magistrate’s disengagement from enterprise of crime control
and his/her independence from prosecutors and police
- Coolidge v. New Hampshire (1971)
- Not required to be a judge or lawyer but must be capable of making the probable cause
determination to qualify as a magistrate or judicial official (Shadwick v. City of Tampa (1972))
(4) Oath or Affirmation
- Second clause of 4th amendment: “No Warrants shall issue, but upon probable cause, supported
by oath or affirmation”
- Oath or affirmation supporting facts put before the magistrate by law enforcement to demonstrate
probable cause
- If an officer violates his/her oath or affirmation (intentionally or knowingly making a false
statement to the magistrate or acting with reckless disregard to the truth or falsity of a statement)
and the statement was necessary to find probable cause, then warrant is invalid (Franks v.
Delaware (1978))
(5) Particularity
- Second clause of 4th amendment: “particularly describe the place to be searched, and the persons
or things to be seized”
- Requirement of reasonableness - reasonable particularity in light of the facts and circumstances
(Steele v. United States (1925))
- Standard may be stricter to question of “things to be seized” given the historic danger of “general
searches” which the 4th was intended to prohibit (Marron v. United States (1972))
Handout: Warrant Execution Issues
(1) Execution within specified time
- Some jurisdictions require that a search warrant be executed within a designated period of time
on the assumption that the evidence supporting the warrant is subject to “staleness” with the
passage of time
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(2) Nighttime Execution of Warrants
- Some jurisdictions prohibit nighttime execution of warrants in the absence of special
circumstances
- “Daylight”  defined by specific hours in state statutes; Federal rules say 6am-10pm local time
- Unclear if this is a constitutional requirement
(3) Means of Entry to Execute Warrants
- (a) Wilson v. Arkansas (1995)  the CL “knock and announce” principle forms part of the
reasonableness inquiry under the 4th and is in general required by the 4th
- (b) Richards v. Wisconsin (1997)  in order to justify a “no-knock” entry, police must have a
reasonable suspicion that knocking and announcing their presence would be dangerous, futile, or
inhibit the effective investigation of crime
(4) Damage to Property During Execution of Warrant
- United States v. Ramirez (1998)  excessive or unnecessary (“unreasonable”) property
destruction during a search violates the 4th, even when entry is lawful and fruits of search aren’t
subject to suppression
(5) No Occupants on Premises During Execution of Warrants
- Most courts agree that an execution of a search warrant is permissible even in absence of
occupant of premises searched
(6) Procedures in the Absence of the Occupant
- Generally officers required, when searching premises in the absence of the occupant, to leave a
copy of the search warrant and inventory of seized items at premises
- Unclear if this is a constitutional requirement
- United States v. Simmons (2000)  4th amendment doesn’t require officers to leave a copy of the
search warrant or an inventory of items seized
Note Case: Maryland v. Garrison (1987)
- FACTS: Officers execute search warrant; search something outside of the warrant
- What happens when officers make a mistake when executing a search warrant?
- Officers only have to be reasonable in their execution of the search warrant; they don’t have to be
correct  so long as the reasonableness is present it is okay if they make a mistake
- Same is applied to arrest warrants
EXIGENT CIRCUMSTANCES SEARCHES
What is it?
- This is a WARRANT EXCEPTION  probable cause without a warrant
- Question: Is there a good reason for not having a warrant? AKA exigent circumstances
- Basic Exigencies:
o Destruction of evidence
o Hot pursuit (flight or escape)
o Danger (persons or search for weapons)
 When cops can point to one of these three, warrantless search deemed ok
- This is a TOC analysis; unclear whether a quantum of suspicion attaches to the exigency
Warden, Maryland Penitentiary v. Hayden (1967)
- FACTS: Armed robbery of cab company; man identified by cab driver and told cops which house
he entered; cops knocked and announced; Mrs. Hayden allowed in to search; Found Mr. Hayden
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pretending to be asleep; before knew he was found, other cops found other items in house,
including jacket and trousers in washing machine that supposedly wearing during robbery
Neither entry without warrant to search nor search invalid - exigent circumstances present
Scope of search can be as broad as reasonably necessary to thwart the suspected danger present
Exigencies of DANGER and HOT PURSUIT present, so no constitutional violation here
Note Case: Welsh v. Wisconsin (1984)
- FACTS: Warrantless nighttime entry of home; DUI - get BAC evidence
- Court found no sufficient exigency:
o Pursuit  He was home in bed; not even “lukewarm pursuit;” no flight evidence
o Danger  Not in car anymore so not a danger to anyone
o Loss of Evidence  body is metabolizing alcohol; different from Schmerber because
here in home, and 4th amendment protections stronger in home = insufficient exigency
Note Case: Brigham City, Utah v. Stuart (2006)
- FACTS: police responding to disturbance call; through window saw fight; break in; get evidence;
cops argue probable cause (criminal assault) sufficient for exigency
- Distinguishable from Welsh? Element of DANGER  altercation isn’t over here…
- Quantum of suspicion  we want cops to protect; necessary to stop fight
Vale v. Louisiana (1970)
- FACTS: Two warrants for Vale’s arrest; surveilling house; saw what looked like drug deal; cops
drove up and Vale recognized them, walked to house; arrested driver of car; told Vale to stop and
would search house because of what they just saw; advised of rights; found drugs in bedroom
- Chimel v. Cali  search incident to an arrest -- must be constitutionally confined to area within
arrestee’s reach at time of arrest (where he might gain possession of weapon or destroy evidence)
- RULE: Search incident to arrest ONLY if it is substantially contemporaneous with arrest and
confined to the immediate vicinity of the arrest
- Cops aren’t allowed to create exigencies; if they have time to get a warrant, they must do so; if
foreseeable, then no exigency
- DISSENT: Issue of loss of evidence; probable cause present; someone inside could have
observed incident and destroyed evidence; decision to search not unreasonable
Note Case: Illinois v. McArthur (2001)
- FACTS: Wife told officers husband had weed in trailer; seized, got warrant, found drugs
- Court found seizure reasonable
VEHICLE AND CONTAINER SEARCHES
Auto Exception  Need probable cause but not a warrant
- Requirements:
o Appearance of being READILY MOBILE
o TRANSPORTATION  non-transport residence
o PUBLIC PLACE  not a private residence (public roadway; public parking lot)
 Is this more of a curtilage question or a third prong to the auto exception?
 No case that says what to do about a private driveway
 Closest case is Coolidge  search of car in driveway found to be ok, but
4-justice plurality; and doing an actual exigency analysis
 Lower courts are split - don’t regularly distinguish between the two
 Analysis should take to same place; curtilage analysis is “cleaner”
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Policies:
o Diminished expectation of privacy  not depository for personal belongings
o Recurring exigency
Chambers v. Maroney (1970)
- FACTS: Two men armed robbery of service station; teens saw car, station worker gave
description; broadcast over police radio of descriptions; found car and arrested occupants;
searched car and found two revolvers and glove where money was and stuff from a robbery a
week ago; warrant to search home next day and found ammo
- Right to search and validity of seizure not dependent on right to arrest, but dependent on
reasonable cause the seizing officer has for belief that the contents of car offend against the law
- Carroll v. U.S. (1925)  search warrant unnecessary where probable cause to search car stopped
on highway; car is movable, occupants alerted, and contents may never be found again if warrant
must be obtained; immediate search is constitutionally permissible
- HOLD: No constitutional difference between seizing and holding a car before obtaining a warrant
versus carrying out an immediate search without a warrant - both reasonable under 4t
- CONCUR/DISSENT: Ok to take steps to preserve evidence and make searchable, but seizing and
warrantless search not one in the same; greater intrusion in warrantless search
California v. Carney (1985)
- FACTS: Cops learned Carney bring youths into motor home and give weed in exchange for sex;
caught one youth leaving; asked youth to knock on door; when Carney came out, cops went in
without warrant or consent and searched; found drug paraphernalia; arrested Carney and took
possession of motor home; found more drugs later
- Objective observer could see motor home here was being used as a vehicle and not a home
- HOLD: Search was NOT unreasonable
- DISSENT: Inherent mobility not sufficient justification for warrant exception; heightened
expectation of privacy for motor home because of home element; application of rule too broad
United States v. Chadwick (1977)
- CONTAINER CASE
- FACTS: Amtrack railroad officials saw Machado and Leary load footlocker onto train; very
heavy and leaking talcum powder; drug dog signaled controlled substance in the footlocker;
officers arrested Machado and Leary and Chadwick who had showed up to pick them up; no
weapons upon search; took keys to footlocker; opened footlocker and luggage at fed building an
hour and a half after arrests without consent or a search warrant; found weed
- A container is an item that can contain another item
- Containers do NOT fall under the auto exception  no mobile container exception
- Containers under ordinary exigency exception
- Preference for seizure  Seize container, get warrant, then conduct search
- HOLD: When no exigency shown to support an immediate search, the Warrant Clause places the
line where the property to be searched comes under the exclusive dominion of the police
- DISSENT: Court should define proper scope of search incident to an arrest; had cops done things
minutely differently, would have been ok to search and seize locker
California v. Acevedo (1991)
- FACTS: bag of weed (container) in trunk of car (auto)
- ISSUE: whether the 4th requires the police to obtain a warrant to open the sack in a movable
vehicle simply because they lack probable cause to search the entire car.
- Forcing cops to search entire vehicle exacerbates the intrusion on the citizen’s privacy interest
- Police may search without warrant if search supported by probable cause
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Here, cops had probable cause to believe paper bag in trunk had weed; facts show no probable
cause to believe anything else in car, so search of entire vehicle would be unreasonable
RULE: Police may search an automobile and the containers within it where they have probable
cause to believe contraband or evidence is contained
DISSENT: decision to invade privacy should be made by neutral magistrate
CONCUR: Return to reasonableness as required by 4th; supposed general rule that warrant always
required not in CL and confuses rather than facilitates attempt to develop rules of reasonableness
Note Case: United States v. Di Re (1948)
- Probable cause to search a car does not justify a body search of a passenger
- Still uncertain about whether all items attached to/carried on/by a person are governed by Di Re
- Wyoming v. Houghton (1999)  when there is probable cause to search a vehicle, the automobile
exception permits the warrantless search of a passenger’s personal belongings
*The automobile exception applies any time there is an automobile, whether or not it has a container.
There is no container exception when the container is outside of an automobile.
WARRANTS
The Warrant Requirement and Seizures of Persons
United States v. Watson (1976)
- FACTS: informant told inspector that Watson had stolen credit card; previously given reliable
info; gave card to inspector; arranged to get other cards; set up and caught in act; given Miranda
warnings; when searched had no cards on person; Watson allowed him to search car; found two
- A felony arrest in public does not require a warrant
- There is a warrant preferences for searches, but no presumption of warrant preference for seizures
- Because this court finds the arrest didn’t violate the 4th, then Watson’s consent to the search was
not the product of an illegal arrest
- CONCUR: Logic v. History  logic says arrests should require warrant because of personal
intrusiveness at least to same extent as searches; but logic sometimes must defer to history, which
says in the past warrantless arrests are justified by probable cause
- DISSENT: shouldn’t be considering whether warrant necessary in other situations because there
are exigent circumstances here; should stick with logic argument, not history
Note Case: Gerstein v. Pugh (1975)
- 4th requires judicial determination of probable cause as a prerequisite to extended restraints on
liberty after arrest
- Generally must get people before magistrate within 48; if not done, burden shifts to gov’t to
demonstrate existent of a bona fide emergency or other extraordinary circumstances
Full Custodial Arrest
Atwater v. City of Lago Vista (2001)
- ISSUE: Does 4th forbid warrantless arrest for misdemeanors? HOLD: NO
- FACTS: TX seatbelt law allows cops to arrest without warrant for violation; Atwater with two
children pulled over; no license or insurance papers; claimed stolen day before; friend came to get
kids and Atwater arrested; violation of 4th?
- Officer only needs probable cause to effectuate a full custodial arrest
- RULE: STANDARD OF PROBABLE CAUSE APPLIES TO ALL ARRESTS
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DISSENT: This wasn’t the standard at CL; should apply balancing test; probable cause is a
necessary condition for warrantless arrests but alone it isn’t a sufficient condition
Follow-up Case: Virginia v. Moore (2004)
- FACTS: Moore arrested for driving with a suspended license; VA law prohibited the arrest; there
was probable cause for the offense; searched incident to the arrest and found narcotics
- 9-0 SC said no violation of 4th bc probable cause - fed law trumps state law
- Policy thought: VA’s rules say to prohibit the arrest, but if the arrest is effectuated they reject the
ER; Scalia says VA’s rule can’t be imported because the 4th ER would overrule VA’s rejection
Arrests in the Home
Payton v. New York (1980)
- FACTS 1: 1970 cops had probable cause that Payton had murdered the manager of a gas station;
no warrant; knocked on door; used crowbars to break in; non one there; found bullet casing;
seized as evidence; Payton eventually surrendered to police; wanted to suppress evidence; judge
said forceful warrantless entry ok under NY law
- FACTS 2: 1974 Riddick arrested for two armed robberies that occurred in 1971; no warrant for
arrest; knocked on door; saw him in house, entered and arrested; searched drawers and found
narcotics and related paraphernalia; trial judge said warrantless entry authorized by NY law and
search of immediate area reasonable under Chimel
- Basic principle of 4th: searches & seizures inside home w/o warrant=presumptively unreasonable
- Payton RULE: We need to have a reasonable belief that the person is within the home; and we
need to have the arrest warrant
- Differences in the intrusiveness of entries to search and those to arrest are ones of degree rather
than kind  Arrest warrant has description of person to be seized; a search warrant for a person
includes the arrest warrant; also has the location
- Concern with search warrant? Location element can go stale (people move); would impede law
enforcement
- Why arrest warrant to protect privacy in the home?  COMPROMISE between need for
effective law enforcement and protection of privacy
- DISSENT: not unreasonable at CL to use force to effect a warrantless felony arrest; 4th is
concerned with people, not places; At CL, 4 restrictions on home arrests: felony, knock and
announce, daytime, and stringent probable cause  these provide privacy protections associated
with the home
Follow-up Case: Steagald (1981)
- FACTS: Police enter Steagald’s home to arrest a third party; see narcotics and arrest Steagald
- RULE: To arrest someone in their home, need an ARREST WARRANT; to arrest a third party in
another’s home, need a SEARCH WARRANT
- DISSENT: search warrants go stale and will impede law enforcement
Cross-issue: 4th amendment Standing
- Rakas, Olson, and Carter
- Privacy area being invaded for a third party arrest is the person who owns the home, not the third
party - that would mean the third party would not have standing in that home
Searches Incident to Arrests
*Basic Rule: When police have done a FCA, they get an automatic search of the person and the person’s
wingspan/grabbing area/reaching distance; This means no quantum of suspicion is required; police are
22
looking for weapons and evidence (this is the policy reason for this) because we are worried about the
danger to the police officer
Chimel v. California (1969)
- FACTS: Cops at Chimel’s with arrest warrant for burglary; knocked, IDed to wife; she allowed
entry; showed Chimel warrant, asked to look around, he objected; Cops said would still conduct
on basis of lawful arrest; no search warrant had been issued; looked with wife; seized some items
- Assume arrest valid  Q is whether warrantless search justified as incident to arrest
- While there is justification to search the person for the safety of those around, there is no
comparable justification for searching any room other than that in which an arrest occurs
- Policy thought: Protecting privacy with narrow scope
- Court finds scope of this search was unreasonable
- DISSENT: 4th says no unreasonable searches, not warrantless ones; recurring exigency issue
United States v. Robinson (1973)
- FACTS: Cop believed Robinson operating car after revocation of permit - statutory offense;
signaled to stop car, arrested (assume PC for arrest); searched - heroine in cigarette package
- RULE: A custodial arrest of suspect based on probable cause is a reasonable intrusion under the
4th; that intrusion being lawful, a search incident to the arrest requires no additional justification;
it is the fact of the lawful arrest which establishes the authority to search; a full search here not
only an exception to the warrant requirement, but is also a reasonable search under the 4th
- DISSENT: Should have case-by-case adjudication; police can abuse these powers; Terry frisk
enough to find weapons, so shouldn’t be able to do more; when container found on person should
be under Chadwick and not able to search (like footlocker case)
Note Case: Knowles v. Iowa (1998)
- Addressed constitutionality of searched person incident to issuance of traffic situation
- There is no search incident to a citation or to a traffic stop; requires FCA to conduct search
- Rationales for exceptions under arrest (weapons & evidence) not present in these situations
Vehicles
Rules: If the officers have a reasonable belief or reason to believe…
- (1) Traditional search incident to arrest
o Within reaching distance of the passenger compartments
o And is unsecured (not cuffed, not on the ground, etc)
 *Then the cop gets to search the passenger compartments
- (2) Not a traditional search incident to arrest
o Evidence related to the crime of arrest is in the passenger compartment or vehicle
o Regardless of where the other person is
 *Then the cop gets to search the passenger compartment or vehicle
 This sounds like the approach rejected in Chimel
New York v. Belton (1981)
- FACTS: Pulled over car; 4 men; none owned car; smelled weed; saw envelope on floor
“supergold”; arrested men for possession; patted all down; envelope weed in it; gave Miranda
warnings; searched each person and passenger compartment; in Belton’s jacket found cocaine
- HOLD: when cop has made a lawful custodial arrest of the occupant of an automobile, he may,
as a contemporaneous incident of that arrest, search the passenger compartment of that auto
- Police may also examine contents of containers found in the passenger compartment because if
the compartment is within reach, so are the containers in it
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-
Still maintain substantially contemporaneous requirement - search must be immediate
(This rule has not been overruled but it has been narrowed)
Trunk excluded here because not immediately accessible as incident to the arrest; but trunk IS in
AUTO EXCEPTION
DISSENT: Shouldn’t have special vehicle rules - should follow Chimel; should be actual
reaching distance; privacy interest in vehicle completely compromised with this rule
Note Case: Thornton v. United States (2004)
- ISSUE: Is Belton limited to officer contact with occupant while occupant still in vehicle, or does
it apply when arrestee has stepped out of the vehicle?
- HOLD: Belton governs when arrestee out of vehicle - “Recent occupant”
- Spatial and temporal dimensions - distance from car and how long ago arrestee in car
- DISSENT: Chimel for pedestrians, Belton for drivers; bright-line should be whether or not in car;
if in car when police approach then Belton, if out of car when police approach then Chimel
- CONCUR: Scalia doesn’t like search incident to arrest in vehicles; Belton is a fiction because
arrestee rarely in reaching distance when searched (this gets adopted as part of Gant rule…)
Arizona v. Gant, 129 S. Ct. 1710 (2009)
- DRAMATICALLY NARROWS BELTON RULE
- FACTS: Gant arrested for traffic violation; handcuffed and in SWAT car; search vehicle based on
Belton; find narcotics
- Court establishes a two-prong test: First prong narrows Belton, second is an additional search
- Prong 1: If the officers have reason to believe the person is within reaching distance and is
unsecure then the entire passenger compartment may be searched
o Under Chimel would litigate the actual reaching distance
o Under Belton wouldn’t litigate the reaching distance at all
o Under Gant, do a little bit of both - will litigate the reaching distance TO the passenger
compartment but not beyond that; if it can be reached, then the cops can search the
ENTIRE passenger compartment
 This is a bright-line rule
- Prong 2: Concerns evidence gathering; question of policy and scope; unrelated to reaching
distance
STOPS, FRISKS, AND THE RIGHT TO BE SECURE
Maryland v. Buie (1990)
- Protective sweep  a quick and limited search of a premises, incident to an arrest and conducted
to protect the safety of cops and others; narrowly confined to a cursory visual inspection of places
where a person might be hiding
- FACTS: two men committed an armed robbery; one in red running suit; arrest warrants for Buie
and Allen; executed arrest warrant for Buie; verified home by phone; 6-7 cops covered first two
floors; another cop to cover basement so no one could come up and surprise them; shout into
basement; pair of hands appeared; person arrested; searched and cuffed; another officer went into
basement to make sure no one else down there; running suit in plain view and seized
- HOLD: as incident to the arrest the officers could, as a precautionary matter and without probable
cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of
arrest from which an attack could be immediately launched; beyond that, there must be
articulable facts which, taken together with the rational inferences from those facts, would
warrant a reasonably prudent officer in believing the area to be swept harbors an individual
posing a danger to those on the arrest scene
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-
Sweep lasts no longer than necessary to dispel reasonable suspicion of danger and no longer than
it takes to complete the arrest and depart the premises
DISSENT: spatial and temporal restrictions from rule not limiting; should require probable cause
to fear for personal safety before conducting sweep because of sanctity of home
Terry v. Ohio (1968)
- FACTS: Terry concealed weapon; Officer saw two men, Chilton and Terry, and observed;
looking for shoplifters; suspected casing a job; concerned they may have a gun; approached them
and asked for their names; patted down Terry; felt a pistol; couldn’t get it out; ordered men into
store; removed coat completely then pistol; patted down other men (Chilton and Katz); another
revolver on Chilton, none on Katz; took all three to station; Chilton and Terry charged
- Stop and frisk requires reasonable suspicion
- When does the 4th become relevant?  wehnever a cop accosts an individual and restrains his
freedom to walk away, that person is SEIZED; scope of search must be strictly tied to and
justified by the circumstances rendering its initiation permissible - reasonableness
- In justifying intrusion, cop must point to specific articulable facts which, taken together with
rational inferences from those facts, reasoanablly warrants the invasion
- Objective Standard: would the facts available to the officer at the moment of seizure or search
warrant a man of reasonable caution in the belief that the action taken was appropriate
- HOLD: When cop develops reasonable suspicion that person may be armed an dangerous,
identifies self as cop and makes reasonable inquiries, and where nothing dispels his reasonable
fear for his and others’ safety, the cop is entitled to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons which might be used to assault him;
this is reasonable under the 4th, and any weapons seized may be introduced into evidence
- CONCUR: Right to frisk depends on reasonableness of forcible stop; right to frisk must be
immediate and automatic (rapid and routine)
- DISSENT: need probable cause that a crime was committed or was about to be committed
What is Reasonable Suspicion?
- Objective (lower standard than probable cause)
- Totality of the circumstances
- Common sense judgment
- Fluid analysis
- Hunch + articulable suspicion
- Facts and inferences from those facts to justify the stop
Illinois v. Wardlow (2000)
- FACTS: Officers driving through area of town known for drug trafficking; cop saw Wardlow
with opaque bag; saw officers and fled; cop got out of car and stopped him; conducted protective
pat-down search for weapons; squeezed bag and felt heavy hard object; opened and found gun
- Public encounter between citizen and cop governed by Terry
- Reasonable suspicion established by totality of the circumstances - this is a case-by-case
determination (less demanding standard than probable cause)
- Here, high crime neighborhood + suspicious flight gave cops reasonable suspicion
- CONCUR/DISSENT: TOC is good rule, but no reasonable suspicion here; record too vague
Alabama v. White (1990)
- FACTS: police tip about White about where going and that had cocaine on her; followed; pulled
over, asked to search for cocaine; asked to search brown suitcase; found weed and arrested;
cocaine found in purse
- Can anonymous tips form the basis of reasonable suspicion? YES
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-
In Illinois v. Gates, dealt with anonymous tips and probable cause; informant’s veracity,
reliability and basis of knowledge all important - ultimately will use TOC
Police must corroborate tip through further investigation before showing reasonable suspicion
RULE: anonymous tip + official corroboration
Under the law today - could have stopped her for broken tail light and searched via Whren
Florida v. J.L. (2000)
- FACTS: tip about man with gun; found guy who met description, frisked him and found gun; J.L.
almost 16 years old; SC of Florida said search invalid under 4th; this court affirms
- Differs from White because no veracity or basis of knowledge  cops corroborated description of
person at bus station only = insufficient (no predictive details)
Minnesota v. Dickerson (1993)
- FACTS: searched Dickerson for weapons; felt lump, reached to grab and found cocaine
- Stop and frisk valid under Terry, but seizure of cocaine unreasonable under 4th
- Plain Touch Doctrine: If develop probable cause during frisk, seizure is acceptable
- Here, reasonable suspicion didn’t develop into probable cause, so unreasonable
United States v. Sharpe (1985)
- FACTS: Overloaded car and truck with camper; found weed; didn’t arrest for 30-40 minutes after
pulling over on highway
- Duration of frisk should be short - no more than a few minutes
- One suspect fled, so had to get other person before able to conduct frisk  because cops doing
DUE DILIGENCE, time frame of frisk not at issue
Dunaway v. New York (1979)
- FACTS: Cops picked up Dunaway and brought to police station for questioning about a murder
occurring during an armed robbery; never formally arrested; made incriminating statements
- Found that this was a full custodial arrest -- handcuffs or no handcuffs -- because taken against
will to jail
- When a frisk turns into a full custodial arrest:
o Spatial  unreasonable movement of D by cop is a de facto arrest and not a Terry stop
o Seizure Intensity  if put in handcuffs or hit, de facto arrest
o Temporal  If held for unreasonable amount of time, becomes FCA
o Consent Frisk is OK and does not fall into 4th (investigatory)
Michigan v. Long (1983)
- FACTS: Deputies saw car speeding, turn down road, swerve into ditch; went to investigate; Long
out of car; left door open; not complying; walked to car, saw large hunting knife; stopped Long,
Terry frisk; no weapons on him; shone light into car to see if other weapons; found weed;
impounded vehicle; trunk had 75 lbs weed
- Terry extends to the passenger compartment of the vehicle under certain circumstances. Limited
to those areas a weapon may be placed or hidden, RS still required.
- By analogy, if we are arresting someone we can search the car (Belton) so if we are conducting a
Terry stop, we can extend it to the car. The policy concern is officer safety.
- Frisk of the car goes the same as a frisk of someone person  extends Terry to inanimate objects
- Have to squeeze soft containers and open hard containers
- DISSENT: Can you really frisk a vehicle? Invasive; low justification
Comparing Terry to Traffic stops:
- Asking for you name (Hiibell 2004)
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-
-
-
-
o Traffic stops -- yes
o Terry stop -- if it is reasonably related
Are you compelled to give ID?
o Traffic stop -- obviously yes
o Terry stop -- (Hiibell) state may compel you to give your name to an officer making a
Terry stop if the request is reasonably related to the circumstances justifying the stop.
This compels simply the name, not a set of ID.
Asking driver & passenger to step out of a car w/o suspicion? (Traffic Stop)
o Mimms (may order out driver)
o Wilson (may order passengers out)
o Terry stop of vehicle, can you order out? No case on point yet, but Mimms & Wilson rule
may apply if it is reasonably related to the justification of the stop.
Asking for consent search:
o Terry stop -- AL v. White assumed it was ok to ask for consent. It might have the
limitation of being reasonably related to the stop.
o Traffic stop -- OH v Robinette (1996) assumed it was ok to ask for a consent search in a
traffic stop (not holding, but was an assumption) S. Ct will probably say that it is ok.
Running K9 around car
o Caballes (2005) -- it is ok to run a K9 around a car during a traffic stop. It shouldn’t
lengthen the time of the stop however.
o For a Terry stop, it hasn’t been said yes, but similar analysis is likely - reasonably related
will more than likely be added to any test.
In Traffic Stops…
- When have you been seized?
o Drivers? Officer makes a show of authority (Mendenhall); seizure completed when
submit to show of authority (Hodari D); if flee, not seized
o Passengers? They are seized when an officer stops a car (Brendlin from 2008)  seized
during an ordinary traffic stop; why? Passenger doesn’t feel able to leave the vehicle
- What makes the seizure reasonable?
o For the driver? Probable Cause  if the officer sees you commit a traffic violation then
the seizure is reasonable; if the officer merely pulls you over based on a hunch or lack of
probable cause then it would be unreasonable
o For the passenger? Arizona v. Johnson from 2009  officer safety is the court’s rationale
Exits
-
-
A seizure within a seizure
People are traffic stopped – want to move people from inside the vehicle to the outside
Why would an officer want to do this?
o Drivers  Pennsylvania v. Mimms (1977)
o Passengers  Maryland v. Wilson (1997)
 The intrusion on the individual is small
 Want to promote officer safety
Can there be a Terry frisk without a Terry stop?
o Drivers  Pennsylvania v. Mimms (1977)
o Passengers  Arizona v. Johnson (2009)
 In both cases acceptable to have a frisk without a stop
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SEARCH WARRANTS
Some introductory thoughts…
- For a certain set of premises; for persons on those premises
- When can officers search those persons? When can they seize them?
- Does the presence of a person on the premises in the SW change the test?
Ybarra v. Illinois, 444 U.S. 85 (1979)
- What authority do police have to search people in premises subject to a search warrant?
- FACTS: premises bar in Ill; search warrant for narcotics; Greg the bartender drug trafficker; Greg
named in search warrant; execute and search Greg under warrant; search Ybarra, a patron of
tavern - frisk, find crumpled cigarette packet with heroin
- Court says no automatic search of persons on premises merely because they are present
- Even though in suspicious location (premises subject to search warrant), not enough for probable
cause bc of TOC; had he run when saw cops probably would be ok (Wardlow)
- DISSENT: want bright line rule regarding safety and evidence exceptions; should get an
automatic frisk to protect themselves from weapons; evidence risk too bc of frustration of the
execution of the search warrant (ex: if Greg learned cops coming and gave items to bar patron)
Premises  in dicta, SC says no distinction between places of accommodation and home
Automobile Exception
- Wyoming v. Houghton
- Extends to containers in the vehicles; a jacket is a container because of its pocket
- If you are wearing the jacket then it is part of your person and not in the automobile exception
More on Search Warrant for Premises…
- If there is a jacket loose in the premises, it falls within the scope of the search warrant
- But if you are wearing the jacket, then it is part of your person and not within the searchable area
of the warrant  Unless you are named in the search warrant
- Intermediate circumstances: What if the jacket is in your hand and you’re not wearing it? What
about if the jacket is right next to you and your hand is on it but it’s not in your hand and you’re
not wearing it?
Michigan v. Summers, 452 U.S. 692 (1981)
- Can we seize someone on the premises that is subject to a search warrant?
- FACTS: cops about to execute search warrant; D leaving house; cops requested D’s assistance in
gaining entry; detained him while searched; found narcotics; learned D owned house; arrested
him and searched; found narcotics in D’s coat; charged with possession of heroine
- Court finds detention NOT a constitutional violation
- Justification for detention: Summers is a resident/occupant of a premises that is subject to search
under the search warrant; the search warrant means probable cause that the home contains
contraband  this isn’t just arbitrary police action; a detached and neutral magistrate has said that
the cops will find contraband, and Summers is connected to the premises as the occupant
o This is Payton in reverse  the arrest warrant gives derivative privacy protection to his
home; here we have a SW for the premises and limits the liberty interest of the person
- DISSENT: by Justice Stewart (he wrote the opinion in Ybarra); he shouldn’t have to stay; there
should be probable cause or reasonable suspicion
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INVENTORY SEARCHES
Requirements:
- Arrest
- Incarceration
- Standard Operating Procedures (SOP)
Balancing Test:
- Individual Interests
- State Interests
o Not crime-fighting
o Administrative or inventory
 Lost Property
 Stolen Property
 False Claims
 Dangerous Instruments
 Identification
Illinois v. Lafayette (1983)
- FACTS: Lafayette fighting with theater manager; arrested for disturbing peace; had shoulder bag
on; at station told to dump all contents; in cigarette case in bag had meth pills
- Three requirements for an inventory search: (1) arrest; (2) incarceration; (3) SOP
- Here, court remands because unclear whether or not Lafayette being incarcerated
- HOLD: not unreasonable for police, as part of routine procedure incident to incarcerating an
arrested person, to search any container or article in his possession, in accordance with
established inventory procedures
Colorado v. Bertine (1987)
- FACTS: arrested Bertine for DUI; after taken into custody and before tow truck, backup officer
inventoried van; opened closed backpack, found drugs and paraphernalia
- Inventory search in the context of vehicles:
o Arrest  Seizure
o Incarceration  Impoundment
o Standard Operating Procedures  (same)
 Can search containers in vehicle once these three elements are present
- Officers must conduct inventory search in GOOD FAITH
- DISSENT: this is beyond an inventory search; shouldn’t expand Lafayette; police abuse issue
Note Case: Florida v. Wells (1990)
- Inventory search of locked suitcase in trunk violated 4th bc patrol had no policy with respect to
opening such items
- Dicta: don’t have to eliminate discretion, just required to channel it - need some standard
guidelines in the procedures; should have sufficient latitude in search
CHECKPOINTS
Roving Patrols
- This is the court’s name for suspicionless stops by officers (generally not ok)
- If officer wants to stop you as part of a roving patrol must have PC or RS for Terry stop
Rules for Checkpoints
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(1) Brown balancing
o State Interest
o How the checkpoint advances State Interest
o Individual Interest
 Balance first two against third
(2) Programmatic State Interest that has a nexus of either roadway safety or border integrity
(3) Standard Operating Procedures
Michigan Department of State Police v. Sitz (1990)
- FACTS: MI began sobriety checkpoint program with guidelines for procedures to govern;
respondent sought declaratory and injunctive relief from being potentially subjected to checkpoint
- 4th amendment seizure occurs when vehicle stopped at checkpoint - but is it reasonable?
- The balance of the State’s interest in preventing drunken driving, the extent to which the system
can reasonably be said to advance that interest, and the degree of intrusion upon individual
motorists who are briefly stopped, weighs in favor of the state program
- DISSENT: individualized suspicion; undervalues citizens’ interest in freedom from random,
unannounced seizures; significant difference between seizure preceded by fair notice and surprise
one (ex: border patrol); too much discretion at hands of cops
City of Indianapolis v. Edmond (2000)
- FACTS: Indy checkpoints with procedure; include narcotics-detection dog; Edmond and Palmer
stopped and filed suit
- Walking dog around car doesn’t transform seizure into search (not intrusive enough)
- This checkpoint different from others because primary purpose is interdicting illegal narcotics
- Programmatic Primary Purpose of checkpoint should be either to protect border or ensure
roadway safety
o Near the Border:
 Illegal immigration
 Narcotics
o Roadway safety:
 License and Vehicle Registration
 Sobriety
- Can’t use checkpoints for ordinary crime investigation, so this checkpoint not ok under 4th
- DISSENT: Only difference between this case and Sitz is the dog; reasonableness should turn on
whether effectively serve a state interest with minimal intrusion on motorists; should follow
Whren’s point of subjective intent irrelevant
Note Case: Lidster (2004)
- FACTS: Hit and run; no leads; set up checkpoint on same stretch of road at same time of day one
week later hoping person was a commuter or they may stop a witness; found Lidster, who was
drinking (DUI)
- Primary checkpoint purpose doesn’t necessary have a nexus to roadway safety but it is
distinguished from generalized crime fighting  the checkpoint is very specific, and they’re
looking for more than the criminal but witnesses; this is an investigation of the crime as a whole,
not necessarily the individual who committed the crime
Special needs  concerning inventory searches and checkpoints; Normal analysis: Balance special need
(which isn’t ordinary crime fighting) against individual interest of privacy or liberty that is at stake
30
Handout: “Special Needs” Cases
(1) Border Stops and Searches
o United States v. Ramsey (1977)  upheld border searches without probable cause and
without a warrant as nonetheless “reasonable” within the meaning of the 4th
 Automatic search
 Special need? Border Integrity  important for us to be able to control our
borders to determine what items or persons are entering
 Individual interest? Privacy  minimal because know in advance they will
search your bags
(2) Search of Student in Public School
o New Jersey v. T.L.O. (1985)  Rejected both a warrant requirement and a probable cause
requirement in favor of a reasonableness standard
o Public school officials, in order to search, are required to:
 (1) Have reasonable suspicion that a search will turn up evidence of a violation of
law or of school regulations at the time the search is undertaken, AND
 (2) Limit the search specifically to the areas reasonably included in that suspicion
 Interest of children and public schools  children have a diminished
expectation of privacy especially at school because the school is meant to
be the loco parentis (in the place of the parent); different from ordinary
law enforcement interest
 Want to make sure policies are adhered to
 Reasonable suspicion is the balance the court strikes
 This is the appropriate balance between the special need and individual
interest
(3) Drug Testing in the Public Schools
o Veronica School District v. Acton (1995)  upheld random drug testing of studentathletes
o Board of Education v. Earls (2002)  upheld random drug testing of students involved
in competitive extracurricular activities
 Special need? Control of drug problem in schools; particular concern with drugs
in schools; both schools had a record of drug problems
 Interest? Students – diminished because of loco parentis
 Students could avoid drug testing by staying home; other option to drop out of
athletics or extracurricular activities
 Both cases have dissents – want individualized suspicion
 Majority says there is enough evidence of a drug problem, and students aren’t
forced to take the test if they drop their activities
(4) Search of the Office of Government Employee
o O’Connor v. Ortega (1987)  upheld search of the office of a government employee if
there are reasonable grounds for suspicion of work-related misconduct or a search is
necessary for a non-investigatory work-related purpose such as retrieval of a file
 Interest diminished because government work space
 The business of the school/office/etc is the special need
(5) Drug Testing in Government Employment
31
o
o
o
Treasury Employees v. Von Raab (1989)  upheld drug tests for US Customs Service
employees seeking transfer or promotion to certain positions involving drug interdiction
or the carrying of firearms
Skinner v. Railway Labor Executives Association (1989)  upheld drug and alcohol tests
for railway employees involved in train accidents or found to be in violation of particular
safety regulations
 Special need in first two cases drug testing for employees
 Privacy interest diminished because government employees
 Because of nature of jobs (customs and railway) don’t want them doped up on
drugs where they could potentially harm citizens as a result
Chandler v. Miller (1997)  invalidated drug testing for candidates for state elective
office
 Difference between this and the employees? Not the same prospect of harm to
others/cause of problems
 Dissent  it’s okay to hold people in positions of high responsibility to a certain
standard; if Georgia wants to test them we should give deference to the State
CONSENT SEARCHES
Theories of reasonableness:
- (1) If consent is voluntary, the search is reasonable ***
- (2) 4th amendment waiver (rejected by the court)
o 4th amendment right not have a certain area search, and if you choose to allow a search to
occur then the right is waived
- (3) No reasonable expectation of privacy if you consent (rejected by the court)
o This would suggest that there is no search
o Wouldn’t be a technical 4th amendment search
Schneckloth v. Bustamonte (1973)
- FACTS: officer on patrol stopped car with one headlight and license plate light burnt out; six men
in car; driver no license; asked men to step out of car; more cops showed up; asked to search car,
said ok; prior, no one threatened with arrest; found three check in trunk stolen from car wash
- Search is ok under the 4th by consent if consent is voluntar
- Voluntariness Test:
o Totality of the Circumstances – Fact-intensive inquiry
o Heightened Coercion
- Did the person know he had a right to refuse?  this is just ONE factor in the totality of the
circumstances; it is not particularly indicative of heightened coercion
- Policy: critical to crime control (cops get lots of evidence this way)
- DISSENT: Brennan says can’t meaningfully waive a right you don’t know you have; Marshall
wants Zerbs waiver test: (1) knowing and intelligent; (2) voluntary
Scope of Consent
Note Case: Jimeno
- FACTS: stops car; thinks engaged in narcotics trafficking; waits for person to make a traffic
infraction; makes a traffic stop; asks consent search question; Jimeno allows; as searching car
comes across paper bag; in bag are narcotics; Jimeno says could search car but not bag in car
- Scalia says scope of consent is what the officer reasonably believes the scope is
- Wouldn’t reasonably think could break open a locked suitcase but could open a paper bag
- Officer is not required to ask the clarifying question
32
-
Can revoke consent to a search
Suspect is allowed to clarify in the middle of the search; they are in control
Some other thoughts about the scope of consent…
- Does a traffic stop or Terry stop or FCA change anything regarding consent?
- United States v. Watson (1976)  FCA doesn’t change anything; but one factor in TOC
- In arrest, requirement of Miranda warnings; for voluntary consent, no warning requirement
- Same applies to traffic and Terry stops  if give consent then ok
Note Case: Ohio v. Robinette (1996)
- Traffic stop case
- What if the officer asks you the consent search question at the end of the traffic stop?
o At the end it could be argued that the traffic stop is over
o Other thought is that bc the cop hasn’t told you you’re free to leave, you’re still seized
o SC says not using stop watch on traffic stops; cop has reasonable time to conduct stop
Note Case: Matlock (1974)
- FACTS: A and B are co-tenants; A consented and B not on premises to dispute the consent
- Common authority is not synonymous with a technical property interest
- Third-party consent from mutual use of property by persons generally having joint access or
control for most purposes
- HOLD: A solitary co-inhabitant may sometimes consent to search of shared premises;
reasonableness of search in part a function of commonly held understanding about authority that
co-inhabitants may exercise in ways that affect each others’ interests
Georgia v. Randolph (2006)
- FACTS: Scott Randolph and wife Janet separated; she and child with parents; came back with
child; domestic dispute, husband took kid; officers came to house; wife said Scott did cocaine; he
said the same about her; she consented to a search of the house; found drug paraphernalia; Janet
later withdrew consent; cops got search warrant, seized more evidence and indicted Scott
- Prohibition of warrantless entry has the exception of voluntary consent of an individual
possessing authority, such as the householder
- HOLD: warrantless search of shared dwelling for evidence over the express refusal of consent by
a physically present resident is unreasonable as to him on the basis of consent by another resident
- DISSENT: if a person shares information, papers or places with another, he assumes the risk that
the other person will share access to that stuff; warrantless search reasonable if voluntary consent
from person authorized to give it (i.e. co-occupants)
Note Case: Rodriguez (1990)
- FACTS: girl getting beat up by boyfriend; allows cops to search house; she doesn’t live there
anymore; told cops it was their apt; she had a key; they thought she had authority; found drugs
- Court finds search ok because comes down to reasonableness on part of cops
Note Case: North Carolina v. Bumper (1968)
- FACTS: Cops who up with what look like a warrant but it is not
- Court says unacceptable bc not consenting to search  submitting to a show of authority
THE “PLAIN VIEW” DOCTRINE
-
A warrant exception; seizure doctrine
Three basic requirements:
33
o
o
o
(1) Officer has a lawful vantage point
(2) Right of access to the item to be seized
(3) Seizable nature of item is immediately apparent (PC)
Horton v. California (1990)
- FACTS: Horton convicted armed robbery; someone able to ID Horton’s voice; found probable
cause to search Horton’s home for proceeds of robbery and weapons used; warrant only to search
for proceeds, not weapons; didn’t find property but found weapons in plain view and seized
- If something is in PLAIN VIEW, then neither observation nor seizure would involve an invasion
of privacy - seizure merely invades a possessory interest
- Common element of plain view cases is that cop had prior justification for an intrusion in which
he came across evidence  plain view doctrine to supplement that prior justification
o Warrant for another object
o Hot pursuit
o Search incident to lawful arrest
- Can’t use doctrine to extend general exploratory search from one object to another
- Limitations: (1) plain view alone never enough to justify warrantless seizure of evidence; (2)
discovery of evidence in plain view must be inadvertent
EXCESSIVE FORCE
(4th amendment prohibition when unreasonable)
Note Case: Graham v. Conner (1989)
- FACTS: Insulin shock problems; rush into store for sugar; cops suspicious of behavior;
altercation, he is arrested; wrestled to round, handcuffed; lascerations, bruises, etc
- Court finds non-deadly force here was unreasonable
- Totality of the circumstances
o Flight/Resistance
o Seriousness of threat (if any) posed to officers or others
o Seriousness of crime
Tennessee v. Garner (1985)
- FACTS: Garner broke into house; officer told him to halt; saw no weapons on him; began
climbing fence; cop shot him and he died
- Constitutionality of seizure is balance of nature and quality of intrusion on person’s 4th
amendment interests and importance of gov’t interest alleged to justify intrusion
- Use of deadly force to prevent escape of all felony suspects is constitutionally unreasonable
- But where probable cause that suspect poses threat of serious physical harm either to officer or
others, then may be constitutionally reasonable to prevent escape through deadly force
- DISSENT: falls under cops’ need to engage in swift action concerning on-the-spot observations;
cannot use hindsight to judge reasonableness; burglary is a serious and dangerous felony, so
public interest in prevention and detection of these crimes is compelling
Note Case: Scott v. Harris (2007)
- FACTS: Car chase pursuing D where officer applied push bumper, spinning D car out of control;
D rendered quadriplegic; 1983 case
- Here, officer using deadly force to seize suspect  SC says Garner didn’t prescribe standard
designed to govern all official uses of deadly force
- Garner is merely an application of the 4th’s reasonableness test to the use of a particular type of
force in a particular situation
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-
High-Speed Chase Rule: A cop’s attempt to terminate a dangerous high-speed car chase that
threatens the lives of innocent bystanders doesn’t violate the 4th even when it places the fleeing
motorist at risk of serious injury or death
EXCLUSIONARY RULE
The “Standing” Limitation
Who has standing?
- Older approach
o (1) Is there a 4th amendment violation?
o (2) Does the individual have standing to get the exclusionary rule?
 Target standing (targets of investigation will have standing)
 Derivative standing (based on persons such as co-conspirators)
 Purpose: to maximize deterrent effect of exclusionary rule
- Newer approach
o Is the personal right of the D violated?
 In typical search - asking if person has reasonable expectation of privacy
 Reasonable expectation in place/property searched?
 Ex: Police search A and B together, evidence found in B pocket used against A;
evidence Against B found in A  both have reasonable expectation of privacy in
their own pocket but not in the others, so evidence can’t be sued against each
other; but evidence on A may be used against A and may be suppressed by A
Standing and Personal Rights
- For searches  Reasonable expectation of privacy in the place searched
- For seizures  Possessory interest in the item seized or liberty interest in person seized
Rakas v. Illinois (1978)
- FACTS: Officer pulled over car believed to be involved in robbery; searched car and found box
of rifle shells in glove compartment which had been locked and sawed-off rifle under front
passenger seat; petitioners only passengers in car
- Jones v. United States (1960)  Standing: whether the person seeking to challenge the legality of
a search as a basis for suppressing evidence was himself the victim of the search or seizure
- 4th amendment rights are personal and can’t be vicariously asserted; exclusionary rule meant to
remedy a 4th amendment violation, so if no personal rights violated then remedy can’t extend
- Did the disputed search & seizure infringe an interest of D which the 4th was designed to protect?
- Standing requirements:
o (1) Whether the proponent of a particular legal right has alleged injury in fact; and
o (2) Whether the proponent is asserting his own legal rights and interests rather than
basing his claim for relief upon the rights of third parties
- No showing of legitimate expectation of privacy  NO STANDING=no suppression of evidence
- The fact that they were “legitimately on the premises” bc in car is not determinative of
expectation of privacy
- CONCUR: Not a bright line rule but more faithful to 4th; no single factor is invariably
determinative regarding reasonableness
- DISSENT: entitlement to expectation of privacy doesn’t hinge on ownership; rule fails to deter
bad faith violations of 4th (cops can abuse circumstances)
Note Case: Rawlings v. Kentucky (1980)
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-
-
FACTS: Police found drugs in purse belong to D’s acquaintance; KY SC said D can’t challenge
legality of search bc no reasonable expectation of privacy; D says ownership in drugs so should
be entitled to challenge
HOLD: ownership of seized property as a result of search does not by itself entitle an individual
to challenge the search - must demonstrate reasonable expectation of privacy was violated
D no reasonable expectation of privacy in purse; search permissible as to items in purse; D can
only contest the seizure; since items in plain view once purse searched, seizure permissible
Note Case: Brendlin v. California (2007)
- A typical reasonable passenger in a car stopped by cops is, like the driver, seized within the
meaning of the 4th  therefore passenger entitled to object of stop; if stop unreasonable,
passenger’s rights are violated
- If either the stopping of the car, the length of the passenger’s detention thereafter, or the
passenger’s removal from it are unreasonable, then the passenger has standing to object to those
constitutional violations and to have suppressed any evidence found in the car which is their fruit
o The court is quoting a treatise here  SPLIT as to whether this is the applicable rule
o Courts that disagree with this say that since passengers don’t have a reasonable
expectation of privacy in the vehicle, then they can’t consent the seizure during the stop
Note Case: Minnesota v. Olson (1990)
- ISSUE: whether a suspect’s 4th amendment rights violated when police make warrantless,
nonconsensual entry into house where he was an overnight guest and arrested him
- HOLD: In general, an overnight guest has a legitimate expectation of privacy in his host’s home entitled to object to a warrantless entry to arrest him
- Irrelevant that no legal interest in premises under these circumstances
- Policy thought: social expectations
Minnesota v. Carter (1998)
- FACTS: through window officer saw people bagging white powder; called headquarters to
prepare affidavits for search warrant; two men left building; cops stopped car; saw black zippered
pouch and gun; arrested men; searched vehicle next day, found 47 grams cocaine in plastic
sandwich bags; warrant search found cocaine residue on kitchen table and similar bags as those in
car; men in apt for 2 ½ hours (from Chicago) - owner given cocaine in exchange for use of apt
- RULE: Extend Rakas to homes  D must show personal expectation of privacy in place
searched, and expectation must be reasonable
o Rule limits Olson  overnight guest in home may claim protection of 4th, but one who is
merely present with consent of householder may not
- HOLD: Petitioners have NO reasonable expectation of privacy
- CONCUR: Scalia says 4th to protects right in own personal home, not other peoples’ homes;
Kennedy says must have meaningful connection to place to be searched and here there is no such
connection; Breyer says respondents can claim 4th protection but officer’s observation through
window violation of those rights
- DISSENT: decision undermines security of short-term guests and a home resident; owner can
share privacy of home with people invite into home; should extend Olson beyond overnight guest
to short-term guest
The “Independent Source” and “Inevitable Discovery” Doctrines
Overview…
- Fruit of the Poisonous Tree  Three doctrines:
o (1) Independent Source
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-
o (2) Inevitable Discovery (Hypothetical Independent Source)
o (3) Attenuation
Violation  Primary Evidence  Derivative Evidence (Distinction not important anymore)
Three aspects:
o (1) Metaphor
 Oldest and least helpful
 Violation was poison; primary evidence was poisonous tree; derivative evidence
was the fruit of the poisonous tree
 Now that there is no distinction the violation is the poisonous tree and both types
of evidence are its fruit
o (2) Causation
 Requirements:
 But for causation (actual/factual causation)
 Proximate (legal) causation
 Did the 4th amendment violation CAUSE the police to obtain the evidence?
 If so, then the evidence will be suppressed
 But if there is no BUT FOR causation, then it won’t be suppressed
 But if there is no PROXIMATE causation, then it won’t be suppressed
 Prosecution seeking to disprove one requirement of causation to allow
evidence in; defense to show BOTH to insure evidence is not admissible
 But for causation for independent source
 Inevitable discovery also but for causation (hypothetical independent source rule)
 Attenuation concerns proximate causation
o (3) Policy
 A balancing analysis:
 Benefits of exclusionary rule WITH
 Costs of exclusionary rule
 Benefits  Deterrence of 4th amendment violations
 Costs  Loss of evidence = more crime
 Analysis of policy and causation:
 When causal connection present between 4th violation and police
obtaining evidence, then benefits outweigh costs; should suppress
 When no causal connection between 4th violation and police obtaining
evidence, then cost outweighs benefits and shouldn’t suppress
Independent Source
- One source that is unlawful leads to evidence
- Another source that IS lawful ALSO leads to evidence
- If fruit of 4th amendment violation, then path to evidence is tainted
- What do we do with this evidence?
o Causation Rule  No but for causation bc of independent lawful source to obtain
evidence = no suppression
o Policy/Balancing Analysis  Place the police in no worse position then they would have
been without the illegality
 If evidence suppressed with a lawful second source, then they would be
affirmatively penalized rather than merely being put back in the position they
were in without the illegality because this is evidence they would’ve had anyway
 Any evidence they only have because of a violation will cause it to be suppressed
o Without a second independent lawful source, then there IS a but for causation; the police
also wouldn’t be in a worse position through suppression, so it must be suppressed
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Murray v. United States (1988)
- FACTS: consolidated cases; both from conviction of Murray, Carter and others; feds surveilling;
saw M and C drive vehicles into warehouse; saw rig with long dark container; M and C turned
over vehicles to other drivers; followed and arrested; vehicles lawfully seized; had weed; later,
agents forced entry into warehouse; plain view saw burlap-wrapped bales later learned had weed;
didn’t know until return with search warrant; when getting warrant didn’t mention prior entry
- Complication: source one unlawful; source two IS lawful; both done by same team of people
- Is the second search done by the same team actually an independent source?
- Bc never told magistrate about first unlawful search, genuine independent in obtaining warrant
- Requirements for determination of genuine independent source:
o (1) Is there still probable cause without the illegal first search?
o (2) Motivation analysis  what would have been done without the illegal first
search?
- Inquiry for lower court: what would these officers have done had they not “snuck a peek?”
- DISSENT: Allowing evidence form second search undermines deterrence function of
exclusionary rule; holding lends itself to easy abuse; danger in confirmatory searches
Inevitable Discovery
- “Hypothetical independent source” rule
- Works the same as the independent source rule except that there is no actual independent source
- There is a path that the police would have used but thought unnecessary  issue of preemption
- Second lawful path is present but unused
Nix v. Williams (1984)
- FACTS: child disappeared; Williams surrendered; Christian Burial speech; led cops to body;
independent official search had begun but called off when Williams revealed info; one team 2 ½
miles form location; body in area intended to be searched
- Inevitable discovery present here bc team would have found body had they not called off search;
on way to location
- Causation: path of inevitable discovery, so no but for causation bc would have found anyway
- Policy: same as independent source - if evidence suppressed, police in worse position than would
have been
- Speculative analysis - guessing evidence would have been found, but don’t really know…
preponderance of the evidence standard, saying more likely than not that evidence would have
been found (court rejects higher standard of clear and convincing evidence)
- Court also rejects good faith requirement
- CONCUR: Stevens writes to condemn police officer giving Christian burial speech; White says
cop didn’t do anything wrong
- DISSENT: want remand and clear and convincing evidence standard
Limitations by Circuits Regarding Inevitable Discovery
- Some require ACTIVE PURSUIT OF THE PATH OF INEVITABLE DISCOVERY
o At the time of the violation, there must be active pursuit
o Hudson v. Michigan (2001)  Dicta saying active pursuit not a requirement; rejects this
limitations
- Some courts say NO USE OF INEVITABLE DISCOVERY TO CIRCUMVENT WARRANT
REQUIREMENT
o Evidence will be suppressed every time
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The “Attenuation” Doctrine
Overview
- Concerns proximate cause
- Basic thought: 4th amendment violation that kicks off a chain of events; start picking up evidence
down the causal chain; the fruit of the poisonous tree is that we will suppress each piece of
evidence along the way, but then get so far down the chain that the causal chain is broken; the
chain is “attenuated”
- At some point there is a lack of probable cause…
- When there is a close proximity, there is no attenuation; when there is a LACK of proximity,
there IS attenuation
- Lack of proximity = attenuation
- Totality of the circumstances analysis - FACTORS:
o Time elapsed
o Place/Space
o Chain of Events
o Flagrancy of violation (technical, deliberate) (more flagrant=more suppression)
o Nature of evidence
Brown v. Illinois (1975)
- FACTS: Brown arrested without probable cause and without a warrant; given Miranda warnings;
while in custody made two inculpatory statements; attenuation?
- Court finds no attenuation of taint
- Totality of the circumstances analysis:
o Time? 5-6 hours
o Place? Take him from one to another; not much change
o Chain of Events? Minimal
o Flagrancy of violation? HIGH
- Wong Sun (1963)  Mr. Toy picked up without probable cause; police release; starts getting
worried; goes voluntarily to station and makes an incriminating statement
o Time? Several days
o Place? Goes to station voluntarily
o Chain of events? Lots happening
o Flagrancy of violation? LOW
- Illinois wants Miranda warnings to be the cure-all  court says allowing Miranda to break the
chain would give cops incentive to arrest people without probable cause and merely give them
warnings in hopes that they will say something incriminating
Note Case: United States v. Ceccolini (1978)
- FACTS: police officer casually, but without PC or a SW, opened an envelope on the counter of
D’s place of business; items indicative of gambling activity; D’s employee said it belonged to D;
employee became key witness
- RULE: Faster attenuation of taint for witness testimony than for physical evidence
- Court thinks always a chance that witnesses will come forward on their own accord; physical
evidence can’t do this
- Don’t want to disable witness testimony - would let more criminals go free
- DISSENT: Double-counting  either win or lose on inevitable discovery; witness is an
inevitable discovery thought; if this is lost, state shouldn’t get a “bonus” on attenuation doctrine;
should have to show that witness would or wouldn’t come forward, not could have
- This adds new element to TOC: Nature of Evidence (witness testimony v. physical evidence)
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Another Case: Hudson v. Michigan (2006)
- Created a new attenuation doctrine - Nowlin calls it POLICY ATTENUATION
- The 4th amendment interest is not served by suppression of the evidence
- FACTS: knock and announce violation (4th violation); execute search warrant (which was ok);
seize evidence as a result; question of whether or not to suppress evidence
- Court says exclusionary rule does NOT apply
- 4th amendment interest served by knock and announce isn’t served by suppression of evidence
- Knock and announce protects certain interests (safety, property, narrow type of privacy)
- Evidence here collected in general privacy area of home; this is protected by SW requirement and
probable cause; warrant here was valid
- When there is policy attenuation, evidence is admitted
- DISSENT: this is an evisceration of the knock and announce rule
- Standard arguments  what incentives do cops have to violate knock and announce if they would
be subjected to law suits and discipline? Argument against this is that most people won’t sue and
cops won’t be disciplines, so there is incentive to cut corners…
Another Case: Segura (1984)
- Dicta: No constitutional right to destroy evidence
- If the only argument D has is that had the cops complied with violation, then they would have had
the opportunity to get rid of the evidence… then the evidence will be admitted
- This dicta is adopted by more than one circuit
- This is an attenuation thought…
Note Case: New York v. Harris (1990)
- FACTS: Go into Harris’s house; violated Peyton because no arrest warrant; get guy out of house,
take to station, get incriminating statements
- Q: Does the Peyton violation taint the statements made later at the police station?
- Harris has been reinterpreted…
- HOLD: Will NOT suppress statements at station house
- Reinterpret as a Hudson case:
o Instead of knock and announce  Peyton violation
o Instead of search warrant  incriminating statement
o Probable cause present; liberty intrusion protected by PC requirement
o Violated Peyton, which protects privacy in home; statements at station have nothing to do
with privacy in home
The “Good Faith” Exception
Overview…
- This isn’t really about subjective good faith; rather it is REASONABLE RELIANCE
- Field officer does something that violates 4th but relying on someone else’s judgment - officer
believes 4th being adhered to (reasonably relies on magistrate’s judgment)
- When there is reasonable reliance, will NOT suppress evidence
- Policies:
o Magistrates have no incentive to violate the 4th
o Magistrates can’t be deterred
o Exclusionary rule not designed to work with magistrates
o If the officers behave reasonably, nothing to deter  deterrent benefit nonexistent
o If balance deterrent benefit against cost (loss of evidence; crime), cost is HIGH
- Limitations of GFE:
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o
o
o
o
If officer puts information in warrant application that is false or misleading
Facially deficient - if officer can look at warrant and see it is invalid on its face, then it is
unreasonable for the police to rely on the warrant
When the magistrate abandons the judicial role - when clear to officer that magistrate has
not made a PC interpretation, then can’t reasonably rely
No indicia of probable cause - if apparent to officer that PC not present, the fact that the
officer can get a magistrate to sign off on a warrant, still no reasonable reliance
United States v. Leon (1984)
- FACTS: informant told officer Armando and Patsy selling coke and meth from residence; began
investigating; Del Castillo showed up at residence who’d been arrested previously; left house
with small paper sack; Del Castillo listed Leon’s number as employer (Leon arrested before on
drug charges); informant said Leon stored meth at home; applied for warrant to search several
residences and autos for respondents; facially valid SW issued; found large quantities drugs
- Determine affidavit insufficient to establish probable cause; so SW was invalid  but court finds
officer’s reliance on magistrate’s determination of PC was reasonable, so evidence admissible
- When there is reasonable reliance, will NOT suppress evidence
- DISSENT: Doesn’t like GFE… shouldn’t get caught up in cost/benefit balancing because often
don’t know either of these; “magistrate shopping;” police should give better presentations of PC;
exclusionary rule is a 4th amendment right that applies to magistrates as well as officers, and
admission of evidence illegally seized is a further 4th amendment violation
More on the Good Faith Exception…
- Applies to legislators who pass statutes (Kreull - 1987)
o Main thought: Legislature authorized certain type of search; said if officers reasonably
relied on legislation and search reasonable under rule, then should still apply the GFE
o Same policies as Leon except legislators and not magistrate
o Dissent: Legislators have AMPLE incentive to violate the 4th for crime control…
o Limits: same as Leon
- Also applies to court clerks (Evans - 1995)
o Outstanding arrest warrant for Evans; database mistaken; 4th violation when they arrested
him and found drugs on his person; no PC since warrant had been recalled
o GFE applies because officers reasonably relied on court clerk
o Court clerks have no incentive to violate the 4th by screwing up the database…
o Exclusionary Rule to deter police officers, but here cops acting reasonably
- What about police clerks? (Herring - 2009)
o Field officer relies on clerk who happens to be an officer (police clerk)
o RULE: If police clerk non-negligent or merely negligent, then GFE applies; If police
clerk grossly negligent or reckless, then GFE doesn’t apply
o Rationale?
 When officer acting as clerk then deterrable to some degree
 Can sufficiently deter high culpable behavior but not low culpable
The “Impeachment” Limitation
Overview…
- If we have evidence seized in violation of 4th, inadmissible in prosecution’s CIC
- But if D lies on stand, can use illegally obtained evidence to impeach D
- Not meant to prove guilt but prove D as a witness is NOT credible
- Must be accompanied by appropriate limiting instructions
- Evolution of this exception…
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o
o
o
Agnello (1925)  can’t use evidence AT ALL
Walder (1970s)  limited impeachment exception says:
(1) Evidence must relate to a collateral crime (Collateral = not the crime charged for)
(2) The statement being impeached must be made on direct examination, and
 Can’t be made on cross
 Something D as a witness and D’s own attorney brought out
 D has control of what’s being said
(3) Can only impeach D as a witness and not other witnesses
Harris (1971)  charged crimes are okay too
 Still must have limiting instruction
 Distinction between collateral and charged crime irrelevant
 Policy Thoughts:
 Pro-usage concerns:
o Importance of credibility
o Don’t want to have a shield for perjury
 Anti-usage concerns:
o Don’t want to chill D’s defense
o Don’t want to create incentives to violate the 4th amendment (the
more purposes for illegally obtained evidence means less
deterrence)
United States v. Havens (1980)
- FACTS: Attorneys Havens and McLeroth flight Peru to Miami; customs officers found cocaine
on McLeroth; implicated Havens; arrested Havens; luggage seized and searched w/o warrant;
seized t-shirt where pieces cut that matched those sewn to McLeroth’s shirt where coke found;
McLeroth pled guilty to one count, testified against Havens; t-shirt to impeach
- Q: impeach statement made on cross?
- A: YES, so long as within the scope of the questions made in direct (direct opened the door…)
Final Case in Impeachment Series: James (1990)
- FACTS: Believe James shooter in shooting; had short straight red hair; when cops pick up James
no longer has short straight red hair, now curly and black; picked up, arrested without probable
cause; admits after that hair used to be red and purposely changed
- Statement inadmissible because fruit of poisonous tree, but can be used for impeachment
- James decides not to take the stand - sends friends onto the stand and swear that his hair was
curly and black on the day of the shooting and red and straight - friends commit perjury
- Q: can evidence be used to impeach FRIENDS’ testimony?
- A: NO  cannot be used to impeach D’s witnesses
- Dissent: really important for jury regarding credibility; and this is proxy perjury
This ends the 4th amendment discussion
CONFESSIONS AND INTERROGATION
Three Interrogation Doctrines:
(1) Voluntariness
(2) Miranda (5th amendment self-incrimination) (*most important)
(3) 6th amendment right to counsel
Value of Confessions and Concerns
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-
-
Value  why do we want people to confess?
o Crime control
o Rehabilitation (“good for the soul”)
Concerns  Coercion (in various forms)
o Present in all three interrogation doctrines
o What is exactly wrong with it?
 Untrustworthy (can’t trust statement)
 Inhumane (natural rights)
 Short-circuits adversarial system of justice
English CL and Voluntariness
- Bram (1897)  5th Self-incrimination; Brown v. MS (1936)  14th DPC
- Today: DPC in 14th and 5th S-I clause  involuntary statement = inadmissible
- TEST? Consent law voluntariness test imported from confession law (essentially same)
o Under the totality of the circumstances,
o Did police overreach,
o Such that the suspect’s will was overborne? (subjective portion)
Spano v. New York (1959)
- FACTS: Spano and decedent fight at bar; Spano knocked in head; went home, got gun, fired five
shots; boy supervising store saw shooting; Spano disappeared; indictment and bench warrant;
Spano called friend Bruno at police academy for advise who told superiors; Spano surrendered;
attorney said don’t answer questions; eventually answered, got statements; tried to drive and find
bridge where threw away murder weapon
- Conclude that Spano’s will overborne by official pressure, fatigue and sympathy falsely aroused
after considering all facts in post-indictment setting
- Undeviating intent of officers to extract confession is patent; when such intent present, Court has
held that confession must be examined with careful scrutiny
- HOLD: petitioner’s conviction cannot stand under 14th
- Totality of the circumstances test
Totality of the Circumstances and Voluntariness
- Force
- Threat of Force
- Psychological Coercion
Self-Incrimination Privilege and Confessions
Miranda Chart
Custody (FCA) 
Interrogation
 Waiver (knowing and intelligent
Coercive Atmosphere  Miranda Warnings
+ voluntary)


(1) Silent

Involuntary
(2) Use
Invocation (R/S, R/C)
(3) Attorney
(4) Appointment
Miranda v. Arizona (1966)
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-
-
HOLD: Prosecution can’t use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of D unless it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination
o Custodial interrogation = questioning initiated by law enforcement after person has been
taken into custody or otherwise deprived of freeom of action in any significant way
o Procedural safeguards:
 Prior to questioning, must be warned of right to remain silent, that any statement
may be used as evidence against him, that he has a right to the presence of an
attorney, either retained or appointed
 D may waive rights if voluntary, knowing and intelligent
 If D indicates with to consult attorey, there can be no questioning
 If D alone and indicates doesn’t want to be interrogated, can’t be questioned
 Answering some questions or volunteering some statements doesn’t deprive of
right to refrain from answering further questions
Shift control of interrogation TO the suspect
Thoughts on Miranda:
- Tucker (1971)  Judge-made rule
- Dickerson (2000)  Judge-made constitutional rule
Custody
Berkemen (1984)  Miranda in regards to FCA v. Traffic stop/Terry stop
- TOC  significant deprivation of liberty
o Length of period of custody
o Movement of suspect
o Restraint on liberty/Degree
- If just a traffic stop/Terry stop, doesn’t constitute Miranda custody and so warnings not required
Interrogation
Rhode Island v. Innis (1980)
- FACTS: Innis arrested for killing cab driver; advised of rights; said didn’t want to talk without
lawyer; when in cop car, cops talking amongst selves about needing to find the gun bc didn’t
want children to find it and get hurt; Innis told cops to turn around to show where gun was;
readvised of rights but said wanted to show
- Q: Was Innis interrogated in violation of his Miranda rights?
- TEST: Express questioning or functional equivalent
- Functional equivalent = “statement reasonably likely to elicit a response”
- DISSENT: Marshall says application of standard wrong; Stevens doesn’t like test - any deliberate
attempt to elicit a statement from a suspect should be considered interrogation
Coercive Atmosphere
Illinois v. Perkins (1990)
- FACTS: Undercover agent went in jail to get Perkins to confess to murder; no Miranda warnings
- Q: Must an undercover agent give Miranda warnings to an incarcerated suspect before asking
questions that may elicit an incriminating response?
- Court finds Miranda warnings not necessary bc NO COERCIVE ATMOSPHERE
- Perkins thinks he’s talking to a fellow inmate
- Custody + Interrogation depends upon suspect knowing who he is talking to
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-
Court doesn’t want to shut down undercover work  beneficial for crime control
Remand on voluntariness issue
DISSENT: Conditions that require cops to appraise D of constitutional rights (custodial
interrogation conducted by agent of police) present here; Miranda concerned with police
deception, not just coercion; exploiting suspect’s vulnerability
Note Case: Arizona v. Fulminante (1991)
- FACTS: D, inmate in fed penitentiary, suspected of murdering 11-year-old stepdaughter; D rough
treatment by inmates as a result; Sarivola, other inmate who was gov’t informer told superior in
FBI that D rumored to have killed stepdaughter; coerced confession out of him by offering
protection
- Court found confession WAS coerced so INADMISSIBLE; D’s “will was overborne”
Note Case: Shatzer (2010)  being in prison does not constitute custody for purposes of Miranda
Invocation of Protections
Michigan v. Mosley (1975)
- INVOCATION OF RIGHT TO SILENCE
- FACTS: Mosley arrested in connection with robberies; questioned by one cop about robbery, said
didn’t want to answer so back to sell; several hours later another cop asked about shooting a man;
not arrested on this charge; advised of rights; made implicating statements
- Invocation + Extra Protection  “Scrupulously honor” the right to remain silent
- Two different interrogations so statements are ok here
- How do we know the interrogations are separate? (1) different location; (2) cooling off period; (3)
different officers; (4) significant period of time between interrogations; (5) asking about different
crimes
- CONCUR: don’t need additional requirement for invocation; scrupulously honor too protective
- DISSENT: Scrupulously honor not protective enough
Edwards v. Arizona (1981)
- INVOCATION OF RIGHT TO COUNSEL
- FACTS: Edwards arrested; agreed to questioning; taped statement with alibi; sought to make a
deal; said want attorney before deal; questioning ceased; next morning two detectives asked to
see him; said didn’t want to talk, guard said had to; eventually agreed to make a statement;
implicated himself in crime
- EDWARDS RULE: No police-initiated interrogation outside of the presence of counsel
- You can initiate interrogation at any point; but cops can’t come to you after you invoke your right
to counsel unless counsel is present
- Reasons behind rule articulated in follow-up cases  invocation is a cry for help; when someone
invokes right to silence may say don’t want to talk but not saying I need help; asking for counsel
means I am intimidated and I need help
Note Case: Arizona v. Roberson (1988)
- Edwards rule applies even when different officers seek to interrogate about separate crimes
- After asserting right to counsel for one offense, may not be questioned about separate offense
unless suspect initiates further exchanges with police
Another Case: Minnick v. Mississippi (1990)
- FACTS: Minnick arrested; asked for counsel; granted; when counsel left, interrogated again;
made incriminating statements
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-
HOLD: When counsel is requested, interrogation must cease, and officials may not reinitiate
interrogation without counsel present, whether or not the accused has consulted with his attorney
Consultation Rule
Shows courts difficulty in interpreting Edwards
When released from custody, how long do your 6th amendment rights last?
- Shatzer (2010)  FACTS: doing time; believed engaged in child abuse; interrogated in 2003
about abuse; invoked Edwards; two years later asked questions again; incriminating statements
o (1) 14-day break kills protection
o (2) When released back into general prison population, break in custody
 Therefore he needed to re-invoke his protections and since he didn’t then his
statements are good (no violation of rights)
Davis v. United States (1994)
- FACTS: Davis suspect in murder; interviewed at Naval Investigation Service office; advised of
rights; waived rights; hour and a half in said maybe should talk to lawyer; then said not asking for
one and didn’t want one; another hour passed then said think want lawyer before saying anything
else; questioning then stopped; convicted and sentenced
- In applying Edwards standard, courts must determine whether accused actually invoked right to
counsel - this is an objective inquiry
- Suspect must unambiguously request counsel
- HOLD: after a knowing and voluntary waiver of the Miranda rights, law enforcement officers
may continue questioning until and unless the suspect clearly requests an attorney
- CONCUR: ought to have a clarification rule (4 justices say this)
Note Case: Oregon v. Bradshaw (1983)
- SUSPECT INITIATION
- The Court discussed the meaning of “initiation”
- FACTS: D arrested for furnishing liquor to minor; suspected of causing minor’s death in car
accident; asserted right to attorney, convo stopped; a few minutes later D said “what is going to
happen to me now?” - officer said don’t want you to talk unless you want because you requested
attorney; next day made incriminating statements
- Court found statement of what’s going to happen to me next constituted INITIATION
- Evinced willingness and desire for generalized discussion about investigation
- After initiating further conversation, D validly waived rights under Miranda
- CONCUR: agreed validly waived right but declines Edwards’ two-step test
- DISSENT: 4 judges; D’s inquiry didn’t constitute initiation within meaning of Edwards
Miranda in Review…
Breakdown of the Miranda chart:
- Full custodial arrests: Berkemer  No Miranda warnings for Terry stop
- Interrogation: Innis  question or the functional equivalent of a question; statement that is
reasonably likely to elicit a response
- Coercive atmosphere: Perkins  even though in prison so in custody, doesn’t matter when think
talking to an inmate; atmosphere comes from knowing who you’re talking to
- Warnings: Prysock  nothing specific the cops must say but words must “reasonably convey”
the 4 requirements
- Waivers: Johnson v. Zerbs (1938)
o (1) “Knowing and intelligent;” and
 Know what the words mean
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 Ex: speak a different language; can’t hear; people under the influence
Moran (1986)  doesn’t require the cops to provide additional helpful
information in understanding
 Spring (1987)  robberies and murder issues; got him to confess about robberies
so then got him to make statements about murder; court says no indication that he
didn’t understand the waiver
o (2) Voluntary  Will not overborne by police coercion
Implied Waivers: Berghuis v. Thompkins (2010)  expands on Butler; court is approving implied
waivers
o Requirements:
 Proper Miranda warnings
 Must understand warnings
 Course of conduct indicating waiver (conduct = answering question)
o The original spirit of Miranda is that it is hard to waive and easy to invoke; now it is hard
to invoke and easy to waive
Invocations
o What counts as one?
o If there is a successful one, what happens next?
 Edwards  Attorney
 Mosley  Silent

-
-
Other thoughts on Miranda
(1) Miranda IS an EXCLUSIONARY RULE
o The right under Miranda is the exclusion of statements
o The right is not to be free of questions
o If an officer violates Miranda rights, can you sue the officer in 1983 suit for that
violation? NO because it isn’t a constitutional violation so no 1983 suit
o Constitutional violation is the admission of the evidence
o Chavez v. Martinez (2003)  shot in face in emergency room; asked person questions; he
was in custody; under arrest and surrounded by police; Miranda rules violated but said no
1983 suit for that; to get a 1983 suit must show police interrogation was “shocking to the
conscience” (DPC)
(2) Standing  Personal Right
(3) No Fruit of the Poisonous Tree under Miranda
o Tucker (1974)  Witness Testimony bc of statements admissible (derivative)
o Patane (2009)  Physical evidence bc of statements admissible (derivative)
 Why is there no FPT?
 Miranda is a judge-made, prophylactic rule, not a constitutional right
 Miranda violations are only presumed involuntary  evidence they lead to aren’t
untrustworthy; no reason to think own statements aren’t trustworthy
 Cost/Benefit crime control issue  this is important probative evidence; might
get a little more compliance with Miranda if suppress, but not enough to
outweigh benefit of evidence
(4) Exceptions to Miranda
o Impeachment (Harris)
 This is because of presumed involuntariness
 No impeachment exception under the voluntariness exception, only Miranda
 So if can show that the statements were actually involuntary under TOC
statement wouldn’t be allowed in for impeachment purposes
o Public Safety (Quarles - 1984)
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
o
FACTS: Mr. Quarles accosted a woman; charge of sexual assault; he is aware
cops after him; arrest him in supermarket; holster with no gun; cops not sure if an
accomplice nearby, want to find gun; he is in custody, ask where gun, says by the
milk; not given Miranda rights so violation
 BUT court says this is a PUBLIC SAFETY EXCEPTION
 This is a TOC analysis
 Most courts use 4th amendment exigency
Seibeut (2004)  Question first, Warn second
 Thought here is “the cat’s out of the bag”
 Suspect believes not losing anything by repeating because didn’t know first set of
statements were inadmissible
 But this is a fruit of the poisonous tree argument
 This has been a law enforcement technique
 In this case (Seibeut), court says can’t do this
6TH AMENDMENT RIGHT TO COUNSEL
CFJP 
 Waiver  (1) Voluntary; (2) K&I
Integrity of Trial Process  MW
Deliberate 
Elicitation
 Assertion  Voluntary (do waiver analysis)
What triggers this at the interrogation stage?
- COMMENCEMENT OF FORMAL JUDICIAL PROCEEDINGS
- Must be charged, indicted or arraigned, etc…
- Interrogation - defined as deliberate elicitation of statements - is what is forbidden
- Here our concern is not the coercive atmosphere (like in Miranda)  concern is preserving the
adversarial nature of our legal system (integrity of trial process)
- Purpose of counsel  (1) A professional advocate; (2) Expert legal advice (concern of fairness)
Massiah v. United States (1964)
- This is a pre-Miranda case
- FACTS: seaman transporting drugs on boat; cops caught him; co-conspirator agreed to help cops;
Massiah in car with co-conspirator that had transmitter in car; made incriminating statements
- No warnings because this was an undercover operation
- Still investigating but started the prosecution because Massiah was indicted  they elicited
statements from him without the benefit of counsel; no Miranda warnings and no waiver
- HOLD: Statements can’t be used as evidence in trial against him
- Had this been post-Miranda, it wouldn’t have mattered bc he wasn’t in custody and he didn’t
know he was talking “to” a police officer
- 6th R/C requires CFJP but not custody; Miranda requires custody but not CFJP
- DISSENT: don’t want a fair fight, want criminals put in jail; if he’s dumb enough to say
incriminating things, then he shouldn’t get a pass
Deliberate Elicitation
- Deliberate  Intent; purpose; knowledge; wreckless; likely to lead to elicitation
- Elicitation  not mere passive listening; if the person stipulates conversations and/or exploits a
relationship of trust and confidence, then that constitutes elicitation
- When both of these things are present, statements are inadmissible
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Note Case: Texas v. Cobb (2001)
- Offense-specific = only for charged crimes
- FACTS: Cobb suspected of committing burglary, kidnapping and murder; charged with the
burglary; not charged for other crimes; cops deliberately elicit statements about the kidnapping
and murder; are those statements admissible?
- Statements admissible with respect to murder, not burglary (R/C not attached for murder stmts)
- How do we define offense-specific? (Same offense?)
o Majority: Blockburger doctrine  need to have the same facts and the same statutory
elements of the crime
o Dissent: Factually related approach  should have a broader definition of the same
offense; should be the same if closely factually related
Note Case: Patterson v. Illinois (1988)
- FACTS: D and other gang members arrested for murder; asked who else was indicted and then
asked why another gang member had not been indicted bc it was his fault; officer then apprised D
of his Miranda warnings and D initiated a Zerbst waiver; then made incriminating statements
- RULE: As a general matter an accused who is given the Miranda warnings has been sufficiently
apprised of the nature of the 6th amendment rights, and of the consequences of abandoning those
rights, so that his waiver on this basis will be considered a knowing and intelligent one
Montejo v. Louisiana (2009)
- Overruled Jackson (1986)
- After the assertion of the R/C, there is no special rule between the R/C and the Waiver analysis
- Voluntariness is the only protection necessary
- Why?  Scalia: Jackson meant to protect people from police badgering after asserting R/C; must
effective when in custody; but when in custody, have Edwards rule, so don’t need Jackson
- DISSENT: Jackson not just to protect from badgering, but to protect foolish D’s from themselves
Note Case: McNeil (1991)
- ASSERTION
- FACTS: being arraigned; judge says would you like an attorney appointed for you? Person says
yes; person facing CFJP but also in custody; does his statement invoke merely the 6th amendment
R/C or does it mean he is also invoking his Miranda rights?
- Scalia writes opinion  must look at circumstances to see what he is asserting
- Here it is clear that he is asserting his 6th amendment R/C  this is not a cry for help under
Miranda, because he isn’t being interrogated
Background of 6th amendment Right to Counsel
(1) Standing  Personal Right
(2) An Interrogation Practice Rule WITH an Exclusionary Rule element
o Puts constitutional limits on interrogation practice
o Kansas v. Ventriss (2009)  Court unanimous that 6th R/C is an interrogation practice
rule; says the police officers in Massiah violated the R/C; if someone has been indicted
and there is deliberate elicitation, without proper warnings and waiver then that person is
deprived of assistance of counsel; that is actually a constitutional violation that HAS an
exclusionary rule; will generate 1983 suit liability
o Exclusionary rule is no longer the right; this is a prophylactic remedy
o The constitutional right is the interrogation practice rule; the remedy is the exclusionary
rule (this works the EXACT same way as the 4th amendment)
th
(3) 6 R/C has a Full Fruit of the Poisonous Tree (FPT)
(4) Impeachment Exception
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o
o
Kansas v. Ventriss
Statements taken in violation of 6th can be used for impeachment purposes
Comparison of Miranda and 6th R/C
- Miranda applies when there is CUSTODY; 6th R/C applies when there is CFJP
o Can have both; can have neither; when neither apply  VOLUNTARINESS
- Miranda Interrogation (Innis) v. 6th R/C Deliberate Elicitation (Henry)
o In Henry, deliberate elicitation is PROHIBITED
o In Innis, interrogation means express questions or the functional equivalent (something
the officer knows is reasonably likely to elicit a response)
o Under Miranda can deliberately elicit a statement if it is not reasonably likely to elicit a
statement
o Under the 6th if someone is stimulated to make a statement, the deliberate part means it
counts as interrogation so it’s unacceptable
o If Mr. Innis had been indicted and he invoked his 6th R/C, then the interrogation would
NOT have been acceptable
- Main concerns:
o Miranda = coercive atmosphere
o 6th R/C = Integrity of the trial practice
 Side Note: Undercover agents  Since Miranda requires a coercive atmosphere,
doesn’t apply to undercover agents; we don’t care about coercive atmosphere
under 6th R/C so undercover agents are NOT covered here
- Waiver analysis:
o Miranda = not required to provide additional information to elicit a waiver
o 6th R/C = May need to give additional information to elicit a waiver (Patterson)
- Invocation:
o Miranda = must clearly invoke right (Davis) (Mosley, Edwards)
o 6th R/C = We don’t care bc Jackson was overruled by Montejo
- Fruit of the Poisonous Tree
o Miranda = No FPT
o 6th R/C = Full FPT
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